Mar 22, 2018 | Tim Lemke, HRCI Staff Writer
How Should Employers Treat Guns at the Workplace?
Editor's Note: This article has been updated to include comment from Hector Alvarez, a consultant on workplace threat management. There’s no question that employers want to keep their workers safe, but what does that mean when it comes to allowing guns at the office?
On one hand, an employee may wish to bring a firearm to work as protection against potential threats. But many companies view the presence of guns as a direct conflict to safe working environments. Employees who bring guns to work can also pose potential legal liabilities.
The issue is complex, especially when you consider the Second Amendment and varying state and local gun laws.
“[M]any employers are considering policies prohibiting their employees from possessing firearms during work time or on the employer’s property,” writes attorney Colin A. Walker of the Fairfield and Woods law firm. “Such policies help to protect other employees and employers from liability. At the same time, gun rights advocates, such as the National Rifle Association, carry weight in state legislatures and have been able to pass laws protecting the right to bear firearms.”
Guns and Employer Liability
Any sensible company should have policies in place to prevent workplace violence, and it would seem illogical to craft such a policy without addressing weapons in the workplace. For companies, the question of whether to allow guns at the office is less a question of individual liberty but one of potential liability. While companies generally are not responsible for crimes committed by its workers, they could be considered negligent if something goes wrong. Some states do offer immunity for employers that comply with guns-at-work laws.
There are three legal theories that could hold employers liable for gun-related incidents at work. These include the Occupational Safety and Health Act (OSHA), workers compensation laws, and tort law (such as a claim for negligent hiring).
“OSHA requires employers to provide a safe working environment for all employees; failing to prevent an employee from injuring other workers with a firearm could be construed as a breach of this duty,” Walker writes.
Legal experts say striking the right balance is tough.
“On one hand, without immunity, complying with a law that allows employees to bring concealed firearms to the employer’s property can increase legal risk,” write Jonathan Hancock and Joan Coston Holloway of the Baker, Donelson, Bearman, Caldwell & Berkowitz law firm. “In contrast, noncompliance with a guns-at-work law can lead to civil and some criminal penalties in some states.”
It's also important to understand that not all workplaces are the same. A firearms policy at one location may not necessarily make sense at another.
"Does allowing employees to carry firearms at work enhance the working environment? I know several scenarios when the answer is an emphatic yes," says Hector Alvarez, president of Alvarez Associates, LLC, a consultancy specializing in workplace threat management. "I recently consulted with a Fortune 100 company whose employees work in remote wilderness locations, often alone. In this case, a reasonable argument could be made that employees, and the organization, would benefit from having a firearm to protect themselves. However, that same argument may be much more difficult to make at your average widget office."
In the Parking Lot
Many employers and states have allowed for compromise by letting workers store firearms in their cars while at work. Currently, 22 states have such laws in place that allow this, though specific provisions in these laws vary. On one hand, these laws can provide flexibility to companies as they craft gun policies, but also raise new questions: Can guns be stored in company vehicles? Should I build alternative parking facilities for gun owners?
There’s also a broader question facing employers, which is whether the mere presence of guns makes a workplace unsafe. This was raised by workers in Tennessee after the state allowed for guns at the workplace. The state clarified the rule to say that an employer’s decision to allow people with permits to carry a weapon does not create a workplace safety hazard. This is also the case in Texas.
Advocates for stricter gun control laws have argued that some state laws, such as those that allow guns in company parking lots, only put employees at greater risk. But gun rights advocates have argued that an employee with a long commute or a desire to run errands to and from work should not have to forfeit his or her right to self-defense.
Employers often face pressure from both sides. Just last year, the Brady Center for Prevent Gun Violence urged e-commerce behemoth Amazon to consider the strength of local gun laws when evaluating potential locations for its second headquarters.
Intentionally or not, a company’s stance on workplace gun laws can be viewed as a reflection of its social values, which can impact employee recruitment and office morale.
Employers may find themselves tempted to ask workers or prospective employers if they own guns or carry permits for concealed firearms. But such questions could run afoul of the law.
In some states, employers could be liable for discrimination if they fail to hire an individual after they disclose that they own a gun. This also goes for anyone fired after revealing their gun ownership status. In Indiana, it’s actually illegal for a company to ask employees if they are gun owners, unless the gun is used on the job.
Crafting a Policy
Developing a policy regarding firearms can be tricky for employers, but they can minimize potential liability by crafting strong guidelines to address potential workplace violence.
Legal experts say company policies should be clear in condemning any acts of violence, but also cover harassment, bullying and intimidation. These policies should outline clear disciplinary action for violators and explain the resources available to workers who feel threatened, including counseling and employee assistance programs.
If companies seek to prohibit guns at the workplace, they must ensure such rules comply with state laws, and it is always a good idea to seek outside counsel when crafting policies.
"I would strongly encourage any employer who is considering allowing their employees carry firearms that they reach out to their local police department, a law firm that deals with firearms related issues, their insurance carrier," Alvarez says. "While this may not seem like a traditional role for human resources, I believe that they should be actively involved. The issue of firearms is polarizing. The implications of allowing firearms at the office go far beyond the legal liability. HR needs to have their hands in this decision from the very beginning."