News stories regarding shootings, particularly mass shootings, have been troublingly frequent of late. Many employers, including forging operations, have been asking questions about the rights and liability of employers and employees in the workplace.
As is the case with most legal issues, there are many things that need to be considered. This month’s column will include six points to take into account for the creation or modification of any gun-possession regulations that your company may be contemplating. FORGE’s June issue will include four additional points for consideration in the final installment on this topic. This column and the one to follow it can serve as a starting point for your workplace’s gun-possession discussions going forward. However, keep in mind that you will need to consult your business attorney for specific state laws and regulations regarding firearm policies within and around your business.
First, federal law does not regulate gun possession for most workplace issues – state law generally provides these regulations. As such, please bear in mind that a column of this length cannot possibly review all of the regulations for each state in which FORGE is read. Furthermore, I think it is safe to assume that several states will be amending their laws regarding firearms. Be aware that your state laws may be changing, perhaps at a more frequent pace as this issue remains politically active.
Second, employers may have liability for crimes committed by employees who have guns at work on theories of negligent hiring, supervision or retention; worker’s compensation; or the Occupational Safety and Health Act of 1970 (OSHA). Generally, employers are not liable for crimes committed by their employees. However, if the employer knew or should have known of an employee’s violent tendencies and that the employee possessed a firearm, it could be liable for injuries caused by the employee on the theory that it negligently hired the employee or negligently continued to employ the employee. OSHA requires employers to provide a safe working environment for all employees, and failing to prevent an employee from injuring other workers with a firearm could be construed as a breach of this duty.
Third, more than 20 states have enacted “parking lot laws,” which provide that an employee may have a lawfully possessed firearm in his/her car in a company parking lot, garage, etc. However, most of these laws allow an employer to prohibit an employee from carrying a firearm on his/her person while working, having a firearm in company offices or having a firearm in a company vehicle. Many of these laws also allow employers to prohibit firearms in parking lots, which are “restricted,” such as a parking lot that is fenced and access is monitored by security measures. However, some of these laws require employers to provide employees with alternative parking or facilities for gun storage.
Fourth, searching for firearms can be problematic. Some state laws prohibit employers from searching employees’ cars for firearms or asking employees if they possess firearms in their cars. In at least one state, this law also applies to customers and “invitees.” However, another state’s parking lot law allows an employer to search an employee’s vehicle for a firearm if “the situation would lead a reasonable person to believe that accessing the vehicle is necessary to prevent an immediate threat to human health, life or safety.”
Fifth, some states prohibit employers from refusing to hire or terminating employees because they own guns or have concealed carry permits.
Sixth, some states require employers to post notices if they prohibit employees from possessing firearms in the workplace. It can be a crime for an employee to possess a firearm on properly posted property. Some laws specify language that must be included for the notice to be effective.
While policies restricting an employee’s ability to possess a firearm at their place of employment or during work time can help protect other employees and the employer from liability, employers should be careful not to run afoul of state laws protecting employees’ rights to possess firearms. Currently, prohibiting employees from carrying a firearm on his or her person while working or from having guns in the employer’s office is permissible in every state. However, prohibiting employees from having firearms in their personal vehicles – even in a company parking lot – and discriminating against gun owners in hiring or the terms and conditions of employment can result in liability in many states.
Forging operations considering such policies should carefully review them and seek advice from competent legal counsel in each and every state where the forge plans to limit employees’ ability to possess guns.