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Firearms in the Workplace

David Resser

News stories regarding shootings, particularly mass shootings, have been troublingly frequent of late, and many employers, including foundries have been inquiring about the rights and liability of employers and employees in the workplace. There are many points that need to be considered, and please allow this column to serve as a starting point for your workplace firearm possession discussions. However, foundries need to consult their preferred attorney for specific state laws and regulations regarding firearm policies.

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 MODERN CASTING is read. Furthermore, it is safe to assume that several states will be amending their laws regarding firearms; be aware that state laws may be changing, and perhaps more frequently as this issue remains politically active.

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 (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 or negligently continued to employ the employee. OSHA requires employers to provide a safe working environment, and failing to prevent an employee from injuring other workers with a firearm could be construed as a breach of this duty.

More than 20 states have enacted “parking lot laws,” providing that an employee may have a lawfully-possessed firearm in his/her car in a company parking area. However, most of these laws allow an employer to prohibit an employee from carrying a firearm 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 dedicated gun storage.

Firearm searches can be problematic. Some state laws prohibit employers from searching employees’ cars for firearms or asking 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.”

Some states prohibit employers from refusing to hire or terminating employees because they own guns or have concealed carry permits.

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 which must be included for the notice to be effective.

Many state laws provide employees with a civil action for monetary damages, injunctions, costs and attorneys’ fees against employers who violate workplace gun laws. Violation of these statutes can also constitute wrongful discharge in violation of public policy. As an example, a case in one state holds that termination of an employee for possessing a gun in a glove compartment of a vehicle in the employer’s parking lot did not support a claim for wrongful termination in violation of public policy. A court ruling in another state indicates that the state does not have a “clear public policy” of allowing employees to possess firearms on the premises of their private employers.

Some state laws provide immunity for employers for crimes committed by employees who possess firearms in compliance with workplace gun laws. The law of one state 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.” The law of another state provides that an employer is not required to investigate whether an employee’s possession of a firearm is contrary to state or federal law.

State laws do not trump other laws which prohibit firearm possession, such as laws which prohibit felons from possessing firearms. Additionally, many workplace gun laws provide exceptions for situations impacting public safety such as possession of a firearm on school property, at correctional facilities, etc.

While policies restricting an employee’s ability to possess a firearm at the 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. Foundries considering such policies should carefully review, and seek advice from competent legal counsel, in each and every state where the foundry plans to limit employees’ firearm possession.

Click here to read this story as it appears in the April 2018 issue of Modern Casting