According to the U.S. Department of Labor in 2014, 500,000 employees lost a combined 1,175,000 workdays, at an annual cost of over $4.2 billion dollars in lost productivity, due to assaults and violent acts at private workplaces that caused employees to miss work. Workplace violence is not only costly financially but also frequently results in:
- Physical and psychological harm;
- Losses to property and productivity;
- Workers’ compensation (and nonsubscriber) claims;
- Damage to the company reputation and negative impact on future hiring; and
- Increased litigation.
In order to minimize their own legal risk and promote a safe work environment, employers often will implement workplace violence policies that include a ban on weapons at the workplace.
Currently, there is no federal law that regulates weapons at private workplaces. Beginning with Oklahoma, many states have recently enacted so-called “guns-at-work” laws. These laws, which are typically designed to protect employees’ individual rights to possess concealed firearms, vary in terms of their restrictions, making it tough for employers with operations in multiple states to implement one policy across every state in which they conduct business.
The strength and lobbying prowess of the NRA combined with other political ambitions, have fostered a rapid increase in guns-at-work laws which is understandably concerning for many employers. On the one hand, without the shield of immunity, complying with a law that allows employees to bring concealed firearms to the employer’s property can increase legal risk for the employer. Alternatively, noncompliance with a guns-at-work law can lead to civil or criminal penalties against the employer in some states, as well as backlash from a vocal pro-gun rights constituency.
This article briefly examines state guns-at-work laws, and, in particular, it describes:
- The legal risks to employers of workplace violence.
- The various types of restrictions and requirements typically included in state guns-at-work laws.
- Best practices and tips for employer compliance with state guns-at-work laws.
Summary of the Legal Risks for Employers
As a prefatory statement, all employers should be aware that gun-related incidents can result in liability under several different legal theories, including, but not limited to:
- The Occupational Safety and Health Act (OSHA);
- State workers’ compensation laws; and
- Tort laws, such as claims for negligent hiring filed by a third-party victim.
The General Duty Clause
It is important to note that there is no federal law specifically establishing an employer’s duty to prevent workplace violence. However, an employer has a duty to provide a reasonably safe working environment under OSHA, which regulates workplace health and safety. Employers who violate the OSHA general duty clause can be issued citations by OSHA and assessed substantial administrative fines and penalties. It is also important to note that the employer’s duty to provide a reasonably safe work environment (and reasonably safe equipment) is a non-delegable duty, meaning that the employer cannot “assign away” this duty to a third party.
An employer’s obligation to pay and an employee’s right to receive workers’ compensation benefits are largely governed by state law and each state is different. In most, but not all states,, employees can receive, as a matter of right, workers’ compensation benefits for injuries arising out of and in the course of their employment. Consequently, even where an employee is injured as a result of a gun-related incident at work, that employee may be eligible for workers’ compensation benefits. Similarly, in Texas where employers are eligible to opt of workers’ compensation and elect to become a nonsubscriber to workers’ compensation benefits coverage, if an employee is injured at work due to a gun-related incident from a carrying co-worker, the employee’s eligibility for wage replacement and medical treatment benefits will be determined by the ERISA plan terms of the benefit program.
Since workers’ compensation statutes and laws do not limit a non-employee’s negligence claims, an employer may face negligence claims from a third-party victim of gun-related violence to its employees. As an example, if an employee with a known propensity for violence injures a customer with a gun or other weapon, depending on the underlying facts of the particular case, an employer may be sued for:
- Negligent hiring;
- Negligent supervision;
- Gross negligence; and/or
- Negligent retention.
State law governs negligence claims. In determining the risk of potential liability, the primary considerations generally include whether the employer knew or should have known that the employee could cause harm to others and, if so, whether the employer acted reasonably under the circumstances.
Separate and apart from workers’ compensation and negligence claims, an employer can be held vicariously liable under common law for wrongful acts by an employee in the course and scope of their employment. Generally, an employee who acts violently while at work is considered to be acting outside the course and scope of his/her employment. Despite this general rule, an employer could still be held liable if the employee was acting in the course and scope of their employment when they injured another person.
