May Employers fire Employees for Defending Themselves?

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ELB
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May Employers fire Employees for Defending Themselves?

Postby ELB » Mon Oct 14, 2013 1:39 pm

A Utah case, filed in federal court, but re-directed to the Utah Supreme Court.

Ray v. Wal-Mart Stores, Inc. (D. Utah Oct. 9, 2013)

Some explanation at Volokh Conspiriacy: http://www.volokh.com/2013/10/13/may-em ... f-defense/ (might want to read this first)

This case includes two different situations, at least on of which was discussed on texaschlforum.com when it happened, but I can't come up with the right search terms to distinguish it from the other bazillion and half "Walmart" and "self-defense" threads, so no link.

Some Walmart loss prevention employees took a suspected shoplifter to a room, whereupon he verified he was a shoplifter by pulling laptop out of his pants; he also produced a gun. According to the employees (but not according to Walmart - dispute on the facts here), the shoplifter threatened them with the gun. The Walmart employees restrained him, called the cops. The cops arrested the shoplifter, and Walmart fired the employees.

The fired employees are arguing that Walmart cannot legally fire them for exercising a legal right or privilige. See the Volokh link for an explanation of this, as well as links to other cases where employees argued (apparently at least part of the time successfully) that they may not be fired for defending themselves.
Last edited by ELB on Mon Oct 14, 2013 6:41 pm, edited 1 time in total.
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Re: May Employers fire Employees for Defending Themselves?

Postby Dragonfighter » Mon Oct 14, 2013 5:53 pm

Every little while these cases and new ones crop up. The short answer is, "It depends." It depends on what state. Wal-Mart is a non-union house which is good in the employment numbers area and in Texas, you can be fired for any reason that is not covered by EEOC classifications or no reason. Almost every one of these cites a violation of corporate policy and while repugnant to most of us, is legal grounds for termination. OTOH if accurate and a shoplifter produced a weapon, especially in close quarters, what are you to do BUT defend yourself?
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Re: May Employers fire Employees for Defending Themselves?

Postby WildBill » Mon Oct 14, 2013 7:16 pm

Dragonfighter wrote:Every little while these cases and new ones crop up. The short answer is, "It depends."


I think a shorter answer is "Yes".
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Re: May Employers fire Employees for Defending Themselves?

Postby Hoosier Daddy » Mon Oct 14, 2013 7:43 pm

WildBill wrote:
Dragonfighter wrote:Every little while these cases and new ones crop up. The short answer is, "It depends."


I think a shorter answer is "Yes".

:iagree: I have the right to free speech but if I say bad things about my employer, they can fire me even if what I said was true.

I don't know what Utah law says about firing people but the Federal court was clear that (1) Walmart didn't violate the employment contract and (2) Walmart didn't violate the employees rights under Federal law.
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Re: May Employers fire Employees for Defending Themselves?

Postby ELB » Mon Oct 14, 2013 8:29 pm

Actually, if you go read the case through,"it depends" is the current answer, at least in Utah.

The Volokh link (which was screwed up earlier, now fixed) explains some of this. Employers can draft rules, but they cannot fire for them if they contravene certain public policies. A crystal clear example is that an employer cannot legally fire or retaliate against an employee who refuses to perform an illegal act, or who reports illegal activity by the employer or coworkers.

Moving down the scale a bit, employers cannot retaliate for exercising certain rights and privileges, like filing for workers compensation. In some states at least, you cannot be fired for political activity or statements outside of employment. In some states, you cannot be fired for having a firearm locked in your car in the parking lot.

So the question going to the Utah Supreme Court is "can employers fire (which implies they can forbid) employees who otherwise legally defend themselves?"

If confronted by deadly force on the job, should it be legal for an employer to fire you for defending yourself? Or, if you want to keep your job, do you have to submit to deadly force and hope you live through it to keep that job? If's not like you can wait until you are off the job to decide whether to defend yourself or not.

Walmart seems to be trying to avoid this particular question by arguing that (in the first event that I described above), the shoplifter never threatened anyone and the employees prevented him from leaving (in violation of policy). The employees testified that they never impeded the shoplifter's ability to leave until he shoved a gun in one of the employee's ribs and they tackled him. (I think the guy in the third event loses however the USC decides).
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Re: May Employers fire Employees for Defending Themselves?

Postby Oldgringo » Mon Oct 14, 2013 10:10 pm

Texas is not only a 'right to work' state, it is also a 'right to fire' state. I reckon you can't have it both ways, eh?

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Re: May Employers fire Employees for Defending Themselves?

