Legal Clinic

To Catch a Thief

Private employers generally have the right to search lockers, desks and other company property used by employees as long as they have a reason to suspect the worker of theft, but there are steps HR leaders can take to protect the organization even better. Government employers, however, should be mindful of the Constitution's protection offered against unreasonable searches and seizures.

Monday, May 16, 2011
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Question: Is it unlawful for an employer to open and search the locker of a security-guard contractor who the employer suspects may be responsible for thefts in the employer's office? The locker is on the employer's premises and the employer provided it to the contractor for his use. We are in New York.

There is no New York State law preventing an employer from searching an individual's workplace locker, but there are factors an employer should consider before undertaking such a search.

Public/Government Employers

Public, or government, employers should be mindful of federal and state constitutional prohibitions against "unreasonable searches and seizures" and are expected to balance "the invasion of the employees' legitimate expectations of privacy against the government's need for supervision, control, and the efficient operation of the workplace." See O'Connor v. Ortega, 480 U.S. 709, 715, 719-720 (1987). As a general rule, a public employer should apply a standard of reasonableness, considering all of the circumstances. Id. at 725-726.

Reasonableness is evaluated by whether the action, (which, per the reader's question, is a search) "was justified at its inception" and whether it was "reasonably related in scope to the circumstances which justified the interference in the first place." Id. (citations omitted).

See also, New Jersey v. T.L.O., 469 U.S. 325, 341-342 (1985) (finding that a search will be permissible when "the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of ... the nature of the [misconduct]"); Engquist v. Or. Dep't of Agric., 553 U.S. 591 (2008) (finding that government employees do not lose their constitutional rights at work, but such rights must be balanced against the realities of the employment context); United States v. Collins, 349 F.2d 863 (2d Cir. 1965) (finding that the search of a defendant's work jacket for a missing mail package, when the jacket hung in his supervisor's outer office, a public area, did not violate his Fourth Amendment rights).

Given the circumstances articulated in the question, an employer's investigation into theft will most likely be considered a legitimate purpose, assuming the employer's suspicion of the contractor is based on something more than a mere "hunch" and is not in any way tainted by discriminatory stereotyping.

Private Employers

Private employers, on the other hand, are generally not subject to the same constitutional constrictions. However, they should still be mindful that "unreasonable searches" may result in an employee or contractor bringing private causes of action, such as invasion-of-privacy claims.

New York does not have a general statutory or common-law cause of action for invasion of privacy. Both the New York Court of Appeals and the Second Circuit have held that there is no common-law right to privacy in New York. See Freihofer v. Hearst Corp., 65 N.Y. 2d 135, 140, 490 N.Y.S. 2d 735, 737 (1985); Hurwitz v. United States, 884 F.2d 684, 687 (2d Cir. 1989).

However, New York does recognize the prima facie tort, which would require the aggrieved contractor to prove "the infliction of intentional harm, resulting in damage, without excuse or justification, by an act or a series of acts which would otherwise be lawful." Freihofer, 65 N.Y. 2d at 142?43, 490 N.Y.S. 2d at 737 (citing ATI, Inc. v, Ruder & Finn, 42 N.Y. 2d 454, 458, 398 N.Y.S. 2d 864, 866 (1977); Advance Music Corp. v. Am. Tobacco Co., 296 N.Y. 79 (1946)).

To succeed on such a claim, the plaintiff would have to prove "specific and measurable loss." Id. Being able to articulate a good-faith reason to believe that the employee was involved in the theft will reduce the likelihood for the employee to carry his burden of proving intentional infliction of harm and lack of excuse.

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It is unlikely in this case that the employer's search would be unlawful even in states that recognize a common-law right to privacy.

Generally, those states follow the standards set forth in the Restatement of Torts for an actionable invasion-of-privacy claim. While elements can vary from state to state, generally this cause of action has two elements: (1) an intentional intrusion into a private place, conversation, activity, or matter (2) in a manner highly offensive to a reasonable person. Hilderman v. Enea TekSci, Inc., 551 F. Supp. 2d 1183, 1203 (S.D. Cal. 2008) (stating the elements under Arizona and California law); Campbell v. Woodard Photographic, Inc., 433 F. Supp. 2d 857, 861 (N.D. Ohio 2006) (stating that the second element as "outrage or cause mental suffering, shame, or humiliation to a person of ordinary sensibilities") (citation omitted); McLaren v. Microsoft Corp., No. 05-97-00824-CV, 1999 WL 339015, *3 (Tex. App. May 28, 1999) (stating Texas standard).

In addition to whether the employer acted on a reasonable suspicion, courts will consider whether the employer had a key to the locker and/or whether the employer had a "Right to Access" policy stated in its human resources or employee guidebook.

In K-Mart Corp. v. Trotti, 677 S.W.2d 632, 637-38 (Tex. App. 1984), the court ruled that a worker had a reasonable expectation of privacy which the employer violated when it searched the employee's locker, primarily because the employer did not have a copy of the key to the locker.

The "Right to Access" policy should apply equally to contractors as it does to employees, and it should provide that the employer has the right and discretion to access, at any time, desks, closets, files, offices, workstations, lockers and any other property of the company.

Regardless, because there is no recognized common law right to privacy in New York, the employer's search of the locker would not be unlawful.

Keisha-Ann G. Gray is senior counsel in the Labor & Employment Law Department of Proskauer in New York and co-chair of the Department's Employment Litigation and Arbitration Practice Group.

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