Is “Bring Your Gun to Work Day” Coming?

What you should know and what you can do to protect your workplace

By David B. Ritter and Sonya Rosenberg

Despite the struggling economy, stores around the country are reporting an interesting phenomenon: Gun sales keep going up. Some attribute this trend to anticipated tightening gun control under the Obama presidency; others to fears and stresses stemming from the increasingly tough economic times. Whatever the cause, growing gun sales have employers worried. And understandably so. The past year’s developments in the national gun debate have raised serious questions about an employer’s continued ability to protect its workplace and its employees from the dire consequences of gun violence.

A Year In Review: How 2008 Shaped The Gun Debate
In June 2008, the Supreme Court issued a much anticipated, controversial decision in D.C. v. Heller, which put an end for now to the ongoing controversy about whether the Second Amendment guarantees the right to bear arms to private individuals, or if it is meant only to extend to the police, military personnel and other members of state militias. Holding that the Second Amendment’s protections indeed extend to private individuals, the court struck down as unconstitutional a D.C. ordinance that prohibited handgun possession in private homes.

Though Heller did not address whether individuals have a Constitutional right to possess weapons in the workplace, employers would be wrong to write the decision off as inconsequential. In confirming Second Amendment protection to individuals possessing guns in their homes, Heller raises the important question of whether such protection could and should extend to the individuals who wish to bring guns to work. The pro-gun lobby has argued that the answer should be “Yes”; and not without success.

In the few months since the Heller case was decided, two state legislatures, Louisiana and Florida, have joined the ranks of more than twenty other states that have brought or attempted to bring firearms as close as they have ever been to the workplace: the company parking lot. Alaska, Kentucky, Kansas, Minnesota, Mississippi, Georgia, Nebraska, and Oklahoma already have similar laws on their books. And over a dozen other states—Alabama, Arizona, California, Indiana, Montana, New Hampshire, Pennsylvania, South Carolina, Tennessee, Texas, Utah, Virginia, and Wisconsin—are considering or have considered parking lot gun laws.

Louisiana’s statute provides that “a person who lawfully possesses a firearm may transport or store such firearm in a locked, privately owned motor vehicle in any parking lot, parking garage or other designated parking area.” Florida’s statute reaches even further by prohibiting employers from inquiring into whether an employee has left a gun in the car, searching that car, or taking any adverse employment actions against those employees who choose to leave guns in their cars.

Other state parking lot gun laws and bills are similar in content. They generally provide that employers may not prohibit employees who legally carry handguns from keeping their handguns locked in their cars parked on company parking lots.

The Debate Makes Its Way to the Courts
Parking lot gun laws have met significant resistance in the courts, most of it initiated by employers concerned about workplace gun violence. So far, this resistance has met success in only one state: Oklahoma.

In ConocoPhillips Co. v. Henry (N.D. Okla. 2007), a group of employers challenged Oklahoma’s parking lot gun law, arguing that it impermissibly conflicted with the federal Occupational Safety and Health Act (OSHA), which, in its General Duty Clause, requires employers to maintain a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm to [its] employees.” 29 USC Section 654(a). The court agreed and, reasoning that it would be impossible for employers to comply both with OSHA’s safety mandate and their state’s parking lot gun law, held the state law preempted and unenforceable, at least for the time being. ConocoPhillips Co. has been appealed and is presently pending review at the Tenth Circuit Court of Appeals.

Another recent decision, Bruley v. Village Green Mgmt (M.D. Fla. Dec. 9, 2008), has helped shed light on the meaning and the reach of Heller and state parking lot gun laws. Bruley lived in the apartment complex where he also worked as a leasing agent. Bruley had a shotgun in his apartment. Late one night, Bruley heard “a desperate cry” for help and a yell that someone had been shot, coming from a nearby apartment. Alarmed, Bruley loaded his shotgun and took it out of his apartment. With his gun, Bruley walked toward the commotion and found a tenant who had been shot in the leg. Bruley put his gun aside and attempted to help the tenant until the ambulance arrived.

