subject: A Little Privacy, Please - - Is My Manager Allowed to Go Through My Stuff? [print this page] A Little Privacy, Please - - Is My Manager Allowed to Go Through My Stuff?
Not long ago, members at a nursing home were in for a rude invasion of their privacy by management. A resident in the home had passed away. Her personal belongings were packed up and stored in an office, safely kept under lock and key until her family could pick them up.
The next morning, the manager opened the office and discovered that all the belongings, including a TV, were gone. No message was left. No indication as to what might have happened to the deceased resident's belongings.
It was early in the morning, and employees working the night shift were still on duty. The manager told them that he needed to search their cars for missing items belonging to the resident. He rather aggressively suggested that it would be in their best interest to allow him to do the search, since it would take some time for the police to respond, and they might like to go home and not have to wait around. Staff were angry and upset but grudgingly complied with the search. None of the missing items were found.
Was the manager within his rights to conduct the search? Arbitrators and courts apply a sliding scale of standards on employers when it comes to invading your privacy. The closer the search comes to your body, the higher the bar for justifying the invasion. For example, a search of your vehicle, locker, or coat on a hanger is easier for an employer to justify than searching your pockets or asking for a saliva sample.
The decisions of arbitrators on privacy matters have given employers considerable freedom when conducting searches of their employees. In one British Columbia decision, the arbitrator said "the employer has a presumptive right, under the terms of the management rights clause of the collective agreement, to conduct reasonable cause searches."
In their decisions, arbitrators have applied three principles consistently when it comes to employers invading employees' privacy.
1. Reasonableness - Once an employer determines that a search is legitimately warranted to protect employees' safety or company property, it must conduct the search in a reasonable manner. What is reasonable is open to interpretation, but typically it means that the employer should only take minimal action when responding to concerns. For example, it is not reasonable to conduct a body search when reviewing video surveillance would do. And when it comes to body searches, the employer should never touch anyone. If there is a reasonable and legitimate request for a body search, it should be conducted by the police.
2. Balance of interests - Arbitrators weigh the competing interests of the employer, who is concerned about safety and securing company property, against the employees' interests of protecting their privacy. Balancing these interests is tricky and requires an arbitrator to assess whether the employer did not go overboard when asserting its right to manage. Did the employer try to minimize the impact on the employee's right to privacy while investigating the matter? The least invasive action is always preferable.
3. Fairness - Arbitrators pay particular attention to whether an employer has acted in an arbitrary or discriminatory manner when conducting searches. Arbitrary searches that single out one worker over another are potentially embarrassing and may stigmatize an employee. For example, a supervisor looking into an allegation of theft may not target a few employees she suspects of stealing property. All employees of a shift or work area must be subject to the same treatment.
You have a right to privacy in the workplace, but there are limits to this right. If you find yourself in a situation where you feel your right to privacy is being violated, contact your steward or representative immediately.
So what happened to the deceased resident's missing belongings? Later that day, the manager learned that a family member had approached the nurse in charge for entry into the office and had taken her mother's things home. While the manager may have been within his right to conduct the search, he should have taken the time to investigate more reasonable explanations for why the resident's belongings were missing. Maintaining a positive workplace community requires a high degree of respect for personal privacy-not a rush to judgment.
