Boundaries and expectations of privacy in the workplace
Question: Does an employer have the right to search an employee’s locked desk without the employee’s permission? Is the desk considered the employer’s property with personal items in it?
Answer: Employer searches of employees and their personal effects are controversial. On the one hand, employees have a clear interest in being free from unnecessary intrusions into their privacy. On the other hand, employers have competing interests: ensuring the safety of workers and others, protecting their property from damage, enforcing company polices and achieving productivity.
In all searches, the most important concept is the employee’s reasonable expectation of privacy. This is the governing principle in determining what searches are acceptable and which go too far. In R. v. Cole, the Supreme Court of Canada confirmed that an employee’s personal information, even if stored on computers owned by the employer, may attract a reasonable expectation of privacy. A similar argument could be made for a locked desk or other storage areas.
The fact that the desk is owned by the employer does not automatically remove employee privacy rights. Case law has established the employer does not have a general right to inspect an employee’s desk or locker without a specific clause in the employment or collective agreement permitting it. Otherwise, lockers can only be searched when there are “reasonable grounds for suspicion.”
As such, and where employees have a reasonable expectation that a particular place or item is private, the company will have difficulty justifying a search. Posting signs, for example, that desks are company property and can be searched at any time, would go some way to reducing such an expectation. This allows employees to make informed decisions as to what to leave in their desks. However, the task of reducing the reasonable expectation of privacy at the workplace may take some time.
Furthermore, though consent from the employee to search the locker or desk has not been considered absolutely necessary, the arbitrators in University Hospital vs. London & Distric Services Workers’ Union, Local 220, stated that the employer should observe these rules:
• Conduct the search only if there is adequate cause to justify it.
• Conduct the search in a non-discriminatory manner.
• Exhaust other alternatives prior to conducting the search.
