Employers in the Crossfire

From SHRM’s HR Magazine:

Employers in the Crossfire
Federal and state gun laws have ramifications for employees and employers alike.

Last year’s massacre at Sandy Hook Elementary School in Connecticut was beyond tragic—and there have been more school shootings since then. In response, lawmakers in Washington have launched a game of political football.

But this isn’t about political wrangling around gun control; it’s about guns in places like schools and worksites. In addition to school shootings, there have been many fatalities caused by people turning their guns on colleagues at work.

According to the U.S. Bureau of Labor Statistics, about 78 percent of the approximately 518 workplace homicides in 2011 were gun-related.

In just the last few months of 2012, there were several tragic examples:

In September, a Minneapolis man who had been discharged opened fire in the company break room, killing five former co-workers before committing suicide.

In November, a man who was about halfway through his shift at a Fresno, Calif., meat processing plant pulled out a handgun and shot four co-workers, killing two before taking his own life.

Eleven days after that incident, a worker at a food producer in Indianapolis shot and killed a co-worker and then himself.

These are not the only examples of workplace homicides carried out with guns in 2012.

Rights vs. Risks

A comprehensive plan to prevent and respond to workplace violence goes beyond a rule on firearms in the workplace, but such a rule remains a critical component.

Of course, most gun owners would never consider using their weapons unlawfully, let alone do so. Those individuals should not be maligned. At the same time, we cannot ignore the inherent risks that firearms pose to employees in the workplace.

Think about what happens when you terminate an employee. He or she may be angry. If his or her temper is hot enough, a cool-down period may be needed to prevent a violent reaction. Access to a firearm in the company parking lot could cut short that cool-down period.

But can employers ban firearms in their workplaces and in motor vehicles in their parking lots? What if an employee has a license to carry the firearm?

Employees 21 and older have the right to drink, but employers still can ban alcohol from the workplace. Are firearms any different?

Some say yes, citing the Second Amendment. However, the scope of the protections it guarantees is not clear. Yet, the Second Amendment clearly applies only to restrictions imposed by the government—not private-sector employers.

States’ Statutory Rights

While private-sector employees have no constitutional right to bring weapons to work, some may have statutory rights. Twenty states have passed laws that protect, to varying degrees, the rights of employees and others to carry firearms on an employer’s premises. Tennessee’s legislation takes effect in July. In most cases, an employee’s right to bring a firearm onto an employer’s premises is limited to keeping the weapon in his or her motor vehicle.

Texas Labor Code Section 52.061 serves as a good example of these laws. It states:

“No employer may prohibit an employee who holds a license to carry a concealed handgun, who other­wise lawfully possesses a firearm, or who lawfully possesses ammunition, from transporting or storing a firearm or ammunition in a locked, privately owned motor vehicle in a parking lot, parking garage, or other parking area the employer provides for employees.”

There has been litigation about whether laws that allow employees to possess weapons on an employer’s property are inconsistent with, and therefore preempted by, the U.S. Occupational Safety and Health Act. The act’s general duty clause provides that each employer “shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”

Employers won one case at the district court level, when the court held that the state law was pre-empted by the general duty clause. But this decision was overruled, and employers have yet to win another case.

In 2009, in Ramsey Winch Inc. v. Henry (555 F.3d 1199), the 10th U.S. Circuit Court of Appeals ruled in 2009 that the general duty clause does not pre-empt state law, disallowing the maintenance or enforcement of policies prohibiting the transportation or storage of firearms in vehicles on private property. The circuit encompasses Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming.

Also, in a 2008 case, Florida Retail Ass’n Inc. v. Att’y Gen. (576 F. Supp. 2d 1281), a Florida district court held that the general duty clause does not pre-empt Florida’s guns-at-work law. The state law allows employees with concealed-weapons permits to keep guns locked in their vehicles while at work.

As of April, legislatures in at least 12 additional states were considering laws that would restrict the right of employers to prohibit employees and others from possessing firearms on their property and in their parking lots.

Pennsylvania legislators were pondering one of the most restrictive measures. House Bill 448 would allow an employee to possess a firearm locked in or “locked to” a private motor vehicle. The plain language would suggest that an employee could have his or her hunting rifle in plain view.

If enacted, to whom would this bill potentially pose the greatest risk? Hint: Which department is involved in most terminations?

Again, most hunters are law-abiding individuals. But if a gun is visible, anyone with a lock cracker can get ahold of and use the gun. As noted at the outset, this article is not about a political issue; it is about a workplace issue. However, political issues turn into legal ones when legislation is enacted, so employers need to be aware of gun laws in states in which they operate.

HR professionals may want to speak up when gun-related issues arise in their state legislature. After all, those in HR are involved in more terminations than other managers.

The Society for Human Resource Management’s position is this:

SHRM opposes any restrictions on the right of employers to determine their own worksite policies regarding weapons on company property (including parking lots). SHRM’s position in no way involves the broader issues of gun control or gun ownership.

Assessing Your Policy

With this background, employers are well-advised to look at their rules on weapons.

Ask these questions:

How do you define weapons? Yes, the definition should include guns, but it should not be so limited. A machete has no place in the workplace, either. While we cannot ignore guns, to focus solely on them creates significant risk of violence.

How do you define workplace? If you intend the definition to cover motor vehicles on your premises, make that clear. In this regard, consider what constitutes your premises. If you lease offices or parking lots, for example, you may control them. The answer may be different if the garage is open to the public. Of course, check state law to make sure you don’t overreach and end up with a claim under the laws in one of the states in which gun rights trump property rights.

If you are going to allow firearms in employees’ vehicles, what steps will you take to minimize risks? Will you require that they be locked in the trunk? That ammunition be kept separately in the vehicle and hidden from view, such as in the glove compartment? These are real issues for workplaces in which large numbers of employees leave work to go hunting, so an absolute ban may not be realistic, even if it is lawful. Focusing on these details may literally have life-or-death consequences.

If you have an exception for security guards, what steps are you taking to ensure that they are hired or engaged only after being screened with appropriate background checks? What guidelines and supervision do you have in place to minimize the risk of guards improperly using the weapons you may allow them to possess? Of course, be careful not to back into a discrimination claim. U.S. Equal Employment Opportunity Commission officials are looking closely at employers’ use of background checks.

This article is not about the right to bear arms. I leave it to the courts to determine that right.

This article is about the right of employees to have safe workplaces. Protecting that right is the responsibility of employers.

Jonathan A. Segal is a contributing editor of HR Magazine and a partner with Duane Morris LLP in Philadelphia.