Guns in the Workplace
September 2, 2019
By: Colin A. Walker
Law Week Colorado
In light of mass shootings such as those In Aurora, Illinois and San Bernadino, California, many employers are considering policies prohibiting their employees from possessing firearms during work time or on the employer’s property. Such policies help to protect other employees and employers from liability. At the same time, gun advocates have significant influence in many state legislatures and have succeeded in passing laws protecting the right to bear firearms. Many states have adopted laws restricting an employer’s ability to prohibit employees from possessing firearms.
Employers could 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 Health and Safety Act (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 person. Worker’s comp laws require an employer to pay for injuries suffered by an employee on the job and could cover injuries inflicted by another employee with a gun. OSHA requires employers to provide a safe working environment for all employees; failing to prevent an employee from injuring other workers with a firearm could be construed as a breach of this duty.
Twenty-four states, at last count, 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. See, e.g., Oklahoma Statute T. 21 § 1289.7a. 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 to which is monitored by security measures.
Some state laws prohibit employers from searching employees’ cars for firearms or asking employees if they possess firearms in their cars. See Florida Statute, § 790.251. The Florida statute, which is broader than most, also applies to customers and “invitees.” However, Georgia’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.” Ga. Code. Ann. § 16-11-135.
Other states require employers to post notices if they are going to prohibit employees from possessing firearms in the workplace. See Tennessee Code § 39-17-1359. Under the Tennessee law, it is crime for an employee to possess a firearm on properly posted property. Some laws specify language which must be included for the notice to be effective.
Some state laws provide immunity for employers for crimes committed by employees who possess firearms in compliance with workplace gun laws. See Oklahoma Statute T. 21 § 1289.7a. The Georgia law provides immunity “unless such employer commits a criminal act involving the use of a firearm or unless the employer knew that the person using such firearm would commit such criminal act on the employer's premises.” Ga. Code Ann. § 16-11-135.
Many workplace gun laws provide exceptions for situation impacting public safety such as possession of a firearm on school property, at correctional facilities, on property owned or leased by an oil or gas refiner or chemical manufacturer, or on other property where state or federal law prohibits firearms. See Texas Labor Code § 52.062.
Some states prohibit employers from discriminating against gun owners by refusing to hire or terminating employees because they own guns, have hunting licenses, or have concealed carry permits. See Indiana Code § 34-28-8-6(c).
Many of these laws provide employees with a civil action for monetary damages, injunctions, costs and attorneys’ fees against employers who violate workplace gun laws. See ND Cent. Code § 62.1-02-13(5). Violation of these statutes has also been held to constitute wrongful discharge in violation of public policy. See Mitchell v. University of Kentucky, 366 S.W.3d 895 (Ky. 2012).
While policies restricting an employee’s ability to possess a firearm at the place of employment or during work time help to protect other employees and the employer from liability, employers should be careful not to run afoul of state laws protecting employee’s right 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. Gun advocates are supporting similar laws in other states, so employers in states which currently do not have such laws should pay attention to proposed legislation. Employers considering such policies should carefully review, and seek advice from competent legal counsel, in any state in which policies limiting employees’ ability to possess guns are to be adopted.
Published in the September 2, 2019 issue of Law Week Colorado.