Dealing With New Guns-at-Work Laws

Posted by Ross Arrowsmith on Thursday, November 27th 2008 under Guns at work

By Donald J. Friedman and John K. Roche, Workforce Management Online

Many employers assume that they have the right to prohibit their employees from bringing guns to work. In an increasing number of states, though, this assumption is wrong. In at least nine states an employer cannot bar its employees from bringing guns to work and leaving them in their cars. Indeed, in some of these states, enforcing such a ban could subject the employer to criminal liability; an employee discharged for having a gun in the company parking lot might have a civil cause of action against the employer.

On August 15, 2008, Louisiana became the ninth state to prohibit employers from enforcing any workplace policy that would prevent their employees from storing a gun in their cars on a company lot. The recently enacted Louisiana law provides that “a person who lawfully possesses a firearm may transport or store such firearm in a locked, privately owned motor vehicle in any parking lot, parking garage, or other designated parking area” and that “[n]o … private employer, or business entity shall prohibit any person from transporting or storing [such] a firearm.”

The law, however, provides exemptions under the following circumstances:

- Any property where the possession of firearms is prohibited under state or federal law.

- Any vehicle owned or leased by a public or private employer or business entity and used by an employee in the course of his employment, except for those employees who are required to transport or store a firearm in the official discharge of their duties.

- Any vehicle on property controlled by a public or private employer or business entity if access is restricted or limited through the use of a fence, gate, security station, signage or other means of restricting or limiting general public access onto the parking area, and if one of the following conditions applies: (a) The employer or business entity provides facilities for the temporary storage of unloaded firearms; or (b) The employer or business entity provides an alternative parking area reasonably close to the main parking area in which employees and other persons may transport or store firearms in locked, privately owned motor vehicles.

In enacting this new statute, Louisiana joined a growing number of states with similar laws, including Alaska, Florida, Georgia, Kansas, Kentucky, Minnesota, Mississippi and Oklahoma. Similar legislation has been proposed in other states, including Arizona, Missouri and Tennessee, and more states are sure to follow as part of a major National Rifle Association legislative initiative. This initiative acquired new momentum in the wake of the Supreme Court’s recent decision in District of Columbia v. Heller, 128 S. Ct. 2783 (2008), in which the court generally held that the Second Amendment conferred an individual the right to keep and bear arms and that statutes banning handgun possession in the home violated the Second Amendment.

In the interest of promoting workplace safety, many employers would prefer to completely ban firearms from their property, including parking areas. There is little doubt that allowing guns in the workplace endangers workers. Workplaces that tolerate guns are five to seven times more likely to suffer homicides than job sites that ban firearms, according to a 2005 study in The American Journal of Public Health. A more recent study found that an average of 500 homicides occur in U.S. workplaces each year.

An employer terminating an employee or announcing a plant closure or reduction in force may have legitimate cause for concern if it knows that its employees may have guns in their cars. A disgruntled employee with a firearm in his or her vehicle might be more likely to resort to an act of impulsive violence than if the employee had to leave work and return. As one court has noted, “[a] situation involving workplace violence, such as an altercation between employees or a domestic dispute that finds its way to company property, can escalate from a scuffle or an argument to a deadly gun fight in a matter of seconds based on the presence of firearms on company property.”

One case in point involves an employee at Atlantis Plastics, a western Kentucky plastics plant. The employee had an argument with his supervisor in June 2008 about not wearing safety goggles and excessively using his cell phone while he was at his press machine. Later that night, as the supervisor escorted the man from the building, the employee shot the supervisor with a .45-caliber pistol that he had retrieved from his car. Then the employee charged into a break room on the plant floor, shooting five of his co-workers before turning the gun on himself. It is perhaps no coincidence that Kentucky is among the states prohibiting employers from banning guns in employee-owned cars parked on company property.

Most state guns-in-the-workplace laws provide employers with immunity from any resulting injuries or deaths. Immunity, however, would be small solace for an employer whose employees or customers were shot by an armed employee who was permitted to bring his weapon to work.

Faced with this problem, some employers in Oklahoma filed a declaratory judgment action under the theory that the workplace safety requirements of the Occupational Safety and Health Act of 1970 pre-empted Oklahoma’s guns-in-the-workplace statute. A federal district court in Oklahoma agreed with the employers and overturned the Oklahoma law. That decision is on appeal to the 10th U.S. Circuit Court of Appeals, with oral argument scheduled for November 19, 2008. A federal district court in Florida, however, recently rejected precisely the same argument when it was raised against Florida’s newly enacted guns-in-the-workplace law. That decision has not been appealed. Accordingly, the legal landscape in this area is unsettled, and it is far from clear how the Supreme Court might rule on this question.

These laws put employers in a very difficult position. Compliance arguably violates a company’s obligation to protect its employees, while noncompliance subjects the company to civil or criminal penalties, or both. What can employers do to avoid this choice between putting their employees and customers at risk of injury or facing penalties themselves for noncompliance?

- If the employer is located in a state with legislation authorizing employees to bring firearms to work in their cars, explore whether the employer qualifies for one of the exceptions to the statute. For example, some states provide an exemption for employers whose parking lots are secured and not otherwise open to the general public. In some states other exemptions may apply to (a) properties on which possession of a firearm is prohibited by federal law or a contract with a federal government entity; (b) properties on which substantial activities involving national defense, aerospace or homeland security are conducted; or (c) facilities dealing with the manufacture, use, storage or transportation of combustible or explosive material.

- Assess whether state law is pre-empted by certain federal regulatory requirements. For example, businesses that deal with certain quantities of dangerous chemicals must submit a security plan for approval to the Department of Homeland Security under federal Chemical Facility Anti-Terrorism regulations, 6 C.F.R. pt. 27. The Department of Homeland Security will likely require that such facilities maintain a security plan mandating a gun-free workplace with an exception for security personnel. Additionally, any employer subject to regulation under the Maritime Transportation Security Act, 46 U.S.C. Chapter 701, may be required by the Department of Homeland Security to maintain a gun-free workplace.

- Consider following the lead of employers in Oklahoma and Florida and filing a suit for a declaratory judgment challenging the state statute.

- Ban firearms from business premises. Even in states prohibiting employers from banning firearms in company parking lots, employers still may ban firearms from the business premises themselves and probably bar employees from accessing their firearms even in the company lot. Keep in mind, however, that some states, like Kansas, have very specific requirements for signage that must be used to lawfully prohibit firearms from private property.

- Implement physical security and access control measures to ensure that firearms are not brought into the workplace itself. Such measures may include installation of silent alarms, metal detectors and video cameras in a manner consistent with applicable state and federal laws. Additionally, it may be wise to require visitors to sign in and out at reception, wear an identification badge while on the business premises or be escorted while on company premises. Employers may consider enhancing all of these measures when announcing terminations or layoffs.

- Take additional steps to maintain the security of the parking lot and vehicles in it since the employer is now on notice that the vehicles may contain firearms locked in them.

- Conduct thorough pre-employment screenings. Employers who conduct effective background checks can often improve productivity and reduce the number of personnel prone to violent behavior.

- Consider providing employees with professionally delivered training on how to avoid workplace violence and how to detect early warning signs. It may also be wise to conduct exit interviews when employees retire, quit or are transferred in order to identify any potential violence-related security or management problems.

Statutes authorizing employees to store guns in their cars in company lots create new challenges for employers. Employers should face these challenges now rather than after an incident occurs that injures employees or customers.