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How to balance your company’s ‘no-escalation’ policy with the right to self-defense

September 29th, 2015  |  Joy Waltemath

By Joy P. Waltemath, J.D.

This month, the Utah Supreme Court looked at the collision between self-defense laws protecting individuals’ rights to defend themselves from “serious threats of imminent harm” and a Wal-Mart “Asset Protection” policy requiring, in the event a shoplifting suspect has a weapon or threatens to use a weapon, all its employees to “disengage from the situation, withdraw to a safe position, and contact law enforcement.” Answering a certified question, the state high court found the right to self-defense qualifies as a public policy exception to the at-will employment doctrine, and it revived the public policy wrongful discharge claims of five Wal-Mart employees who were terminated under the asset protection policy.

The issue is hardly unique to employers in Utah. As of August 2014, 33 states had some form of “no duty to retreat” laws, according to an ABA National Task Force on Stand Your Ground Laws. Many of those laws say there is no duty to retreat from any place where one is lawfully present, although some of the laws are not worded so broadly. So, what happens when these expressed rights of individuals to protect themselves conflict with an employer’s no-escalation workplace violence or shoplifting policy?

Five employees fired. Two incidents gave rise to the Utah case, both involving employees whose Wal-Mart jobs were to investigate, document, and prevent theft. In the first, after two employees confronted a shoplifter and grabbed her arms, she struggled, pulled out a small knife, and shouted she was going to stab the employees. Instead of releasing her, the employees held on while a customer disarmed her. The employees were fired for violating the disengagement policy. In the second, three employees were in a store’s asset protection office where a customer who had been attempting to steal a laptop had been brought. Although exactly what transpired was disputed, the parties agreed the customer had removed the laptop from his pants when he said “I have something I am not supposed to have”—which turned out to be a gun. After a struggle, the employees managed to disarm the customer. All three also were fired for violating the disengagement policy.

Certified question. After the employees sued, the federal district court certified to the Utah Supreme Court a question regarding the employees’ claims for wrongful termination in violation of public policy: Whether self-defense constituted a substantial public policy exception to the state’s at-will employment doctrine. Importantly, for purposes of certifying the question, the federal district court asked the Utah Supreme Court to assume that the employees were unable to safely disengage from the incidents.

Sources of public policy. Utah law reflected a clear and substantial public policy favoring the right of self-defense that included the workplace, according to the majority. The right to self-defense appears twice in the Utah Constitution: Article I, Section 1 unequivocally recognizes the right of all men “to enjoy and defend their lives and liberties,” and Section 6 references the individual right to keep and bear arms “for security and defense of self, family, others, property, or the state.” Notably, the court looked beyond the constitutional provisions in question (which did not directly regulate employment) to examine the motivating policy behind them, as it could in addressing the public policy exception, the court explained.

“Stand your ground.” The Utah code also supported the right to self-defense as an exception to the employment at-will doctrine. Utah has been a “Stand Your Ground” state since 1994, and even if that law were repealed, it would not limit the state constitutional right to self-defense. Moreover, the statutory language was not limited—it provides there is generally no duty to retreat if the person is located in a place where he or she has lawfully entered or remained—which undercut Wal-Mart’s argument that stand your ground was not intended to cover workplace-based scenarios. Looking at the constitution, statutes, and common law, the court found the right of self-defense plainly defined by authoritative sources of Utah public policy—but that policy explicitly recognized other compelling circumstances in which a person may have a duty to retreat.

Public importance, countervailing interest. From there, it was relatively simple for the court to find the policy was of broad public importance. So the court turned to whether the right outweighed the employer’s countervailing interest in managing and regulating its workforce. Although agreeing with Wal-Mart that the state had a strong public policy favoring “de-escalation and non-confrontation policies,” those interests were still outweighed by the employee’s right to self-defense—at least in the “narrow circumstances” presented here, where the employees were “unable to safely disengage” from a threat of violence. The court expressly limited its decision to circumstances in which an employee faces an imminent threat of serious bodily harm and has no opportunity to withdraw.

Policy potentially consistent with public policy. That said, Wal-Mart’s policy here could be consistent with the public policy exception, the court explained. The policy allows employees to “defend themselves or others to the extent necessary to disengage the Suspect” and withdraw. This language implied that an employee who did not have such an opportunity to disengage and withdraw would be entitled to act in self-defense. But ‘nothing in our decision today prohibits employers from requiring their employees to disengage from violent situations when they have such an opportunity,” concluded the majority.

Dissent. Justice Lee believed the majority framed the question improperly in assuming that the employees were unable to safely disengage. Rather, Lee argued, the question was the enforceability of an arrangement in which the employer ” has the final say in the event of disagreement as to whether the employee was engaged in proper self-defense or prohibited escalation, and a concomitant right to terminate the employee if it decides that the policy was violated.”

Employer lessons. The court’s analysis was not limited to Utah law, and it specifically discussed case law Wal-Mart raised from Pennsylvania, Maryland, North Carolina, and federal district courts in Michigan and California, which declined to recognize a self-defense exception to at-will employment. Some of those cases the court distinguished because the employees used force in retaliation or in circumstances where it would have been safe to withdraw and contact law enforcement—specifically not what the certified question here required the court to assume. Instead, the court favorably cited the rationale of the Supreme Court of West Virginia—which limited the public policy exception to instances where an employee responds to “lethal imminent danger.” This analysis should help employers who attempt to carefully craft no-escalation policies, taking into account the vagaries of state law, which will pass muster even in the event of new public policy exceptions based on self-defense.

The Utah Supreme Court case is Ray v. Wal-Mart Stores, Inc., September 17, 2015.

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