Postby texanjoker » Tue Oct 15, 2013 12:31 pm

I remember reading some other articles that Walmart has fired loss prevention personnel in various incidents where they have taken a suspects gun and then shot the suspect. I have never understood the LP guys getting shot and stabbed over a $5 t shirt. I remember asking one that had been stabbed (non fatal) over a $5 t shirt and his response was to proudly state it was now a robbery and ADW vs a shoplift :smash:

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Re: May Employers fire Employees for Defending Themselves?

Postby VoiceofReason » Tue Oct 15, 2013 2:31 pm

ELB wrote:Actually, if you go read the case through,"it depends" is the current answer, at least in Utah.

The Volokh link (which was screwed up earlier, now fixed) explains some of this. Employers can draft rules, but they cannot fire for them if they contravene certain public policies. A crystal clear example is that an employer cannot legally fire or retaliate against an employee who refuses to perform an illegal act, or who reports illegal activity by the employer or coworkers.

Moving down the scale a bit, employers cannot retaliate for exercising certain rights and privileges, like filing for workers compensation. In some states at least, you cannot be fired for political activity or statements outside of employment. In some states, you cannot be fired for having a firearm locked in your car in the parking lot.

So the question going to the Utah Supreme Court is "can employers fire (which implies they can forbid) employees who otherwise legally defend themselves?"

If confronted by deadly force on the job, should it be legal for an employer to fire you for defending yourself? Or, if you want to keep your job, do you have to submit to deadly force and hope you live through it to keep that job? If's not like you can wait until you are off the job to decide whether to defend yourself or not.

Walmart seems to be trying to avoid this particular question by arguing that (in the first event that I described above), the shoplifter never threatened anyone and the employees prevented him from leaving (in violation of policy). The employees testified that they never impeded the shoplifter's ability to leave until he shoved a gun in one of the employee's ribs and they tackled him. (I think the guy in the third event loses however the USC decides).


They forgot one

There is, however, a third constraint, 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.
(V) Refusing to Work Because Conditions are Dangerous

https://www.osha.gov/as/opa/worker/refuse.html

I don’t know if/how this would play into the situation.
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Re: May Employers fire Employees for Defending Themselves?

Postby cb1000rider » Tue Oct 15, 2013 4:40 pm

I remember this one:
Randalls in Round Rock, Texas fired a grocery store manager for chasing down and recovering a purse that was stolen in store:

http://www.allgov.com/news/unusual-news ... ews=839286

Regardless of the policy, it was a lot of bad press..

It just means that in Texas you can be fired for doing the wrong thing or fired for doing the right thing, as your employer sees fit.


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Re: May Employers fire Employees for Defending Themselves?

Postby b322da » Tue Oct 15, 2013 5:38 pm

cb1000rider wrote:SNIP
It just means that in Texas you can be fired for doing the wrong thing or fired for doing the right thing, as your employer sees fit.

A black-and-white overstatement like that just leads to further confusing the issue for those who have shown confusion already and who are mature enough to be willing to admit it. You might take a look at the rational posts above which discuss that there are exceptions in most, if not all, states (Texas being one of those), to an employer-at-will's authority to terminate an employee. As is so often the case, black-and-white becomes gray. Easy answers to hard questions lead to incorrect answers.

I might respectfully take the liberty of suggesting that Googling "employment at will" is a good place to start one's education about this complex subject, which is an important and meaningful subject for some persons. It simply cannot be fully discussed in a brief blurb on a forum.

Jim


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Re: May Employers fire Employees for Defending Themselves?

Postby cb1000rider » Tue Oct 15, 2013 6:18 pm

Jim,
I appreciate the respectful rebuke.. Seriously.
How did I over state it? Obviously my viewpoint is too simplistic. A quick google, as you suggested produces:
At-will employment is a term used in U.S. labor law for contractual relationships in which an employee can be dismissed by an employer for any reason (that is, without having to establish "just cause" for termination), and without warning.


I simply stated that an employer can fire an employee for doing the right thing or wrong thing, as they see fit. Right or wrong is clearly subjective - at least as proven by this forum and certainly as shown in employment law. Stopping a theft without bodily harm might be morally right, but wrong per employer policy.

Perhaps I didn't include that at-will employment is limited to specific protections afforded under the law? IE - you can't fire me for my race or sexual orientation.

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Re: May Employers fire Employees for Defending Themselves?

Postby Oldgringo » Tue Oct 15, 2013 7:30 pm

Fired is Fired! Next come the lawyers......if the job was that important to firee and family. :roll:


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Re: May Employers fire Employees for Defending Themselves?

