Posted in Employment Law by Gene Killian | Share

Regardless of where you stand on the explosive and emotional issue of gun control, here’s a fact pattern that seems sort of unfair and that raises some interesting issues about employee termination.

Hoven was a pharmacist at a Walgreens drug store in Michigan. He was the victim of an armed robbery at work in 2007. He asked Walgreens to increase its security systems, such as by adding a panic button device, but Walgreens didn’t comply with his requests. So he obtained a concealed carry permit, and bought a handgun. In 2011, he was working the overnight shift on Mother’s Day when, lo and behold, two armed robbers entered the store. Hoven tried to call 911, but one of the robbers jumped over the counter and pointed a gun at him. Hoven drew his own weapon, backed away, and fired multiple times. Apparently, his handgun training needed some work, because he missed. No one was shot or injured. The hapless would-be robbers thought better of their plan and ran away. So, in addition to saving himself, Hoven saved Walgreens’ prescription drug supply. And after reviewing the surveillance video, a local police officer commented: “If it was me, I would have done the same thing.”

But, as the saying goes, no good deed goes unpunished. Walgreens has a policy against employees carrying weapons. After an investigation, Walgreens informed Hoven that he had violated Walgreens’ non-escalation policy and had the choice to resign or be terminated from his $150,000 a year job. And he refused to resign, so Walgreens fired him.

Hoven then brought suit, contending that he had been terminated in violation of public policy for “lawfully exercising his right of self-defense, the defense of others, and to carry a concealed weapon.” He alleged that his Second Amendment rights had been violated, along with his self-defense rights under Michigan law.

The Court rejected Hoven’s position, writing: “Constitutional provisions may not be the source of a claim for termination in violation of public policy against a private employer…[T]hough the Second Amendment…limits some state interference with individuals’ right to engage in self-defense and bear arms, [it does] not prevent interference with these rights by private actors.”

People sometimes think that rights are absolute. Years ago, when I was starting out in the working world, I had difficulty renting an apartment in New York City when landlords would find out that I was a lawyer. Some of my friends would say, “But that’s discrimination!” Yes, I would explain, but not all discrimination is illegal. Same thing here. The Second Amendment may grant citizens the right to keep and bear arms - but not in a private workplace.

I note that in the Hoven case, Mr. Hoven apparently denied that he had ever seen a copy of Walgreens’ anti-handgun policy. If you’re on the management side, make sure that any such policies are included in the handbook and distributed to all employees. If you’ve made a decision not to allow legal handguns on your company property, make that clear in the handbook, and in the interview process.

And to state the obvious: If a facility has been robbed already or is in a high-risk area, and an employee asks for additional security, take the request seriously…especially if the facility has valuables on-site.

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

- Gene Killian