How can I limit potential liability for invasion of employees' privacy while conducting workplace searches?

If your organization can answer yes to the following questions before any workplace searches are conducted, it will have significantly lessened the chances that a search will be found to invade an employee’s privacy unlawfully.

• Has a written policy been communicated telling employees of the potential for workplace searches?

• Alternatively, does the collective bargaining agreement preserve the employer’s right to conduct workplace searches?

• Do employees understand the consequences of refusing a workplace search?

• Is the employer’s suspicion of work-related misconduct or the need to obtain information reasonable? Is it based on observable facts?

• Is the rationale for the search based upon a violation of clearly stated work rules or the need to obtain job-critical information?

• Before the search is conducted, has an analysis been made of the employee’s expectation of privacy, based upon who owns the items to be searched, how public is the area to be searched, and whether specific notice of the possibility of a search was communicated?

• Is the search as limited in scope as possible, based on the nature of the investigation and the business reason for the search?

• Has the employee’s personal liberty been protected, and can this be proven by a witness?

• Is any information uncovered by a search subject to strict confidentiality requirements and disseminated only on a business need to know?

For more information on workplace searches, check the Privacy section under the Employee Relations bluebar (beginning at ¶62,300 ).