Avoid Privacy Invasion Claims In The Workplace
On the job, we tend to view our desks, lockers, computer files, office, tool boxes and work bench as our private space at work. A workplace search can be very upsetting, infringing on an employee's expectation of privacy in the workplace. For this reason, an employers search of an employee's desk, locker, or work area is a leading cause of privacy invasion claims by employees.
Consider what happened to one employee, a retail checker. A customer had complained to store management that the employee had taken $20.00 which the customer had left on the counter. To satisfy the customer's complaint, the employee was directed to strip to her underwear in the store's public rest room as the customer and a female assistant manager watched. As a result of this humiliating incident, the employee sued the store for privacy invasion. The court found that the employer's action was an outrageous infringement of personal privacy.
So, how far can an employer go when conducting workplace searches? And, what privacy rights do employees have on the job?
The answer to these questions actually varies from state to state. In Illinois, a law referred to as The Right to Privacy in the Workplace is more of a smoker's rights law. There is no comprehensive privacy rights statute for employees in this state. But, employees do have certain privacy protections. An employer should not intrude into an employee's private affairs in a manner that would be highly offensive. Nor should the employer publicize private facts or falsely portray information about an employee. These kinds of actions may be grounds for a privacy invasion claim.
But, in response to theft, workplace drug problems, security concerns, or other similar reasons, an employer may justify a practice of conducting workplace searches. In fact, many employer searches may be permissible under law when properly conducted. For example, a doctor at a state hospital was suspended for misconduct and his office was subject to a search by agency investigators. The doctor sued claiming that the search was an unconstitutional search violating privacy rights. His case ultimately went to the U.S. Supreme Court. While acknowledging that an employee has a privacy expectation in has desk or office, the court concluded that search warrant procedures were not necessary for an employers justifiable search of a work area.
Likewise, a private employer's search of an employee's desk to obtain a needed computer diskette while the employee was on vacation was found to be a lawful search. Another employer's search of lockers for contraband drugs was found to be lawful where the lockers were company property and the company policy and past practice for searches had been clearly communicated. But, care is needed to avoid the many legal pitfalls of workplace searches. Another employer's locker search, for example, was found to be a privacy invasion because the employer had permitted employee locks and an expectation of privacy relating to use of lockers. To respect an employee's expectation of privacy, and to reduce the likelihood of a privacy invasion claim, several suggestions are offered:
• Define a policy reserving the right to conduct workplace searches.
• Identify a business purpose for the search.
• Provide notice to employees about the company's search policy.
• Conduct the search in a non-threatening manner.
• Enlist the cooperation of law enforcement authorities if necessary.
When management has a justifiable reason for a search, and employees understand the need for such action, and the employer conducts the search in a manner that respects employee dignity, there is a less likelihood for a privacy invasion claim
William S. Hubbartt is president of Hubbartt & Associates, a St. Charles, IL consulting firm specializing in employee compensation, employee handbooks, personnel policies and supervisory training. (www.Hubbartt.com) Mr. Hubbartt is author of The New Battle Over Workplace Privacy, published by AMACOM Books.
