Suspicious Employees at Work

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 What Is Privacy In The Workplace?

The 4th Amendment to the U.S. Constitution provides Americans with the right to be free from warrantless police searches in areas in which we have a “reasonable expectation of privacy.” This refers to specific areas, or aspects of their personal life, in which a reasonable person would expect privacy. More specifically, the 4th Amendment refers to “persons, houses, papers, and effects” as areas that may not generally be searched without a warrant.

A reasonable expectation of privacy would extend to the following places:

  • Places of residence;
  • Hotel and motel rooms;
  • Certain public places, such as restrooms;
  • Some areas in jail houses; and
  • Specific areas of a vehicle.

Essentially, the police and other authorities need a search warrant before they can search in areas in which privacy is reasonably expected. If they do not have a search warrant, they may search an area in which a person has a reasonable expectation of privacy, but only under considerably limited circumstances.

In the workplace, the space technically belongs to the employer; as such, desks and offices may be subject to legal search. However, a locked desk drawer or a private conversation may receive more privacy protections than spaces that are considered to be more open. Work computers, email accounts, and workplace phone systems may also be subject to monitoring.

An employee’s personal belongings, such as a cell phone, backpack, or purse, generally carry a higher expectation of privacy. However, if something was stolen, or if the employee works in a sensitive or high-risk security position, the employer may be able to search employee belongings.

If a workplace search is conducted for no legal reason, it is possible that the employer’s actions are illegal. You should check your employee handbook in order to determine how investigations are handled. It is important to note that government employees have different due process rights than those in the private sector. As such, if the policy states that you have a right to representation, use it. Additionally, it is important to remember that human resources and company lawyers are in place to protect the company and not you.

How Can My Employer Legally Violate My Reasonable Expectation Of Privacy?

As was previously mentioned, activity produced on work computers and systems is considered to be company property; this includes email. Additionally, many employers now have email systems that make copies of all messages that are sent and received. This information is stored in order to check for illegal use, productivity, and any other issues. Private computers and private email accounts that are accessed on them are generally protected. However, if private information is transmitted on the employer’s network, the employer may have access to its contents.

However, privacy laws vary by state. Additionally, it is each company’s responsibility to have its own policies in place which govern privacy rights. An example of this would be how if a company has a strict policy prohibiting personal use of email and computers, the company would have the right to access emails in instances of litigation.

Employers are generally allowed to monitor their employees through the use of security cameras. However, cameras generally cannot be in locations that would be considered invasive. An example of this would be how a camera placed in a bathroom or dressing area is generally prohibited.

Other areas, such as a cubicle or a break room, may also be considered a space in which an employee would have a reasonable expectation of privacy. If an employer places cameras in such locations, they are required to notify employees of their use.

An employer is generally not allowed to search an employee’s vehicle; however, there are exceptions. An example of this would be how if the car is a work car that is owned by the company, it is considered to be the employer’s property, and as such, they have a right to search. An employee-owned car may be searched if it is parked on the company’s premises and if there is a company policy stating that any vehicles on the property are subject to search.

An employer may listen to any business-related telephone calls without letting employees know they are listening in. If a personal call comes in, the employer is legally required to hang up immediately unless the employee knows that the employer is listening and they consent to it. If the employer has a policy of no personal calls, employees run the risk of having their personal calls monitored.

If the employee’s cell phone is owned by the company, it is important to remember that the employer may also have access to location data. Similar to video recordings, employers have the right to record audio, as long as the recordings are not taken in areas in which a reasonable expectation of privacy exists.

When Can An Employer Conduct Searches And Interrogations In The Workplace?

When a manager suspects employee misconduct, they may feel that there is a need for workplace searches and interrogations in order to protect against potential violations of company policies or to protect a company’s assets. However, it is also imperative to safeguard the rights of employees, including their right to privacy.

In terms of the privacy rights of employees in the workplace regarding searches and interrogations, employers may conduct workplace searches and interrogations if they have a reasonable basis for doing so. If there is no reasonable expectation of privacy in the particular item or place, the employer may conduct a search.

In order to determine whether there has been an illegal search or interrogation, the courts will consider the following factors:

  • Whether the search was conducted on company or personal property;
  • The context in which the search took place;
  • Whether the workplace was open to the public or to other employees;
  • If the search involved any type of coercion or duress; and
  • Whether the employer clearly informed its workers that public and/or personal property would be subject to workplace searches.

When conducting a search or interrogation, it must be done in a reasonable manner, and the employee must not be humiliated or embarrassed. A degrading search or interrogation could result in potential liability and expensive litigation, as well as a lawsuit if an employee’s consent to a search was the result of coercion or duress. Some examples of duress or coercion in an employment setting include:

  • Physical or verbal threats;
  • The threat of being fired; and
  • Holding or detaining employees against their will.

Employers are strongly encouraged to avoid searching the employee’s person, as employees have the greatest privacy rights regarding any search of their bodies. The employer should limit the search to the employee’s belongings, such as purses, bags, wallets, or outer clothing.

Employees generally do not have a reasonable expectation of privacy in terms of work-placed equipment and tools. An example of this would be how employees do not have a reasonable expectation of privacy in work computers, desks, and lockers, as was previously discussed.

However, employees generally have a reasonable expectation of privacy in their personal items. Personal items may include purses, wallets, briefcases, or luggage. Additionally, employers may only search personal items with a court-ordered warrant. An example of this would be how an employer would probably not be allowed to go through an employee’s personal vehicle if they believe that there are any dangerous or illegal materials in the vehicle.

Some questions to ask yourself in order to determine whether your privacy rights were violated at work include:

  • Does the company have a clear written policy regarding workplace searches?
  • Was your consent to a search brought about through duress or coercion?
  • Was the person who conducted the search authorized to do so?
  • Were you notified that there would be a search, or of the potential for a search?
  • Are such similar searches routinely conducted by the company?

Do I Need A Lawyer For A Workplace Search and Interrogation?

If you were subject to an illegal search or interrogation, you should speak with a workplace lawyer as soon as possible. Your attorney can help you understand your legal rights and options according to your state’s specific laws. Additionally, an experienced attorney will also be able to represent you in court, as needed, should legal action become necessary.

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