Saturday, September 6, 2014

A Question of Self-Defense?

On September 3, 2014, the Utah Supreme Court heard argument in the case of Ray et al. v. Wal-Mart.  The plaintiffs---Ray, Dallin, Holt, Hunter, Poulsen, and Stewart---were Wal-Mart Employees terminated for, of all things, self-defense.  As at-will employees, of course, plaintiffs could have been terminated at any time for any reason, or for no reason at all, so the question is whether self-defense is a public-policy exception to the at-will employment doctrine. (This is actually a federal case, the issue having been certified to the Utah Supreme Court by the Utah federal district court.) 

Utah law imposes no duty to retreat before acting either in self-defense or in defense of another.  Wal-Mart policy, however, calls for "disengagement and de-escalation" so as to preclude, as far as possible, danger to its customers, staff, and stock.

In January of 2011, three of the plaintiffs took a shoplifter into custody.  In their security office, the shoplifter produced a gun, shoving it, reportedly, into one's back. The three plaintiffs managed to take the gun from him, but Wal-Mart terminated all three for failing to back off and let the shoplifter leave the office.  On Christmas Eve of 2010, two of the plaintiffs pursued and apprehended a shoplifter, who pulled a knife.  Wal-Mart terminated the two plaintiffs, however, asserting they should have backed away.  Finally, the last of the six plaintiffs was fired for shoving the confrontational husband of another employee instead of letting him drag her away.

During oral argument (here), Wal-Mart's attorney characterized the issue as whether policy for Wal-Mart should remain in the hands of Wal-Mart or in the hands of the judiciary.  (The Justices, particularly Justice Durham, vehemently disagreed with this characterization.)  Plaintiffs' council, on the other hand, described it as the "terrible question" of employees having to choose between keeping their jobs or protecting their lives.

Monday, September 1, 2014

Antidiscrimination Amendments

In the Utah State Bulletin for September 1, 2014, the Utah Labor Commission proposes an amendment to its antidiscrimination regulations (R606-1).  The amendment repairs an inadequate, ten-day time limit, and provides for the release of information held by the Division of Antidiscrimination and Labor.
          Rule R606-1-3 extends the time for filing a response to a discrimination claim from the rather abrupt "ten working days" (two weeks) to a more reasonable thirty days (four weeks).  This amendment appropriately addresses the timing issues---a question of fundamental fairness---but triggers the time from the date the claim is sent rather than the date it is received.  The amendment also permits a response by email in addition to mailing and fax.  The amendment also mandates that the response address each allegation in the discrimination claim along with any supporting evidence.  
            Procedurally, the amendment specifies that a failure to respond will be investigated, and may result in a determination without the nonresponding party being able to submit argument or evidence.  A late response, moreover, is not to be considered.
            A new Rule, R606-1-5, provides for release to parties of information obtained during investigations or proceedings.  The rule seeks to ease party participation in antidiscrimination investigations.  The Amendment requires the Division of Antidiscrimination and Labor to release information requested by a party in writing (R606-1-5(A)), unless
             * the source of the information requests (and the Division agrees that) the information be considered confidential, 
             * the Division decides the information should be held confidential,
             * the Division determines that releasing the information will somehow impede the investigation, or
             * the information consists of 
                           - is work product,       - social security information,
                           - witness names,         - bank account numbers, or
                           - medical records (including ADA questionnaires) 
                                      in the absence of an appropriate release.