Can an employer lock a terminated employee's desk drawers, files, and office?

When the employee's office, desk, and file cabinets are all the property of the company, the company certainly has the legal right to secure this property at any time. When there exists a risk that the employee, having been informed of his or her termination, will remove company property (e.g., confidential information in the nature of trade secrets or customer information), the employer is well-advised to secure its property from the employee; however, several cautionary notes are in order:

• The employer must be careful that such actions, which may be viewed by the terminated employee's coworkers, do not constructively defame the terminated employee.

• The employee has the right to retrieve personal property that may be in the office, file cabinets, or desk drawers.

• To the extent that the termination can be carried out in a civil manner without unnecessarily destroying whatever goodwill may remain between the employer and employee, it should be. Subjecting the employee to the annoyance and humiliation of locking his or her office, desk drawers, and file cabinets does not further that end.

For all of these reasons, the best human resources practice is for the director of security, the terminated employee's immediate supervisor, or the human resources director to accompany the employee following the termination meeting to his or her office, where they can both examine the contents of the desk and file cabinets, sorting out company property from personal property. In this way, the employee can leave the premises with all personal possessions and a modicum of personal dignity as well.

Public employees. With respect to public employees, the restrictions in the Bill of Rights (and perhaps the relevant state constitution) against unlawful searches and seizures may apply in these circumstances. Under present Supreme Court doctrine, an individual may not be subjected to unreasonable search and seizure; therefore, when an employee has a reasonable expectation of privacy, it is a violation of that employee's constitutional rights to engage in a search and seizure even on the employer's premises. What is reasonable varies from employer to employer and facility to facility. For example, depending upon the personnel practices of a particular public employer, a terminated employee may reasonably expect privacy with respect to his or her locked desk drawers or personal automobile but not with respect to file cabinets in or around the office.

Source:Employment Law Answer Book, Mark R. Filipp, James Ottavio Castagnera, Aspen Publishers.