Is the Right to Self-Defense an Exception to Employment-at-Will?

By Fiona W. Ong - Shawe Rosenthal LLP

May 5, 2022

In all states but Montana, employment is presumed to be at-will, meaning that either the employer or the employee may terminate the employment relationship at any time, with or without cause or notice. That is, EXCEPT if there’s an employment contract (including a collective bargaining agreement for unionized employees) or where the termination would violate a law (like anti-discrimination statutes or other statutes that specifically prohibit termination for exercising certain employee rights, like taking protected leave) – or (of relevance here) where it would violate public policy.

But what is public policy? Generally speaking, it’s the principles supporting the public good (e.g. health, safety, and welfare).  The public policy must be clearly set forth in law, regulation, or a state or the federal Constitution, and may be reflected in professional or industry standards. Employers may not terminate an employee for refusing to violate the public policy or for asserting legally protected rights. Doing so gives rise to an “abusive” or a “wrongful” discharge claim. This cause of action is not available where the law contains a specific statutory procedure and remedy for violations (like the aforementioned discrimination or leave laws). And state courts decide what is public policy within that state – so it varies widely from state to state. But in general, states are pretty consistent in finding public policy violations for things such as terminating employees because they received workers’ compensation benefits, reported illegal conduct (i.e. whistleblowing), or refused to follow an order to break the law. Beyond that, things get considerably murkier. And one specific public policy argument that recently caught my attention was the right to self defense.

In Donez v. Leprino Foods, Inc., the employee got into a physical altercation with another employee who had pushed him first. Both employees were terminated for engaging in workplace violence. The employee sued, arguing that he was fired in violation of “a well-established public policy for all individuals, including employees, to defend themselves.” (Well, that was a new one to me!) In this case, the U.S. Court of Appeals for the Tenth Circuit noted that “the Colorado Supreme Court has not recognized a job-related right to self-defense,” but that the Tenth Circuit did not need to speculate whether it would do so because the employee here did not assert self-defense until after he was fired. Since the employer did not know about the (supposedly) protected action before it made its decision, the wrongful discharge claim failed.

But this got me wondering whether other states have ever recognized the right to self defense as a public policy protection against termination.  Somewhat to my surprise, it appears that this is a valid claim in a number of states – although typically, it must be in response to an imminent threat of lethal or serious bodily harm. Some courts, like the West Virginia Supreme Court, limit this “only to the most dangerous of circumstances,” while others like Utah use a lesser standard. In some states, the employer has a defense against the claim if the termination was for a legitimate business reason. Other states, however, have rejected a public policy claim based on the purported right to self defense, including my home state of Maryland.

So, for employers with zero-tolerance workplace violence policies, don’t be too quick to pull the trigger on firing everyone involved in a workplace fight. If one employee was not the aggressor, they could potentially be protected by a public policy of the right to self defense – depending on whether the state has recognized this public policy and depending on the circumstances of the defense!

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