Every day, millions of Americans are disarmed as they go to work. Some work locations, such as military bases and schools, are governed by public safety laws and policies, which allow only members of elite statuses, such as security guards, on-duty law enforcement, or politicians, to carry a firearm. Other locations are governed by the policies of private business owners who are afraid of the liability of allowing their employees to carry guns to work or who are simply ignorant of the benefits of allowing employees to carry guns to work and implement their own, fear-based, ignorant “gun free” work place policies.
My law firm not only supports employees carrying guns to work, we reward employees by paying the cost for them to take defensive firearms training. I implemented this policy because I have been the victim of gun free zone laws. Most courthouses do not allow firearms except in the hands of on-duty law enforcement officers. Most prosecutors have offices in the county courthouse. While I served as a prosecutor, I made enemies of the sociopaths I took off the street. Most sociopaths make their way back to the street, usually sooner than they should. During this time, I was supposed to depend on others to protect me, even when leaving work alone at night and walking to my car. I vowed to never put my own employees in the same position.
Federal law does not regulate guns at private workplaces. Even though nearly two million Americans report being the victims of workplace violence each year[i], our Supreme Court has not yet provided us with specific guidance on whether disarming Americans while they work, and on their way to work, is unconstitutional. The Occupational Safety and Health Administration (OSHA) has published works available to employers in a supposed effort to guide them on a path to prevent workplace violence[ii]. These publications are full of “tips” for employers to address violence against social workers, late-night retailers, taxi-drivers, and other high-risk groups of employees. If these publications were not so sad, they would be comical in their complete absence of any suggestion that employees carry a firearm for self-protection. Fortunately, there is a movement by state governments to protect American’s Second Amendment rights while they work.
The movement to protect employees began in Oklahoma, and laws now exist in at least 15 states across the country, protecting employees in various ways. These state laws sprung up initially to prevent the egregious policies of some business owners, which prevented employees from storing firearms locked in a vehicle parked in a company parking lot. These “parking lot” policies not only disarm workers while at work, they disarm them on their travel to and from work. Unfortunately, such policies are still lawful in most states across the country, but again, the wheels are in motion to eliminate them.
The state laws that have been enacted differ in what and how they protect employees, but the following are some of the issues the laws address:
- Protect employees’ rights to store firearms in their private vehicles even when parked in the employer’s parking lot.
- Limit an employer’s ability to search vehicles on its property.
- Prohibit discrimination against gun owners.
- Permit employers to prohibit weapons at work if they post a required notice.
- Subject an employer to fines for failure to comply with the law’s restrictions or requirements.
- Provide protection to employers that comply, including immunity from injuries arising out of compliance.
- Specify that employers can allow weapons at the workplace without violating the OSH Act general duty to provide a safe work environment clause.
What are employers afraid of? Being sued is a big concern. If guns are not banned, and the employer hired the wrong person, a victim of gun violence might sue the employer for not preventing the violence. This type of a claim would be extremely hard for a victim to prove against an employer, and on top of it, simply having a policy that bans guns at the workplace without a mechanism for enforcing the policy does little to protect an employer. A violent employee will carry out his or her intentions with or without a firearm. Hiring procedures that include a psychological exam and a thorough background check on prospective employees are much better preventative measures. Yet, most employers (even those who do not allow firearms) fail to implement these two simple mechanisms to prevent workplace violence. If employers are allowed to disarm their employees, then at a minimum, the law should require the employer to hire armed security personnel to protect the disarmed workers.
Advice for Employers
Our firm regularly prepares employee handbooks that include policies against violence which are protective of employers but which also allow employees to carry their firearms to work. If you are an employer and would like to implement such a policy, here are a few tips:
- Screen your employees before you hire them, and always, always, conduct a thorough background check. A safe workplace begins with the hiring process.
- Set requirements for training – employees should not be able to carry if they do not train. At a minimum, require that your employees have a state concealed carry permit, which means they have passed a background check conducted by law enforcement.
- Set requirements for storage and control of the firearm. Leaving a firearm unattended inside the workplace where it is accessible to others is grounds for termination without discussion.
- Ensure that employees have read your firearms policy and have had an opportunity to ask questions.
- If not prohibited by your state’s law, implement a reporting system for employees who carry. Employees should at least annually update you on the firearms they will carry to work and provide you with proof of their training. They should also at least annually sign a declaration stating they are not a prohibited person under state or federal law.
- Have a self-reporting policy that requires employees to report immediately to their supervisor if they become a person who is prohibited from possessing a firearm.
- Make sure you have a procedure for other employees to report threats of violence.
[i] According to the United States Department of Labor at https://www.osha.gov/SLTC/workplaceviolence/ 2015.
[ii] Available online at https://www.osha.gov/SLTC/workplaceviolence/
