Understanding Your Fourth Amendment Rights in the Workplace

Warrantless Workplace Searches of Government Employees: A Report from the Federal Law Enforcement Training Center (FLETC)

• A search of a government employee's workplace must comply with the Fourth Amendment.
• According to the 9th Circuit Court in United States v. Taketa - a government employee has a reasonable expectation of privacy in his or her office if among other things, the office is not open to the public and is not subjected to regular vis its of inspection by [agency] personnel.
• If an employee has a reasonable expectation of privacy in his workplace, then an intrusion into that area qualifies as a "search" governed by the Fourth Amendment. Kyllo v. United States, 533 U.S. 27, 33 (2001)
• "The Fourth Amendment protects individuals from unreasonable searches conducted by the Government, even when the Government acts as an employer." Generally speaking, when searches are performed, courts have expressed a strong preference that they be performed pursuant to warrants. Nat’l Treasury Employees Union v. Von Raab, 489 U.S. 656, 665 / United States v. Holloway, 290 F.3d 1331, 1334 (11th Cir. 2002)
• Although government ownership of the property to be searched (e.g., a government-owned computer assigned to a government employee) is an important consideration, it does not, standing alone, dictate a finding that no reasonable expectation of privacy exists. Applicability of the Fourth Amendment does not turn on the nature of the property interest in the searched premises, but on the reasonableness of the person’s privacy expectation.  Gillard v. Schmidt, 579 F.2d 825, 829 (3rd Cir. 1978) / United States v. Angevine, 281 F.3d 1130, 1134 (10th Cir.)

Privacy Expectation in Public Workplace Electronic Communications

• The Fourth Amendment protects the "rights of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures." This Fourth Amendment "right to privacy" affords protection against unreasonable government intrusion into protected privacy interests. 

Government Searches of Workplace Computers (Oregon District Court)

• The Fourth Amendment applies when the government acts in its capacity as employer.

Employee Monitoring and Workplace Privacy Law (American Bar Association)


Each of the above short (<20 pages) papers discusses court cases and laws involving workplace privacy. In January 2018, I wrote a short post here: Privacy at Work: What Are Your Rights?  Reading the above reports expands on the information in my earlier post.

As an employee it is important that you understand your rights. As an employer (and especially as a government employer) it is important that you understand your responsibilities.

"Government employers are subject to federal constitutional constraints because their conduct is considered "state action."  Private employers are not subject to constitutional claims unless their investigations become intertwined with a state investigation.  Therefore, a search of an employee's office by a governmental employer is justifiable only "when there are reasonable grounds for suspecting that the search will turn up evidence ... of work-related misconduct, or that the search is necessary for a non-investigatory, work-related purpose such as to retrieve a needed file."- O’Connor v. Ortega, 480 U.S. 709, 716.