€¦ · •potential liability of employer regarding guns in the workplace page 8. laws that...
TRANSCRIPT
Page 1
Page 2
Page 3
FOR YOUR INFORMATION
• Approved for 1 hour of general recertification credit through the HR Certification Institute.
• Presentation materials available for download:www.employerlinc.com/guns
Page 4
TODAY’S PRESENTERS
Page 5
Workplace Weapons Laws Around the Country
Page 6
Workplace weapons laws around the country
• Gun ownership and possession controlled by state laws
• 15+ states have laws addressing guns on employers’ property
• Challenges faced by multi-state employers
Page 7
Employers’ responses around the country
• Development of specific guns policies
• Recognizing the potentially violent employee (or circumstances)
• Potential liability of employer regarding guns in the workplace
Page 8
Laws that permit guns in vehicles on employers’ property
• Common features
– Licensed to possess
– Contained in locked vehicle
– Out of sight
Page 9
Laws that permit guns in vehicles on employers’ property
• Questions that have arisen
– Employers’ duty to monitor
– Difference between personal and employer-owned vehicles
– Restricted or designated parking
– Employers’ right to search vehicle
Page 10
Banning or limiting gun possession at the workplace
• Notice to employees and the public
• Ability to specify particular areas
• Gun policies maintained by customers or clients
• Employer immunity – what is employers’ liability for permitting or prohibiting guns on premises?
Page 11
Gun Laws in Oklahoma
Page 12
General right to possess firearms without a license
A person is permitted to carry loaded and unloaded shotguns, rifles and pistols, open and not concealed for lawful self-defense and self-protection or any other legitimate purpose in or on property that is owned, leased, rented, or otherwise legally controlled by the person.
21 O.S. 1289.6
Page 13
Carrying with a handgun license
The Oklahoma Self Defense Act (21 O.S. §1290.1 et seq.) provides for the issuance of handgun licenses to qualifying Oklahomans and allows those who are licensed to carry concealed or unconcealed handguns in many public locations.
Page 14
Oklahoma Self Defense Act
• Some exceptions– Licensed individuals are not able to carry handguns
inside:
• Government buildings
• School buildings or college campuses
• Professional sports venues
• Other specified facilities
Page 15
Oklahoma Self Defense Act
• Oklahoma employers have the right to control the possession of weapons on their property
• Includes the right to prohibit employees who are licensed to carry from bringing a handgun into the workplace
• Allows other limitations at the discretion of the employer
Page 16
Employee rights to transport and store firearms and ammo
No … employer … shall maintain, establish, or enforce any policy or rule that has the effect of prohibiting any person, except a convicted felon, from transporting or storing firearms or ammunition in a locked motor vehicle, or from transporting or storing firearms or ammunition locked in or locked to a motor vehicle on any property set aside for any motor vehicle.
21 O.S. §1289.7a(A)
Page 17
Employee rights to transport and store firearms and ammo
These laws provide an aggrieved employee with a right to pursue a civil action in court to obtain actual damages, injunctive relief and attorney’s fees.
21 O.S.§1289.7a(C)
Page 18
Firearm inquiries by employers
It shall be unlawful for any private employer doing business in Oklahoma to ask any applicant for employment information about whether the applicant owns or possesses a firearm.
An private employer who violates the provisions of this section shall, upon conviction, be guilty of a misdemeanor punishable by a fine or not more than $1,000.00.
21 O.S.§1289.27
Page 19
Firearm inquiries by employers
All public employers and public officials in Oklahoma shall be prohibited from asking any applicant for employment information about whether the applicant owns or possesses a firearm.
Any public employer or public official who violates the provisions of this subsection shall be deemed to be acting outside the scope of their employment and shall be barred from seeking statutory immunity from any exemption or provision of The Governmental Tort Claims Act.
Page 20
Use of deadly force
• An owner, manager or employee of a business is presumed to be justified in using deadly defensive force if:
– The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered a place of business, or
– If that person had removed or was attempting to remove another against the will of that person from a place of business.
21 O.S. §1289.25
Page 21
To prohibit or not?
• The fundamental question: Should employers prohibit
firearms and other weapons on their premises?
• Until recently, policies prohibiting weapons for both
employees and third parties have been the standard
approach by HR professionals. But, many employers are
reevaluating the position in light of recent tragedies.
• There is no “easy’ answer, and there are no “canned”
policies. This decision boils down to a balancing of
competing sets of rights, competing sets of risks, and
the particular circumstances applicable to each business.
Page 22
Factors that favor a ban
• Employers are the primary target of lawsuits following
incidents of workplace violence.
• Victims may allege that an employer’s failure to ban
weapons on the premises caused the harm they
suffered.
• Risk of accidental discharge, “friendly fire,” and mistaken
identity shootings.
• The “cooling off” period.
• Evidence of active efforts to prevent violence.
Page 23
Factors weighing against a ban
• Victims may allege that an employer’s ban of weapons
on the premises caused the harm they suffered.
• Inability to protect one’s self off the premises.
• Long response times of law enforcement to an event.
• Ineffective nature of a “policy” as a deterrent to criminal
behavior.
• Individualized circumstances that justify and increased
level of protection, up to and including an armed
response.
Page 24
So … to prohibit or not?
• In general, an employer should understand that workplace violence incidents, including accidents, will likely result in that employer’s prevention strategies being put on trial.
• Policies prohibiting firearms do not, standing alone, absolutely shield employers from liability from firearms-related incidents. In many instances, much more of an effort to prevent workplace violence will be required.
Page 25
Employer’s duty to protect
Q: Does the law impose a duty on employers to
protect employees from gun violence in the
workplace?
A: Yes. A number of courts have held that employers
have a duty to protect employees from foreseeable
hazards, including (1) foreseeable violence by a
particular employee, (2) foreseeable violence in a
particular employment sector, (3) foreseeable violence
in a particular physical area, and (4) foreseeable
violence at a location with a history of incidents.
Note: The breadth of this duty will vary with the individual
circumstances.
Page 26
Sources of duty to protect
• Negligent hiring, supervision or retention
• OSHA – general duty clause
• Respondeat superior claims
• State and local regulations for particular industries
Page 27
Employee’s right to protect self
Q: Does the law protect employers who allow
lawful possession of firearms?
A: In some states, yes, to a degree. There is a so-called
“immunity” provision in some state statutes. It is
untested, and the limits of its coverage are not known.
Q: Does the law impose a duty on employers to allow employees to protect themselves?
A: ???
Page 28
Hybrid policies
Q: Does the law permit employers to have varying
policies, rather than an all-or-nothing
prohibition on firearms?
A: In general, yes. Employers can prohibit weapons
possession by most employees while permitting armed
security or other lawfully trained staff to possess
weapons. However, this decision is not risk-free.
Page 29
Making the decision and crafting an appropriate policy
• Careful study of known risks for each employer based on
actual data is required.
• Careful balance of conflicting duties is required.
• The risk of accidents or unintended violence must be
considered.
• The risks of silence and non-action must be considered.
• The policy should be part of an overall strategy to
combat workplace violence in general.
Page 30
END NOTES
• Post-webinar survey coming in the next few days – your feedback is very important to us!
• HRCI credit information emailed in next 24 hours for those who pre-registered to receive credit.
• Resources page for this webinar:www.employerlinc.com/guns
– Archive version of webinar broadcast available by end-of-day for immediate on-demand viewing
– Downloadable PDF of presentation materials
Page 31
Page 32