In state legislatures nationwide, partisans battle over whether to let employers prohibit firearms in vehicles on company premises.
Last April, the National Rifle Association (NRA) was anticipating more victories in its campaign to make it illegal for employers to deny workers the right to keep guns in their cars on company property.
Legislators in Alaska, Kentucky, Minnesota, Mississippi and Oklahoma already had passed NRA-endorsed laws. Those in Florida, Georgia and Texas were considering similar legislation.
But the momentum stalled April 16, when a disturbed Virginia Tech student fatally shot 32 people and wounded 15 others before killing himself. The tragedy was followed April 20 by a killing and suicide at NASA headquarters in Houston. State legislators, with the exception of those in Kansas, lost interest in expanding gun owners’ rights.
“A big part of our success in preventing the bill was the Virginia Tech disaster,” observes George Allen, SPHR, HR consultant at Carr, Riggs and Ingram LLC, an accounting firm in Tallahassee, Fla., and state legislative director for the Society for Human Resource Management’s (SHRM) HR Florida State Council. “Legislators knew the law was a hot potato and to push it forward would be folly.”
NRA officials say they will renew the push in 2008 state legislative sessions. But there are indications that employer opposition is stiffening. Previously, the NRA’s political clout and threat of economic boycotts discouraged employers from taking it head-on; most opted for supporting roles, looking to chambers of commerce, retail associations and SHRM to do the heavy lifting.
Influential employers such as Disney, Wal-Mart and ConocoPhillips have been weighing in, and it seems the NRA will get a dose of its own medicine. “It’s not fair the way [employers are] throwing their weight around,” complains Marion Hammer, executive director of Unified Sportsmen of Florida in Tallahassee, former president of the NRA and currently the NRA’s representative in Florida. “These big companies think they own the political process. They want to trample the rights of employees.”
Still, the NRA will not back down. “It ain’t over till it’s over,” Hammer says. “And it ain’t over till we win.”
The NRA’s legislative victory in Kansas exemplifies its perseverance. “They slipped it in under the radar by just attaching a few words to another bill at the last minute,” says Robert Carragher, SHRM manager of government relations.
At issue: common company policies that prohibit weapons on company premises, including parking areas. The SHRM 2006 Weapons in the Workplace Survey Report of 494 randomly chosen members revealed that 64 percent of their organizations had written weapons policies and 13 percent had informal policies.
The parking lot laws generally require employers to permit guns locked in employees’ cars. Beyond that, provisions vary by state. For example, laws in Oklahoma and Minnesota impose criminal liability on employers for violations; Kentucky imposes civil liability. Some laws, such as Oklahoma’s, grant employers immunity from liability for any violence by the owner of a weapon that came from a parked vehicle.
Being one of the nation’s 13 million hunters (according to the U.S. Fish and Wildlife Service) seems a valid reason to have a weapon in one’s vehicle, especially in areas where hunting continues to be popular and the sport pursued before or after work. Yet many employers claim that state laws guaranteeing that right intrude on their private property rights and hinder them from making their workplaces safer.
And HR professionals remain mindful that when workplace violence occurs, they often stand nearby. They remember Dec. 26, 2000, when an employee at Edgewater Technology in Wakefield, Mass., pulled a rifle and shotgun from a sack and killed seven co-workers, including HR executive Cheryl Troy and HR specialist Craig Wood. They’re haunted by July 8, 2003, when an employee at a Lockheed Martin plant in Meridian, Miss., stormed out of a training session, retrieved a shotgun and semiautomatic rifle from his truck, and shot 14 workers, killing six.
HR managers can tell themselves “it won’t happen here,” but they remain uneasy, like Roger Buterbaugh, PHR, former director of HR for Human Performance and Rehabilitation Centers in Alabama, Georgia and South Carolina. Buterbaugh recalls looking down on the parking lot from his office window and thinking the unthinkable: “We had to do a big layoff, and I had to be present at each termination. Word got around that when you saw Roger coming, someone is going to be fired. Some people took it well, and others didn’t. I was concerned that if I made someone mad, they could go into the parking lot, get a gun and take a potshot at me through the window.”
Until 2002, guns in parking lots was a non-issue across the United States. But then an incident at the Weyerhaeuser plant in rural Valliant, Okla., thrust guns in cars to center stage.
It began with a company crackdown against employee drug abuse. Dogs trained to sniff for drugs and guns were drawn to certain cars in the parking lot. With the cooperation of the sheriff, Weyerhaeuser officials asked owners to consent to searches of the vehicles. When rifles, shotguns, handguns and other weapons were found, the employees and contract workers were terminated based on the company’s zero-tolerance policy. Those who refused to permit searches were fired for failure to comply with company policy.
