Employers that suspect occupational fraud generally have the right to search employee desks and computers, but they should approach such searches with care. Even if you think you know an employee is stealing, you risk invading that person’s privacy, which could lead to a lawsuit.
Can vs. should
Laws vary from state to state, so consult your attorney before conducting a workplace search. Most states, however, allow you to search company-owned computers, desks, lockers and other personal workspace equipment if:
- You have a clearly communicated company policy that states you have a right to inspect company property at any time, and
- You have justifiable reasons for the search.
Similarly, you can monitor emails, texts, online activity and phone calls if you have a well-communicated policy stating that electronic communications are to be used only for business purposes and that you reserve the right to monitor such communications.
But just because you can do something doesn’t mean you should. Perform a risk/benefit analysis every time you’re considering a search, regardless of your policies. And search an employee’s workspace only when you’re reasonably certain you’ll find what you’re looking for and you have procedures in place to deal with what you find.
Don’t risk a lawsuit
The biggest risk is a lawsuit claiming invasion of privacy, discrimination or harassment. While there’s no constitutional right to workplace privacy, workers who can demonstrate they were justified in believing certain areas wouldn’t be searched often have a strong basis for a lawsuit.
In addition, unless you have justifiable reasons to inspect personal work areas, employees in protected classes may claim discrimination or sexual harassment if they’re singled out for a search or the search is too intrusive. Justifiable reasons include investigation of workplace misconduct and retrieval of missing files, whether or not due to suspected misconduct. Even if your reasons are beyond reproach, document them before beginning a search.
If the suspected employee is a union member, it’s wise to have a union representative present during the search. To further guard against claims, never conduct random searches or search an employee’s body.
Proceed with caution
The laws surrounding workplace searches are complex, so seek legal counsel before conducting one. Also document your right to search employees’ workspaces and ensure that workers understand your policy. For questions about preventing and detecting occupational fraud, contact us.