Utah’s high court says workers have the right to protect themselves
Workers at Walmart (and other retailers) cannot be fired for engaging threatening customers if they feel they are in physical danger. That is the ruling of the Supreme Court of Utah, after hearing a wrongful termination suit brought by five former Walmart employees who were fired after violating the company’s policy of non-resistance in cases involving aggressive individuals in its stores.
In one case, two workers were terminated after they confronted and disarmed a female shoplifter with a knife. In the other case, loss prevention employees disarmed a shoplifter attempting to steal a laptop after he brandished a gun.
In both cases, according to Walmart, the shoplifters said they wanted to leave the premises after being caught in the act. When weapons were produced, the associates were required by company policy to let the thieves leave. Walmart’s policy is common across retailing and intended to protect workers from harm and the company from potential lawsuits.
Photo: Walmart
Chief Justice Matthew B. Durant wrote in the court’s opinion: "Although we acknowledge that Walmart’s interest in regulating its workforce is important, we conclude that there is a clear and substantial public policy in Utah favoring the right of self-defense for three reasons. First, the right of self-defense is enshrined in Utah statutes, the Utah Constitution, and our common law decisions. Second, a policy favoring the right protects human life and deters crime, conferring substantial benefits on the public. And third, the public policy supporting the right of self-defense outweighs an employer’s countervailing interests in circumstances where an employee reasonably believes that force is necessary to defend against an imminent threat of serious bodily injury and the employee has no opportunity to withdraw."
The Utah ruling means that the former workers’ case against Walmart will go back to federal court. It was the federal court that first sent the case to the justices in Utah to determine if state law would prevent their termination. Utah operates under an "at will employment doctrine" that gives businesses wide latitude in managing their workforces.
- Shawn H. Ray, Gabriel M. Stewart, Lori Poulsen, Derek Holt, and Eric Hunter, Appellants, v. Wal-Mart Stores, Inc., Appellee – Supreme Court of the State of Utah
- Fired Wal-Mart workers had a right to defend themselves, Utah’s high court says – The Salt Lake Tribune
- Court: Threatened Wal-Mart Employees Have the Right to Stand Their Ground – The Wall Street Journal (sub. required)
Discussion Questions
Do you agree with Walmart’s non-engagement policy when it comes to individuals threatening violence in its stores? Should there be exceptions to the rule as determined by the Supreme Court of Utah?
Poll
BrainTrust
Ben Ball
Senior Vice President, Dechert-Hampe (retired)
I have operated or consulted in the retail space my entire career. Every company I worked in or with had/has a rule similar to Walmart’s. I understand their rationale — money or items can be replaced. People can’t.
What would the headlines be if someone got hurt deterring a shoplifter? Walmart fails to protect it employees? I believe Walmart assumes that having the rule in place helps prevent someone from playing hero” over some merchandise which can lead to more employees trying to do the same thing.
With all of the above in mind, I would support the right of the employee to defend themselves if actually attacked. In reading the court case in the first instance the employees feared that the shoplifter would stab them if they released their grip on her arms. The second case is a little more complex in that there are conflicting accounts. If the employee’s account is accurate they were letting the individual leave in accordance with company policy when he attacked one of them.
There should always be exceptions to the rule when violent customers are threatening the lives of employees and customers. If criminals know that they can come in and bully employees with weapons and face no resistance, it will only encourage them to commit more violence. In order to have an effective loss prevention team you really don’t want pacifists, but rather brave and assertive people who look forward to catching criminals and not making excuses to let them go.
While I personally have a strong belief that individuals have a right to defend themselves and their property, I also believe that a retailer does well in providing employee handbook information and practices by which they believe all associates must abide. Walmart, and other retailers that have this policy should continue to state and enforce their policies.
Attempting to disarm even a seemingly non-threatening shoplifter is a recipe for further physical violence. The practice of calling the police is the right practice. Know that anyone of us could posture examples of extreme situations in which a life may be in danger.
Leave the disarming to trained professionals from security or the police force.
This case exemplifies that oh-so-fine line any individual who feels threatened must walk if they choose to defend themselves or protect others.
On the one hand, employers are right to say to employees, “it is not your job to protect our merchandise at the risk of harm to yourself. Don’t do it. You are not the local sheriff and we don’t want you acting as one on our behalf.”
On the other hand, employers are completely wrong to say to employees, “you are not allowed to defend yourself or to take actions you deem necessary to protect others if you feel a customer represents such a threat.” That is essentially the Utah Supreme Court’s ruling.
