At some point, the shadow of employee misconduct crosses over every employer. Such misconduct can take on many forms, from employee theft to drug and alcohol use on-the-job.
At some point, the shadow of employee misconduct crosses over every employer. Such misconduct can take on many forms, from employee theft to drug and alcohol use on-the-job. Given the wide range of improper activities that employees may engage in, which may in turn give rise to significant liability for employers, prudent employers are interested in protecting themselves. As such, the question that consistently arises is: what methods can an employer use to monitor its employees? This discussion will provide practical tips to private sector employers to help them avoid some of the tricky issues that invariably arise whenever issues of employee privacy versus issues of employer protection come to a head.
Competing Interests of Employer and Employee
To determine whether an employer may engage in certain types of workplace searches, the first question that an employer must answer depends on whether the employer is, or is not, a government entity. The Fourth Amendment to the United States Constitution prohibits the government from unreasonable searches and seizures. Private employers, however, are not prohibited from engaging in such actions. Consequently, although many persons mistakenly believe that employees have a “right” to privacy, it is clear that such right is actually very limited.
Although many states have granted their citizens a constitutional right of privacy, and at least one state has extended this privacy right into the private workplace, Georgia’s Constitution does not expressly provide its citizens with any specific protection against invasion of privacy by other private citizens. As such, Georgia employers can take some comfort in the old employment law adage that: “the Constitution stops at the private employer’s front door.”
Despite the lack of specific protection provided by the Georgia Constitution, however, private sector employers must still exercise caution in engaging in any sort of employee search. In particular, employers should be aware of the four common law torts of invasion of privacy that have emerged over the years, for which they may be held liable: 1) intrusion on the plaintiff’s seclusion or solitude or into his or her private affairs; 2) public disclosure of embarrassing private facts about the plaintiff; 3) publicity, the effect of which is to place the plaintiff in a false light in public; and 4) appropriation of the plaintiff’s name or likeness without his or her permission, to the pecuniary advantage of the defendant. In addition, employers should also be aware that employees may also bring suit against their employers for other torts, including the torts of intentional infliction of emotional distress and false imprisonment. The bottom line: if an employer is sued for a search that it has conducted, the employer wants to be in the best position possible to protect itself from tort liability by being able to demonstrate to a court that the search it conducted was reasonable and served a legitimate business purpose.
If a Court is asked to evaluate whether a particular search is legal, that court will be balancing two concerns in making a decision. First, the Court will look at the employer’s justification for performing the search. For example, if an employer receives word that an employee has brought a weapon to the office, then the concerns that an employer would have relating to the risk that it might face would likely support an employer’s decision to search an employee’s locker or desk in order to determine whether the employee did, in fact, have a weapon. Secondly, the Court will look at whether the employee had a reasonable expectation of privacy. For example, if an employer has installed closed-circuit television cameras or is monitoring employees in a restroom or locker room, it could be argued that because an employee reasonably expected that his or her activities there would be private, that an employer should have warned the employee about the possibility of his or her being monitored prior to conducting any surveillance regarding same.
Practical Tips for the Conduct of Lawful Searches
Every year, the number of employees who bring suit against their employers for alleged harm caused to them as a result of employer searches and surveillance grows larger. Here are a list of tips that you should keep in mind before engaging in any activity that might be viewed as infringing upon your employee’s privacy:
1. Establish a Policy in your Employee Handbook.
As with so many other areas in the employment law arena, many of the problems that employers encounter in dealings with their employees arise from the fact that such employers did not have a policy in place to address the issue before the situation arose. In order to avoid this unfortunate circumstance, it is advisable for employers to have a policy that reserves the right of the employer to conduct reasonable monitoring, surveillance or searches under a variety of circumstances. In so doing, the employer protects itself from an employee’s potential argument that he or she had an expectation of privacy concerning such conduct. A simple example of a policy statement that would help protect an employer would be as follows:
“The company reserves the right to conduct a search, on demand, of an employee’s locker, desk, packages, automobile, or other personal belongings, if the company believes, in its sole discretion, that such a search is warranted to investigate a suspected violation of its policies, including its drug and alcohol policy, and to seize and test any item the company believes may evidence a violation of its policies.”
An employer should also specifically require its employees to sign off on having received and reviewed a copy of the employer’s search policy in order to prevent the employee from challenging whether he or she had received the policy at a future date. Although a statement of policy will not be enough to protect an employer in the event that a Court finds that an employer’s monitoring or search of an employee is not reasonable, it provides, at very least, a starting point in building an employer’s defense.
2. Do Not Conduct Random Searches.
It is never advisable for an employer to randomly search its employees’ offices or belongings. The reason for this is simple: in the absence of any reason to expect that an employee is engaging in misconduct, courts tend to be skeptical of employers who engage in random searches. Even if an employer has a policy which places its employees on notice that such searches may occur, they are simply not a good idea.
3. Do Not Conduct Physical Searches of Employees.
Although employers occasionally become zealous in their interest in investigating claims, it is also not a good idea to conduct physical searches of their employees. Employees have a strong and obvious privacy interest in their own bodies and may become hostile, angry or feel threatened by any request for a physical search. If you suspect that the employee may be carrying a weapon, or if you have concerns involving workplace safety, it is a good idea to contact the police in order to report such concerns rather than personally conducting a physical search of your employee.
4. Do Not Prevent Employees from Leaving Against their Will.
In connection with a search of an employee’s office or locker, some employers detain employees out of their office or locker room in order to prevent such employees from removing anything that might be incriminating from the scene. Some employers have also been known to force an employee to submit to a search prior to allowing such an employee to leave the scene. It is not a good idea to force employees to stay in a room that is being searched if the employee does not wish to do so. The risk that an employer who forces an employee to stay in the room, or to submit to a search, is a lawsuit by that employee alleging that he or she has been “falsely imprisoned” by their employer.
5. Use Common Sense in Conducting Any Search
In conducting any search, employers should take care to always be able to articulate the rationale underlying their decision to conduct such a search. To this end, it is advisable that the employer representative conducting the search write down the specific information giving rise to their decision to initiate the search. In addition, it is also advisable for a witness to be present during any search of an employee’s work space in the event that the employee challenges the manner in which it was conducted at a later date.
As this year’s “Bring Your Gun to Work” bill proposed by the Georgia legislature illustrates, the issue of conducting employee searches and searches of employee property continues to be a very hot topic. Employers should make every effort to instruct their representatives about how to conduct proper searches to help limit the risk of being sued for such searches.