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Can California employers lawfully search contents of employee

person, including but not limited...
Can California employers lawfully search contents of employee person, including but not limited to clothing, bags/purses/packs/letters/vehicles for any reason as long as the search is conducted on company property, to include the parking lot?
With respect to any searches of person, ("pat-down" or "frisking") a same-sex Company Representative is available to conduct any searches of male/female employees.
If bodily "pat-down" searches would be non-compliant with state/federal law, but other "extended property" searches such as bags and vehicles are compliant, is it lawful to require that the contents of pockets to articles of clothing (bodily property) be displayed?
Regardless of the law defining this matter, are employers RESPONSIBLE for the contents of employee persons, bags, cars, etc...?
Example A: The use/possession of any illegal substances (drugs) while on a break or otherwise on company property.
Example B: The use/possession of any illegal electronic jamming equipment, firearms, dangerous chemicals (poisons), etc...
Thank you very much!
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Answered in 49 minutes by:
8/15/2011
socrateaser
socrateaser, Lawyer
Category: California Employment Law
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Can California employers lawfully search contents of employee person, including but not limited to clothing, bags/purses/packs/letters/vehicles for any reason as long as the search is conducted on company property, to include the parking lot?


A: First, there is a huge difference between government and private employers where this issue is concerned. Government is restricted by the U.S. Constitution, 4th Amendment prohibition on unreasonable search and seizure -- whereas private employers are not restricted. I will assume a private employer here.

 

There is practically no California law on this subject. The small amount that exists, suggests that an employer that notifies employees in advance that their possessions or persons may be subject to search, can do so, because by providing notice, the employee no longer has a reasonable expectation of privacy -- except, for example in locations such as dressing/locker and restrooms, where a clear expectation of privacy exists.

 

So, the issue must be resolved approximately as that the employer can search, and the employee can quit and thereby avoid a search. A physicial search of a locked vehicle, would almost certainly be unlawful, because the employee has a reasonable expectation of privacy in the vehicle, as long as it is locked on employer property. Similarly, a locked box or bag would be protected, but ultimately, the employer can demand that the employee open the bag, and if the employee refuses, then the employer can terminate the employee. Thus, the employee's rights are secured, but so are the employers.

 

Concerning a patdown or other body search, once again, the issue is one of whether the employee has notice that he or she will be subjected to a search. If no, then it's arguable that a patdown is probably beyond the employer's authority -- however, the issue always resolves as being a choice between submitting to a search and quiting one's job or be fired for refusing. It's not a great choice but it is a choice, and the employee and employer can each make their choice, without the court's interference.


With respect to any searches of person, ("pat-down" or "frisking") a same-sex Company Representative is available to conduct any searches of male/female employees.

If bodily "pat-down" searches would be non-compliant with state/federal law, but other "extended property" searches such as bags and vehicles are compliant, is it lawful to require that the contents of pockets to articles of clothing (bodily property) be displayed?

 

A: Same answer as above. You are characterizing the choice of employer demands and employee must comply. But, the real choice is that employer demands, and employee can quit or refuse and potentially be fired. So, you have to consider the full range of options before considering the answer. It's not as cut and dry as may first appear.


Regardless of the law defining this matter, are employers RESPONSIBLE for the contents of employee persons, bags, cars, etc...?


A: If the employer provides storage for an employee's possessions, then that would bring responsibility on the employer as a "bailee," unless the employer notifies employees in advance that it won't be responsible for possessions stored on employer premises. However, in a job description where it's impossible to perform the job without storing personal possessions (car keys, wallet, purse, etc.), then the employer would likely be unable to waive liability, because the employee is actually storing possession for the employer's benefit, rather than for the employees.


Example A: The use/possession of any illegal substances (drugs) while on a break or otherwise on company property.


A: This issue has been in part addressed by the California Supreme Court -- to wit: "

Nothing in the text or history of the voter-approved California Compassionate Use Act of 1996, Health & Saf. Code, § 11362.5, indicates the voters intended to articulate any policy concerning marijuana in the employment context, let alone a fundamental public policy requiring employers to accommodate marijuana use by employees." Ross v. RagingWire Telecommunications, 42 Cal. 4th 920 (1/24/2008). In other words, an employer can terminate an employee for using/possessing marijuana, even though it is being legally used under California law, because it is still illegal under federal law.

As to the employer being responsible for the employee's possession of marijuana, illegal drugs, toxins, etc., the answer lies in to whose benefit does the use or possession of the item principally inure. If to the employer, then the employer can be held vicariously liable, because use or possession is within the employee's scope of employment (aka, "respondeat superior"). If to the employee, then the employer would not be liable, because use or possession is outside the scope of employment.

Example B: The use/possession of any illegal electronic jamming equipment, firearms, dangerous chemicals (poisons), etc...

A: See above.

Hope this helps.

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