Guns in the Workplace

Colin Walker

In light of mass shootings such as those in Aurora, Illinois, and San Bernadino, California, many employers are considering policies prohibiting their employees from possessing firearms during work time or on the employer’s property. Such policies help protect other employees and employers from liability. At the same time, gun advocates have significant influence in many state legislatures and have succeeded in passing laws protecting the right to bear firearms. Many states have adopted laws restricting employers’ ability to prohibit employees from possessing firearms. 

Employers could have liability for crimes committed by employees who have guns at work on theories of negligent hiring, supervision or retention; worker’s compensation; or the Occupational Health and Safety Act. Generally, employers are not liable for crimes committed by their employees. However, if the employer knew or should have known of an employee’s violent tendencies and that the employee possessed a firearm, it could be liable for injuries caused by the employee on the theory that it negligently hired the employee or negligently continued to employ the person. Worker’s compensation laws require an employer to pay for injuries suffered by an employee on the job and could cover injuries inflicted by another employee with a gun. OSHA requires employers to provide a safe working environment for all employees; failing to prevent an employee from injuring other workers with a firearm could be construed as a breach of this duty.

Twenty-four states, at last count, have enacted “parking lot laws,” which provide that an employee may have a lawfully-possessed firearm in his or her car in a company parking lot, garage, etc. However, most of these laws allow an employer to prohibit an employee from carrying a firearm on his or her person while working, having a firearm in company offices or having a firearm in a company vehicle. Many of these laws also allow employers to prohibit firearms in parking lots that are “restricted,” such as a parking lot that is fenced and access to which is monitored by security measures. 

Some state laws prohibit employers from searching employees’ cars for firearms or asking employees if they possess firearms in their cars. A Florida statute, which is broader than most, also applies to customers and “invitees.” However, Georgia’s parking lot law allows an employer to search an employee’s vehicle for a firearm if “the situation would lead a reasonable person to believe that accessing the vehicle is necessary to prevent an immediate threat to human health, life or safety.” 

Other states require employers to post notices if they are going to prohibit employees from possessing firearms in the workplace. Under the Tennessee law, it is crime for an employee to possess a firearm on properly posted property. Some laws specify language that must be included for the notice to be effective. 

Some state laws provide immunity for employers for crimes committed by employees who possess firearms in compliance with workplace gun laws. The Georgia law provides immunity “unless such employer commits a criminal act involving the use of a firearm or unless the employer knew that the person using such firearm would commit such criminal act on the employer’s premises.” 

Many workplace gun laws provide exceptions for situations affecting public safety, such as possession of a firearm on school property, at correctional facilities, on property owned or leased by an oil or gas refiner or chemical manufacturer or on other property where state or federal law prohibits firearms. 

Some states prohibit employers from discriminating against gun owners by refusing to hire or terminating employees because they own guns, have hunting licenses or have concealed carry permits. 

Many of these laws provide employees with a civil action for monetary damages, injunctions, costs and attorneys’ fees against employers who violate workplace gun laws. Violation of these statutes has also been held to constitute wrongful discharge in violation of public policy. 

While policies restricting an employee’s ability to possess a firearm at the place of employment or during work time help protect other employees and the employer from liability, employers should be careful not to run afoul of state laws protecting employees’ right to possess firearms. Currently, prohibiting employees from carrying a firearm on his or her person while working or from having guns in the employer’s office is permissible in every state. However, prohibiting employees from having firearms in their personal vehicles — even in a company parking lot — and discriminating against gun owners in hiring or the terms and conditions of employment can result in liability in many states. 

Gun advocates are supporting similar laws in other states, so employers in states that currently do not have such laws should pay attention to proposed legislation. 

Employers considering such policies should carefully review, and seek advice from competent legal counsel, in any state in which policies limiting employees’ ability to possess guns are to be adopted.

— Colin Walker is a director in the Denver office of Fairfield & Woods.

Previous article‘Ban the Box’ Begins
Next articleCourt Opinions – Sep 2, 2019


Please enter your comment!
Please enter your name here