Washington employers may no longer unjustifiably search employees' privately owned vehicles located on work premises—including garages or parking lots (or on access roads leading thereto)—according to a new Washington law, effective July 23, 2023.
When Can Employers Search Employee Vehicles?
The statute provides limited exceptions to these new prohibitions. An employer may search the employee's vehicle:
- If the employer owns or leases the vehicle;
- When a reasonable employer would believe that accessing the vehicle is necessary to prevent an immediate threat for human health, life, or safety;
- When the employer allows the employee to use the employee's personal vehicle for work, and the employer needs to inspect the vehicle to ensure it is suitable for work-related activities; or
- When the employee consents to the search based on probable cause that the employee unlawfully possesses:
- Employer property; or
- controlled substances in violation of both federal law and the employer's policy prohibiting drug use.
However, for this exception to apply, the employee's consent must be given immediately prior to the search, and the employee has the right to select a witness to be present at the search.
Moreover, this new prohibition also does not apply to specific employer areas subject to searches under federal or state law, lawful searches by law enforcement, security inspections at military installations or facilities, or searches at correctional institutions.
Note that the new law does not limit an employer's right to search a vehicle owned by visitors and other non-employees on its property. It only applies to searches of employees' vehicles.
No Waiver or Retaliation
Employers may not require employees to waive their rights under this new law as a condition of new or continuing employment.
Employers must not retaliate against employees for exercising their rights or who refuse to have their personal vehicle searched. This includes taking or threatening any adverse actions against the employee.
What Does This Mean for Employers?
It is unclear how this law will be enforced, or what the penalties will be for violations. Even so, employers should:
- Consult legal counsel to carefully review their employee handbooks and other policies that address searching employee property. If employers do not have policies regarding searching employee property, they should consider putting these policies in place.
- Employers should also inform their managers and supervisors (and security team) of this new prohibition and its exceptions.
- Prior to conducting any search of an employee vehicle, employers are wise to review the limits of the law and consult with legal counsel.
Davis Wright Tremaine attorneys are happy to assist employers with any questions about this new law or its implementation.