button Vol. 11
No. 1

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Employee Free Choice Act (EFCA)
Employers Survival Kit


ADA Amendments Act of 2008


Guns In The Workplace


No Match Rule:
E-Verify Update


Braun Consulting News
News on Personnel, Labor Relations and Benefits

See our Archive Pages for Back Issues of Braun Consulting News!

Top Guns In The Workplace Update

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(Breaking News: As related news, gun possession in National Parks has taken on a life of its own and may spill over into workplace issues as well. Stay tuned it is far from being resolved one way or the other.)

Checkmark Graphic Guns At Work Laws

Employers are dealing with an emerging liability issue that concerns both workplace safety and employee rights - the issue of employees with guns at the workplace.

There are a growing number of states that have enacted laws affecting where guns are allowed on the jobsite.

These laws are resulting in conflicts between the employers needs for safety and consistency in their violence policies, and the requirements of the laws that allow employees to keep guns in company parking lots.

On August 15, 2008, Louisiana became the latest state to enact a law that would prohibit employers from preventing their employees from bringing guns to work and storing them in their cars on the employer's parking lot.

Not only does the passage of these state laws have a significant impact on employers in the state where they are passed, but they also impact multi-state employers as well. If an employer has employees in one of the states affected by these laws they must alter their existing policies to comply with the new state laws. This can be somewhat complicated.

These new gun laws can put employers in somewhat of a bind. Compliance with the law allowing guns in parking lots puts them at risk of violating their obligation to protect their employees, while at the same time subjecting them to civil and/or criminal penalties for noncompliance with the law.

Under the Occupational Safety and Health Administration's (OSHA) "General Duty" clause, employers are required to create "a place of employment which is free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees." In addition to employees, employers are required to provide protection for all vendors, clients, visitors, solicitors and anyone in the general public who is on the employer's property.

There is not a lot of dispute about the fact that allowing guns in the workplace increases the danger to workers.

According to a 2005 study in The American Journal of Public Health, job sites that allow guns are five to seven times more likely to suffer homicides than locations that ban all guns.

Here is how one court put it, "[a] situation involving workplace violence, such as an altercation between employees or a domestic dispute that finds its way to company property, can escalate from a scuffle or an argument to a deadly gun fight in a matter of seconds based on the presence of firearms on company property."

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Checkmark Graphic Gun Rights or Property Rights?

State laws allowing employees to keep guns on workplace parking lots represents a battle between two constitutional issues - gun rights and property rights.

As an example of how one side interprets this issue, a Florida lobbyist for the National Rifle Association is quoted as having said, "The U.S. Constitution begins, 'We the people' not 'We the corporation'."

Others point out that 2nd Amendment rights do not override private property rights under the 5th and 14th amendments, as well as the state constitutions. The "property rights" half of this debate maintain that ownership of property gives the right to exclude others from that property.

Their position is that these state laws force businesses to allow firearms on their property and risk the safety of their employees - not to mention the potential liability if there is a gun related crime committed on their property.

When ConocoPhillips challenged the Oklahoma law allowing guns in their company parking lots the NRA responded by launching a national billboard advertising campaign calling for a boycott of ConocoPhillip's gas.

"Across the country, we're going to make ConocoPhillips the example of what happens when a corporation takes away your Second Amendment rights," Wayne LaPierre of the NRA told the Associated Press. He also said, "ConocoPhillips went to federal court to attack your freedom. Now freedom is going to fire back." LaPierre was in Oklahoma at the time for a rally to support employees who were fired by Weyerhaeuser Inc. for keeping guns stored in vehicles parked at work.

What the NRA was framing as an issue of individual gun rights ConocoPhillips was presenting as a company's defense of its right to determine the use of its own property and their overriding concern for workplace safety.

In a statement at the time the company said, "Our primary concern is the safety of all our employees. We are simply trying to provide a safe and secure working environment ... by keeping guns out of our facilities, including our company parking lots."

The law suit was still in court as of November 2008. The Oklahoma law was struck down in October 2007 by U.S. District Judge Terence Kern in Tulsa. He issued a 93-page injunction against the 1994 law, ruling that Oklahoma's forced entry law was in conflict with federal safety laws.

"The court concludes the amendments conflict with and are preempted by the (Occupational Safety and Health) OSH Act, which requires employers to abate hazards in their workplaces that could lead to death or serious bodily harm and which encourages employers to prevent gun-related workplace injuries," Judge Kern wrote.

The issue moved to a Denver federal appeals court.

The NRA contends that the ruling overturning the law wrongly concluded that the federal Occupational Safety and Health Act pre-empts the state law. They also feel that the OSHA requirements apply to conditions over which employers have control, and that employers have no control over "random acts of violence" that "could occur anywhere".

One of the authors of the original gun-rights law said that "disgruntled workers who shoot people in the workplace are going to do so no matter what laws are enacted".

On the other side attorney Steven Broussard argued that the law requires employers to allow anyone - not just employees - onto workplace property with guns locked in their vehicles. He said that this law takes away the right of employers to fully control their own property. In earlier written arguments he had also said that the law constitutes "an unconstitutional taking of (employers') property" and their right to exclude anyone from their property.

This ongoing legal battle serves as a good illustration of how these law suits can be tied up in courts for years - and in the meantime employers are left stranded between two sides of a difficult issue.

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Checkmark Graphic States Affected By These Gun Laws

Among the states currently affected by these types of gun laws are Louisiana, Alaska, Florida, Georgia, Kentucky, Minnesota, Mississippi, Kansas and Oklahoma.

The NRA has been working to spread these laws to other states, and similar legislation has been proposed in Arizona, Missouri and Tennessee. However, similar laws have been rejected in at least 13 other states.

Two of the more recent state laws enacted are in the states of Florida and Louisiana.

Florida Governor Charlie Crist signed the "Preservation and Protection of the Right to Keep and Bear Arms in Motor Vehicles Act of 2008" On April 15, 2008. This law was created "to codify the longstanding legislative policy of the state that individual citizens have a constitutional right to keep and bear arms ... and that these rights are not abrogated by virtue of a citizen becoming a customer, employee or invitee of a business entity."

The Florida law applies only to employees who have a valid concealed weapons permit, but it also widens the scope of what the definition of "employee" is - to include independent contractors, volunteers and interns. In addition to this "invitees" (which are defined as customers or visitors lawfully on the premises) are also allowed to legally have guns in their vehicles in the parking lot. The law does NOT stop employers from prohibiting firearms anywhere else on their premises other than inside an employee's or invitee's car.

Louisiana Governor Bobby Jindal signed a bill into law July 2, 2008 that grants properly licensed individuals the right to store firearms in their privately owned, locked vehicles in any designated parking areas, including employee parking lots and garages provided by employers.

The Louisiana gun law provides that "a person who lawfully possesses a firearm may transport or store such firearm in a locked, privately owned motor vehicle in any parking lot, parking garage, or other designated parking area" and that "[n]o ... private employer, or business entity shall prohibit any person from transporting or storing [such] a firearm."

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No Match Rule: E-Verify Updates Next Page

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