Vermont: Employer’s Decision to Fire Worker for Excessive Internet Use Was Not “Mere Pretext”

An employer’s decision to terminate an employee for excessive non-business Internet use during working hours was not a “mere pretext” where the employer requested a “Websense” report—a technician’s special report showing detailed information about the worker’s Internet use during a specified time period—prior to the worker’s work-related injury and the worker had previously been disciplined for frequently accessing non-business sites during his shift in violation of the employer’s written Internet usage policy. The Supreme Court of Vermont agreed that the worker had established a prima facie case of retaliation; he was terminated shortly after he returned to work following his recovery from surgery. The Court indicated, however, that the employer had articulated a legitimate, non-discriminatory reason for the termination. The Websense report indicated the worker had 41,750 Internet hits during the relevant period, an amount that was more than double the Internet usage that the employer generally considered excessive. The burden shifted back to the worker to show that the employer’s reason for the termination was not true. He had offered nothing but speculation. The Court added that another worker, who had not been injured, was terminated for the same reason.

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is the co-author of Larson’s Workers’ Compensation Law (LexisNexis).

LexisNexis Online Subscribers: Citations below link to Lexis Advance. Bracketed citations link to lexis.com.

See Gauthier v. Keurig Green Mountain, Inc., 2015 VT 108, 2015 Vt. LEXIS 83 (Aug. 14, 2015) [2015 VT 108, 2015 Vt. LEXIS 83 (Aug. 14, 2015)]

See generally Larson’s Workers’ Compensation Law, § 104.07 [104.07]

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law.

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