In Canada (and specifically in British Columbia), employers do not have an automatic right to search an employee’s bag or purse after a shift. Such searches raise significant privacy and human rights concerns, and employers must carefully balance their business interests with an employee’s reasonable expectation of privacy. Basically, it’s legal to ask, but it’s also legal for an employee to deny your request to search their bag.
Generally speaking, workplace searches of employee lockers, bags and other searches would be subject to the same principles that apply to drug testing under the Supreme Court Irving Pulp ruling.
First, random searches are highly problematic and not allowed unless: 1. the workplace and workers searched are safety-sensitive; and 2. you can demonstrate that there’s an actual–not just theoretical–drug problem causing safety issues at the site, e.g., via records showing a large number of accidents and injuries caused by drug impaired workers at the site
For-cause searches would be easier to justify. You’d still need a safety-sensitive workplace. Ideally, you’d limit searches to safety-sensitive personnel.
A clear, for-cause bag searching policy should include:
Notifies employees of your right to conduct such searches;
States that employees have limited privacy expectations with regard to those possessions at the workplace;
Explains the reasons for the policy
Bottom line: Avoid random searches unless you’re sure you satisfy the above Irving conditions–recognizing that almost no employer ever does, at least based on the post-Irving cases. If you don’t believe me, just ask Suncor. They thought they had a solid case for random testing of oil sands workers at sites with over 1,500 drug-related safety incidents but the Alberta court still shot the policy down.
-HRInsider Staff
