Every year, nearly two million American workers report being workplace violence victims, according to the Occupational Safety and Health Administration (OSHA). In fact, homicide is the fifth-leading cause of workplace fatalities in the United States, accounting for eight percent of all fatal on-the-job injuries.
Nearly half of all states, however, now have laws in some way addressing employees’ rights to possess firearms on or near their employers’ property. Accordingly, employers diligently attempting to take measures to provide a safe workplace must navigate complex waters. Let’s examine some of the issues relevant to “parking lot laws” and how they could create a powder keg of conflicts with your workplace violence policy.
Risks for Employers
There are obviously many practical and humanitarian reasons why prudent employers would want to enact policies with the goal of preventing workplace violence, but you can also point to good legal principles.
As a general rule, no laws explicitly create a duty for employers to prevent workplace violence, but the Occupational Safety and Health (OSH) Act, which regulates workplace health and safety, imposes a general requirement on every employer to provide employees with a workplace free from recognized hazards that are causing (or are likely to cause) death or serious physical harm. Although the requirement is open-ended, employers found to be in violation may be cited by OSHA. Thus, the liability can also be somewhat open-ended.
State laws also could create risks for employers. Generally, employees can collect workers’ compensation benefits for injuries arising out of their employment. The coverage could conceivably include an instance of workplace violence, creating workers’ comp eligibility for any injured employees. Finally, an employer possibly could face tort (or wrongful personal injury) claims from a third-party victim of violence that occurred on company property.
‘Parking Lot Laws’
With the goal of protecting an individual’s right to bear arms, nearly half of all states (including Kentucky, Tennessee, and West Virginia) have enacted some type of law addressing firearms on the employer’s premises. Many of the measures take the form of a “parking lot law” under which the business can’t restrict the right of employees, customers, and invitees to possess guns.
Some states, such as West Virginia and Tennessee, require the firearm to be stored out of sight in a locked vehicle or compartment when the owner isn’t in the vehicle. Kentucky and other states, however, don’t require the firearm to be out of sight or locked away.
As long as the employee, customer, or invitee complies with the requirements, many of the laws afford them a “privacy right” prohibiting the business from inquiring about the presence of a firearm or searching a vehicle to ascertain whether one is present, unless the search is conducted by on-duty law enforcement personnel with a warrant.
Indeed, many also contain broad antidiscrimination provisions prohibiting an employer from conditioning employment on whether an employee (or prospect) possesses a firearm or holds a concealed-carry permit. Statutes containing the employment protections essentially establish a new “protected class,” that is, gun owners (or permit holders).
Statutory enforcement mechanisms also can be stringent, even in addition to the employment protections. For example, West Virginia’s statute authorizes the state attorney general (AG) to seek injunctive relief, civil penalties of up to $5,000 for each alleged violation of the law, and costs and attorneys’ fees. The state’s law also authorizes employees, customers, and invitees to file private civil lawsuits to seek the same remedies available to the AG.
If the unthinkable were to happen and an employee were to use a firearm stored in a vehicle to commit harm on your property, many of the laws (including in all three states mentioned above) would protect your business from civil liability for the violent acts.
How to Craft an Appropriate Policy
The best practice for employers continues to be establishing a written, zero-tolerance policy on violence prevention. A strong system for reporting incidents and perceived risks should be the policy’s backbone, and employees should be trained on how to report problems. They also should be taught how to recognize potential risk factors and, unfortunately, how to react should the worst happen and violence erupts.
Remember the parking-lot laws tend to authorize employees to store firearms only in a locked personal vehicle in the employer’s parking area. They don’t apply to any other area, nor do they protect the carrying of firearms outside the vehicle.
Include provisions in your policy that spell out exactly where firearms are permitted on your property. The allowances shouldn’t extend beyond the requirements of the applicable parking-lot law. In other words, avoid inadvertently expanding the area where firearms may be brought (for example, into the building or other areas of your campus that aren’t the parking lot).
Bottom Line
With tragedies regularly being spotlighted in the news, more focus than ever is being placed on preventing violence wherever it may occur, including the workplace. Keep in mind, however, the parking-lot and other guns-at-work laws can make you feel limited in the steps available to keep your employees and customers safe. By having solid policies and implementing training related to keeping workplaces safe, you can regain the feeling of having control over your business.
If you plan to implement a workplace violence policy or feel your standards need updating, consult with competent employment counsel to avoid igniting the powder keg of potential conflicts with employees or the enforcement mechanisms contained in the widely varying state statutes.
Mark C. Dean is an attorney with Steptoe & Johnson PLLC in Charleston, West Virginia. You can reach him at mark.dean@steptoe-johnson.com.