Case Law: Searching Employees' Cars, What Employers Can Do?

The National Labor Relations Board (NLRB) has held that employers have the right to search employees' personal property, including their vehicles. This decision has been deemed employer-friendly, demonstrating the difficulty unions face when trying to win work rule cases. While an employer generally has the authority to inspect the exterior of an employee's car on company property, the interior is considered private property, and employers must consider whether the employee had a reasonable expectation of privacy. This expectation of privacy is higher in areas such as restrooms or changing areas, and the more intrusive the search, the stronger the reason an employer must have. Additionally, time spent submitting to an employer's search may be compensable under various state wage laws.

Employees' reasonable expectations of privacy

The Fourth Amendment to the United States Constitution guarantees that people will be safe from unreasonable searches and seizures. In the Supreme Court case, Katz v United States, the Court developed the idea of a "reasonable expectation of privacy".

In the context of employees' reasonable expectations of privacy, it is important to note that employees generally have a reasonable expectation of privacy in their personal belongings, including their vehicles. This means that employers should not conduct searches of employees' personal property, including their cars, without a valid reason. However, there have been cases where employers have been allowed to search employees' cars. For example, the National Labor Relations Board (NLRB) has held that employers have the right to search employees' personal property, including their vehicles, to protect company assets, provide excellent service, ensure a safe workplace, and investigate improper use or access.

Additionally, it is worth noting that employees' expectations of privacy may be reduced in certain circumstances. For instance, if the employer has implemented a work rule or policy that informs employees that their personal property on company premises may be subject to search, then the employees' expectation of privacy would be reduced. Furthermore, time spent submitting to an employer's search of personal property may be compensable under various state wage laws, as held by the California Supreme Court in 2020.

While employees generally have a reasonable expectation of privacy in their vehicles, there may be situations where the employer's need to search the vehicle outweighs the employee's privacy rights. This could include situations where the employer has a reasonable suspicion of illegal or improper activity, or where the search is necessary to ensure the safety and security of the workplace. In any case, employers should consult with their labor and employment counsel before conducting searches of employees' personal property to ensure compliance with applicable laws and to avoid potential legal issues.

In conclusion, employees generally have a reasonable expectation of privacy in their personal belongings, including their vehicles, but this expectation is not absolute and may be subject to certain exceptions and limitations. Employers should carefully consider the reasons for conducting a search and ensure that they are respecting their employees' privacy rights while also fulfilling their own legal obligations.

Employer's right to search

Employers have the right to search their employees' personal property, including their vehicles. However, the law also considers employees' reasonable expectations of privacy. For instance, an employee has a high expectation of privacy in the restroom or changing area, especially if the employer has not warned that these areas are monitored. Similarly, employees have a greater expectation of privacy in purses and bags than in the things they keep on top of their workspace, in plain view.

Employers can typically search company property, even if it is used by an employee. This is because the employer owns the property, and the employee does not have a reasonable expectation of privacy. However, employers should have a legitimate business reason for conducting a search, such as looking for stolen company files or illegal drugs, and the search should be conducted in a reasonable manner that will not unnecessarily embarrass or humiliate the employee.

Employers may also monitor employee activity on company-issued communication devices, computer systems, and networks to protect company assets, provide excellent service, ensure a safe workplace, and investigate improper use or access. For example, in Verizon Wireless, the Board affirmed that employers could monitor employee activity on company-issued devices.

Additionally, time spent submitting to an employer's search of personal property may be compensable under various state wage laws. For instance, in February 2020, the California Supreme Court held that time spent submitting to a security/bag check was compensable under state law.

Monitoring employee activity on company devices

Legal Considerations:

• Federal and State Laws: In the United States, employee monitoring is generally legal, and most federal and state laws permit employers to monitor company-owned devices and their networks. However, specific regulations may vary across states, so it is essential to consult local laws.
• Employee Privacy: Employees have limited expectations of privacy when using company-owned devices. Nevertheless, employers must be cautious not to violate privacy laws, such as HIPAA, by acquiring and disclosing private information, even if it is obtained from an employee's browsing history or data stored on a company computer.
• Consent and Notification: While some states do not require employers to inform employees about monitoring, obtaining consent is advisable. Employers should review the applicable regulations and consider implementing policies that clearly communicate the monitoring practices to their employees.

