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Public employers routinely furnish
employees with offices, desks,
file cabinets, lockers, computers,
and other items with which to perform
their jobs. Even though the employer
pays for these items, the employees who
use them take on a sense of ownership
—and privacy—in their workspaces.
Indeed, given the amount of time people
spend at the workplace these days,
the office often becomes a home away
from home, complete with pictures of
the family, souvenirs from trips, and a
large collection of coffee cups.
But what happens when a public
employer has reason to suspect that an
employee has engaged in inappropriate
activity, and the employer wants to
search the employee’s workplace? May
a supervisor root around in an employee’s
desk in hopes of finding proof of
misconduct? May an employer search
an employee’s computer, even if it is
password protected? Many do so,
according to a recent survey conducted
by the Society for Human Resource
Management.1 Sixty-two percent of
responding employers said that they
sometimes monitored Internet use,
58 percent e-mail, and 42 percent
telephone calls. This article explores the
current state of the law on employee
privacy and workplace searches. The
discussion pertains strictly to public
employers and employees. Generally
the law does not protect private-sector
employees from workplace searches by
their employers.
High Court Recognition of
Public Employee Privacy Interest
For the Fourth Amendment to protect
any individual from government
searches, the government must cross a
judicially constructed threshold. In Katz
v. United States, the U.S. Supreme Court
held that Fourth Amendment protec-
tions are triggered only if a person has a
reasonable expectation of privacy.2
For this standard to be met, the
person must have “an actual or subjec-
tive expectation of privacy” in the area
or the things to be searched and this
expectation must “be one that society is
prepared to recognize as ‘reasonable.’”3
If a person does not have an expectation
of privacy that