Privacy vs. security: Acme's locker searches brew trouble

In this edition of In the Trenches, Acme weighs an individual's privacy rights.

Ray Kluze wandered in from the parking lot at Acme Wood Products heading for the finishing department, where he spent his working life covering wooden art objects with paints, stains, lacquers and varnishes. As he neared the gate at the employee entrance guard shack, he met Siegfried, one of his buddies from the loading dock, who asked "Hey, Ray, what did you do this weekend?"

"Hi, Sieg. Not much, actually. Early last week I picked up a couple of really good books I've been meaning to read and I finally had a chance to read them both," replied Ray.

"What? Hey, man. You mean to tell me that you stayed inside reading books?" asked Siegfried. "The weather was great. Last Thursday was a payday. We just had a long weekend. And you stayed inside. Is that what you're saying?"

"Yeah, that's what I'm telling you," replied Ray.

When he walked down the long row of doors in the paint shop locker room, Kluze noticed immediately that his lock wasn't hanging on the front of his locker. As he started walking faster, his thought process kept apace. Explanations flooded his mind "I can't believe I forgot to lock it last Thursday." That thought flowed into "Just the wrong row of lockers," which flowed into "I've been robbed," which flowed into "I've been canned" all of which fed the general panic fogging his vision, making him sweat and turning his heart into a pounding war drum.

Ray was hyperventilating by the time he reached his locker door. When he pulled it open, he found the contents in disarray at the bottom. His trusty lock, shackle cut cleanly in two, was laying on top of the pile. Quickly he pulled everything out and spread it on the wooden bench seat. He tried to calm himself and determine what might be missing.

"It looks like everything's here," he muttered under his breath. Once he realized his problem was reduced to a need to buy another lock, Ray sighed deeply and walked to the departmental office to report this mischief.

The department manager, Matt Finnisch, was in early this morning. Ray rapped on the open office door as he entered and said, "Excuse me, Mr. Finnisch. Could I talk to you about something?"

"Sure, Ray. What's up?" replied Matt.

"Somebody's been messing with my locker. They cut off my lock, scrambled up all my stuff and just threw it in a pile inside. Nothing seems to be missing, though," said Ray.

"Oh, you're the one. Listen, Ray, we cut that lock when we searched the lockers last Thursday evening. We were looking for a laptop computer that seems to have gone AWOL," replied Matt.

"You know better than to think I took your computer. And you've got no right to go through my things like that. I don't have your computer and I've got a right to privacy. That was an illegal search of my personal property. That lock also was my personal property and you destroyed it," squeaked Ray, once again starting to hyperventilate. "You owe me a new lock."

"First of all, Ray, I've got every right to look through your locker and everyone else's locker," Matt stated firmly. "Second, you know very well that we wouldn't need to cut your lock if you used a company-issue padlock like you were supposed to."

"I've used that very same lock on that very same locker for the six years I've been here," replied Ray. "And you never said a thing about it."

"What are you talking about, Ray?" asked Matt, somewhat testily. "Company locks that's one of the points we mention in every single one of the monthly departmental safety and security meetings. And you know that's true because you're at those meetings. We give out those locks free of charge, Ray. So, why don't you just march yourself to the storeroom and request a proper lock and leave me alone. And I'm not buying you another lock."

"We'll see about that, Mr. Finnisch. We'll sure see about that," said Ray as he stormed out of the office, slamming the door on his way out.

What's in store for Acme now? How would you recommend Finnisch proceed? How would you recommend Kluze proceed?

A corporate consultant's response:

This is an unfortunate incident, but not one of the more serious cases. As a manager, Finnisch should not have reacted so emotionally. He certainly could have been more tactful, recognizing Ray's outburst was likely motivated more by hurt feelings at not being trusted by Acme than by malice of any kind. Reacting to Ray with such emotionalism showed both immaturity and a lack of professionalism on Finnisch's part.

There are a couple of interesting issues here. The broader issue is just what are the individual's privacy rights in a work organization? F

– Professor Homer H. Johnson, Ph.D., Loyola University Chicago

Ray obviously could have behaved with greater maturity as well. He could have recognized that Acme would have the same concern for their stolen property as he initially had for his own. He should have realized searching his locker was fully appropriate, and he should not have interpreted it as a personal affront.

In my view, this is a fairly simple matter of both men inappropriately losing their tempers. Each should apologize to the other for unprofessional, emotional behavior and be done with it.

