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There is a growing trend of state laws prohibiting employers from banning firearms on employers’ property. These laws are otherwise known as “parking lot laws.” At the state level, more and more states appear prepared to enact laws that would ban an employer’s right to prohibit firearms on their property.
Some of these laws provide employers with immunity from liability if those employees cause harm with those firearms on the property. Other proposed laws provide no such protection from liability. In either case, the extent of an employer’s liability and how to minimize it is not clear.
These laws pit an employer’s right to control its property and workplace against the right, in many states, to own and bear firearms. Proponents of allowing firearms on employer’s property contend they should have the right to protect themselves or at least have the right to carry firearms in their vehicles. Proponents of these laws generally argue that the right to bear arms trumps a property owner’s right to regulate the use of its property. They variously contend that either the Second Amendment gives them the right to possess firearms on their employer’s property or that at the state level, the constitution of the various states provides such a right.
In 2006, Bastible v. Weyerhauser Company addressed the issue of whether the Oklahoma constitution provided a right to bear arms on an employer’s property even where that employer has banned employees from bringing firearms onto company property. The Court affirmed the lower court’s finding that Oklahoma’s Constitution does not provide a right to possess firearms superior to the rights of a private property owner to regulate who and what is brought onto that property.
Bastible may indicate a stopping point in how far employees’ rights to possess firearms may go under similar constitutional provisions found in most states and at the federal level. Unfortunately, in Oklahoma at least, Bastible may be a muted victory for employers because the state enacted a statute prohibiting employers from banning firearms in employees’ vehicles. The law was enacted after the employee-firearm incident in Bastible, however, and so did not apply to this situation.
No federal laws regulate weapons in the workplace; however, several states have enacted these guns-at-work laws, 22 to be exact. Mostly, these laws are designed only to apply to an employer’s parking lot and an employee’s vehicle. Some of these laws, such as those enacted in Texas, Tennessee and Georgia, offer immunity to the employer. Without such immunity provisions, employers affected by these laws will face additional potential liability. Employers could be faced with the possibility of claims based on unsafe work environments or even OSHA safety violations.
Employer Liability
Employers may also face negligent hiring, retention, or supervision claims if an employee were to use his or her firearm in an incident of workplace violence against a fellow employee or even a customer. Even with the purported immunity being considered in some proposed legislation, employers might be subject to a claim based upon negligent hiring. Because the laws are new and untested, the extent of potential liability will be unknown and, at a minimum, there will be litigation costs and costs of settlement to avoid the unknowns of trial.
Employers could be vicariously liable for the wrongful acts of their employees under common law principles. Traditionally, an employer is liable for the wrongful acts of its employees if the act was done in the course and scope of their employment. Thus, if an employee behaved violently with a gun during the course and scope of employment, an employer could find itself liable.
To protect against potential liability, employers can and should take several steps. First, employers must announce clear policies—in compliance with any applicable state laws protecting an employee’s right to possess firearms at the workplace—regarding the possession of firearms on company property.
Second, an employer’s workplace safety and anti-violence policy must be clear and strictly enforced. Such a policy should become as commonplace as sexual harassment policies have become. In addition to setting clear polices, anti-violence training may be implemented. Strong polices that are strictly enforced may head off potential incidents before they rise to a violent level.
To further reduce the risk of liability, employers may wish to strengthen their screening processes during hiring. With negligent hiring claims being a major concern with these laws, the hiring process will be highly scrutinized in any litigation resulting from gun violence at the workplace. Employers may also consider offering their employees access to employee assistance programs to reduce violence. Finally, other considerations include modifying the termination process to ensure multiple managers and supervisors are present and providing security to escort terminated employees off the premises.
The risks of actual workplace gun violence caused by other employees is relatively rare. However, an employer’s liability for that one rare event is potentially very high. Employers can take concrete steps to reduce their liability in the event one of these laws is successfully enacted in their state. Even in the absence of a law, steps taken to prevent or reduce the incidence of workplace violence will have rewards in the form of a safer and more efficient workplace and reduced potential liability.
Mark R. Waterfill is a partner at Benesch Friedlander Coplan & Aronoff, LLP, Indianapolis, specializing in workplace issues.
