Date: 09-18-2015

Case Style: Ray, et al. v. Wal-Mart

Case Number: 2015 UT 83

Judge: J. Frederic Voros, Jr.

Court: SUPREME COURT OF THE STATE OF UTAH

Plaintiff's Attorney: Lorraine P. Brown, Dennis A. Gladwell

Defendant's Attorney: Kathleen W. Toth, James E. Ji

Description: This case arises out of two separate incidents involving WalMart employees and shoplifters.2 Each of the Employees was tasked with, among other things, investigating, documenting, and preventing the theft of merchandise by customers and employees from Wal-Mart stores. The Employees were fired for violating WalMart‘s Policy AP-09, which provides, If the Suspect is believed to possess a weapon, the Suspect must not be approached. If during an approach or investigation, it becomes apparent that the Suspect has a weapon or brandishes or threatens use of a 1 We refer to the employees collectively as the ―Employees,‖ but we also refer to them individually as needed. 2 We note that the district court was presented with a third incident but dismissed the plaintiff‘s claim arising out of that incident because the plaintiff did ―not come forward with facts that would allow a reasonable jury to grant him relief.‖ Accordingly, we do not recite this incident in our recounting of the facts.
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weapon, all associates must disengage from the situation, withdraw to a safe position, and contact law enforcement. If at any point the Suspect or any other [sic] involved becomes violent, disengage from the confrontation, withdraw to a safe position and contact law enforcement. ¶4 The first incident involved plaintiffs Derek Holt and Eric Hunter, who were employed at Wal-Mart‘s West Valley City, Utah store. Mr. Holt and Mr. Hunter confronted a shoplifter. When the shoplifter tried to run away, they grabbed her arms. During the ensuing struggle, the shoplifter pulled out a small pocketknife and shouted that she was going to stab Mr. Holt and Mr. Hunter if they did not let go. Mr. Holt and Mr. Hunter maintained their hold, however, and a customer helped pry the knife out of the shoplifter‘s hand. Wal-Mart terminated Mr. Holt‘s and Mr. Hunter‘s employment for violating Policy AP-09. ¶5 The second incident involved plaintiffs Shawn Ray, Lori Poulsen, and Gabriel Stewart, who were employed at Wal-Mart‘s Layton, Utah store. Several employees at that store, including Mr. Ray and Ms. Poulsen, approached a customer who was attempting to steal a laptop by concealing it in his pants and escorted him to the store‘s asset protection office, where they were joined by Mr. Stewart. There is some discrepancy regarding what happened next. According to Wal-Mart, the customer placed the laptop on a desk and stated, ―You have your laptop, I am now going to leave, and I have something I am not supposed to have.‖ Ms. Poulsen saw the customer move a gun from his back to his coat pocket. A physical struggle ensued, resulting in the Wal-Mart employees pinning the customer against a wall and grabbing the gun. ¶6 The Employees‘ account of the incident differs somewhat. According to them, after the customer removed the laptop from his pants he said, ―I have something I shouldn‘t have. Don‘t make me do this!‖ Ms. Poulsen noticed the customer had a gun and yelled ―Gun! Hand!‖ The customer rushed towards the door but then turned and shoved Mr. Stewart against the wall and pressed the gun to his back. A skirmish resulted, and the Wal-Mart employees managed to remove the gun from the customer‘s hands and force him to the ground. Ultimately, Mr. Ray, Ms. Poulsen, and Mr. Stewart were all fired following the incident for violating Policy AP-09. ¶7 The Employees filed suit against Wal-Mart claiming that their terminations were in violation of Utah public policy. Wal-Mart filed a motion for summary judgment, which the federal district court granted in part by dismissing all of the Employees‘ causes of action other than their claim for wrongful termination in violation of public policy. With respect to that claim, the court certified to us the question of whether self-defense is a substantial public policy exception to the at-will employment doctrine, thus providing a basis for a wrongful termination action. For purposes of certifying the selfdefense question, the federal district court asked us to assume that the Employees were unable to safely disengage from the incidents.3 Standard of Review ¶8 ―When a federal court certifies a question of law to this court, we are not presented with a decision to affirm or reverse . . . [and thus] traditional standards of review do not apply.‖4 Rather, ―we answer the legal questions presented without resolving the underlying dispute.‖5 Analysis ¶9 The question presented in this case is whether in Utah the right of self-defense embodies the type of clear and substantial public policy that qualifies as an exception to the at-will employment doctrine, and thus provides the basis for a wrongful discharge claim. The Employees contend that Utah law reflects a clear and substantial public policy favoring the right of self-defense, as evidenced by various legislative and constitutional provisions that protect the right. And they argue that the public policy interests in favor of selfdefense outweigh an employer‘s competing interests where an employee faces an imminent threat of death or serious bodily harm and has no opportunity to withdraw. 3 Specifically, as to the first incident, the court assumed that ―Mr. Holt and Mr. Hunter were acting according to Wal-Mart‘s procedures when they initially grabbed [the shoplifting customer] and that they were unable to let go of her after they became aware that she had a knife without a legitimate and reasonable fear that they would be stabbed.‖ And as for the second incident, the court assumed that ―Mr. Ray, Ms. Poulsen, and Mr. Stewart were unable to safely disengage from [the customer] after he pulled out his gun in the closed office.‖ 4 Touchard v. La-Z-Boy Inc., 2006 UT 71, ¶ 2, 148 P.3d 945 (internal quotation marks omitted). 5 Garza v. Burnett, 2013 UT 66, ¶ 9, 321 P.3d 1104 (internal quotation marks omitted).
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¶10 In contrast, Wal-Mart argues that although Utah law evinces a policy favoring the right of self-defense, there is no evidence that the policy extends to the workplace. It further argues that even if there is such a public policy, it is not of sufficient public importance to qualify as an exception to at-will employment, because selfdefense provides a purely private benefit to the person exercising the right. And finally, Wal-Mart argues that any public policy interest favoring self-defense is outweighed by an employer‘s countervailing interests in maintaining ―de-escalation, non-confrontation[,] and workplace violence policies‖ and discouraging employee vigilantism. ¶11 Although we acknowledge that Wal-Mart‘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 selfdefense 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. Accordingly, we answer the certified question in the affirmative and hold that Utah law reflects a policy favoring the right of self-defense, and that policy is of sufficient magnitude to qualify as a substantial public policy exception to the at-will employment doctrine, but only under the narrow circumstances where an employee cannot withdraw and faces imminent serious bodily injury. I. Legal Background ¶12 We begin by outlining the relevant legal principles. Under Utah law, there is a presumption that all employment relationships entered into for an indefinite period of time are at-will.6 At-will employment relationships may be terminated by either an employer or an employee for any reason other than those prohibited by law.7 6 Hansen v. Am. Online, Inc., 2004 UT 62, ¶ 7, 96 P.3d 950. 7 Id. There are other exceptions to at-will employment that are not at issue in this case—when ―there is an implied or express agreement that the employment may be terminated only for cause or upon satisfaction of [some] agreed-upon condition‖ or ―a statute or regulation restricts the right of an employer to terminate an (Continued)
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An employer‘s decision to terminate employment is presumed valid unless an employee can show, among other things, that ―the termination of employment constitutes a violation of a clear and substantial public policy.‖8 An at-will employee whose employment has been terminated in violation of a clear and substantial public policy may sue for wrongful termination.9 In essence, when this exception applies, we determine that ―the public interest is so strong and the policy so clear and weighty that we should place the policy beyond the reach‖ of an at-will employment contract.10 ¶13 In this context, the definition of public policy is ―much narrower than traditional notions of public policy,‖ so as to not unduly infringe on an employer‘s discretion in discharging employees.11 We have identified four categories of public policies that may provide a basis for a wrongful termination claim: (i) refusing 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.12 Only the third category—exercise of a legal right or privilege—is at issue in this case. We have noted that this category ―poses analytical challenges different from, and generally greater than, the others‖ because ―[t]he analysis of whether the public policy exception
employee under certain conditions.‖ Id. (internal quotation marks omitted). 8 Id. (internal quotation marks omitted). 9 See Berube v. Fashion Ctr., Ltd., 771 P.2d 1033, 1042 (Utah 1989) (―Where an employee is discharged for a reason or in a manner that contravenes sound principles of established and substantial public policy, the employee may typically bring a tort cause of action against his employer.‖). 10 Touchard v. La-Z-Boy Inc., 2006 UT 71, ¶ 13, 148 P.3d 945 (internal quotation marks omitted). 11 Rackley v. Fairview Care Ctrs., Inc., 2001 UY 32, ¶ 15, 23 P.3d 1022. 12 Ryan v. Dan’s Food Stores, Inc., 972 P.2d 395, 408 (Utah 1998) (emphasis added) (citations omitted).
