II. Fourth Amendment Concerns for Public-sector Employers

• Library: Municipal Law Deskbook (ABA) (2015 Ed.)

II. FOURTH AMENDMENT CONCERNS FOR PUBLIC-SECTOR EMPLOYERS

The Fourth Amendment of the Constitution provides that "[t]he right of the People to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated." Fourth Amendment considerations arise when the government acts in its capacity as an employer.¹ Therefore, public-sector employers that are faced with disciplining their employees for on-duty or off-duty misconduct are well advised to consider Fourth Amendment restraints prior to engaging in workplace searches, surveillance, or investigations.

A. Workplace Searches

The U.S. Supreme Court has opined that the Fourth Amendment applies to "searches and seizures by government employers or supervisors of the private property of their employees." ² As a general matter, warrantless searches "are per se unreasonable under the Fourth Amendment." ³ However, there are exceptions to the general rule, one being justified by the "special needs of the workplace." ⁴

In O'Connor v. Ortega, the Supreme Court established a framework for analyzing public-employee claims of privacy in their work space and personal effects for a "noninvestigatory work-related intrusion" and for "an investigatory search for evidence of suspected work related employee misfeasance." ⁵ According to the Court, a public employee must first establish a reasonable expectation of privacy.⁶ If the public employee establishes a reasonable expectation of privacy, rather than applying a probable cause standard, the individual must prove the invasion to be unreasonable.⁷

Determining the appropriate standard of reasonableness requires a twofold inquiry. The first question to ask is whether the search was "justified at its inception." Next, whether the search was permissible in scope must be considered.⁸ These considerations tend to pit the public employee's reasonable expectation of privacy against the public employer's interest in maintaining an orderly and efficient operation. Therefore, the plurality in O'Connor v. Ortega applied a balancing test to determine whether a public employee's reasonable expectation of privacy outweighs the "operational realities of the workplace." And, in a later decision, the Court explained that "operational realities" could diminish an employee's privacy expectation, which could be taken into consideration when reviewing the reasonableness of the workplace search.⁹

1. Reasonable Expectation of Privacy

According to O'Connor v. Ortega, "[g]iven the great variety of work environments in the public sector, the question whether an employee has a reasonable expectation of privacy must be addressed on a case-by-case basis." ¹⁰ The plurality determined that a state-hospital-employed psychiatrist had a reasonable expectation of privacy in his desk and file cabinets.¹¹ The psychiatrist had been placed on administrative leave pending review of charges alleging mismanagement of a residency program, sexual harassment of female hospital employees, and issuance of inappropriate discipline of a resident. While on leave, hospital officials searched the psychiatrist's office and seized personal items from his desk and file cabinets. The Court noted that evidence disclosed that the psychiatrist did not share his desk or file cabinets with other employees, certain work-related files were kept outside of the office, and personal papers and effects were kept in his desk and file cabinet.

Circuit courts have considered a variety of workplace-related searches. The Second Circuit has held that a discharged law clerk, working for a state judge, did not have a reasonable expectation of privacy in his office, desk, or filing cabinet.¹² The court reasoned so based on the fact that the employment relationship between the judge and the law clerk called for an "absolute free flow of information." ¹³ The Seventh Circuit deemed reasonable a search of a locked filing cabinet and other office furniture, which the employee purchased herself, located inside a state child protective investigator's office, pursuant to an anonymous tip that she kept child pornography in her filing cabinet.¹⁴

An employer's practice and procedure may reduce an employee's reasonable expectation of privacy in the work space.¹⁵ For instance, employees may lack reasonable expectation of privacy in their work space if it is characteristic to invade employees' desks to locate files or documents.¹⁶ The employer can create an environment where unannounced and warrantless searches are common practice by posting notices, establishing work rules indicating unannounced searches will be conducted by the employer, or by requesting employees to sign privacy-right waivers.¹⁷ However, it is imperative that the employer communicate policies and work rules because its failure to do so may support an assertion of an employee's reasonable expectation of privacy.¹⁸

