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Employers Fire Back at Law Making it a Felony to Ban Guns on Company Premises

January 27, 2006
Related Topics: Workplace Violence, Safety and Workplace Violence, Featured Article
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A proposed Florida law is putting employers in the middle of a Second Amendment firefight. The bill would permit employees to keep loaded guns in their cars on company premises, and it would expose employers that banned workers from doing so to third-degree felony charges, punishable by up to five years in prison or a $5,000 fine.

    Similar laws were passed in Alaska and Minnesota last year, but neither imposes felony charges on employers. Another bill is pending in Wisconsin, but it is unclear whether it would mandate criminal sanctions for employers, attorneys say. The Oklahoma Legislature also passed gun-carrying legislation that would penalize employers who break the law with up to a year of imprisonment and a $500 fine, but a group of employers has filed a suit fighting the statute. The law has not gone into effect, pending a judge’s verdict in the case.

    The National Rifle Association, a major sponsor of the Florida bill, says it plans to get the legislation introduced in all 50 states. In states like Utah, where the measure has been tabled, the group is figuring out ways to reintroduce it.

    "We have employers violating the constitutional rights of their employees," says Marion Hammer, a former NRA president who is now the group’s Florida spokeswoman. By having policies that ban employees from keeping guns locked in their cars on company grounds, employers are denying their workers’ right to bear arms, Hammer says.

    The NRA contends that employers are hiding behind "this sham of protecting their employees," when really these companies are forcing their anti-gun politics on their employees, Hammer says. If companies really wanted to protect their workers, they would allow them to keep guns in their cars, she says.

    "Adequate documentation proves that taking the right to bear arms away from employees will lead to more violence," Hammer says, citing U.S. Department of Justice studies estimating that at least 78 percent of workplace violence involves robbery by strangers.

    The statistics about workplace shootings cut both ways in the debate about guns on workplace premises. More than half of the 795 workplace assaults that occurred in 2004 were shootings, but only 8 percent of those were committed by a former or current employee, according to the Department of Labor’s Bureau of Labor Statistics. More than half of the workplace shootings were committed by robbers, while the rest were unknown.

    But employers and opponents of the bills maintain that having firearms close by could make already tense workplace situations, such as disciplinary actions or firings, more volatile.

    "It’s not that we think this is going to be an apocalyptic kind of event and that there will be more blood on the streets," says Zach Ragbourne, a spokesman for the Brady Campaign to Prevent Gun Violence. "But you do need to ask, ‘Is 100 workplace shootings the problem, or is just one more workplace shooting a problem?’ "

    Not only will employers have to step up security if these bills pass, but they will have to contend with huge recruiting and retention issues, says Michael O’Brien, an employment lawyer and head of the Society for Human Resource Management’s Utah chapter.

    "A lot of people do not want to work with someone who has a gun in their car," he says. "Not to mention the managers who have to terminate that person." Utah’s Legislature recently overturned a law similar to the ones being weighed in Wisconsin and Florida.

Liability concerns
    Each time sponsors of the legislation introduce the bill in a state, they are careful to address any loopholes that they have missed in the past, attorneys say. The NRA’s goal is to make the Florida law the model for all other legislation, says Brian Siebel, a senior attorney at the Brady Campaign to Prevent Gun Violence.

    "They are chipping away at loopholes where they can, and when they get laws passed they will go back and amend them to make them even stronger," he says.

    For example, the law in Oklahoma says that employees can keep firearms locked in their cars, but it does not mention ammunition, says Al McKenna, a partner in the Orlando office of Ford & Harrison, an employment law firm. The Florida bill makes it clear that both guns and ammunition are covered by the law.

    Also, unlike legislation introduced in other states, the Florida and Wisconsin bills grant employers immunity from liability in lawsuits brought by anyone injured in a workplace shooting as long as they have made a good-faith effort to prevent violence in their workplace.

    "But it’s not clear what the scope of immunity is," McKenna says. He says it’s unclear whether a company would be absolved in a negligent-hiring lawsuit if it didn’t know that an employee who had a gun in a car at work was prone to violence. "What are the reasonable steps that an employer has to take to get that immunity?" he asks.

    At the very least, if the Florida bill passes employers will need to install metal detectors and surveillance cameras to make sure that employees don’t enter the workplace armed, McKenna says. "That’s the irony here," he says. "People fighting for the law say they are concerned with employees’ privacy rights, but the things that employers will have to do if this legislation is passed will be much more intrusive."

    Al Frazier, vice president of corporate services at the Orlando Utilities Commission, says he doesn’t want to have to install metal detectors and cameras because it sends such a negative message to employees. "It makes employees feel like we don’t trust them," he says.

    Background checks will become a much more prevalent practice if these bills pass, says David Namura, manager of governmental relations at SHRM.

    "Employers are going to have to conduct very thorough vulnerability assessments and security audits on all of their properties," says Paul Viollis, a consultant with Risk Control Strategies in New York.

