GUNS IN THE WORKPLACE: A PRESSING PROBLEM FOR AMERICAN COMPANIES
The National Threat Assessment Center reported that between January and December 2017 incidents of mass attacks, during which three or more persons were harmed, were carried out in public places within the United States. These acts violated the safety of the places [where people] work, learn, shop, relax and otherwise conduct their lives.1
For those incidents that occurred in a workplace, it is no question it was a tragedy for the victims and their families, however, in the vast majority of the situations its also likely was the beginning of a nightmare scenario for the employer involved.
The ensuing law suit will allege that the employer was grossly negligent because the shootings were reasonably foreseeable based on the shooter’s history of misconduct and his known propensity for violence. In support of the claim, the family’s attorney will argue that the company:
should have known the shooter would likely or was capable of harming people;
negligently failed to take appropriate security precautions and allowed the employee to return to the premises
negligently retained the shooter for years
negligently did not have a workplace violence program in place to protect employees.
Further complicating the issue is that some 22 states have passed laws that limit property owners’ ability to ban firearms in vehicles in parking areas, according to the Law Center to Prevent Gun Violence, a San Francisco-based gun-control advocacy group.
Putting politics aside, easy and immediate access to firearms in the company parking lot presents challenges for employers and their duty to provide ‘‘a safe and healthy work environment.’’ in addition, easy and immediate access raises concerns about the potential for employee violence by an employee with a ‘short fuse’ as an emotional response without a ‘cooling off’ period that would naturally occur if the employee had to go home or go purchase a gun.
To minimize the above referenced legal risk regarding negligence, vicarious liability and to promote a safe work environment, employers often implement workplace violence policies that include a ban on weapons at the workplace where they are legally allowed to do so. Negligence occurs when an employer does not take reasonable actions to address or prevent violence that was foreseeable or that they should have known may occur. Vicarious liability happens when an employer can be vicariously held liable for wrongful acts committed by an employee in the course and scope of their employment.
While, there is no federal law that regulates weapons at private workplaces, beginning with Oklahoma, several states have enacted so-called guns-at-work laws. These laws, which are typically designed to protect employees’ rights to possess concealed firearms, vary in terms of their restrictions.
The following is a general overview of ‘Guns at Work’ or ‘Guns in the Parking Lot’ laws as they are sometimes referred to: 2
Protect employees’ rights to store firearms in their private vehicles even when parked in the employer’s parking lot.
Limit an employer’s ability to search vehicles on its property.
Prohibit discrimination against gun owners.
Permit employers to prohibit weapons at work if they post a required notice.
Subject an employer to fines for failure to comply with the law’s restrictions or requirements.
Provide protection to employers that comply, including immunity from injuries arising out of compliance.
Specify that employers can allow weapons at the workplace without violating the OSH Act general duty clause which states that a company is required provide a safe work environment from know work hazards, e.g., workplace violence.
The challenge for employers is that on the one hand, without immunity, complying with a law that allows employees to bring concealed firearms to the employer’s property can increase legal risk or if the laws are not complied with their company may face civil or criminal penalties in some states. The lack of consistency and hodgepodge of requirements in state laws also makes for a complex situation for employers to manage.
So what is an employer to do?
Barry Nixon, Executive Director, National Institute for Prevention of Workplace Violence, Inc, offers the following advice. The current reality in today’s world is that the possibility of workplace violence or an active shooter situation occurring in your workplace should be recognized as a real potential issue. Consequently, employers should have a plan for preventing and/or addressing an incident if one should occur. The following are some of the items that should be included In your plan:
Establish a workplace violence prevention plan that includes a specific component that addresses active assailant (shooter) situations.
Establish either a separate policy or incorporate into your workplace violence policy a section that addresses ‘Weapons in the Workplace.’ We recommend a separate policy.
This section or policy should prohibit employees from bringing firearms and other identified weapons on to your property or premises; in jurisdictions that have ‘Guns in the Parking Lot’ laws the policy should specifically limit employees rights to bring a weapon on to company property to the parking lot where the weapon must be stored in locked vehicle and out of sight. In other words, it should be clearly stated that these laws do not allow an employee to bring their weapon into your building or workplace.
In addition, in jurisdictions that permit guns in the parking lot, employers should consider security implementing measures that control access to employer parking lots where firearms can be stored. Having trained security personnel monitoring such areas can limit the likelihood an enraged employee can access his firearm and return to the workplace to cause harm without notice.
If not otherwise prohibited by state or local law, designate a separate, gated and secure area in the company parking lot for employees transporting guns in their cars. Further security for this area might include surveillance cameras and dedicated security personnel to control and monitor access to and from the ‘‘gun lot.’’ The policy should clearly state that possession of a firearm outside of the specific parking area is strictly prohibited, and failure or refusal to adhere to this policy may result in disciplinary action up to and including termination.3
Finally, except that ‘Murphy’s Law’ is alive and well and despite your best efforts something can go wrong, make sure you develop a crisis management plan to address an incident should one occur.
Active shooter incidents continue to haunt the American workplace and no employer should deny the real possibility of an incident occurring at their workplace. As Nashua Police Office Dan. David Elliott, put it, “Hope is not a course of action,” in preparing for how to deal with an active shooter incident.” Accordingly, employers should do their absolute best to prevent harm from coming to their employees by implementing a well-developed workplace violence prevention policy and plan that addresses active assailant (shooter) situations despite the complicating factors in ‘Guns in the Parking Lot’ laws