Aim, Shoot, You’re Fired

krischsuit2Last May, Jeremy Hoven, a pharmacist in a Michigan Walgreens was working in the rear of the store when an armed robber jumped his counter and pointed a gun at him. In response, Mr. Hoven pulled out his own gun and fired at the robber, driving him and his accomplice away, while saving himself, and all those around him. Mr. Hoven’s actions, which can be viewed here, may have been heroic, but shortly after the robbery, Walgreens fired him for bringing a gun to work and violating the store’s non-escalation policy. Mr. Hoven sued Walgreens in Berrien County Circuit Court, claiming wrongful termination in violation of his constitutional and statutory right to self-defense. Walgreens claimed in response that it had a legitimate business reason for terminating Mr. Hoven, arguing that there is no “right to carry or discharge a concealed weapon” on workplace premises, and that store employees are trained not to confront crime suspects. Over the past month, the case has been removed to the Federal District Court in Grand Rapids, Michigan.

Walgreens’ decision to terminate Mr. Hoven has infuriated the public, as well as the media, which were strong on opinion but weak in analyzing whether Mr. Hoven would win his lawsuit. That’s where LASIS comes in.

While LASIS is sympathetic to Mr. Hoven, and thankful that he was not physically harmed, we do not believe his argument of self-defense will succeed in a court of law. Michigan is an employment at will state, a state where an employer can fire an employee for any reason or no reason at all. And while it is true that Michigan courts and the Sixth Circuit recognize an employment at will termination exception if the firing is contrary to public policy, unfortunately, for Mr. Hoven, his termination was not. In fact, Michigan’s concealed weapons law explicitly states that an employer can prohibit an employee from carrying a concealed weapon in the course of employment.

Even if the Michigan concealed weapons law did not exist, a court cannot stretch public policy to include Mr. Hoven’s conduct, or else employers will be left in a serious quandary. If employers were told that in some circumstances employees could bring guns to work, under the Sixth Circuit’s theory of respondeat superior, employers in Michigan would then be liable for any action, accidental or purposeful, involving the use of that gun on the employers’ premises. Yet if employers do not permit guns at work, and a violent crime were committed on site, the employer could be held liable for any injuries.

In 1947, the Supreme Court, in Lillie v. Thompson, recognized a duty for employers to protect employees from criminal acts of third parties when the danger is foreseeable. In his lawsuit, Mr. Hoven could have argued that Walgreens was negligent because it breached a duty to protect its employees from foreseeable criminal acts of third parties. Because this was not the first time this very Walgreens was the victim of an armed robbery; On December 5, 2007, while Mr. Hoven was working the night shift, Walgreens was held up at gunpoint. A court could reasonably find that a future robbery was foreseeable, and that Walgreens should have taken protective action by, for example, installing bulletproof glass near all cash registers. On the other hand, a 1996 Sixth Circuit case ruled that an armed robbery that left one employee dead was not foreseeable because, among other things, nearly 15 months had passed since the previous armed robbery.

In 2001, the Sixth Circuit ruled on a case that again may have bearing on Mr. Hoven’s situation, holding that a negligence claim could not be proven without a showing of injury or loss caused by the employer’s negligence. Regrettably, Mr. Hoven cannot show that Walgreens caused his injury or loss because Mr. Hoven didn’t lose his job due to the employer’s negligence; rather he lost his job because he brought a gun to work.

The Occupational Safety and Health Administration (OSHA) has become increasingly involved in matters of workplace violence. Mr. Hoven could have reported Walgreens to OSHA for violating the Act’s General Duty Clause, which requires employers to provide a safe workplace for its employees. If found in violation of the Clause, Walgreens would have faced a significant fine, but Mr. Hoven would still be unemployed.

This blog originally appeared in Legal As She is Spoke, a project of the Law and Journalism track at New York Law School, on October 10, 2011. Reprinted with permission.

About the Author: David M. Krisch (3L) is a New York Law School Government Fellow, and an Executive Board Member of the Dispute Resolution Team. David is a graduate of Penn State University, where he majored in Labor Employment Relations. David has interned with two labor and employment law firms, as well as the U.S. Equal Employment Opportunity Commission (EEOC), Office of Commissioner Ishimaru, in Washington D.C.

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Madeline Messa

Madeline Messa is a 3L at Syracuse University College of Law. She graduated from Penn State with a degree in journalism. With her legal research and writing for Workplace Fairness, she strives to equip people with the information they need to be their own best advocate.