Have a Legitimate Business Purpose to Search

The U.S. Supreme Court’s “reasonableness test” has been used to balance legitimate business needs with a public sector employee’s expectation of privacy in his own office.1 Though O’Connor v. Ortega applies only to public sector employers, it is a good indication of the test that courts will likely apply to private sector employers. The test focuses on whether:

  • Reasonable grounds exist for suspecting that the search will reveal evidence of work-related misconduct
  • The search is necessary for a non-investigative, work-related purpose, such as looking in an employee’s desk to find a work-related document on a day that the employee is out sick
  • The search’s scope was reasonably related to the search’s objectives and not excessively intrusive in light of the nature of the suspected misconduct

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