Employment Law Report
Can Your Employees Bring Firearms to Work?
Guns-at-work laws generally limit a private employer’s ability to prohibit its employees from bringing concealed firearms to the workplace. These laws are state-specific, as there is currently no federal law that regulates weapons at private workplaces.
States that have statutory guns-at-work laws covering private employers include: Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Idaho, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maine, Minnesota, Mississippi, Nebraska, North Dakota, Ohio, Oklahoma, Tennessee, Texas, Utah, and Wisconsin.
States that do not have statutory guns-at-work laws covering private employers include: California, Colorado, Connecticut, Delaware, Hawaii, Iowa, Maryland, Massachusetts, Michigan, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Vermont, Virginia, Washington, West Virginia, and Wyoming.
What do guns-at-work laws do? Guns-at-work laws serve any of the following purposes, many of which are further detailed below: protect employees’ rights to store firearms in their private vehicles even when parked in their 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 laws’ restrictions or requirements; provide protection to employers that comply, including immunity from injuries arising out of compliance; or specify that employers can allow weapons at the workplace without violating the Occupational Safety and Health Act (OSH Act).
What is a parking lot provision? Most guns-at-work laws include a parking lot provision, which restricts an employer’s ability to prohibit its employees from storing firearms in their private vehicles when parked in the employer’s parking lot. These laws, however, often have one or more exception, such as: employees prohibited by law from possessing a firearm; vehicles owned or leased by the employer; restricted or secured parking areas; employer-provided alternative parking at no additional cost to those employees who transport or store their firearms; and employer-provided temporary secured storage for employees to store their firearms prior to entering the parking area. In some states with parking lot provisions, such as Kentucky, an employer may have the right to reasonably regulate an employee’s possession of guns at work, such as by requiring employees to disclose to the employer that a gun is stored in a privately-owned, locked vehicle. See, e.g., Mullins v. Marathon Petroleum Co. LP, 2014 WL 467240 (E.D. Ky. Feb. 5, 2014). However, some states prohibit employers from searching for or inquiring about the presence of firearms within private vehicles on the employer’s property.
Should you be concerned with guns-at-work laws? While several states provide immunity to employers that comply with guns-at-work laws, such as Tennessee (T.C.A. § 39-17-1313(b)), not all do. Without immunity, an employer that complies with these laws and allows an employee to bring a concealed firearm on its premises increases the employer’s legal risk. On the other hand, employers that do not comply with guns-at-work laws potentially face civil and/or criminal penalties in some states.
Are you required to provide notice? Several states require employers to post notices if they ban weapons at the workplace. Those states with posting requirements often specify exactly what must be posted for an employer to comply with the law, such as Tennessee, which requires posting a sign in English that includes the phrase “No Firearms Allowed,” at least one inch high and eight inches wide, and the phrase “As authorized by T.C.A. § 39-17-1359” and displaying the international symbol with a circle and a slash at a 45 degree angle through an image of a firearm. The symbol must be at least four inches high and four inches wide. T.C.A. § 39-17-1359(b). The sign must also be posted in prominent locations, including all building entrances, and plainly visible to the average person entering the building. Id. In Kentucky, if the building or premises are open to the public and the employer prohibits carrying a concealed weapon, then signs must be posted “on or about the premises” advising of the prohibition. KRS 237.110(17)
Can you discriminate based on owning or using firearms? Notably, in states with gun-related anti-discrimination laws, employers can be liable for discrimination by not hiring a potential employee or terminating a current employee after disclosing that he or she owns or uses firearms. In Kentucky, for example, an employer is liable for civil damages if it fires, disciplines, demotes or punishes an employee who is exercising his or her right to possess a firearm. KRS § 237.106(4). Further, an employee can seek an injunction against an employer that violates the provisions of KRS § 237.106. Similarly, Tennessee prohibits employers from discharging or taking any adverse employment action against employees solely for complying with the parking lot provision. T.C.A. § 39-17-1313.
What are possible legal ramifications? Under the federally mandated OSH Act, an employer has a duty to provide a safe working environment. Yet, according to the U.S. Occupational Safety and Health Administration (OSHA), two million employees are victims of workplace violence each year. Given this number, it is important for employers to be aware that gun-related incidents can lead to claims that violate not only the OSH Act, but also may create workers’ compensation and tort law legal issues, such as negligent hiring, supervision, or retention; battery; emotional distress; etc. An employer can also be vicariously liable for an employee’s wrongful acts if the employee is acting within the course and scope of his or her employment. While it might be hard to imagine how an employee acting violently is doing so within his or her scope of employment, this possibility cannot be overlooked.
What can I do to minimize my potential liability? Employers in states with guns-at-work laws can implement and maintain a workplace violence policy informing employees that threats or acts of violence at the workplace are prohibited. The policy should: (1) be easy to both read and understand; (2) include acts of violence (regardless of whether physical injury results), harassment, bullying and intimidation that will not be tolerated; (3) prohibit employees from bringing weapons into the workplace as permissible by state law; (4) establish procedures for reporting threats or acts of violence at the workplace; (5) establish disciplinary procedures for employees who violate the company’s workplace violence policy; (6) explain possible resources available to employees, such as counseling or an employee assistance program, if applicable; and (7) prohibit discrimination and retaliation against workplace violence victims.
Does your company have policies regarding guns in the workplace or workplace violence? If so, it might be worthwhile to have the policies reviewed by an attorney at Wyatt, Tarrant & Combs, LLP. We have experience in providing such services to ensure your company has policies that are compliant with existing federal and state laws and government regulations.