Public Employee Privacy Rights: When Is An Employee’s Workplace His Castle?

SCBA Labor & Employment Law Section Newsletter, Vol. 19, Issue 1, October 2012

What happens when a public employer wants to find a file in the employee’s office when the employee is not there?  What about when an employer wants to conduct a workplace investigation because they suspect the employee may be violating a company rule or even committing fraud?  What about searching the employee’s work computer?

In accordance with federal and state constitutional principles, a public employee is protected against unreasonable searches of his/her workplace or belongings by his/her public employer.  The reasonableness of a search is determined by whether the individual has a legitimate expectation of privacy in the area or item searched.  Generally, a search for a work-related purpose or for the investigation of work-related misconduct is reasonable if: (1) it is justified at its inception, (2) the measures adopted are reasonably related to the objectives of the search, and (3) the search is not excessively intrusive in light of the circumstances.

A public employer’s search of its employees is subject to the restraints of the Fourth Amendment to the United States Constitution, as well as State constitutional considerations.  As we are all well aware, the Fourth Amendment provides the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”  The United States Supreme Court has noted that the Fourth Amendment “guarantees the privacy, dignity, and security of persons against certain arbitrary and invasive acts by officers of the Government, without regard to whether the government actor is investigating crime or performing another function.”  Public employers are considered a government actor and thus public employees are afforded protection against unreasonable searches and seizures.  When a public employer conducts a workplace investigation or search of an employee or his/her office, it must be determined whether that employee has a reasonable expectation of privacy in the place/item to be searched.  If there is no reasonable expectation of privacy, then the search is lawful.  Two such examples of an employee not having a reasonable expectation of privacy would be in an item left in plain view, such as an item on top of a desk, or when the company has a technology policy in place that clearly explains to employees that technology remains the property of the employer and that employees have no expectation of privacy or confidentiality in the use of that technology (see for example, the decision of the Supreme Court in City of Ontario v. Quon (2010) 130 S. Ct. 2619).

In determining the scope of a permissible search in a public workplace, it is necessary to distinguish those items and places within a workplace that are generally within the employer’s control, such as offices, desks, and file cabinets, from those items that are not within the employer’s control and thus may have more expectation of privacy.  These workplace items can be distinguished from personal items brought into the workplace that do not become part of the workplace, such as a purse or briefcase, and retain an expectation of privacy. Generally, the employee maintains a reasonable expectation of privacy in the contents of a personal item brought into the workplace.  An employee would not expect an employer to go rifling through her purse at work.

Although employees “do not lose Fourth Amendment rights merely because they work for the government instead of a private employer[, t]he operational realities of the workplace, however, may make some employees’ expectation of privacy unreasonable when an intrusion is by a supervisor rather than a law enforcement official.”  (O’Connor v. Ortega (1987) 480 U.S. 709, 717.)  According to the Supreme Court in O’Connor v. Ortega, a search for non-investigatory, work-related purpose or for the investigation of work-related misconduct is reasonable if: (1) it is justified at its inception, (2) the measures adopted are reasonably related to the objectives of the search, and (3) the search is not excessively intrusive in light of the circumstances.

The application of these rules to a public school classroom setting requires particular examination. The workplace of a classroom teacher is very different from a district office employee or any other government employee who may work in an office-type setting.  In contrast, a teacher’s workplace constitutes his/her classroom where the principal and other school officials are free to come and go, and where students spend their day.  While a district office employee may have his/her own office which may provide a more “private” setting, classroom teachers are not afforded that type of environment.  Generally, a classroom would be subject to less protection from a search than a typical office.  However, a personal item such as a purse or briefcase located within the classroom would still retain its general expectation of privacy – an employee does not reasonably expect an employer to examine the contents of one’s purse regardless of whether it is in a classroom or private office.

The search of public safety officers also merits special attention.  The Public Safety Officers Procedural Bill of Rights (“POBAR”) provides specific requirements, in addition to constitutional protections against unreasonable searches and seizures, for searching officers’ personal storage space such as lockers.  Government Code section 3309 states that lockers may not be searched without a warrant except in the presence of the officer, or with his/her consent, where he/she has been notified.

The bottom line?  Make sure employers have clear and explicit policies in place that outline when employees do not have an expectation of privacy, such as in work-issued computers and cell phones.  Get consent.  Ask yourself whether the employee would have a reasonable expectation of privacy in the item/place that is going to be searched.  And the safest bet – obtain a search warrant.