Employee Discipline: Vermont
Federal law and guidance on this subject should be reviewed together with this section.
Author: Heather Rider Hammond, Gravel & Shea PC
- Employee discipline is an unpleasant, but necessary part of life in the workforce. See Statutory Claims That Can Arise Out of Disciplining Employees.
- Failure to discipline employees in a fair and consistent manner can give rise to statutory claims under Vermont law. See Statutory Claims That Can Arise Out of Disciplining Employees.
- Documentation is critical in enabling employers to demonstrate that they have disciplined employees in a nondiscriminatory, nonretaliatory actions taken toward employees. See Vermont Employment Antidiscrimination and Anti-Retaliation Laws.
- Vermont employers should evaluate and discipline an employee with a disability in the same manner they would evaluate and discipline any other employee. See Disciplining Employees With Disabilities.
- Any measurement of an employee's performance that is based on attendance, quotas, sales or the like must be measured with the protected leave period being value neutral. See Disability or Family and Medical Leave Issues.
- Vermont has statutory provisions that protect employees from forced polygraph or drug tests. See Privacy Issues.
- Employers can discipline employees for breaching a duty of loyalty or confidentiality. See Duty of Confidentiality, Duty of Loyalty and Trade Secrets.
Statutory Claims That Can Arise Out of Disciplining Employees
Although disciplining employees for workplace behavior or performance can be unpleasant, it is a necessary component in a productive workforce. Employees who see others "getting away with" poor performance or behavior can feel demoralized.
On the other hand, when an employee's poor performance has gotten so bad that the supervisor wants to terminate him or her immediately, a lack of evidence that there has been any discipline along the way can create credibility problems if that employee brings a charge of discrimination.
Employers should be aware of certain Vermont statutes when disciplining employees.
Vermont Employment Antidiscrimination and Anti-Retaliation Laws
Employers should also be mindful of potential claims for retaliation in the discipline context. An employee cannot be disciplined for engaging in "protected activities," such as filing a workers' compensation claim, participating in an investigation by Vermont's Occupational Safety and Health Administration (VOSHA) or complaining about potential discrimination.
Vermont Fair Employment Practices Act (VFEPA)
The Vermont Fair Employment Practices Act (VFEPA) prohibits discrimination on the basis of the following protected categories:
- National origin;
- Sexual orientation;
- Gender identity;
- Place of birth;
- Crime victim status;
- HIV status;
- Military or veteran status; or
- Physical or mental condition.
VFEPA also prohibits retaliation against an employee who has lodged a complaint of discriminatory acts or practices, or has cooperated in an investigation of discriminatory acts or practices. +21 V.S.A. § 495(a)(5) ; see EEO - Retaliation: Vermont.
Other Retaliation Protections
Vermont law contains a number of additional statutory retaliation protections.
- Vermont law prohibits discrimination based on an employee's or an applicant's assertion of a workers' compensation claim for benefits. +21 V.S.A. § 710 ; see Risk Management - Health, Safety, Security > Workers' Compensation: Vermont.
- Employers may not retaliate against an employee who has filed a complaint with, or who has participated in a proceeding by, Vermont's Occupational Safety and Health Administration (VOSHA). +21 V.S.A. § 231 ; see Risk Management - Health, Safety, Security > HR and Workplace Safety (OSHA Compliance): Vermont.
- Employers may not retaliate against an employee who reports or who participates in a proceeding under the Polygraph Protection Act. +21 V.S.A. § 494d.
- Vermont law gives special whistleblower status to employees who work in hospitals or nursing homes. +21 V.S.A. § 507.
- State employees have whistleblower protections from actions such as coercion, discharge or other discrimination based on activities protected under the State Employee Labor Relations Act. +3 V.S.A. § 961. Judiciary employees enjoy similar protections. +3 V.S.A. § 1026. As a protection against retaliation, the identity of public employee whistleblowers who have made reports regarding waste, fraud, abuse of authority or a threat to health or safety is not subject to disclosure under the Public Records Act. +1 V.S.A. § 317(c); +2013 Bill Text VT H.B. 863.
- Vermont law prohibits an employer from retaliating against an employee for exercising his or her rights under the Vermont Parental and Family Leave Act. +21 V.S.A. § 473.
- Vermont law protects employees making requests for flexible work arrangements, including changes in the number of days or hours worked, changes in arrival or departure times, telecommuting or job sharing. See Managing Employees in Special Situations; see also +21 V.S.A. § 309.
- Vermont law addressing equal pay and employment discrimination protects employees who ask co-workers what they are paid. +21 V.S.A. § 495.
- Vermont law protects nursing mothers in the workplace from retaliation. +21 V.S.A. § 305.
These statutes can be implicated in various ways. Vermont law prohibits employers from taking adverse actions against employees based on any of the above-referenced protected activities. An employer's best defense against a claim that an employee is being "singled out" for discipline because of his or her membership in a protected class or based on engaging in a legally protected activity involves demonstrating that other employees who behaved badly or performed poorly were disciplined in a similar way.
Disability or Family and Medical Leave Issues
Disciplining Employees With Disabilities
Employers should evaluate and discipline an employee with a disability in the same way they evaluate and discipline any other employee's performance or behavior. There is no requirement under Vermont law that discipline be eliminated or lessened due to an employee's disability.
If an employee is disciplined, and then informs the employer that the reason for the discipline was due to a disability, the employer should not change the disciplinary decision. Instead, the employer should work with the employee on a going-forward basis to determine whether there is a reasonable accommodation available.
