Can You Search Employees’ Lockers, Desks, and Purses

In yesterday’s Advisor, Attorney Jonathan Segal, one of SHRM’s top speakers, offered his tips on privacy in the workplace. Today, his tips on searches, plus an introduction to Sales Compensation: How to Create, Manage, and Grow a Competitive Strategy That Works webinar.

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 or 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 Equal Employment Opportunity Commission (EEOC) 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 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, and
• 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 before, and now you suddenly start to search the e-mail, say, of an employee who just took a protected action.

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Dealing with searches and privacy, one of what, a dozen challenges on your desk?

Your sales force is competitive by nature. And they should be. After all, that’s what you pay them for!

But as the sales employees are trying to chase down every client dollar out there, how do you make sure that you’re providing those dollar-conscious employees with the proper incentives so they will continue giving you the best value possible?

Join us for an in-depth sales compensation webinar on August 1. In just 90 minutes, you’ll learn how to develop a competitive sales structure for your organization.

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