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Discharging Firearm on Employer Premises Not a Protected Right

By John T. Ellis  7/10/2014
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An employee with a concealed carry permit does not have a protected right to draw and fire his handgun in violation of employer policy, according to the 6th U.S. Circuit Court of Appeals.

Walgreen Co. employed Jeremy Hoven as a full-time staff pharmacist. After experiencing his first armed robbery in 2007, Hoven requested that Walgreen increase its security systems. When Walgreen did not comply, Hoven completed the necessary training and certification program to obtain a Michigan concealed pistol license. He thereafter purchased a handgun, which he began bringing to work concealed in his pocket.

On May 8, 2011, while Hoven was working an overnight shift, two masked individuals carrying firearms entered the store. Hoven attempted to call the police, but one of the gunmen jumped over the counter and pointed his weapon at Hoven. Hoven observed the gunman’s “finger jerking on the gun’s trigger.” Hoven then backed away from the gunman, drew his own weapon and fired multiple shots. No one was shot or injured during the incident.

Three days later, two Walgreen loss-prevention specialists met with Hoven to take his statement. Shortly thereafter, Walgreen officials met with Hoven to inform him that he had violated Walgreen’s nonescalation policy. They gave Hoven a choice of resigning or being terminated. Hoven refused to resign, and his employment with Walgreen was terminated.

Hoven sued Walgreen, claiming that his termination violated Michigan public policy for “lawfully exercising his right to self-defense, the defense of others, and to carry a concealed weapon.” Walgreen moved for judgment on the pleadings, arguing that Hoven had failed to allege a claim under Michigan law.

The trial court granted Walgreen’s motion, and the 6th Circuit affirmed. Hoven’s appeal to the 6th Circuit stated that he was fired “for only one reason: exercising his fundamental rights to self-defense and defense of others in the workplace.” Hoven did not argue that he was terminated for applying for a concealed pistol license, receiving a concealed pistol license or carrying a validly licensed concealed pistol. The appeals court found that Michigan did not recognize any public policy exception to at-will employment that would prevent an employee from being terminated for firing a weapon on his employer’s premises in violation of employer policy.

Notably, the 6th Circuit observed that Michigan courts had never addressed a claim for violation of public policy involving the exercise of self-defense rights. If the Michigan Supreme Court does recognize such a public policy violation in the future, the appeals court’s ruling in this case will be greatly undermined.

Hoven v. Walgreen Co., 6th Cir., No. 13-1011 (June 2, 2014).

Professional Pointer: Employers preparing to publish or enforce policies regarding the prohibition of weapons in the workplace should first confirm that these policies comply with the laws of the states in which they do business.

John T. Ellis is an attorney with Ufberg & Associates LLP, the Worklaw® Network member firm in Scranton, Penn.

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