Methods of Monitoring:

• Software-based Monitoring: This method involves using software to record keystrokes, mouse clicks, website visits, application usage, document access, and other activities. It can operate discreetly in the background, capturing a comprehensive digital interaction log.
• Hardware-based Monitoring: Hardware devices can be physically connected to computers to record all on-screen activity, including images and videos, providing a broader view than software-based methods.
• GPS Tracking: Employers can track the geolocation of company devices, such as laptops or phones, especially when taken off-site. However, this area is legally murky, as it can reveal personal information about employees' off-duty activities.
• Video Recording: Capturing screen activity or video recordings of employees' hardware can be used for training or reviewing employee performance.
• Violations Monitoring: This method tracks and alerts employers to any violations of company data policies, unauthorized data access, or security concerns.

Best Practices:

• Choose Appropriate Tools: Organisations should select monitoring tools that align with their policies, culture, and privacy considerations. It is crucial to maintain workforce trust and not erode the management team's credibility.
• Monitor Within Reason: While monitoring web activity on company-owned computers is generally permitted, employers should focus on legitimate management reasons and avoid excessive surveillance that may intrude on employees' privacy.
• Protect Sensitive Information: Employers have a responsibility to safeguard sensitive employee information obtained through monitoring.

Searches of personal property

In the United States, employers generally have the right to search their own property. However, this right can be given away, as demonstrated in the case of Kmart v. Trotti (Texas, 1984). In this case, an employee sued the company after it searched her company locker, which she had secured with her own lock with the employer's consent. The court agreed with the employee, stating that she had "demonstrated a legitimate expectation to a right of privacy in both the locker itself and those personal effects within it".

In 2021, the National Labor Relations Board (NLRB) upheld an employer's policy to monitor employee use of company devices and search personal property, such as cars, while on company premises. The Board specifically rejected the argument that such a policy could restrict an employee's right to unionize, stating that there was nothing to suggest that searches would occur regularly.

The NLRB has also affirmed that employers may monitor employee activity on company-issued communication devices, computer systems, and networks. This includes monitoring employees' use of company email systems and computers for legitimate management reasons. Employers may prohibit employees from bringing cell phones and other personal items into the work area if there are legitimate concerns about safety risks.

While employers have the right to search employees' personal property, they should use discretion and ensure there is a legitimate business reason for the search. Searches of employees' personal property are more likely to be considered reasonable than searches of their bodies or clothing. Random searches are rarely justified, as the employer has no particular reason to suspect the employee of misconduct. To reduce employees' expectation of privacy, employers may inform them that their workstations will be subject to search.

It is important to note that time spent submitting to an employer's search of personal property may be compensable under various state wage laws. For example, the California Supreme Court held in 2020 that time spent on security/bag checks was compensable under state law.

Legality of intrusive searches

In the UK, there is no law that gives employers the right to search their employees or their belongings. However, some employers include a provision in their employees' contracts allowing them to search staff, to which the employee is deemed to have given consent. If an employee refuses to be searched, they will be held to have withdrawn their consent, and the employer should not proceed with the search.

Employees have a "reasonable expectation of privacy", which prevents employers from searching them or their belongings at any time or place of their choosing. The reasonableness of a search is determined on a case-by-case basis, taking into account factors such as the type of employment, evidence of misconduct, and the scope of the search. Searches of employees' bodies, clothing, purses, and briefcases are considered more intrusive and require a higher degree of justification.

In the United States, the National Labor Relations Board (NLRB) has held that employers have the right to search employees' personal property, including their vehicles and communication devices. However, this decision has been criticised by unions, and employers are advised to consult with their labour and employment counsel before implementing such work rules.

To summarise, while there is no blanket legal right for employers to conduct intrusive searches, they may include provisions in employment contracts that allow for searches with the employee's consent. Employees have a right to privacy and a right to refuse a search, but this may result in disciplinary action or even termination of employment. The legality of a specific search will depend on the circumstances of each case.

Frequently asked questions