The Department of Labor and Industries (Department) has general investigative and enforcement authority over "conditions of labor" that are unlawful when detrimental to employee health. Conditions of labor include personal privacy. There are no specific statutes or Department rules regarding workplace searches.
Government employers are subject to federal and state constitutional privacy restrictions. Generally, a government actor needs a warrant supported by probable cause to conduct a search of private property, unless an exception applies. In the employment setting, an exception may apply when the employer has a compelling interest and narrowly tailors the search to achieve that interest.
Under common law, courts generally look to the circumstances, context, and nature of a search to determine whether an invasion of privacy has occurred. In the workplace, these factors may include the business reasons for the search, the intrusiveness of the search, and the degree of privacy of the object searched.
Employers or their agents may not search an employee's privately owned vehicle located on the employer's parking lots, garages, or access roads to the employer's parking lots or garages. An employee may possess any legally possessed private property in the employee's vehicle. An employer must not require, as a condition of employment, that an employee or prospective employee waive those protections.
The prohibition against searches does not apply to:
The employee's consent must be given immediately prior to the search and the employer may not require that the employee waive consent as a condition of employment. Upon consent, the employee may select a witness to be present during the search.
An employer may not take any adverse action against an employee for exercising any rights established under these provisions. Adverse action means any action taken or threatened by an employer against an employee for exercising the employee's rights, and may include: (1) denying or delaying wages owed; (2) terminating, suspending, demoting, or denying a promotion; (3) reducing an employee's work hours or altering a preexisting schedule; (4) reducing pay; and (5) taking action or threatening to take action based on the employee's or family member's immigration status.
The Department must investigate complaints and may issue civil penalties of not more than $1,000 for a first violation, and not more than $5,000 for subsequent violations. Each employee affected by a violation is a separate violation. Civil penalties are deposited in the supplemental pension fund. Regarding claims involving adverse action, the Department may also order appropriate relief, including ordering payment of any earnings the employee did not receive due to the adverse action, plus interest, and restoring the employee to the employee's former or equivalent position.
The Department may adopt rules to further define "probable cause" and "private property."
The substitute bill:
(In support) This bill has been heard for several sessions. It will protect employees from arbitrary searches of their vehicles. This should be protected by the Constitution but is not. Employers conduct searches on a whim without any probable cause that the employee is in possession of property that is illegal. Employees have been disciplined for having legal items, such as an unopened bottle of wine or unopened beer, in their cars. Under the bill, employers would still have a right to search vehicles under probable cause circumstances.
(Opposed) None.
(Other) It is unclear how the Department will implement this bill as written. The Department would have to determine whether there was legitimate probable cause reasons to search and the Department generally does not make those types of determinations. There is no retaliation provision in the bill. The Department needs rulemaking authority and the bill will impact the Department's information technology system because this creates a new type of complaint that can be filed.