Court Cases Show Employers' Search and Seizure Rights in the Workplace

Maybe you keep your purse or your wallet in your desk, perhaps a cell phone or Blackberry, prescription medication, cigarettes, a secret stash of chocolate. Some of us keep a personal calendar with doctor appointments for ourselves, our spouses, and our children. The question is whether all of your personal information is secure at work. Can your employer search your desk, your cubicle, or your office? Can your employer view personal emails you send from your work computer or track your internet usage?

Generally, employees are entitled to a "reasonable expectation of privacy" and to be free from wrongful intrusion into their private activities. This standard requires considering all the circumstances surrounding the employer's conduct. In particular, courts will examine how and why the employer took its actions.

An employee's reasonable expectation of privacy can be substantially reduced by employer policies. By clearly and unequivocally notifying employees that they are subject to monitoring surveillance, inspections, searches, and testing necessary to enforce company rules and policies concerning conduct and performance, an employer can diminish an employee's privacy rights. However, some lines cannot be crossed, such as an employee's confidential medical information.

Employers may be free to search even a public employees office and computer. In U.S. v. Angevine (10^th Cir. 2002), 281 F.3d 1130, police seized a computer from a professor's office at Oklahoma State University. The computer was used to download over 3,000 pornographic images of young boys, which were then deleted by the professor but remained latent in the computer's memory.

The University's computer policy explained appropriate computer use, warned employees about the consequences of misuse, and described how officials administered and monitored computer use. The policy expressly prohibited employees from accessing "obscene materials." The court held, "Although we have found a reasonable expectation of privacy in information stored within offices, we have never held the Fourth Amendment protects employees who slip obscene computer data past network administrators in violation of a public employer's reasonable office policy."

In Leventhal v. Knapek (2^nd Cir. 2001), 266 F.3d 64, the court determined that investigatory searches by the state department of transportation did not violate an employee's Fourth Amendment rights. The court held that an investigatory search for evidence of suspected work-related employee misfeasance is constitutionally reasonable if it is "justified at its inception" and of appropriate scope. Since there were specific allegations against the employee that he was guilty of work-related misconduct, the employer had reasonable grounds to believe that the searches would uncover evidence of the misconduct.

Regardless of where you work, you should be aware that your employer may have the right to search your desk, belongings, and computer. Be cautious about the types of conduct you engage in at work and about the items you choose to store at your employer's premises.

Sources:

U.S. v. Angevine (10^th Cir. 2002), 281 F.3d 1130, http://privacyblog.littler.com/Angevine_281%20F%203d%201130.pdf

Leventhal v. Knapek (2^nd Cir. 2001), 266 F.3d 64, http://www.internetlibrary.com/pdf/Leventhal.pdf