Employees of a company or organization may sometimes be suspected of misconduct. In such cases, a manager may feel that there is a need for workplace searches and interrogations. The manager may feel the need to so in order to protect against potential violations of company policies or to protect a company’s assets. However, there is also the need to safeguard the rights of employees, including their right to privacy.
The privacy rights of employees in the workplace are governed by federal and state laws. Most employee privacy rights are determined on a case-by-case basis. Employers may conduct workplace searches and interrogations if they have a reasonable basis for doing so. Moreover, if there is no reasonable expectation of privacy in the particular item or place, then the employer may conduct a search. To determine whether there has been an illegal search and/or interrogation, the courts will look at the following factors:
- If the search was conducted on company or personal property.
- The particular context in which the search took place.
- If the workplace was open to the public or other employees.
- If the search involved any type of coercion or duress.
- If the employer clearly informed its workers that public or personal property would be subject to workplace searches.
An employer must be very careful when conducting a search or interrogation. It has to be done in a reasonable manner and the employee must not be humiliated or embarrassed. A degrading search or interrogation can lead to potential liability and expensive litigation. An employer can also be subject to a lawsuit if an employee’s consent to a search was brought about through coercion or duress. Some examples of duress or coercion in an employment setting are:
- Physical or verbal threats;
- The threat of being fired; or
- Holding or detaining employees against their will.
Employers are strongly encouraged to avoid searching the employee’s person. This is because employees have the greatest privacy rights when it comes to any search of their bodies. Rather, the employer may want to limit the search to the belongings, such as purses, bags, wallets or outer clothing.
Employees generally do not have a reasonable expectation of privacy in work-placed equipment and tools. For example, employees do not have a reasonable expectation of privacy in work computers, desks, and lockers. In fact, employers are generally entitled to monitor the use of computers. For example, employers are allowed to monitor an employee’s internet-surfing history. Because the email system belongs to the employer, employees generally do not have any privacy rights in their emails at work. Moreover, the employer is allowed to monitor the communications of employees. If the employee has a company car, an employer would probably be entitled to search the car.
However, employees would likely have a reasonable expectation of privacy in personal items. Personal items may include purses, wallets, briefcases or luggage. Employers may only search personal items with a court-ordered warrant. For example, an employer would probably not be allowed to go through an employee’s personal car. In the case the employer believes that there are any dangerous or illegal materials in an employee’s car, it is better to call the police.
Some questions to ask yourself in order to determine whether your privacy rights were violated:
- 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 the potential for a search?
- Are such similar searches routinely conducted by the company?
A court will also consider whether the employee was a public employee or a private employee. Public employees have greater protection of privacy under the fourth amendment.
If you believe that you were subject to an illegal search or interrogation, there are probably many questions you want answered. Speaking with an employment lawyer as soon as possible may help you understand what your options are and what next steps to take.