Perspective: From googling to firing?

An employee recently argued that he was improperly terminated based on his employer's Google search relating to his prior work background. Should such an argument stick?

Well, it did not in the case of Mullins v. Department of Commerce, decided earlier this month (PDF) by the U.S. Court of Appeals for the Federal Circuit. However, rather than creating any sort of bright-line rule, the Federal Circuit Court found that there were ample, independent reasons for the termination. This begs a bigger question, which I will touch on below. First, let's get to the facts of this case.

The U.S. Department of Commerce removed the employee, David M. Mullins, from his position of facilities engineering technician at the National Oceanic and Atmospheric Administration's Weather Forecast Office in Indianapolis. He was removed because of his alleged misuse of a government vehicle, official time and a government-issued credit card. He also allegedly falsified travel documents.

Indeed, in a 23-page notice of proposed removal, the employee's supervisor provided 78 instances when the Commerce Department suspected misuse of a government vehicle by the employee. The notice also described 16 alleged occasions of misuse of official time.

What if an employer wants to terminate an employee simply based on information it learns as a result of a Google or equivalent search? The answer here may be a classic lawyer's answer: it depends.

Based on credit card records, the employee apparently traveled in a single day anywhere from tens to hundreds of miles from his assigned duty location. The notice also included details alleging four instances of unauthorized cash withdrawals on a government-issued travel credit card, and five falsifications of official travel documents.

All of this alleged misconduct cost the Commerce Department about $6,400. The supervisor determined that the employee's position required trust. Because she perceived that that trust had been violated, she authorized his removal from the position.

The employee argued that "his guaranteed right to fundamental fairness was seriously violated" when his supervisor used Google to search his name and learned that he previously had been removed from a position by the U.S. Air Force. He was concerned that she improperly considered this information.

However, the court disagreed, in part because it found that the employee himself told his supervisor that he had been subject to employment proceedings before.

Here, the employee's due process rights were not infringed because those prior proceedings did not affect the removal decision by his supervisor, according to the court. In fact, prior to the Google search, his supervisor already had outlined 102 specifications to support the charges of misuse and misconduct against him. Accordingly, the court found that his removal by his supervisor should be affirmed.

Still, what if an employer wants to terminate an employee simply based on information it learns as a result of a Google or equivalent search? The answer here may be a classic lawyer's answer: it depends.

If the employer hunts down information on the Internet as a pretext for firing an employee for a truly improper motive--for example, discrimination based on race, gender or age--such conduct would not be embraced by the law.

On the other hand, if an employer learned on the Internet that an employee was engaging in conduct harmful to the employer, such as disclosing company trade secrets or defaming the company, that may be grounds for termination. (Remember, many employees are hired at-will, meaning they can be terminated for any or no reason, at least technically.)

But there will be gray areas. Should a company be permitted to use the results of Internet fishing expeditions as grounds to terminate employees for reasons unrelated to work? For example, what about for the expression of beliefs different from those of the employer and that are unrelated to the mission of the company, especially with respect to at-will employees?

The law will continue to unfold to try to answer such questions.

Biography
Eric J. Sinrod is a partner in the San Francisco office of Duane Morris. His focus includes information technology and intellectual-property disputes. To receive his weekly columns, send an e-mail to [e-mail] with "Subscribe" in the subject line. This column is prepared and published for informational purposes only, and it should not be construed as legal advice. The views expressed in this column are those of the author and do not necessarily reflect the views of the author's law firm or its individual partners.

More Perspectives

[rcrusoe]

If the data about your employee is verifiable

then show him the door. Just don't tell him Google tipped you to the facts. ;)

"Privacy is dead, deal with it,? - Scott McNealy

[esblake]

Is this really news?

Sounds like this idiot hung himself! Would it really matter what a google search found? Don't think so.

Google employees, everyone is subject to review regardless of when or how. If you have done something you don't want others to know about, you run the risk of someone finding it.

Recently passing an extensive background check myself it is more important to be honest about what is in your past as apposed to hiding it.

Why is everyone surprised that people are being held to their actions?

[Hardrada]

because one mistake shouldn't follow you around

Just because it fits in this case doesn't mean it should be acceptable practice. I'm not a machine but Americans increasingly seem to see employees as just economic tools of the employers. The country's fast forgetting that we're all human beings and employment should involve mutual respect. Of course, when the employer can fire people "for no reason," that's not going to happen.

[williamhanisch]

economic free speech

re: "For example, what about for the expression of beliefs different
from those of the employer and that are unrelated to the mission of
the company, especially with respect to at-will employees?"

i'm no free speech purist, but protection from prosecution means
little if you can't get a job. our free speech needs to be protected
economically, not just politically.

[Al E. Gator]

If this is the precedent...

Sheeze... one problem with governmental employees is the lack of
accountability due to byzantine beauacracy... I am beginning to
think that most everyone employed by government could not cut it
in the real world... from the top dog to the bottom...

[mdulcey]

This case isn't an interesting one...

The big controversy about employers using Google to look up their workers have been cases where the employer found things they did not approve of, but which were not related to the work behavior of the employee. The employee's defense appears to have been an attempt to link this case to that issue. But it (rightly) failed, because the worker DOES appear to have been guilty of improper behavior on the job. Here the Google search was used only to discover evidence of past employee malfeasance, and the data gathered was not used as the primary cause for dismissal.

The big issue is the question of whether employers are entitled to consider the activities of their employees OUTSIDE work. Historical precedent says that they are in most cases, except for specific legally protected categories. (For example, you might find information about an employee's racial background, but you could not dismiss the employee on that basis.) So far the courts seem to agree. Well before the Internet, we saw employers dismiss people for causes such as appearing in Playboy.

However, as we move toward a world with no privacy, I believe that we will see a shift toward the attitude that employers are NOT entitled to consider behavior outside work. The change will take a while to take hold, because the difference in attitude appears to be generational. Until the tipping point for the attitude shift happens, we will continue to see cases where older employers from pre-Internet generations attempt to fire younger employees who grew up with YouTube and MySpace. There will probably be further controversy about whether there are specific job categories (teachers? nuclear power plant workers?) where employers are entitled to dismiss people for non-work behavior, even if it is protected in the general case.

[oregonnerd]

'rights'

With the recently-announced story regarding a hard time limit on discrimination from the employee (and since I live in one of the states where hiring and termination are indeed 'at will'--Oregon), I would say that it is highly unlikely in most states that without highly-paid representation...that a firing over a Google search (or a MySpace gander) would do anything but stick. Badly. As in also affecting future employment.
--Glenn