Employers’ searches of employee work areas are on the rise. With concerns of theft of company property and information, securing an employee’s computer, work station, and work area are important. So, when is it permissible to search an employee’s work area, how is it done, and who establishes the criteria to trigger the search and policy as to how it’s carried out? The answers are – you as the employer – are responsible for these tasks. Written policies and consistent enforcement are key. 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 where an employer needs to search an employee’s desk.
Employee Expectation of Privacy
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.
Prior Practices of Employer
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.
Best Practice – Have and Consistently Follow Written Policies and Procedures
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.
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Patric McCallum is a principal attorney with Drew & McCallum. He focuses his practice on family and business law, helping business leaders and Texas families with their legal challenges and needs. He brings a wealth of trial experience and industry knowledge to every matter he handles.