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Fight or Flight? Wrongful Termination of Worker Who Engages in Self-Defense While on the Clock

By Jennifer R. Growcock

Employers across the country may soon have to think twice before firing an employee who chooses to “fight” rather than take “flight” when faced with threats of violence at work.  In a recent decision, Ray v. Wal-Mart Stores, Inc.,  the Supreme Court of Utah held that workers who defend themselves or others from violent attackers at work can sue their employers for wrongful termination if they are fired for defending themselves.  The case stems from the termination of five employees who chose to defend themselves instead of de-escalating and avoiding an altercation with armed shoplifters.  The employer claimed the employees violated company policy of disengaging, withdrawing and alerting authorities.  

The Utah court determined public policy favors an employee’s right to defend him or herself in dangerous situations, and the public policy outweighs the employer’s rights to fire at-will employees without cause.  Under the at-will employment doctrine, an employer has broad discretion to manage its workforce and may fire an employee for any reason not prohibited by law, subject to several exceptions, including when an employee‘s termination violates a clear and substantial public policy.  An at-will employee whose employment has been terminated in violation of a clear and substantial public policy may sue for wrongful termination. 

The Court highlighted the following three points: 

  1. Utah law strongly supports the right of self-defense while recognizing circumstances in which a person may have a duty to withdraw; 
  2. A policy favoring the right of self-defense is also of broad public importance because it protects human life while deterring crime; and
  3. Despite the strong interests employers have in maintaining a safe workplace through de-escalation policies, the right of individuals to defend themselves against imminent bodily injury or death is simply more compelling where the employee cannot safely withdraw.

The Utah ruling is consistent with persuasive authority from other jurisdictions, specifically West Virginia.  Wal-Mart, however, argued several courts from other states have refused to extend the public policy exception to include self-defense, including courts in Pennsylvania, Maryland, North Carolina, and two federal district courts.  

The ruling has significant impact on businesses in Utah and potentially businesses nationwide should other states follow the reasoning adopted in Utah and West Virginia.  Employers should be cognizant of an action taken against an employee who chooses self-defense in light of an employer’s stated policy to the contrary.