Employment & Labor Insider

Late last week, the Utah Supreme Court decided that an employer who terminates an employee for acting in self-defense can be liable for wrongful discharge, if

The employee "reasonably believes that force is necessary to defend against an imminent threat of serious bodily harm," and

The employee has no opportunity to withdraw.

The case, Ray v. Wal-Mart Stores, involved two incidents at two different Utah Wal-Mart stores and five former employees. Under Wal-Mart policy, employees are required to "disengage" from an individual with a weapon or who becomes violent, "withdraw to a safe position, and contact law enforcement."

In the first incident, two plaintiffs caught a shoplifter, grabbing her arms. She pulled out a pocketknife and said she would stab the plaintiffs if they did not release her. The two plaintiffs held on, and they got the knife away from her.

In the second incident, two plaintiffs caught a man who had taken a laptop computer and hidden it in his pants. They took him to the "asset protection office," and were joined by a third plaintiff. While they were in the closed office, the man revealed that he had a gun. According to Wal-Mart, the employees struggled with the man, pinned him against the wall, and took the gun away. According to the plaintiffs, the man "shoved [a plaintiff] against the wall and pressed the gun to his back." After a struggle, the other two plaintiffs overpowered the man and got the gun from him.

All five of the plaintiffs were terminated for violating Wal-Mart's "no-confrontation" policy, and they sued in federal court for wrongful discharge. The federal court asked the state Supreme Court to assume that the five plaintiffs had acted in legitimate self-defense and were fired for having done so, and to issue a ruling as to whether Utah would recognize a public policy wrongful discharge claim under these circumstances.

The Utah Supreme Court said that the public policy favoring a right of self-defense comes from the Utah Constitution, state statutes, and common law, and that "a policy favoring the right [of self-defense] protects human life and deters crime, conferring substantial benefits on the public." Finally, the court said, the right of an employee to defend himself or herself outweighed the employer's business interests, provided that the employee has a reasonable belief in imminent threat of serious bodily harm, and an inability to withdraw from the situation.

Eugene Volokh of The Volokh Conspiracy has a nice survey of court decisions that have addressed the issue of self-defense and wrongful discharge. West Virginia recognizes the claim but allows employers to assert a legitimate business reason as a defense. A federal court in California has held the same way. The Washington (state) Supreme Court used a similar approach in a case where the employee was defending a third party. The claim was rejected by another federal court in California, a federal court in Utah in 2005 (!), and courts in Maryland, North Carolina, and Pennsylvania. Mr. Volokh has cites and links, so I'll just send you over there.

I have mixed feelings about self-defense as a public policy supporting a wrongful discharge claim. An employer certainly has legitimate reasons for wanting to discourage employee vigilantism and to refer incidents to law enforcement instead. At the same time, there are rare situations where an employee may have no choice but to defend himself or others. (Remember the ghastly incident almost exactly one year ago in which that poor woman was beheaded, and the killer was stopped only because the CEO shot him?) As a preventive measure, I suppose I would favor having employers adopt something very similar to the Utah standard: withdraw, unless you are in imminent danger of serious bodily harm and can't escape. If you're trapped and feel you have no choice but to confront, then use your best judgment, and we'll try to do the right thing by you when we sort it all out afterward.

That said, I think many employers will disagree with me on this. Please feel free to weigh in. This is a situation where the "zero-tolerance" approach just doesn't strike me as correct.