(This blog is the second installment in a multi-part series regarding privacy in the workplace.)
Employers have a general right to protect their property and employees. In addition to surveillance and monitoring, some employers choose to conduct searches of areas and equipment used by employees. This can include searches of offices, lockers, desks, phones, computers, and cars. The employer’s rights to conduct searches, however, are limited by the Fourth Amendment (in the case of public employers) and relevant state statutes and case law (in the case of private employers).
Employers considering searching an employee’s workspace or belongings need to know that such a search may give rise to privacy claims if the employee has a reasonable expectation of privacy in the property or area searched. This is a fact-specific determination turning on whether and to what extent the area searched is open and accessible to others. The employer takes an even greater risk when searching property away from the workplace or items that are clearly personal to the employee, such as a purse or briefcase, are more likely to give rise to employer liability.
Although often discussed in the context of employee monitoring, the installation and use of a Global Positioning System tracker on a car is actually considered a “search.” Employers generally enjoy broad freedom when monitoring company-owned vehicles with GPS devices. Employers’ rights to install and monitor a GPS device on an employee –owned vehicle, however, is much more limited. Some states, such as California, Connecticut, Delaware, and Texas, have laws requiring employee notice or consent before placing a GPS on an employee-owned car. For example, California Penal Code § 637.7 makes it a misdemeanor to install a GPS device to a person’s car without consent. Likewise, any GPS monitoring must also be reasonable in its scope.
An employer can likely diminish an employee’s expectation of privacy in an area or device being searched by putting the employee on notice that a search may occur. Additionally, if an employer can conduct a search, it may also give consent to the police to conduct the search without a warrant.