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applies to a particular legal right or privilege will frequently require a balancing of competing legitimate interests.‖13 ¶14 But having a legal right or privilege alone does not mean that a terminated employee will necessarily have a valid claim for wrongful termination. To determine whether the legal right at issue reflects the type of clear and substantial Utah public policy that qualifies as an exception to the at-will rule, we consider three factors: (1) whether the policy at issue is reflected in authoritative sources of state public policy,14 (2) whether the policy affects the public generally as opposed to the private interests of the employee and the employer,15 and (3) whether countervailing policies outweigh the policy at issue.16 These factors are conjunctive requirements; to have a wrongful termination claim, an employee must demonstrate that each factor supports recognizing an exception to at-will employment. ¶15 A policy is recognized in an authoritative source of state public policy if it is ―plainly defined by legislative enactments, constitutional standards, or judicial decisions.‖17 With respect to the second factor, a policy qualifies as an exception to the at-will rule only if it is ―of overarching importance to the public, as opposed to the parties only.‖18 And even if the first two factors both favor recognizing a policy as an exception to at-will employment, strong countervailing policy interests—including the employer‘s interest in regulating its workforce—may outweigh them.19 It is therefore 13 Hansen, 2004 UT 62, ¶¶ 10–11. 14 Touchard, 2006 UT 71, ¶ 12. 15 Id. ¶¶ 13–14, 18. 16 Hansen, 2004 UT 62, ¶¶ 10–11. 17 Ryan, 972 P.2d at 405. 18 Retherford v. AT & T Commc’ns of the Mountain States, Inc., 844 P.2d 949, 966 n.9 (Utah 1992). 19 Touchard, 2006 UT 71, ¶ 10; see also Hansen, 2004 UT 62, ¶ 11 (noting that courts balance ―the interests of the employer to regulate the workplace environment to promote productivity, security, and similar lawful business objectives, and the interests of the employees to maximize access to their statutory and constitutional rights within the workplace‖ to determine whether the exercise of a legal right or privilege supports a wrongful discharge claim under the public policy exception).
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somewhat rare that a ―policy is so clear and weighty that‖ we conclude it should be placed ―beyond the reach of contract.‖20 ¶16 Having summarized the applicable legal framework, we now engage in an analysis under the three factors described above and conclude that the right of self-defense reflects the rare type of clear and substantial policy that qualifies as an exception to at-will employment. II. The Policy Favoring the Right of Self-Defense Is of Sufficient Magnitude to Qualify as an Exception to At-Will Employment ¶17 We conclude that Utah law reflects a policy favoring the right of self-defense with a duty to retreat in some circumstances, and that policy is of sufficient magnitude to qualify as an exception to at-will employment. First, the right of self-defense is plainly defined by authoritative sources because it is enshrined in the Utah Constitution, the Utah Code, and our common law decisions. But those sources do not articulate an absolute right to meet force with force; rather, in some circumstances, a person cannot engage in selfdefense without first making a reasonable effort to withdraw. Second, promoting self-defense benefits the public as a whole by preserving and protecting human life and preventing the completion of crime. ¶18 And third, the policy favoring the right of self-defense outweighs an employer‘s countervailing interest in regulating the workplace. The right is of paramount importance because it allows a person to protect against imminent bodily harm or death. And although a policy favoring the right of self-defense does restrict an employer‘s ability to control the workplace and regulate its property to some degree, we hold that such a policy does not preclude an employer from maintaining non-confrontation and de-escalation policies in situations where an employee has an opportunity to safely withdraw or does not face imminent danger. A. The Right of Self-Defense is Reflected in Authoritative Sources of Utah Public Policy ¶19 We will not recognize a public policy as an exception to the at-will rule unless it is reflected in authoritative sources of state public policy. Accordingly, in prior cases we have examined whether a policy is ―plainly defined by legislative enactments, constitutional standards, or judicial decisions.‖21 As we explain in more detail 20 Retherford, 844 P.2d at 966 n.9. 21 Ryan v. Dan’s Food Stores, Inc., 972 P.2d 395, 405 (Utah 1998).
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below, this does not mean that the scope of a particular public policy must be coextensive with the statement of positive law upon which it is based.22 Rather, we look to each authoritative source that bears on the question before us to see if state law reflects an underlying public policy ―so substantial and fundamental that there can be virtually no question as to [its] importance to the public good.‖23 ¶20 That standard is met here. The right of self-defense is enshrined in the Utah Constitution, Utah‘s self-defense statute, and our common law decisions. But as we explain below, Utah law does not set forth an absolute right to meet force with force. Rather, the relevant authorities recognize instances where individuals have a duty to retreat before engaging in self-defense. We first discuss state constitutional provisions and then examine the self-defense statute and Utah common law decisions. 1. The Utah Constitution evinces a public policy favoring the right of self-defense ¶21 ―Our most fundamental and least ephemeral expression of public policy are found in the Utah Constitution.‖24 The Employees argue that two constitutional provisions support their position that there is a ―clear and substantial‖ public policy in favor of selfdefense. These provisions include article I, sections 1 and 6 of the Utah Constitution. We agree with the Employees and conclude that both provisions evince a clear and substantial public policy favoring the right of self-defense. ¶22 First, the language in article I, section 1 unequivocally recognizes that ―[a]ll men . . . the inherent and inalienable right to enjoy and defend their lives and liberties.‖ The section‘s drafters did not place any temporal or geographic restrictions on the scope of that right, and there is simply no way to read the text as establishing a right of self-defense at an individual‘s home or in public, but not at his or her place of business. Nevertheless, Wal-Mart argues that this provision cannot provide a basis for recognizing a ―clear and substantial‖ public policy in favor of self-defense, because the Utah Constitution only protects rights from infringement by state actors. The dissent shares Wal-Mart‘s concern, arguing that constitutional provisions are ―a problematic source of public policy‖ because they 22 See infra ¶¶ 53–58. 23 Rackley v. Fairview Care Ctrs., Inc., 2001 UT 32, ¶ 18, 23 P.3d 1022 (internal quotation marks omitted). 24 Hansen v. Am. Online, Inc., 2004 UT 62, ¶ 12, 96 P.3d 950.
