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August 13, 2006

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Public Sector
Two provisions of the Fourth Amendment to the U.S. Constitution limit government action and protect citizens’ privacy rights. This includes citizens when they are government or public-sector employees. Those provisions are extended to state and local governments through the 14th Amendment. This constitutional right to privacy does not apply to employees in the private sector. When does the government as the employer have the right to search an employee, employee’s property, possessions or workspace without violating the employee’s reasonable expectation of privacy under the Fourth Amendment? It depends upon the facts, circumstances and answers provided to the questions in the above paragraph.
In O’Conner v. Ortega, the U.S. Supreme Court ruled that the very nature of a public employee’s position allows some intrusions into privacy that would not otherwise be tolerated by the Fourth Amendment. In that case, state hospital managers placed a physician on administrative leave pending an investigation of alleged improprieties. During the investigation, the managers searched and obtained certain evidence from the physician’s desk and filing cabinets that was used as a basis for his subsequent discharge. The Court upheld the search because it was based on a reasonable suspicion that the search would turn up evidence that the employee was guilty of work-related misconduct. The search of an employee's property, such as an employee’s briefcase, purse or wallet, is given closer scrutiny and will generally require a warrant prior to search. Some courts, however, have upheld such searches as in the case of an employee who was suspected of concealing child pornography in a storage unit in her office, which she had purchased at her own expense and for which only she had the key.
Private Sector
Private employers have more leeway in conducting searches, although there are still privacy considerations under common law as well as some state laws that have created workplace privacy rights. A number of states have passed legislation granting specific privacy rights to employees and placing obligations upon employers, especially with regard to electronic monitoring. So when may a private employer properly conduct a workplace search? A key to answering this question is closely tied to the issue of whether the employee had a reasonable expectation of privacy in the item that was searched and the employer’s legitimate, business reason for conducting the search. For example, take the case of an employee who is provided with a locker at work. The employee is permitted to use his or her own lock and is not required to provide the combination to that lock to his or her employer. There is no policy regarding searches. Does the employer violate the employee’s privacy when it breaks the lock and searches the employee’s locker without his or her consent? One Texas jury answered “Yes” to the tune of a $108,000 award to the employee.
In addition, private employers need to safeguard against common law claims, including invasion of privacy, unreasonable intrusion upon the seclusion of another, unreasonable disclosure of personal facts, false light publicity, seclusion, outrageous conduct, intentional infliction of emotional distress and more. Managers and supervisors should be reminded not to disclose personal employee information to staff and co-workers, even with the best of intentions. Take the case of employees who asked about their co-worker who had been absent for some time. In response to their concern, the supervisor disclosed that the employee had a mastectomy. The employees then took up a collection and sent flowers and a get-well card to the employee’s home. When the employee received the flowers, she was mortified that the supervisor had disclosed such personal information to her co-workers. She subsequently sued and won.

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