The Difficult Business of Searching Employees’ ‘Private’ Spaces

In yesterday’s Advisor, we got tips on privacy in the workplace from popular SHRM speaker, attorney Jonathan Segal. Today, his tips on searches, plus an introduction to the all-HR-in-one website, HR.BLR.com.

Segal made his remarks at SHRM’s Annual Conference and Exhibition, held recently in Chicago. He is a partner in the Philadelphia office of law firm Duane Morris LLP.

Physical searches, that is, searches of an employee’s person, his/her belongings, or work area, are tricky. Segal recommends the following:

• As a matter of practice, implement the right to search generally only if there is reasonable suspicion.
• Caution: An EEO profile does not give rise to reasonable suspicion; however, it may give rise to a viable discrimination claim.
• Searches in the absence of reasonable suspicion may be justified where there is a real security risk.
• Be careful not to make promises or otherwise communicate that you won’t search unless there is reasonable suspicion (unless that is your actual policy). For example, there are situations in which you know there’s a problem, but you have no reasonable suspicion about any particular individual. Say there’s credible information that there is a bomb in the building. You can’t ignore it because you don’t have reasonable cause to suspect a particular individual.
• Have HR/management witness any search.
• If the employee is a bargaining unit employee, a union steward should witness the search, wherever possible.
• Don’t touch the person.

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• If searching for weapons, involve security and/or the police.
• If the employee fails to cooperate, consider a charge of insubordination corresponding to the language in your policy.
• Should you detain the person involved? The general rule is no, says Segal, but if there is a safety issue, you have to engage in risk balancing.
• If drugs are discovered, consider the following:
• Witness
• Gloves
• Chain of Custody
• Lab
• Police.

Involving the police has its own risks, Segal says. Once you call them in, you lose control of the situation. If you do find evidence, say some white powder, get it tested, get your report, and then throw the evidence away. You just don’t want to be storing cocaine in the workplace.

Finally, says Segal, watch out for the retaliatory search, that is, when you’ve never searched any employee’s e-mail and then you suddenly start to search the e-mail, say, of an employee who just took a protected action.

Dealing with searches and privacy, one of what, a dozen challenges on your desk? In HR, if it’s not one thing, it’s another. Like FMLA intermittent leave, overtime hassles, ADA accommodation, and then on top of that, whatever the agencies and courts throw in your way.

You need a go-to resource, and our editors recommend the “everything-HR-in-one website,” HR.BLR.com. As an example of what you will find, here are some policy recommendations concerning e-mail, excerpted from a sample policy on the website:

Privacy. The director of information services can override any individual password and thus has access to all e-mail messages in order to ensure compliance with company policy. This means that employees do not have an expectation of privacy in their company e-mail or any other information stored or accessed on company computers.

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E-mail review. All e-mail is subject to review by management. Your use of the e-mail system grants consent to the review of any of the messages to or from you in the system in printed form or in any other medium.

Solicitation. In line with our general policy, e-mail must not be used to solicit for outside business ventures, personal parties, social meetings, charities, membership in any organization, political causes, religious causes, or other matters not connected to the company’s business.

We should point out that this is just one of hundreds of sample policies on the site. (You’ll also find analysis of laws and issues, job descriptions, and complete training materials for hundreds of HR topics.)

You can examine the entire HR.BLR.com program free of any cost or commitment. It’s quite remarkable—30 years of accumulated HR knowledge, tools, and skills gathered in one place and accessible at the click of a mouse.

What’s more, we’ll supply a free downloadable copy of our special report, Critical HR Recordkeeping—From Hiring to Termination, just for looking at HR.BLR.com. If you’d like to try it at absolutely no cost or obligation to continue (and get the special report, no matter what you decide), go here.