HR professionals are caught in a legal crossfire between the need to maintain safe workplaces and the right of employees to possess firearms.
As of October 2014, 22 states had passed laws allowing people to keep guns in their cars in employers’ parking lots. HR staffs in these states must adopt policies specific to those laws—which vary substantially. HR departments in other states also must craft policies that address firearms at work and must be prepared to react rapidly if gun laws are enacted in their states, say legal and security experts.
Around the country, “The laws really are being changed quickly,” said Carin Burford, a shareholder with the law firm Ogletree Deakins in Birmingham, Ala.
Some experts say HR’s record of responding to the challenge is spotty. “I don’t believe HR senior executives are giving it the attention it is due,” said Paul Michael Viollis Sr., Ph.D., the CEO of security firm Risk Control Strategies in New York City. “Based on my experience, they’re doing very poorly.”
“At some point an employee is going to ask, ‘Where can I store my gun?’ ” said Meagan Newman, a partner with the law firm Seyfarth Shaw in Chicago. “HR representatives need to be able to answer that question correctly.”
The stakes are high. According to the U.S. Bureau of Labor Statistics, workplace violence claimed the lives of 518 workers in 2010; firearms were used in 78 percent of the killings.
The debate over gun rights is often an emotional and contentious one. While Americans have a right to bear arms, employers have a right to prohibit guns and other dangerous weapons on private property, legal experts say.
“It really is a core right,” said Laura Cutilletta, senior staff attorney with the San Francisco-based Law Center to Prevent Gun Violence.
In a compromise approach developed over recent years, state legislatures have focused on employer-provided parking lots, guaranteeing some workers the right to store firearms in locked personal vehicles on these lots.
States with parking lot gun laws as of October 2014 were Arkansas, Alaska, Arizona, Florida, Georgia, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maine, Minnesota, Missouri, Mississippi, North Carolina, North Dakota, Nebraska, Oklahoma, Tennessee, Texas, Utah and Wisconsin.
Legislators in some states are pushing proposals to allow employees to carry guns into their employers’ buildings in addition to parking lots. Courts are also being asked to extend gun owners’ rights.
Employers have a duty to maintain safe workplaces under the General Duty Clause of the federal Occupational Safety and Health (OSH) Act. However, courts have been hesitant to rule that this duty pre-empts states’ parking lot laws.
Some state laws allow an employer to bar firearms on its property if it posts certain notices or signs. Some laws prohibit discrimination or retaliation against gun owners. Some limit an employer’s ability to search employees’ vehicles on its property. Some require employers who violate the law to pay damages to aggrieved employees.
Multistate employers have additional challenges; they must consider the laws in each jurisdiction in which they operate and adjust their policies accordingly.
Workplaces that are open to the public have “decisions to be made about whether the same rules will apply to the public and to employees,” noted Newman. “There is the added dimension of public perception and brand identity.” Some companies such as Starbucks have come under attack for urging customers not to bring guns into their stores—even customers who have permits to carry concealed firearms.
Some critics of employer restrictions on firearms say that employees have a right to defend themselves at work. They claim that workplaces are safer when workers carry firearms, pointing to incidents in which an employee has used a gun to stop an assailant from harming innocent people.
Crafting Firearms Policies
In establishing their firearms policies, employers must consider not only the fine print of the laws in their states but also their company culture and the nature of their business, experts advise. Among questions to be resolved are whether the policy will apply to security personnel, to part-time and contract labor, and to visitors.
When creating or revising a firearms policy, “It’s really important to take the pulse of the workforce,” said Newman. Community culture is also crucial, she said. “What are attitudes toward carrying concealed firearms? Customer concerns in Atlantic City might be different than those in rural Texas.”
In establishing policies limiting firearms, “A lot of companies are dealing more in the area of fear than true knowledge about workplace safety,” said Kevin Michalowski, executive editor of Concealed Carry Magazine, published by the U.S. Concealed Carry Association.
However, the proximity of firearms—such as guns stored in parking lots—leads to workplace shootings by employees in the immediate aftermath of a termination or another workplace event that prompts sudden anger, said Viollis.
Crafting an effective policy on firearms is a process unique to each employer. Some organizations have policies that require employees to notify the company whenever they bring a firearm to a parking lot. Some designate separate parking areas for vehicles with guns.Some require that firearms be out of view within locked cars or that ammunition be secured apart from firearms.
Some employer policies include other dangerous weapons. Experts advise customization in this area as well. For example, a box cutter or hammer might be considered appropriate on a factory floor but not in an office.
“There is no black-and-white policy that we can apply universally,” said Hector R. Alvarez, founder and president of Alvarez Associates, a workplace violence prevention firm based in Northern California.
The work is not done once the policy is adopted, say experts. The policy must be communicated. All employees must be trained and reminded regularly about its details. “Make sure that your management team is trained and understands what the policy is,” said Brian A. Vandiver, an attorney with Mitchell Williams in Little Rock, Ark.
Security experts say that a firearms policy should be part of a broader workplace violence prevention program. Some employer policies establish protocols—involving threat assessment teams or security guards—for dealing with imminent threats or apparent gun policy violations. Some organizations designate liaisons to maintain close relationships with local law enforcement agencies and gain their input on best practices.
Vandiver noted that employers in states that bar retaliation against gun owners have to tread particularly carefully when a gun-owning worker exhibits threatening behavior. “It puts you in a very different position. When can you say that a red flag is up?”
Viollis said that spotting potential sources of violence is an important skill for HR. “Workplace violence needs to be treated by HR as a specialty area.”
Experts urge organizations to monitor the effectiveness of their workplace violence programs continuously in order to recognize patterns of behavior that lead to violence and adjust their practices based on experience. Said Alvarez: “It has to be a living program.”
Steve Bates is a freelance writer based in the Washington, D.C., area and is a former writer and editor for SHRM.
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