Per a 2015 survey conducted by The Law Center to Prevent Gun Violence, 18 states have enacted some type of law addressing guns at work. Many of these laws share the common goal of protecting an individual’s right to bear arms, but they each differ fairly dramatically as to how much restriction is placed on an employer’s ability to prohibit weapons at work. Specifically, a guns-at-work law may:
- Protect the employees’ rights to store firearms within their private vehicles even when parked in the employer’s parking lot;
- Limit an employer’s ability to search vehicles on its property;
- Prohibit discrimination against gun owners;
- Permit employers to prohibit weapons at work if they post a required notice;
- Fine an employer for failure to comply with the law’s restrictions or requirements;
- Provide employer protection for complying with guns-at-work laws, including immunity from injuries arising out of compliance; and
- Implement specific policies to allow weapons at the workplace without violating the OSHA general duty clause (see The General Duty Clause).
Restrictions in Parking Lots and Exceptions
More than 18 states have passed state-specific laws recognizing an employee’s right to store an otherwise lawfully possessed firearm in his/her locked, personal vehicle while parked on the employer’s property. As but one example, under Louisiana law:
- An employee who lawfully possesses a firearm may transport or store the firearm in a locked, privately-owned motor vehicle in any parking lot, parking garage or other designated parking area.
- Private employers cannot prohibit the employee from transporting or storing the firearm in their locked, privately-owned motor vehicle in a parking lot, parking garage or other designated parking area.
Louisiana law does not prohibit employers from adopting a policy requiring that firearms stored in locked, personal vehicles be hidden from plain view or locked within a case in the vehicle
The State of Indiana specifies that an employer cannot adopt a policy that prohibits employees from possessing a firearm that is:
- Locked in the trunk of the employee’s vehicle;
- Kept in the glove compartment of the employee’s locked vehicle; and
- Stored out of plain sight in the employee’s locked vehicle.
Parking lot laws often provide an exception for employees prohibited by state or federal law from possessing a firearm. Similarly, state laws as to parking lot restrictions may not apply to property where possession of a firearm is prohibited under state or federal law.
As but one example of such an exception, under Arizona law, employers can prohibit the employees from storing firearms if either:
- Possession of the firearm is prohibited by state or federal law; or
- The employer’s compliance with the law would violate another state or federal law.
Although most guns-at-work laws establish an employee’s right to store a firearm in their locked, personal vehicle, many state laws do not extend such rights to vehicles owned or leased by the employer unless the employee is required to transport or store a firearm as part of his/her employment duties. In North Dakota, for example, the state parking lot laws do not apply to any motor vehicle that is owned, leased or rented by the employer or by the landlord of the employer
Restricted Parking Areas
If employers have parking lots that are secure or where the access is restricted, another exception that allows employers to ban firearms in certain circumstances may apply. For example, under Louisiana’s law, an employer can prohibit employees from storing firearms in their vehicles in an employer’s parking lot if access to the parking areas is restricted or limited, for example, by a fence or gate and the employer provides:
- Temporary storage for unloaded firearms; and
- Alternative parking, which is close to the main parking lot, for employees who transport or store firearms in their locked personal vehicles.
Another similar policy applies in the State of Arizona. In this state, if an employer’s parking lot is secured by a fence or other barrier and access is limited by a guard or security measure, the employer can enact a policy prohibiting employees from transporting or storing firearms if the employer provides temporary and secure storage that:
- Is monitored;
- Is easily accessible after entering the building; and
- Will allow for the immediate retrieval of the firearm when an employee is exiting the workplace.
Conversely, the State of Mississippi does not require employers to provide alternative parking or temporary storage in order to take advantage of an exception. Regardless of such measures,
Mississippi employers with restricted or limited access parking areas can prohibit employees from transporting or storing firearms in their vehicles.
In some states, even if the employer’s parking lot is not secure and public access is not limited, employers can prohibit employees from transporting or storing firearms in their vehicles in the employer’s parking lot if the employer provides either:
- Alternative parking at no additional cost for those employees that transport or store firearms.
- A secured and monitored storage location for employees to store firearms before they drive their car into the parking area.
Arizona’s restriction on an employer’s ability to prohibit employees from storing a firearm out of plain view (in a locked motor vehicle) does not apply if the employer provides alternative parking that is:
- Reasonably close to the primary parking area; and
- At no additional cost to employees who transport or store firearms in their vehicles.
Some state laws provide even further additional protection to employees by prohibiting employers from searching private vehicles on their property for the presence of firearms. In Florida, for example, employers are not permitted to either:
- Ask employees about the presence of a firearm in a vehicle; or to
- Search a private vehicle to determine whether it contains a firearm.
