Privacy Issues in the Workplace for Public Employees-part I

• Jurisdiction: United States,Federal
• Citation: Vol. 26 No. 4 Pg. 61
• Pages: 61
• Publication year: 1997

26 Colo.Law. 61 Colorado Lawyer 1997.

1997, April, Pg. 61. Privacy Issues in the Workplace for Public Employees-Part I

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61

Vol. 26, No. 4, Pg. 61

The Colorado Lawyer
April 1997
Vol. 26, No. 4 [Page 61]

Specialty Law Columns
Local Government Newsletter
Privacy Issues in the Workplace for Public Employees - Part I
by Steven J. Dawes, Susan E. Dallas

Column Ed.: Victoria M. Bunsen of the City of Westminster - (303) 430-2400, ext. 2231

This month's article was written by Steven J. Dawes Denver, a partner of Senter Goldfarb & Rice, L.L.C (303) 320-0509, and Susan E. Dallas, Den-ver, law clerk to The Hon. Donald E. Abram, U.S. Magistrate Judge. The authors gratefully acknowledge the assistance of Tanya Langton, a third-year law student at the University of Denver, in the preparation of this article. Lawyers representing public or private clients in the areas of municipal, county, and special or school district law are encouraged to submit articles for publication

Privacy in the workplace for public employees continues to be an issue of increasing importance in today's society, not only because of citizen access to government offices and the sensitive nature of the work, but also because technological developments such as computer systems and electronic mail are increasingly pres-ent in public offices. This Part I of a two-part article addresses the extent to which a public employee enjoys a reasonable expectation of privacy in his or her office, desk, and files. It then discusses the scope of permissible searches of these work areas. Part II, to be published in the May issue, will discuss privacy expectations in e-mail communications.

Expectation of Privacy

In general, a government employee's reasonable expectation of privacy in the workplace is very limited. The assessment of this issue occurs on a case-by-case basis in the context of the employment relationship. This section will discuss factors that courts have considered in making the determination of whether an employee's expectation of privacy is reasonable. These factors include the following:

1. Whether the property in question is personal property of the employee, such as a purse, handbag, duffle bag, or briefcase.

2. Whether the office/work space is shared or private. If an employee shares an office with other employees, he or she would not have a reasonable expectation of privacy in the office, with the exception*of the employee's personal items, such as a purse, handbag, briefcase, or coat.

3. Whether the employee works in an open or enclosed area. With the exception of personal items, an employee would not have a reasonable expectation of privacy with regard to open work areas, cubicles, and offices with doors that do not lock.

4. The extent that other personnel are allowed access to the area. For example, if a supervisor or other employees possess duplicate keys or frequently enter other persons' offices, desks, and file cabinets, or if employees are discouraged from storing personal items such as personal correspondence and records in their work areas, employees would not have a reasonable expectation of privacy in those items.

5. Whether employees know that they are subject to searches due to common practice of the employer. Again, however, the employee would have a reasonable expectation of privacy in personal items of the employee as described in the first example, unless such searches routinely included personal items and their contents.

6. Whether the office or work space is open to the public; for example, an employee's desk located in a public library or other place containing public records in an area open to the public.

7. Whether the employee's work is of a classified or confidential nature. This may provide legitimate reasons for frequent searches of the employee's work area to ensure that the employee is following proper procedures and for security reasons. In addition, the employee may not even have a reasonable expectation of privacy in his or her personal items if those items must regularly be searched for security reasons or screened by a metal detector, at least at the time and place the employee is normally required to submit to such searches.

8. Whether regulations put the employee on notice that he or she is subject to search. Again, the exception to this general rule would be personal items, unless the regulations permitted searches of those items.

9. Whether furniture or other items in the work space are owned by the employee or by the government. If the employee has brought personal items of furniture to the office, such as a personal file cabinet with a lock, and the employer and other employees are aware of the personal nature of the item, the employee would have a reasonable expectation of privacy in that item.

10. Whether the employee is under administrative or other investigation, or if the employee has been terminated or has resigned. For example, where an employee is on administrative leave for an internal investigation of possible misconduct and has been asked to remove personal items from his or her desk or work space, the employee would not have a reasonable expectation of privacy. In addition, if an employee resigns from his or her job, the employee would not have a reasonable expectation of privacy after vacating the position and abandoning the work area, even if he or she had left some personal items behind.

11. Whether the conduct of the employee and the supervisor has been consistent with policies of the employer. If an employer has a policy of regular searches of employees' desks and file cabinets, but has never conducted a search, the employee may have a reasonable expectation of privacy in those areas.

12. Whether the employer is a court of law. Employees of the court have a lower expectation of privacy due to the nature of the employment relationship and security measures that regularly accompany jobs in a courthouse. For example, a judge's law clerk has no reasonable expectation of privacy in his or her desk, file cabinets, and work area...