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―preserve[] fundamental rights of citizenship from incursion by the government,‖ not provide ―rights in the workplace‖ that insulate employees from an employer‘s personnel decisions.25 ¶23 This argument misapprehends the nature of the at-will doctrine. At-will employment and exceptions to it are common law rules.26 And such rules, by their very nature, do ―not rest for their authority upon any express or positive statute or other written declaration.‖27 To be sure, our caselaw tethers the scope of public policy exceptions to those policies ―plainly defined‖ by statements of positive law. But we have also recognized that this inquiry involves ―loo[king] beyond the provision in question to determine whether the motivating policy behind it constitutes a clear and substantial public policy.‖28 For that reason, it is ―entirely within our province‖ to recognize public policy exceptions based on constitutional provisions and other authoritative sources that do not directly regulate employment.29 And as we discuss in more detail below, neither must a recognized exception be coextensive with the source of positive law upon which it is based.30 25 Infra ¶¶ 93−94 (emphasis added) (internal quotation marks omitted). 26 See, e.g., Touchard v. La-Z-Boy Inc., 2006 UT 71, ¶ 21, 148 P.3d 945 (noting that ―wrongful discharge is a common law claim‖ and concluding that the ―lack of an anti-retaliation provision‖ in the Workers‘ Compensation Act ―does not affect this court‘s ability to recognize this state‘s public policy for purposes of a wrongful discharge cause of action‖); Price v. W. Loan & Sav. Co., 100 P. 677, 680 (Utah 1909) (holding as a matter of contract law that where an employment agreement did not specify a term of employment, the agreement ―was terminable at will by either party‖). 27 Egbert v. Nissan Motor Co., 2010 UT 8, ¶ 16, 228 P.3d 737 (internal quotation marks omitted). 28 Rackley, 2001 UT 32, ¶ 23. 29 See Touchard, 2006 UT 71, ¶ 21. 30 See infra ¶¶ 53–58. This does not mean public policy exceptions can be conjured up out of whole cloth, however. We have previously cautioned that there must be much more than a ―mere hint [of] such an underlying policy‖ in the statute, constitutional provision, or judicial decision at issue. Rackley, 2001 UT 32, ¶ 23. And both the nature and content of such sources must show that the policy itself is ―so substantial and fundamental that there can be virtually no (Continued)
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¶24 For these reasons, the Employees‘ reliance on the Utah Constitution is entirely appropriate. Indeed, we have affirmed the relevance of constitutional provisions to this issue in almost every decision since the public policy exception was first recognized.31 The Employees do not claim that Wal-Mart violated article I, section 1. Rather, the Employees cite this provision merely to show that the Utah Constitution supports the notion that Utah law reflects a state public policy in favor of self-defense. For this reason, and based on
question as to [its] importance for promotion to the public good.‖ Berube v. Fashion Ctr., Ltd., 771 P.2d 1033, 1043 (Utah 1989). 31 Touchard, 2006 UT 71, ¶ 12 (―A public policy is ‗clear‘ only if plainly defined by legislative enactments, constitutional standards, or judicial decisions.‖ (internal quotation marks omitted)); Hansen, 2004 UT 62, ¶ 12 (stating that the ―most fundamental and least ephemeral expressions of public policy are found in the Utah Constitution‖); Rackley, 2001 UT 32, ¶ 16 (―We have stated that a public policy is ‗clear‘ if it is plainly defined by one of three sources: (1) legislative enactments; (2) constitutional standards; or (3) judicial decisions.‖); Burton v. Exam Ctr. Indus. & Gen. Med. Clinic, Inc., 2000 UT 18, ¶ 6, 994 P.2d 1261 (―Declarations of public policy can be found in constitutions and statutes.‖); Dixon v. Pro Image Inc., 1999 UT 89, ¶ 31, 987 P.2d 48 (―A public policy is ‗clear‘ only if plainly defined by legislative enactments, constitutional standards, or judicial decisions.‖ (internal quotation marks omitted)); Ryan, 972 P.2d 395, 405 (Utah 1998) (―A public policy is ‗clear‘ only if plainly defined by legislative enactments, constitutional standards, or judicial decisions.‖); Retherford v. AT & T Commc’ns of Mountain States, Inc., 844 P.2d 949, 960 (Utah 1992) (―[O]nly those public policies that are ‗clear‘ and ‗substantial‘ and arise from statutes or constitutions qualify for vindication through the tort of discharge in violation of public policy.‖); Peterson v. Browning, 832 P.2d 1280, 1282 (Utah 1992) (―[D]eclarations of public policy can be found in our statutes and constitutions.‖); Hodges v. Gibson Prods. Co., 811 P.2d 151, 165–66 (Utah 1991) (―[T]he public policy that may be the basis for a wrongful discharge action should be defined in the first instance by legislative enactments and constitutional standards which protect the public or promote the public interest.‖ (internal quotation marks omitted)); Berube, 771 P.2d 1033, 1043 (Utah 1989) (recognizing that ―public policy‖ can be ―deduc[ed] in the given circumstances from constitutional or statutory provisions‖ (internal quotation marks omitted)).
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the unqualified right recognized in section 1‘s text,32 we reject WalMart‘s argument and conclude that this provision evidences a public policy favoring the right of self-defense.33 ¶25 Second, article I, section 6 also supports recognition of a clear and substantial public policy favoring the right of self-defense. That section provides, The individual right of the people to keep and bear arms for security and defense of self, family, others, property, or the state, as well as for other lawful purposes shall not be infringed; but nothing herein shall prevent the Legislature from defining the lawful use of arms.34 Like article I, section 1, this provision recognizes an ―individual right‖ for ―defense of self, family, others, property, or the state,‖ and it provides that this right ―shall not be infringed.‖35 And the text places no restrictions or qualifications on when or where that right may be exercised. ¶26 Section 6 also recognizes another right, one for which the text does allow the legislature to impose restrictions—the right ―to keep and bear arms‖ for self-defense or any other lawful purpose.
32 The dissent characterizes the right recognized in article I, section 1 as ―vague‖ and ―aspirational‖ in ―nature,‖ and concludes that without more specificity, we have ―no idea what that right entails.‖ Infra ¶ 97. We see no ambiguity in the text—it unambiguously recognizes Utah citizens‘ ―inalienable right‖ to ―defend their lives.‖ And as we explain below, Utah has recognized a right of self-defense with a duty to retreat since statehood. See infra ¶¶ 29–34. This is strong evidence that the original meaning of article I, section 1 encompasses a right with those basic contours. See Am. Bush v. City of S. Salt Lake, 2006 UT 40, ¶ 51, 140 P.3d 1235 (considering ―[b]oth the common law and statutory law in force at the time of the formation of [the Utah] constitution‖ to determine what kinds of speech are protected by article I, section 7 of the state constitution). 33 Wal-Mart makes this argument with respect to each constitutional and statutory provision discussed below, and in each case we reject it for the same reasons we do so here. 34 UTAH CONST. art. I, § 6. 35 Id.
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This section allows the legislature to ―defin[e]‖ what constitutes ―the lawful use of arms,‖36 and our legislature has enacted a number of restrictions on the use of firearms under this provision.37 But there is no language in section 6 that extends the legislature‘s authority to impose restrictions on the broader right of self-defense. ¶27 Wal-Mart focuses on the legislative restrictions allowed in section 6 and argues that we have already determined that the rights recognized in that provision are not clear and substantial public policies. In support, Wal-Mart cites Hansen v. American Online, Inc.38 But in that case, we were asked to determine ―whether the right to keep and bear arms in Utah is a public policy which is so clear and substantial as to supersede an employer‘s attempt to restrict weapons in the workplace by contract.‖39 We held that the right did not outweigh an employer‘s interests, primarily because ―the legislature ha[d] purposefully declined to give the right to keep and bear arms absolute preeminence over the right to regulate one‘s own private property.‖40 Our opinion was completely silent regarding the broader right of self-defense. ¶28 Accordingly, we reject Wal-Mart‘s contention that Hansen forecloses recognition of a policy in favor of self-defense. And we conclude that article I, sections 1 and 6 of the Utah Constitution are strong evidence that Utah has a clear and substantial public policy of allowing individuals to protect themselves and others from imminent harm. 2. Utah‘s ―Stand Your Ground‖ statute and common law decisions also reflect a public policy favoring the right of self-defense ¶29 Provisions of the Utah Code similarly support recognition of a public policy supporting the right of self-defense. Utah has been a ―Stand Your Ground‖ state since 1994.41 Utah Code section 76-2-401 provides ―a defense to prosecution for any offense‖ if the defendant acted to protect himself or others from imminent harm, as described
36 Id. 37 See, e.g., Hansen, 2004 UT 62, ¶¶ 15, 23 (discussing Utah statutes that restrict the possession and use of firearms). 38 2004 UT 62. 39 Id. ¶ 20 (emphasis added). 40 Id. (emphasis added). 41 See 1994 Utah Laws 281.
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in section 402.42 In framing the scope of that right, section 402 allows a person to ―threaten[] or us[e] force against another when and to the extent that the person reasonably believes that force or a threat of force is necessary to defend the person or a third person against . . . imminent . . . unlawful force.‖43 The statute further provides that there is generally no ―duty to retreat from the force or threatened force‖ if the person is located in a place where he or she ―has lawfully entered or remained.‖44 But there are exceptions—a person may not engage in self-defense if he or she ―was the aggressor or was engaged in combat by agreement‖ and made no attempt to ―withdraw[] from the encounter.‖45 ¶30 Like the constitutional provisions discussing the right of self-defense, this statute is strong evidence of a state public policy favoring self-defense. Of course, the terms of the ―Stand Your Ground‖ statute are not unequivocal—a person who is lawfully located in a place may have a duty to retreat depending on the circumstances. For instance, the statute recognizes a duty to retreat where the person exercising self-defense was engaged in combat by agreement or was the initial aggressor.46 And a person whose presence on another‘s property is not lawful—like a trespasser—is not ―in a place where‖ he or she has ―lawfully entered or remained,‖ and the person must accordingly retreat under the plain terms of the statute before exercising the right to self-defense.47 ¶31 We note, however, that the right described in our selfdefense statutes and the one recognized in the state constitution do not appear to be coextensive. As we have discussed, Utah did not become a ―Stand Your Ground‖ state until 1994, and if the legislature decided to repeal those provisions of the self-defense statute, we see no reason why that would limit the right of selfdefense recognized in article I, sections 1 and 6 of the Utah
42 UTAH CODE § 76-2-401(1)(a). 43 Id. § 76-2-402(1)(a). 44 Id. § 76-2-402(3). 45 Id. § 76-2-402(2)(a)(iii), -402(3). 46 Id. § 76-2-402(2)(a). 47 Id. § 76-2-402(3); State v. Tuckett, 2000 UT App 295, ¶ 13, 13 P.3d 1060 (noting that ―[u]pon refusing to leave when asked,‖ a criminal defendant ―became a trespasser who had a duty to retreat‖ before engaging in self-defense‖).
