Good Samaritan, Bad Policy?

Wal-Mart recently made news by firing -- then offering to rehire -- an employee who violated company policy while helping a woman being attacked on store property. While workplace violence policies are certainly necessary, employers may still want to consider circumstances and intent when disciplining employees who come to another's aid, experts say.

Monday, November 11, 2013
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Remember the set-up for Seinfeld's (in)famous finale back in the late 1990s? En route to Paris and then California to begin work on Jerry and George's television pilot, the gang instead got stuck in Latham, Mass., grounded by problems with their NBC-supplied private jet. It was there they wound up serving a one-year jail sentence after doing nothing  --  aside from making a few wisecracks about the victim's weight  --  to help a local man they witnessed being carjacked. 

In what could be described in Seinfeld terms as a bizarro version of that storyline, a Wal-Mart employee was recently punished with termination after violating a company policy in the process of aiding a woman who was being attacked in a store parking lot.

According to media reports, Kristopher Oswald was sitting in his car at 2:30 a.m. on Oct. 14, on a break from his job stocking pet supplies, when he saw a man clinging to the hood of a woman's car, as she attempted to shake the man off by stopping and starting. When she stopped the car and got out, the man grabbed her and pinned her against the side of the vehicle. Oswald told reporters he "thought [the attacker] was trying to steal her car" and asked the woman if she needed help. When she said yes, Oswald intervened, scuffling with the man until sheriff's deputies arrived on the scene and put a stop to the fight.

The attacker - identified as Dylan Tierney, the woman's ex-boyfriend - was ultimately arrested for drunken driving, malicious destruction of property and domestic violence.

Wal-Mart has since offered Oswald his job back -- an offer he says he will not accept unless the company formally apologizes and eliminates the personnel record indicating he was let go -- but not before his firing garnered national attention.

Oswald reportedly suffered minor physical injuries in the fracas. But he received another blow not quite two days later, when his managers called him to the store for a meeting, commended his actions, and then said they were required to fire him for violating a Wal-Mart policy that encourages associates to avoid involvement in situations putting them or customers in harm's way. 

Oswald's story went viral, with Wal-Mart catching plenty of heat for firing an employee whom many -- his managers included -- lauded as a hero.

Nevertheless, experts say Wal-Mart found itself in the unenviable position of having to respond to a worker's actions that -- admirable as they may have been -- breached a policy designed to protect employees and customers.

While terminating Oswald may have been rash, policies that restrict employees' actions in these instances are "not uncommon," says Katherine Parker, a New York-based partner in the labor and employment law department of Proskauer Rose.

"I think that, if someone is a Good Samaritan and reaches out to help someone in this type of situation, [I'd hope that] people are not going to be fired," she says.

Still, employers certainly can't oblige workers to join the fray, and have a responsibility to employee and customer safety, says Parker, who is also co-head of the firm's employment law counseling and training and government regulatory compliance and relations groups.

"A policy that says employees should [intervene] in such scenarios would be problematic," she says. "Obviously you don't want that. So I think the concern is that most people are not trained to deal with very dangerous situations, and there's the fear that, if you don't have specialized training, you could put yourself in danger [as well]."

From a policy standpoint, the organization is compelled to strongly encourage employees to keep their cool and leave intervention to the experts.

"The company and HR wants to make sure people know they should first contact the appropriate safety officers -- police, security, etc., because the key will be to get trained personnel [involved] as soon as possible," she says. "It's just like in a fire drill -- you're told to get yourself to a safe place or a safe floor, and call building security."

In Wal-Mart's case, "I don't think it's appropriate to say what they did was right or wrong," says Parker. "But what I can say is, from a policy standpoint, it's pretty typical to not want to turn employees into rescue workers."

For Wal-Mart or any other employer, it is "nearly impossible to anticipate all the [potentially violent] scenarios that might occur, and then regulate them by policy," says Dave Ulrich, professor of business at the Ross School of Business at the University of Michigan.

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"It is better," he says, "when organizations create management by mindset. In this approach, policies are replaced by principles and leaders with shared values [who] enact those principles in ways that make sense."

Policies that restrict or permit employees to assist co-workers or customers in imminent danger aren't really necessary, adds Art Glover, a panelist on the HR disciplines panel at the Alexandria, Va.-based Society for Human Resource Management.

"After all, we can't have a policy to address every possible scenario," says Glover. "Violence in the workplace policies are of course necessary and essential. And I understand and agree with Wal-Mart's policy [with regard to] not allowing physical or violent acts against co-workers and not allowing the restraint or pursuit of shoplifters."

That said, he questions the company's hasty decision to terminate Oswald.

"In this case, clearly the employee was making a snap judgment, with the best interests of the customer and the community in mind, during a sudden violent occurrence," says Glover. "Wouldn't we all want someone to come to our defense during a situation like this? The Wal-Mart authorities should have done a thorough workplace investigation first, including giving the employee a chance to explain his side.

"Since they eventually reversed their decision," he continues, "clearly someone made an error in judgment. This man deserved a medal, not a pink slip."

Companies faced with similar scenarios will be forced to make decisions "as to the extent that discipline is appropriate" for employees such as Oswald, says Parker.

"That's going to vary based on the situation," she says, but "the takeaway is that employers should think about training and information that can be provided to employees about dangerous situations. We are increasingly hearing about violence in the workplace -- guns being brought in, terrorist attacks or other violent behavior.

"It's not just violence," she says. "It's other emergency situations, such as storms, tornadoes and the like. The lesson here is for HR folks to review their safety protocols and partner with security officers to make sure employees have the resources and information they need in order to know what to do in these situations."

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