By Bullard Law,
Portland law firm
By Michael G. McClory
Gun violence is too common in the modern American workplace. The recent Umpqua Community College shootings bring the issue to the fore once again. There have been numerous other incidents in recent years and there is no reason to believe that an end to gun violence in the workplace is coming anytime soon.
Almost all of us can agree with this statement: America has too much gun violence in the workplace.
From there, though, things get murky. There is disagreement on the source of the problem.
Too many guns?
Not enough guns?
Ineffective background checks?
Attacks on the Second Amendment right to bear arms?
A lack of response to the impact of workplace gun violence on the Constitutional right to life?
The lack of agreement on the source of the problem makes responding to the problem even more difficult.
The Bullard Edge is not going to attempt to wade through this quagmire to find THE ANSWER to workplace gun violence. Instead, we will focus on the narrower question of what options employers currently have for addressing workplace gun violence. More specifically, we will consider the direct impact of gun violence in the workplace, the scope of the obligation on employers to maintain a safe working environment, and the choices employers have to address workplace gun violence in their employment policies.
Impact In The Workplace
Gun violence is a workplace reality. According to the United States Bureau of Labor Statistics, there were 4679 fatal workplace injuries in 2014. Of that total, 307 deaths were the result of intentional shootings (roughly 6.5%).
Less tangible, though no less real, is the impact that deadly shootings have on survivors, including co-workers at the same employer, as well as workers in other workplaces. Among the issues that survivors face are how to cope with the grief of loss and how to deal with the fear that a similar incident will claim them, a loved one or a colleague.
Safe Work Environment
Ultimately, employers are people (either owners or management or others making decisions about the workplace). These people have a variety of views on guns and gun rights. Whether in favor of or opposed to various types of gun restrictions, these views are real and have the potential to impact decision-making.
Regardless of their personal views on guns, as workplace decision-makers these people must be aware of their responsibility for maintaining a “safe working environment” for employees. The precise scope of this responsibility is open to legitimate debate. Some folks cite to case law developed in the context of negligence and intentional tort claims. Other folks will look to the mandate in section 5 of the federal Occupational Safety & Health Act that employers provide “employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees” (this is the so-called General Duty clause).
Significantly, for purposes here, it is unclear how far an employer is required to go in its efforts to provide a workplace that is free from workplace gun violence. The required efforts likely are more than “none”; at the same time it seems like an impossibly high standard to require employers to guarantee no workplace gun violence.
Policy Choices For Employers
Guns are a reality in American society and it is a reality that employers cannot effectively ignore. When it comes to guns in the workplace, there are at least three relevant questions.
What is the employer permitted to do under the law and contract?
When thinking about what policies make sense for their workplaces, employers need to be aware that a number of states have enacted laws that regulate the types of workplace gun policies that an employer may adopt. For example, a number of states have “parking lot” laws; these are statutes that expressly permit people to keep guns in their cars (assuming compliance with any laws regarding the purchase and registration of such guns). In addition, the concealed weapons laws in some states prohibit employers from adopting policies inconsistent with lawful concealed carry. Neither Oregon nor Washington has laws that regulate the types of workplace gun policies that an employer may adopt.
The point is not that some states have bad laws or good laws. Rather, the point is simply that there are different laws in different jurisdictions and employers should become familiar with the laws in their jurisdiction before adopting any policy related to guns in the workplace.
Additionally, there also may be situations in which a contract impacts the types of workplace gun policies that an employer may enact. One example would be a situation in which the employer is a tenant rather than a location owner; in such a case (a) the lease agreement may prohibit guns on the leased premises or (b) the landlord may state that he or she is going to carry a gun when in the tenant’s premises regardless of any rules that the tenant may have adopted.
Within the scope of permission, what does the employer want to do?
For some employers, the answer will be clear: adopt policies that, to the fullest extent permitted by the law, ban guns in the workplace. Depending on the applicable state laws (and there are none in Oregon or Washington) that may mean adopting a policy that bans all guns from all areas of the workplace (including no concealed carry and no guns in cars in the parking lot).
For other employers, even those with permission to fully ban guns from the workplace, a different answer will be clear: either to (a) adopt a nuanced rule that makes some allowances and that sets some prohibitions related to guns, or (b) to set no prohibition on guns in the workplace. (An employer making either decision may still provide training related to gun violence in the workplace.)
When an employer decides to adopt a nuanced policy (somewhere between having no policy and prohibiting guns everywhere in the workplace), there are a number of factors that an employer ought to consider. In other words, when deciding how to exercise its policy discretion, an employer should fully consider its objectives and the implications that any particular decision might have.
For example, when thinking about a voluntary parking lot policy, a number of factors would appear to be relevant and worthy of consideration.These factors may include:
– The location of the parking lot in relation to the workplace (e.g., would it be unduly easy for someone in the workplace to return to his/her car, retrieve a gun, and bring it into the workplace),
– The feasibility and advisability of monitoring in the parking lot (such as through security personnel or by camera),
– The advisability of requiring an employee to notify the employer that s/he has a gun in a car in the parking lot (e.g., in case a car is stolen it would be possible to also report the theft of a gun), and/or
– Considerations related to employee safety in their commutes or to employee off-duty recreational activities (e.g., hunting).
For another example, an employer that has non-employee traffic in the workplace (such as clients or members of the public) will need to consider (a) what, if any rule, it wants to adopt for non-employees (the same as for employees or different), (b) how it intends to inform non-employees of any rule adopted, and (c) how if at all the employer intends to enforce this rule.
– Where it has security personnel, the employer must decide whether it will be armed security or unarmed security.
– What training is needed regarding any policy adopted and, more generally, regarding workplace gun violence?
Employers need to invest in training. Whether an employer has a flat ban on guns in the workplace, or whether it has a nuanced policy that allows guns in specific situations, training is invaluable.
In addition to communicating its policy to employees (whatever the policy may be), an employer should consider training on that policy. An employer may also want to provide training on related topics, such as how to recognize potential gun issues and how to respond to a gun situation in the workplace (e.g., where and when to report situations and where to escape if necessary in an emergent situation).
The Bullard Edge encourages employers to carefully consider their policies. It could be a critical part of workplace safety.
The Bullard Edge
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