Q. Lately we have been concerned about workplace theft—both of our property and that of our employees. We would like to search our employees’ lockers, each of which is secured with a worker’s own lock. Is this legal? Do we need the employees’ consent?
A. Although employee theft is a legitimate concern, employers can be held liable for invasion of privacy if they intrude into the private affairs or seclusion of an employee in a manner that would be highly offensive to a reasonable person.
A key issue in this area is whether the employee has a reasonable expectation of privacy. For example, a Texas court found that an employee who purchased her own lock, and was not required to provide the key or combination to her employer, had a legitimate expectation of privacy in both the locker and its contents.
To limit employee privacy expectations, employers should have a policy that clearly establishes the scope of the searches that the employer may conduct, as well as the consequences of an employee’s failure to cooperate. Provide a written copy of the search policy in advance. It should state that a search is not an allegation of criminal misconduct.
The company should conduct all searches as privately as practicable. If the search is of the employee’s personal property, the employee should be present. Keep casual observers away. The reasons for and results of the search should be kept confidential.
If possible, obtain the worker’s consent before conducting a search. The company may require the employee’s consent as a condition of continued employment; however, force should never be used—even if an employee fails to cooperate.
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