Georgia law prohibits employers from searching employees’ locked, privately-owned vehicles unless either:
- The search is done by law enforcement pursuant to a valid search warrant; or
- The situation would lead a reasonable person to believe that accessing the vehicle is necessary to prevent an immediate threat to human health, life or safety.
Despite the strength of this policy, Georgia’s guns-at-work law includes an important exception. It does not apply (and an employer can then conduct searches) if an employer either:
- Owns its property; or
- Is in legal control of the property through an agreement such as a lease or rental agreement.
State Anti-Discrimination Policies
Employers can be subject to additional liability for discrimination in states which have state anti-discrimination laws, if a potential or current employee applies for a job and is not hired after disclosing his/her firearm status or is later terminated after disclosing his/her status. As an example, Indiana employers are prohibited from asking applicants or employees to disclose information about whether they own a firearm unless it is used for employment.
In several states, employers are prohibited from conditioning an employee’s or applicant’s employment status on whether that individual either:
- Has a concealed firearm carry permit; or
- Stores a firearm in his/her vehicle.
The State of Florida also prohibits employers from terminating an employee on the basis that the employee chooses to exercise his right to bear arms as long as the firearm is not shown on company property other than for “defensive purposes”.
Many states require employers to post notices if they ban weapons at the workplace. For example, in Kansas and Minnesota, which have parking lot laws, employers that ban guns in their buildings must post conspicuous notice of the ban.
Employers in Alaska can prohibit firearms in certain areas, for example, within secured restricted access areas and in employer vehicles. However, they must post conspicuous notice of the prohibition at the entrance to the area.
The State of Tennessee, which does not have a parking lot law, requires employers that prohibit possession of weapons on their property to post notices in prominent locations, including all entrances to the property or building where possession of weapons is prohibited.
States with posting requirements often specify what must be posted for an employer to comply with the law. For example, employers in Tennessee comply with the law’s notice requirement by either:
- Posting a sign that has the exact language included in the law or language that is substantially similar; or
- Displaying the international symbol with a circle and a slash through the item prohibited.
Under Tennessee law, it is a criminal offense punishable by a fine of up to $500 for an individual to possess a weapon in a building or on property that is properly posted. An employer’s building or property is considered properly posted under Tennessee law if the required notice is:
- Of a size that is plainly visible to the average person entering the building; and
- Posted in English.
Fines and Penalties Against Employers
If the employer violates the law, several state laws provide for damages to be awarded to the employee. For example, under Kentucky law, an employer that fires, disciplines, demotes or punishes an employee who is exercising his right to possess a firearm is liable for civil damages. Further, under Kentucky law, an employee can seek an injunction against an employer who is violating the law. Kentucky is not alone in enacting such enforcement legislation. Under North Dakota law, an employee can bring a civil action and recover reasonable costs, losses, court costs and attorneys’ fees if an employer impedes his/her rights to carry at work.
Immunity for Employers
Several states have implemented state laws to provide immunity to employers that comply with their state’s guns-at-work law.
For example, under Georgia law, an employer is not liable for any criminal or civil action for damages arising from an occurrence involving the transportation, storage, possession or use of a firearm, including theft of the firearm, unless the employer:
- Commits a criminal act involving a firearm: and
- Knew the person using the firearm would commit a criminal act on the employer’s premises.
In the State of Idaho, employers are not liable for civil damages resulting from the employer allowing or prohibiting employees storing firearms in their personal vehicles on the employer’s property.
Similarly, under Texas law, private employers are not liable in civil actions for damages, including for personal injury, death or property damages, resulting from an occurrence involving a firearm that the employer is required to allow under the Texas guns-at-work law unless the employer is grossly negligent. Adding another layer of protection, the Texas guns-at-work law specifically states that employers are not required to investigate, confirm or determine an employee’s compliance with the laws related to ownership or possession of a firearm or transportation and storage of a firearm.
In contrast, Tennessee law does not provide for immunity. Instead, Tennessee’s law states that nothing in the law shall be construed to alter, reduce or eliminate any civil or criminal liability that an employer may have for injuries arising on its property.
