Blanchard & Walker Weekly

Topic of the Week  Workplace Privacy: When can a government employer search an employee?

When can a government employer search an employee?

  • Is there credible evidence of misconduct?
  • Is the scope of the search limited?
  • Is the search of an accessible area in which the employee has a diminished expectation of privacy?
  • Is the search for a limited purpose?

Under what circumstances can a public employer search an employee?

The Fourth Amendment of the United States Constitution, which guarantees that "the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated," has been extended by the U.S. Supreme Court to protect public employees against searches and seizures of themselves and/or their property. In order for you to be protected by the Constitution, you must demonstrate that the search the employer conducted was an invasion of your own reasonable expectation of privacy.

Your employer is not required to have a warrant or probable cause to conduct a search. Probable cause means a reasonable ground to suspect that a person has committed or is committing a crime or that a place contains specific items connected with a crime for the search, which is required under the Fourth Amendment to obtain a search warrant. Your employer need only have a justifiable reason related to the nature of employment, such as an interest in promoting efficient operation of the workplace.

A reasonable expectation of privacy in the governmental setting usually depends on the office practices and procedures. The U.S. Supreme Court has acknowledged that public employees have a heightened expectation of privacy regarding such items as purses, briefcases, and closed luggage brought to work.

Government employers can weaken your expectations of privacy by informing you that you do not have an expectation of privacy, or that your desks, computers, and lockers may be searched. However, while legitimate workplace policies or regulations can reduce your expectations of privacy, the government may not condition your job upon your willingness to comply with unconstitutional conditions.

Here are some of the factors that you as a public employee must consider in order to determine whether or not your governmental employer has violated your right to privacy:

Is there credible evidence of misconduct? For example, a tip by a credible coworker that an employee has engaged in misconduct may be enough for an employer to initiate a search.

Is the scope of the search limited? For example, the employer's search should be limited to locations where the item being sought is likely to be stored. One court upheld a search for pornographic pictures in an employee's desk, storage unit, and file cabinet, since those places were the most likely place an employee would store the photos.

Is the search of an accessible area in which the employee has a diminished expectation of privacy? For example, is the employer searching an area that is exclusively for the employee's own use, or do other employees have access to the area? One court upheld a search of a fire chief's office where official records and maintenance equipment were kept, holding that the chief's privacy expectations were diminished when others had the right to access items stored in his office.

Is the search for a limited purpose? For example, an employee who was on leave and asked to clear out his desk was determined not to have any expectation of privacy when a supervisor searched the desk for any remaining work-related items, and found a computer disk with incriminating information.

Thought of the Week

"If executives were sitting in their offices dropping off from heat exhaustion, probably something would be done more quickly."

–Sharon Harlan, professor of health sciences and sociology at Northeastern University discussing workplace heat protection.

Weekly Comic by Jerry King

Weekly Comic by Jerry King

Blog of the Week

Top Five News Headlines

    List of the Week

    from Workplace Fairness

     Top Privacy Searches This Week: 

    • Drug testing in the workplace
    • Medical privacy 
    • Workplace surveillance
    • Criminal records



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