Disciplinary and Harassment Investigations

 Prepare a written policy concerning searches and have each employee sign a written acknowledgment stating that the employee has received and read the written search policy.

 Secure a valid search warrant prior to conducting a search at the request of the police.

 Conduct searches in an evenhanded and nondiscriminatory manner.

California has specific statutory guidelines in this area with respect to police officers. Under California’s Public Safety Officers Procedural Bill of Rights Act, the agency may not search an officer’s locker or personal storage space owned or leased by the agency except in the officer’s presence, or with his or her consent, or unless a valid search warrant has been obtained, or where the officer has been notified in advance that a search will be conducted. 95 Almost the identical provision is found under the Firefighters Procedural Bill of Rights Act. 96 Accordingly the same standard applies to firefighters. 3. S EARCHING AN E MPLOYEE ’ S P ERSON OR P ERSONAL P OSSESSIONS Searching employees and their possessions is normally a function of law enforcement. Employer searches are fraught with potential hazards that can ultimately result in sizeable damage awards in favor of employees. Even where an employer has reasonable suspicion or probable cause to believe that an employee may have an item or a substance prohibited by law or policy in his or her possession, or in his or her automobile, the employer should not search an employee or an employee’s personal possessions. Employers have several other options:  Ask the employee to submit voluntarily to being searched or having his or her possessions searched.  Call local law enforcement and allow them to search if they determine that it is appropriate.

 Prevent the employee from continuing to work and send the employee home.

Unless an item or a substance in violation of the established policy is in plain view of management personnel so it can be seized without a search, management personnel should remember they are generally not trained in how to pat search or fully search an individual. Improperly conducted searches can lead to altercations, ill will and lawsuits.

4. E MPLOYEE M ONITORING

a. Eavesdropping Employer eavesdropping on employees can take on many forms, such as, electronic surveillance, hidden observation, videotaping, and computer monitoring. Federal and state statutory schemes regulate these activities and there are constitutional privacy limits. Further, employer intrusions into areas in which employees maintain a reasonable expectation of privacy must conform to constitutional requirements for searches.

Disciplinary and Harassment Investigations ©2020 (s) Liebert Cassidy Whitmore 57