Francie Dalton, Dalton Alliances, Inc.
(410) 715-0484

An attorney's response:

This is yet another variation on the age-old struggle between an employee's right to privacy and an employer's right to run its business, establish and enforce rules and maintain safety and security.

In most jurisdictions, the critical issue is whether the employee has any expectation of privacy. For example, if an employer has a written policy reserving the right to search lockers, desks and vehicles, the employee has no claim that his privacy was invaded when the employer acts in accordance with its policy. Even a known employer practice of looking through an employee's desk drawers or tool bench, for example, would be sufficient to ward off any claimed invasion of privacy.

Kluze's situation, however, is much less clear. While the facts don't specifically indicate, the inference exists that if Acme supplied employees with locks and did not cut those locks to search lockers, Acme must have been able to open the company issued locks. But did employees know this? Many employers issue locks to employees for their lockers without retaining the ability to open those locks. So the simple issuance of company locks to employees does not, by itself, establish that Acme made it known it could access those lockers whenever it wishes.

Other facts could negate any claim by Kluze for an invasion of privacy. These would include discussions during the monthly departmental safety and security meetings, or a written policy reflecting that the company reserved the right to search lockers, or even telling employees Acme could open the locks on their lockers.

On the other hand, if the company never discussed its right to search employee lockers during the meetings, didn't have a written policy, and didn't have a known practice of searching lockers, Kluze may have a claim. Another unknown fact is whether Acme knew that Kluze used his own lock for six years. If so, that would suggest that Acme didn't reserve the right to search Kluze's locker.

While the legal answer to Kluze's dilemma may be unclear, Kluze really has lost nothing other than a lock and perhaps a bit of his pride. Perhaps each side could compromise by Acme buying Kluze a new lock and Kluze using a company issued lock on his locker at work, while removing any items from his locker that he does not want Acme to see the next time it searches his locker. If it has not already done so, Acme should issue a memo to employees or a policy on the subject of locker searches.

Julie Badel, Partner, Epstein Becker & Green, P.C.
(312) 499-1418

An academician's response:

There are a couple of interesting issues here. The broader issue is just what are the individual's privacy rights in a work organization? For example, is it legal to search an employee's locker, or how about searching one's computer files, or can employee's phone calls be monitored? How about searching one's person, or ordering random drug testing? Is it legal for a company to search your car if it's in the company parking lot? What if it's in the driveway of your house?

Many companies struggle with these issues and some interesting cases have hit the courts. For example, it appears to be okay to have security cameras monitoring the work areas, however, what about the employee washrooms?

Companies are between a rock and a hard place regarding these issues. On one hand they need, or they think they need, to engage in such activities to ensure security and safety. On the other hand, employees often perceive these activities as indicating the company does not trust them and thinks they might be a bunch of crooks. So, whatever a company does in this area has to be done with a great deal of care and sensitivity. I am not a big fan of these search activities except under very special conditions. They usually cause more problems than they solve. I would bet Acme didn't find the missing laptop, and I also would bet they irritated a lot of the employees by conducting the search. So what did Acme accomplish?

Turning to the Ray episode, I wouldn't have cut the lock. If Acme thought a locker search was important they could have waited until Ray came in Tuesday morning, explained to him that they need to check his locker as they did every other locker, checked it out, and then given Ray an Acme lock. Ray might not have been delighted with the search, but this procedure would have made it a bit more palatable.

Acme needs to have a clear policy on locker searches posted in the locker room. The policy would indicate that lockers are subject to inspection, that they must have Acme locks on them, and also note it's recommended that items of a highly personal nature not be stored in the lockers (as well as no drugs, flammable materials or stolen laptops). Acme also should have made sure lockers were equipped with Acme locks rather than let Ray have his own lock for six years. A couple of simple steps like these would have mitigated much of the problem.

What can Ray do now? Probably not much if Acme has a published policy on locker searches. I assume they did have such a policy, as they required Acme locks, which usually goes together with a search policy. So, given my assumption is correct, my advice to Ray is to "just chill." What Acme and Ray need to do is make sure the policy and guidelines are clear and posted and everybody has an Acme lock. If I were Matt I would probably apologize to Ray for not waiting until he came in on Tuesday and I would probably also reimburse him for the lock. What's $20 to keep a little peace? Acme also has to reconsider under what conditions they will conduct searches in the future to avoid incidents such as this.

Professor Homer H. Johnson, Ph.D., Loyola University Chicago
(312)915-6682