An employee recently argued that he improperly was terminated based on his employer's Google search relating to his prior work background. Should such an argument stick? Well, it did not in this particular case, Mullins v. Department of Commerce, just decided on a non-precedential basis by the United States Court of Appeals for the Federal Circuit.
Rather than creating any sort of bright line rule, however, the Federal Circuit found that there were ample additional and independent reasons for the termination. This begs the ultimate question, which I will touch on further below. First, let's get to the facts of this case.
In the case at hand, the Department of Commerce removed the employee from his position of Facilities Engineering Technician at a National Ocean and Atmospheric Weather Forecast Office. He was removed because of his alleged misuse of a government vehicle, of official time, a government travel card, and alleged falsification of travel documents.
Indeed, in a 23-page notice of proposed removal, the employee's supervisor provided 78 supposed instances when the Department suspected misuse of a government vehicle by the employee. The notice also described 16 alleged occasions of misuse of official time.
Based on credit card records, the employee apparently traveled in a single day tens to hundreds of miles from his assigned duty location. The notice also detailed 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 Department about $6,500. The supervisor determined that the employee's position required trust. Because she perceived that the employee had violated that trust, 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 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 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, such unlawful 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. (And 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 various reasons unrelated to work, such as the expression of beliefs that are different than those of the employer 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.
Eric Sinrod is a partner in the San Francisco office of Duane Morris LLP where he focuses on litigation matters of various types, including information technology and intellectual property disputes.
His website is http://www.sinrodlaw.com and he can be reached at [email protected]. To receive a weekly email link to Mr. Sinrod's columns, please send an email to him with Subscribe in the Subject line.
This column is prepared and published for informational purposes only and 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.