Editor’s Note – Mark Lies II is a labor and employment law attorney and partner with the Chicago, IL, law firm of Seyfarth Shaw. Legal topics provide general information, not specific legal advice. Individual circumstances may limit or modify this information.
Since the presence of weapons, specifically guns, at the workplace creates the potential for personal injury or death to employees and third parties (e.g., customers, tenants) at the location (and off-site, if the employee works off-site), the employer must become aware of the potential liability challenges. If the weapons are used, there is potential liability for a wide range of claims, such as:
• Worker’s compensation claims if the injured party is an employee;
• Civil tort, personal injury, or wrongful death liability claim by the injured party who is an employee (or his/her estate) if the injured employee is able to avoid the exclusive remedy provisions of worker’s compensation on the grounds that the injury was due to intentional conduct;
• Employment discrimination claim if the injured employee can establish that the shooting was due to an intentional act based upon the employee’s race, sex, religion, or other protected status;
• Civil tort, personal injury, or wrongful death claim by an injured third party (e.g., customer, tenant) who is shot by the employee.
This article will address potential employer liability issues and suggest means to minimize such concerns.
State Concealed Weapons Laws
Many states allow law-abiding citizens who are mentally competent and 21 years old and older to carry concealed handguns. It is beyond the scope of this article to analyze these laws on a state-by-state basis, but many employees who previously had not thought to bring a gun to work may now feel empowered to do so. It does appear, however, that employers still retain the right to regulate the workplace and, as such, to prohibit employees from bringing guns into the workplace. It is assumed that few employers would agree to allow concealed weapons at the workplace since no employer would sanction the use of the gun at the workplace. In order to exercise this prohibition, employers should develop written policies (or modify existing policies based upon state law restrictions) that address this prohibition.
Parking Lots and Vehicles
Frequently, issues arise as to whether employees can carry guns in the employee’s vehicle if it is parked at the employer’s premises. Again, it will be necessary to review state law to determine whether the employee has a lawful right to carry a concealed weapon in his/her vehicle when it is parked on the employer’s property. The employee may in fact have such a right, in which case the employer may have few options, except to attempt to deny use of the parking lot to such employee.
Unless such a prohibition exists, the employer should provide that guns cannot be brought on to the property, including in the employee’s vehicle, and couple this requirement with a notice that all vehicles are subject to search when parked on the employer’s premises.
Work Off of Employer’s Premises
Frequently, employees may be required to work off-site, including using their own vehicles or employer supplied vehicles for transportation. Since the employer is typically legally liable for an employee’s acts while working outside of the employer’s workplace if the employee is “acting within the scope of employment,” the employer must also address the possibility of employees carrying concealed guns while visiting customers or in transit. Again, the law appears to support the employer’s right to restrict employees from carrying or possessing a gun while they are performing their work duties on behalf of the employer.
Employer Right to Search
A linchpin of any policy must be the right to determine whether weapons have in fact been brought on-site. The only effective means to make this determination is for the employer to establish a policy enabling it to search employee lockers, desks, vehicles, handbags, purses, and other locations where guns may be found. Again, there may be restrictions upon such a policy (or creating the policy itself) that need to be addressed, including:
• Employee handbooks or existing policies that may have given the employees an expectation of privacy;
• A duty to bargain with a union if the policy represents a change in the terms and conditions of employment;
• Constitutional protections for public sector employees requiring an employer to establish “probable cause” (i.e., some objective basis) for a need to conduct the search.
In all cases, the searches should be conducted in a reasonable manner (e.g., without accusatory or other behavior that will humiliate or embarrass the employee; without destruction of employee property, if possible; without disclosure of other employee property that is properly confidential) by individuals who are trained to document and preserve evidence. Searches that are done in an unreasonable manner can create potential liability to the employer for defamation or intentional infliction of distress.
Written Policy
As indicated, there must be a written policy, communicated to all employees, which should include (although state law may require specific provisions):
• The employer’s legitimate business reason for prohibiting guns (i.e., to maintain a safe and healthful workplace and to eliminate the potential for workplace violence);
• Define what is meant by “weapons” or “guns;”
• Identify the employer’s premises and other locations (including parking lots and off-site work locations) where guns are prohibited;
• Require employees to report any evidence which indicates that weapons or guns have been brought on to the premises, while stating that such reports will be kept as confidential as possible and that no employee will suffer retaliation for making such a report;
• Clearly state the employer’s right and intent to conduct random searches of the workplace and vehicles to determine whether guns have been brought to the workplace (within the restrictions of existing handbooks, policies, or labor agreements that cannot be eliminated);
• Conduct employee training on the policy and provide a copy of the policy to each employee;
• Require employees to sign a written acknowledgement of the policy;
• Conduct random or other searches and enforce the policy with consistent discipline, based upon a fact specific inquiry into each offense.
Because of recent tragic workplace shootings, employers are being called to account for weapons brought on-site. At the same time, many state legislatures are confirming the rights of citizens to carry concealed weapons. The employer must commit itself to protecting employees and others at the workplace from this hazard, while recognizing potential employer state law rights.
If the employer carefully documents its efforts, and an unfortunate accident occurs, these actions should reduce or eliminate potential liabilities.
Labor and the Law - December 2004 Render