The Right to Search

1. Can you as the investigator, or Mr. Yourprop’s supervisor, search Yourprop’s personal vehicle currently parked in the Company parking lot for digital evidence? In this scenario – assuming Makestuff Company has a policy in place for searching employee’s personal property while on Company premises – a search of Mr. Yourprop’s personal vehicle by the Company is justified (Workplace Searches, 2015). During his exit interview, Mr. Yourprop was acting very conniving and saying things that give the Company probable cause to believe he may be stealing their intellectual property. Because the intellectual property would be in digital form as Project X is programming code, it’s reasonable for the Company to be searching for digital evidence either in Mr. Yourprop’s vehicle or on his person. Also, seeing as that the personal vehicle is currently on Company property, according to the policy it’s fair game. It is important remember is that this is not a random search, but one that is based upon a reasonable suspicion that the employee is stealing intellectual property.

Of course, if Mr. Yourprop refuses to allow his vehicle to be searched the Company cannot just push him out of the way and search it themselves. This the point where the Company would need to call law enforcement and allow them to handle the situation. The same goes for if the car is locked (Employees: Privacy in the Workplace, 2015). 2. If evidence of the theft of intellectual property can be found, Makestuff Company may seek to pursue criminal prosecution. Can Mr. Yourprop’s supervisor direct local police investigators to search his personal vehicle which is parked on the Company parking lot? When it comes to search and seizure of personal property, law enforcement is required to abide by the U.S. Constitution, in particular the Fourth Amendment.

The Fourth Amendment guarantees “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause” (U.S. Const. amend. IV). The personal vehicle of Mr. Yourprop would be protected by the Fourth Amendment, but Makestuff Company has evidence of theft of intellectual property – a crime – which gives law enforcement enough probable cause to obtain a search warrant. 3. Can you as the investigator, or Mr. Yourprop’s supervisor, search Yourprop’s assigned locker in the Company’s on-site gym for digital evidence?

The legality of searching Mr. Yourprop’s locker on-site at the Makestuff Company depends on a few details. Is the locker included in the Company’s policy on searches, and is Mr. Yourprop using a Company-provided lock or his own personal lock. Let’s assume the locker is in fact noted in the Company policy. If Mr. Yourprop is using a Company-provided lock, the investigator or supervisor should be able open up the locker and search without any legal repercussions (Privacy at Work: What Are Your Rights?, 2015). On the other hand, if he is using a personal lock and has not given Makestuff Company a copy of the key for purposes of a consensual search, it may be in the best interest of the investigator and supervisor not to search it on their own (Searches at Work – Legal Issues to Consider, n.d.). In the case of K-Mart Corp. v. Trotti (1984), the employer was sued for searching a locker that was secured with an employee’s personal lock.

The employee in this case was not required by the employer to provide a copy of the key/combination, so the court ruled that the employer had violated their expectation to privacy (K-Mart Corp. v. Trotti, 1984). 4. Can you as the investigator, or Mr. Yourprop’s supervisor, use a master key to search Yourprop’s locked desk after he has left the premises for digital evidence? Again, a good Company policy would cover the search of employees work areas and desks (locked or unlocked). Mr. Yourprop’s desk and work area is under no reasonable expectation of privacy.

He is using a Company desk that is secured with locks provided by the Company to which they have a master key for. Makestuff Company also has a “reasonable suspicion of wrongdoing” in this situation making it even more justifiable for them to go through his desk (Scripps Howard News Service, 2013). The investigator may unlock and search Mr. Yourprop’s desk. 5. There is a page in the Company’s “Employee Handbook” that states that anything brought onto the Company’s property, including the employees themselves, are subject to random search for items belonging to the Company. There is a space for the employee to acknowledge receipt of this notice. Mr. Yourprop has a copy of the handbook but never signed the page. Does that matter?

The fact that Mr. Yourprop has not signed the employee handbook does not mean he is immune to the Company’s policies. Though it is considered a best practice, law does not require employers to attain a form of acknowledgement of Company policies signed by the employee. The Society for Human Resource Management states, “Employees sometimes misunderstand that refusing to sign the acknowledgement form means that they are not still held accountable for following and complying with the policies and procedures in the handbook. However, this is not the case as the acknowledgement form merely addresses the receipt of the information and not compliance with the policies” (Employee Handbooks, 2014). 6. Makestuff Company uses a security checkpoint at the entrance to the building. A sign adjacent to the checkpoint states that the purpose of the checkpoint is for security staff to check for weapons or other materials that may be detrimental to the working environment or employee safety. Screening is casual and usually consists of verification of an employee’s Company ID card. Can security staff at this checkpoint be directed to open Mr. Yourprop’s briefcase and seize any potential digital evidence?

Even though the sign states that this checkpoint is mainly to look for weapons and to maintain a safe work environment, they would also be able to search Mr. Yourprop’s briefcase for potential digital evidence. Remembering back to his exit interview, the Company still has probable cause to believe he is stealing intellectual property from them. Additionally, it is already known that there are policies in place that give contractual rights to search employees and their belongings on Company property. Even though the security staff typically just check for an employee’s Company ID card, if there “is a reasonable belief someone has concealed Company property, with a view to removing it from Company premises” (Employers’ right of search, 2015), they have a right to search that specific employee. While Makestuff Company is legally permitted and has reason to conduct this search, if they don’t gain the consent of Mr. Yourprop at that time they will need to call the police. The Company does not have a legal right to use any physical force to conduct the search (Employers’ right of search, 2015).

References

Employee Handbooks. (2014, May 8). Retrieved from Society for Human Resource Management: http://www.shrm.org/templatestools/hrqa/pages/signeehandbook.aspx Employees: Privacy in the Workplace. (2015). Retrieved from Lawyers.com: http://labor-employment-law.lawyers.com/employees-privacy-in-the-workplace.html#six Employers’ right of search. (2015). Retrieved from Right Hand HR: http://www.rhhr.com/employers-right-of-search/ K-Mart Corp. v. Trotti, 677 S.W.2d 632 (Court of Appeals of Texas, Houston First District 1984). Privacy at Work: What Are Your Rights? (2015). Retrieved from FindLaw: http://employment.findlaw.com/workplace-privacy/privacy-at-work-what-are-your-rights.html Scripps Howard News Service. (2013, August 18). Can your Company search your personal belongings at work? Daily Republic, p. B8. Retrieved from Daily Republic: http://www.dailyrepublic.com/uncategorized/can-your-company-search-your-personal-belongings-at-work/ Searches at Work – Legal Issues to Consider. (n.d.). Retrieved from Texas Workforce Commission: http://www.twc.state.tx.us/news/efte/searches_at_work_legal_issues_to_consider.html U.S. Const. amend. IV.

Workplace Searches. (2015). Retrieved from Workplace Fairness: https://www.workplacefairness.org/workplace-searches#5