Searches and Seizures | Privacy Rights

Most employers would claim a legitimate desire to keep workplaces free of illegal drugs, alcohol, and weapons. And most employees would claim that they have a right to expect that their personal belongings will remain safe from the groping hands of their employers.

The legal truth lies somewhere between. Employers are generally free to search through an employee’s personal items kept at work—unless the employee reasonably expects that the spot in which those items are stored is completely private. An employer who searches an employee’s private belongings such as a purse, briefcase, pockets, or car must usually meet a higher standard and have a compelling reason to do so—such as the belief that work property is being stolen and hidden inside.

Someone’s Reading Over Your Shoulder

The American Management Association (AMA) regularly polls U.S. businesses about their policies and practices in monitoring workplaces. The most recent survey reflects a growing concern with the ease and availability of electronic communication on the job—and particularly the bugaboo potential of Instant Messaging (IM).

In some of the more poignant responses to queries from the 2004 survey, companies reported that:

• Employee email has been subpoenaed by a court or regulatory body—20%.

• They have a written email retention and deletion policy—35%.

• Employees receive training about email risks, rules and policies—54%.

• There is a written policy governing email use and content—79%.

• Outgoing and incoming email is monitored—60%.

• Internal email between employees is monitored—27%.

About 58% of the survey respondents confessed to sending and receiving personal IM chat at work—including that dubbed “inappropriate and potentially damaging” such as attachments (19%); jokes, gossip, rumors, or disparaging remarks (16%); confidential info about the company, coworkers, or clients (9%); sexual, romantic, or pornographic content (6%). And, here, the AMA sounded the clarion call, warning that: “employers should view IM as a form of turbocharged email, creating a business record that must be monitored and managed…or face potentially costly consequences tomorrow.”

As an employee, you might want to lay off the IM messages on the job. This instant.

Example

Thomas sold household appliances for a department store that provides each employee with a storage cabinet for personal belongings in a room adjacent to the employee lounge. The store’s employee manual states that, although the company does not provide locks for the cabinets and does not take responsibility for any thefts from the storage area, employees may bring in a lock of their own to secure their individual cabinet.

One day while at work, Thomas was called to the manager’s office, where he was confronted with a letter that had been written to him from his drug rehabilitation counselor. The manager said the letter had been found in his storage cabinet during a routine search by the company’s security force, and that he was being fired because he had a history of drug abuse.

Thomas could likely win an invasion of privacy lawsuit against his former employer because, by allowing Thomas to use his own lock to secure his cabinet, the department store had given him a logical expectation of privacy for anything kept in that cabinet. His claim would be somewhat weaker if his former employer had furnished the locks and doled out the keys or combinations to them, because Thomas would then be on notice that others could get into his locker—defeating his claim to an expectation of privacy.

Another fact that weighs heavily in determining whether an employer’s search is legal is the reasonableness of its length and scope. For example, an employer who suspected an employee of stealing foot-long copper piping might be justified in searching his or her work locker, but not purse or pockets.