Employer Searches of Workplace Areas

Employers often ask when it is permissible to search a desk, locker, or an employee's person.  Employers have often found themselves the subject of lawsuits for invasion of privacy, assault, public disclosure of private facts, and other claims for unlawful searches.  Employers should establish and follow some simple principles in developing policy and conducting searches in the workplace.  By way of example here, we will use the example hypothetical - can an employer search an employee's desk? 

Generally, an employee must show an expectation of privacy in an area the employer searches before a court will find that the employer has committed an unlawful intrusion.  Courts will consider the conduct of the employee, the employer, and company policy in looking at whether a reasonable expectation of privacy exists.  So, in our example, if the employees are allowed to place a lock on their desk drawer that they bring from home, or if the employee has the only key to the desk, this would weigh in favor of a finding that the employee has a reasonable expectation of privacy.  If the employer's company policy states that no employee has privacy with respect to employee desks, furniture, computers, etc., this weighs in favor of no finding of an expectation of privacy.  Also, if the employer conducts searches of employee desks, and this proposed search is in conformity with previous employer practice, this also weighs against a finding that the employee had a privacy expectation.  Consequently, best employer practice is to establish a company policy that employee desks, furniture, computers, etc. are subject to search by employer, and periodically employer should search or inspect these areas to establish a pattern of company conduct.  If the area is not secured by the employee and the employee is aware that supervisors, co-workers, or subordinates have ready access, then no expectation of privacy will likely be found.

Employer's best practices on this issue are to have written policies that advise workplace areas are not private and may be subject to search.  These policies can be in an employee handbook as well as notices placed around the workplace or in a break room.  Employers should also have employees sign an acknowledgement of receipt of the employee handbook and affirmation the employee has read and understood the content of the handbook, and that any questions the employee had were answered to the employee's satisfaction by employer.