The US Bureau of Labor Statistics reported for 2012 that 688 workers were killed due to homicides and suicides. Shootings were the leading cause of death for both homicides (81%) and suicides (48%). A 2005 study of North Carolina workplaces found that “workplaces where guns were permitted were about five times as likely to experience a homicide as those where all weapons were prohibited.”
Twenty-two states have passed legislation stating that businesses cannot ban guns kept in employee vehicles in the company parking lot. Details vary by state, but employers are prohibited in most cases from:
- Asking if a firearm is present in a vehicle while parked on company property
- Restricting access to company property based on the presence of a weapon inside a vehicle
- Terminating or discriminating against an employee (or job applicant) who legally carries a firearm in their vehicle
“Bring Your Gun to Work Laws” are being seriously considered by the legislatures in a number of additional states.
These new gun laws appear to be in direct conflict with the general duty clause of the Occupational Safety and Health Act of 1970 (OSHA), which requires employers to provide a workplace that is “free from recognized hazards that are causing or likely to cause death or serious physical harm.” However, employers that have argued this point in the courts have so far been unsuccessful with respect to having firearms banned in their parking lots. The fact that OSHA has not established any standards to regulate firearms at private workplaces has been a key point noted by the courts in reaching their decisions to uphold the constitutional rights of individuals to transport or store firearms in their vehicles over private property owner rights to ban them.
This leaves employers potentially vulnerable to the following legal exposures:
- Citations under the OSHA’s general duty clause, even though there is no specific employer duty to prevent workplace violence
- Workers’ compensation claim benefits where employees are deemed injured in the course of their employment under applicable state statutes
- Third-party claims alleging negligent hiring, supervision and/or retention (these types of claims will focus on whether or not the employer should have known that an employee could have caused harm to others and, if so, whether or not the employer responded in a reasonable manner given the situation)
What Can an Organization do?
To prevent workplace violence, employers can:
- Conduct thorough pre-employment screening
- Recognize the warning signs of violence
- Create a policy that clearly states that any type of violent behavior in the workplace will lead to discipline and possible termination
- Ban firearms from business premises and employer-owned or leased vehicles (NOTE: employers still have this right even in states that permit employee firearms in personal vehicles)
- Since employers are now on notice that employee vehicles may contain firearms, take additional steps to maintain security of the parking lot and vehicles
- Establish response procedures so employees know how and who to contact if they feel threatened in the workplace
- Identify potentially critical locations where violent incidents could occur, such as entrances and exits and train employees located there on the proper response to an employee or third party posing a threat
- Establish a working relationship with local law enforcement and seek their input in the development of response procedures and coordination of activities if an event occurs
- Educate, train and retrain annually all employees and supervisors on workplace violence policies and procedures
- Establish employee assistance programs (EAP) to identify and help resolve employee problems before they escalate into violent behavior
- Consult a local attorney with respect to the development of any policies and procedures as gun laws can vary significantly by state
The Federal Bureau of Investigation’s paper Workplace Violence: Issues in Response “highlights findings from the collaboration of experts who looked at the latest thinking in prevention, threat assessment and management, crisis management, critical incident response, research, and legislation. It also offers common-sense recommendations for those in the position to do something about workplace violence,” according to the FBI’s description.
The Department of Homeland Security (DHS) announced the availability of a new independent study course titled: Active Shooter, What You Can Do (IS-907). This is a no-cost training course developed to provide the public with guidance on how to prepare for and respond to active shooter crisis situations. This new online training is available through the Federal Emergency Management Agency (FEMA) Emergency Management Institute (EMI).
Employers should continue to monitor the changing gun laws in the states in which they operate and be prepared to address what appears to be an increased duty of care placed on their organizations with respect to workplace violence.