In a perfect world, you’d have no need to search your employees for any reason. In a utopia, everybody trusts one another and puts their best foot forward at work. But unfortunately, that’s not the world in which we live. People tend to hide things they’re embarrassed about, including drug and alcohol addictions. As an employer, it’s in your best interest to ensure that your employees are sober on the job. There’s a time and a place for a workplace search, but how do you gauge that time and place without overstepping your bounds? Workplace searches and employee privacy aren’t mutually exclusive, but you must be careful when walking that line. Maintain your business’s integrity and respect your employees’ right to privacy by staying informed.
What Does the Constitution Say?
The Fourth Amendment of the United States Constitution preserves citizens’ rights “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” without probable cause. If you work in the public (government) sector, your employees have greater protection against random workplace searches. However, at least nine states (Alaska, California, Florida, Hawaii, Illinois, Louisiana, Montana, South Carolina, and Washington) also grant this greater protection to employees in the private sector. Your employees have a reasonable expectation of privacy, and you aren’t permitted to search their personal items, like purses and briefcases, without probable cause.
What Constitutes Probable Cause?
Your employees’ right to privacy begins to erode under a reasonable suspicion of misconduct. If you receive a credible tip from a reliable source that an employee is drinking on the job, that may be enough cause for a search. If you or another employee can smell alcohol on a coworker’s breath, you may have the green light to conduct a search. Cover all your bases by using drug testing supplies to test the levels of illicit substances in their system.
Think about the type of work you’re doing, too. If you operate heavy machinery or are in charge of public safety at work, you have a stronger interest in ensuring your employees’ sobriety. Rules and regulations regarding workplace searches vary from field to field.
What is the personality of the employee in question? Has their behavior changed recently? Learn to recognize telltale signs of impairment like slurred speech, bloodshot eyes, and decreased attention span. A workplace search should be your last resort, not your first. Check up on them regularly; they may have a reason for their changed behavior. But if that behavior persists and you have a reasonable suspicion of their impairment, like smelling alcohol or marijuana on them, a workplace search may give you the answers you need.
What Can You Search?
The scope of your search depends in part on your company’s policy surrounding searches. Generally, employees’ personal belongings (handbags, briefcases, pockets) are off-limits unless you have strong probable cause.
If it’s company property—desks, lockers, file cabinets—courts have upheld these searches in the past. But if the employee was expected to pay for their own lock to secure their locker, a court may find that you violated the employees’ privacy by searching that locker.
Internet activity on work computers is both easy and largely legal to monitor and search. If an employee is using a work computer to discuss illegal activity, you’re not violating their privacy by searching their email or internet history.
What Can’t You Search?
Think about your employees’ dignity when you conduct searches. Even if you suspect that an employee is sneaking off to the restroom to drink or use drugs, don’t install security cameras there. Restrooms and dressing rooms are particularly sensitive places; employees have an inarguable expectation of privacy there.
Preserve and respect your employees’ bodily autonomy. Body searches are invasive, uncomfortable, and embarrassing—don’t pat down your employees. If you feel that a body search is absolutely necessary, step outside and discreetly call the police to do it.
Can You Conduct Random Searches?
If you plan on performing random searches or using drug testing supplies from American Screening to ensure your employees’ sobriety, make your policy abundantly clear from the beginning. Employees’ reasonable expectation of privacy prohibits you from randomly walking up to their desk and asking that they empty their handbag. If you haven’t practiced random searches in the past, common sense dictates that your employees have some expectation of privacy. Generally, courts don’t love it when employers conduct random workplace searches. Exercise caution when writing your workplace policies and plan for every possible outcome—including lawsuits from disgruntled employees who feel that their privacy has been violated.
Err on the side of employee privacy when possible. If an employee hasn’t shown signs of impairment or erratic behavior, let them maintain their privacy. You should conduct any workplace searches discreetly and with respect for the employees’ dignity. Even if you do find booze in the drawer, handle the situation quietly and avoid embarrassing anybody involved.
Can You Get in Trouble?
Think about your workplace search policy from the employees’ point of view. How would you feel if you were randomly searched for unknown reasons? What would you think if you saw a security camera in the break room? Use workplace searches and surveillance as your last resort, not your first.
Before you search any employee, imagine yourself in a courtroom. Would your case for probable cause hold up? If you notice that your employee has bloodshot eyes or is more tired than usual, that’s not a good enough reason for a search. Rule out all other possibilities—illness, personal issues, insomnia—before asking anybody to empty their purse or open their locker.
If an employee feels that your search was unreasonable, think about what facts they’d have to back up their claim. Did you check up on them and ask about their well-being before you searched them? Could they feel like you singled them out? Be careful with your searches, and if you do search an employee, be ready to back up your decision in court. If you can’t justify the search well enough, err on the side of the employee’s right to privacy.
When deciding whether to perform workplace searches to ensure employees’ sobriety and productivity, consider their right to privacy as well. The Fourth Amendment protects the privacy of an employee’s personal belongings in the absence of probable cause. If you strongly suspect that your employee is hiding booze in the drawer, rule out all other possibilities before asking them to open that drawer. Walk that line between workplace searches and employee privacy, and your business will flourish with sober and secure workers.
