A new firefighter — career or volunteer — walks into a firehouse where computers, desks, chairs, turnout gear, lockers and other workplace tools are most often furnished by the fire department. We take these tools for granted. Before too long, they're ours. Our locker, our computer, our office — our home away from home.

But when a fire department manager is concerned about alleged wrongdoing on the part of a firefighter, the concept of “our” locker, “our” computer and “our” workplace collides head-on with the fire department's interest in a workplace as free of inappropriate or illegal activities as possible, and a consequent interest in looking inside those lockers, computers and desks.

So does an employer have the right to search an employee's desk, computer, file cabinet, locker or other workspace? Surprisingly, this is a relatively new legal question. The first time the U.S. Supreme Court dealt with the workplace-search issue was in O'Connor v. Ortega, 480 U.S. 709, in 1987.

Dr. Magno Ortega, then a physician at Napa State Hospital in California, was the subject of allegations of sexual harassment and possible theft of hospital property. Hospital Executive Director Dennis O'Connor suspended Ortega pending investigation. During Ortega's suspension period, O'Connor and other hospital officials entered Ortega's office and searched his file cabinets and desk. That search yielded materials that were subsequently used to support Ortega's dismissal.

Ortega sued, alleging that O'Connor had violated Ortega's Fourth Amendment protection from unreasonable searches. When the case was before the U.S. Supreme Court, the court reversed an appellate-court grant of summary judgment and sent the case back for review.

O'Connor argued that Fourth Amendment restrictions did not apply to a workplace search, but in a 5-4 majority the court ruled that Ortega's files and desk were protected by the Fourth Amendment: Ortega had a “reasonable expectation of privacy” in his office, and the employer could conduct a lawful search only when it could establish that “the government's need for supervision, control and the efficient operation of the workplace” outweighed Ortega's “legitimate expectations of privacy….” This employers' standard is much less stringent than the standard that law enforcement officers must meet to secure a criminal search warrant. The court decided that the question of whether O'Connor's employer interests outweighed Ortega's privacy interests was best presented to a jury.

The Supreme Court did not establish any ground rules on when or how an employer's “interest in supervision, control and the efficient operation of the workplace” would outweigh an employee's “legitimate expectations of privacy;” it left to the lower courts the job of applying the simple “balance” formula on a case-by-case basis. Over time, state and federal courts have followed a reasonably consistent path in balancing employer and employee interests.

For example, CIA employee Mark Simons had been advised, along with all other CIA employees, that assigned computers would be audited periodically for unlawful downloaded materials, including a review of in- and outbound e-mails and Web site visits. When one of the auditors found approximately 1,000 downloaded images of nude people on Simons' computer, a CIA manager entered Simons' office and physically removed the computer's hard drive.

The Fourth Circuit Court of Appeals ruled that the auditors' remote search of Simons' computer did not violate Simons' Fourth Amendment rights because his employer had clearly established that CIA employees had no expectation of privacy. The Fourth Circuit likewise ruled that the manager's entry into Simon's office did not constitute unlawful entry in violation of the Fourth Amendment, because, based on the audit, the manager had reasonable grounds to suspect that the search would result in discovery of evidence of misconduct. (U.S. v. Simons, 206 F3d 392, 2000)

In Gossmeyer v. McDonald, 128 F3d 481 (1997), a co-worker of Rose Gossmeyer tipped off her supervisors that Gossmeyer had hidden pornographic pictures of children in her office. Based on that tip, Gossmeyer's employer, accompanied by law enforcement officials, entered her office without a warrant, searched her desk and file cabinet, and found pornographic photos. The Seventh Circuit Court of Appeals held that the search didn't violate Gossmeyer's Fourth Amendment rights because it was based on a reliable tip, and the search was limited to locations specified by the “tipper.”

In the wake of discovery of alcohol and drug use by on-duty firefighters, the commissioner of the Chicago Fire Department issued a general order providing for unannounced searches of lockers assigned to firefighters. A federal district court judge held in Chicago Fire Fighters Union Local 2 v. City of Chicago, 717 F. Supp. 1314 (1989) that the firefighter plaintiffs' interest in privacy was outweighed by the fire department's interest in ensuring that firefighters were not endangered by consumption of drugs or alcohol while on duty.

But in United States v. Mancini, 8 F3d 104 (1993), the First Circuit Court of Appeals ruled that Sal Mancini, mayor of North Providence, R.I., had a reasonable expectation of privacy when he'd taken prior steps to make sure that no one would have access to his archived files without his approval, clearly labeling and storing them separately in an archive area.

In the area of computer privacy, there's a new federal law on the block — the Electronic Communications Privacy Act of 1986 — that, at first glance, would seem to have dealt decisively with employer access to employee e-mails, downloads and other electronic files.

Title I of ECPA prohibits “intercepts” of electronic documents, including e-mails. In the context of employee privacy, though, every federal court that's dealt with an ECPA Title I argument raised by an employee who's undergone an employer computer search has ruled that ECPA applies only to “contemporaneous” intercepts of electronic documents — not an employer search of stored documents. And while Title II of ECPA prohibits unauthorized access “while [an electronic document] is in electronic storage,” that prohibition does not apply to “the person or entity providing a[n]… electronic communications service.” Thus, employers, as providers of the electronic communications service, are not restrained by ECPA.

