Security measures at entrance to the workplace
Question: Can an employer search employees and their bags before allowing them to enter the workplace? Does having a clear policy on this communicated to employees make it more acceptable?
Answer: In recent years, there has been an increased focus on privacy rights, both within the workplace and elsewhere. Recently, the Alberta privacy commissioner considered a case in which Marks Work Warehouse required that job applicants be subject to a credit check. In that particular case, the job prospect had a poor credit record and was not hired. He brought a claim as a result.
In the analysis, the commissioner considered whether the requirement of a credit check was necessary and reasonably connected to the requirements of the job. The commissioner found it was not and ruled the credit check was a breach of the individual’s privacy rights.
With respect to the issue of searching employees and their belongings before allowing them to enter the workplace, there is no absolute right to conduct such searches. In the absence of either an explicit or implied right to do so, or a particularly compelling reason justifying such searches, an employer will not be permitted to impose such a requirement.
In some cases, a collective agreement will specifically provide an employer with the right to search employees and their belongings when they arrive for work. In other circumstances, employment agreements or enforceable policies will provide that right. In yet other contexts, past practices will establish an implied right to carry out such searches. However, if none of the above exist, the only way an employer can justify searching employees and their belongings would be to show it was a necessary violation of the employee’s privacy rights. To do so, the employer would have to demonstrate compelling reasons, such as an ongoing and serious problem with theft, loss, damage or injury.
To address the specific question regarding policies, having a clear policy in place will be helpful if it is implemented properly and considered to be a term of the employment agreement. In previous articles and presentations, I have discussed how employers should go about implementing policies in order to make it more likely that they will be enforceable.
