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You’ve been asked to investigate a complaint of misconduct brought against an employee who allegedly took office supplies from the company’s stock over a three-year period. As part of the investigation, you intend to search the employee’s locker, e-mail and purse. The employee acknowledges your right to search her locker but asserts that you can’t search her purse or e-mail files because they are private property. Can you search the employee’s property? |
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Answer: |
Searching property is generally permitted if:
- There is a good business reason for the search;
- The search is conducted in a reasonable manner; and
- The search is not discriminatory (a search of only one class of employees).
What should you do to get this point across to employees? Establish business necessity as your organization’s basis for workplace searches. Conducting an internal investigation into circumstances such as misconduct, harassment, discrimination or unfair employment practices is a legitimate business need.
Communicate your search policy in writing to employees. Advise employees as they are hired that workplace searches are conducted. Include the policy in other employee communications, such as handbooks, newsletters and orientation.
Identify the scope of the policy. Describe all areas that are subject to being searched, such as work areas, personal files, lockers, packages, purses and backpacks, electronic files and automobiles on company property. Be sure that the policy clearly states that voice mail, e-mail, and the contents of the employee’s desk and work area are subject to search.
Make sure that instructions and handbooks that train employees on workplace resources, such as voice mail and e-mail, advise employees that these are provided for legitimate business use only and are subject to being reviewed and searched periodically. Describe what discipline will occur if the policy is violated.
To further establish your right to search e-mail, voice mail and similar communications, take the following steps:
- Clearly state in your policy that you reserve the right to search these communications;
- Inform employees that they implicitly agree to this employer right when they send, store or receive messages on the employer’s system;
- Search electronic communications only when there is a legitimate business reason such as suspicion of theft;
- Search electronic communications only when they are in storage because the federal Electronic Communications Privacy Act provides significantly more protection for messages in transit than those in storage;
- Stop when it is determined an employee is using the company’s electronic communications system in violation of company policy because a company’s legitimate business purpose ends at that point.
Source: CCHKnowledgePoint HR How-to Internal Investigations. |
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