So we're back to the O'Connor reasonable-expectation-of-privacy-versus-employers'-interest test. Based on these cases, there's some clear guidance for today's chief officers.

If there are no general orders, departmental policies or collective bargaining provisions that authorize employer searches (or explicit statements to firefighters, volunteer or career, that they should have no expectation of privacy in the use of department facilities), a fire chief could face a struggle in court as he or she attempts to make a compelling case for the superiority of a department's interest in a warrantless search of those facilities over the firefighters' expectation of privacy.

Alternatively, if a fire department employer advises all firefighters that they have no expectation of privacy in any department facility, an employer's search activity will generally be protected. Note that, outside of a collective-bargaining setting, there is no requirement that firefighters sign any release acknowledging that they agree with such a policy.

Courts tend to side with the employer if the search is driven by information on an item or items stored in department facilities that are:

• Reasonably identifiable as something that would interfere with the safe, reliable and effective operation of the fire department;
• In a location established by a reasonably reliable source; and
• In an area to be searched that is based on reasonably specific information.

You should note that in the “reasonable-suspicion/tip” search setting, “where” is important; courts are more likely to support search of a specific space than an office- or building-wide fishing expedition in the interests of keeping the intrusion as limited as possible.

Also, the more people who have access to a facility (eg. shared locker space, shared desks, etc.), the more difficult it is for any one employee to argue an expectation of privacy if the employer decides to search that space.

A collective bargaining agreement that deals specifically with expectations of privacy will trump most warrantless employer workspace searches that do not comply with the bargaining agreement provisions (except that searches driven by a reasonably reliable tip represent a class of searches that may not be barred by such an agreement).

Religion in the workplace

In January, the Ninth Circuit Court of Appeals ruled against Hewlett-Packard employee Richard Peterson in a free-exercise-of-religion case (Peterson v. Hewlett-Packard Co., No. 01-35795, Jan. 6, 2004).

Early in 1998, HP kicked off a workplace diversity campaign. Part of the campaign was a series of posters that featured an employee, along with a one-word description of the employee, including “Old,” “Blond,” Black,” “Gay” and “Hispanic.” A second series of posters included the same photographs, details about the employees and the slogan “Diversity is Our Strength.”

On June 11, 1998, Peterson, who described himself as a devout Christian, prominently posted two Bible scriptures on his cubicle's overhead storage bin in response to the “Gay” posters. According to the Ninth Circuit, “one of Peterson's postings was taken from Corinthians 10:12. The other featured the following passage from Isaiah:

‘The shew of their countenance doth witness against them; and they declare their sin as Sodom, they hide it not. Woe unto their soul! For they have rewarded evil unto themselves.’”

HP decided that because Peterson's postings were clearly visible from the hallway, they violated the company's harassment and discrimination policies and were removed.

During meetings with HP management, Peterson said that the posters were telling him to “accept homosexuals,” and “as long as HP is condoning [homosexuality], I'm going to oppose it.” Peterson admitted that his postings were at least partly intended to “make homosexuals uncomfortable with their lifestyle.” The managers responded that HP was not asking any employee to change personal beliefs — the posters were designed to promote tolerance and respect. After the meetings, Peterson re-posted his scriptures. When he refused to remove them, HP fired Peterson. He sued, alleging religious discrimination.

Peterson argued that the purpose of the HP campaign was “a crusade to convert fundamentalist Christians to its values,” but the Ninth Circuit sided with HP and found HP's campaign to be no more than an attempt to increase tolerance of diversity. Emphasis on homosexuality as one of the tolerance themes was “in no manner unlawful.”

Peterson also argued that HP's actions were a form of religious harassment meant to convince him to change his beliefs, but the Ninth Circuit noted that HP managers not only acknowledged his beliefs, but told him he need not change those beliefs.

Finally, Peterson argued that HP had a legal obligation to accommodate his religious beliefs in the form of his Bible scripture postings. The Ninth Circuit responded that that the accommodation Peterson proposed would have resulted in workplace disruption as other individual employees posted their own individualized responses. “An employer need not accommodate an employee's religious beliefs if doing so would result in discrimination against his co-workers or deprive them of contractual or other statutory rights … [and infringement] upon the company's right to promote diversity and encourage tolerance and goodwill among its work force.”

Fire service managers can draw a couple of lessons from Peterson. First, HP made it very clear to Peterson that they were not asking him to change any belief, and second, HP effectively articulated the “business case” for its diversity campaign, making clear that the campaign did not target any religious belief for discriminatory treatment.

FLSA

By the time this article is published, the U.S. Department of Labor will have announced its new Fair Labor Standards Act amendments. The announcement is expected by March 31, but DOL is expected to announce a “grace period” of 60 to 90 days for all of us to get acquainted with the new rules before they are enforced.

Although you may have found my August 2003 column helpful, there's no guarantee that the new rules will look like the proposed rules I reviewed. Nevertheless, I tried to mark the points where the then-proposed rules differed from what we've all been living with for the past 20 years or so. I also recommend that you keep an eye on www.dol.gov.

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John Rukavina is director of public safety for Wake County, N.C., and holds a law degree from the University of Minnesota School of Law. He was a 1993 FEMA Fellow at Harvard University's Kennedy School of Government and is a graduate of the National Fire Academy's Executive Fire Officer Program. He has taught for the National Fire Academy, at IAFC conferences and for the Institutes of Government at the universities of North Carolina and Georgia.