Employees Searches - An Expectation of Privacy

Can a private employer in Pennsylvania search an employee or her purse, briefcase or locker? The answer is, generally, yes. Assuming there is no collective bargaining agreement or other contract that speaks directly or indirectly to such conduct, no employee of a private business in Pennsylvania has any particular legal protection against an employer’s effort to search the employee or his possessions. However, before one asks all of her employees to line up against the wall and assume the position, the prudent employer needs to consider that every Pennsylvania citizen has a right to not have his or her privacy invaded. Thus, any search that is baseless, excessive or selective for the wrong reasons could subject an employer to a potential lawsuit for invasion of privacy, or perhaps even a federal civil rights lawsuit.

As many readers are aware, in the absence of a contract term to the contrary, every employee in Pennsylvania is considered to be an at-will employee. An at-will employee can be discharged for any reason or no reason at all. Thus in most cases the only financial exposure the employer might have for firing an employee is for unemployment benefits. There has been much litigation over the years in Pennsylvania regarding “wrongful discharge.” However, the Pennsylvania Courts have long held that an employer “may discharge an employee with or without cause, unless restrained by some contract.” Rothrock v. Rothrock Motor Sales, Inc. , 810 A.2d 114, 117, (Pa.Super. 2002), citing Henry v. Pittsburgh & Lake Erie Railroad Company, 139 Pa. 289, 297, 21 A. 157 (1891); Shick v. Shirey, 552 Pa. 590, 595, 716 A.2d 1231, 1233 (1998). Pennsylvania Courts give broad latitude to private employers, following the principle that “the right of an employer to run his business according to his own beliefs and judgment may not be restricted unless compelling reasons to the contrary exist.” Hayes v. Unemployment Compensation Board of Review, 36 Pa.Cmwlth. 49, 54, 387 A.2d 186, 188 (1978). As a result, an employee has a very limited right to privacy in the workplace. Searches of employees have consequences in both criminal and civil courts. Every cop show for the last three decades has taught us that a criminal defendant has the right to receive Miranda warnings upon being placed under arrest, and while many of us get upset when we hear how some criminal defendant with a rap sheet thicker than a double set of encyclopedias beats a charge based on some technicality, those results flow from the interaction of law enforcement and alleged criminals. In other words, when an agent of the government does something that violates a citizen’s constitutional right to remain silent, to be secure in their home from illegal search and seizure, or to consult an attorney, the law provides remedies for that overreaching by the agent of the government. The remedy in a criminal case is typically suppression of the improperly attained evidence, be it a statement or physical evidence obtained in a search. However, the same invasive conduct by a private citizen or employer will – most often – not result in suppression of evidence. The Bill of Rights in the United States Constitution and the Declaration of Rights in the Pennsylvania Constitution, which cover much of the same legal territory, protect citizens against the government’s power. They do not protect one private citizen from another, do not protect an employee from an employer, do not protect neighbors from one another, and do not protect a community from a corporation. We all possess our constitutional rights, and we can rely on those rights as a shield against the government and its agents, but the same rights do not typically apply in our disputes with one another. The upshot with regard to the search of an employee by a private employer is that if the employee is being questioned by his employer with regard to potentially criminal conduct, such as stealing inventory, money or possessing drugs, the employee’s statements will not be suppressed in a criminal case against the employee on the basis that the employee’s constitutional rights were violated. If a private employer searches its employee’s locker, briefcase, or purse, and finds stolen property or drugs and then turns the contraband over to the police, that evidence will not be suppressed because the search was not performed by a state actor, regardless of whether it was conducted without probable cause or a search warrant. If an employer pats down an employee or makes her turn her pockets inside out and finds contraband, the same rule applies: in a criminal case the evidence will not be suppressed. Of course the fact that such evidence will not be suppressed in a criminal case does not end the discussion as to whether a private employer may conduct searches of its employees. Although any evidence of criminal activity an employer may find when searching an employee would likely be admissible in a criminal proceeding, depending on how the search was conducted there may be civil consequences for the employer. The two most likely areas of exposure for an employer are a violation of the civil rights of the employee or an invasion of the employee’s privacy. With respect to civil rights, so long as the search is based on objective criteria, such as a search of all the employees in a certain area at a certain time or simply all the employees, a court is not likely to find that an employer violated anyone’s civil rights. However, if the search can in any way be perceived as based on a protected class such as race, gender, or religion, it may violate the civil rights of the party thus singled out and could give rise to a federal civil rights action. With regard to invasion of privacy claims, the courts balance the interest of the employer in conducting the search (e.g., a drug-free environment or preventing employee theft) against whether the alleged invasion of privacy is substantial and highly offensive to the reasonable person. In the employment context invasion of privacy claims arise most often from employee drug testing. These cases involve various legal challenges. However, the courts have consistently upheld the right of the employer to a drug-free workplace, and have held that an employer may utilize urine sampling so long as the sample collection technique is unobtrusive and done in a professional manner in conformity with standardized testing procedures. In sum, employers have the right to run their businesses as they see fit, and that may include searching employees and or their possessions. The primary legal exposure for an employer arises if the search is not based on a reasonable policy such as loss prevention or a drug-free work place, and if the search goes so far as to constitute an invasion of privacy or a violation of an employee’s civil rights. Before conducting searches of employees, however, it may be wise to institute a company policy regarding searches, and to consult with your attorney to keep yourself as protected as possible.

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