Steps to Take Before Searching an Employee’s Work Area or Property

When expensive company property goes missing or an employee reports that a new wallet was stolen from his desk while he briefly left his office, you will want to immediately search for the missing item. However, you can quickly encounter legal problems if your employees have not already consented to such workplace searches.

The best way to remedy this situation is to update your current employee handbook, adding a policy addressing this topic. If you do not have a handbook, it would be wise to draft one now, carefully including a provision about searches, including a statement that they will only be conducted when valid reasons make them necessary. (You should always conduct searches with at least one other supervisor with you – to help document that it was handled properly).

What follows is a brief review of search standards that may apply to different types of employees, the most common items employers often look for during searches – and the importance of never inappropriately touching any employee during a workplace search. You must also avoid detaining an employee in a manner that could be considered “false imprisonment.”

Search standards can vary, based on the employment status of the workers involved

The Texas Work Commission addresses this topic on its website, in an article titled: “Searches at Work – Legal Issues to Consider.”

           1. Legal standards that apply to state and federal government employees. Federal and state constitutional provisions prohibit subjecting these workers to any “unreasonable searches and seizures.” This prohibition is set forth in the Fourth Amendment to the U. S. Constitution, made applicable to the states through the due process clause of the Fourteenth Amendment (under the incorporation doctrine). The nature of this type of violation is discussed further below.

            2.  Standards that apply to private company employees. While the strict standards, statutes and governing case law may sound less strict for these workers, private businesses must still conduct their searches cautiously – or become vulnerable to lawsuits based on one or more of the following claims.

  • Assault and battery. This would likely involve the searched employee claiming that you wrongfully – without obtaining prior consent (or in keeping with known company policy – touched him/her wrongfully.
  • False imprisonment. You detained the worker in a manner that exceeded your rights under the circumstances.
  • Wrongful termination. You cannot fire someone when you do not find the contraband or stolen items you thought you might find. Be sure to have a clear policy in your employment handbook that outlines how many warnings an employee must be given prior to being let go. (However, if the worker is an “at-will” employee, you can terminate that person at any time, without having to state a reason or explain your actions).
  • Negligent or intentional infliction of emotional distress. Always handle search matters in a private setting – where you are not putting the employee’s reputation on the line or subjecting the person to embarrassment in front of others.  When conducting an actual search, always ask all workers in the area to take a work break and wait 15 minutes before returning to their cubicles, offices or nearby work areas.

It is also wise when conducting a search (or disciplining an employee), to have another management official present who can vouch for how everything was handled – prior to writing up a report documenting the events. You may also want to ask the employee to voluntarily sign and date the statement you write up, indicating what took place. Be sure to note that either you acted under the authority of a known workplace search policy – or that you obtained the employee’s advance permission before conducting the search.

What items are employers often looking for during a locker or work area search?

  1. Stolen property. This may belong to the company or to another employee.
  2. Drugs or alcohol
  3. Any type of dangerous weapon, including certain knives. Be sure to address all the types of weapons that employees can never bring to work in your employee handbook.

What might constitute an unreasonable search and seizure?

  1. Searching an employee’s work area or locker without attempting to provide advance notice. However, if this is a right you reserved for the company in the employee handbook, advance notice may not be required. Be sure to note that even if an employee secures his/her locker with a personal lock, you must still be given access to the contents.
  2. Conducting the search in front of the employee’s co-workers. This should always be avoided, even if the other employees must be asked to take a work break or go gather in a nearby conference room until you invite them to return.
  3. Physically touching an employee or yelling while interacting with the person. Be polite and treat the person as you would want to be treated. After all, it may be up to a court to later determine if your company owes the employee any monetary damages.

Can you ever, in any permissible way – physically search a worker’s body/clothing?

This should always be avoided at all costs. However, you can – with another management employee present in a private office – ask the employee to voluntarily empty his or her pockets. You can also ask the worker to empty out the contents of a briefcase, purse or wallet. If the person refuses to do as you ask – and you have no stated company policy in place about searches, you cannot insist that the employee do as you ask.

If you fear some serious theft has occurred, you should inform the employee of your concerns and contact the police. Should the police visit your office, you can allow them to conduct the physical search – if they determine that one is immediately necessary.

While this overview is not intended to be comprehensive, it should provide you with a basic understanding of why all workplace searches must be handled with great care.

Please feel free to contact one of our Murray Lobb attorneys to discuss this specific employment law problem – or any other — at your convenience. We are also available to help you with your general business and estate planning needs. And we can readily draft the contracts and documents that you regularly need.

The Key Terms That Should Be Included in Every Job Offer

When making job offers to new employees, it’s important to provide clear terms so you can easily onboard the new workers and give them a strong chance to succeed. While many of the terms you need to cover are quite basic, it’s necessary to include them since leaving any of them out can complicate your relationship with the new employees.

