Where Company Policy Collides with State Law
By Patricia Kotze
In some states, especially Florida, employers may think their next official state holiday will be “Bring a Gun to Work Day.”
Most employers have traditionally had the right to ban employees from bringing guns onto company property, even in personal vehicles in company parking lots. But some states now dictate individual employees have the right under the Second Amendment of the United States Constitution to carry firearms legally for their own personal protection, regardless of posted company policies. These states vigorously side with employees disciplined for the possession of firearms at work, even when such possession violates company policy, as long as the employees in question were licensed to carry under the states’ concealed handgun laws.
In 2002, twelve workers at a Weyerhaeuser plant in Oklahoma were terminated for possessing guns in vehicles parked in the company parking lot. Oklahoma legislators, hearing an outcry from constituents who wanted the right to arm themselves in compliance with Oklahoma’s concealed permit laws, soon responded with a new law assuring gun owners licensed to carry concealed weapons the Constitutionally-protected right to possess guns in company parking lots. Georgia followed with its own similar parking lot legislation.
In 2007, however, ConocoPhillips won a Federal lawsuit against the NRA-backed “Guns-at-Work-Law.” A significant victory for employers, this restored their right to enforce gun policies and left the 2004 laws totally unenforceable. In October 2007, Oklahoma permanently repealed the 2004 legislation.
Guns In The Workplace
Furthermore, the American Bar Association’s (ABA) House of Delegates passed a critical resolution of the new laws in 2007, throwing their support behind employers, specifically their ability to make policies regarding persons and weapons entering private property. “The American Bar Association supports the traditional property rights of private employers and other private property owners to exclude from the workplace and other private property persons in possession of firearms or other weapons and opposes federal, state, territorial and local legislation that abrogates those rights.”
Louisiana joined Florida and Georgia in enacting a “guns at work” law this legislative session. Governor Bobby Jindal signed the bill into law July 2, 2008 and it went into effect on August 15, granting properly licensed individuals the right to store firearms in their privately owned, locked vehicles in any designated parking areas, including employee parking lots and garages provided by employers.
Companies in the United States have legal obligations to provide every employee with a safe and secure workplace; under the Occupational Safety and Health Administration’s (OSHA) “General Duty” clause, employers are required to create work environments clearly free from recognized hazards that might or are likely to cause an employee death or serious physical harm. In addition, employers are also required to provide protection for all vendors, clients, visitors, solicitors and/or anyone in the general public while on Company property.
Workplace violence is a serious problem in the U.S. According to one study, 77% of homicides committed in the U.S. workplace involved firearms. This growing crisis is of paramount concern to security service providers, Human Resource managers, and is creating a potential legal dilemma: the risk of forbidding employees who legally have the right to carry concealed weapons from doing so could open companies to legal exposure. A study published by the American Journal of Public Health in 2005 found that employers allowing people to bring guns to work were up to seven times more likely to incur cases of workplace homicide versus employers with strict “no-gun” policies. The liabilities of employers with either type of policy are considerable, but limiting the liability is a must; statistics offer significant preponderance in favor of the banning of weapons at work.
The ABA, the Society of Human Resource Management (SHRM), ASIS International, and the HR Policy Association are among the many highly visible organizations and associations which have expressed concerns and opposition to the NRA-backed “guns-at-work” bills. Employers must be able to make informed, legally compliant decisions that mitigate exposure to risk. By implementing a policy that bans employees from bringing guns onto company property and holds employees accountable to disciplinary action up to and including termination, employers can shield themselves from greater liability.
But what options are available to employers when they own or lease their building space, parking lot or perhaps share common space with other businesses? Is it their responsibility to communicate policies prohibiting guns on company property? And what exposure and liability does this decision have on the company and its owners?
Legislation regarding guns at work often prescribes limited liability for employers in incidents involving guns and injuries or death when strict weapons policies are in place banning guns from the work place. However, under any circumstances, when there are injuries or death, litigation is not only possible but quite probable.
Another area of question is whether Workers’ Compensation or general liability insurance for the business will cover incidents involving guns in the workplace. Some will, depending upon the extent and nature of the incident, but separate Workplace Violence Policies can offer additional protection from liability; good policies address and respond to even threats of violence.
All experts agree that risk is greatly reduced with an on-site security evaluation and risk management assessment by a competent risk mitigation firm. Assessment must be conducted to determine the thresholds of potential exposure within the facility and around the outside perimeters (regarding access, lighting, cameras, assistance and communication mechanisms, etc.) and even the safety of a firm’s hiring practices.
In the end, much depends on where your company is conducting business in these wild, wild United States, and whether or not your own state law allows the banning of guns in parking areas. Before you write policies banning the otherwise legal carrying of firearms, make sure your state agrees you have the right to do so. And before pulling the trigger on any new labor policy, we strongly suggest having it fully vetted by Labor and Employment Counsel.
About the Author:
Patricia A. Kotze is Managing Partner at Diversified Risk Management, Inc. (DRM), headquartered in Southern California and licensed by the California Bureau of Security & Investigative Services.
Prior to co-founding the firm she was Senior Vice President, Director, and Manager of Corporate Investigations for three national investigation firms.
With more than 25 years experience, she assists employers ranging from “Fortune 500” to rather small companies coast-to-coast in the United States, Canada, Mexico, and abroad. Industries served include aerospace, motion pictures, automotive, healthcare, pharmaceuticals, electronics, universities, computer technology, publishing, printing, transportation, agriculture, steel products, forestry, food production and processing, agriculture, law firms, municipalities, non-profit organizations and all facets of manufacturing and warehouse distribution.
Ms. Kotze is instrumental in solving employee theft, fraud, substance abuse, various forms of misconduct and other crimes perpetrated against DRM’s clients and works closely with the attorneys who serve them. The tangible results of those investigations drive the company’s success with significant repeat business, referrals and good will. Ms. Kotze serves on civic boards, speaks to groups of all sizes on the subjects of women in business, motivation and success, investigations for employers, and conducts training for management level human resources and security personnel. Ms. Kotze can be reached at 800.810.9508 or by e-mail.