Simple, so far. But the rub comes when, as an individual suddenly thrust into an extremely tense and uncertain situation, you must make a decision as to which scenario you are in. If the customer comes at you with a knife, it’s pretty clear. Right?
And if the customer turns with the laptop under her arm and just runs like hell for the emergency exit, well — that’s pretty clear too.
But what about the customer who brandishes a weapon, threatens to harm anyone who tries to stop him, and then moves in a menacing manner toward the unaware customers standing between him and the cash register? Who has to decide whether that criminal will or will not actually stab someone who he perceives is trying to stop him? Is it your job? What if you say “no” and then he kills that mother holding her baby at the register?
Life (and death) situations just ain’t that simple folks. Laws, courts and employers must all use discretion here. The only thing the employer should make absolutely clear is that the employee is NOT expected to endanger themselves in any way just to prevent theft.
I understand the reason for Walmart’s policy. It is supposed to protect the employee. The goods taken were not worth the risking of human life. And now for the but.
If the employee feels threatened and feels that the person with the weapon may hurt them even if they would be allowed to leave the store, they should have the ability to protect themselves. I vote with the Utah Supreme Court.
The court’s ruling will only serve to initiate a torrent of lawsuits throughout the 50 states. Not exactly what the beleaguered taxpayers or the company need. This is another demonstration of the company making mistakes that create hundreds of new jobs for lawyers, clerks and accountants. Not exactly the corporate expansion a fully responsible executive would initiate or endorse. If the corporate policy had been closely scrutinized by a competent legal mind the potential of conflict between the rights of an individual versus the needs of the company would have shown the obvious and inevitable collision course. The money to pay for this mistake will come from the taxpayers, the employees and the investors.
If the peanut butter case represents one where the conduct is so egregious and the facts so plain that the particular decision is almost unavoidable, this one is just the opposite: the decision hinges entirely upon a particular set of circumstances and how they are interpreted.
The problem with the decision, as I see it, is that it invites employees to engage in conduct where they themselves create the necessity for self-defense by provoking an aggressor—however innocent the provocation may seem—and applies a private behavior standard to a business setting. I’m not intimate with the details of the case, and certainly can’t become so in a few minutes, but this seems to be a reminder that courts that make conservative rulings don’t necessarily make pro-business ones.
Walmart’s rule should stand. It is correct. It is not the role of store associates, even those in security, to assume the role of police officers. If the shoplifter was on the way out, then let him go rather than endanger the staff or other customers. There are too many “ifs” and too much that can go wrong by being proactive in a crime situation, unless the situation is so dire that requires immediate action on the part of the bystander. The situation faced by the Walmart associates would have been different had the shoplifter been threatening or refusing to leave.
Exceptions, exceptions, and exceptions. The Utah court ruled correctly. In a Michigan case with a retailer, the court ruled against a pharmacist that carried a licensed weapon in a national drug chain that saved his life and potentially the life of others. Court case lost. One pharmacist alive. Fair enough. The demand for pharmacists is great, but not so for some other positions.
Drawing a distinct line is difficult.
Protecting one’s own life, the life of a fellow associate, and the lives customers has to be taken into consideration. As already pointed out, there simply has to be discretion given.
I’m not surprised that this concerns Walmart and its dealings and valuing of its associates. It’s no surprise at all. Their saga in employee relations continues.
I’d take a stand for protecting a life—period. It sure seems that they could have quietly just let these pass right by their to the letter enforcement of “policy.” Then again, if they aren’t smart enough to do that, they sure aren’t smart enough to have not taken it this far.
The non-engagement rules in place at Walmart and many other retailers may seem to embolden common shoplifters, but I believe the reasoning behind them is sound. No employee should risk self or others by responding in a manner that may tend to escalate a property crime into violence or injury.
This includes injury to the perpetrator, by the way. A civil suit and unwanted publicity can result from employees physically detaining an individual.
But there will be situations that test these hard and fast rules—especially in instances where a thief shows a weapon in a manner that threatens the employee or other shoppers. This is very hard to train for. Employees should be coached on ways to de-escalate and move at-risk individuals away from a dangerous person.
I do believe the policy of automatic firing needs some modulation. That can be a harsh consequence for an employee who intervenes out of conscience. Perhaps a mandatory review process with several possible consequences may be a worthwhile alternative. Should retailers cooperate to set up an objective body to administer this?