The company terminated Bruley’s employment the next day for possessing a firearm on company property, a violation of its policies. Bruley alleged that his termination, among other things, defied Heller and contravened Florida’s parking lot gun law. The court disagreed. It found Heller inapplicable for its lack of discussion of firearm possession in the workplace. The court also rejected the application of Florida’s new parking lot gun law to the case, reasoning, “Bruley’s reliance on the new statute is misplaced: first, the statute only creates an exception to at-will employment to prevent an employer from firing an employee for possessing a firearm in the employee’s car while on company property. Bruley carried his firearm across company property; it was not stored in his car.” Thus, the court made clear that Florida’s parking lot gun law applies only to the parking lot.

What Employers Can Do to Protect the Workplace
Though ConocoPhillips and Bruley are important cases for employers, they cannot and will not protect employers from the serious, national problem of workplace gun violence. According to the National Institute for Occupational Safety and Health, 16,459 people died from workplace shootings between 1980 and 2006. The Bureau of Labor Statistics (BLS) estimates that workplace homicides are the second leading cause of death among women in the workplace and the fourth leading cause of death among men in the workplace. BLS further notes that firearms are used in nearly 80 percent of workplace homicides.

To the extent possible, employers need to take their own, affirmative steps to protect themselves. Despite what any parking lot gun law may say, there is currently no law that prohibits private employers from banning weapons inside their actual workplaces, adopting policies to this effect, and disciplining individuals who violate such policies. In fact, courts have upheld employers’ actions to this effect. E.g., Hansen v. America Online (Utah Supreme Court 2004) (upholding the employer’s right to terminate employees who violated its “no guns allowed” in the workplace policy).

The following checklist can be used to gauge where you stand and what steps you can take to protect your workplace:

Know your state law(s). If you are in a state that requires employers to grant parking lot access to guns, do not implement policies that prohibit such access. If your state does not have a parking lot gun law, you can, at least for now, maintain a broad policy prohibiting guns, including in your parking lot.

Implement strong “no guns at work” and monitoring policies. Employees should know that you take workplace safety seriously and that being discovered with a gun at work will cost them their jobs. Your policies should make clear that employees have no expectation of privacy in their work areas, and that these are subject to search at any time, without notice. This knowledge will discourage employees from bringing dangerous or inappropriate items to work.

Review and reinforce security measures. For some higher-risk employers in particular, the recent developments should serve as a wake-up call to review and revamp security measures. Depending on the individual needs of your workplace, this may mean, among other things, requiring access codes/security badges for entry, hiring or adding security personnel, and/or installing metal detectors at the entrances.

Are Your EAP initiatives up to par? Consider providing anger management training and emphasizing your other EAP initiatives to help boost morale and remind employees that they can seek support and help, if and when needed.

Pay attention. Finally, effective workplace security requires constant vigilance by all employees. Employees should feel comfortable bringing any suspicious or inappropriate workplace conduct to the immediate attention of a manager. Management, in turn, should be trained to react swiftly and effectively when any worrisome situations arise.

Conclusion
We are living in stressful times. The ongoing economic strife is forcing numerous employers to lay off their staff in large numbers. As we know, people deal (or do not deal) with stress in different ways. Now more than ever, employers cannot ignore the parking lot gun laws that have been sprouting up around the country, bolstered by Heller and recently increasing gun sales. Though an employer’s ability to prevent gun violence is, to a certain extent, somewhat limited, the above steps can make the difference in keeping gun violence and its ramifications away from your workplace.

Sonya Rosenberg is a member of Neal Gerber Eisenberg’s Labor and Employment Practice Group. She counsels and represents employers in various aspects of labor and employment matters, including in administrative proceedings before the Equal Employment Opportunity Commission and equivalent state agencies, arbitration proceedings, and litigation matters under a variety of employment statutes. She has co-authored a number of articles on various employment topics, including discrimination, blogging in the workplace, and non-compete agreements. Before joining the firm, Sonya worked as a paralegal in the labor and employment departments of two large Chicago law firms.

David B. Ritter chairs Neal Gerber Eisenberg’s Labor and Employment Practice Group, where he represents management in all areas of labor and employment law. He has extensive nationwide experience in federal and state court litigation in the areas of employment discrimination, including harassment claims, noncompete, trade secret and restrictive covenants, employment torts and all other litigation related to the employment relationship. David has also defended employers faced with claims under Sarbanes-Oxley.

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