Articles

As our nation struggles to comprehend the recent mass shootings in Aurora, Colorado and at a Sikh temple in Wisconsin, the national discourse has again turned to gun control.  Employers must wrestle with the same basic issues present in the general debate – do you limit access to guns (at work) or hope self control rules the day?  However employers resolve the big picture question of how they want to deal with weapons in the workplace, they must consider all the legal issues.

While the Second Amendment (which authorizes the citizenry to bear arms) does not apply to private employers, a number of states have laws restraining employers in developing workplace policies dealing with weapons.  Generally, these laws require employers to allow handguns (and in some cases, other weapons) to be kept out of view in a locked vehicle on the employer’s property.

The specifics of these gun laws vary by state.  Some statutes prohibit an employer from discriminating against employees who possess guns lawfully or preventing employees from applying for gun licenses.  Some statutes include detailed posting requirements or have different rules depending on the nature of your business.  When crafting your workplace weapons policy, enlist the assistance of competent counsel to avoid running afoul of these requirements.

What is the most an employer can do to create a weapon-free workplace?  With the possible exception of Alaska, no state requires employers to allow weapons inside the workplace.  If your objective is to minimize the presence of weapons in the workplace, be sure to check your state’s laws to see if an all-out ban is permissible, or if you must allow weapons on premises in a locked vehicle.  Be sure your weapons policy is clear that failure to keep the weapon in a locked vehicle out of view, or off the premises, if allowed, is a violation of company policy and can lead to discipline.

By contrast, what is the most permissive an employer can be regarding weapons in the workplace?  No laws specifically prohibit employers from allowing weapons on premises.  While the Occupational Safety and Health Act does not specifically address workplace violence, the Occupational Safety and Health Administration (OSHA) has issued guidance on this topic.  They also have a general standard that mandates a safe workplace.  Like OSHA, some state laws impose a general requirement that employers furnish a safe workplace.  Arguably, allowing weapons on premises can violate this standard.

Can employers face liability for making the “wrong” choice?  Some of the state laws constraining employers’ freedom to limit weapons on premises immunize employers from liability that might otherwise result from permitting the weapons on premises.  However, employers may face liability for negligent hire or negligent retention if they hired or retained an employee they reasonably should have foreseen would be violent.  States have also taken different approaches as to whether workers’ compensation covers workplace violence.  And in rare circumstances, the employer may be vicariously liable for the employee’s violent actions.

Whether weapons are or are not permitted in your workplace, all employers should take steps to prevent workplace violence.  Banning workplace violence is legal everywhere and should be a policy in every employee handbook.  Banning not just violence but the threat of violence is also key.  Finally, enforcing your workplace violence policy is a critical part of prevention.

In addition, have an open door policy and conflict resolution program to prevent small concerns from growing into major disputes.  Handle complaints of bullying or harassment promptly.  Train employees to alert management to suspicious behaviors or even just an employee appearing overly stressed.  Have a plan for what you will do if threats are made.  Recognize that discipline or termination can prompt violence.  If you are concerned, notify security or police before carrying out discipline or a termination, so that they are prepared if violence erupts.

What about prevention through employee screening?  You should check references of new hires, but remember that many employers will not give a bad reference, due to fears of defamation suits.  Criminal background checks can also mitigate risk, but the Equal Employment Opportunity Commission has issued guidance calling into question employers’ ability to decide that a criminal past means no employment with the company, unless that policy is “job-related and consistent with business necessity.”  It is not clear whether refusing to hire someone with a violent past typically meets that standard.

Brody and Associates regularly advises its clients on matters involving workplace violence strategies, OSHA, and OSHA compliance.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.