Workplace searches and their impact on privacy are areas that often cause confusion for small business that don’t have experienced human resources managers. Sometimes they are even confusing for larger companies as well. What can you do? The answer to that is “It depends on what state you are in.” There is no Federal law dealing with workplace searches for private sector employers. Public employer must deal with Federal restrictions on “unreasonable” searches and seizures. Many attorneys will recommend that private employers also keep in mind the term “reasonable.”
Here is an example of an employer that did not make that consideration. A retail store had a customer accuse an employee of taking a $20 bill that had be put on the counter. The employee denied it, but the store manager made the employee go into the restroom and strip to her underwear in front of the manager and the customer. Needless to say she was humiliated. So she sued for invasion of privacy and the courts found that the actions of the store did not meet the standard of “reasonable.”
So what are factors in considering whether a search is considered “reasonable?” Here are some options:
- What is the need for the search?
- Where did the information come from and is it reliable?
- Is this one incident or a pattern?
- What is the underlying concern?
- Does it involve potential dander to others?
- Is the potential harm imminent?
- If potential violence is involved have you thought about notifying authorities?
- What is it that needs to be searched?
Many courts have said that employees should have a reasonable expection of privacy on their person, in their clothing, in their automobile, or in their purses of other private containers.
To avoid problems in dealing with workplace searches it is recommended that you do the following:
- Define a policy reserving the right to conduct workplace searches. If necessary consider what security measures might be put in place.
- Provide notice to employees about the company’s search policy.
- Identify the business purpose of the search.
- Request consent to conduct a search.
- Let the employee know that unreasonable refusal may be grounds for termination.
- Conduct the search in a non-threatening manner.
- Have witnesses for the search.
- If necessary get law enforcement involved.
- As much as possible try to maintain the employee’s dignity.
Hopefully you will never have to encounter the need to conduct a workplace search, but if you do following this advice may save you some heartache.
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