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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
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Experience:  Significant experience in all areas of employment law.
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My family member was suspended without pay because his employer

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My family member was suspended without pay because his employer found a pornographic magazine within his personal belongings. The magazine was located inside a briefcase. The briefcase was inside a locked file cabinet.

The employer claims that they needed to break into the file cabinet while the employee was on vacation in order to locate some supplies they needed (paint). We feel that it was unnecessary and unlawful for the employer to open the employee's personal briefcase and then suspend him based on the contents of the briefcase.

The employer claims that their employee handbook stipulates that pornographic materials are prohibited in the workplace, however the employee was never provided with the handbook. Furthermore, the magazine was locked away inside his personal briefcase,which the employer had no reason to open.

Were the employee's rights violated? The employee works as a maintenance worker at an apartment complex.

Hello and thank you for entrusting me to answer your question. I am very sorry to hear about your family member's termination and can understand why he feels as though his rights have been violated--in fact, they likely have.

Employees have a limited though well-established expectation of privacy in the workplace that arises from both the Fourth Amendment of the United States Constitution and California law. This expectation of privacy is heightened when it comes to the employee's personal briefcases, purses, and handbags and most such searches will be found to be unreasonable absent strong justification to conduct an immediate search based on suspected employee misconduct (i.e., an employee is suspected of having brought a gun to work).

In your family member's case, the search was conducted for reasons not relating to suspected misconduct, but to look for paint. I cannot conceive of a circumstance wherein such a search would be justified. Add to this the fact that paint is unlikely to be located in a briefcase, if even capable of fitting inside, and you really have a search with no possible justification.

While an employee is generally bound by the terms of a handbook even if they never received a copy, this is irrelevant because the violation was discovered through an unlawful search. Since the search was unlawful, any employment action premised on the findings of such a search is, by extension, also unlawful. Accordingly, an individual in your family member's circumstance would have a reasonable claim for damages in the form of lost income arising from his termination based on the results of this illegal search.

For attorney referrals to pursue the case, visit this link: or visit I particularly like Martin Dale because the site allows you to search attorneys by practice area and also provides attorney ratings.

Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further.

If you do not require any further assistance, I would be most grateful if you would remember to provide my service a positive rating, as this is the only way I will receive credit for assisting you.

Finally, please bear in mind that none of the above constitutes legal advice nor is any attorney client relationship created between us.

Very best wishes and happy holidays to you.

Customer: replied 3 years ago.

Thank you. I appreciate your help. Can you provide some low to no cost legal resources? My family member cannot afford a lawyer and will likely be intimidated about pursuing this due to financial limitations. We are in California. Thanks again.

Thank you very much for your reply. Here on Just Answer we cannot ourselves provide legal representation, nor can we refer out to specific attorneys. The good news, though, is that your family member need not pay an attorney up front for this sort of legal representation.

Employment attorneys would accept a case such as this on a contingency fee basis. That means that there is no up front fee and no fee at all if you don't recover anything. In a contingency fee arrangement, the attorney is compensated by a percentage of the total recovery--typically 33%.

Contingency fee arrangements are a very common form of fee agreement and really the norm, rather than the exception, in employment cases such as this.

You can use the links provided above to find an attorney on a contingency fee basis. You may also want to check your local county bar referral service, which you can find here:

Again, I sincerely XXXXX XXXXX this information helps you and I wish you the best. If I have answered your question, I would be very grateful for a positive rating of my service so that I may receive credit for assisting you.

Kindest regards.
Patrick, Esq. and other California Employment Law Specialists are ready to help you

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