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Shaw, a front-line supervisor at your organization, tells you that he suspects that one of the company’s accountants, Jason, is drinking while on the job. According to Shaw, two of Jason’s coworkers have complained that Jason has been slurring his speech in front of clients and taking long afternoon “naps” in his office. Shaw also reports that another manager told him that she saw Jason fall off his chair yesterday in the cafeteria. You check with the security guard and discover that almost every day for the past two months, Jason has left the building around 10:00 a.m. and returned within 10 minutes.
You suspect from this information that Jason is under the influence of alcohol or illegal drugs while on the job. You also think that during his mid-morning “breaks,” Jason is going out to his car to use drugs or alcohol. To determine whether this is indeed the case, you decide to search Jason’s automobile. However, when you ask Jason to submit to the vehicle search, he refuses, claiming that you are violating his right to privacy. Is Jason correct?
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Answer: |
An employer’s need to supervise and operate its business efficiently must be balanced against the employee’s legitimate expectation of privacy. Search of a vehicle parked on company property is generally not unreasonable, particularly if the employer has given notice of the potential for vehicle searches and the search is based on suspicion of job-related misconduct. In determining whether searching Jason’s car might be considered an invasion of privacy, HR should consider whether Jason was warned that his automobile might be searched. Under the circumstances, previous notice might not be necessary in order for the company to search Jason’s vehicle without violating his privacy rights. However, if the company has provided such notice, it will have a very strong defense should Jason argue his rights were violated.
Implementing workplace searches. Ensuring that your company can answer “yes” to the following questions before any workplace searches are conducted will significantly lessen the chances that a search will be found to unlawfully invade an employee’s privacy:
- Has a written policy been communicated telling employees of the potential for workplace searches?
- Alternatively, does the collective bargaining agreement preserve the employer’s right to conduct workplace searches?
- Do employees understand the consequences of refusing a workplace search?
- Is the employer’s suspicion of work-related misconduct or the need to obtain information reasonable based on observable facts?
- Is the rationale for the search based upon violation of clearly stated work rules or the need to obtain job-critical information?
- Before the search is conducted, has an analysis been made of the employee’s expectation of privacy, based upon who owns the items to be searched, how public is the area to be searched, and whether specific notice of the possibility of search was communicated?
- Is the search as limited in scope as possible, based on the nature of the investigation and the business reason for the search?
- Has the employee’s personal liberty been protected, and can this be proven by a witness?
- Is any information uncovered by a search subject to strict confidentiality requirements and disseminated only on a business need to know?
Source: CCH HR How-to: Workplace Privacy
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