A court of appeals for the federal circuit has upheld a ruling (PDF) against a man who sued his former employer for Googling his name before firing him. He had accused his former employer of participating in "ex parte" communications—off-the-record communications that are used to play a part in the final outcome of a decision—that ultimately affected the decision to fire him from his job. However, the three-judge panel ruled that an ex parte communication did not occur in the case when the employer used Google.
The man in question, David Mullins, was a government employee at the National Oceanic and Atmospheric Administration's Weather Forecast Office in Indianapolis, IN. Through a series of events, Mullins' employer found that he had misused his government vehicle and government funds for his own purposes—such as sleeping in his car and falsifying hotel documents to receive reimbursements, withdrawing unauthorized amounts of cash from the company card, traveling to destinations sometimes hundreds of miles away from where he was supposed to be (and using his company card to fill up on gas there), and spending company time to visit friends and/or his children. Mullins' supervisor provided a 23-page document listing 102 separate instances of misconduct.
Mullins did not put up much of a fight in response to these accusations. According to his appeal, Mullins admitted much of the wrongdoing and justified his falsified hotel documents by arguing that everyone in the organization included false information on travel documents at some time or another. The organization then appointed Valeria Capell to decide what to do following the accusations and Mullins' response. Capell found that Mullins cost the government over $6,000 and that he had violated the trust of the organization and the public, and therefore fired him.
However, Mullins took issue with a Google search that Capell performed just before authorizing his firing. During this Google search, Capell found that Mullins had been fired from his previous job at the Smithsonian Institution and had been removed from Federal Service by the Air Force. Mullins argued that his right to fundamental fairness was violated when Capell performed the search and that she committed perjury when she stated that the search did not influence her decision to fire him.
The judges ruled that not only did Capell's Google search not qualify as "ex parte" communications, it also played no part in her decision to fire Mullins since she received the long list of misconduct charges before conducting the search. "Indeed, the only 'communication' that occurred was when Mr. Mullins communicated with Ms. Capell to bring to her attention the negative information about himself 'by suggesting he had been subject to Board proceedings before.'" reads the ruling. "Ex parte communications are procedural defects only when they cause prejudice that undermines due process guarantees."
Does this decision give the green light for employers to start Googling their employees? Possibly. It appears in this particular case that the search only played a tangential part to the overall, much more serious evidence against the employee. However, the judges' decision does seem to say that the Google search was no big deal, leaving the question of whether Capell's decision would have been different had the search been conducted before finding out about Mullins' other infractions unanswered.
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