01/ 18/ 2008
by Beth Milito, NFIB Legal Foundation
Most employers are committed to providing a safe and healthy work environment for their employees. In keeping with the spirit and intent of this goal, many employers prohibit anyone—employees, contractors, vendors and visitors—from bringing firearms or other weapons onto company premises. The reason for these bans? Workplace safety and liability. If an employee is threatened or assaulted on the job, liability for injuries could fall on the employer. In fact, some insurance companies require workplace weapons policies before issuing coverage for employment claims.
Workplace gun bans under fire
Recently, the ability of employers to ban guns, particularly in company parking lots, has been under attack. Kansas, Alaska, Minnesota, Kentucky and Oklahoma have passed laws restricting the ability of employers to set workplace weapons policies. Other states are considering proposals that would prohibit employers from excluding weapons from the workplace. Many of these bills specifically ban policies that restrict the storage of weapons in employees' vehicles on workplace property.
Opponents of workplace weapons policies, including gun rights groups such as the National Rifle Association, contend that the Second Amendment to the U.S. Constitution guarantees an individual's right to keep and bear arms, and that the rights of law-abiding citizens should not be curtailed by other private citizens out of a misplaced concern for safety.
Employers fight back
But employers have successfully fought back arguing that laws prohibiting gun bans undercut violence prevention programs and infringe on employers' property rights. Last year, the legislatures of 12 states—including Texas, Indiana and Georgia—rejected proposals that would prohibit gun bans. The Society for Human Resource Management, which represents human resource professionals, argues that business owners should have the right to set the policies that best fit their businesses and employees. SHRM points to the federal Occupational Safety and Health Act for support—OSHA requires all employers to provide safe work environments for employees. Workplace weapons policies can be an important component in maintaining a safe workplace. "We are of the belief that no one knows how best to provide a safe work environment for employees than those individual employers, and this legislation would handcuff any employers who felt that limiting weapons on workplace property makes sense for their work environment," states Bob Carragher, manager of government relations at SHRM.
A SHRM survey of its members indicates that an overwhelming majority of human resources professionals favor the employers' rights to set weapons policies. This may be due in part to some frightening statistics: the U.S. Department of Labor reports that homicide is the second largest cause of death in the workplace, and the U.S. Department of Justice National Crime Victimization Survey finds that nearly 2 million employees are assaulted or threatened at work annually.
According to SHRM, there will likely be action this year on bills in Florida, New Hampshire and Georgia. "We're not saying ban them all, or allow them all, but we're saying keep current law that affords every individual employer the right to decide how to run their workplace," said Carragher.
So far courts have sided with employers who want to keep guns out of the workplace. Conoco Phillips is trying to overturn Oklahoma's law that allows employees to keep guns in vehicles on company property. In October, a federal judge ruled that the law conflicts with OSHA. The case is currently before the state supreme court.
Establishing a policy
Business owners who wish to exclude weapons from the workplace should adopt a policy prohibiting employees and others from bringing firearms or other weapons onto company property. Consider the following sample policy:
Workplace violence
[Insert Company Name] is concerned about society's increased violence.
To help prevent incidents of violence from occurring, [Insert Company Name] is implementing this policy on workplace violence. It is the policy of the [Insert Company Name] to expressly prohibit any acts or threats of violence by an employee or former employee against any other employee in or about its facilities or elsewhere at any time. [Insert Company Name] will not condone any acts or threats of violence against its employees, contractors, customers, vendors, former employees or visitors at any time or while they are engaged in business with or on behalf of [Insert Company Name].
In keeping with the spirit and intent of this policy, [Insert Company Name] will:
- Provide a safe and healthful work environment, in accordance with [Insert Company Name]'s policy on safety and health
- Take prompt remedial action up to and including immediate termination against any employee who engages in any threatening behavior or acts of violence or who uses any obscene, abusive, or threatening language or gestures
- Take appropriate action when dealing with contractors, customers, vendors, former employees, or visitors to [Insert Company Name]'s facilities who engage in such behavior. Such action may include notifying the police or other law enforcement personnel and prosecuting violators of this policy to the maximum extent of the law
- Prohibit employees, contractors, customers, vendors, former employees, and visitors from bringing firearms or other weapons onto [Insert Company Name]'s premises
- Establish viable security measures to ensure that [Insert Company Name]'s facilities are safe and secure to the maximum extent possible and to properly deal with access to [Insert Company Name]'s facilities by the public, off-duty employees and former employees
All policies should be in writing and effectively communicated to employees. You may also want to consider posting signs at the entrance to your building that guns are banned from the premises.
Before instituting a policy, check with an employment law attorney in your state to make sure your proposed policy does not conflict with a state right-to-carry law. NFIB members with additional questions can contact the NFIB Employment Law Hotline. Call 800-NFIB-NOW or go to www.nfiblegal.com for more information.