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Constitution. After all, Utah law has recognized a somewhat narrower right of self-defense, which included a duty to withdraw, since statehood.48 In other words, ―Stand Your Ground‖ is not the constitutional minimum. And for purposes of the public policy exception to at-will employment, we construe public policies narrowly, protecting ―only those principles which are so substantial and fundamental that there can be virtually no question as to their importance for promotion of the public good.‖49 So even if the ―Stand Your Ground‖ statute absolves someone of criminal liability for using force, that does not necessarily mean Utah recognizes a
48 See REVISED STATUTES OF UTAH § 75-14-4168(3) (1898) (―Homicide is also justifiable when committed by any person . . . in the lawful defense of such person . . . when there is reasonable ground to apprehend a design to commit a felony or to do some great bodily injury, and there is imminent danger of such design being accomplished; but such person, or the person in whose behalf the defense was made, if he was the assailant or engaged in mortal combat, must really and in good faith have endeavored to decline any further struggle before the homicide was committed . . . .‖ (emphasis added)). The Territory of Utah adopted a substantially similar law as early as 1876. See COMPILED LAWS OF UTAH tit. VIII, ch. I, § 1926 (1876). The dissent argues that there is ―no meaningful difference‖ between Utah‘s 1898 self-defense statute and the ―Stand-YourGround‖ law passed in 1994. Rather, the dissent believes that both statutes ―recognize the so-called right to ‗stand your ground‘ as it currently stands.‖ Infra ¶ 101 n.155. The dissent is correct that the duty to retreat outlined in both statutes is similar. But ―Stand-YourGround‖ provides that there is no ―duty to retreat‖ from a place where an individual ―has lawfully entered or remained,‖ UTAH CODE § 76-2-402(3), language that does not appear in the 1898 statute. Additionally, the 1898 statute is limited to providing a justification for certain homicides committed in self-defense, while our current statute provides a more general defense that applies to any ―use of force.‖ Compare REVISED STATUTES OF UTAH § 75-14-4168 (1898) (outlining self-defense and defense of others as circumstances under which ―[h]omicide is also justifiable‖), with UTAH CODE § 76-2402(1)(a) (providing that an individual ―is justified in threatening or using force against another‖ when acting in self-defense or defense of others). 49 Rackley, 2001 UT 32, ¶ 18 (internal quotation marks omitted).
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fundamental public policy that encourages that behavior in every circumstance permitted by statute. ¶32 What our constitution and self-defense statutes do suggest is that although Utah recognizes a public policy that strongly supports the right of self-defense, that policy also embodies a duty to retreat in some circumstances before the right may be exercised. And one such circumstance is where an individual‘s right to engage in selfdefense conflicts with property owners‘ rights to decide who may ―lawfully‖ enter or remain in their home or place of business.50 ¶33 That is not to say employees defending themselves in the workplace are on the same footing as a trespasser or someone engaged in mutual combat when raising a defense to a criminal prosecution or seeking to establish a public policy exception to atwill employment. Clearly they are not. Rather, it is simply a recognition that authoritative sources of state public policy do not plainly define a right of self-defense that is absolute. So to the extent the Employees suggest that Utah public policy does not contemplate a duty to retreat in the workplace under any circumstances, they are mistaken. ¶34 This conclusion is also supported by Utah common law. Historically, Utah courts have also recognized a broad right of selfdefense that, depending on the circumstances, may involve a duty to retreat before it is exercised. Utah courts have long held that ―a man has the same right to defend his place of business against intruders as he has to defend his dwelling. He is no more under the necessity of retreating in the one instance than in the other when he is being assailed.‖51 But like the ―Stand Your Ground‖ statute, our common law decisions also recognize circumstances in which a person must retreat before engaging in self-defense. For example, as early as 1893, we held that trespassers and initial aggressors have a duty to retreat.52 In People v. Hite, we approved the following jury instruction where a defendant was accused of threatening a homeowner with a gun and then killing the homeowner on his front porch during a shootout: ―If . . . the defendant went to the house there wrongfully . . . for the purpose of a quarrel, and by his own acts put himself in that position, . . . it was his duty to retreat . . . and decline any 50 UTAH CONST. art. I, § 1 (recognizing the ―inalienable right . . . to acquire, possess, and protect property‖). 51 State v. Turner, 79 P.2d 46, 54 (Utah 1938). 52 People v. Hite, 33 P. 254, 257 (Terr. Utah 1893).
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controversy, if he could with safety.‖53 Otherwise, the defendant ―could not justify the homicide on the ground of self-defense.‖54 Our caselaw, like the ―Stand Your Ground‖ statute, thus articulates a broad right of self-defense that applies at a person‘s home or place of business, with a limited duty to retreat, depending on the circumstances. These sources are accordingly strong evidence that Utah has a clear and substantial public policy favoring the right of self-defense. ¶35 Wal-Mart nevertheless argues that the ―Stand Your Ground‖ statute does not apply here, because the purpose of the statute was to protect spouses in situations of domestic abuse, not to allow individuals to defend themselves in the workplace. In support, Wal-Mart cites several pieces of legislative history that show the purpose of the statute was to protect abused spouses from having to flee their homes. Specifically, Wal-Mart references a 1994 House Bill amending section 76-2-402, which states, Section 2. Legislative Intent. Amendments made by this act to Section 76–2–402, regarding self defense, are intended to clarify that justification of the use of force in defense of a person applies equally to all persons including victims of abuse in ongoing relationships.55 Additionally, the bill‘s sponsor, Representative Barth, stated that we‘ve made it very clear. Remaining in a relationship does not constitute combat by agreement. If you‘re a victim, it‘s sometimes perceived that it‘s your responsibility to leave, to exit your home; but you have every right to be there and you are the victim of a crime. So we‘ve made it very clear that you have every right to be there.56 ¶36 Wal-Mart‘s argument seems to suggest that we should ignore the text of the statute and instead focus on its purpose. As authority for this position, it quotes from our decision in Hansen, where we stated that we are ―not restricted to parsing statutory text 53 Id. 54 Id. 55 1994 Utah Laws 281. 56 Utah State House of Representatives, Floor Deb. on H.B. 13, 50th Utah Leg., Gen. Sess. (Jan. 21, 1994) (Day 5).
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and may properly look to many sources, including legislative history, which may illuminate the dimensions of the public policy at issue.‖57 But Wal-Mart‘s argument misinterprets Hansen. Although the determination of whether there is clear and substantial public policy is not one of traditional statutory interpretation, it certainly is not the case that we are at liberty to ignore statutory text. Rather, Hansen merely establishes that other sources, in addition to statutory text, may evidence a public policy. ¶37 Moreover, even if we accept Wal-Mart‘s argument that one of the purposes of the ―Stand Your Ground‖ act is to allow spouses the option not to retreat, it does not follow that such a purpose is the only purpose of the statute. As the House Bill notes, the statute ―applies equally to all persons including victims of abuse in ongoing relationships.‖58 Nothing in the statement suggests that the statute applies exclusively to victims of domestic abuse. And again, the fact that the statute‘s text is phrased in terms of general applicability, subject to several enumerated exceptions, suggests that its application is not limited solely to domestic disputes. ¶38 In sum, we conclude that the ―Stand Your Ground‖ statute, accompanying statutes that define self-defense, and Utah common law decisions evidence a clear and substantial public policy favoring the right of self-defense. And coupled with the constitutional provisions we have already discussed, we conclude that the right of self-defense is plainly defined by authoritative sources of Utah public policy. This plainly defined policy explicitly recognizes, however, other compelling circumstances in which a person may have a duty to retreat. This factor therefore favors recognizing the policy underpinning the right of self-defense, which sometimes imposes a duty to retreat, as an exception to at-will employment. We now turn to the question of whether this policy is of broad public importance. B. The Right of an Employee to Self-Defense Is of Broad Public Importance
¶39 Even if a public policy is reflected in the Utah Constitution, the Utah Code, and our common law decisions, it is not clear and substantial unless it is ―of overarching importance to the public, as opposed to the parties only.‖59 Otherwise, we will not find that ―the
