How Public Workplace Searches Threaten Employee Privacy Rights

When you work for a government agency, your desk, office computer and filing cabinets are not treated like a private fortress.
After O’Connor v. Ortega, courts use a special “reasonableness” test for public employee workplace searches,
balancing operational needs of the agency with your constitutional expectations of privacy.

Imagine this: you are a long-time employee at a public hospital or city department, you lock your office every night, and one day you
discover that management entered your workspace, opened your drawers and took documents while you were away. Most people’s instinct is to shout
“Fourth Amendment violation!” because it feels like a government search of personal space. But public workplaces are a grey zone: they are
owned by the government, used for public business and managed by supervisors with strong interests in efficiency, discipline and safety.
That is exactly the tension O’Connor v. Ortega tried to resolve—and that still guides disputes about what is allowed.

Understanding O’Connor v. Ortega and the basic framework for workplace searches

In O’Connor v. Ortega, the U.S. Supreme Court considered whether a public hospital’s search of a physician’s office violated the
Fourth Amendment. The Court recognised that some public employees do have a reasonable expectation of privacy in parts of their
workspace, but it also held that searches by supervisors for work-related, non-investigatory purposes or for
investigations of work-related misconduct are judged under a more flexible “reasonableness” standard—rather than
the strict probable cause and warrant requirement used in ordinary criminal cases.

Key elements of the O’Connor test

• Step 1 – Expectation of privacy: Does the employee have a reasonable expectation of privacy in the area searched (office, locker, desk, computer)?
• Step 2 – Reasonableness of search: If so, the search must still be reasonable in its inception and
  reasonable in scope considering the objectives of the employer and the nature of the intrusion.
• Public employer context: Courts give more leeway when managers act as employers (running a workplace),
  not as criminal investigators building a criminal case.

How courts evaluate expectation of privacy and reasonableness in public workplaces

Not every government office or cubicle creates the same expectation of privacy. Courts look at the customs, actual practices
and policies of the workplace. A personal office that is usually locked and not shared may receive stronger protection than
an open cubicle or a common storage room. At the same time, written policies telling employees that offices, computers or lockers
are subject to inspection can significantly reduce privacy expectations.

Factors shaping an employee’s expectation of privacy

• Whether the space is assigned exclusively to one employee or shared with others.
• Whether the employee can lock the office, desk or cabinet and does so in practice.
• Presence of posted or written policies reserving the employer’s right to inspect or monitor.
• Actual practice: do supervisors routinely enter and search, or is the space normally respected as private?
• The type of items kept there (highly personal vs. purely work-related files and tools).

Once a court finds some level of privacy, it then asks whether the search was reasonable in its inception and scope.
Inception looks at whether there were grounds for suspecting that the search would uncover evidence of work-related misconduct
or was necessary for work purposes (e.g., locating a missing file). Scope focuses on whether the methods and extent of the search
were reasonably related to those objectives and not excessively intrusive.

Applying O’Connor: practical guidance for public employers and employees

For public employers, the O’Connor framework is both a tool and a warning. It gives flexibility to investigate misconduct or retrieve
government property, but it also sets boundaries that, if crossed, can result in suppression of evidence or even civil liability.
For employees, understanding the standard helps evaluate whether a search was simply firm management—or constitutionally unreasonable.

Step-by-step approach for a lawful workplace search

• Clarify the purpose: Is the search for everyday work reasons (finding a file, property) or for suspected misconduct?
• Check policies: Review written policies on privacy, inspections, and electronic monitoring that may shape expectations.
• Focus the target: Identify specific areas and items that need to be examined rather than searching everything.
• Document the reasons: Record what facts justified the search at its inception (complaints, missing items, observed behavior).
• Limit intrusiveness: Avoid searching clearly private containers (e.g., a purse or personal bag) unless there is a strong work-related justification.
• Separate roles: When possible, distinguish between routine employer actions and criminal investigations that may require law-enforcement procedures.

Examples of public employee workplace searches after O’Connor v. Ortega

Example 1 – Missing patient records in a public clinic

A supervisor at a public health clinic discovers that several patient files are missing. The files are needed to continue treatment
and comply with legal obligations. Based on experience, the supervisor suspects that they may have been misfiled or left in a nurse’s
private office. Under O’Connor, a limited search of that office and related cabinets for the records is usually considered
reasonable: it is work-related, justified at inception, and confined to locating the missing documents.

Example 2 – Investigation of theft in a city department

A city agency experiences repeated theft of small electronics. Witnesses report seeing an employee placing items in his desk
drawer after hours. Management searches the employee’s locked office and desk during off-hours, looking specifically for city
property. Because the purpose is to investigate work-related misconduct and the search focuses on locations likely
to hold the items, courts often treat this as reasonable—even without a warrant.

Example 3 – Fishing expedition through personal effects

In contrast, suppose a supervisor dislikes an employee’s criticism of workplace policies and, with no concrete suspicion of
wrongdoing, orders security to empty the employee’s desk, open personal bags and browse private photos on the office computer.
With no specific work-related justification and a broad, highly intrusive scope, this looks much more like an unreasonable search,
and O’Connor can support a constitutional challenge.

Common mistakes in public employee workplace searches

• Assuming that government ownership of the building automatically eliminates all employee privacy.
• Conducting broad “fishing expeditions” with no clear work-related purpose or documented reasons.
• Ignoring written policies that either limit or reserve the employer’s right to inspect certain spaces.
• Failing to distinguish between routine employer action and criminal investigation that may require warrants.
• Searching obviously personal containers (purses, wallets, personal phones) without strong justification or narrower options.
• Not documenting who authorised the search, where it occurred and what was taken, weakening the defence of reasonableness.

Conclusion: balancing workplace control and constitutional rights

Public employee workplace searches live in a middle ground between full private-life privacy and the operational needs of
government employers. O’Connor v. Ortega confirms that employees can have a reasonable expectation of privacy in certain
offices and workspaces, but it also grants public employers authority to act quickly when they need to manage operations, retrieve
property or investigate misconduct.

For agencies, the safest path is to adopt clear policies, targeted searches and good documentation. For employees,
knowing the O’Connor framework helps distinguish a lawful, work-related inspection from an overreaching intrusion that may be
challenged. In both cases, the goal is the same: a workplace that functions effectively without sacrificing the fundamental
protections the Constitution was designed to provide.