HOVEN V. WALGREEN CO.: PRIVATE- EMPLOYER RESTRICTIONS ON SELF-DEFENSE IN THE WORKPLACE

Transcription

1 HOVEN V. WALGREEN CO.: PRIVATE- EMPLOYER RESTRICTIONS ON SELF-DEFENSE IN THE WORKPLACE In Michigan, employment relationships are presumed to be terminable at will. 1 At-will employment became widely accepted throughout the United States following the Industrial Revolution, when [e]mployers were free to hire or fire any worker, and employees to accept or quit any job they liked. 2 But by the midtwentieth century, state and federal legislatures added protections for at-will employees, such as fair-employment-practice laws that made it illegal to fire employees based on their race, creed, color, national origin, or sex. 3 And today, Michigan is one of many states that have additional public-policy exceptions to the employment-at-will rule. 4 These exceptions make it unlawful for employers to dismiss employees for reasons that are blatantly against public policy, and are limited; federal courts are hesitant to extend their application. A recent decision, Hoven v. Walgreen Co., addressed these publicpolicy exceptions by strictly applying binding precedent. 5 In Hoven, the United States Court of Appeals for the Sixth Circuit held that it was not against public policy for an employer, Walgreen, to dismiss an employee, Hoven, for firing his gun in self-defense during an armed robbery at his workplace. 6 Hoven alleged that Walgreen violated Michigan public policy by dismissing him for acting in self-defense, defending others, and lawfully carrying a concealed weapon. 7 But the court disagreed. 8 It reasoned that because Walgreen is a private employer and Hoven was an at-will employee, the termination did not fall within any of the Michigan Supreme Court s public-policy-violation definitions. 9 As a result, this decision may have opened the door for the Michigan Supreme Court to carve 1. Hoven v. Walgreen Co., 751 F.3d 778, 783 (6th Cir. 2014). 2. Paul Moreno, The Verdict of History: The History of Michigan Jurisprudence Through Its Significant Supreme Court Cases, MICH. B.J., Mar. 2009, at S1, S15 (Supp. 2009). 3. Id. 4. See Hoven, 751 F.3d at Id. at 783 n Id. at Id. at Id. at Id. at

2 2 THOMAS M. COOLEY LAW REVIEW[Vol. Online:Trinity out a new public-policy exception that protects at-will employees constitutional and statutory rights. Walgreen is a private employer that hired pharmacist Jeremy Hoven as an at-will employee. 10 After experiencing an armed robbery during working hours, Hoven obtained a Michigan Concealed Pistol License and began carrying a concealed handgun at work. 11 One night, while Hoven worked an overnight shift at Walgreen, two masked men, armed with guns, attempted to rob the store. Hoven tried to call 911, but one of the men jumped over the counter and pointed his gun at Hoven. Although the man did not fire any shots, Hoven observed the man s finger jerking on the gun s trigger. 12 Hoven backed away and fired his own gun multiple times. But none of the shots struck the masked men or any person in the store. About a week later, Walgreen dismissed Hoven for violating the store s non-escalation policy. 13 Hoven then filed suit in state court alleging that his dismissal was a violation of Michigan public policy because he was lawfully exercising his rights to carry a concealed weapon and defend himself and others. He claimed that these policies are expressed in the Second Amendment of the United States Constitution; Article I, 6 of the Michigan Constitution; Michigan Criminal Jury Instructions 2d 7.15; and sections , , and of the Michigan Compiled Laws. 14 Walgreen removed the case to federal court. 15 The United States District Court for the Western District of Michigan granted Walgreen s motion for judgment on the pleadings and dismissed the case. 16 The Sixth Circuit addressed each of Hoven s public-policy arguments separately, applying Michigan s at-will employment law and the public-policy examples laid out in Suchodolski v. Michigan Consolidated Gas Company. 17 Michigan limits the general rule of at-will employment by recognizing that some reasons for terminating an employee are simply so contrary to public policy as to be actionable. 18 The 10. Id. at Id. at Id. 13. Id. 14. Id. at Id. 16. Id. 17. Id.; Suchodolski v. Mich. Consol. Gas Co., 316 N.W.2d 710 (Mich. 1982). 18. Hoven, 751 F.3d at 783 (quoting Suchodolski, 316 N.W.2d at 711).

