Finding the Facts - Disciplinary and Harassment Investigation

her possession, or in his or her automobile, the employer should not search an employee or an employee’s personal possessions. Employers have several other options:  Ask the employee to submit voluntarily to being searched or having his or her possessions searched.  Call local law enforcement and allow them to search if they determine that it is appropriate.

 Prevent the employee from continuing to work and send the employee home.

Unless an item or a substance in violation of the established policy is in plain view of management personnel so it can be seized without a search, management personnel should remember they are generally not trained in how to pat search or fully search an individual. Improperly conducted searches can lead to altercations, ill will and lawsuits.

4. E MPLOYEE M ONITORING

a. Eavesdropping Employer eavesdropping on employees can take on many forms, such as, electronic surveillance, hidden observation, videotaping, and computer monitoring. Federal and state statutory schemes regulate these activities and there are constitutional privacy limits. Further, employer intrusions into areas in which employees maintain a reasonable expectation of privacy must conform to constitutional requirements for searches. The Federal Crime Control and Safe Streets Act, 18 USCA §§ 2510-2520, and California Penal Code §§ 630 et seq., make it illegal to intentionally intercept any wire, oral or electronic communication without consent. However, Penal Code § 632 makes it a crime to eavesdrop or record any confidential communication without the consent of all participants to the communication. A confidential communication is any communication carried on in circumstances reasonably indicating that any party thereto desires the communication to be confined to the parties. The prohibition also applies to prevent any of the participants from secretly recording any part of the communication. 120 Since California criminal law prohibits tape recording or electronically monitoring private conversations unless both parties consent, secretly monitored phone conversations will almost never play a role in disciplinary investigations. b. Video Surveillance Specific to video surveillance, privacy limits still apply under both federal and state law. The cases below illustrate and apply the reasonable expectation of privacy standard.

i. Cases Where Permitted

Sacramento County Deputy Sheriff’s Association v. Sacramento County et al. 121 There are situations where an employer may secretly videotape its employees. The court held that deputy sheriffs working in a jail environment have diminished privacy expectations because of the nature of their employment.

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