Privacy Issues in the Workplace

2. P UBLIC S AFETY O FFICERS AND F IREFIGHTERS Under the Public Safety Officers Procedural Bill of Rights Act, the agency may not search an officer’s locker or personal storage space except in the officer’s presence, or with his or her consent, or unless a valid search warrant has been obtained, or where he or she has been notified in advance that a search will be conducted. 426 The Firefighters Procedural Bill of Rights Act prohibits the search of a firefighter’s locker or “other space for storage” that may be assigned to him or her unless: (1) the firefighter is present; (2) the firefighter consents to the search; (3) a valid search warrant has been obtained; or (4) the firefighter has been notified that a search will be conducted. This prohibition only applies to lockers or other storage space owned or leased by the employing department or licensing or certifying agency. 427 An agency should not open or search a firefighter’s personal property without the assistance of appropriate law enforcement personnel in conformity with the requirements of the Fourth Amendment of the United States Constitution. However, an office or locker search of space under the employer’s control may still violate the constitutional restriction on unreasonable search or seizures if the employee has a “reasonable expectation of privacy.” As with other employees, if this is the kind of area that is subject to searches on a normal basis, then the employee’s reasonable expectation of privacy may be diminished. The department may not coerce an administrative search of locations other than those under departmental control. If the department wishes to avoid the possible exclusion of evidence when searching locations such as an officer’s vehicle or home, as well as a possible lawsuit for violation of civil rights, it must obtain the officer or firefighter’s consent or a valid search warrant. If an officer or firefighter is forced to comply with an order to permit a search to avoid a possible charge of insubordination, the officer or firefighter may have grounds for the exclusion of the evidence obtained as well as a civil lawsuit. For example, a federal court has held that a police officer is not required to open his home whenever reasonable suspicion exists that evidence may be found. Under such circumstances, an administrative warrant is improper and constitutionally infirm. 428  Retain a key or combination for each locker, desk or vehicle on agency property and notify the employees of this fact. Make sure any lock on agency property is owned and supplied by the employer and forbid employees to use their own locks.  Provide formal notice to employees that lockers, desks and vehicles may be searched without employee consent or knowledge and that refusal to permit such searches may result in discipline.  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. 3. C HECKLIST : G UIDELINES FOR C ONDUCTING S EARCHES

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