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Labor and Employment Bulletin
Federal Law: Unreasonable Employer Searches
by Mat Paulose Jr., Esq. and Liam Castro, J.D, 2003
What rights does a public employee, such as a public school teacher, a city attorney, and a transit worker, have against searches conducted by his or her employer? The 4th Amendment of the United States Constitution provides the “right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches.” Thus, a public employee has a right to be free from “unreasonable” searches conducted by his or her employer of the employee’s things.
Whether a search is “unreasonable” depends on a number of variables.
Variable #1
First, the public employee must have a reasonable expectation of privacy in the thing searched. For example, an employee generally does not have a reasonable expectation of privacy in an abandoned thing, such as a discarded wallet or shoulder bag. On the other hand, an employee generally does have a reasonable expectation of privacy in a lockable cabinet. In O’Connor v. Ortega (1987), for example, the entire U.S Supreme Court held that a public employee has a reasonable expectation of privacy in an office desk, at least one in which the employee maintains personal correspondence, personal financial records, and personal gifts and mementos.
Variable #2
Even if an employee has a reasonable expectation of privacy in the thing searched, the employer may still conduct the search if (1) the search is to uncover work-related misconduct, (2) the search is a necessary action to further a work-related purpose, or (3) the employer has established a practice or policy that puts the employee on notice of a diminished expectation of privacy in the thing searched. An example of the first aspect is Leventhal v. Knapek (2001). There, the plaintiff - a N.Y.S. Department of Transportation employee - sued his employer for searching his work computer without his permission. The employer defended on the ground that it had reasonably believed the employee was using the computer for an improper purpose. The 2nd Circuit Court of Appeals sided with the employer, stating that “there were reasonable grounds to believe that the search would uncover evidence of misconduct” and, therefore, was reasonable at its inception.
An example of the third aspect is United States v. Simons (2000). There, the plaintiff - a CIA employee - sued his employer for monitoring his internet use. The employer argued that it was allowed to monitor internet use because of a known policy allowing it to monitor “all websites visited and all email” transmitted from work. The 4th Circuit Court of Appeals agreed with the employer, stating that the policy “placed employees on notice that they could not reasonably expect that their Internet activity would be private.”
Variable #3
Finally, even if there is a reasonable expectation of privacy in the thing searched, and the expectation is substantially limited in some way, the nature and scope of the search must still be reasonable. This last variable is a checks-and-balances rule that limits the public employer from going too far when all the other variables are satisfied. If you are a public employee and feel that your employer has unreasonably searched a private item of yours, you should contact a lawyer immediately. |
