• To win disputes over privacy rights, employers need to clearly inform their workers about expectations of privacy in the workplace.
• Reimbursement to an employee for business use of a personal device or cell phone does not establish ownership of that device.

Just how far can employers go to ensure the safety and security of their business and employees? Can they look into an employee’s car, briefcase, or purse? Can they look into employee lockers or desks?

These questions do not always have black-and-white answers of yes or no. It usually depends upon the situation, and often the details thereof. An important factor is the expectation of “privacy.” Employees should be told that any employee property (e.g., purses, backpacks, or even vehicles) on the company premises is subject to search.

A policy that removes the expectation of privacy is essential to inform employees of the company’s rights. Employers are more likely to prevail in disputes over privacy rights if employees have been clearly informed they should have no expectation of privacy in the workplace.

If an employer deems it necessary to conduct a search, or to otherwise invade an employee’s privacy, the company should always choose the least-invasive method of conducting the search. For example, asking an employee with a purse to empty that purse is less invasive than demanding the employee turn over the purse and allow a supervisor to remove its items.

Companies should never conduct a “pat down” or body search of an employee. Unwelcome physical contact may be viewed as harassment or even assault.

Employers should also consider procedures that contribute to the removal of privacy expectations. For example, if employees are provided with lockers for personal items, the company might consider providing the locks and informing employees that the company retains a master key for searching the lockers. Courts have found that when employees are allowed to provide their own locks, the expectation of privacy increases.

Employees who refuse to consent to a search should not be detained. If the employee wants to leave the premises, and the company prevents the employee from leaving, this could be viewed as unlawful detainment (essentially a form of kidnaping). Such employees can be informed that their job is at stake, and they can be terminated for refusing to consent to a search but cannot be prevented from leaving company property.

Employee-owned devices

Courts have addressed company-issued devices, but the right to access information sent over devices owned and issued by the employer does not extend to employee-owned devices. While employers have the right to monitor how their own equipment is used, they do not have any special rights to access information sent over privately owned devices.

Some employers provide reimbursement for business use of employees’ personal devices or cell phones, but paying for business use does not establish ownership of the device (just as providing mileage reimbursement for the business use of a personal vehicle does not establish ownership of the vehicle). Employers may certainly offer a stipend or other compensation when expecting employees to use a personal cell phone for business, but doing so does not result in the same access privileges as company-issued equipment would offer.

Of course, employees could voluntarily disclose the manner in which their devices have been used, or messages sent to another person could be shared by that recipient. For instance, if an employee sends an offensive text message to a coworker, the coworker may share that information with the employer.

The Stored Communications Act applies broadly to “electronic” communications. Employers must obtain authorization to access information stored with a provider (such as text messages sent via cell phone). Generally, such access must be granted voluntarily, without threat of discipline or termination. Again, the recipient of the message could voluntarily share the message, but the sender should not be coerced to grant access.

If an employer suspects (or has evidence) of impropriety that impacts the business, then information sent over personal devices may be discoverable as part of a legal proceeding (e.g., under a subpoena), but the employer would not have a blanket right to access information, nor would the employer have the right to obtain records from a service provider without a court order.