Is Searching Employee Lockers  Legal?

QUESTION: The District has watched a significant percentage of its tools "walk off" over the past several months.  Last week, one of our employees anonymously fingered another employee, alleging that we would find at least one specific tool in that employee's locker.  Can we search his locker?

ANSWER: Probably yes, despite the fact that the Fourth Amendment restricts the right of a public employer to conduct a warrantless search of the workplace.  The answer depends on the balance between the employee's reasonable expectation of privacy, the public employer's business-related need for the search, and the nature of the search (i.e., how intrusive a search is involved).  As with most balancing tests, it is highly recommended that any District consult experienced labor and employment counsel before taking action which may trigger Constitutional claims.

BACKGROUND: In 1987, the U.S. Supreme Court confirmed that a public employer's search of an employee's workplace triggers Fourth Amendment protections relating to unreasonable searches and seizures.  At the same time, however, the Court recognized that the "operational realities" of the workplace make it impractical to require a government employer to seek and obtain a warrant before searching an office, desk, or locker.  The Court concluded that a workplace search is not an "unreasonable" search, when the employee's reasonable expectation of privacy, the public employer's justification for the search, and the nature of the search, are balanced making the search reasonable.

The first component of this balancing test is the employee's own expectation of privacy.  An employee's expectation of privacy can vary widely with the employee's working conditions.  For example, an employee with a private office may expect more privacy than one working at a desk or cubicle in a large room with others.  Or, an employee who works relatively independently will often expect more privacy than one who collaborates closely with co-workers.  Because of this wide variation, a public employer should take steps to limit the scope of its employees' reasonable expectation of privacy.  Such steps may include, but are not limited to:

q Establishing and maintaining a policy by which all employees are informed that there should be no expectation of privacy in desks, lockers, computers and files, or any other workplace location;

q Requiring all employees to provide access tools to management, including keys to desks, cabinets, etc., as well as computer passwords or encryption keys; and

q Posting signs in locker rooms, or on cabinets, reiterating that these items are part of the workplace, not an individual's personal domain.  To the extent that an employee might otherwise expect privacy, the public employer should attempt to minimize such an expectation in order to widen its own available options.

The second component of this balancing test is the public employer's justification for the search.  Courts reviewing public workplace searches will examine the justification for the search as an unjustified search may be an unreasonable one, even with a minimal level of reasonable privacy expectation.  Key questions here are:

q How important is the information sought, and

q What facts lead us to believe that this search will provide the information needed? 

For example, if an employer wishes to search an employee's desk for a particular file, this may be justified by a manager's knowledge that the employee generally keeps files in that desk.  On the other hand, if a search is conducted to verify an anonymous tip that an employee was engaged in misconduct, other factors may need to be present for the search to be justified (e.g. a detailed tip - including specifics - may be more reliable than a vague allegation of wrongdoing).  This may be a complicated analysis.

The final component of this balancing test is the scope of the search.  This too can be an important factor in reviewing its reasonableness.  For example, if the employer is searching for a missing desktop computer, it would be unreasonable to search desk drawers or other locations where the item sought could not reasonably fit.  Likewise, a search for a particular file would not justify a page-by-page review of personal files.

Looking at the scenario presented, we do not have all the information before us to make the decision.  For one, what is the reasonable expectation of privacy?  Has this District made clear to all employees that the lockers are District property, are part of the workplace, and are therefore, not the personal domain of employees?  Presuming that the District has reduced any expectation of privacy which might otherwise had arisen (through policies, notices, and retaining a key or combination to each locker), and presuming that the anonymous tip was specific enough or otherwise credible enough for the District to rely upon it, then the District would probably be justified in searching the locker, albeit only to the extent that the tool might be found (i.e., no searching areas within the locker too small to hold the specific tool identified in the tip). 

The Supreme Court's treatment of workplace searches by public employers is fairly generous toward employers.  For one, they clearly recognize that the realities of the workplace make workplace searches different from home or automobile searches.  More importantly, they make no distinction between searches to retrieve work-related materials (e.g., specific files) and searches to investigate work-related misconduct (such as missing tools).  As long as the reasonable expectation of privacy is diminished, the justification for the search is high, and the scope of the search is appropriately limited, there is no need to obtain a warrant to remain within the Constitutional restrictions.  However, all balancing tests require weighing factors against each other; particularly where there are three or more factors involved.  Because such a significant Constitutional right is involved, any employer contemplating such a search (or asked to justify one) should first contact Fisher & Phillips llp or other experienced labor and employment counsel.

The CSRMA Employment Hotline provides free legal advise to all CSRMA members on various employment issues.  For more information on the hotline please call Lynn Lieber with Fisher & Phillips at (650)592-6160.