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Firearms at Work

Firearms at Work | Human Resource Executive Online As states strengthen the rights of employees to bring guns onto employer parking lots, HR leaders need to respond proactively and not construe such laws as allowing them to abdicate their obligations to provide a safe workplace.

Thursday, October 16, 2008
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In a fascinating twist on a familiar controversy, several state legislatures, including Georgia, Florida, Oklahoma, Alaska, Kentucky, Mississippi, Kansas and Minnesota, have passed laws preventing employers from enforcing policies that restrict employees from bringing firearms onto an employer's parking area, as long as such firearms are secured in the employee's vehicle. 

Several other states, including Alabama, Louisiana, Montana, Tennessee, Utah and Virginia, are currently considering passing similar laws.

According to state lawmakers and the National Rifle Association, the goal of these laws is to enable employees to exercise their constitutional right to possess and carry firearms in their vehicle, by eliminating employer policies that restrict employees from possessing a firearm on an employer's property.

Opponents of these measures, including the American Bar Association, point to the fact that one of the leading causes of death in the workplace is employee homicide by use of firearms.

For example, between 1980 and 2006, there were 16,454 homicides -- approximately 663 a year -- by shooting in the workplace. Similarly, a recent Society for Human Resource Management survey indicated that its members overwhelmingly favored an employer's right to limit firearms in the workplace, in part based on a U.S. Department of Justice survey finding that 2 million employees are assaulted and/or threatened at work annually.

In response to these new state laws, employer groups have challenged enforcement of these laws by relying on OSHA's general safety requirement, which mandates that employers provide a safe workplace. 

In October 2007, a federal judge in Oklahoma agreed with these employer groups, holding that OSHA's general safety provisions required employers to provide a safe workplace and that Oklahoma's law -- which allowed storage of firearms in an employee's vehicle -- constituted an obstacle to this OSHA requirement.

In reaching this conclusion, the court noted the history of firearm usage in the workplace and the need to protect employees from such violence. The judge then issued an injunction against enforcement of Oklahoma's law.

It seems likely that this issue will be raised in other jurisdictions where judges will be asked to decide whether OSHA's safety requirements preempt state laws that allow entry of firearms onto workplace property.

Meanwhile, what can employers and human resource professionals do in those states that have enacted employee firearm-friendly laws?

During this timeframe, when these laws may likely be challenged, it is important, despite such laws, to work very closely with security professionals, attorneys and local law-enforcement officials to defuse situations involving potential violence and the possible use of firearms. 

HR leaders should not construe these laws as allowing them to abdicate their obligations to provide a safe workplace. Instead we suggest the following steps: 

1. In states where possession and transportation of firearms are legal and employers cannot implement policies to prevent firearms from being brought onto company property, you should first determine if you are exempt from the applicable law because of the nature of the business, or if it is permissible to create a "secured parking area," thereby potentially stepping into an exception to such laws (in some states). 

2. If there are no other options, then employees may be able to bring firearms in their vehicles onto company property. But these laws do not permit employees to come into the actual workplace with firearms and employers are free to enforce policies to restrict such activities.

3. If employees exhibit behavior reasonably suggestive of possible violence, an employer is still free to seek the assistance of local police officials and the courts and should readily do so.

4. Employers may choose to work with local business groups in determining whether to institute litigation under OSHA's general safety provisions to combat such laws on preemption grounds. 

5. At all times, employers should place the safety of employees over the right to store firearms where it appears that harm to fellow employees is possible.

6. Employers should carefully monitor if there are any cases that "strike down" these laws in the jurisdictions that have enacted them as it is likely that such laws will be challenged in the near future.

The Supreme Court may ultimately be asked to define the extent of an employee's constitutional right to possess a firearm on the private property of an employer.

For example, while the U.S. Supreme Court's June 2008 decision in the matter District of Columbia vs. Heller, recognized a constitutional right to possess firearms in the home, it is unclear how the Heller ruling will be applied to possession of firearms outside of the home, i.e., on employer property.

But in Heller, the Supreme Court noted that: "like most rights, the Second Amendment is not unlimited. It is not a right to keep and carry any weapon whatsoever, in any manner whatsoever and for whatever purpose."

