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Employers Beware: The Hidden Dangers of Utah’s Public Policy on Self-Defense

Published by on November 9, 2015

On September 17, 2015, the Utah Supreme Court held that an employee who is terminated for violating their employer’s “no-confrontation” policy can maintain a claim of wrongful discharge so long as that employee (1) reasonably believed that force was necessary to defend against an imminent threat of serious bodily harm and (2) had no opportunity […]

On September 17, 2015, the Utah Supreme Court held that an employee who is terminated for violating their employer’s “no-confrontation” policy can maintain a claim of wrongful discharge so long as that employee (1) reasonably believed that force was necessary to defend against an imminent threat of serious bodily harm and (2) had no opportunity to withdraw.

In so doing, Utah joined a minority of states, including West Virginia, in creating a public policy-based exception to at-will employment for purposes of self-defense. The Court considered Utah’s Constitution, state statues and common law, and determined that “a policy favoring the right [of self-defense] protects human life and deters crime, conferring substantial benefits on the public” which outweighed employers’ business interests.

While the protection of human life and crime deterrence are noble pursuits, Utah’s approach is by many accounts deeply flawed. Writing in dissent, Associate Chief Justice Thomas R. Lee observed that “the majority [holding] jeopardizes the ability of employers to adopt and enforce workplace violence policies like the one adopted by Wal–Mart (and countless other retailers).”

Justice Lee highlighted the distinction between self-defense as a bar to criminal liability as opposed to an exception to at-will employment, and emphasized the importance of trusting employers’ discretion:

“It . . . seems quite likely that most workers who are fired for defending themselves [actually fought back unnecessarily]. It would be the rare employer indeed who would actually fire an employee for defending himself in the face of a threat of ‘severe injury or death with no opportunity to withdraw.’ Because that prospect seems so unlikely, moreover, I rather doubt that many employees faced with a life-or-death threat will actually stand down due to concerns over losing their job. That will surely be the outlier case. The more common case, by far, will be the opposite -— in which the employee faced with less than a life-or-death threat, or with reasonable path to withdraw, nonetheless intervenes in an attempt at vigilantism.”

Justice Lee further expressed concern regarding the Court’s creation of a right to sue, as it would create increased leverage for rightfully terminated employees, leverage that will inevitably result in increased litigation and financial exposure for businesses. And by undercutting employers’ ability to develop and enforce workplace violence policies, workplaces will be less safe for employees and patrons.

Justice Lee warned that the Court’s holding “opens the door to a free-wheeling, case-by-case public policy exception that threatens to swallow the rule of at-will employment.”

Laconic Lookout:

Employers who implement no-confrontation policies may generally cite violations of those policies as grounds for termination, but jurisdictions such as Utah and West Virginia present dangerous exceptions to that rule. As always, employers are wise to conduct through investigations of policy violations, and should consider whether the employee had any reasonable justification of self-defense prior to recommending termination.

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