Labor & Employment Blog


DO EMPLOYEES HAVE A STATUTORY RIGHT TO “PACK HEAT” AT WORK?

Posted September 1, 2011

Author: Brian A. Vandiver

 Several states have adopted “workplace protection” gun statutes that allow concealed handgun licensees to keep a handgun in their personal vehicle on their employer’s parking lot.  The statutory language varies greatly, but the laws essentially “prohibit both public and private employers from restricting their employees’ possession of firearms.”  States that have enacted workplace protection laws include Maine, Florida, Georgia, Kentucky, Mississippi, Utah, Minnesota, Kansas, North Dakota, Oklahoma, Texas, Indiana, Idaho, Arizona, Louisiana.
 
 A similar bill was introduced in Arkansas during the last legislative session. Representative John Catlett (D-Rover) proposed House Bill 1873, which passed the House with 69 votes.  However, the bill died in the Senate Committee at sine die adjournment.  While the bill failed during the past legislative session, it is very likely that a similar bill will reappear in the next legislative session.  Arkansas employers should be aware of the growing possibility that a workplace protection gun law could be enacted in Arkansas and prepare for the implications of such a new law.

 Supporters of these laws argue that employees should be permitted to keep guns in their vehicles at work so that they can protect themselves while traveling to and from work and during their personal breaks away from work, such as lunch.  Opponents argue, however, that allowing employees to keep guns in their cars will increase both the instances of workplace violence and the associated costs.  Opponents also argue that, should an employee lose his or her temper at work, there is no real “cooling off period” when the employee can simply obtain a gun from his or her vehicle.

 Some states provide that an employee can bring a civil action to enforce the workplace protection gun law if the employer refuses to comply with the law.  Some statutes also award damages and attorneys fees for violation of the laws.  Most of the workplace protection statutes, however, provide that employers cannot be held civilly liable for not complying with the statutes. 
 
 As for an employer’s civil liability resulting from the use of a firearm at work, some of the statutes provide immunity to employers, but not all do.  Thus, employers in workplace protection states must consider their potential legal liability for acts of violence arising from employees’ access to guns.  Few courts have so far addressed employer liability and immunity under these statutes, issues that will largely depend upon the specific language of the various statutes and the particular facts of each case.  Potential theories of employer liability might include respondeat superior (liability for the actions of an employee acting within the scope of employment), negligence in breach of a duty to protect employees, and negligence in hiring and retaining dangerous employees. 

Moreover, the Tenth Circuit held that Oklahoma’s workplace protection law does not conflict with any OSHA regulations.  But OSHA has also previously addressed guns at work on several occasions.
 
 There are many exemptions to the various workplace protection gun statutes.  Employers who want to ban handguns on their premises should carefully review all applicable state laws to determine whether or not they are exempt.  Covered employers, however, should consider redefining any workplace firearm ban so that it does not include parking lots and devising firearm policies that comply with applicable state laws.  Workplace protection gun laws are usually limited to locked vehicles on employee parking lots.  Thus, covered employers can often prohibit guns from company buildings and other areas.  Some statutes allow the employer to ban handguns from a secured or gated parking lot.  Under some statutes, employers can also designate certain parking lots for concealed handgun licensees, so long as the parking lot is reasonably close to the main parking lot.  Further, it is unclear to whether or not these statutes would require an employer to allow an employee to store (or travel with) a gun in a company-owned vehicle as opposed to the employee’s personal vehicle.  

 Covered employers should also train supervisors to prevent discrimination against employees who are concealed handgun licensees and teach managers to refrain from inquiring about gun ownership, including during the application process.  Employers should also educate managers and employees on how to recognize warning signs of workplace violence and how to handle violent workplace situations.

 If you have questions about workplace protection gun statutes or workplace violence in general, please contact our firm.

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