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Employers could be held liable if someone is injured
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News of mass shootings and their tragic results have left many people wondering what can be done to prevent or mitigate the consequences of violent acts—including acts committed in the workplace. Should a few trained managers be allowed to carry guns at work? What are the risks and benefits? Employment law attorneys weighed in.
Reasons for arming certain employees include to deter an unstable person from trying to commit a violent act and, if a violent act does occur, to try to counteract the threat, said Jason Clagg, an attorney with Barnes & Thornburg in Fort Wayne, Ind.
Armed managers would have to have a Firearm Owner Identification card—and a concealed carry permit to carry a concealed weapon, explained Mark Lies, an attorney with Seyfarth Shaw in Chicago. If the managers have these documents, there should be some confidence that they are trained to use the firearm.
[SHRM members-only multistate coverage: Guns in Parking Lots Laws by State]
However, the disadvantages of arming managers are many, Lies said. For one thing, a manager is usually not a sworn law enforcement officer, so he or she would not have the same legal immunities from liability that officers have.
Clagg noted that a manager's gun could be used for an improper purpose or that something could go wrong in an attempt to use it for a proper purpose. For example, an innocent bystander could be injured or a gun could be taken from and used against the manager.
Employers already have a lot of things to worry about when it comes to managing their workforce, so a policy permitting weapons in the workplace would add a great deal of responsibility and risk, said Rodney Moore, an attorney with Ogletree Deakins in Atlanta.
It may be more effective for employers to increase their security budgets so they can install more cameras, hire more security guards or offer more safety training to employees, he said.
So what happens if an employer allows guns and one is fired in the workplace? While managers have the Second Amendment right to carry the firearm, assuming they have the necessary permits, such permits don't authorize the use of force, Lies explained. Rather, managers would be relying on their right to self-defense, which only permits the reasonable use of force to protect themselves or others.
"The issue will then become whether the manager exceeded the scope of reasonable force and acted negligently or recklessly," he said. The manager could be liable for civil damages for personal injury, wrongful death, intentional infliction of emotional distress and, in the case of reckless conduct, punitive damages.
Because the manager would be acting as an agent of the employer, the employer might also be liable, Lies said. And the employer may not be able to purchase liability insurance to cover these risks.
Once an employer authorizes an employee to bring a firearm into the workplace, the employer might be precluded from arguing that using the weapon was not in the scope of employment, Moore noted.
Businesses that consider allowing guns in the workplace should recognize the effect that such a policy may have on employee morale. The impact may depend on company culture, Clagg said. "A workforce in a rural location, where the presence of guns in the home is common and most employees enjoy hunting, may see this as a laudable step by the employer to safeguard the workplace," he said. "On the other hand, elsewhere, the very same approach may be off-putting and concerning to employees."
One can envision the majority of employees divided into two camps, said Laurent Drogin, an attorney with Tarter Krinsky & Drogin in New York City: those who are terrified by such a policy and those for whom it provides a feeling of safety and security.
"At the extremes, employees might fear for their well-being, especially where a manager is viewed as being unstable or hot-tempered," he said. "Strained interpersonal relationships between managers and employees would take on a new dynamic of uncertainty."
If an employer permits guns in the workplace, it would be wise to run a thorough background check on any employee who plans to carry a firearm, Clagg said. This would confirm that the employee may legally possess the gun and show that the employer took a reasonable step to ensure everyone's safety. The background check must be done in compliance with the Fair Credit Reporting Act and any applicable state laws.
The employer may want to cover certain details in its firearm policy, Drogin noted. For example, the policy might address the following questions:
The policy would have to be crafted to comply with local laws regarding firearms in the workplace. It would also need to define the circumstances under which the manager would be permitted to use the firearm, which then raises the issue of defining reasonable use of force in situations that are not predictable and that require the manager's judgment in a split second, Lies said.
Alternative Safety Measures
Rather than have managers carry firearms, employers may want to consider alternative safety measures, Moore said. Having a trained safety consultant come into the workplace to perform an assessment can be very beneficial, he added. Among other things, the consultant can address vulnerable access points to the worksite and any workplace dynamics that may breed violence. Furthermore, employees can be trained on how to recognize potential threats to safety and how to respond effectively.
"The basics, like having awareness and a solid safety plan, really can help in an emergency situation," Moore said.
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