Postby b322da » Wed Oct 16, 2013 7:46 am

cb1000rider wrote:Jim,
I appreciate the respectful rebuke.. Seriously.
How did I over state it? Obviously my viewpoint is too simplistic. A quick google, as you suggested produces:
At-will employment is a term used in U.S. labor law for contractual relationships in which an employee can be dismissed by an employer for any reason (that is, without having to establish "just cause" for termination), and without warning.


I simply stated that an employer can fire an employee for doing the right thing or wrong thing, as they see fit. Right or wrong is clearly subjective - at least as proven by this forum and certainly as shown in employment law. Stopping a theft without bodily harm might be morally right, but wrong per employer policy.

Perhaps I didn't include that at-will employment is limited to specific protections afforded under the law? IE - you can't fire me for my race or sexual orientation.

cb1000rider. I must hasten to give my apology. I did not intend my post to be a personal rebuke, respectful or otherwise, which would have been totally out of line. Going back and reading it I see it was easily and reasonably considered to be such. Another case of my fingers getting ahead of my brain, which often happens to this very old man.

I must also say that in my effort to be brief I certainly did not intend to imply that every sentence one might encounter with Google is, especially when out of context, correct. Quite the contrary is more often true. Your quote, above, is a prime example of that, and it is clear to me that you know that to be the case, as you go on to point that out yourself by listing exceptions.

Lastly, my suggestion that one might commence a personal study of this sometimes complex issue on the Internet was intended for those who have questions which simply cannot be answered briefly on such a forum. You are clearly not included in that group. Volumes have been written about this issue, much of them devoted to efforts taken by many judges to overcome the draconian effect of some black-and-white legislative actions.

If I might borrow some words from Oldgringo, just above, I guess my point was to be sure that a member which becomes a "firee" knows that there have been many a case where "next come the lawyers" gives relief to a grossly offended employee, and that an employee-at-will should not assume that there is never a remedy for his or her being treated wrongly. There may not be, but there may be if effective assistance is sought.

You have shown yourself both here and elsewhere on the forum, time and again, to be both an honest and discerning commentator. I was reminded of this only this morning, when I read the thread about medical records. I want to compliment you on the assistance you rendered to other members of the form on that thread.

Again, my apologies for my poor choice of words,

Jim


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Re: May Employers fire Employees for Defending Themselves?

Postby bayouhazard » Wed Oct 16, 2013 1:24 pm

Were they fired for defending themselves or is that their spin?

Maybe they were fired for violating company policy by detaining the guy. Maybe if they followed policy they wouldn't have been in danger and wouldn't have needed to defend themselves. Maybe that's why the company had that policy to limit risk.

Maybe not. I'm just thinking out loud.


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Re: May Employers fire Employees for Defending Themselves?

Postby b322da » Wed Oct 16, 2013 2:20 pm

bayouhazard wrote:Were they fired for defending themselves or is that their spin?

Maybe they were fired for violating company policy by detaining the guy. Maybe if they followed policy they wouldn't have been in danger and wouldn't have needed to defend themselves. Maybe that's why the company had that policy to limit risk.

Maybe not. I'm just thinking out loud.

Bayouhazard, I think you have put your finger right on the real question here. As I read the opinion of the U.S. District Court as it referred the case over to the state court, the District Court was faced with a motion for summary judgment filed by the employer. It appears that the employees alleged lawful self defense, and Walmart denied that allegation. Whether or not self defense constitutes an exception to the employer's otherwise broad discretion in that state is a question of law, not of fact, and the U. S. court, properly in my opinion, is asking the state court to answer that question. The state court may or may not choose to answer the question, and if it does not, the U. S. court will have to answer it itself.

If self defense is decided by the state court as being no exception to the employer's authority in the state, it would appear that the motion by Walmart will be granted, as it would appear clear that known employer policy was violated. If that is the decision of the state court there is nothing left by way of an issue of fact to be decided by the jury; there only being left an issue of law, then the motion for summary judgment I would expect to be granted.

If, to the contrary, the state court decides that self defense constitutes an exception to the employer's authority to terminate at will in the state, then we would be left with an issue of fact for the jury -- was it self defense or not? That would leave a question of fact for the jury, dealing with which is the jury's function, and the current motion for summary judgment would not be ripe for decision. A motion for summary judgment is not ripe for decision unless there are no issues of fact.

Taking it one step further, if the case goes in this direction and the jury decides the employees were engaged in self defense, then Walmart loses. If, on the other hand the jury decides that the employees were not engaged in lawful self defense, then Walmart wins.

This is an important case for Walmart, as it stikes its long-standing strict policy right in the gut.

Time will tell. '

Please recognize that there is some speculation here, and I have made some broad statements which may be questioned in their specifics, but this is a good faith effort to analyze the situation before it wandered off into other areas.

Jim


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