Searches at Work Based on Consent Forms

Are searches at work legal? It is becoming common practice for employers to issue privacy waivers or consent forms to employees. These forms typically make clear that employees do not maintain an expectation of privacy. This happens in specified places or functions within the business. Common examples are:

• Forms waiving an employee’s expectation of privacy in the business’ files.
• Phone and internet access.
• Certain facilities provided by the employer such as lockers.

Although enforceable in certain circumstances, courts will scrutinize these waivers very carefully. They do this to ensure that the defendant’s constitutional rights did not get violated in any way.

When the police or an employer rely upon such a consent form as the basis for their warrantless search, they have no more authority than given by the consent. Courts will take into account any express or implied limitations or qualifications relevant to the defendant’s consent to search. The state bears the burden to affirmatively establish that consent was voluntary. The courts have held that consent shall not get inferred lightly. See State vs. Roseboro, 1990 WL 277237 (Conn. Super. 1990) (unreported);  See also Brown-Criscuolo vs. Wolfe, 601 F.Supp.2d 441, 243 Ed. Law Rep. 245 for more information.

Third Party Consent

An additional concern affecting Fourth Amendment protection is third party consent. An individual is deemed to have waived their constitutional protections, thus receiving no protection, when consenting to a governmental search. Of concern in employment contexts is the ability of a third party to authorize a search. Courts have expressed contrary views on what gives a “third party” the authority to consent to a search of another’s property. While no one approach gets used exclusively in these cases some general considerations can get explained.

The Supreme Court has abandoned the notion expressed in Stoner vs. California that a person may waive their Fourth Amendment rights only “directly or through an agent,” although the agency test appears to have retained some of its force in the employee consent cases because its relevance is more apparent in such a context. While an agency type of analysis may often help employment cases, this approach does not happen exclusively. At least a handful of courts have used, in appropriate circumstances, other tests. This includes the “assumption of risk” doctrine and “apparent authority” formula. The “assumption of risk” view considers that certain risks get assumed. This happens when there is joint use of or access to certain property. That happens because of a familial or real property relationship.

Apparent Authority

Logically this extends to the employment context. This is because an employer runs some necessary risks that their employees will permit a search. This happens even if such permission is not strictly within their authority as an agent of the employer. The “apparent authority” approach views a search to be constitutional if government officials receive consent from a third party that they “reasonably believe” has authority to do so. This is an objective test that looks only to whether the government’s reliance on such consent was reasonable. It is not concerned with whether the consenting party actually had such authority.

These tests invariably consider the relationship between the consenting party to the nature and scope of the consent given. As a result the relationship between the defendant employer and consenting employee will be a crucial element.

Consent by Employer

In the case where the consenting party is the defendants employer or supervisor, courts may infer more authority because of the supervisory relationship. Two factors have been important in the courts’ analysis to resolve this issue: (i) the extent to which the particular area searched may have been set aside for the personal use of the employee; (ii) the extent to which the search happened because of a unique or special need of the employer to maintain close scrutiny of employees. State vs. Roseboro, 1990 WL 277237 (Conn. Super. 1990) (unreported).

With respect to the nature of the particular area searched at the place of employment, an employer or supervisor may consent to a search of those areas not set aside for exclusive use by a particular employee. An employer’s authority to consent gets limited to areas relating to the business; an employer does not have authority to consent to a police search of an employee’s person.

There exist other circumstances in which, because of the nature of the employment, we can conclude that the employees have assumed the risk of a closer degree of scrutiny than proper in the employer-employee context generally. As a general proposition courts have held that employers should not consent to a search of lockers on the business premises set aside for the use of employees in storing their personal effects, and certainly not employees’ on-site sleeping quarters.

Cases

However, the nature of a person’s employment may expand an employer’s authority to authorize a search. For example, given a police department’s, “substantial interest in assuring not only the appearance but the actuality of police integrity,” a different conclusion could justify the search of the lockers of police officers under United States vs. Speights, 413 F. Supp. 1221 (D.N.J.1976); Shaffer vs. Field, 339 F. Supp. 997 (C.D.Cal.1972), aff’d, 484 F.2d 1196 (9th Cir.1973); People vs. Neal, 109 Ill.2d 216, (1985). The same can happen for unemployed people in places with special security requirements, such as jail guards and persons working in the U.S. Mint.

Consent by Employee

Generally, courts attempt to assess and evaluate the employment responsibilities of the employee as they relate to the nature of the search challenged, which makes sense both in terms of “agency” and “assumption of risk” theories of consent. It is significant, for example, whether the employer has absented themselves for some period of time and left the employee in charge of the place searched.

The fact that the employee’s duties relate to the granting of access to a certain place or to certain objects may make it easier to find that the employee had authority to allow a search of that place or those objects.

This happens, for example, where an employee entrusted with a key to the warehouse and regularly worked therein and thus had the premises under their “immediate and complete control” gives consent to a search.

Similarly, where a particular corporate employee was vested with complete supervision of the corporate books, there would be no “more proper individual” from whom to obtain consent to examine those books. By contrast, they could conclude that a secretary-receptionist could not consent to a police search of their boss’ office during the boss’ absence, for their duties concerning access to that place would appear limited to ushering in persons with appointments.

Court Cases

The courts appear to be influenced by the “status” of the employee. There seems to be a greater willingness to find effective consent when it is given by a person with the title of office manager, foreman, or caretaker than when the consent comes from a clerk, secretary, or babysitter. It also appears, although again there is seldom, explicit recognition of this in the cases, that the private nature of the place searched is an additional concern. An employee’s consent, it would seem, is more likely to be found sufficient for the search of a warehouse than it is for the search of a private office or residential premises. See State vs. Griswold, 67 Conn. 290 (1896).

This doesn’t mean, however, that the “apparent authority” doctrine will not be utilized in this area. Because “the circumstances as they objectively appear to the police at the time of the search are all to be considered” in determining if the police “could have reasonably believed the employee had the authority” he purported to have, mistakes made by police in determining who has proper authority to consent to a search may be deemed irrelevant by a court. United States vs. Grigsby, 367 F. Supp. 900 (E.D. Ky. 1973).

Government or State Agency as Employer

The constitutional provisions discussed above only protect individuals from unreasonable searches and seizures performed by the government. This typically means the police. As an example, the average employee receives no protection from their boss searching through their desk, finding drugs; and subsequently reporting them to the police. However, governmental employees (state or federal) will receive constitutional protection of the reasonable expectation of privacy in an identical situation. This protection extends not only to individuals with an obvious employment relationship to government entities (such as legislative employees; judicial employees; and police officers), but also to employees of state agencies such as the Department of Education (teachers) and the Department of Transportation (bus drivers).

However, Connecticut courts have held that special needs of public employers may allow them to dispense with probable cause and warrant requirements when conducting workplace searches related to investigations of work-related misconduct. A warrantless search by a public employer may be reasonable when measures adopted for the search are reasonably related to objectives of search, and not excessively intrusive in light of its purpose. See Brown-Criscuolo vs. Wolfe,  601 F. Supp. 2d 441, 243 Ed. Law Rep. 245. Even if a government employee has a reasonable expectation of privacy in the workplace, [a]n investigatory search for evidence of suspected work-related employee misfeasance will be constitutionally ‘reasonable’ if it is ‘justified at its inception’ and of appropriate scope.’ Leventhal, 266 F.3d at 75 quoting O’Connor, 480 U.S. at 726.