Is It Workplace Violence Or Self-Defense?

A case study that might make you re-examine your workplace violence policies.

Posted by Janette Levey Frisch in on November 4th, 2015

Meet Michael the Manager at Remarkable Retail Store. Michael and Remarkable are having a definite – er um- situation.  A few months ago two of Remarkable’s employees,  Sam the shelf stocker and Carly the Cashier apprehended a shoplifter, each grabbing her by an arm. Just as they were arriving at the asset protection office, the shoplifter wriggled out of their grip, and brandished a gun. Carly and Sam managed to get the gun away from the shoplifter. Way to go Carly and Sam, right?  Maybe not. Michael being a diligent manager, terminated Carly and Sam, because their workplace violence policy requires employees threatened with a weapon or other violence to retreat to safety, which Carly and Sam did not do. Carly and Sam have now sued Michael and Remarkable for wrongful termination. Wait, what? Can you fire an employee for self-defense or defense of others? It is self-defense or is it workplace violence? 

FREE Investigation Report Template

Prepare thorough, consistent investigation reports with our free report template.

Download Template

The real-life case was Ray et al v. Wal-Mart Stores, Inc and involved two incidents in Utah store. in which employees apprehended shoplifters. In the first incident, two employees confronted a shoplifter and grabbed her by the arms when she tried to run away. A struggle ensued, during which the shoplifter pulled a knife and threatened to stab the employees. With a customer’s help they pried the knife out of her hands. In the second incident, two employees confronted a customer attempting to steal a computer. They brought the customer to the store’s asset protection office, where the customer revealed that he had a gun and the employees took the gun from him.

Wal-Mart fired all the employees for non-compliance with its workplace violence policy, which required disengagement. Specifically, Wal-Mart’s policy said that if a suspect is believed to possess a weapon, “the suspect should not approach” and that “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.” Finally if a suspect becomes violent, Wal-Mart’s policy requires its employees to “disengage from the confrontation, withdraw to a safe position and contact law enforcement”.

The employees sued for wrongful termination. Wal-Mart asserted the employment-at-will doctrine. In other words, unless an employee can show that either there is an employment contract limiting termination rights, or that its employer violated a specific statute (say the Americans with Disabilities Act) or a public policy, the employer does not need a reason, and can fire an employee if it so chooses. Conversely, employees can quit at any time for any or no reason. So what’s the problem? Wal-Mart had a policy. The policy is certainly one we want employers to have. We want policies that aim to prevent workplace violence. We also want employers to discourage vigilantism.  Wal-Mart has been to court many, many times regarding its employment practices, and in many of those cases it’s easy to see why Wal-Mart might have been in the wrong. In this case, however, many may find it hard to see what Wal-Mart did wrong.

Let’s look at what the Utah Supreme Court said. The Utah Supreme Court agreed with the employees that in Utah there is a public policy supporting a person’s right to act in self-defense (and presumably in defense of others). It even quoted from the State Constitution. Procedural history note: The employees sued in federal court, but the federal court certified the specific question of whether Utah has such a public policy. Now, another important point here is that the court was instructed to assume that it was not possible to retreat. That poses an interesting question. Wal-Mart’s policy assumes that an employee is able to retreat.  It is not entirely clear, (though the facts of this case seem to suggest) that these employees could have retreated. The Utah Supreme Court did not invalidate the firings though. It merely held that an employee can assert a right to self-defense and that in this case, these employees could proceed with their wrongful termination case. It is not clear what will happen if the case goes to trial and the court finds that these employees could, in fact have retreated to safety.

OK, great. What does this mean for the rest of you? Should you ditch your workplace violence policies? Can you limit your employees’ ability to confront suspected thieves and to defend themselves from potential and actual violence? What should we tell Michael the Manager? Here are some starting points:

  • See if the state(s) in which you employ people have any laws or policies regarding self-defense (e.g. “stand your ground laws” or other acknowledged public policies);
  • Review your existing workplace violence policy. Differentiate between situations where an employee is and is not able to retreat;
  • Evaluate each situation on a case-by-case basis.
  • Apply the policy consistently with respect to similarly situated individuals.
  • As always, consult with your friendly and competent employment counsel.

Join The EmpLAWyerologist next week for further discussion of workplace violence issues. See you then!

Disclaimer: This post and all its contents are for educational/informational purposes only, are not intended as legal advice, do not create an attorney-client relationship, and are not intended to replace consultation with competent employment counsel in the state(s) in which you employ people

Janette Levey Frisch
Janette Levey Frisch

Employment/HR Attorney

Employment and HR attorney Janette Levey Frisch has more than 20 years of legal experience, more than 10 of which she has spent in employment law. It was during her tenure as sole in-house counsel for a mid-size staffing company headquartered in Central New Jersey, with operations all over the continental US, that she truly developed her passion for Employment Law.

Janette works with employers on most employment law issues, acting as the Employer’s Legal Wellness Professional — to ensure that employers are in the best position possible to avoid litigation, audits, employee relations problems, and the attendant, often exorbitant costs.

Visit Website

Want to conduct better investigations?

Sign up for i-Sight’s newsletter and get new articles, templates, CE eligible webinars and more delivered to your inbox every week.