Questioning Zero Tolerance on Guns

Posted by Ross Arrowsmith on Wednesday, April 30th 2008 under Workplace violence

By Kristen B. Frasch, Human Resources Executive Online

The recent firing of a Pizza Hut driver who shot an armed robber during a hold-up adds heat to an already stirring controversy over employers’ rights to ban weapons to keep workers safe versus employees’ rights to protect themselves.

The driver, James William Spiers III, 38, was delivering pizza for a Des Moines, Iowa, Pizza Hut on March 27 when Kenneth Jimmerson, 19, put a gun to his head outside a Des Moines apartment complex and demanded money, according to newspaper and television reports.

Spiers fired multiple shots that left Jimmerson injured, though not critically; Jimmerson is now facing first-degree robbery charges, the reports state.

Although he had a legal permit to carry a handgun, Spiers was first suspended, then apparently fired, from his job. Spiers told KCCI television he was let go on April 18. Repeated calls to Pizza Hut for confirmation were not returned.

Pizza Hut officials did tell the Altoona (Iowa) Herald-Mitchellville Index that Spiers was offered a severance package, counseling services and job-search help but declined to comment further.

“We’re doing all that we can to help him with the transition,” Chris Fuller, a spokesman for the Dallas-based company told the Herald-Index.

Vonnie Walbert, vice president of human resources at Pizza Hut’s corporate offices in Dallas, also told the Des Moines Register that the company prohibits employees from carrying guns “because we believe that that is the safest for everybody.”

Walbert did not say whether Pizza Hut had a written policy in place banning weapons at work.

And whether companies have such policies could become an increasingly important factor in the potential liability an employer has for disciplining employees who carry or use guns, says Eugene Volokh, a professor at the UCLA School of Law in Los Angeles and creator of The Volokh Conspiracy, a blog analyzing news, court and legal events.

Volokh cites a case from Connecticut , Winters vs. Concentra Health Services Inc., in which the plaintiff, Brendon Winters, contends his firing from the Norwich, Conn., healthcare company for carrying a lawfully concealed weapon to work violated his fundamental right to possess firearms for self-defense — a specific provision of the constitution of Connecticut — because and only because Concentra did not have a clearly established company policy prohibiting guns at work.

Concentra’s attorneys argued before a Connecticut Superior Court judge that at-will employment standards allowed the company to dismiss Winters, and that the right to bear arms was “trumped” by a “countervailing public policy that encourages a safe work environment,” Volokh writes.

But, he writes, Winters did not “assert that the right to bear arms modifies a company’s ability to prohibit employees from carrying a lawfully concealed firearm in the workplace.”

“Instead, he argues that because Concentra did not have a company policy prohibiting lawful firearms at work, he could not be terminated for availing himself of his constitutional right [to bear arms for self-defense],” he writes.

The Concentra case is an interesting one, Volokh says in a subsequent interview, because it “raises the question of whether the employer [must have] that policy written in its manual, that an employee is prohibited from carrying a gun on business premises.”

And in the absence of such a policy, it raises questions as to whether an employee’s constitutional right to bear arms for self-defense trumps an employer’s at-will employment rights.

As to what such a written policy should say, “the employer is on the most solid ground if [it states simply] that you can’t bring a gun onto company property or while you’re on company work,” Volokh says.

Employers who forbid employees from carrying legally concealed weapons in their cars or while working job will be facing increasing scrutiny, especially where written policies do not exist, according to Volokh.

Firing workers for defending themselves against violence or violent threats simply to uphold a stated zero-tolerance policy is getting increased scrutiny, publicly and in the courts, he says.

Laws are also now being passed by some states allowing workers to carry guns in their cars — the most recent being Florida, where Gov. Charlie Crist signed the “take your guns to work” bill on April 15. It prohibits business owners from banning guns kept locked in motor vehicles on their private properties.

The Florida Chamber of Commerce and the Florida Retail Federation filed a legal challenge to the law on April 21, however, urging a reversal of the bill on the grounds it would undermine the property rights of Florida businesses and could endanger workers.

“This law is unnecessary and a violation of the private property rights provided by the Constitution,” Mark Wilson, president and CEO of the Florida Chamber of Commerce said in a statement. “We are taking this action to restore what 80 percent of Florida voters believe to be true — that a business owner should be able to decide if employees can or cannot bring guns on their property.”

It was in Florida last year that an apartment leasing agent was fired for helping to save a woman’s life . Colin Bruley, who worked at the Mill Creek apartment complex in Jacksonville, grabbed his shotgun and ran to help after hearing gunfire and a woman’s scream on June 12, 2007.

The shooter was gone when he arrived, but he helped stem the bleeding of a 24-year-old resident as they waited for emergency personnel to arrive. The next morning, expecting a commendation, Bruley was fired for “gross misconduct.” Brandishing the weapon violated company policy.

Other states that have enacted similar laws permitting guns in cars include Oklahoma, Alaska, Kentucky and Mississippi.

Laws or no, says Volokh, for the employers, it also comes down to using common sense.

“My guess is that in many of these situations, HR should ask itself, ‘Is this person actually dangerous to other workers, or is it someone who broke the policy but is a decent person who gets along with our customers and is good with them?’ ”

Moreover, “pizza delivery might be a dangerous job; employees might have a legitimate reason to be concerned,” says Volokh, adding that employers might have to reconsider zero tolerance in light of societal shifts and increased violence in general.

HR should also be keeping public reaction in mind, he says.

“Does HR really want a story appearing in the next day’s paper saying, ‘Hero Gets Fired’?” he asks.