The circumstances in which an employer may consider conducting a search of an employee’s personal items (lockers, electronic devices, and other personal belongings) can arise quickly and will often need to be addressed urgently. As time is often of the essence in these types of situations, employers should take proactive steps to understand their rights and obligations in conducting searches of personal belongings to ensure they are able to properly conduct workplace searches in a manner that avoids potential liabilities.
Employer Rights to Conduct a Search
Employers have no absolute right to search an employee or their personal items. There must be a term or condition of employment, express or implied, allowing an employer to perform the search. However, an employer has an implied right to protect its property and implement reasonable rules and procedures, which by implication may include searches.
Even if an employer is found to have an implied right to conduct a search, there is still a risk of liability for an employer if the search was carried out in bad faith, or in an arbitrary or discriminatory manner. To avoid liability resulting from improperly conducted searches, some employers may find it helpful to implement a formal policy on workplace searches that not only expressly allows the employer to conduct searches but also outlines how the searches will be conducted. This would create clearer parameters for searches in the workplace.
Employee Rights Engaged During a Search
Depending on the circumstances, employees have a number of different legal rights that may be engaged during a search in the workplace. For example, if an employer uncovers evidence during a search and mistakenly accuses a particular employee of a crime (ex: possession of illegal substances, theft, etc.), the employer may be liable to the employee for damages for malicious prosecution if the employee is charged as a result. Workplace searches could also engage an employee’s Charter rights with respect to search and seizure if there are police or other government officials involved in the search. Moreover, if an employer uncovers sensitive personal information during a search (ex: financial or health records, a personal diary, information with respect to sexual orientation, etc.) then it may be found liable for the privacy tort of “intrusion upon seclusion”.
Finally, if an employer dismisses an employee as a result of a workplace search, it may face punitive or aggravated damage awards for its conduct of the search. Given the risks associated with conducting a search, employers should attempt to secure an employee’s consent when conducting a search. If an employee is unwilling to cooperate or consent, employers must act reasonably and with clear justification for their actions.
Conducting the Search
In determining whether a search was a violation of a collective agreement or otherwise breached an employee’s privacy rights, labour arbitrators will generally consider:
a) whether the employer established adequate cause to justify the search, including whether the employer exhausted alternative options; and
b) whether reasonable steps were taken to inform employees of the search and to conduct the search in a systemic and non-discriminatory manner.
When conducting a search, employers should provide employees with notice of the search and allow them to attend the search where practicable. As a general rule, employers should never search or touch an employee’s person but instead ask them to empty any pockets or remove jackets if necessary. In addition, employers should avoid conducting searches in indiscreet or public areas.
Searching Electronic Devices
In R. v. Cole, the Supreme Court of Canada (“SCC”) indicated that even if the employer issued and actively owns an electronic device, an employee may still have a reasonable expectation of privacy in that device. The SCC found that an employer’s policies, practices, and customs are relevant to determining whether an employee had a reasonable expectation of privacy with respect to their electronic device and that a workplace’s operational realities could diminish any reasonable expectation of privacy in the electronic device in certain circumstances. The clearer an employer’s policies are, the more useful this factor will be in supporting the reasonableness of a search.
In any case, employers should narrow the scope of the places, items, or devices searched to only what is deemed necessary to protect their legitimate interests.