    There are a host of liability issues if a gun gets lost or stolen, SHRM’s O’Brien says. And there is an entirely different set of issues for workplaces where flammable materials are present, such as oil refineries or chemical plants, Namura says. "If employees can have guns in their cars, that is two seconds away from having them in the plants," with the risk of explosion that such proximity brings with it, he says.

    The NRA’s Hammer discounts these concerns, saying that under the law, the guns would have to be locked inside cars, so bringing them into the workplace itself would not be an issue. She says the human resources community’s concerns about employees’ safety are "a sham," adding that "there is no major company in my state that has ever or will ever spend money to adequately protect employees."

Impact on culture
    Frazier disagrees with Hammer’s contentions. While he does not anticipate that his employees will "act inappropriately" if the law is passed, he is more concerned about how the law would affect the corporate culture.

    For him, the bigger implication of the bill becoming law is what it will do to morale among his 1,000 employees. "We think our workforce is going to act appropriately," he says. "But how can they continue to do their jobs in that environment?"

    To make sure they qualify for legal immunity, and to help employees feel more comfortable, companies will need to implement training sessions to educate managers on the characteristics of people who might have a propensity for violence, Risk Control Strategies’ Viollis says. Those signs include substance abuse, indications of depression, indirect threats and loud outbursts, he says. Viollis predicts that if guns-at-work laws proliferate, this kind of training could become as commonplace as sexual harassment training is today.

    Companies also will have to make sure they have employee assistance programs in place to deal with potentially violent employees. And companies in states with such laws should rethink their termination processes, says Thomas Ca­pozzoli, a professor in the College of Technology at Purdue University in Ko­komo, Indiana. For example, employers may want to consider mandating a cooling-off period after a person is terminated before they can leave the building. Another option companies may want to consider is having employees escorted to their cars by security, he says.

    "A lot of times people who are terminating employees do not have the background to do this," he says. He advises that companies make sure more than one manager is present at the time of the termination and that at least one of them has fired someone before.

Employer opposition
    In Florida and Wisconsin, employers are working through various associations to try to stop the bills from becoming law, rather than taking on the issue individually. Companies don’t want to single themselves out for fear of being targeted by the NRA, O’Brien says.

    Their concerns are warranted. Last summer, the NRA launched a boycott in Oklahoma of Houston-based oil and gas company ConocoPhillips. The company, along with a number of other employers, filed a lawsuit in October 2004 to stop the Oklahoma law from taking effect.

    The NRA boycott included a media blitz and billboards around Texas accusing Conoco of violating its employees’ constitutional rights. Despite the boycott, the company has remained a plaintiff in the suit, says Jeff Callender, a company spokesman.

    "We are simply trying to provide a safe and secure working environment for our employees and the communities in which we operate by keeping guns out of our work sites--specifically refineries, natural gas plants and distribution terminals," he says.

    The lawsuit names Oklahoma’s governor’s office and attorney general’s office. It claims that the law, which was scheduled to take effect November 1, 2004, violates employers’ constitutional rights to prevent people with firearms from coming onto their property.

    The employers have two major concerns: employee safety and their rights as property owners, says Kirk Turner, a partner at Newton O’Connor Turner & Ketchum, the Tulsa, Oklahoma, law firm that is representing six of the companies in the suit.

    "We need to make sure that we prevent anyone from bringing any weapon into the workplace," he says.

    Within a month of filing the suit, however, lead plaintiff Whirlpool withdrew. It said that it did so after a briefing by Oklahoma’s attorney general that "indicated that the new law should not be interpreted as restricting Whirl­pool’s right or ability to manage its workplace safety." Steve Duthie, a Whirl­pool spokes­man, says he cannot elaborate because of the conditions of the agreement with the attorney general.

    Whirlpool and other companies dropped out of the suit because they felt threatened by the NRA’s boycott of Conoco, says the Brady Campaign’s Siebel. "They realize that as long as the remaining plaintiffs win the case, they would still benefit, so why risk public censure by the NRA if they don’t have to?" he says.

    And in August 2005, the Wil­liams Cos., a conglomerate of energy and communications companies based in Tulsa, dropped out of the suit. The State Chamber of Oklahoma, which had filed a friend-of-the-court brief, withdrew its filing.

    Kelly Swann, a Williams spokes­man, and Mike Seney, a spokes­man for the Oklahoma State Chamber, decline to comment on why their organizations withdrew.

    Turner, who represents the six Oklahoma employers, says he hopes to see a verdict in the case soon, and will most likely appeal if his clients do not win. "It’s just too important an issue," he says.

    In Florida and Wisconsin, SHRM is encouraging members to contact state policymakers and explain the law’s impact on their workplaces, Namura says.

    "We also want them to give policymakers a clear idea of the challenges this would place on employers to offer a safe environment," he says.

Workforce Management, January 30, 2006, pp. 34-36 -- Subscribe Now!

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