Running head: PROTECTION AND PRESERVATION: POLICY AND PRACTICE FOR

ACME’S PACKAGE CONTROL SEARCH PROGRAM 1

Protection and Preservation:

Policy and Practice for ACME’s Package Control Search Program

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PROTECTION AND PRESERVATION

Protection and Preservation:

Policy and Practice for ACME’s Package Control Search Program

“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.”

~ Brandin O’Connor, Shields O’Donnell MacKillop, LLP

Introduction

One of the most difficult challenges that any company faces is balancing the security

and profitability of the company while also maintaining the rights, interests, and personal

privileges of its employees. This is especially true for companies that deal with valuable

goods and data on a daily basis. In this regard, ACME has a particularly hard time in

balancing these interests, as it is constantly manufacturing, shipping, or storing high value

electronic devices for its variety of well-known electronics brands. This inventory of cell

phones, cameras, camcorders, stereos, computers, tablets, video games, and more must be

protected, as there is a perceived property loss at the hands of ACME’s employees.

Therefore, the goal of this report is to present a search policy and procedure for ACME’s

workplace and workforce that is both reasonable and fair, as well as provides ACME the

best method to protect its assets in the form of electronics goods packages.

This report is based on existing research and prevailing conclusions in the field, and

pulls from a variety of sources to make its conclusion. These sources include court

decisions, industry publications, and academic journals. Instead of working as a review of

literature, this report works these references into three primary sections: suggested policy

provisions, specific operational protocols and procedures based on these provisions, and a

conclusion of how ACME can maintain both company interests and employee rights
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through the implementation of these policies and procedures. In short, the goal of these

procedures and policies are to ensure that ACME and its security operatives balance their

right to conduct limited searches to prevent and reduce company losses with employees’

expectation of privacy. While this discussion is not exhaustive, the goal is to serve as a

foundation for further discussion with ACME staff and security contractors on how to

introduce an administrative, non-coercive package control search program for ACME that

will prevent, or at the very least, reduce the internal theft of company assets. While these

suggestions are based on existing research, they are also open to change in light of the

realities that this company in particular faces, given its industry and high value products.

Policy Provisions

As mentioned above, any policy must both maintain the interests of the company

and respect the privacy and individual rights of its employees. Unfortunately, the issue of

dealing with theft is unavoidable for most companies. As one source states, “Most

employers sooner or later have to think about whether they need to conduct searches of

their employees and their work areas” (TWC, 2016, n.p.). The question is, how can a

company go about this once it does become necessary? This is the main question that this

report seeks to address based on existing research. The first step, according to the same

source, is simple enough: “The employer should draw up a simple policy informing

employees that the employer reserves the right to conduct searches to monitor compliance

with rules concerning security of company and individual property” (TWC, 2016, n.p.).

While this is certainly not the only thing that should be done, it is the first step for any

company in securing its interests and goods. Simply put, drawing up a written policy (that

employees sign upon hiring) establishes the legal precedence and right for an employer to
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search for stolen goods among its own property. There are certainly legal complexities

involved here, but it is a good first step.

It is important to note here that the above policy does not translate into subjecting

employees to mandatory searches. As the report quoted above states, “an employer should

never force an employee to submit to a search” as that can invite legal difficulties (TWC,

2016, n.p.). Instead, the policy should be written in such a way that makes continued

employment contingent on willing to the search. In other words, “The policy should make

clear that refusal, after fair warning, to submit to a search or test can lead to immediate

discharge” (TWC, 2016, n.p.). Furthermore, ACME should obtain a written consent to this

agreement at the time of hiring any employer, and present it as a separate agreement from

the larger, more general employee handbook. Doing so will ensure that employer and

employee are on the same page from the beginning.

Perhaps even more importantly, this approach will safeguard ACME from any future

legal charges, unfairness, violations of privacy, or even unemployment claims. As another

source states, “Without a clearly established policy or voluntary consent of the employee,

employers may not conduct general searches of the employee’s property or the employee’s

body…even if the employer suspects the employee has stolen company property”

(USLEGAL, 2016, n.p.). Therefore, creating an agreement with the employee will obtain this

voluntary consent. The two steps identified above will create both an expectation of

accountability in employees and provide ACME the legal right to conduct searches in the

future as it sees fit. In this way, they are both an important foundation.

In implementing this policy, it is important for ACME to maintain its employees’

reasonable expectation of policy. This can be a tricky area, as the Fourth Amendment rights
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identified in the Constitution do not necessarily translate to private workplaces, and are

therefore subject to the interpretation of individual courts. In this regard, the law

consideres two factors: “the employer’s justification for performing the search” as well as

“the worker’s reasonable expectations of privacy” (NOLO, 2016, n.p.). The courts “consider

the relative strengths of these two competing interests” to decide whether an employer has

the right to a search; it is therefore important to be sure that ACME does have adequate

justification for performing a search in the first place. By way of example, O’Connor v.