As the terms set forth below should indicate, most of them should be easy to understand. However, if you think the prospective employee may have any questions, be sure to provide the name and phone number of someone who can provide timely answers.

The following information is presented in the form of two lists. The first one provides the types of information often needed during the first week on the job – and the second list addresses more detailed employment concerns.

Always choose the most accurate words possible for these basic job offer terms

  • Job title or name of the position. Chances for promotions in your company and future starting salaries elsewhere in the future will often hinge on assigned job titles. Try to choose one that emphasizes the new worker’s level of experience or key skills.
  • Full- or part-time job. After noting this status, be sure to state whether the new person will just be working morning, afternoon or evening shifts. If the new employee must work a flexible schedule, always note that fact.
  • Exempt or non-exempt job status. This classification is very important since it determines how employees must be treated regarding overtime pay and other issues. An exempt employee does not get paid for overtime hours.
  • Supervisor’s name and job title. Often, this employee will handle or oversee all initial training that’s required and periodic job evaluations.
  • Basic duties assigned to the new hire. Although it’s best to name some of the key daily tasks the new employee must handle on a regular basis, any list of duties should always end with a statement that the list is not comprehensive – and is subject to change, based on the employer’s needs.
  • At-will employment status. This is commonly assigned to most hourly workers. Be sure to note that this means the worker can be dismissed without any advance notice or any stated reason. Employees can also leave at any time, without giving notice.
  • Base salary. This should be clearly stated, along with information about whether the person is being paid bi-weekly or monthly. You may also want to note that by accepting the position, the new hire has agreed to direct deposit – or whatever other form of payment you have told the employee is standard for the position.
  • Start date. After providing this information, you may also want to note if there will be a training or orientation session on the first day. If the job is a temporary one, you may or may not want to state when you believe it may end.
  • Current contingencies related to job offer. Whenever possible, try to complete all background criminal and reference checks before an employee’s first day. The same holds true for determining the person’s immigration status. However, since there may still be some work left to do, include a paragraph in the job offer noting that it’s contingent on all these checks producing satisfactory results. You also should make sure that they understand the offer is contingent upon signing a confidentiality agreement and/or non-compete agreement or intellectual property rights agreement if applicable.
  • Uniforms or special equipment that may be required and provided by the employer. It’s important to note if uniforms will be provided and if there’s any special equipment that the employee will be given during the first week – that must be returned upon his/her departure from the company.

Job terms related to employee benefits, company stock and other matters

  • General employee benefits. Clearly indicate how soon the new hire will be entitled to receive paid sick leave (if any) and vacation time during the first six months or year. Also, indicate when any company medical insurance coverage may begin – and how much money will be subtracted from each employee paycheck to cover it.
  • Stock shares. State the number of company stock shares, if any, that may be awarded, after a certain probationary period has been successfully completed. You can then indicate how and when additional shares can be earned.
  • Employee handbook and company standards. You should note that all disciplinary matters are based on the contents of the provided employee handbook. Any general or specific company policies or procedures unrelated to discipline should also be set forth in the handbook. It’s often wise to have new employees sign a form indicating that they have received copies of the handbook – or have been informed where to find it online.
  • State your company policy about the unauthorized use of confidential information. Be sure to tell your employees that they are not allowed to use confidential information they’ve been given by any third parties or prior employers while working for you.
  • Bonuses and commissions. It may be wise to have your attorney draw up a separate plan governing these terms – or to at least review the one you wish to give to your employees. Care must be taken to be sure all workers are treated the same regarding their chances of receiving these types of important work incentives.
  • Specific terms related to non-disclosure of any of your company’s proprietary information. It’s always wise to have your Houston employment law attorney draft all such agreements to be sure all new employees know when they start that they cannot later provide this type of information to others.
  • Non-compete terms. These usually state how long an employee must wait after leaving your company before doing any work that directly competes with your business. Check

with your Houston employment law attorney to see how you should summarize this information. It will normally be contained in a separate non-compete agreement that the employee must sign on his/her first day of work.

The two lists above (which are normally combined) will usually meet the needs of most businesses. However, depending on your company’s unique situation, you may want to add terms related to the following topics.

  • Specific work location. If you employ people in multiple cities – or in different locations within the same city — you might want to note this information to avoid confusion.
  • Proper terms of acceptance. You can indicate how the prospective new hire should respond to the offer and by what date.
  • Pre-employment medical tests or exams. Be sure to provide all necessary details and note when these must be completed.

Please feel free to call one of our Murray Lobb attorneys about any of your employment law, general business or estate planning needs. We are also available to draft the various contracts and other documents you need to use on a regular basis.

