October 27, 2015
Preventing violence in the workplace is (or should be) a major concern for every employer. After all, the business is the owner’s livelihood; it and the employees who keep the business running should be carefully guarded. Workplace violence can take many forms, including physical threats, bullying, verbal and physical abuse and the use of weapons, from knifes to firearms. In their quest to keep their workplaces and their employees safe, it’s important that employers understand what they can or cannot do when it comes to restricting firearms in the workplace.
Background on Workplace Homicides
The Bureau of Labor Statistics (“BLS”) Census of Fatal Occupational Injuries reported that from 1992 to 2012, 14,770 individuals were the victim of homicide in the workplace, an average of more than 700 individuals per year. In 2014, there were 403 people killed in the workplace, including 307 killed by a gun.
Studies show that workplace homicides due to shootings are not limited to any specific industry or type of job. The chart below shows that workplace homicides occurred in eleven different industries in 2010.
The Second Amendment of the United States Constitution sets forth the Right to Bear Arms as follows: “A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.” This article will not argue the reach of the Second Amendment, except to say that the Right to Bear Arms is subject to some regulation by the Federal government and some State governments as to where you may lawfully carry your gun.
For instance, Federal law prohibits the carrying of a gun, or having a gun in one’s car within any designated “school zone,” a United States post office, a Federal Courthouse, Federal cemeteries and commercial aircraft. Many states also prevent an individual from carrying a gun into schools and government buildings, including courthouses.
So, the question is what, if anything, can a private employer do regarding its employees carrying guns onto its property or into the workplace?
Most employers attempt to promote a safe work environment by instituting workplace anti-violence policies. In many, if not most of these policies, employers prohibit the carrying of a firearm onto the property of the employer. Such a policy will not prevent a premeditated homicide in the workplace, where the worker will carry a weapon onto the employer’s property to immediately commit murder, but it may prevent an impulsive or heat-of-passion act of violence. These are good policies which I recommend and include in all employee handbook/policies that I prepare.
Private employer policies preventing firearms on the property, are not recognized or enforced by any Federal law. On the contrary, a couple dozen states have passed laws that prohibit employers from restricting employees from carrying firearms or keeping them in their automobiles.
Bring Your Gun to Work Laws
In 2004, Oklahoma passed a law that prohibited employers from preventing workers from storing firearms in their locked vehicles on the employer’s premises. Since then, at least twenty-one other states have passed similar laws, specifically Alabama, Alaska, Arizona, Florida, Georgia, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maine, Minnesota, Missouri, Mississippi, Nebraska, North Carolina, North Dakota, Tennessee, Texas, Utah and Wisconsin. These laws are all nuanced, with some preventing discrimination against gun owners, others permitting prohibition of firearms in parking lots, so long as notices are posted, and others restricting or preventing the search of employees’ automobiles in employer parking lots.
The stated purpose behind these laws is that workplace shootings will be reduced if the potential shooter knows that other employees have firearms in their automobiles. This justification presumes several things:
- That the potential shooter is thinking logically.
- That the employee can get to his/her car during the shooting to utilize the firearm in self-defense.
- That the employee is trained to effectively and safely use his/her firearm in such a trying situation, without wounding or killing innocents. Moreover, it’s hard enough for law enforcement to respond to an active shooter scene when there is one person with a gun; just imagine if five employees also had guns – who’s the bad guy and what innocents might get killed in the crossfire?
Putting aside the reasonableness of such laws, these state-by-state laws create special challenges for multi-state companies that attempt to keep their employee policies and procedures as consistent as possible. Moreover, these laws create potential expense for employers, as some of these laws include provisions regarding parking lot safety/security and the provision of locked storage areas on the employer’s premises.
Best Practices Moving Forward
For employers in states where a Bring Your Gun to Work Law has not yet been passed, I encourage you to continue to prohibit your employees from bringing firearms onto the employer’s premises, and if they do, to make it an offense that leads to suspension or termination.
For employers in states where there is a Bring Your Gun to Work Law, I encourage you to review the law to determine what obligations you have and whether there is anything under the statute you can do to legally limit or prevent firearms in your workplace.
If you are an employer with locations in both types of states, I encourage you to have two different policies. Although I am a believer in having one policy throughout the company whenever possible, I believe this is a time when it is not possible.
Other best practices include:
- Conduct pre-employment criminal background checks
- Address all “minor” conflicts in the office, as minor slights or arguments can lead to more significant incidents if not dealt with promptly and fairly
- Implement and enforce an anti-bullying and anti-violence policy in the workplace
- Train supervisors on conflict avoidance and the anti-bullying and anti-violence policies, as frequently as anti-discrimination training
- If legally permissible, prohibit firearms on the employer’s premises, including any company owned vehicles, and at any employer events
- Properly secure the employer premises, if possible, limiting entrance to one or two locations
For some employers, this may be a Constitutional Right to Bear Arms issue, and for those employers there is nothing to prevent you from permitting firearms throughout your workplace. However, the best practice policy for safety and to minimize liability, is to prohibit firearms on the employer’s premises which, unfortunately, is itself prohibited in nearly half the country.
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The information above is general: we recommend that you consult an attorney regarding your specific circumstances. The content of this information is not meant to be considered as legal advice or a substitute for legal representation.