Chenkin V. BELLEVUE: A Case Study

The ACME Company manufactures various electronic devices for a variety of well-known brands. Many of these products are fully assembled and stored at the plant awaiting shipment to the vendors, including the expensive components used to manufacture these devices. There has been an alarming problem that significant inventory shortages have been occurring for the assembled devices as well as the stock components used to manufacture the devices resulting in substantial company losses as a result of extensive employee theft. Through discussions with private security leaders from other organizations, about the effectiveness of an administrative search program as an option to address internal theft, a meeting is called by the security team and other company directorate heads, to include the organization’s legal counsel, to discuss possible security options to thwart the reported losses. This meeting centers on the fact that in private industry/business, some employers need to institute an administrative, non-coercive, care taking search programs to address real or perceived property losses at the hands of their employees. While there are issues that must be considered beyond the impact it might have

on employee morale. Everyone agreed there is a need to vet the legality of an administrative search under consideration, but also consider the potential for civil lawsuits filed against the company due to search protocols that are found by a court to be unreasonable, discriminatory, discourteous, unfair, highly intrusive, socially unacceptable conduct, or instituted for frivolous reasons will likely lead to successful claims by employees.
Employees' privacy rights in workplace searches, depend upon whether their employer is a public entity or a private employer. A public employee is afforded greater protection against workplace searches under the Fourth Amendment to the US Constitution, which provides that persons have the right to be secure in their "persons, houses, papers, and effects, against unreasonable searches and seizures." However, a private workplace search may violate the employee's constitutional right of privacy and apply to both public and private employers. (Workplace Searches Law & Legal Definition) All employees have a "reasonable expectation of privacy" which prevents employers from searching employees wherever and whenever the employer wishes. What is considered reasonable depends on factors like the type of employment, whether there is evidence of misconduct, and the scope of the search. (Midwest New Media) The two core types of legal challenges in the area of employee screening, include the violation of the rights of an individual, as guaranteed under the Fourth Amendment to the U.S. Constitution, or what is generally referred to as an unconstitutional search, and that any search conducted must be made on reasonable grounds. Including, injury to the person or to legal interests, resulting from the employee screening process. Even if these searches reveal that products are being stolen, the more security measures that are imposed, also means that more constitutional freedoms are restricted. When conducting searches, they must make sure it is reasonable by focusing on the degree of intrusiveness of the search procedure, the magnitude and frequency of the issue, and the alternatives to conducting a search.
In many cases, individuals are given either inadequate warning, or no warning at all, of the possibility of a search. They also do not know they have a right to refuse the search. In these cases, where the public interest is only moderate, the searches are degrading and non-effective, and many courts have concluded that such security measures are unreasonable. The facts of this case are discernibly different, though not overwhelming, the public's interest in controlling petty theft from public institutions is substantial and legitimate. Chenkin believes that the hospital's policy of subjecting the contents of his bag for inspection, upon his leaving the place of his employment, constitutes an invasion of his right of privacy. He relies principally upon the "lodestar" case, Katz v. United States, in which the Supreme Court held that the Fourth Amendment protects people, not places, from unreasonable intrusions into their privacy by the government. (District Court, S.D. New York)
In the case of Chenkin v. Bellevue, the search tactics adopted at Bellevue are reasonable. Edward Weinfeld states, the problem is fueled by Bellevue's sheer size. With hospital personnel concerned essentially with the ill and the maimed, as they should be, protection of hospital property becomes increasingly difficult. The aggregate value of property lost through theft in a facility as large as Bellevue, employing 5,600 people and utilized by countless visitors is likely to be substantial. According to the uncontested affidavits of hospital personnel, the measures adopted by Bellevue have served to alleviate the problem. In other words, the searches have been effective. (District Court, S.D. New York) The hospital's methods do not bring about the coercive and offensive impacts that could cause an issue of employee rights. Acme would be in good faith following the path that Bellevue sets to limit company products from being stolen. Chenkin was forewarned of the possibility of a search, and regularly used that same area to exit the building. He never denied that he had received notice of the regulation and was probably in denial even though employees were given notice months in advance. Chenkin also said that he had not been grabbed by the guards, and no one attempted either to touch or to search him. The hospital had issued a memorandum that was posted on elevators, corridors, walls and various departments and laboratories throughout the hospital announcing the adoption of the package control system. In the case of ACME if they follow under the same system of employees leaving the hospital or building with packages may be asked by the guards of the hospital's security division to permit inspection of those packages. The system requires all of the staff and employees carrying "shopping bags, brown paper bags, boxes, tote bags, wrapped packages, suitcases, etc." when leaving the hospital to use either of two designated exits. (District Court, S.D. New York)
As a practical matter, this court decision impacts security operations as a whole, and the results of this case can be used in any policy proposals that can be made to the corporate executives. When they create a policy they should follow a few main points that they have learned; all employees are subject to the policy for the purpose of monitoring work and compliance with safety rules. If a search is requested, it is not an accusation of theft or other wrongdoing, but merely part of an investigation. A search may include the employees, their work areas, lockers, vehicles if driven or parked on company property or used on company business and any other personal items; again, remember that an employee should never be touched without his or her consent! All of the above areas are subject to search at any time; if the company allows an employee to have a locker or other storage area; the company will both furnish the lock and keep a copy of the key or combination. Refusal to submit to a search may lead to immediate termination, or a lesser penalty, at the employer's option; however, prior to any termination, a clear and documentable or witnessed final warning should be given to help the employer in case an unemployment claim or lawsuit is filed. (SEARCHES AT WORK) Employers must be careful because employees can bring lawsuits claiming that an employer invaded their privacy by conducting an improper search. By having set standards and allowing employee notification of any searches, it allows a sense of expectation that the employees will be expecting the search especially if it pertains to personal items. In the case of the hospital, the guards did not hold Chenkin, they allowed him to leave and made a note of who refused the search. This allowed the company to follow through on its policies about search, and when he refused again, they were able to set a punishment to that employee.
The results of this case can be used to create policy proposals when implementing search protocols to maintain order and trust between employer and employee.

This explores the use and legalities of an administrative, non-coercive, care taking search program instituted by private security operatives to address real or perceived company losses resulting from significant internal theft. Judge Edward Weinfeld’s opinion in Chenkin v. BELLEVUE opens an idea of how to properly insert search protocols in a system, and gives an inside view of how to decide if the control system being implemented could be unconstitutional. This court decision directly impacts security operations because it sets a precedent for what protocols should be used to maintain a proper trust in the

workforce.