57 Hansen, 2004 UT 62, ¶ 15 n.7. 58 1994 Utah Laws 281. 59 Retherford, 844 P.2d at 966 n.9.
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public interest is so strong and the policy so clear and weighty that we should place the policy beyond the reach of contract.‖60 To determine whether the exercise of a legal right or privilege is of overarching importance to the public, we examine whether the right confers a benefit on the public or ―inures solely to the benefit of the employer and employee.‖61 Where the legislature has prohibited private parties from waiving the right or privilege by contract, there is strong evidence that the right reflects a clear and substantial public policy,62 though we may nevertheless recognize a policy exception in the absence of such a clear statutory prohibition.63 In this case, because the right of self-defense protects human life and deters crime, we conclude that the right is a matter of broad public importance, not merely an internal matter of employer-employee relations. ¶40 A policy favoring the right of self-defense preserves and protects human life. And society places great value on safety and the preservation of human life. In part, this is because the doctrine of self-defense encapsulates the doctrine of defense of others. Under Utah law, ―[a] person is justified in threatening or using force against another when and to the extent the person reasonably believes that force or threat of force is necessary to defend the person or a third person against another person‘s imminent use of unlawful force.‖64 Our law therefore reflects the common law principle that an ―actor is privileged to defend a third person from‖ harm ―under the same conditions and by the same means as those under‖ which he ―is privileged to defend himself.‖65 A state policy favoring the right of self-defense therefore protects individuals from serious injuries and deters the completion of crime. Even Wal-Mart concedes that the 60 Id. 61 Touchard, 2006 UT 71, ¶ 13. 62 See id. ¶¶ 13, 16 (noting that because the legislature prohibits workers from waiving their workers‘ compensation rights by contract, such rights reflect a clear and substantial public policy). 63 See, e.g., Heslop v. Bank of Utah, 839 P.2d 828, 837–38 (Utah 1992) (holding that the reporting requirements under the Utah Financial Institutions Act amounted to a clear and substantial public policy even though the act does not expressly mention whether parties can contract around these obligations). 64 UTAH CODE § 76-2-402(1) (emphasis added). 65 RESTATEMENT (SECOND) OF TORTS § 76 (1965).
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public likely receives at least indirect benefits from the exercise of this important right. ¶41 For these reasons, we agree with the Employees that the doctrine of self-defense and defending others furthers the public good, rather than simply conferring benefits on private parties. We therefore conclude that this factor weighs in favor of recognizing the right of self-defense as an exception to the at-will rule. ¶42 The dissent argues that self-defense is not a matter of overarching importance to the public, but rather a ―private matter,‖ providing individuals with ―a defense from criminal liability‖ for ―aggressive activity that would otherwise be criminal.‖66 And the dissent maintains that for a policy to be of broad public importance, it must ―redound unquestionably to the public good.‖67 In other words, it must implicate a right upon which ―the employer has no legitimate ground for intervening.‖68 And the dissent concludes that because the right of self-defense is not ―an unmitigated good,‖ employers have legitimate interests in limiting it, and the right therefore does not confer sufficient benefits on the public to qualify as a clear and substantial public policy.69 ¶43 We concede the right of self-defense may not meet the standard the dissent articulates. But that standard is not the one articulated in our caselaw to determine whether a particular legal right or privilege is of overarching importance to the public. The dissent cites Hansen v. America Online, Inc. for the proposition that the exercise of a legal right must be one upon which the employer ―has no legitimate economic ground for intervening.‖70 The Hansen court employed that concept, however, to highlight why a public policy exception based on the ―exercis[e of] a legal right or privilege‖ requires an additional analytical step compared to the other categories of public policy exceptions we have recognized.71 That is, even where a legal right appears plainly defined in authoritative sources and confers substantial benefits on the public at large, a court must still balance the ―competing legitimate interests‖ of the 66 Infra ¶ 109. 67 Infra ¶¶ 111–16. 68 Infra ¶ 111. 69 Infra ¶¶ 111–12 (citing Hansen, 2004 UT 62, ¶ 10). 70 Infra ¶ 111 (citing Hansen, 2004 UT 62, ¶ 10). 71 See Hansen, 2004 UT 62, ¶¶ 9–10.
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employer and employee to determine whether the right supports a wrongful discharge claim.72 The ―legitimate economic ground‖ language had nothing to do with determining whether a legal right qualifies as a matter of broad public importance. ¶44 In Hansen, we noted that our caselaw recognizes four categories of public policy exceptions to at-will employment: (1) refusing to commit an illegal or wrongful act, (2) performing a public obligation, (3) exercising a legal right or privilege, and (4) reporting to a public authority criminal activity of the employer.73 We observed that the first two categories are exceptions to the at-will rule because an employer ―owes a duty to an employee . . . not to exploit the employment relationship by demanding that an employee choose between continued employment and violating a law or failing to perform a public obligation of clear and substantial import.‖74 And this is because ―the extortionate use of termination to coerce an employee to commit unlawful acts or avoid public obligations serves no legitimate economic objective and corrodes civil society.‖75 ¶45 In contrast, where an employer asks an employee to waive ―a legal right or privilege, even a right or privilege which carries strong public policy credentials,‖ we noted that the employee will not be exposed ―to possible criminal penalties or other legal sanctions.‖76 So such claims will often involve ―a balancing of competing legitimate interests: the interests of the employer to regulate the workplace environment . . . and the interests of the employees to maximize access to their statutory and constitutional rights within the workplace.‖77 ¶46 Thus, the language in Hansen the dissent cites indicates when courts must balance the competing interests of the employee and the employer. It does not speak to whether a legal right or privilege implicates a matter of broad public importance. So even though employers have legitimate economic reasons to limit the conditions under which their employees may engage in self-defense, 72 See id. ¶ 11. 73 Id. ¶ 9. 74 Id. ¶ 10. 75 Id. (emphasis added). 76 Id. ¶ 11. 77 Id.
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that does not alter our conclusion that the right is of overarching importance to the public. Instead, it requires that our analysis not end with the conclusion that the right of self-defense is both plainly defined in authoritative sources and a matter of broad public importance. We must then carefully balance the Employees‘ interest in exercising that right against Wal-Mart‘s interest in regulating its workforce and private property. It is that question to which we now turn. C. The Right of Self-Defense Outweighs the Countervailing Interest of Wal-Mart to Regulate the Workplace ¶47 Having concluded that the first two factors weigh in favor of recognizing the right of self-defense as a clear and substantial public policy exception to at-will employment, we now turn to the third factor: whether the public policy outweighs employers‘ interest in being able ―to manage their workforces and regulate their workplace environments to promote productivity, security, and similar lawful business objectives.‖78 Wal-Mart argues that self-defense does not outweigh employers‘ interest in maintaining a safe workplace through non-confrontation and de-escalation policies. Additionally, it claims that our decision in Hansen already weighed these competing policies in employers‘ favor and that virtually every jurisdiction to decide the issue has refused to recognize a selfdefense exception to at-will employment. We reject these arguments and conclude that employers‘ interests do not outweigh the right of individuals to defend themselves. But because the public policy reflected in Utah self-defense law recognizes a duty to retreat in some circumstances, and because Wal-Mart has strong interests in regulating its workforce and property, our decision is limited to circumstances in which an employee faces an imminent threat of serious bodily harm and has no opportunity to withdraw. ¶48 Wal-Mart maintains that Utah has a strong public policy in favor of de-escalation and non-confrontation policies that outweighs an employee‘s right of self-defense. In support, Wal-Mart cites to a number of sources. For instance, the Utah Occupational Safety and Health Agency found that ―[b]ehavioral strategies for workplace violence prevention suggest training employees in nonviolent response and conflict resolution.‖79 The Utah Code also requires that 78 Touchard, 2006 UT 71, ¶ 17, 148 P.3d 945 (internal quotation marks omitted). 79 UTAH OCCUPATIONAL HEALTH AND SAFETY DIVISION, UOSH SAFETY LINE NEWSLETTER (Nov. 2010), available at http://laborcommi (Continued)
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―employer[s] . . . furnish to each of [their] employees . . . a place of employment that [is] free from recognized hazards that are causing or are likely to cause death or physical harm.‖80 Moreover, multiple federal agencies, such as the Occupational Safety and Health Administration and the National Institute for Occupational Safety and Health, have recommended that employers maintain policies requiring non-resistance during robberies, as well as training in nonviolent response.81 Wal-Mart argues that its Policy AP-09 is in line with such recommendations. ¶49 These policies are undoubtedly important, and Wal-Mart argues that recognizing a public policy exception for the right of selfdefense ―would obliterate employers‘ ability‖ to implement them. In particular, it claims that because self-defense is a factually intensive issue, employers will never be certain if they can terminate an employee without facing a possible wrongful termination lawsuit. Employees will then be able to flout de-escalation policies with impunity because the benefits to the employer of enforcing these policies will not outweigh the likely cost of litigating the wrongful termination claims of every employee terminated for failing to follow them. As a result, Wal-Mart argues, employers may scrap deescalation and non-confrontation policies altogether.