Ortega is when the Supreme Court first examined the issue of employer search and

employee expectation of privacy. In this court decision, the majority decision established

an “operational realities” test to utilize in future searches for both public and private

employers (480 U.S. 709, 1987). More specifically, the ruling stated that employees’

“expectations of privacy in their offices, desks, and file cabinets, like similar expectations of

employees in the private sector, may be reduced by virtue of actual office practices and

procedures, or by legitimate regulation” (480 U.S. 709, 1987, n.p.). In this way, it is clear

that the operational reality of ACME, as a manufacturer of valuable goods, is such as to

allow for general searches and monitoring.

Related to this, another policy that ACME should implement is related to protecting

its employees’ privacy in the long run. This policy is as follows: search only if necessary,

verify first, do not conduct random searches, and generally consider the employee’s

expectation of privacy (NOLO, 2016, n.p.). These are more specific policies that managers

and other staff should consider before conducting a search in the first place. While the

specific questions to be asked before conducting a search will be identified below, in

operational protocols and procedures, this overarching policy should be well-known by

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both managers and individual employees. If possible, these expectations should be covered

in both the employee manual and in initial training to ensure that management and

employees are on the same page from the very beginning. The specific operational

protocols and procedures, including questions to be asked and the way a search should be

conducted when it does become necessary, are discussed in the section below.

Operational Protocols and Procedures

In addition to the general policies discussed above, to be included in training and

the company handbook, it is also important to discuss the specific operational protocols

and procedures that management should follow in determining if a search is necessary and

conducting a search when it does became necessary. First and foremost, this report

identifies four specific questions that management should ask as they are determining if a

search falls outside of an employee’s reasonable expectation of privacy, and if it is covered

within the voluntary agreement discussed above. These four questions, as identified by the

nonprofit Workplace Fairness, are as follows:

- Is there credible evidence of misconduct?

- Is the scope of the search limited?

- Is the search of an accessible area in which the employee has a diminished

expectation of privacy?

- Is the search for a limited purpose? (WorkplaceFairness, 2016, n.p.).

The first question is the first step in establishing a case for a search, and should be

taken seriously. The second and third questions ensure that the privacy of the employee is

taken into consideration before the search is undertaken by management, which is

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important for future backlash. The final question brings the search back to the first

question, and makes sure that there is a specific, defensible and clear purpose for

conducting the search. Taking the time to answer each and every one of these questions

will ensure that management complies with the main policies already identified above.

Furthermore, answering these questions will ensure that ACME has a defensible case if the

search does bring up legal issues or charges after the apparent resolution of the case.

The second, and equally important, aspect of operational protocols for ACME has to

do with the nature of the search itself. These are more specific procedures, but the most

important aspects are highlighted by one law firm in particular: “Employers should

generally never search or touch the physical person of an employee,” “searches should

never be conducted in an insensitive or public setting,” and “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” (O’Connor, 2014, n.p.). Following these three

protocols in particular will not only make ACME’s package control search program more

effective, it will also make it more reasonable and fair.

Conclusion

The above report identifies, assesses, and discusses the most important legal and

professional factors that ACME must consider as it forms its package control search

program. Of course, the main policies identified above are not exhaustive, but they should

form the backbone of any subsequent employee training/manual, as well as the starting

point for future discussion within ACME management. Similarly, the operational

procedures identified above are the two most basic protocols that ACME management must
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follow when conducting searches under this new program. More specific operational steps

can be defined based on these essential factors. In short, using this report as a foundation

for the program will ensure fair, reasonable searches on the part of ACME in the long run.
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References

NOLO. (2016). Workplace searches: Dos and don’ts. Nolo.com. Retrieved from:
http://www.nolo.com/legal-encyclopedia/workplace-searches-dos-donts-
29770.html

O’Connor, B. (2014). Searches in the workplace – What employers need to know. Shields
O’Donnell MacKillop. Retrieved from: http://www.somlaw.ca/blog/blog-
post/blog/2014/07/18/searches-in-the-workplace-what-employers-need-to-know

TWC. (2016). Searches at work – legal issues to consider. Texas Workforce Commission.
Retrieved from:
http://www.twc.state.tx.us/news/efte/searches_at_work_legal_issues_to_consider.h
tml

WorkPlaceFairness. (2016). Your rights: Workplace searches. WorkPlaceFairness.org.

Retrieved from: http://www.workplacefairness.org/workplace-searches

480 U.S. 717. (1987). O’Connor v. Ortega. Retrieved from:

https://supreme.justia.com/cases/federal/us/480/709/case.html