In a BLR webinar entitled "Complaint Investigations: The Legal Dos and Don'ts of Finding the Truth Without Breaking the Law," Matthew H. Haverstick, Esq., partner in the nationwide law firm Conrad O'Brien P.C., described the appropriate use of searches when conducting an investigation of an employee complaint.

As with polygraphs, Title VII of the Civil Rights Act of 1964 and the National Labor Relations Act would respectively prohibit searches aimed at particular groups or union activists, and the Fourth and Fifth Amendments to the United States Constitution restrict searches by federal and state employers. Do not conduct a search without consulting with corporate or outside counsel first.

When you decide to search, you should do so in a reasonable manner and should not humiliate the employee, as any humiliation is likely to provoke expensive litigation. The employer may make submission to a search and cooperation with any investigation a condition of employment, and if it does, it should advise the employee at the time of hire, through the application or a handbook. If an employee objects to a search, the employer should not conduct one. Instead, the employer should note the refusal to cooperate and tell the employee it will make the appropriate inference from the refusal. Sometimes it is wise to get a neutral third party to conduct the search to avoid invasion of privacy claims-- particularly when a search might uncover personal information not related to the search.

Matthew H. Haverstick, Esq., is a partner in the nationwide law firm Conrad O'Brien P.C. Mr. Haverstick focuses his practice on internal corporate investigations, white-collar criminal defense, complex business torts, securities arbitrations, Racketeer Influenced and Corrupt Organizations (RICO) claims and construction defect cases. He may be contacted at mhaverstick@conradobrien.com