Privacy Issues in the Community College Workplace
B. S EARCHES OF E MPLOYEES AND E MPLOYEE P ROPERTY The searching of persons and property 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 to have 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.
Prepare to institute disciplinary action against the employee.
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 consult with legal counsel and/or human resources professionals before conducting a search since managers/supervisors 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. Employers may, however, search areas where the public agency maintains full control or joint control with the employee. For instance, it would be permitted to search an agency vehicle that an employee operates during working hours but does not take home. Or, it would be permissible to search an employee’s locker where both the employer and employee have a key. In either situation (or in similar situations) public agencies are best protected if they include in their policies that employment constitutes permission to conduct such searches. Arguably, once employees are clearly notified that searches of such areas are possible, they will lose any legitimate expectation of privacy in the area or the possession. Even if an employee has an expectation of privacy in certain areas, the United States Supreme Court held in O’Connor v. Ortega that a search may be permissible if the employer had reasonable grounds for: 1) suspecting that the employee had engaged in workplace misconduct; and 2) believing that a search of these office areas would turn up evidence supporting that suspicion. 402 In contrast, when an employee’s personal possessions, such as a purse or lunch box, are located in an area such as a locker where the employer might otherwise have a right to search, the employer should not open the employee’s personal possession without permission or assistance from law enforcement personnel.
Finkelstein v. State Personnel Board 403 An employer found information in a personal briefcase, after it had warned employees to remove all confidential papers from their offices in preparation for an office move. The court allowed the contents of the briefcase to be introduced as evidence in an administrative disciplinary hearing, holding that the Fourth
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