Can an Employee Be Terminated for Simply Surfing the Internet?

By John A Gallagher

We are seeing a major, major uptick in employees being terminated because they surfed the Internet at work. Indeed, as this article makes clear, monitoring Internet usage at work is the newest HR focus.

Why are employers doing this?

To get rid of employees they do not want anymore for (alleged) “legitimate, non-discriminatory, non-retaliatory” reasons.

Why do employers care about having a” legitimate, non-discriminatory, non-retaliatory” reason for firing an employee?

Engaging in “willful misconduct”

First, all many employers nowadays have Internet policies that essentially forbid employees from using work computers to surf the Internet “for personal reasons.” So, if they can prove that the employee violated that rule, they can assert the employee engaged in “willful misconduct,” and is therefore disqualified from getting unemployment compensation benefits.

Second, employers who have “legitimate, non-discriminatory” reasons for firing an employee have a much easier time defeating discrimination and retaliation claims. It is easier to argue that discrimination or retaliation was not the root cause for the termination when a work rule was “clearly violated.”

Here is the problem for employers:

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  • Not a good “legitimate, non-discriminatory” reason — One of my favorite ways to prove that an employer was motivated by a discriminatory or retaliatory motive is to show that, even though the employer was aware that other people engaged in similar conduct, only my client was “singled out” and terminated. Everyone surfs the Internet at work, it seems, so firing someone for that reason really makes it seem as though the employee was “singled out,” thereby making it easier for employee-side attorneys like me to prove a discrimination or retaliation case by simply showing that “everyone does it, and the company knows it.”
  • Not strong evidence of willful misconduct: At unemployment hearings, referees are seeing this reason come up so commonly that they are in many cases very suspicious as to whether it is the “true reason” for the termination. This of course makes it easier to win the unemployment hearing. Moreover, an employee will not be deemed to have engaged in willful misconduct by violating a work rule if the employee can demonstrate that the rule was never enforced (i.e. that everyone does it). A little good, clear testimony can develop such evidence.

Advice for using the Net at work

The bottom line?

The best advice is to stay off the Internet except on your lunch break. Of course, stay away from pornography and the like, and you probably don’t want to spend a great deal of time on a given site (such as your Fantasy Baseball site). Also, understand that anything you say or do on the company’s computer may be examined at any time by your employer.

If you follow all of these guidelines, and are nevertheless fired, you probably want to speak with a qualified employment lawyer about your unemployment claim, and maybe a lawsuit as well (if the facts suggest unlawful discrimination or retaliation were the “real reason” that you were fired).

This was originally published on attorney John A. Gallagher’s Employment Law 101 blog.

John A. Gallagher, Esquire, is the president of the Gallagher Law Group, P.C., a Philadelphia-area law firm concentrating its practice almost exclusively on representing individuals with workplace issues. After 15 years of representing major corporations in employment litigation, John Gallagher opened his firm in 2006, and since that time has represented only employees. Contact him at jag@johnagallagher.com.

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5 Comments on “Can an Employee Be Terminated for Simply Surfing the Internet?

  1. The newest HR focus???

    And we wonder why we we are not taken serious. With all the workforce related issues facing organizations today, how could anyone get so distracted with “internet use”

  2. Great point, Ron. Makes you wonder why a company would even allow employees to have Internet access, period, if they are going to micromanage people like this.

    I once worked for a guy who really never used the Internet but was convinced that anyone doing so at work was goofing off and workers meant that people didn’t stick around working for him very long, and the constant employee churn was terribly costly and debilitating to the entire operation.

    My philosophy is that if you treat people like adults they will generally act like adults. Yes, some will take advantage of things, but the smart manager or HR pro deals with those situations individually rather than imposing terribly restrictive rules and requirements on everyone else.

  3. I think the trend has less to do with monitoring internet usage and more about brand control. The by product is they are using the info as grounds for dismissal.

    John – I am interested in your opinion on this. It would seem an employer would be much better off giving the “at will” no reason at all for termination than drumming up some thin veil of misconduct.

    Has the HR profession become so compliance oriented – they always needs to terminate for cause. Or maybe they do it to avoid paying unemployment? Either way – I think its chicken scratch.

    1. Oh, without question I “win” many cases because employers give bogus reasons for a termination. I believe it is a much better approach for employers to simply terminate unwanted employees who have not truly engaged in “willful misconduct” by simply letting them go for poor performance, or for no stated reason other than simply saying “It’s time to part ways,” and thereafter not contesting unemployment benefits with a bogus argument that heightens employee’s suspicions, and is easily proven to be false, or highly dubious, by employee-rights litigators such as me. “Papering” an employee’s file with things that won’t withstand scrutinty is a bad idea, in my view. The frequent desire to avoid paying unemployment, which in my mind is a frequent cause for such “papering, actually leads to more litigation in courts than would otherwise occur. In short, Newmaed, I think you are spot on.

  4. It’s sad to know that some employers would do this kind of tactic and trying to make use of monitoring employee internet usage with a different purpose in mind. I guess your following statement can very well be something that employees should make sure of to avoid having further trouble with your employer:
    “The best advice is to stay off the Internet except on your lunch break. Of course, stay away from pornography and the like, and you probably don’t want to spend a great deal of time on a given site (such as your Fantasy Baseball site). Also, understand that anything you say or do on the company’s computer may be examined at any time by your employer.”

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