WorkZone: Employers should take care when searching workers
August 4, 2013 4:00 AM
If a company smartphone or some petty cash goes missing, or there's a suspicion that someone's illegally using drugs, what right does an employer have to search an employee's personal belongings?
By Steve Twedt Pittsburgh Post-Gazette
The general workplace rule is simple: If you're working on a company computer, your Internet activity can -- and probably is -- being monitored.
But what about your physical person? If a company smartphone or some petty cash goes missing, or there's a suspicion that someone's illegally using drugs, what right does an employer have to search an employee's personal belongings?
Those situations can pose a challenge for employers, says Edwin Zalewski of J.J. Keller and Associates, the Neenah, Wis.-based safety and compliance firm. Even if employers have a general policy that stipulates their right to search personal belongings, taking such a step can come with political and legal entanglements.
He cited a 1984 case in Texas in which a Kmart employee won a $100,000 judgment after a supervisor searched her work locker. The case turned on the fact that the employee had used her own lock and her employer had not required her to provide the combination. The court ruling said that gave the employee a reasonable expectation of privacy.
But fashioning a comprehensive policy that accounts for every possible scenario can be tricky. For example, telling employees that their backpacks and briefcases may be searched seems straightforward enough, but what if the suspicion is that they're dealing drugs out of the trunk of their car? Can an employer demand to search the vehicle? Does it make a difference whether the car is on company property or in a public parking lot down the street?
Mr. Zalewski said it's perfectly reasonable for an employer to notify new employees in writing that their belongings are subject to search, just as they would be going through an airport security line, and that refusal can be grounds for immediate termination.
But he also notes that there are good ways and destructive ways to do it.
He recounted a case in which an employee was suspected of taking $20 from a cash register. A manager took her into a bathroom and strip-searched the employee -- and didn't find the money. "If you get to that level, you should have called the police," he said.
Rather than risk such an episode, Mr. Zalewski suggested the employer should have taken the employee to a private area and asked her to empty her pockets and purse, rather than lay hands on her. "It's a little less invasive and it serves the same purpose," he said.
Employers also should have a reasonable suspicion of wrongdoing before demanding to look through personal belongings, he said, because "random searches are difficult to justify."
It also helps to give employees a yearly reminder of the search policy.
Employers may have excellent reasons for stipulating the right as a condition of employment to search an employee's belongings. Doing so can help safeguard the company's trade secrets -- or determine who's stealing from the countertop tip jar.
But, Mr. Zalewski cautioned, "You could lose a valuable employee if you don't handle it well."