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From googling to firing?

Attorney Eric J. Sinrod examines the case of an employee who says he was dismissed because of an online search into his work history.

    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.