Q: We’ve been checking the bags of employees and visitors when they leave our office? Is this allowed?
A: Yes, you can check the bags and possessions leaving your premises. However, this should be done only if you have properly notified employees and visitors in advance of this practice.
By giving advance notice, you set an expectation of privacy on your premises and can search with a reduced chance of dispute. Employees are not forced to work for you. Visitors are not forced to enter your building. So the decision to be there – knowing a search may be involved – rests with them.
If you have an employee handbook, you can easily notify employees by having it include a policy addressing inspections and searches. You may want to specify exactly what belongings you might search, e.g., purses, back packs, briefcases, so employees know exactly what to expect. Since visitors don’t have access to your employee handbook, you can use a poster or verbal announcement to let them know about the search policy.
You’ll want to ensure that you are carrying out your searches in a way that is clearly non-discriminatory. For instance, if you are executing searches to prevent theft generally (as opposed to a specific instance where you have reasonable suspicion), then the searches should be done with all employees and visitors to prevent any potential discrimination claims.
Be aware that you should never touch someone when executing a search, nor should you demand that an employee or visitor submit to the search in order to be allowed to leave.
You’ll want to ensure that you are carrying out your searches in a way that is clearly non-discriminatory.
The former is a clear invasion of privacy, while the latter could lead to a claim of false imprisonment. Many employers find that a visual inspection of bags while they’re held open by the employees is sufficient to prevent theft.
In short, your practice of searching bags of employees and visitors is fine as long as you’ve notified them of your policy and you conduct searches in a non-discriminatory way.