ssion.utah.gov/media/pdfs/uosha/pubs/newsletters/newsletters2 010/112010 Safety Line.pdf (last visited Aug. 13, 2015). 80 UTAH CODE § 34A-6-201(1). 81 OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, RECOMMENDATIONS FOR WORKPLACE VIOLENCE PREVENTION PROGRAMS IN LATE-NIGHT RETAIL ESTABLISHMENTS (OSHA 3153-12R), at 11 (2009), available at https://www.osha.gov/Publications/osha3153.pdf (last visited Aug. 13, 2015) (recommending that workplace safety training should include ―[s]pecific instructions on how to respond to a robbery such as turning over money or valuables without resistance‖); THE NATIONAL INSTITUTE FOR OCCUPATIONAL SAFETY AND HEALTH, PREVENTING HOMICIDE IN THE WORKPLACE (PUB. NO. 93-109) (May 1995), available at http://www.cdc.gov/niosh/docs/93-109 (last visited Aug. 13, 2015) (stating that preventative measures to reduce workplace homicides include ―[p]rovid[ing] training in conflict resolution and nonviolent response [and] . . . [a]void[ing] resistance during robbery‖).
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¶50 We agree with Wal-Mart that employers have a strong interest in preventing employees from using force in the workplace, even in self-defense. To some extent, by requiring trespassers to retreat before engaging in self-defense, Utah law recognizes the importance of allowing business owners to regulate access to and use of their property.82 As Wal-Mart points out, this interest is also recognized in statutes and regulations at both the state and federal level. And Wal-Mart‘s argument that employers will be subject to expensive litigation if employees are allowed to exercise self-defense is particularly weighty. ¶51 But ultimately, we believe that the public policy favoring the right of self-defense outweighs these interests, at least in the narrow circumstances presented in this case. For purposes of certifying the question in this case to us, the federal district court assumed that all the Employees were ―unable to safely disengage‖ from a threat of violence. In such circumstances, the employee faces the prospect of severe injury or death with no opportunity to withdraw. Under Utah‘s ―Stand Your Ground‖ statute and Utah‘s common law decisions, even an initial aggressor or trespasser who makes a good faith effort to flee may still engage in self-defense if there is no opportunity to safely withdraw.83 The law should not require employees to choose between keeping their jobs and protecting themselves or others from a serious, imminent threat of harm. And in light of the impressive constitutional and statutory pedigree the right of self-defense enjoys in our state,84 we hold that Utah law does not require employees to make that choice. Consequently, where an at-will employee is unable to withdraw from an imminent threat of death or serious bodily harm, the employer may not terminate the employee for exercising the right of self-defense. And employees fired for defending themselves in such circumstances may bring a wrongful termination claim against their employer. ¶52 In so holding, we note that Wal-Mart‘s policy may be consistent with the clear and substantial public policy exception we
82 See supra ¶¶ 27–30. 83 See UTAH CODE § 76-2-402(2)(a)(iii), (3); People v. Hite, 33 P. 254, 257 (Terr. Utah 1893) (―If it appears from the evidence . . . that the defendant went to the house there wrongfully . . . it was his duty to retreat from that, and decline any controversy, if he could with safety. He was not bound to run away, and take a shot in the back.‖). 84 See supra ¶¶ 21–28, 29–31.
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recognize today. Policy AP-09 explicitly allows employees to ―defend themselves or others to the extent necessary to disengage the Suspect, withdraw from the situation and contact law enforcement.‖ Although it does not say so explicitly, this language implies that an employee who had no opportunity to ―disengage‖ and ―withdraw from the situation‖ would be entitled to defend themselves. Further, there is no reason why Wal-Mart and other employers cannot continue to train their employees to disengage and withdraw from dangerous situations when there is no imminent threat of serious bodily injury or a reasonable opportunity to withdraw—in such a situation, we hold that an employer‘s interest in regulating its workforce and property outweighs employees‘ interest in defending themselves without fear of being terminated. ¶53 The dissent raises two primary objections to this conclusion, arguing that (1) the public policy we recognize is ―not the right enshrined in our law,‖ but a ―new one, tailored to the employment context‖ that is unsupported by any of our ―cited authorities,‖85 and (2) our ruling is premised largely on an inappropriate assumption that the Employees were unable to withdraw.86 We address each of these arguments in turn. ¶54 The dissent‘s first argument is inconsistent with the way we have applied the doctrine since its inception. As we have discussed, at-will employment and exceptions to it are common law rules that do not depend on statutes or other statements of positive law for their authority.87 For that reason, public policy exceptions need not be coextensive with the statutes or constitutional provisions upon which they are based.88
85 Infra ¶¶ 91, 92, 95. 86 Infra ¶¶ 82, 117–22. 87 See supra ¶ 23. 88 See, e.g., Hansen, 2004 UT 62, ¶ 15 n.7 (noting that in analyzing whether a public policy is plainly defined in authoritative sources of Utah law, ―the issue before us is not one of statutory interpretation,‖ so ―the centerpiece of our inquiry is the strength and scope of public policy‖ and ―our efforts to assay this question‖ are accordingly ―not restricted to parsing statutory text‖); Rackley, 2001 UT 32, ¶ 10 (―We agree with plaintiff that if we were to require the law to be so specifically tailored, the public policy exception would be meaningless.‖).
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¶55 For example, in Peterson v. Browning, we held that a private employer could not terminate an employee for refusing to violate state tax law and federal customs law.89 In support, we cited the Utah Protection of Public Employees Act, which protects public employees from being discharged for ―reporting a violation of a law, or rule promulgated under the law of this state, a political subdivision of this state, or any recognized entity of the United States.‖90 We noted that even though ―the statute does not specifically limit the rights of private employers or address the employer who directs an employee to engage in unlawful conduct,‖ it reflected ―legislative approval of the basic proposition that it is against the public policy of the state for employers to discharge employees who seek to act within the law.‖91 ¶56 Similarly, in Heslop v. Bank of Utah,92 we recognized a public policy exception based on a statute that said nothing about the employer-employee relationship. In that case, we held that a bank employee could not be terminated for making an internal report about the bank‘s noncompliance with state reporting requirements.93 The authoritative source we relied on to ―plainly define‖ the public policy at issue was section 7-1-318 of the Utah Financial Institutions Act, which ―makes failure or refusal to submit accurate and timely call reports‖ to state regulators ―a third degree felony.‖94 But nothing in the Act prohibited an employer from firing someone for reporting a violation, and none of its provisions regulated the employeeemployer relationship in any respect.95 ¶57 More recently, in Touchard v. La-Z-Boy Inc., we rejected a company‘s argument that the lack of an anti-retaliation provision in the Workers‘ Compensation Act precluded us from crafting a public policy exception that would prevent employers from firing workers for seeking workers‘ compensation benefits.96 We noted that because 89 832 P.2d at 1283. 90 Id. at 1281 n.2 (emphasis added) (internal quotation marks omitted). 91 Id. 92 839 P.2d 828. 93 Id. at 838. 94 Id. at 837. 95 See UTAH CODE § 7-1-318. 96 2006 UT 71, ¶ 21.
