Workplace searches: it’s in the bag

I suspect one of my employees may have stolen another employee’s property. Can I search her purse, or is she protected by “unreasonable searches and seizures” under the Constitution?

Constitutional rights are often misunderstood. The U.S. Constitution prohibits unreasonable searches by the government, not a private employer. Private employers acting as such are not subject to the Constitutional prohibition against unreasonable searches.

Having said that, don’t go jumping into your employee’s purse unannounced just yet. The California Constitution provides employees with privacy rights, which can cover workplace searches.

While there is no clear-cut law describing the limits of California’s constitutional privacy protection, judges typically evaluate whether a workplace search is legal by considering the employer’s justification for the search and whether the employee has a reasonable expectation of privacy.

Workplace safety can justify a search, such as if an employee tells you that another employee has a weapon in her purse. Conduct a search only if you absolutely need to and only if based on solid information. Random, unsubstantiated searches can get employers into trouble. Employers should limit searches to legitimate business purposes and intrude as little as possible into the employee’s privacy.

The best thing you can do is develop a written policy warning your employees in advance that work areas are subject to search at any time. A clear search policy will help diminish an employee’s expectation of privacy.

Your search policy should be easily understood, fairly and evenly administered, and communicated to every employee. If possible, list particular areas that are subject to search, such as desks, lockers and bags, and state how much prior notification you will provide before a search.

Avoid searching an employee’s body unless there is an absolutely compelling likelihood that you will find evidence of employee misconduct. For example, if you actually saw an employee steal company property and stick it in their pocket. Otherwise, it’s a bad idea to search an employee’s body—call the police if you need to.

I recommend including your search policy in your employee handbook and having your employees individually consent in writing to searches. When conducting a search, it’s always a good idea to strive to limit any embarrassment to the employee. Avoid confrontations in front of other employees.

If you terminate an employee because you searched them in violation of their privacy rights, you could be held liable for wrongful termination in violation of public policy.

Mary Luros is a business law attorney with Hudson & Luros, LLP, in Napa, and can be reached at mary@hudsonluros.com. The information provided here is not legal advice, nor does it form an attorney-client relationship with the author. The author makes no representations as to the reliability or accuracy of the above information.