Finding the Facts - Disciplinary and Harassment Investigation

private papers or communications, lie at the core of the First and Fourth Amendment. The allegations of sexual harassment were so old and vague that they could not serve as a basis for reasonable suspicion warranting a search of the employee’s private office, let alone such an intrusive search of his personal materials. Moreover, the court held that there was no reasonable suspicion that the evidence of sexual harassment would be found in Ortega’s office. 109 Hill v. NCAA, 110 : California Supreme Court Balancing Test The California Supreme Court adopted a “balancing test” approach for analyzing state constitutional privacy claims. This standard is less stringent than the “compelling interest” standard, which under Hill , only applies in limited circumstances. The precise scope of each of these standards is not entirely settled, nor is the extent of an employee’s privacy rights in a workplace setting. The result may depend on the public interest, the employer’s special interests, and the employees’ reasonable expectations of privacy in a particular employment setting. In this case, a civilian Navy engineer’s subjective expectations of privacy in his office, desk and credenza were held not objectively reasonable, given that the Navy employees worked under tight security conditions and were regularly searched. Thus, the employee’s claim of invasion of privacy based on a warrantless search of his locked desk and credenza did not prevail. Employers should, however, always be careful of relying on court decisions that involve unusual circumstances such as workplaces that require security clearance. Schowengerdt v. General Dynamics Corp. 111 : No Reasonable Expectation of Privacy United States v. Bunkers, 112 : Employer Rules and Policy Can Diminish Expectation of Privacy Employees’ reasonable expectations of privacy can be diminished by the employer’s rules and policies regarding the privacy of specified areas. Thus, it is advisable that employers clearly indicate in their policies that they maintain the right to search employees’ offices, desks, and files. The court, relying upon existing postal regulations allowing locker searches, found searches of employee lockers permissible. United States v. Ziegler, 113 :Employer Had Common Authority Over Employee Computer and Could Consent Its Search by Law Enforcement The Ninth Circuit Court of Appeals held that although an employee had a subjective expectation of privacy in his office and workplace computer because the office was not shared with other employees and was kept locked, his Fourth Amendment rights were not violated when his employer consented to a warrantless search of the contents of his workplace computer during an FBI child pornography investigation. The employer exercised common authority over the computer and could consent to its search because it had complete

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