Disciplining Employees Who Have Taken Family and Medical Leave
The Vermont Parental and Family Leave Law (VPFLL) covers employers who employ 15 or more employees. 21 V.S.A. § 470 to § 474; see Employee Leaves > FMLA: Vermont.
Often, supervisors and human resource professionals must decide whether to discipline an employee who has recently taken family or medical leave.
Employers should keep in mind the following:
- An employee who is eligible for and takes family or medical leave under Vermont law is entitled to his or her job back at the conclusion of the protected leave;
- Any measurement of an employee's performance that is based on attendance, quotas, sales or the like must be measured with the protected leave period being value neutral. In other words, employers should look at the time period before and after the leave to determine whether the employee has met his or her quota or attendance requirements. No discipline should occur that refers to or relies upon the employee's absence from work as its basis; and
- Employees have the right to take intermittent family or medical leave, if they are eligible and if the leave is medically necessary. Despite the fact that intermittent leave may cause some disruption in the workplace, employers considering whether to discipline one of these employees should take care to assess their performance fairly and objectively, despite their periodic (or, perhaps, frequent) absences from work.
Disciplining Employees Under Earned Sick Time Law
Vermont law prohibits an employer from retaliating against an employee for exercising his or her rights under the state earned sick time law. +2015 Bill Text VT H.B. 187; see Other Leaves: Vermont. The law applies to all employers doing business or operating in Vermont (effective for employers with more than five employees on January 1, 2017; employers with five or fewer employees on January 1, 2018).
Employers are prohibited from terminating or otherwise retaliating against an employee because:
- The employee lodged a complaint of a violation of the law;
- The employee cooperated with the Labor Commissioner in an investigation of a violation of the law; or
- The employer believes the employee may lodge a complaint or cooperate in an investigation.
An employer may discipline an employee for using earned sick time for a non-covered purpose. Vt. Earned Sick Time Rules, § 11.
Vermont's Polygraph Protection Act generally prohibits polygraph tests as a condition of employment or continued employment, except in the following professions:
- Certain public officials, such as law enforcement officials in the following departments:
- Department of public safety;
- Department of motor vehicles;
- Department of fish and wildlife;
- Department of liquor control and the liquor control board; and
- Municipal police officers and county sheriffs;
- Any employer whose primary business is the wholesale or retail sale of precious metals or gems, and jewelry or items made from precious metals or gems;
- Any employer whose business includes the manufacture or sale (wholesale or retail) of regulated drugs, if the employee actually comes into contact with the regulated drug; and
- Any employer authorized or required under federal law or regulations to administer polygraph tests to its employees.
Employers may not discharge, discipline or otherwise retaliate against employees for filing a complaint related to violations of the Polygraph Protection Act. +21 V.S.A. § 494d.
Employers can only order a drug test for an employee whom the employer has probable cause to believe is using or is under the influence of a drug on the job. +21 V.S.A. § 513. Otherwise, Vermont law prohibits employers from requiring or administering a drug test as a condition of employment or promotion.
Vermont employers may only conduct random or organization-wide tests if those tests are required by federal law or regulation. +21 V.S.A. § 513(b).
If an employer has probable cause to require a drug test and the drug test is positive, the employee shall not be terminated if he or she agrees to participate in and successfully completes an employee assistance program. The employee may, however, be suspended for the period of time necessary to complete the program.
The employee may then be terminated if, after completion of the program, the employer again has probable cause to believe the employee is still using drugs, and the employee has another positive drug test.
Federal law continues to prohibit use of marijuana. Marijuana, or cannabis, is scheduled as a Schedule I controlled substance, which means that it has no acceptable medical use. Therefore, an employer:
- Does not have to accommodate marijuana use, including ingestion, possession or intoxication, in the workplace; and
- May take adverse action, including discipline up to and including termination, against an employee who is under the influence of marijuana at work.
Vermont law permits the use of marijuana for medical and recreational purposes. +2017 Bill Text VT H.B. 511. Under the law, a person 21 years or age or older who possesses the following may not be penalized by the state or its political subdivisions:
- Up to one ounce of marijuana;
- Up to five grams of hashish;
- Up to two mature marijuana plants;
- Up to four immature marijuana plants; and
- Paraphernalia for marijuana.
However, the law prohibits a person from consuming marijuana in a public place (e.g., street, alley, park, public building) and in any place where smoking of tobacco products or use of tobacco substitutes is prohibited. See Employee Health: Vermont.
In addition, the law does not:
- Require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana in the workplace;
- Prevent an employer from adopting a policy that prohibits the use of marijuana in the workplace;
- Create a cause of action against an employer that discharges an employee for violating a policy that restricts or prohibits the use of marijuana by employees; or
- Prevent an employer from prohibiting or otherwise regulating the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana on the employer's premises.
An employer should continue to follow applicable drug testing and drug-free policies and document any facts that would show impairment while at work, such as those relating to dexterity or appearance.
Duty of Confidentiality, Duty of Loyalty and Trade Secrets
Vermont has adopted the Uniform Trade Secrets Act. 9 V.S.A. §§ 4601 to 4609.
Employees have a duty of loyalty to their employers, and this includes not disclosing their employer's confidential information to others. Omega Optical v. Chroma Tech. Corp., +174 Vt. 10 (2002). They can, and should, be disciplined for doing so.
This duty of confidentiality arises only as to information that the employee knew or should have known was secret. Employers can enforce this duty by doing the following:
- Including language in their handbook that emphasizes employees' obligations to keep confidential information secret; and
- Taking reasonable and concrete steps to protect confidential information in the workplace.
It is a breach of the duty of loyalty under Vermont law to solicit customers or other employees for a new business venture while still employed at another organization.
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