April 13, 2015 — California Constitution, Article 1, Section 1

Thanks to those of you who weighed in on last week’s email regarding workplace privacy rights. In this email, we will address some of the additional questions we have received.

Under the 4th Amendment of the United States Constitution, you are entitled to protection from unreasonable search and seizure and given a reasonable expectation of privacy. Under Article 1, Section 1 of the California Constitution, you are given an inalienable right to privacy. So, what is a reasonable expectation of privacy in the workplace?

A public employee is protected against unreasonable searches of their workplace or belongings by their employer. The reasonableness of a search is determined by whether the individual has a legitimate expectation of privacy in the place or item searched. Public employers are considered a government entity and thus public employees are afforded protection against unreasonable searches and seizures. When a public employer conducts a workplace investigation or search of an employee or their office, it must be determined whether that employee has a reasonable expectation of privacy in the place or item to be searched. If there is no reasonable expectation of privacy, then the search is lawful. In determining the scope of a permissible search in a public workplace, it is necessary to distinguish those items and places within a workplace that are generally within the employer’s control, such as desks and file cabinets, from those items that are not within the employer’s control and thus may have more expectation of privacy. These workplace items can be distinguished from personal items brought into the workplace but not an actual part of the workplace, like backpacks or handbags, which confer an expectation of privacy.

Peace officers and firefighters enjoy additional protections. The Public Safety Officers Procedural Bill of Rights and the Firefighters Procedural Bill of Rights provide specific requirements, in addition to constitutional protections, for searching personal storage space and lockers. Government Code Sections 3309 and 3259 state that lockers or other space for storage may not be searched without a warrant except in the presence of the officer or firefighter, or with their consent, where they have been notified.

Members of WORKERS’ RIGHTS LEGAL SERVICES who have questions regarding their workplace privacy rights can call our Attorney Call Center at (323) 836-8898.

Bonnie Lane         Carla Tourin