Laws Permitting Employers to Allow Weapons
Following the enactment of Tennessee’s guns-at-work law in 2011, followed by several others states, some employers that opted to allow handguns at their workplace faced complaints that they were failing to provide a safe working environment in violation of their state’s occupational safety and health regulations. In response, Tennessee clarified its state law to state that the decision of an employer to permit employees with permits to carry handguns on its property does not constitute an occupational safety and health hazard. Such laws will be given heavy weight. As an example, an administrative law judge in Tennessee recently ruled against an employee who raised a claim that allowing handguns was an occupational safety and health hazard.
Under Texas law, the presence of a firearm or ammunition on an employer’s property under the state guns-at-work law does by not itself constitute a failure by the employer to provide a safe workplace under OSHA. Further under the 2015-enacted Texas House Bill 910, Texas law now allows people with concealed carry permits to carry loaded firearms openly in public, including their place of work.
Best Practices for Employers
Employers in states with guns-at-work laws can take certain steps to minimize their potential liability, including implementing and maintaining a workplace violence policy which informs employees that threats or violent acts in the workplace are prohibited. The company workplace violence policy should:
- be easy to read and understand;
- cover acts of violence (regardless of whether the act results in physical injury), harassment, bullying and any and all other forms of intimidation;
- prohibit employees from bringing weapons in the workplace as permissible by state law;
- articulate procedures for employees to report threats or violent acts;
- establish a disciplinary procedure for employees who violate the policy;
- clearly establish and disclose the resources available to employees, including counseling services and an employee assistance program, if applicable; and
- prohibit any discrimination, as well as real or perceived retaliation, against workplace violence complainants and victims
Employers would also be wise to involve security personnel and consider informing local law enforcement if there is ever a concern about a possible violent outburst or if terminating the employment of an employee who has known violent tendencies.
In addition, in those states who have implemented parking lot laws, employers should:
- Be mindful of the fact that, at the least, a parking lot law allows for an entryway for guns to now be relocated to the employer’s parking lot. Avoid expanding employees’ rights, for example, by allowing them to bring concealed weapons to work only if the employee agrees to store a firearm in a locked personal vehicle or in a well-secured location within the employer’s building.
- Consider security measures that control access to employer-provided parking lots where firearms can be stored. Having trained security personnel monitoring such areas can limit the likelihood an enraged employee can access his firearm and return to the workplace to cause harm without advance notice, and time for the employer to react.
- If permitted by state law, consider implementing an employee concealed firearms registration process to confirm that employees who store firearms in their personal vehicles in an employer parking lot have valid, concealed weapons permits. However, be aware that certain states (for example, Indiana) prohibit employers from even asking employees about firearm ownership.
Top Tips for Employers as to Workplace Gun Policies:
In summary and with the aforementioned considerations in mind, here are five tips for employers to consider when implementing a workplace gun policy:
- Review Your State-Specific Gun Laws. As noted herein, each state’s laws are different and many states have passed specific laws dealing with balancing an employee’s Second Amendment right to bear arms with an employee’s desire for a safe workplace.
- Draft a Gun Policy with Employee Safety in Mind. There is not a “gold standard” policy for employers to implement but a good policy will place a premium on employee safety and preventing violence.
- Conspicuously Post Your Policy. In states which place restrictions on employer gun policies, an employer must first post notice of any gun ban at the entrance to the area which will be affected, such as a parking lot or entrance to company offices. Such signage must provide, at a minimum, an explanation of where firearms are allowed and a clear notation or simple sign (or symbol) to note the protected area.
- Evaluate Compliance with OSHA. Most companies are covered by OSHA and injuries or an unsafe workplace due to firearms can create liability under OSHA, in addition to other legal costs and litigation-related expenses. Protect your business by reviewing how you can best protect your company, as well as your employees, and ensure your workplace is safe for every employee.
- Consider Engaging Employment Counsel. With the contradiction and collision of state guns rights and tort laws, OSHA compliance, constitutional rights, and other applicable laws, employers concerned about these issues should consult with an experienced, knowledgeable and proficient employment counsel to review and/or draft a workplace gun policy tailored for their state and their particular workplace and environment.
The need to correctly balance employee’s rights with employers’ goal to also protect employees from harm is not an easy task. In a world of ever-increasing, gun-related violence, with very strong gun rights laws for employees protecting their right to carry, a well-thought-out policy and review of these issues is important to all prudent employers.
Article by Peyton Smith, a former Partner at Reed & Scardino. For further information about labor and employment law and human resources, please contact us.