Creating Final, End-of-Life Instructions to Help Your Spouse

Regardless of whether you’re doing this for your spouse or another family member, it’s important to leave clear instructions on how you want your funeral and final financial matters handled. Since some of these issues can directly impact your heirs and beneficiaries, it’s best to meet with your lawyer so that every important topic is carefully addressed.

Prior to meeting with your Houston estate planning attorney, please gather together and review all the documents related to the topics referenced below. Once you arrive at your legal appointment, you and your lawyer can then discuss each of these topics in greater detail. The suggestions shared below are mainly based on ABA (American Bar Association) materials and a few online resources.

Addressing these financial matters can lessen your spouse’s (or executor’s) burdens

  • Pre-pay the costs of your burial/cremation – if you can afford to do so. Whenever possible, choose the simplest arrangements. You might want to note, in writing, that your surviving family members don’t need to prove their love by spending lavishly on either a funeral or memorial service. If you cannot pre-pay for everything, you should also address the topics noted in the next paragraph.

As your lawyer will remind you, funeral directors are normally required to provide you with a printed copy of all their costs. These lists can be useful for price-shopping. Also, warn your survivors to avoid letting funeral parlor employees who use guilt-inducing tactics. And if you’ve selected cremation, be sure that all costs involved are provided to your spouse ahead of time. Far too often, “hidden” costs are added later.

  • Create some type of emergency fund. Survivors often need extra money to cover unexpected last expenses If you haven’t converted a bank account to a POD (payable on death) status, do so now. Your lawyer can explain how this works in greater detail. Explain where such funds are being held in your letter of final instructions. While insurance policies usually pay off quickly to most beneficiaries, odd events can delay this process.
  • Make a list of all outstanding debts you know about, including all credit card accounts. Be sure to attach a list of all your assets and their present value. Also, state where all your banking and investment accounts are located, along with any IRAs.
  • Indicate where all important personal and family documents are kept, including your Will. Be sure to include all family birth certificates, your marriage license, any divorce decrees, adoption papers – or any prenuptial agreement. Likewise, note where you’ve put all insurance policies, business, bank and financial records – and 401k documents. Copies of all current pension and/or other benefit agreements should also be noted and their locations described.

And don’t forget to note where any house deeds, car titles or paperwork regarding vehicles still being paid off are located.

  • Ask your lawyer to help you create a “precatory” list of personal items. Stated simply, this is a list of personal possessions that you name and set aside for specific family members or others. These usually only have sentimental (and not financial) value.

While a precatory list isn’t often legally binding, it can help prevent dishonest family members from keeping all special keepsakes for themselves. As a recent AARP article noted, many families include individuals who are intent on defrauding everyone out of their fair share of cherished belongings – or any inheritance.

  • Be sure this final letter of instructions states how all your business interests and artistic property are to be handled. If you’re still a co-owner in a business, this may already be dictated by a contractual agreement. Take the time to review this document with your lawyer, so you can accurately state in your letter what business or control options might survive you. It’s always best to resolve such matters in writing, well before your death.

If you’re a celebrated artist of any kind, you should make proper arrangements for specific people – or perhaps an institution like an academic library or museum — to take formal possession, ownership and control of your artwork. This must be done in full keeping with all applicable copyright laws. (Try to fully explain these rights to your intended beneficiaries, long before you pass away).

Additional instructions (recommended by the American Bar Association)

The ABA suggests keeping a copy of your letter of final instructions with your Will and giving a copy of it to your lawyer. Be sure to ask your attorney to provide a copy of this letter to your surviving spouse (or other family members) immediately upon your death – in case they have lost their copy.

  • Note any specific information you want included in your obituary. This can include the naming of a charity you would like to have people give money to on your behalf. You can also ask that this money be given directly to your church or other house of worship.
  • Note where your safe deposit box is and place the key to it in the envelope with the letter, noting that it’s in there. You should also list your lawyer’s name and phone number, as well as the name and phone number of your executor.
  • Your current social security card and copies of all insurance policies. State where these are currently kept. Also, let your spouse or executor know if there may be a need for your family to renegotiate any aspect of their medical insurance coverage with your most recent employer after your death.
  • Contact information for key individuals. Create and attach a complete list setting forth the names, current addresses and phone numbers of all beneficiaries named in your estate documents, 401k plan and insurance policies.
  • Note the location of the last seven years of your tax returns.
  • Grief counseling advice. You might want to leave the specific name of a clinic or its therapists who might be able to offer counseling to your spouse. You can also suggest that your spouse check with the AARP to see whether that group currently sponsors any local support groups for recent widows/widowers.

Please feel free to schedule an appointment with one of our Murray Lobb attorneys so we can help you draft a final letter of instructions for your spouse, another relative — or your executor.