You may have read that title and wondered “How can that even be a question?” (By the way, I know I promised last week I would talk about possible ways to minimize threats of workplace violence, but then I realized that this topic is kind of important, so work with me and I’ll get you that post next week. Really.)
Wait, where was I? Oh right. Weapons in the workplace. Surely an employer can decide it doesn’t want weapons on its premises? Wouldn’t the employer, who is obligated to provide a safe workplace, actually be obligated to ban weapons? So what’s the question? It has to do with rights to self-defense and state weapons laws. Well, there’s a twist. Let’s have a better look after the jump..
Now, I am not here to argue politics or Second Amendment rights, or to make any arguments as to whether policies banning weapons will help or exacerbate the problem of workplace violence. If I haven’t scared you with enough statistics or other stories over the last few weeks, consider this: The U.S. Department of Labor has reported that homicide is the second largest cause of death in the workplace. A U.S. Department of Justice National Crime Victimization Survey found that nearly 2 million employees are threatened or assaulted at work each year. Perhaps due in part to these kinds of numbers, a Society of Human Resource Management (SHRM) survey of its members finds that an overwhelming majority of its members favor the rights of employers to set weapons policies. SHRM also points to the OSHA general duties clause that requires employers to provide their employees a safe work environment.
Now, if you are a regular follower here, you know that I conclude almost every post by admonishing you to check the laws of the state in which you employ people. This topic will be no exception. There are some states that allow one to carry a weapon or to use force in certain situations. General legal principles in most situations–and states– will allow a person in their own home to use reasonable force, including deadly force without any obligation to retreat prior to doing so. In some states, the law is that a person has no duty to retreat if the self-defense is occurring in a place where the person has a right to be, which by inference, will include the workplace. (For review of this concept, read my post regarding the firing of Wal-Mart workers who apprehended suspects, which you can find here.) Some state laws specifically provide that a person in the workplace may use reasonable force, including deadly force, in defense of self and others with no duty to retreat. Kansas, Minnesota, Kentucky and Oklahoma and Alaska, Arizona, Florida, Maine, Mississippi, Michigan, North Dakota, and Indiana are among the states that have passed laws restricting an employer’s ability to set workplace weapons policies. In many if not all of those states employers cannot ban guns in employee parking areas — if the employee has a permit to carry a concealed weapon. Other states are considering or have in the past considered proposals that would prohibit employers from banning weapons in the workplace. Some of those proposals specifically ban policies that restrict storage of weapons in employees’ vehicles on company property.
A group of employers in Oklahoma in Ramsey Winch Inc. v. Henry, 55,5 F.3d 1199 (10th Cir. 2009) challenged state laws making it illegal for employers to prohibit employees keeping weapons locked in their vehicles on company property. The employers argued that the state laws conflicted with OSHA, a federal law. The US District Court for the Northern District of Oklahoma agreed with the employers. On appeal the US Circuit Court of Appeals for the 10th Circuit reversed, reasoning that OSHA does not require employers to ensure the workplace is free of violence and therefore the laws do not conflict. To date, the issue has not come before the US Supreme Court.
What’s an employer to do? How can an employer be held liable for workplace safety issues if it can’t restrict or prohibit weapons on its premises? A number of employers have successfully argued that placing such limitations on employers not only undermines violence prevention programs, but also infringes on employers’ property rights. At least 12 states in the last several years have rejected proposed legislation that would have prohibited gun bans. Since it is not possible to discuss every state law, you will want to see what your state has to say about an individual’s right to carry a weapon and whether you as an employer can restrict weapons on your premises. If you employ people in one or more of the above-mentioned states, then, of course you want to see what these laws say you can’t do, and, more importantly what they allow — or at least what they don’t say you can’t do– and craft your policies accordingly. As always, there will be some variation from state to state.
If you are one of the lucky employers with operations in states that either have no such laws or have laws that specifically allow you to set policies then you should definitely consider implementing policies limiting weapons on your premises. In setting such policies you must either look at your state’s laws or otherwise determine the answer to this question: “What’s a weapon?” Really? Many laws only focus on firearms. Many employers make that same mistake. Now, I’m not arguing that firearms aren’t weapons, but 9/11 and other terrorist attacks have shown us that many other objects can be used as weapons. So, perhaps one of the first things you want to do in crafting your policies is determine what will count as a weapon. Whatever you do decide, make sure your policies are in writing and that you communicate them clearly and effectively to your employees–and the public, if appropriate. Posting signs at all entrance points might be one option. Prior even to doing that, allow me to repeat another one of my favorite admonitions: Consult with local employment counsel to make sure that your contemplated policy does not conflict with state laws. Whatever you do –be careful out there!
Disclaimer: This post and all its contents are for educational/informational purposes only, are not intended as legal advice, do not create an attorney-client relationship, and are not intended to replace consultation with competent employment counsel in the state(s) in which you employ people
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