Privacy Issues in the Workplace

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. 431 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 432 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 Amendment exclusionary rule did not apply. The court’s reasoning turned on the fact that the search was motivated by the employer’s desire to prepare to move the office rather than by the desire to uncover evidence damaging to the employee.

C. M ONITORING OF E LECTRONIC C OMMUNICATIONS The advent of new forms of advanced communications technology has created a myriad of legal questions for public employers. Foremost among these issues is whether employers have the right to access emerging technologies such as voice and electronic mail messages generated or received by their employees. Employer monitoring of and access to voice and electronic mail, pagers, and text messages present significant employment privacy issues. Because it is common for employees to use employer issued communications devices, such as cellular telephones and computers, to send both personal and business-related messages, a host of legal questions arise.

Privacy Issues in the Workplace ©2021 (s) Liebert Cassidy Whitmore 137