While more common in some workplaces than others, employer searches of employee belongings, lockers or electronic devices may arise suddenly and urgently in the absence of established policies, practices or procedures.  For this reason, employers should be proactive in understanding their rights and obligations in respect of workplace searches in order to adequately address privacy concerns and avoid potential liabilities resulting from improper searches.

Employers have no absolute right to search the person or personal effects of an employee.  There must be an express or implied term or condition of employment permitting such a search.  That being said, the employer has an implied right to protect its property and invoke reasonable work rules and practices, and by implication that may include searches.

However, even where an employer is found to have an implied right to conduct searches, either within a collective agreement or in the context of an individual employment relationship, the employer is still at risk of exercising this function in bad faith, arbitrarily or discriminatingly, thereby exposing it to liability. For this reason, some employers might benefit from an express policy that not only permits searches, but also provides guidance on how to conduct them.

Employee and Employer Rights

Generally speaking, unless police officers or other state actors are involved, a workplace search will typically not engage an employee’s s. 8 right under the Canadian Charter of Rights and Freedoms to be “secure against unreasonable search and seizure.”  However, if an employer locates illegal substances or alleges theft then mistakenly accuses a particular employee, and that accusation leads to charges, the employer may be liable in certain circumstances for malicious prosecution.  Alternatively, if a search uncovers  particularly sensitive personal information, such as financial or health records, sexual practises or orientation, a diary or private correspondence, the employer may be liable under Ontario’s new privacy tort of “intrusion upon seclusion”.  Finally, if the search leads to wrongful dismissal litigation or arbitration the employer may face punitive or aggravated damage awards for its conduct in the search.

Therefore, where possible, the employer should secure the employee’s consent or cooperation when conducting a search.  If consent is not obtained, the employer is required to act reasonably and with clear justification.

In determining whether an employer search contravenes a collective agreement or otherwise breaches an employee’s privacy rights, the approach of labour arbitrators has been to consider whether the employer established adequate cause to justify the search, including exhausting available alternatives, and whether reasonable steps were taken to inform employees of the search and to conduct the search in a systematic and non-discriminatory manner.

Where practicable, a company conducting a search should provide notice to, and ensure the attendance of, the person whose property is being searched.  In the case of physical spaces that attract an expectation of privacy, such as a desk drawer or locker, an arbitrator has held that whether the space is in fact locked at the time of search may not actually alter that employee’s general expectation of privacy in that container or otherwise diminish the employer’s need to conduct the search in a reasonable way.

As a general rule, arbitrators are more likely to find a search to be a reasonable exercise of employer rights  when the search is limited to things rather than persons. Employers should generally never search or touch the physical person of an employee, and may be better off asking them to remove any jackets or outer layers, and/or empty their pockets. Further, searches should never be conducted in an insensitive or public setting such as a search of an employee’s purse or workspace in the presence of other employees, as personal items may be exposed.

Ideally, an employer anticipating the need to conduct searches will implement controlled, well-publicized security procedures that can be instituted, explained and universally applied without subjecting employees to embarrassing, occasional spot checks. For example, if employees are required to reveal the contents of such containers as lunch boxes, parcels or purses upon entering or leaving a facility, or within an official investigation, they can take that condition of employment into consideration when deciding to bring personal parcels into the workplace.

Searching Electronic Devices

In R. v. Cole, the Supreme Court indicated that even where an electronic device is issued and ultimately owned by an employer, an employee may have a reasonable expectation of privacy in that device so long as some incidental personal use is permitted. As such, random, indiscriminate or expansive searches of such devices without justification would be unreasonable. However, in Cole, a school board acted reasonably in reporting its employee when routine IT updating revealed child porn on a school-issued computer for which personal use was permitted.
 
The Supreme Court explained that the policies, practices and customs of the workplace in issue are relevant and these “operational” realities may diminish the reasonable expectation of privacy that an employee might otherwise have in certain electronic devices. For example, the company policy may permit IT staff to update a computer or management to monitor internet browsing history at work. The clearer the employer’s policies the more useful this factor is in supporting the reasonableness of a search.  Other considerations include:

•    whether the employee was present at the time of the search;
•    whether the employee had possession or control of the property or place searched;
•    whether the employee owned the property or place searched;
•    whether the employee had historical use of the property or item;
•    whether the employee had the ability to access including the right to admit or exclude
      others from the place searched;
•    the existence of a subjective expectation of privacy; and
•    the objective reasonableness of the expectation.

Similar principles apply to searches of smartphones as they are often analogized to the information-storing capacity of a “mini-computer.”  Ontario’s highest court has recently suggested that whether a device is “unlocked” when it is searched may have some bearing on whether there is a reasonable expectation of privacy in the device.

Conclusion

In all cases, an employer should narrow the scope of its search of spaces, belongings or devices only to what is absolutely necessary to protect some legitimate interest of the employer. Clear policies will make those interests apparent to employees and put them on notice of terms of their employment that permit searches. Ultimately, however, searches must be justified and reasonable. If there is any doubt as to whether these criteria are met in a given case, the employer should seek legal advice in order to avoid liability in the rapidly changing sphere of workplace privacy law.

Labour Arbitration Case References

Algoma Steel Corp Ltd. and U.S.W., Local 2251 (1984), at 17 L.A.C. (3d) 172.
Re: Goodyear Canada Inc. and URW, Local 189, 44 L.A.C. (4th).
Re: Royal Oak Mines Inc. and CASAW, Local 4 (1991), 24 L.A.C. (4th) 221.
Drug Trading Co. v. Energy and Chemical Workers Local 11 (1988), 32 L.A.C. (3d) 443.