Some of the 12 ousted workers sued, charging wrongful termination. They argued that the employer could not fire them for exercising their state and federal constitutional rights. The U.S. District Court for Eastern Oklahoma dismissed the case, a ruling later upheld by the U.S. 10th Circuit Court of Appeals (Bastible v. Weyerhaeuser Co., 437 F.3d 999, 10th Cir. 2006).
The Weyerhaeuser situation outraged members of the gun-rights community. Could law-abiding citizens, legally entitled to own weapons, be fired for something that was legal almost everywhere else in the state?
Enter the NRA and its nationwide legislative campaign. In Oklahoma, it culminated with the March 2004 passage of a law guaranteeing employees the right to lock guns in their cars in employers’ parking lots and imposing criminal sanctions on employers who violated the law.
Before the law could go into effect, employers, with ConocoPhillips the lead plaintiff, challenged it, securing a restraining order in late 2004 that prohibited the state from enforcing the law until the lawsuit is decided (Williams Companies Inc. v. Henry, N.D. Okla. 2004, LEXIS 27608).
“If we prevail in the trial court, the state will appeal; if we lose, then we’ll appeal,” says W. Kirk Turner, a partner in Newton, O’Connor, Turner & Ketchum PC in Tulsa, Okla., who represents six plaintiffs, all manufacturing companies. “It’s too important to let go until you’ve exhausted all available remedies.”
Supporters of the parking lot laws insist that anyone, provided they meet legal requirements, is entitled to own weapons for protection and hunting, that cars are private property, and that employers have no right to restrict workers from keeping weapons locked inside.
The Brady Center to Prevent Gun Violence, in Washington, D.C., estimates there are about 192 million privately owned weapons in the United States, of which 65 million are handguns. (There are no reliable statistics on the number of people who own weapons.)
Forty states have “shall-issue right to carry” statutes saying any citizen who qualifies must be issued a concealed-carry permit, says Dave Workman, senior editor of Gun Week Magazine in Bellevue, Wash. “Those are the people to whom the laws are directed. It’s not that they want to carry guns at their desks; they want to have a firearm locked in their vehicles so they can travel home safely, so they can leave work and be safe.”
Ashley Varner, a spokesperson for the NRA in Fairfax, Va., adds: “We are not being unreasonable; we’re not pushing for employees to bring their weapons into the office. We want employees to have their rights before and after work. It’s not on our agenda now as to bringing them into the workplace. One step at a time.”
The broad coalition on the employers’ side—including the American Bar Association (ABA), the American Society of Safety Engineers, the Brady Center, state and local chambers of commerce, retail federations, SHRM, and individual employers of all sizes—opposes the legislation. It argues that workplaces are employers’ domains, and that government should not be able to tell them they can’t ban guns anywhere they choose. Forcing them to do so violates their constitutional rights by “taking” their property without fair compensation, according to the coalition. Moreover, it says there’s already too much regulation of the workplace; requiring employers to permit guns in parking areas constitutes one more intrusion.
The coalition parts ways, however, over whether it’s advisable to permit guns in vehicles. Some employers—and special interest advocates such as Brian Siebel, senior attorney of the Brady Center—say it’s indisputable that the work environment becomes more dangerous with guns readily available. As a result, they support employers’ rights to choose whether to allow guns, expecting they will choose to prohibit them.
Anti-gun advocates cite research by Dana Loomis, Ph.D., professor and interim director of the School of Public Health at the University of Nevada-Reno, as definitive evidence that guns at work become deadly hazards. In the May 2005 American Journal of Public Health, Loomis concluded that workplaces that allowed guns were five times more likely to have a fatality than those that didn’t allow weapons.
Loomis surveyed 105 workplaces in North Carolina where a worker was a victim of homicide between 1994 and 1998. Among the employers who participated in the study, 86 percent had policies that dealt with weapons at work; 16 percent of those expressly permitted weapons in some manner.
“We know there was more violence, but we don’t know if the violence was caused by the worker’s gun or if someone else did it; we don’t know if the worker showed a weapon to stop a robbery or if the guns were in trunks in the parking lot,” says Loomis. “Our research only says that allowing guns at work seems to be a bad thing. It doesn’t tell you what would be a safe way to allow guns at work if the law forced you to do so.”
