Beginning July 23, 2023, the ability of employers to search employees’ privately owned vehicles, even when located on the employer’s property, will be severely limited.

Washington has just enacted a new statute that generally prohibits an employer from searching the privately owned vehicles of its employees that are located in the employer’s parking lots or garages, or on any access roads leading to the employer’s parking lots or garages.

This new statute also explicitly provides that employees are permitted to have any private property they own in their vehicle unless possession of that property is otherwise unlawful.

Employers may not require an employee or applicant to waive their right to be free from a search by the employer or to have lawfully possessed private property in their personal vehicle as a condition of employment.

There are some specific exceptions to the new prohibitions. The provisions discussed above do not apply:

• To any vehicle owned or leased by the employer.
• When the employer requires or authorizes an employee to use their personal vehicle for work-related activities and the employer needs to inspect the vehicle to ensure that it is suited to conducting the work-related activities. While the statute does not specify any limits on this right to search, it will likely be limited to those areas of the vehicle directly related to it being suited to conducting the work-related activity.
• To lawful searches by law enforcement.
• When a reasonable person would believe that accessing an employee’s private vehicle is necessary to prevent an immediate threat to human health, life, or safety.
• When an employee consents to the search by the employer, the employer’s agent, or a private security guard, based on probable cause that the employee unlawfully possesses:
  • Employer property, or
  • A controlled substance in violation of both federal law and the employer’s written policies prohibiting drug use.
• The employee’s consent must be given immediately prior to the search, and the employer may not require that the employee waive consent as a condition of employment.
• The employee has the right to select a witness to be present during the search.
• To security inspections on vehicles on state and federal military installations and facilities.
• To vehicles located on state correctional institution premises.
• To specific employer areas subject to searches under state or federal law.

Employers are prohibited from taking any adverse action against an employee for exercising any right under this new statute, including not any of the following adverse actions:

• Withholding wages or any other amounts owed to the employee.
• Reducing the employee’s rate of pay.
• Terminating, suspending, demoting, or denying a promotion.
• Reducing the number of work hours for which the employee is scheduled or altering the employee’s preexisting work schedule.
• Threatening to take or taking any action based upon the immigration status of an employee or the employee’s family member.

Key Takeways: Employers who currently have policies that reserve the right to search the private vehicles of their employees should revise those policies and corresponding practices to be consistent with these new employee rights. Additionally, all necessary personnel should be educated on these limitations. Employers who do not currently have any policy regarding searching employee vehicles might want to consider whether to adopt such a policy that is consistent with these new requirements.