‘At-will’ employees may be fired

Law Review, Jim Porter

This is one of those stories where the good guy finishes last.

Fight at work

Escalante was a printer at Wilson’s Art Studio.

While on the job, he was physically attacked by another employee, Stanei, without provocation. Stanei started yelling at Escalante, swung a piece of wood at him, then hit him with either a hammer or box of screws. At that point, Escalante fled the room with Stanei in chase. Stanei then threw a box of screws, hitting Escalante square in the back.

At that point, Escalante stopped his flight, turned around and rushed toward Stanei, grabbing him in a bear hug to restrain him, when he was hit in the head with a large metal cap.

Fired for acting in self-defense

So far I am on Escalante’s side.

A guy can only take so much. Escalante turned the other cheek, and for that he got a box of screws in his back. Even then, he didn’t punch Stanei.

Escalante was promptly fired by Wilson’s for not retreating when he had an opportunity. That was more than he could stand.

So he sued Wilson’s for wrongful termination. I assume he also sued Stanei, but he’s probably broke. Escalante was awarded $200,000 in damages against Wilson’s plus punitive damages.

Wilson’s appealed the jury verdict to the Court of Appeal.

At-will employee

The Court of Appeal started its opinion with a recitation of the basic law: An employer’s right to terminate an “at-will” employment relationship is largely unfettered.

For the most part, the decision can be both arbitrary and unwise without amounting to a wrongful termination. About the only exception is when the termination is in violation of public policy such as unlawful discrimination or letting an employee go for refusing to engage in wrongful or criminal conduct (That’s what the court said, which understates when employers can’t fire at-will employees).

That’s the basic law of at-will employment for you employers and employees. It goes without saying, but I will say it, that an “at-will” employee has no written employment contract. The question in the case was whether Wilson’s could terminate Escalante for exercising his constitutionally guaranteed right to self-defense.

Right to self-defense

The court discussed Escalante’s right of self-defense, which includes the right not to retreat from danger, even if retreat is possible.

A person threatened by another need not retreat and may stand his or her ground and use all force and means which appear necessary to a reasonable person in a similar situation. The victim may even pursue his assailant if necessary to protect himself.

That’s the basic law of self-defense. For us wimpy types, fighting, even in self-defense, is a distant second choice, available only when we cannot talk our way out of a bad situation or run like hell.

Balancing interests

The court tried to reconcile Escalante’s right of self-defense with Wilson’s right to run its business and provide a safe workplace.

While sympathetic to Escalante, the court ultimately determined that an employer’s policy against employee fighting controls.

The Court of Appeal was reluctant to carve out yet another exception to the right of employers to terminate at-will employees without cause. I would not be surprised if this case goes up on appeal to the California Supreme Court.

Jim Porter is an attorney with Porter – Simon, with offices in Truckee, South Lake Tahoe and Reno. He is a mediator and was the Governor’s appointee to the Bipartisan McPherson Commission and the California Fair Political Practices Commission. He may be reached at or at the firm’s Web site

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