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―wrongful discharge is a common law claim,‖ the absence of such a provision ―does not affect this court‘s ability to recognize this state‘s public policy for purposes of a wrongful discharge cause of action.‖97 We then held that Utah law reflects a clear and substantial public policy prohibiting employers from terminating a worker for seeking benefits guaranteed by the Act.98 ¶58 In two of these cases, we recognized public policy exceptions based on statutes that did not regulate employment. And in all three, the scope of each exception exceeded the statement of positive law upon which it was based. So to the extent the dissent suggests that public policy exceptions must be coextensive with statements of positive law, that assertion is inconsistent with the nature of the doctrine as well as our holdings in several cases. ¶59 Moreover, if employees could rely only on those sources that explicitly regulate the employment relationship to establish a public policy exception, it would render the public policy exception effectively meaningless. For almost two decades, we have recognized three ways an employee can rebut the presumption of atwill employment: (1) there is an implied or express agreement that the employment may be terminated only for cause or upon satisfaction of [some] agreed-upon condition; (2) a statute or regulation restricts the right of an employer to terminate an employee under certain conditions; or (3) the termination of employment constitutes a violation of a clear and substantial public policy.99 If the only statutes that qualify as an authoritative source of public policy are those that directly regulate the employee-employer relationship, it seems likely that many of them would be statutes that ―restrict[] the right of an employer to terminate an employee under certain conditions.‖100 Consequently, limiting our analysis to only those sources of law that directly regulate employment would require us to overrule much of our precedent in this area of the law.
97 Id. 98 Id. ¶ 19. 99 Hansen, 2004 UT 62, ¶ 7 (internal quotation marks omitted); accord Touchard, 2006 UT 71, ¶ 3; Fox v. MCI Commc’ns Corp., 931 P.2d 857, 859 (Utah 1997). 100 See Touchard, 2006 UT 71, ¶ 3.
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¶60 The dissent next argues that our ruling is the result of how we have ―frame[d]‖ the question.101 In particular, the dissent believes our assumption ―that the Employees were unable to safely disengage‖ is ―not an element of the question certified for our review,‖ but rather ―an outgrowth of the summary judgment posture of the case as it currently stands.‖102 And because the dissent thinks it likely that none of the Employees in this case and very few in future cases would be fired under circumstances where they were unable to withdraw form imminent harm, the dissent would leave it to employers to decide whether employees were justified in defending themselves.103 ¶61 This argument is unpersuasive for two reasons. First, because this case requires us to answer a certified question, there is no need to ―frame‖ the question ourselves; the federal district court has already done that for us. And our opinion simply quotes the legal question put to us by the federal district court along with the factual circumstances it asked us to assume for purposes of answering that question. ¶62 The district court‘s order of certification frames the question as follows: ―Is the right of self-defense a substantial public policy exception to the at-will employment doctrine, which provides the basis for a wrongful discharge action?‖ And the order references the court‘s memorandum decision, which includes a section entitled, ―Facts Assumed to Be True for Certification.‖ The district court notes that there is a factual dispute about whether the Employees could safely withdraw, but ―before a jury may resolve these disputed factual issues, the court must first ascertain that there is a legal basis on which the Plaintiffs may proceed. Accordingly, the court assumes for purposes of certifying the self-defense question to the Utah Supreme court‖ that the Employees ―were unable to safely disengage.‖ So even if the dissent is correct that these assumed facts represent an ―outlier case,‖104 it is nevertheless the case squarely presented to us by the certified question. And moreover, this
101 Infra ¶ 80. 102 Infra ¶ 81. 103 Infra ¶¶ 82 n.140, 82–83, 116–20. 104 Infra ¶ 119.
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practice—of presenting a state court with assumed facts for purposes of answering a certified question—is a standard one.105 ¶63 Second, the dissent allows speculation about what a jury might decide drive its analysis of the certified question. Even if it is likely, as the dissent maintains, that Wal-Mart will ultimately prove that the Employees ―fought back unnecessarily,‖106 this is a decision appropriately left to the jury. The dissent acknowledges that ―we do not know exactly what happened in the confrontations that led to the wrongful termination claims against Wal-Mart,‖107 and that our ―approach might make sense in a case in which it is undisputed that an employee has no possible means of withdrawal.‖108 But rather than simply accept the facts the federal district court asked us to assume for purposes of certification, the dissent argues that ―the record on summary judgment supports the conclusion that WalMart made a reasonable judgment in concluding that its employees fought back when they could have reasonably disengaged‖109 and concludes that this ―is easily enough to defeat the public policy basis for a claim for wrongful termination in this case.‖110 We leave this question to the jury. And far from ―loading the dice in favor‖ of the Employees,111 we are merely making the assumptions the district court has asked us to make, rather than venturing into speculation. ¶64 When presented with a certified question, our role is to simply ―answer the legal questions presented without resolving the underlying dispute.‖112 It is certainly true, as the federal district court acknowledged, that the Employees ―may fail to convince a jury
105 See, e.g., Stone v. Smith, Kline & French Labs., 447 So. 2d 1301, 1301–03 (Ala. 1984); Wash. Metro. Area Transit Auth. v. Johnson, 726 A.2d 172, 173–74 (D.C. 1999); Canal Elec. Co. v. Westinghouse Elec. Corp., 548 N.E.2d 182, 184 (Mass. 1990); Horn v. S. Union Co., 907 A.2d 691, 691 (R.I. 2006) (mem.). 106 Infra ¶ 118. 107 Infra ¶ 83. 108 Infra ¶ 82 n.140. 109 Infra ¶ 83. 110 Infra ¶ 83. 111 Infra ¶ 82. 112 Iverson v. State Farm Mut. Ins. Co., 2011 UT 34, ¶ 8, 256 P.3d 222 (internal quotation marks omitted).
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of these facts, and therefore Wal-Mart may win its case even if the Plaintiffs are allowed to proceed on their self-defense theory.‖ But such a determination is one for a future federal jury to make, not this court. The dissent‘s approach would therefore allow speculation about what a jury might find drive our answer to the certified question, which inappropriately steps in to the jury‘s role and ignores the federal district court‘s explicit request that we assume certain facts to be true for purposes of resolving unsettled issues of state law. ¶65 Moreover, in holding otherwise, we are not resolving any underlying factual disputes or ―loading the dice‖ in favor of employees; we are letting them have their day in court to prove a claim the dissent acknowledges ―makes sense‖ in circumstances where ―an employee has no possible means of withdrawal.‖ By contrast, the dissent‘s approach would simply trust employers to make the appropriate decision on whether an employee acted in reasonable self-defense or retaliation, and the dissent asserts ―[i]t would be the rare employer . . . 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.‘‖113 That may or may not be true. But speculation about employers‘ personnel decisions is not relevant to deciding whether self-defense is the kind of clear and substantial public policy that qualifies as an exception to the at-will rule.114 ¶66 Finally, we note that our decision today is consistent with persuasive authority from other jurisdictions. Wal-Mart maintains that virtually every jurisdiction to consider the issue has determined that employers‘ rights to manage their workforce and create a safe environment outweigh employees‘ right of self-defense. And it urges us to adopt the reasoning in these decisions. In support, it cites cases
113 Infra ¶ 118. 114 The dissent characterizes our holding as prohibiting ―the matter addressed by Wal-Mart‘s de-escalation policy‖ from being ―a proper subject of voluntary contract.‖ See infra ¶ 84 n.143. This overstates the scope of our holding. Employees may only raise the public policy exception we recognize today when they have no opportunity to withdraw from serious imminent harm. As we have discussed, nothing in our decision today prohibits employers from requiring their employees to disengage from violent situations when they have such an opportunity. See supra ¶ 52.
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from Pennsylvania,115 Maryland,116 North Carolina,117 and two federal district courts.118 The courts in each case declined to recognize a self-defense exception to at-will employment.119 But several of these cases are distinguishable, and we find the reasoning of another case from West Virginia120 more persuasive. ¶67 The policy-weighing analysis in both the Maryland case and the federal district court decisions are distinguishable because they involve a much more expansive view of self-defense than the Employees assert in this case. The plaintiffs in these cases articulated a right of self-defense that encompassed instances where employees used force in retaliation or in circumstances where there was an opportunity to withdraw. In Bagwell v. Peninsula Regional Medical Center, the Maryland Court of Special Appeals concluded that an employee terminated by a hospital could not base a wrongful termination claim on the fact that she was fired for defending
115 Scott v. Extracorporeal, Inc., 545 A.2d 334, 342–43 (Pa. Super. Ct. 1988) (refusing to recognize a self-defense exception to at-will employment because ―the public policy asserted by appellant—the right to exercise self-defense—strikes entirely too near the employer‘s legitimate interest in discharging employees it perceives to be disruptive‖). 116 Bagwell v. Peninsula Reg’l Med. Ctr., 665 A.2d 297, 312–13 (Md. 1995). 117 McLaughlin v. Barclays Am. Corp., 382 S.E.2d 836, 840 (N.C. Ct. App. 1989) (declining to recognize a self-defense exception to at-will employment because the court did ―not perceive‖ any substantial ―deleterious consequences for the general public‖). 118 Hoven v. Walgreen Co., No. 1:11-cv-881, 2012 WL 6025790, at *5 (W.D. Mich. Dec. 4, 2012) (dismissing cause of action for wrongful determination where an employee fired a gun during an attempted robbery, because the constitutional provisions and statutes upon which the plaintiff relied ―are not directed at conferring rights on employees‖ (internal quotation marks omitted)); Johnson v. CVS Pharmacy, Inc., No. C 10-03232, 2011 WL 4802952, at *5 (N.D. Cal. Oct. 11, 2011) (declining to recognize a self-defense public policy exception to at-will employment because the ―state courts in California‖ had not ―authoritatively establish[ed]‖ such a claim). 119 See supra nn. 115–18. 120 Feliciano v. 7-Eleven, Inc., 559 S.E.2d 713 (W. Va. 2001).
