Don’t get pulled over in New Mexico.
David Eckert was pulled over in Deming, New Mexico for failing to yield as he exited a parking lot. A police dog allegedly sensed the presence of drugs. In addition, according to police, Mr. Eckert appeared to be clenching his buttocks. As a result of these “compelling” facts, the police took Mr. Eckert to the hospital and forced him to submit to three enemas and a colonoscopy. No drugs were discovered.
The city and county agreed to settle the case against them for $1.6 million. The lawsuit is continuing against the hospital and the doctors who performed the examination.
Ouch!
So why is this in an employment blog? Employees don’t lose all privacy rights in the workplace. The validity of a search under California privacy laws is similar to the analysis for search and seizure law under the federal Constitution’s 4th Amendment. While workplace searches are permissible, they should be based on credible facts. For example, instead of saying the employee appeared to be impaired, document the specific facts giving rise to the search — the employee stumbled when he walked, his gait was uneven, he spoke with slurred speech, and had the odor of alcohol on his breah.
Moreover, searches or inspections should be reasonable in scope and duration. For example, if you were looking for a bottle of alcohol, you would not examine his computer. You would confine your search to those places where the contraband, or evidence of the contraband, may be found.
The city and county learned the hard way. Imagine paying $1.6 million for three enemas and a colonoscopy all because an officer claimed Mr. Eckert appeared to clench his buttocks. That is an expensive medical procedure.