2. Appropriate Standard for Determining Permissibility of Workplace Searches

The Fourth Amendment is implicated once an employee establishes a reasonable expectation of privacy. The standard for evaluating the constitutionality of the employer's search and seizure depends on the purpose of the search. If the workplace search is conducted for the purpose of uncovering evidence of criminal conduct, a probable cause justification is applicable.¹⁹ However, if there is no criminal implication, then the employer search must be (1) justified at its inception and (2) reasonably tailored to its purpose.²⁰

a) Justified Workplace Searches

The U.S. Supreme Court determined that justification for workplace searches need not amount to "probable cause" because it "would impose intolerable burdens on public employers." ²¹

[Therefore] a search of an employee's office by a supervisor will be "justified at its inception" when there are reasonable grounds for suspecting that the search will turn up evidence that the employee is guilty of work-related misconduct, or that the search is necessary for a noninvestigatory work related purpose such as to retrieve a needed file.²²

In a Seventh Circuit decision, the court held it to be reasonable and justified for police officers to conduct a warrantless search of a narcotics officer's desk as part of an internal investigation into work-related miscon-duct.²³ Federal district courts have similarly found that the search of a state trooper's locker to be justified because the superintendent that conducted the search sought to recover stolen money.²⁴ However, a workplace search based entirely on the employee appearing to be in a dazed condition has not been deemed reasonable.²⁵

b) Scope of Workplace Searches

The scope of the workplace search must not exceed the justification for the intrusion. A workplace search is "permissible in scope when 'the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of . . . the nature of the [misconduct].'" ²⁶ However, certain courts, such as the Ninth Circuit, have explicitly recognized that if a workplace search is a "purely indiscriminate fishing expedition" through an employee's personal belongings, a Fourth Amendment violation is clearly established.²⁷

B. Surveillance and Investigations

The same privacy concerns raised by workplace searches are implicated in surveillance and investigations of public employees. Surveillance and investigations include e-mail surveillance, video surveillance, spoken communication, monitoring of computer and/or Internet use, and social media surveillance. With the evolving role of computers in business come technological advances, including advances in the way electronics are utilized for communication. Therefore, it comes as no surprise that public employers' electronic monitoring tends to raise Fourth Amendment concern.

1. Telephone Call Surveillance

Monitoring an employee's telephone conversation is regulated by the Omnibus Crime Control and Safe Streets Act of 1968 (i.e., the Wiretap Act). This Act makes it a crime for public (and private) employers to "intentionally intercept . . . any wire, oral or electronic communication." In 1986, Congress extended the Act to e-mail messages. The Act applies only if there is a reasonable "expectation of non-interception." ²⁸

Similarly, under the O'Connor v. Ortega analysis, the threshold issue is whether the employee has a reasonable expectation of privacy. In a Seventh Circuit decision, a former village comptroller brought action against the village, police chief, and former mayor, alleging, among other things, that the defendants violated his Fourth Amendment rights by surreptitiously recording telephone calls from the village's finance department.²⁹ The court determined that the employee had a reasonable expectation of privacy in his phone line.³⁰

As in the context of workplace searches, the next issue to consider is whether surveillance has been conducted in a reasonable manner.³¹ For instance, the Seventh Circuit, upholding the district court's decision, stated that given the fact that recording phone calls occurred for a six-year period, without any notice provided to the affected employees, there was sufficient evidence of a Fourth Amendment violation to withstand summary judg-ment.³² In the same vein, the Fifth Circuit determined that a police officer has a reasonable expectation of privacy in phone calls placed from his or her own office.³³

2. Computers

Several courts of appeals have held that an employee does not have a reasonable expectation of privacy in the contents of an officer computer.³⁴ The Eighth Circuit has held that university officials did not violate an employee's Fourth Amendment rights when it conducted a warrantless search of an employee's computer for work-related materials. The employee did not have a reasonable expectation of privacy in the computer files because a university computer policy permits searches when it relates to discovery requests, as it did here. Even if...