But if no such contract or law is applicable, even conduct that is constitutionally protected against governmental retaliation — such as speech, political activity, off-the-job sexual activity, marital decisions, self-defense, gun ownership and the like — are not protected against private employer retaliation.
There is, however, a third constraint, which has been created by judges in many states: the tort of “wrongful termination in violation of public policy.” The Utah formulation of this tort, which is similar to that in many other states, bars employer retaliation against an employee for:
(i)[r]efusing to commit an illegal or wrongful act, such as refusing to violate the antitrust laws;
(ii) performing a public obligation, such as accepting jury duty;
(iii) exercising a legal right or privilege, such as filing a workers’ compensation claim; or
(iv) reporting to a public authority criminal activity of the employer.
The complicated category is category (iii). There are lots of legal rights and privileges that don’t trigger that category — people have the right to speak, but, absent a statute, courts generally don’t bar employers from firing employees based on their speech. (There’s one exception, Novosel v. Nationwide Ins. Co. (3d Cir. 1983), but it hasn’t been followed.) Likewise, I know of no court that has concluded, absent a statutory ban on sexual orientation or marital status discrimination, that firing an employee based on the employee’s marriage or constitutionally protected private sexual activity is tortious. On the other hand, quite a few courts have indeed accepted category (iii) as to the filing of workers’ compensation claims (which are claims against a government fund, though ones that affect the employer).
This brings us to self-defense (and in particular what I call “reasonable self-defense,” which would set aside situations where a judge or jury concludes that an employee wasn’t sufficiently threatened, could have avoided the problem without physical self-defense, used excessive force under the circumstances, and the like). Feliciano v. 7–Eleven, Inc. (W. Va. 2001) recognized “a substantial public policy exception to the at will employment doctrine whereby an employee may defend him/herself against lethal imminent danger,” though it noted that “an employer may rebut the presumption of a wrongful discharge based upon an employee’s exercise of his/her right to self-defense by demonstrating that it based the termination upon a plausible and legitimate business reason.” Cocchi v. Circuit City Stores, 2006 WL 870736 (N.D.Cal. Apr. 3, 2006), took a similar view. So did Gardner v. Loomis Armored Inc. (Wash. 1996), as to the defense of a third party. On the other hand, Johnson v. CVS Pharmacy, Inc., 2011 WL 4802952 (N.D. Cal. Oct. 11, 2011), Davis v. Stock Building Supply West, Inc., 2005 WL 1828735 (D. Utah July 29, 2005), Bagwell v. Peninsula Reg’l Med. Ctr. (Md. App. 1995), McLaughlin v. Barclays Am. Corp. (N.C. Ct. App. 1989), Scott v. Extracorporeal, Inc. (Pa. Super. Ct. 1988), and Bagwell v. Peninsula Regional Medical (Md. Ct. Spec. App. 1995) held that there was no common-law prohibition on employers’ discharging employees based on their lawful self-defense.
Last Thursday, the the Utah Supreme Court weighed in on the side of restricting employers’ ability to fire employees for their on-the-job self-defense, though only “where an 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 court cited the Utah state constitutional self-defense provision (see this article for more on that), which states that “[a]ll men [have] . . . the inherent and inalienable right to enjoy and defend their lives and liberties.” It cited the state constitution’s right to bear arms, which secures the “individual right of the people to keep and bear arms for security and defense of self, family, others, property, or the state” (though the Utah Supreme Court has held that employers may fire employees for possessing guns on employer property, including parking lots, Hansen v. America Online, Inc. (Utah 2004), and Thursday’s decision cited that precedent favorably). It cited Utah’s criminal law, which provides a right to self-defense.
All these provisions, of course, just limit the government, and don’t themselves secure rights against third parties. But the court concluded that, in crafting narrow common-law exceptions to the common-law employment-at-will rule, the court should consult Utah “public policy,” and those constitutional and statutory provisions are significant indicators of such public policy. “The law should not require employees to choose between keeping their jobs and protecting themselves or others from a serious, imminent threat of harm. And in light of the impressive constitutional and statutory pedigree the right of self-defense enjoys in our state, we hold that Utah law does not require employees to make that choice.”
Justice Thomas Lee (Sen. Mike Lee’s brother) dissented, arguing that employer policies limiting self-defense by employees are reasonable and are likely to on balance decrease injuries to customers and employees. The dissent is long and detailed, as is the majority, but here is what strikes me as the heart:
The question is whether our public policy of self-defense is sufficient to override the right of an employer and employee to agree to give the employer the final say in case of doubt about the reasonableness of an employee’s act of self-defense in the workplace. That is the arrangement Wal-Mart entered into with its associates — under Policy AP-09, when read against the presumption of at-will employment. And that arrangement seems perfectly reasonable to me, particularly given the high stakes-and substantial risk- inherent in the contrary approach.
Policy AP-09 reads,
If the Suspect is believed to possess a weapon, the Suspect must not be approached. If during an approach or investigation, it becomes apparent that the Suspect has a weapon or brandishes or threatens use of a weapon, all associates must disengage from the situation, withdraw to a safe position, and contact law enforcement.If at any point the Suspect or any other [sic] involved becomes violent, disengage from the confrontation, withdraw to a safe position and contact law enforcement.
Here is the discussion of the (contested) alleged facts of the case:
The first incident involved plaintiffs Derek Holt and Eric Hunter, who were employed at Wal-Mart’s West Valley City, Utah store. Mr. Holt and Mr. Hunter confronted a shoplifter. When the shoplifter tried to run away, they grabbed her arms. During the ensuing struggle, the shoplifter pulled out a small pocketknife and shouted that she was going to stab Mr. Holt and Mr. Hunter if they did not let go. Mr. Holt and Mr. Hunter maintained their hold, however, and a customer helped pry the knife out of the shoplifter’s hand. Wal-Mart terminated Mr. Holt’s and Mr. Hunter’s employment for violating Policy AP-09.The second incident involved plaintiffs Shawn Ray, Lori Poulsen, and Gabriel Stewart, who were employed at Wal-Mart’s Layton, Utah store. Several employees at that store, including Mr. Ray and Ms. Poulsen, approached a customer who was attempting to steal a laptop by concealing it in his pants and escorted him to the store’s asset protection office, where they were joined by Mr. Stewart. There is some discrepancy regarding what happened next. According to Wal-Mart, the customer placed the laptop on a desk and stated, “You have your laptop, I am now going to leave, and I have something I am not supposed to have.” Ms. Poulsen saw the customer move a gun from his back to his coat pocket. A physical struggle ensued, resulting in the Wal-Mart employees pinning the customer against a wall and grabbing the gun.The Employees’ account of the incident differs somewhat.According to them, after the customer removed the laptop from his pants he said, “I have something I shouldn’t have. Don’t make me do this!” Ms. Poulsen noticed the customer had a gun and yelled “Gun! Hand!” The customer rushed towards the door but then turned and shoved Mr. Stewart against the wall and pressed the gun to his back. A skirmish resulted, and the Wal-Mart employees managed to remove the gun from the customer’s hands and force him to the ground. Ultimately, Mr. Ray, Ms. Poulsen, and Mr. Stewart were all fired following the incident for violating Policy AP-09.
The Utah Supreme Court’s decision lets the case go forward, so in principle a jury could decide whether the employees “reasonably believe[d] that force is necessary to defend against an imminent threat of serious bodily harm and . . . [had] no opportunity to withdraw,” though in practice it seems that the case is likely to settle.