Sniffer Dogs and the Workplace?

Did you see the Supreme Court of Canada decision last month dealing with the use of police drug sniffing dogs at a high school? It reminded me of a case I had once when I practiced law in which an employer had requested the RCMP conduct a sniffer dog search of employee lockers because it suspected some employees might be selling drugs at the workplace. When the dog sniffed something funny, the employer opened an employee’s locker, found a marijuana joint, and terminated the employee. My case settled, but do you think that an employer should be able to have the police do this? Think of the police dog as an officer with “x-ray” vision. Should the superhero cop be permitted to look through doors and fabric to search places that a human officer would need a warrant to search?
A key issue in workplace disputes would be whether employees have a reasonable expectation of privacy at work. Do employees have an expectation of privacy in their workplace lockers? In their backpacks they store at work? There is a good body of arbitration case law dealing with the issue of when a unionized employer can search employees. The topic is canvassed thoroughly in “Brown and Beatty” (Canadian Labour Arbitration), Section 7:3625 Personal Privacy. As a general rule, arbitrators have ruled that there exists a general right to privacy at work, and that an employer must be able to show some good reason to justify infringing upon that privacy. Random sweeps of workplace lockers or personal bags absent evidence of a particular problem at the workplace (such as drug use, theft, etc.) are usually not permitted.
Here’s a tougher question: How would employees in non-union workplaces challenge an employer who insists on conducting physical, locker, or bag searches?