Self Defense and Employee Firings
Via the Volokh Conspiracy:
The West Virginia Supreme Court just dealt with the scenario where a store employee defends against robbery, and promptly finds themselves fired. (As has happened more than once!) The employee had not used their own firearm, but had jumped and disarmed the robber, and used the robber's gun to them until police arrived.
The court noted that this was an "at will" employee, and thus could normally be fired for any reason or no reason at all, but that there was a narrow exception for firings that were contrary to strong public policies. It then reviews caselaw affirming self-defense as a right, and concludes that that a firing based on exercise of the right runs contrary to public policy.
The case arises out of a certification of a question by the U.S. District Court (essentially, the Federal court had to rule upon State law, and could therefore ask the State court for a ruling on the issue). The West Virginia Supremes gave the ruling but could not resolve the factual issues.
There seems to be one anomaly. The text suggests that the employer might be able to prove a substantial business reason justified the firing despite the public policy, and refers to employer concerns that bystanders might be injured. Footnote 11 ends that sentence. Fn. 11 indicates that the employer might still win IF it could prove that the employee would still have been fired if the public policy (self-defense here) were not violated. The two seem incongruous if not contradictory. The caselaw in the footnote appears to refer to a situation where there were multiple reasons for the firing, not all of which contravened public policy. The text, though, seems to suggest that the employer can argue against the public policy itself.
Fn. 10 notes that courts in Oregon and Washington had ruled against firings based on self-defense, while those in Maryland, Pa. and North Carolina had allowed them.
The court notes that the employer has some intrest in keeping employees and patrons safe from the action of an employee taking action against a criminal.
What the court fails to notice is that the employer has an obligation to provide a safe work and shopping environment. By virtue of the robbery attempt the employer has de facto failed that responsibility.
The problem of the employee defending himself and his customers arises from employers failure to provide sufficient security to both the employee and the patrons.
A reading of the incident shows the employer did nothing to prevent or guard against the incident happening save relying on the good will and conscience of the robber not to harm the employees and patrons. It is unreasonable to expect the employee and customers on site to submit their safety and security to the whims of a criminal in the process of breaking the law.
It seems to me the employee and the patrons should have a cause of action against employer/owner for the fear and danger felt by those subjected to the illegal whims of the criminal.
Posted by: Tom Gunn at June 12, 2005 07:26 AM
Can someone explain to me why this 3 1/2 year old ruling is being paraded around as something "new"?
Posted by: Farix at June 13, 2005 10:55 AM