Editor's Note: Over the course of the past year or two there has been a sharp increase in the number of questions about firearms in the workplace put by members of this program. The questions have come from all sides of the issues, from how to bar all firearms from the work premises to how to decide where, when, and by whom arms should be permitted for protection. I have had a number of lengthy conversations with a fair number of utility employees, both with safety professionals in one-on-one meetings and with other employees during training sessions. As a result, I thought the time had come to seek some independent professional legal advice on this topic.
What follows below is an overview of the issues surrounding this topic, including a brief review of the applicable statutes, both Federal and State (where they exist) along with some comments on “best practices” in this area. This article was written by Mark Barber, a consulting attorney to the Hurtado & Associates Power Distribution Insurance Specialists program.
GUNS IN THE WORKPLACE
by Mark A. Barber, Esq.
Donelson Bearman Caldwell & Berkowitz, PC,
Atlanta, GA
The influx of state laws regarding guns at work has created a dilemma for employers balancing the legal risks of workplace violence with the legal rights of their employees to carry firearms. This article will discuss briefly the various issues raised and how an employer can "arm itself" with best practices to comply with the law while managing the inevitable risk.
Rise in State Statutes Regarding Guns at Work
Over the last five to ten years, many states have passed expansive laws regarding firearms possession in the workplace. The following twenty-two states have issued statutes or regulations regarding the employer's rights to limit firearm possession in the workplace: Alaska, Arizona, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Maine, Michigan, Minnesota, Mississippi, Missouri, Nebraska, North Dakota, Ohio, Oklahoma, Tennessee, Texas, Utah, and Wisconsin. The remaining states have no statute or regulation regarding guns in the workplace.
In states that do have laws on the books, the statutory limitations vary. Some of these states are "parking lot" states (where an employee may keep a firearm in their locked vehicle despite being on an employer's property). Others may limit an employer's ability to search vehicles on its property, prohibit discrimination against gun owners, or may permit employers to prohibit guns at work as long as requisite notice is posted Still others may go so far as to specify that employers can allow weapons in the workplace without violating OSHA. Under most statutory schemes, employers can be subject to fines for attempting to over-regulate gun possession in the workplace.
Using Georgia as an example, O.C.G.A. § 16-11-135 (effective June 2010) provides that employers can prohibit firearms in restricted access areas that are secured, as well as in employer-owned or leased vehicles. An employer may conduct searches of vehicles coming onto its property as long as the searches are performed in a uniform manner. However, employers may not prohibit an employee who has a legal right to possess a firearm from (1) possessing a firearm while in a motor vehicle or (2) storing that firearm in a locked vehicle while in a parking lot (other than a secured restricted access area).
The Georgia statute also protects any employer or property owner from a criminal or civil action for damages resulting form or arising out of an occurrence involving the transportation, storage, possession or use of a firearm…unless the employer knew that the person using such firearm would commit such criminal act on the employer's premises… O.C.G.A. § 16-11-135(e).
The standard here is "actual knowledge" of the person's intent to commit a criminal act, rather than the more typical "should have known" standard. This provides a welcome defense for all but the most obvious cases (where the police should already have been called). The actual knowledge requirement creates a very high burden of proof for a victim of workplace violence.
Most of the recent state statutes do have limitations, however. For example, Georgia statutes totally prohibit the carrying of firearms in several public places, including government buildings, bars, and places of worship. O.C.G.A. § 16-11-127. This statute has withstood legal challenges from gun ownership groups arguing for their right to carry wherever they may go.
Federal Law and OSHA
This confusing patch-work of state laws on guns in the workplace may lead some employers to wonder: what does the Occupational Safety and Health Act have to say about this issue? Several big employers, including FedEx Corp., Volkswagen AG, Caterpillar Inc. and Bridgestone Corp. have fought this recent expansion of the gun laws, arguing that their right to maintain a safe workplace should trump the employee's right to carry a gun. Interestingly, no specific federal law covers an employer's duty to prevent workplace violence. However, the so-called "General Duty Clause" of the OSHA statute provides that an employer has a duty to provide a "safe working environment." In one case, an employer argued that the General Duty Clause should pre-empt a state statute written to prevent employers from prohibiting employees from keeping firearms in their locked vehicles while on employer property. This attempt failed.
The regulatory agency responsible for implementing the OSHA statute, the Department of Labor, has declined to create a national policy banning guns from the workplace Nonetheless, the DOL does consider workplace violence to be a concern for employers.
An example of the interplay between conflicting state and federal laws was examined in an Oklahoma case from a couple of years ago. In Oklahoma, the old law allowed an employer to prohibit employees from bringing firearms onto company property. In 2004, Oklahoma amended its laws to limit the reach of such company policies. In Ramsey Winch Inc. v. Henry et al, 555 F. 3d 1199 (10th Cir. 2009), a crane manufacturer/employer filed suit and challenged the amendments to state statutes prohibiting property owners from imposing bans on storage of firearms locked in vehicles on owner's property. The trial court found that the laws were pre-empted by the Occupational Health and Safety Act (OSHA) and permanently enjoined the laws. The Circuit Court of Appeals for the Tenth Circuit reversed.
The appellate court found that there is an absence of any specific OSHA standard on workplace violence. The only "regulations" were actually voluntary guidelines and recommendations for employers seeking to reduce the risk of workplace violence in at-risk industries such as Health Care, Social Services, and Late-Night Retail Establishments. The appellate court declined to find that there was any violation of the general duty clause or that firearms stored in locked vehicles were a "recognized hazard." For those reasons, the Oklahoma statutes did not conflict with any OSHA standard and could not be pre-empted by federal law.
This ruling is consistent with most cases across the states which have statutes regarding firearms (some of which even include provisions that specifically state there is no intent to contradict OSHA). So how does an employer provide the safe workplace OSHA demands while still honoring the constitutional (and now statutory) rights of their employees?
There are no easy answers, but the balancing of these concerns depends on the state where the business is being conducted. In states that have no statutes at all, like Alabama, employers still have the rights to police their workplace and to terminate employment based on the potential for "death or serious physical harm" as a result of an irresponsible gun user on their property. In states with parking lot laws on the books, employers must consider the rights of their employees before issuing or enforcing any contradictory policies. Some best practices are listed below.
Best Practices for Employers
Create a workplace violence policy that prohibits threats or violent acts (this need not be specific to firearms).
If there are threats or concerns about known violent tendencies involved in a potential termination of employment, involve security personnel and consider involving local law enforcement.
If you are in a state that allows vehicle searches and you have a secured parking area, apply searches uniformly.
If you own or lease your vehicles, and do not want employees to carry firearms in these vehicles, and it is permissible to do so under your state law, have written policies in place to prohibit firearms in the company vehicles.
In parking lot law states, limit the permissible extent of firearm possession as much as the statute allows and avoid expanding rights to carry firearms into the building.
If permissible under state law, consider an employee concealed firearms registration process to confirm that the employees who are storing firearms in their personal vehicles have valid concealed weapons permits.