Top Ten Tips Disclaimer
Like it or not, most employers sooner or later have to think about whether they need to conduct searches of their employees and their work areas. The problems include cash and inventory shortages, disappearances of company or employee property, and contraband items such as drugs, alcohol, and dangerous weapons. It is not an easy area for employers, who have to worry about the legality of searches, the usefulness of such measures, and their effect on employee morale, and for that reason a company should not be in a hurry to start searching its workers. There are a number of legal issues to consider first!
To begin with, governmental employers have to worry about federal and state constitutional prohibitions against "unreasonable searches and seizures". Private employers face a variety of private causes of action such as invasion of privacy, defamation, and infliction of emotional distress. Even if a suit is unsuccessful, the "winning" employer may be out a large amount of time and money spent defending the suit.
Common sense would tell any employer to watch out for avoidable troubles such as actions that would entitle an employee to raise claims of assault or battery, false imprisonment, intentional infliction of emotional distress, and so on. For that reason, it is extremely unwise to physically force an employee to submit to a search or to hold the employee until police can be consulted. An employee should not be touched without consent. By the same token, no one should call the employee to be searched defamatory names such as "thief", "drug user", or worse.
The employer should draw up a simple policy informing employees that the employer reserves the right to conduct searches to monitor compliance with rules concerning security of company and individual property, drugs and alcohol, and possession of other contraband items. The policy should enable searches of the employees, their work areas, lockers, vehicles if driven or parked on company property, and other personal items. It should reassure employees that in requesting a search, the employer is not accusing anyone of theft or some other crime.
As noted above, an employer should never force an employee to submit to a search. However, the employer may make submission to reasonable searches a condition of continued employment. The policy should make clear that refusal, after fair warning, to submit to a search or test can lead to immediate discharge. Some employers specify that such refusal will be considered a voluntary quit. Administrative agencies and courts have analyzed such cases both ways. The policy should be given in writing to and acknowledged by all employees. For new hires, employers have the right to make signing such a form a condition of employment. If the search policy is contained within a larger policy handbook, it is best to have a separate form consenting specifically to that condition. Finally, when a search is conducted, it should be done in a manner protecting the employee's privacy and as mindful as possible of the employee's personal feelings.
An interesting case in this area was K-Mart Corp. v. Trotti, 677 S.W.2d 632 (Tex. App. - Houston [1st Dist.] 1984, writ refused n.r.e.). The employer was sued after searching a locker used by an employee. The employee used her own lock on the locker, and the employer did not require her to give it the combination. The court ruled that the worker had a reasonable expectation of privacy which the employer had violated and that $100,000 in exemplary (punitive) damages was not excessive under the circumstances. Most observers believe the employer would not have lost the case had it had a clear policy informing its workers that the lockers were subject to search at any time and that if private locks were used, a key or the combination must be given to the supervisor.
If an employer ends up with an unemployment claim involving a search, it should be prepared to submit a copy of its policy on searches, a copy of the claimant's acknowledgment of the policy, copies of any warnings given, and testimony from any eyewitnesses to the final incident causing the discharge. The employer should also be prepared to address any questions of why the search was requested, the reasonableness of the search, and whether the policy was applied consistently.
To sum up, a good policy on searches should incorporate the following points:
the policy is for the purpose of monitoring compliance with work and safety rules
all employees are subject to the policy
if a search is requested, it is not an accusation of theft or other wrongdoing, but merely part of an investigation
a search may include the employees, their work areas, lockers, vehicles if driven or parked on company property or used on company business, and any other personal items; again, remember that an employee should never be touched without his or her consent!
all of the above areas are subject to search at any time; if the company allows an employee to have a locker or other storage area, the company will either furnish the lock and keep a copy of the key or combination, or else allow the employee to furnish a personal lock, but the employee must give the company a copy of the key or combination
refusal to submit to a search may lead to immediate termination, or a lesser penalty, at the employer's option; however, prior to any termination, a clear and documentable or witnessed final warning should be given to help the employer in case an unemployment claim or lawsuit is filed.
If an employer incorporates those points into any search policy it may develop and conducts searches in a careful and considerate manner, such a policy would most likely put the employer in a good position to defend itself against any claims of unreasonable searches, invasion of privacy, or infliction of emotional distress. Employers may wish to consult a private practice labor law attorney for help in drafting and implementing such a policy.
For a sample policy regarding searches at work, click here.
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