Bag searches might seem like a good strategy for keeping employees safe and reducing theft. These searches, however, can be highly invasive and offensive to employees. If you're a private business, you're generally permitted to search an employee's bag so long as the reason for the search is not discriminatory, but the consequences to your relationships with your employees can be negative.
The Fourth Amendment to the U.S. Constitution protects the right of citizens to be free from unreasonable searches. However, this protection applies only to the government, not private businesses, which means private businesses that search employees are not violating constitutional rights. Such employers may, however, be violating other laws. Some states establish specific conditions under which employers may search an employee, but most state laws are silent on this issue.
If you've never searched employees' bags and then suddenly begin doing so, it could be a problem. When employers go for long periods of time without conducting a search, employees develop what is termed a reasonable expectation of privacy, meaning they have relied on the employer's past behavior to indicate that they will not be searched. Random searches for no reason can be problematic, and you can't search an employee's body when you search her bag. Additionally, even when a search is legal, an employee can say no. You're free to fire the employee -- depending upon your contract and whether your state has at-will employment -- but you can't force her to undergo a search. Unauthorized searches, such as going through an employee's purse while she's in the restroom, can also land you in legal trouble.
Discrimination against members of protected classes -- such as racial, ethnic and religious minorities, women, disabled people and seniors -- is against the law and can lead to an employee lawsuit. If your bag search policies or practices appear discriminatory, they could violate the law. For example, if most of the employees you search are people of color, this could be considered workplace harassment or a hostile work environment. Similarly, it's usually women who carry purses, so if you search only purses, this could be a form of gender discrimination.
A written policy about bag searches can help your company steer clear of legal trouble. It also gives employees an idea of what to expect at their jobs and can reduce resentment. Clearly list the conditions under which you conduct searches people and ensure you enforce the policy fairly. For example, don't avoid searching someone you know or like if he has done something that, under the policy, warrants a search.
Van Thompson is an attorney and writer. A former martial arts instructor, he holds bachelor's degrees in music and computer science from Westchester University, and a juris doctor from Georgia State University. He is the recipient of numerous writing awards, including a 2009 CALI Legal Writing Award.