While it’s only one study in one state, and raises many questions, for Loomis it’s enough to determine that allowing guns in cars is a bad idea. “I can’t see any reason it would do me any good,” he says.
Laura Rhoad, SPHR, HR manager at Pall Corp., a manufacturer with 400 employees in Fort Myers, Fla., agrees. Pall has a no-weapons policy that extends throughout the property, including lockers and a 300-car lot. “I’m not a tree hugger who’s entirely anti-gun; I respect the right to own one for protection or for hunting. But I don’t want to be facing one when someone comes back in the building after he’s been terminated,” she says.
Rhoad voices no sympathy for the argument that people need guns to protect themselves when driving to and from work. “If your car breaks down or you’re in trouble, use your cell phone, not your gun.”
And guns locked in cars don’t always stay there. In Orange County, Fla., for instance, a study revealed that 28 percent of guns reported stolen were taken from parked cars, according to the Brady Center.
Many employers consider guns an acceptable risk they are prepared to live with.
Unified Sportsmen’s Hammer notes that employers often opt to allow guns because their businesses would suffer financially if they didn’t. In Florida, for example, where tourism accounts for a large chunk of the economy, many people who travel by car bring guns along for protection. “You will never find a hotel or motel that says firearms are prohibited in the parking lot or guest rooms,” she says. “It would destroy their businesses.”
Some employers draw distinctions between parking areas and workplaces. “Many of our employees carry shotguns and pistols in their cars, always have, and it’s perfectly legal,” says Bill Crumlett, SPHR, executive director of HR at Southwest Research Institute in San Antonio.
Crumlett has been in HR at the 2,700-employee facility for 30 years and has never had a serious gun-related incident. “We have a written policy against violence and one that says ‘thou shalt not carry a gun on your person and into any facility.’ That’s where we stop. If it’s in your car and we don’t know about it, we don’t care. If we had a parking lot policy, how would we enforce it? Search their trunks? You’ll just irritate your employees.”
The Right To Choose
While employers may differ about guns, safety and the risks involved, there’s consensus about who should have the final say about firearms policies.
“It’s no one’s business but the employer’s,” says Bruce Nicholson, ABA legislative counsel in Washington D.C. “We aren’t opposed to employers permitting guns; we’re opposed to laws that require them to accept them. If employers are in a state or locality where their employees are hunters or if they’re in a ‘conceal and carry’ state, employers may reasonably decide workers can carry them to the property and lock them in their vehicles.”
For SHRM, it’s primarily a property issue as well, Carragher says. “We don’t care if people have guns and are licensed properly; our primary concern is that these laws intrude on employers’ property rights.”
In SHRM’s survey of 494 HR professionals, most organizations with formal weapons policies said no weapons were permitted anywhere, but 43 organizations permitted them on company premises, usually in employee vehicles.
For the 30,000-member American Society of Safety Engineers in Des Plaines, Ill., “it’s about employers’ rights, not safety. It’s up to employers to decide what’s best for them on an individual basis,” says David Heidorn, manager of government affairs and policy. “In Florida and Georgia, our members were opposed to the NRA-backed legislation and we took that position. In Texas, our members were split and we did not take a position.”
The Florida Chamber of Commerce is “pro-choice, pro-property rights,” says Jennifer Davis, spokesperson for the umbrella organization in Tallahassee serving 139,000 members throughout the state. “We had a ‘bring your gun to work’ day at the chamber to highlight that we allow our staff who are hunters to keep guns in their cars. The point is, we have the choice; it’s not imposed on us by government.”
HR Florida’s Allen says most managers at businesses in the state don’t have policies. “It doesn’t occur to them.” Allen says his employer, an accounting firm, is typical: “We don’t have a policy that addresses someone’s right to bring guns onto the property. If someone is packing a gun and we know about it, we’d probably talk to them about it. If someone has a gun in their trunk, we’d never know. It’s pretty much a ‘don’t ask, don’t tell’ situation.”
Living with the Law
NRA spokesperson Varner observes that dire warnings of mayhem when the laws pass have proved to be empty threats. “Nothing happens. We’re talking about law-abiding people—people who are entitled to the right to protect themselves.”
Paul Alley, a partner with Graydon Head & Ritchey in Fort Mitchell, Ky., says the Kentucky law was unnecessary legislation enacted by people “looking for a problem.” Nothing seems to have changed. Alley says most small employers have no policies and continue to abide by an informal “don’t ask, don’t tell” rule. “The statute is trying to balance the rights of the employer and the employee,” he says. “The legislature made a value judgment that employees are at a disadvantage in these situations and stepped in to protect them.”