3 2014] HOVEN V. WALGREEN CO. 3 Michigan Supreme Court, in Suchodolski, described three situations in which termination of employment is actionable for public-policy reasons: (1) the employee is discharged in violation of an explicit legislative statement prohibiting discharge of employees who act in accordance with a statutory right or duty; (2) the employee is discharged for the failure or refusal to violate the law in the course of employment; or (3) the employee is discharged for exercising a right conferred by a well-established legislative enactment. 19 The court first reasoned that none of the identified sources explicitly state that an employer cannot dismiss an employee for exercising a statutory right. 20 So his claim did not fall into the first Suchodolski scenario. Second, Hoven did not state a claim under the second scenario because he was not dismissed for failure or refusal to commit an unlawful act in the course of his employment. 21 Third, the Sixth Circuit addressed the final Suchodolski scenario: the court reasoned that, unlike statutory provisions that have provided a basis for a public-policy exception, the U.S. and Michigan constitutions do not restrict private conduct and are limited to protection of individual rights against state action. 22 Because Walgreen is a private employer, not a state actor, the U.S. and Michigan constitutions do not prevent Walgreen from enforcing its policies against Hoven. So, unless explicitly stated in a statute, constitutional rights cannot support a claim that an employee s dismissal violated public policy. 23 And the court found that Hoven did not cite any statutes that explicitly establish a right to carry a concealed weapon, or exercise self-defense or defense of others during the course of employment Suchodolski, 316 N.W.2d at Hoven, 751 F.3d at Id. 22. Id. (citing Prysak v. R.L. Polk Co., 483 N.W.2d 629, 634 (Mich. Ct. App. 1992)). 23. Id. 24. Id. at

4 4 THOMAS M. COOLEY LAW REVIEW[Vol. Online:Trinity Lastly, Hoven argued that the Suchodolski scenarios are not an exhaustive list, so he did not need to fit his claim into one of the three categories. But the Sixth Circuit noted that federal courts should be extremely cautious when making substantive change to state law. 25 Thus, the Sixth Circuit did not make additional public-policy exceptions. This suggests that the Michigan Supreme Court could face this issue soon. To determine whether protecting employees who assert these rights against private employers is a public-interest matter, the Michigan Supreme Court should consider research on mass shootings and gun violence. After a shooting spree, legislators tend to propose stricter gun-control laws. 26 But mass shootings usually occur in places where guns are banned, such as schools, malls, or, in Hoven s case, the workplace. 27 So contrary to popular perception, citizens who lawfully carry concealed handguns almost never commit the crimes these laws seek to prevent. 28 And many shootings might have been avoided, or the damage mitigated, by the presence of an armed citizen. 29 Accordingly, a criminal may be deterred from committing an act of violence if faced with a victim that is armed. 30 Although the U.S. and Michigan constitutions do not apply to private employers, it is a matter of public interest for an employee to assert his or her right to self-defense, defense of others, or lawfully carry a gun during the course of employment. If the Michigan Supreme Court addresses the issue in Hoven, it must balance the rights of private employers to conduct their private business in whatever manner they see fit with this important public interest. If the court decides that it would be in the public s best interest to allow employees to exercise these rights, then it must expand the current public-policy exceptions and decide on a standard of care and whether to use objective or subjective tests. But until the Michigan 25. Id. at 783 n See Glenn Harlan Reynolds, Column: Gun-Free Zones Provide False Sense of Security, USA TODAY, Dec. 14, 2012, /2012/12/14/connecticut-school-shooting-gun-control/ /. 27. Id. 28. John R. Lott Jr. & William M. Landes, Multiple Victim Public Shootings, Bombings, and Right-to-Carry Concealed Handgun Laws: Contrasting Private and Public Enforcement, at 2 4 (Univ. of Chi. Law Sch., John M. Olin Law & Econ. Working Paper No. 73, 1999) available at abstract_id= Id. 30. Id.

5 2014] HOVEN V. WALGREEN CO. 5 Supreme Court hears a case like Hoven, the judiciary cannot resolve these issues. CANDIS NAJOR CONTRIBUTIONS MADE BY PROFESSOR JAMES PEDEN