STEPS TO TAKE BEFORE SEARCHING AN EMPLOYEE’S WORK AREA OR PROPERTY

When expensive company property goes missing or an employee reports that a new wallet was stolen from his desk while he briefly left his office, you will want to immediately search for the missing item. However, you can quickly encounter legal problems if your employees have not already consented to such workplace searches.
The best way to remedy this situation is to update your current employee handbook, adding a policy addressing this topic. If you do not have a handbook, it would be wise to draft one now, carefully including a provision about searches, including a statement that they will only be conducted when valid reasons make them necessary. (You should always conduct searches with at least one other supervisor with you – to help document that it was handled properly).
What follows is a brief review of search standards that may apply to different types of employees, the most common items employers often look for during searches – and the importance of never inappropriately touching any employee during a workplace search. You must also avoid detaining an employee in a manner that could be considered “false imprisonment.”
Search standards can vary, based on the employment status of the workers involved
The Texas Work Commission addresses this topic on its website, in an article titled: “Searches at Work – Legal Issues to Consider.”
           1. Legal standards that apply to state and federal government employees. Federal and state constitutional provisions prohibit subjecting these workers to any “unreasonable searches and seizures.” This prohibition is set forth in the Fourth Amendment to the U. S. Constitution, made applicable to the states through the due process clause of the Fourteenth Amendment (under the incorporation doctrine). The nature of this type of violation is discussed further below.
            2.  Standards that apply to private company employees. While the strict standards, statutes and governing case law may sound less strict for these workers, private businesses must still conduct their searches cautiously – or become vulnerable to lawsuits based on one or more of the following claims.

• Assault and battery. This would likely involve the searched employee claiming that you wrongfully – without obtaining prior consent (or in keeping with known company policy – touched him/her wrongfully.
• False imprisonment. You detained the worker in a manner that exceeded your rights under the circumstances.
• Wrongful termination. You cannot fire someone when you do not find the contraband or stolen items you thought you might find. Be sure to have a clear policy in your employment handbook that outlines how many warnings an employee must be given prior to being let go. (However, if the worker is an “at-will” employee, you can terminate that person at any time, without having to state a reason or explain your actions).
• Negligent or intentional infliction of emotional distress. Always handle search matters in a private setting – where you are not putting the employee’s reputation on the line or subjecting the person to embarrassment in front of others.  When conducting an actual search, always ask all workers in the area to take a work break and wait 15 minutes before returning to their cubicles, offices or nearby work areas.

It is also wise when conducting a search (or disciplining an employee), to have another management official present who can vouch for how everything was handled – prior to writing up a report documenting the events. You may also want to ask the employee to voluntarily sign and date the statement you write up, indicating what took place. Be sure to note that either you acted under the authority of a known workplace search policy – or that you obtained the employee’s advance permission before conducting the search.
What items are employers often looking for during a locker or work area search?

1. Stolen property. This may belong to the company or to another employee.
2. Drugs or alcohol
3. Any type of dangerous weapon, including certain knives. Be sure to address all the types of weapons that employees can never bring to work in your employee handbook.

What might constitute an unreasonable search and seizure?

1. Searching an employee’s work area or locker without attempting to provide advance notice. However, if this is a right you reserved for the company in the employee handbook, advance notice may not be required. Be sure to note that even if an employee secures his/her locker with a personal lock, you must still be given access to the contents.
2. Conducting the search in front of the employee’s co-workers. This should always be avoided, even if the other employees must be asked to take a work break or go gather in a nearby conference room until you invite them to return.
3. Physically touching an employee or yelling while interacting with the person. Be polite and treat the person as you would want to be treated. After all, it may be up to a court to later determine if your company owes the employee any monetary damages.

Can you ever, in any permissible way – physically search a worker’s body/clothing?
This should always be avoided at all costs. However, you can – with another management employee present in a private office – ask the employee to voluntarily empty his or her pockets. You can also ask the worker to empty out the contents of a briefcase, purse or wallet. If the person refuses to do as you ask – and you have no stated company policy in place about searches, you cannot insist that the employee do as you ask.
If you fear some serious theft has occurred, you should inform the employee of your concerns and contact the police. Should the police visit your office, you can allow them to conduct the physical search – if they determine that one is immediately necessary.
While this overview is not intended to be comprehensive, it should provide you with a basic understanding of why all workplace searches must be handled with great care.
Please feel free to contact one of our Murray Lobb attorneys to discuss this specific employment law problem – or any other — at your convenience. We are also available to help you with your general business and estate planning needs. And we can readily draft the contracts and documents that you regularly need.
AVOIDING COMMON MISTAKES, CAUTION, EMPLOYEE PROPERTY/AREA SEARCH, EMPLOYER/EMPLOYEE RELATIONS, GUIDELINES

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