Articles

What should an employer do when an employee breaks an important company rule for an incredibly compelling reason?  It’s management’s worst nightmare.

Tomas Lopez, a rookie lifeguard patrolling Hallandale Beach in Florida, was fired  for saving a drowning swimmer.  The swimmer was about 1,500 feet away from Lopez, in an unguarded section of the beach.  When a beachgoer alerted Lopez, he ran to the swimmer’s aid, while other lifeguards called 911 and covered his section of the beach.  Lopez knew he was violating a company rule – leaving his designated post.  According to Lopez, the company trains its lifeguards to call 911 when someone is drowning outside the lifeguard’s “jurisdiction,” but instructs them not to leave their posts.

Lopez’s employer, Jeff Ellis and Associates, fired him for abandoning his post and cites liability issues as the reason to have such a rule.  Had someone drowned in Lopez’s section of the beach while he was saving this swimmer, the company could have faced serious liability – potentially millions of dollars.  If Lopez remained at his post and the swimmer in the unguarded section died, the company would have surely faced significant criticism for failing to come to his aid, but would have had no legal liability, as it was not responsible for swimmers in that area.

Some of Lopez’s co-workers resigned in protest of his termination.  Many stated they would have done exactly what Lopez did.  There are reports that other co-workers were fired for opposing the disciplinary action taken against Lopez, but the company denies anyone other than Lopez was fired.

Lopez’s termination is highly controversial, but it is probably not unlawful.  As an at-will employee, Lopez can be terminated for any reason – even a really bad one – provided it is not unlawful.  Typically these unlawful reasons are contained in statutes, and there is no apparent statutory violation in terminating Lopez.  Some jurisdictions recognize a “public policy” exception to at-will employment, in which an employer cannot fire an employee if doing so would violate an important public policy.  These cases are uncommon and the law is not well defined.  The company’s legitimate concerns about leaving its sections of the beach unmonitored could provide a defense to such an action.

Even though Lopez’s termination was probably legal, if the company fired or otherwise disciplined Lopez’s co-workers for complaining about his termination, the company likely violated the National Labor Relations Act (“NLRA”).  The NLRA, which applies to unionized as well as union-free companies, protects employees who band together to address the terms and conditions of their employment.  Protesting a discharge is just such a condition of employment.  However, if the company is committed to containing its liability, it should address the co-workers’ statements that they would do the same thing.  It could, for example, put a note in their files that they will face discipline, including possible termination, if they abandon their posts for any reason, including a compelling one such as saving a life in an unguarded area.

This is a case where even if all actions were legal, the company probably should have made a different decision.  Deciding that an action is legal should never be the end of the analysis.  Is firing an employee worth the potential public relations fallout?  Is the termination consistent with the company’s ethics?  If discipline is necessary, would lesser disciplinary action serve the company’s objectives while maintaining its public image?

Jeff Ellis and Associates now faces severe criticism from the general public as this story plays out in the national news.  Moreover, other beaches may choose not to do business with the company knowing that a lifeguard may be hamstrung when an emergency arises outside the lifeguard’s patrol area.

Faced with a firestorm of criticism, the company offered Lopez his job (he declined) and said it will invite back those who resigned.  This is a circumstance where an ounce of prevention is worth a pound of cure.  When faced with such a difficult situation, employers should slow down and consider their actions and all the ramifications.  If the proposed action could create legal liability or a firestorm of bad PR, consulting with an experienced attorney is advised.

Brody and Associates frequently assists employers in dealing with Employment-At-Will issues.  If you need guidance or have questions, we stand ready to assist you.  Please contact us at info@brodyandassociates.com or 203.965.0560.