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herself.121 But the court also noted that ―all the evidence‖ in the case ―points to the conclusion‖ that the hospital fired the employee because it believed she ―acted in retaliation,‖ not self-defense.122 Similarly, in Johnson v. CVS Pharmacy, five employees were fired after physical altercations and name-calling throughout the day culminated in a brawl at the back of the store.123 The Northern District of California held that the employees did not have a wrongful discharge claim and expressed reluctance ―to recognize such [wrongful termination claim], at least on the facts here.‖124 ¶68 The competing policies in Bagwell and Johnson differ in important ways from the policies at issue here. In each case, the plaintiffs articulated a right of self-defense that extended to situations where employees used force in retaliation or in circumstances where it would have been safe to withdraw and contact law enforcement. And the courts ultimately determined that the relative benefits of such a broad right of self-defense were outweighed by the employers‘ countervailing interests. Here, by contrast, the certified question requires us to assume that the Employees acted to defend themselves and had no opportunity to escape. So the manner in which the courts in those cases weighed the competing policy concerns is not particularly instructive on how we should weigh de-escalation and non-confrontation policies against a much narrower right of self-defense. ¶69 The other federal district court case Wal-Mart cites also involves a much broader right of self-defense. In Hoven v. Walgreen Co., the Western District of Michigan concluded that a pharmacist who was terminated for firing a gun during an armed robbery could not maintain a wrongful termination claim.125 The court noted that Michigan law places restrictions on the possession and use of firearms in the workplace, so the plaintiff could not argue that Michigan law evinces a public policy supporting his conduct.126 But here, none of the Employees used a firearm.
121 665 A.2d at 312. 122 Id. at 313. 123 2011 WL 4802952, at *1–*2. 124 Id. at *5. 125 2012 WL 6025790, at *1, *4–*5. 126 Id. at *5.
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¶70 The other cases Wal-Mart cites are on point, but as we discuss in more detail below, we find the reasoning from a West Virginia case to be more persuasive. Decisions in Pennsylvania and North Carolina express skepticism that the judiciary should be involved in deciding whether an employee was justifiably terminated for using force in the workplace. In Scott v. Extracorporeal, Inc., an employee was fired after a coworker knocked her unconscious, even though the employee ―either acted in self-defense or never landed a blow.‖127 The Pennsylvania Superior Court concluded that recognizing a self-defense exception to at-will employment ―would have the unwise effect of transferring to the judicial forum the duty of evaluating the propriety of management decisions.‖128 Similarly, in McLaughlin v. Barclays American Corp., the Court of Appeals of North Carolina affirmed the dismissal of a manager‘s wrongful discharge cause of action where the manager accidentally hit an employee who was attacking him.129 The court reasoned that recognizing a self-defense exception to at-will employment would allow ―every employee involved in an altercation‖ to ―assert a self-defense justification, spawning [a] . . . deluge‖ of wrongful termination litigation.130 ¶71 As we have already noted, these concerns are not unwarranted. But we weigh the relevant policy concerns differently, as did the Supreme Court of West Virginia in Feliciano v. 7-Eleven, Inc. In that case, a cashier was fired after she disarmed a robber and restrained him until law enforcement arrived.131 Somewhat similar to Wal-Mart‘s Policy AP-09, 7-Eleven‘s policy prohibited ―employees from subduing or otherwise interfering with a store robbery.‖132 While acknowledging that employers have ―an interest in protecting [their] staff and customers from harm that may befall them as a result of the employee‘s actions in defending him/herself,‖133 the West Virginia Supreme Court concluded that self-defense was the type of clear and substantial public policy that qualified as an
127 545 A.2d at 335, 342. 128 Id. at 343 (internal quotation marks omitted). 129 382 S.E.2d at 837–38, 840. 130 Id. at 840. 131 559 S.E.2d at 716–17. 132 Id. at 716. 133 Id. at 722.
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exception to at-will employment.134 But because of the ―very real possibility‖ that employees may harm coworkers or innocent bystanders when exercising the right of self-defense, the court limited the public policy exception to instances where an employee responds to ―lethal imminent danger.‖135 ¶72 Wal-Mart attempts to distinguish Feliciano by claiming that the result was driven by idiosyncratic feature of West Virginia law. Specifically, Wal-Mart refers to the West Virginia Supreme Court‘s statement that the right of self-defense had previously been recognized to extend to one‘s place of employment in its prior caselaw: ―In defending himself, his family or his property from the assault of an intruder, one is not limited to his immediate home or castle; his right to stand his ground in defense thereof without retreating extends to his place of business also.‖136 Wal-Mart maintains that Utah common law recognizes no such right. But in fact, our precedent mirrors West Virginia law on this issue. We have stated that ―a man has the same right to defend his place of business against intruders as he has to defend his dwelling. He is no more under the necessity of retreating in the one instance than in the other when he is being assailed.‖137 Feliciano is therefore directly on point, and its reasoning supports the decision we reach today. ¶73 In sum, we conclude that an individual‘s right of selfdefense outweighs an employers‘ interest in regulating its workforce and property through de-escalation and non-confrontation policies. Thus, this factor weighs in favor of recognizing the state policy supporting this important right as the kind of clear and substantial public policy that qualifies as an exception to the at-will employment doctrine. And because the other two factors also support recognition of such an exception, we answer the certified question in the affirmative—an employee may maintain a wrongful termination claim against an employer where the employee is fired for engaging in self-defense, but only if the employee faced an imminent threat of serious bodily harm under circumstances where he or she was unable to safely withdraw.

Outcome: We conclude that Utah law recognizes a policy favoring the right of self-defense, and that policy is the kind of clear and substantial public policy that qualifies as an exception to the at-will employment doctrine. Accordingly, an at-will employee who is fired for exercising that right may maintain a wrongful termination action, but only if the employee faced an imminent threat of serious bodily harm in circumstances where he or she was unable to withdraw. We so hold because (1) Utah law strongly supports the right of selfdefense while recognizing circumstances in which a person may have a duty to withdraw; (2) a policy favoring the right of selfdefense is also of broad public importance because it protects human life while deterring crime; and (3) despite the strong interests employers have in maintaining a safe workplace through deescalation policies, the right of individuals to defend themselves against imminent bodily injury or death is simply more compelling where the employee cannot safely withdraw. We therefore answer the certified question in the affirmative.

Plaintiff's Experts:

Defendant's Experts:

Comments: Under the at-will employment doctrine, an employer has broad discretion to manage its workforce and may, accordingly, fire an employee for any reason not prohibited by law. But there are several exceptions to at-will employment, including when an employee‘s termination violates a clear and substantial public policy of the State of Utah. In this case, several employees1 of Wal-Mart Stores, Inc. (Wal-Mart) were involved in physical confrontations with shoplifting customers and were ultimately fired for violating company policy. Wal-Mart‘s policy requires employees to disengage and withdraw from potentially violent situations. The Employees sued Wal-Mart in federal district court for wrongful termination, arguing that terminating a person‘s employment for exercising selfdefense in the workplace violates Utah public policy. The district court concluded that their argument raised an issue of first impression under Utah law—whether the right of self-defense is the type of public policy that provides an exception to the at-will employment doctrine. Accordingly, it certified the following question of law to us: ―Is the right of self-defense a substantial public policy exception to the at-will employment doctrine that provides the basis for a wrongful discharge action?‖ ¶2 We conclude that the policy favoring the right of selfdefense is a public policy of sufficient clarity and weight to qualify as an exception to the at-will employment doctrine. But we limit the exception to situations where an employee reasonably believes that force is necessary to defend against an imminent threat of serious bodily harm and the employee has no opportunity to withdraw.