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Thursday, October 27, 2011

Random search and employee privacy

Random search and employee privacy
US v Gonzales, CA9, 01-30059

May a government employee be required to submit to a random search by his or her employer and under what circumstances? These were the major issues in the Gonzales case. 

In the view the U.S. Circuit Court of Appeals, Ninth Circuit, government employees may be subjected to searches by a government employer, but the court must consider the strength of the employee's reasonable expectation of privacy, the justification for the government employer's search, and the scope of the search as it relates to the justification for the search, in order to determine whether the search is reasonable.

Alexander Gonzales was employed at a "post store" on a federal Air Force base. He was the target of a random search of employees as he left the store when a store detective asked him to let her look in his backpack. The store detective had no individualized suspicion that Mr. Gonzalez was stealing anything.

The store detective found four packages of spark plugs worth $3.75 each in the backpack. Although Gonzales told the store detective that he had purchased the spark plugs elsewhere, he ultimately pleaded guilty to larceny, reserving for appeal the district court's denial of his motion to suppress the evidence found in his backpack on the theory that it was the fruit of an unlawful search conducted in violation of the Fourth Amendment.

The Circuit Court said that, in the context of this case, the following applied:

1. The search was random, not based on individualized suspicion, for the purpose of deterring theft and apprehending employees who stole store items and was conducted pursuant to an established policy of the store.

2. Gonzalez signed or initialed a statement that store employees were subject to random searches when he started work and that he knew such random searches were store policy.

3. Although individuals do not lose Fourth Amendment rights merely because they work for the government instead of a private employer, government employees' expectations of privacy at the workplace may be "reduced by virtue of actual office practices and procedures."

4. The government employer did not need probable cause to believe that an employee was stealing, but its search had to conform to the test of reasonableness.

Thus, said the court, Gonzalez's "expectation of privacy" was limited by his knowledge of the store's policy of searching its employees' belongings to deter theft and to apprehend thieves.

There are, said the court, still two test that must be satisfied in this type of situation in order to hold that the search was justified at its inception.

The first test applied by the court: Was there a legitimate reason for the search?
In this instance, the court ruled that "Prevention of theft is a legitimate justification for a search. It's hard to run a store if the employees walk out with the inventory."

The second test: Was the "search as actually conducted was reasonably related in scope to the circumstances which justified the interference."

As to this second test, the court said that unless there is evidence that the search went beyond the scope of its justification, there is no basis to conclude that such a search went beyond what was reasonable.

The Circuit Court concluded that an employer is entitled to search an employee for stolen merchandise, even though the search was on a random basis without reasonable suspicion, but only if the individual had clear notice before he or she ever came to work that he or she would be subject to just such a search, and the search did not go beyond the scope appropriate to looking for stolen merchandise.

In contrast, the Circuit Court observed that "[a]n employee on his first day who had not yet signed or learned of the store policy, let alone a customer who neither knew of nor consented to any policy of random searches, might be in a much stronger position to have a reasonable expectation of privacy deserving protection from such searches...." 

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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