In the Concealed-Carry Crosshairs
As it has become easier for Americans to carry concealed weapons in public, employers must walk a fine line between protecting the workplace and respecting workers' Second Amendment rights.
By Julie Cook Ramirez
The Land of Lincoln became the final state to authorize carrying concealed firearms when the Illinois legislature overrode then-Governor Pat Quinn's amendatory veto of the state's Firearm Concealed Carry Act on July 9, 2013.
In that moment, it was officially legal in all states for private citizens to carry a handgun or other weapon in public, but in a concealed manner. In most states, individuals desiring to carry a concealed weapon must obtain a license or permit by successfully completing a firearms safety course and meeting a number of other requirements, such as demonstrating good moral character, not having been convicted of a serious offense, and not subject to a protective court order.
Already shaken by the number of mass shootings occurring across the nation -- often in places of business -- employers are understandably concerned about the prospect of employees bringing concealed firearms into the workplace. While the Washington, D.C.-based Occupational Safety and Health Administration has yet to weigh in on the matter, the majority of employers view the issue of concealed carry through the lens of OSHA's General Duty clause, which requires employers to provide a workplace "free from recognized hazards that are causing or likely to cause death or physical harm," according to Andrew Rogers, a Tysons Corner, Va.-based associate with Littler Mendelson. That leaves many employers questioning how to balance their need to protect the workplace with employees' Second Amendment rights. As Rogers explains, there's no cut-and-dry answer.
"If those two are in conflict, the Constitutional right is going to take precedence, but I hesitate to say that's the end of it because there is a clear degree to which private entities can regulate and control the possession of firearms and deadly weapons on their premises," says Rogers.
Despite concealed carry laws, employers in every state may prohibit workers -- and customers -- from bringing weapons into their establishment. Essentially, all that's required is a no-guns policy that is clearly communicated to employees, customers and vendors. In addition, most states require that signs of a certain size -- and sometimes a certain color -- be posted near entrances, proclaiming the prohibition.
"In most states, what employers are required to do is fairly easy," says Jason Keck, an associate in the Chicago office of Fisher Phillips. "You have your policy, you post signage and that's it."
Determining what policy is appropriate for a specific workplace obviously begins with a thorough review of state law, but it doesn't end there. Often, Keck says, the decision to allow or disallow concealed weapons is based on the cultural norms of a specific geography. If a business operates in an area where guns are more widely accepted, employees and customers alike may be perfectly fine with a workplace that allows for concealed carry. In other areas, the idea may be abhorrent.
Most state laws don't address whether employers can ask employees to notify them of their intent to carry a concealed weapon in the workplace. However, Keck says, an employer that has chosen to allow concealed carry has the right to ask to see an employee's concealed carry license. While there are sure to be a few employees who are worried about potentially working next to someone toting a gun, Erin Dougherty Foley, a partner in the labor and employment practice group in Seyfarth Shaw's Chicago office says, keeping the lines of communication open via training and ongoing dialogue "goes a long way toward assuaging concerns."
While they clearly have the right to ban employees from bringing concealed weapons into the workplace, in more than 20 states, employers cannot prohibit concealed carry permit-holders from having a gun in their personal vehicle in the company parking lot, as long as they comply with the requirements of the law -- typically that the firearm be unloaded and housed in a locked case inside a locked vehicle. Company-owned and company-leased vehicles are exempt from these so-called "parking lot laws." While employers may be tempted to search employees' vehicles to ensure they are complying with the safety requirements, Rogers cautions against conducting such searches. Rather, he recommends employers only take action if they suspect people are not following the rules.
Looking ahead, Rogers says, federal concealed-carry legislation is unlikely, but at the state level, legislators are continually tweaking their concealed carry laws, tightening and loosening restrictions as they see fit.
In recent months, Texas law was expanded to allow for concealed carry at community colleges and public universities, with some exclusions, such as areas frequently visited by pre-K through 12th-graders and places where explosive chemicals are used. Meanwhile, Ohio legislators are poised to remove penalties for concealed carry permit holders who knowingly or unknowingly carry a firearm into "gun-free zones," including airport terminals, courthouses, school safety zones and child daycare facilities, as long as they comply if asked to leave. If they refuse, they face a misdemeanor charge of disorderly conduct, punishable by up to 30 days behind bars and a $250 fine -- a significant reduction from the current fifth-degree felony charge that carries up to 12 months in prison and a $2,500 fine. Critics say the bill weakens employers' ability to restrict guns in the workplace.
While the majority of employers cannot completely prohibit firearms on their premises, creating the safest workplace possible must remain their end goal, says Rogers. For HR, that entails keeping abreast of changes to the law in each state where their company has operations and enacting policies aimed at keeping weapons out of the workplace to the extent that such can be done.
"You can't guarantee safety, but you can still do your best to create an environment that's as safe as possible," he says. "A policy that comprehensively addresses the possession of firearms and prohibits them in the workplace to the extent allowed by local law is strongly recommended."
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