Similarly, in Minnesota—where Richard Ross, a partner with Fredrickson & Byron PA in Minneapolis, estimates about 50 percent of employers have policies that restrict weapons—“There was a big hullabaloo when the bill first passed, but since then it’s been very quiet; employers have just accepted it. None have chosen to test the law, and it has had little impact.”
In Kansas, employers are taking the new law, which went into effect on May 3, in stride. “We’ve had a rule that prohibited guns on the premises and we’ll have to change it, but in reality when it comes to parking areas, it’s always been ‘don’t ask, don’t tell,’ ” says Jill Krizek, SPHR, first vice president of HR at Bank of Blue Valley in Overland Park, Kan.
When 2008 state legislatures convene, the parties may continue fighting over the issue, but some HR professionals and lobbyists express the hope that compromises can be reached. Are there ways to accommodate hunters? Are there ways to honor the legal rights of workers who want to carry guns for protection? Are there ways for employers to meet these desires without sacrificing their prerogatives? Can it all be done without government intervention?
Regardless of developments, employers need to make their opinions known to SHRM state councils—and stay involved. “Communicate in writing with state legislators so they won’t perceive apathy,” advises Manesh Rath, legal counsel for Keller and Heckman LLP in Washington, D.C.
Robert J. Grossman, a contributing editor of HR Magazine, is a lawyer and a professor of management studies at Marist College in Poughkeepsie, N.Y.
In states that let employers ban guns in cars, if you choose to ban guns, how comprehensive should your policy be? And how far should you go to enforce the policy?
Despite Pall Corp's written anti-gun policy, HR manager Laura Rhoad, SPHR, doubts that her parking area is gun-free. I'm not so naive as to believe some people don't have guns in their cars. If we looked in all the cars, I'm sure we'd find a gun or two.
Even when a gun is spotted, there's usually wiggle room, says Philip Deming, SPHR, president of Philip S. Deming and Associates, a security risk management consulting firm, and former member of the Society for Human Resource Managements Employee Health, Safety and Security Special Expertise Panel. If you've got a no-guns policy, it's Monday after Thanksgiving, and you see the rifle and ammo in Joe's car, you could say, Joe, you're fired. Instead, most employers say, Joe you'll have to leave. Come back tomorrow.
Safety expert Paul Viollis, president of Risk Control Systems in New York, and a safety expert who often appears as an expert witness for employers in legal proceedings, says the standard of care employers must meet to fulfill their legal obligations to keep the workplace safe for employees is based on reasonableness. The U.S. Occupational Safety and Health Administration and the courts expect employers to be able to respond affirmatively to three questions:
Do you have a stand-alone workplace policy that addresses weapons and all aspects of workplace violence, including domestic violence?
Weapons Bans-How Effective?
Can written policies no matter how expertly crafted prevent deadly violence? A policy didn't help Virginia Tech. The U.S. Postal Service undoubtedly had policies that didn't help, says Vaughn Burkholder, a partner with Foulston Siefkin LLP in Overland Park, Kan.
"If capital punishment and laws against murder don't stop these people, what makes you think an employer policy will?" says Marion Hammer, a former president of the National Rifle Association. These silly HR policies will have no impact.
You don't know if the other person is playing by the rules, agrees Dave Workman, senior editor of Gun Week Magazine. That's the Achilles heel of the gun-free zone: Someone who is intent on committing mayhem isn't going to follow the policy. The employer can make a person sign the policy and threaten dismissal if he violates it. But he can't guarantee that he can prevent a deranged or disturbed worker who has been fired or disciplined from shooting people. At that point it should be possible for the individual, the citizen, to fight back.
But any policy that threatens firing--zero tolerance or not--is a strong deterrent, counters Brian Siebel, senior attorney with the Brady Center to Prevent Gun Violence, in Washington, D.C.
A Hollow Protection
Safety experts see advantages to laws that include immunity. They say policing a parking lot is difficult and these provisions would seem to take the employer off the hook if something bad happens. Others say the hold-harmless promises are hollow guarantees because states cannot shield an employer from duties imposed under the Occupational Safety and Health Act and other federal laws.
Still others say that liability protections beg the question. Even if there was no liability involved, employers would still want to do the right thing, says Manesh Rath, legal counsel for Keller and Heckman LLP in Washington, D.C., and a member of the Society for Human Resource Managements Employee Health, Safety and Security Special Expertise Panel. They have a legal and moral imperative to mind the safety of their employees. How can they fulfill that duty without being able to prohibit weapons on the worksite?
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