Tuesday, September 22, 2015

"At Will" Employment vs. Right to Self-Defense

Today, in my employment law class, we cover the case of Weaver v. Harpster. The Supreme Court of Pennsylvania held that a woman could not sue her employer for sex discrimination/harassment. That probably comes as a shock to a lot of readers, so let me back up and walk-through the issues:
  • In Pennsylvania, we have "at will" employment. That means an employer can generally fire an employee for any reason, or no reason.
  • Of course, there are exceptions. For example, an individual contract or a CBA may create employment for a defined period of time and/or limit the bases on which an employer can terminate the employee.
  • Statutes create additional exceptions. For example, federal statute (Title VII) and Pennsylvania state statute (PHRA) prohibit various types of discrimination (including sex discrimination).
Wait... so an employee can sue her employer for sex discrimination! Yes, but... Title VII only covers employers with 15 or more employees and the PHRA only covers employers with 4 or more employees. In Weaver, the employer had fewer than 4 employees. 

That brings us to another exception to "at will" employment: the common law tort of "wrongful termination" in violation of public policy. The issue in Weaver was whether Pennsylvania courts recognize a cause of action for sex discrimination as a matter of public policy even though the statutes did not apply due to the size of the employer. The Court concluded that it would not allow such a lawsuit. 

And that brings us to the topic from the headline. Eugene Volokh has a great new post: May employer fire employees for defending themselves (or others) against violent customers. The post highlights this new case:
Last Thursday, the Utah Supreme Court weighed in on the side of restricting employers’ ability to fire employees for their on-the-job self-defense, though only “where an employee reasonably believes that force is necessary to defend against an imminent threat of serious bodily harm and the employee has no opportunity to withdraw.”
As noted in the post, a Pennsylvania case arrived at a different conclusion, Scott v. Extracorporeal, Inc. (concluding "the public policy asserted by appellant — the right to exercise self-defense — strikes entirely too near the employer's legitimate interest in discharging employees it perceives to be disruptive.").

Note: I should note another exception to "at will" employment in Pennsylvania where the employee provides "additional consideration" - the employee provides so much added benefit, or incurs so much added cost, beyond mere employment responsibilities, that Courts will find an implied contract.

Sidenote: My apologies for the unannounced blogging hiatus last week. Things got a little crazy. I joined my first political campaign, supporting my colleague Katie Oliver for Centre County Judge. I created her website http://www.KatieOliverForJudge.com in the span of 4 days (while continuing to work and teach). Check back often as we continue to enhance the site.