Twelve Steps to Effective Workplace Searches (6/10)

Even if you can justify workplace searches, employees hate them, and, if they are not conducted properly they can result in legal claims.  Find out what the important legal issues are and how you can manage the process to minimize liability.

Does your organization have a policy on workplace searches?  If not, you should.  Searches may be necessary to prevent illegal activity and thefts (including thefts of confidential information and trade secrets) and to provide greater security for your employees.      Some employers, however, hesitate to establish these policies because of concerns about creating an atmosphere of distrust.  But from a legal standpoint, if you do not reserve at least your right to conduct searches, you may create a heightened expectation of privacy for your employees that can greatly hinder your ability to perform any search.  Below, you will learn what legal issues affect workplace searches and twelve steps you should take to conduct them effectively to limit liability. The Legal Right to Search The employer’s right to conduct searches is balanced against the employee’s expectation of privacy.  Generally, an individual has fewer privacy rights relating to items stored in a private workplace than in other areas of daily life.  For example, as discussed below, employees in the private sector are not protected by the U.S. Constitution’s privacy guarantees against unreasonable searches.  So, for private sector employees to bring a successful invasion of privacy claim, they must show that their expectation of privacy was reasonable.      Whether the expectation is reasonable depends largely on what representations the employer has, or has not, made about privacy in the workplace setting.  For example, you can raise expectations of privacy if you allow employees to provide their own locks for lockers, to set secret passwords for their workplace computers, and to control all access to their desks and files.  In ruling on these issues, courts often allow workplace searches by private employers if the organization has notified employees that searches might be conducted, if the search was conducted to enforce a workplace policy, or if the complaining employee did not have exclusive access to computers, lockers, desks, or file cabinets. Constitutional Right to Privacy Public sector employees typically have greater privacy rights than do other employees working in the private sector.  Public sector employees are protected by the Fourth Amendment of the U.S. Constitution, which prohibits unreasonable searches and seizures by the federal government, as well as similar provisions in some state constitutions.  Their reasonable expectations of privacy may be limited or diminished in certain circumstances, however, such as when the employee’s work involves security issues.      Private employees generally are not covered by the federal Constitution’s privacy protections in the workplace.  However, they may be protected by state constitutional guarantees of privacy.  For example, the California constitution provides that the inalienable rights of all individuals, including public and private employees, include rights to privacy.  Some states, such as Wisconsin, also have enacted statutes that restrict intrusions into employee privacy by private employers. Claims Related to How Searches Are Conducted Legal claims also can arise from the manner in which the search is conducted.  Among the most common are false imprisonment, assault and battery, intentional infliction of emotional distress, and defamation. •     False imprisonment.  False imprisonment is a civil (not criminal) claim arising from the intentional confinement of a person for any appreciable time against his will and without lawful justification.  For example, this claim may be brought by individuals detained or confined by security officers in connection with an investigation if there was no probable cause or legitimate business justification for the detention. •     Assault and battery.  Physically seizing or aggressively interrogating an employee or other person in the course of an investigation may result in the tort (or wrongful act) of “assault,” defined as placing a person in reasonable apprehension of imminent harm by one’s words or action but falling short of an actual battery, or “battery,” defined as the offensive or harmful touching of the person or clothing of another without consent. •     Intentional infliction of emotional distress.  An investigation may result in a claim for intentional infliction of emotional distress if the employer acts with the intent to cause, and does cause, severe emotional distress through outrageous or particularly invasive conduct, such as request to disrobe or a hands-on search of an employee’s person.   •     Defamation.  Defamation claims can result when employers fail to keep confidential the results of an employee search or interrogation. Twelve Steps to Proper Searches So what can you do to reduce the negative impact and liability of a search?  Consider these twelve actions: 1.     Establish a written policy.  When claims arise, one of the first things courts look for is evidence that you limited your employees’ expectation of privacy and informed them that they – and their property at work – are subject to searches at your discretion.  