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Federal Constitutional Law

The Fourth Amendment to the U. S. Constitution prohibits the federal government from conducting unreasonable searches and seizures, and searches or seizures conducted without a warrant are presumptively invalid. The U. S. Supreme has repeatedly held that public employees are protected by the strictures of the Fourth Amendment precisely because they are employed by the government. O’Connor v. Ortega,480 U.S. 709, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987). Workers employed by private companies enjoy no such constitutional protection.

The Supreme Court and lower courts have also consistently ruled that the Fourth Amendment right protecting public employees from unreasonable searches and seizures conducted by their employers is more limited than the right protecting the rest of society from searches and seizures conducted by law enforcement officials investigating criminal activity. The Fourth Amendment only protects individuals who have a “reasonable expectation of privacy” in the place to be searched or the thing to be seized. However, in the public employment context courts have recognized that they must balance the alleged invasion of an employee’s privacy against the employer’s need for control of a smoothly running workplace.

One consequence of this balancing is that employers typically do not need a search warrant or probable cause to search an employee’s work space, so long as the search is for work-related reasons. Even when the search is for evidence relating to employee misconduct, the employer’s intrusion need not be made pursuant to a search warrant or probable cause unless the alleged misconduct rises to the level of criminal activity, at which point the employee is entitled to full protection of the Fourth Amendment.

Thus, it is generally recognized that most work-related intrusions by an employer comply with the Fourth Amendment’s reasonableness requirement. Courts have said that requiring a warrant for work-related searches would be disruptive and unduly burdensome. To ensure the proper, ongoing operation of governmental agencies, entities, and units, courts interpret the Fourth Amendment as giving public employers wide latitude to enter employee offices, search their desks, and open their drawers and file cabinets for work-related reasons.

Drug testing of government employees (or of private employees pursuant to government regulation) has been addressed by several courts. Upon weigh-ing the competing public and private interests, most lower courts have concluded that such testing is constitutional at least in those instances where the employer possessed a reasonable suspicion that a particular employee was using drugs and that the drugs affected the employee’s job performance. For example, employers can compel workers to undergo blood, breath, or urine tests to check for drug use following a serious workplace accident that injured or imperiled others, so long as the employer has reason to believe that the accident was caused in part by an employee’s drug use. Courts allowing drug testing in these situations have emphasized that the reasonable suspicion test fairly accommodates employees’ privacy interests without unduly compromising workplace safety or the safety of the public.

Inside Federal Constitutional Law