Employer Conducted Searches

July 22, 2008

Question: 

 

I have been working as a government employee in Sacramento, California for around seven years.  My question is whether my supervisors can search my computer, my personal belongings and my workspace without a search warrant?  Can they look into the websites I have been visiting or check the contents of the cabinets in my work station? 

 

Answer: 

 

It depends on whether or not the computer, your personal belongings or your cabinets are part of the workplace.  If they are part of the workplace, are related to your work and are under your employer’s control, then your supervisor can search these areas without a search warrant and you do not have any claim of privacy over them.  To know whether the items you mentioned are considered part of the workplace, you have to examine employer customs and practices, company regulations or the accessibility of these by other people where you work.   Did you sign any consent form allowing your employer to conduct random searches of the computer, the cabinets or any personal belongings in your workstation?  Do other employees such as your supervisor have keys to your cabinets and can they access the contents?  If yes, it is possible that these are considered part of the workplace and you do not have any expectation of privacy for these items.   If not, then you have a reasonable expectation of privacy and your employers and other law-enforcement officers must obtain a warrant before conducting any searches of that area. 

 

Thus, your supervisors might or might not, depending on the circumstances, have a right to conduct searches of employee workspace if you do not have any reasonable expectation of privacy. This must be determined case-by-case, depending on employer customs and practices, company regulations allowing and warning about random searches or entries, and the general openness or insularity of the workplace.

 

The United States Supreme Court in the case of O’Connor v. Ortega (480 U.S. 709) held that employers most frequently need to enter the offices and desks of their employees for either for legitimate work-related reasons or to conduct investigation into suspected employee misfeasance. The court stated that, the imposition of a warrant requirement would conflict with “the common-sense realization that government offices could not function if every employment decision became a constitutional matter.”

 

Thus,  government employers may, without warrant, conduct non-investigatory work-related searches and investigatory searches for work-related employee misconduct.  The Court also stated that that public employer searches of government employee workspace for non-investigatory work-related purposes or for investigations of work-related misconduct should be judged by the reasonableness standard.  The reasonableness requirement means that the search must be justified at its inception and must be reasonable in scope.  A search of an employee’s office by a supervisor will be ‘justified at its  inception’ when there are reasonable grounds for suspecting that the search will turn up evidence that the employee is guilty of work-related misconduct, or that the search is necessary for a noninvestigatory work-related purpose such as to retrieve a needed file.  As to the execution of the search, the plurality stated that the measures adopted must reasonably relate to the objectives of the search and not be excessive in light of the nature of the misconduct.