Many retailers have policies for handling a security event, and employees who fail to follow such policies can—under the “employment at will” principle—be subject to punishment, including termination. That happened to a group of asset protection associates at a Utah Walmart, but they challenged their firings in a lawsuit, claiming they have a right to self-defense at work, regardless of company policy.
Both sides generally agreed on some basic facts in the case. A customer attempting to steal a laptop computer by concealing it in his pants was approached by store security and led to the asset protection office. Inside, the man took out the laptop and placed it on a desk. He then announced he ‘had something he’s not supposed to have’ while taking a gun from his waistband. Security staff grabbed the gun and pinned the man against the wall, and then called the police. Other facts were in dispute, including Walmart’s assertion that the thief also announced: “I’m leaving.”
According to court documents, Walmart’s internal investigation concluded that the protection associates had violated company policy that read: “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.”
Through a motion for summary judgment, Walmart won on the claim that it wrongfully terminated the employees in violation of their employment contracts. However, the lower court sent it and an enjoined case to the Utah Supreme Court to determine if state law allows plaintiffs to pursue an action for wrongful termination in violation of their right to self-defense at work. In a precedent-setting 4-1 decision, the Utah Supreme Court ruled that public policy favors the right of Utah citizens to defend themselves in dangerous situations over the right of employers to fire workers at will, Ray et. al. v. Wal-Mart Stores, No. 20130940, Sept. 17, 2015.
According to the majority opinion, “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.” In his dissent, Chief Justice Thomas Lee wrote that allowing self-defense to outweigh company policies like Walmart’s “jeopardizes employee safety in Utah.”
Eugene Volokh, professor at UCLA School of Law, notes a few restraints to the “employment at will” principle. One legal constraint is contractual, such as tenure or a union contract. Another is statutory, such as bans on discrimination based on race, sex, and religion. About half of states ban employer retaliation for certain kinds of speech and political activity. Volokoh notes a third constraint, however, created by judges in many states: the tort of “wrongful termination in violation of public policy.” In several cases, state courts have found a public policy exception to the at-will employment doctrine, whereby an employee may use self-defense at work in the face of lethal, imminent danger.
Loss prevention professionals may want to be mindful of this exception, especially in light of state stand-your-ground laws as well as states favoring the rights of employees over employers on the question of allowing guns onto company property in employee vehicles. At a minimum, this exception, with the Utah Supreme Court decision as an example, suggests the need for meticulous investigations of incidents in which loss prevention officers or other employees are believed to have acted in violation of company policy with respect to handling suspect individuals.