Your search policy should be in writing and list specific areas that are subject to search, including lockers, desks, file cabinets, computers, email and other electronic systems, vehicles in parking lots, and other similar property.  The more comprehensive and specific your policy, the more limited your employee’s privacy expectations will be. 2.     Check state privacy requirements.  Privacy has become a hot-button issue in many state legislatures and new laws are regularly introduced on this topic.  To ensure compliance with state laws, you should consult an attorney prior to drafting a comprehensive search policy or at least have an attorney review the policy prior to publication. 3.     Communicate the policy to employees.  Include the policy in your employee handbook and in your training and orientation materials. 4.     Train the employees who will perform searches.  You should provide guidelines and training to employees who will conduct searches so that proper procedures are followed to minimize problems.  Emphasis should be placed on commonsense, employee concerns, and the need for as much confidentiality as possible. 5.     Retain keys and assign passwords.  Provide employees with locks for their lockers, desks, and files and assign passwords and log-on codes for computers, email, Internet access, and other communication systems.  Do not allow use of personal locks and passwords to restrict access to workspaces and files.  These actions will create a heightened expectation of privacy.  6.     Search only when necessary.  Not every work rule violation or misconduct warrants a search.  Most employers limit their searches to situations involving threatened violence (such as weapons or drugs), and incidents of theft.  As discussed below, in most instances, a thorough investigation usually can provide enough information to support disciplinary action.  And, you should avoid random searches since courts tend to view them as inappropriate particularly if you cannot show a reasonable business need for a random search. 7.     Investigate first to support reasons for a search.  If you have some evidence of an employee’s participation in misconduct prior to a search, this information can help support your need to search.  For example, in a case of theft, make sure that the employee in question actually had access to missing items and was in the area when the items disappeared.   8.     Ask for voluntary access to the area or item to be searched.  Unnecessary public or aggressive action can result in claims of defamation, assault and battery, and infliction of emotional distress.  When possible, inform employees of your intent to search and ask them to give you access voluntarily.    9.     Have a witness present.  The involvement of an extra management participant should reduce disputes and add credibility if outside review is needed.  10.     Keep the search as private and confidential as possible.  Do not search an employee in front of other workers, whenever possible.  This step helps prevent potential embarrassment or invasion of privacy claims.  Similarly, any findings from the search should be kept confidential, just like all investigation results. 11.     Do not touch or forcibly detain employees.  Searches of an employee’s person are the most likely to result in successful legal claims.  If you suspect an employee is concealing evidence on his person, ask for cooperation in producing the evidence. 12.     Suspend the search if the employee refuses or becomes hostile.  The employee can be suspended pending further investigation and discipline can be imposed for insubordination or failure to cooperate.  In extreme or dangerous situations, legal authorities should be involved. Final Tip:  No Smoking Gun Needed Most employees, understandably, do not relish the prospect of being searched at work.  Clearly, unnecessary or improper searches will adversely affect morale.  Accordingly, you should evaluate carefully whether a search is really necessary or if the same information can be obtained in another manner.        Often, if you conduct a thorough investigation, you can acquire enough information to make any necessary action without performing a search.  As a general rule, you do not have to have concrete proof of an employee’s wrongdoing in order to discipline, or even terminate, the employee.  Courts usually uphold employer disciplinary actions based on an “honest belief” of employee wrongdoing if the actions are supported by a thorough investigation and documentation.  Thus, you should be able to take disciplinary action without having the proverbial “smoking gun” or without meeting the legal standard of “beyond a reasonable doubt” needed for criminal evidence.      So, before you begin a search, first make sure you have a policy in place that allows it.  Then, weigh the potential risks, liabilities, and morale damage you may cause versus the real value of any new information you expect to obtain.  Further, if you decide a search is necessary, consider consulting with your legal counsel prior to performing the search.  This extra measure can help prevent later liability.  As with most HR decisions, it pays to conduct a risk assessment and understand all the issues before acting.