Accordingly, the Supreme Court clearly recognizes that reasonable restrictions on the right to bear firearms can be constitutional, but its decision does not define what these limits are. Instead, future cases will have to establish the contours of such limitations.

It is also important to note there are significant differences in these various state laws.

For example, Georgia allows employers to restrict guns on property the employers own, but this owned property exclusion is not applicable to the vast majority of companies that lease their office locations. (Of course, landlords could also require employers to have a "no-gun" policy in their lease agreements.)

Conversely, Florida allows employees to bring firearms onto workplace parking lots even if the employer owns the real property on which the workplace is situated.

Incredibly, Florida's law even prohibits employers from "violating the privacy rights of a customer, employee or invitee by verbal or written inquiry regarding the presence of a firearm inside a private motor vehicle... ." In fact, it is a violation of Florida's law for an employer to simply ask if an employee has a firearm in his or her vehicle.

Thus, while employers can legally control speech in the workplace and tell employees what to wear, under Florida law, they cannot even inquire about firearms stored in a vehicle in their parking area. (It is unclear, therefore, how an employer would even know which employees possess firearms in the workplace, if they cannot even ask.)

Georgia's law contains several key exceptions. For example, Georgia has a "pending disciplinary action" exception that recognizes that employees can be restricted from bringing guns to work while a disciplinary action is underway. It is unclear what occurs when the disciplinary action is concluded, or what constitutes a disciplinary action. 

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A somewhat related issue is what happens when an employee exhibits signs of emotional or mental illness at the workplace, but is not under disciplinary review. 

Certainly, employers should be at a heightened level of alert concerning possible violence when an employee exhibits behavior that calls into question his or her ability to possess a firearm. Presumably, employers would work with local police officials in protecting employees from harm of firearms in the workplace. Unfortunately, these laws fail to address this issue.

Many of these laws also recognize that some businesses are exempt.

For example, Georgia, Florida and Oklahoma exempt schools, nuclear power plants, defense contractors and businesses that store explosives. However, Georgia and Florida do not exempt day-care centers, hospitals, nursing homes, restaurants and shopping malls. (Ultimately, the list of exempt locations seems somewhat random in nature.)

In an attempt to deal with obvious employer liability concerns, Georgia immunizes employers from workplace harm resulting from an employee's actions unless the employer was aware of an employee's propensity for violence. Oklahoma and other states have also attempted to immunize employers from employee actions.

Plaintiffs, however, will likely circumvent such provisions by raising the issue of an employer's negligence in failing to respond to past instances of violence, thus calling into question whether such statutory immunities will be effective.

Additionally, Georgia's law was somewhat "watered-down" at the last minute by the legislature when it added an exemption relating to "secure" parking lots. In so-called secured parking lots, employers can restrict firearms as long as the parking lot restricts public access and provides that all vehicles are subject to being searched on a "uniform" and "frequent" basis. 

Another interesting aspect of these workplace possession and firearm storage laws is that they may lead to more restrictions on firearms in the workplace. This is because the vast majority of employers currently do not have specific policies restricting firearms from vehicles in parking lots.

In fact, most employers have no idea what items are stored in the cars parked in their parking areas.

But the backlash from these laws will likely result in an increasing number of wholesale bans on the storage of firearms in employee vehicles (where still permitted) and it seems inevitable that OSHA will eventually have to act on this issue, either directly or indirectly, when business groups obtain rulings enforcing OSHA's general safety requirements and enjoining the enforcement of these laws.

In the final analysis, while some employers groups have said that the days of the "Wild West" are returning, it seems more likely that these issues will soon be "played out" in the courts (possibly the U.S. Supreme Court), which will be asked to decide if federal law fully or partially preempts this area, and whether the Second Amendment's firearm protections extend outside of the home and onto an employer's property. 

It is also unclear what level of judicial scrutiny the courts will use in determining whether to strike down laws that limit the right to possess and carry firearms in the workplace area.

James P. Anelli is a shareholder in LeClair Ryan's labor and employment group in Newark, N.J. He has 20 years of experience representing management in employment discrimination and labor litigation. He previously served with the United States Department of Justice.

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