You are a Pennsylvania employer operating a retail establishment. Your employees are hired “at-will.” One of your employees observes a customer shoplifting. The employee confronts the shoplifter and escorts him to a private room where that employee and another begin to question him. While awaiting arrival of the police the shoplifter pulls a weapon. The two employees disarm and subdue the shoplifter until the police arrive. The shoplifter is arrested for various criminal law violations and removed from your premises. Although admiring the employees for safeguarding your property, you have a policy that provides that if a shoplifter is believed to have a weapon he should not be approached and that if, during a confrontation, it is discovered that the shoplifter has a weapon, employees must break off the confrontation and withdraw to a safe place. Based on what occurred, you terminate the employment of the two employees who confronted the shoplifter for violating your policy. Do the employees have a claim for wrongful termination of their employment?

These are the essential facts in a case now winding its way through the courts in Utah. The case, Ray v. Wal-Mart Stores, (Dist. Of Utah, Northern Div. Case No. 1:11-ev-104), has not concluded. But what we do know is that the Utah Supreme Court has issued an advisory opinion to the federal court in which the case is pending to the effect that Utah has a public policy permitting its citizens to engage in self-defense. On the basis of that opinion, the federal court denied Wal-Mart’s motion for summary judgment on the ground that Utah’s right of self-defense raises a justiciable fact issue of whether Utah’s public policy prohibits an otherwise lawful termination of “at-will” employment pursuant to the Wal-Mart policy.

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