Caught in the Crossfire

State laws authorizing employees to store guns in their cars in company lots can create a dilemma for employers seeking to comply both with the statute and their legal obligation to provide a safe workplace.

Under the “general duty” clause of the Occupational Safety and Health Act of 1970 (OSHA), 29 U.S.C. §§ 651- 678, “[e]ach employer . . . shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”1. There is little question that allowing guns at the workplace endangers workers. Workplaces that tolerate guns are five to seven times more likely to suffer homicides than job sites that ban firearms, according to a 2005 study in the American Journal of Public Health.2 Unfortunately, a growing number of states have passed laws requiring employers to allow guns in company-owned parking lots.

As a result of recent legislation, the state of Georgia, for example, provides that “no private or public employer . . . shall condition employment upon any agreement by a prospective employee that prohibits an employee from entering the parking lot and access thereto when the employee’s privately owned motor vehicle contains a firearm that is locked out of sight within the trunk, glove box, or other enclosed compartment or area within such privately owned motor vehicle, provided that any applicable employees possess a Georgia firearms license.”3

In enacting this new statute, Georgia joined a growing number of states with similar laws, including Alaska, Florida, Kansas, Kentucky, Louisiana, Minnesota,Mississippi and Oklahoma. Similar legislation has been proposed in other states, and more are sure to follow as part of a major National Rifle Association legislative initiative. This push acquired new momentum in the wake of the Supreme Court’s recent decision in District of Columbia v. Heller, 128 S. Ct. 2783 (2008), where the court held that the Second Amendment conferred an individual right to keep and bear arms and that statutes banning handgun possession in the home violated the Second Amendment.

These statutes threaten the ability of employers to comply with their obligation under OSHA to provide a safe workplace. Employees with firearms in their vehicles can endanger fellow employees and customers. If an employee disgruntled by a termination, plant closure, or reduction in force has a firearm in his or her vehicle, a situation might lead to impulsive violence more often than if the employee had to leave work and return. As one court has noted, “[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.”4

Recognizing the conflict between a statute permitting firearms in company lots and their duties under OSHA, some employers in Oklahoma filed suit under the theory that OSHA preempts Oklahoma’s guns-in-the-workplace statute. At issue in the case were two Oklahoma laws that make it a crime for employers to prohibit employees from transporting or storing firearms in a vehicle on company property.5

After an exhaustive review of the law and materials regarding workplace violence, the court agreed with the employers and overturned the Oklahoma law.6 The court noted that employers are subject to citation by the Secretary of Labor for violation of the general duty clause, just as they are for violations of specific OSHA regulations.7 And, it also stated that courts have construed an employer’s responsibilities under the general duty clause to extend to the prevention of harm by fellow employees.8

Under [OSHA’s] general duty clause, “every employer owes a duty of reasonable care to protect his employees from recognized hazards that are likely to cause death or serious bodily injury.” A hazard is “a condition that creates or contributes to an increased risk that an event causing death or serious bodily harm to employees will occur.” Based on the statistics and authority set forth in detail [in this decision], the Court finds that gun-related workplace violence is a “hazard” that is likely to cause death or serious bodily injury to employees.9

The court ruled that the Oklahoma statutes conflict with and are preempted by OSHA because they criminally prohibit an effective method of reducing gun-related workplace violence.10 This ruling is on appeal to the Tenth U.S. Circuit Court of Appeals. Oral argument was held Nov. 19, 2008, and, at press time, a decision was expected sometime in late 2008 or early 2009. While the questions from the three-judge panel suggest that the court is not enamored with the district court's ruling, it is never wise to predict the outcome of a case based on the tenor of the questions asked during oral argument.

Conversely, a federal district court in Florida recently rejected precisely the same argument raised against Florida’s newly enacted guns-in-the-workplace law.11 That case involved a challenge to a Florida statute that requires some Florida businesses, but not others, to allow customers and some workers to have guns secured in their vehicles in the parking lot. The plaintiffs asserted that the statute is unconstitutional and preempted by OSHA.12

The court held the statute largely constitutional13> and, rejecting the Oklahoma decision, held that OSHA did not preempt it for two reasons. First, the court concluded that because no standards are in effect under OSHA specifically addressing guns in parking lots, the Act “does not prevent a state agency (this includes the Florida Legislature and Attorney General) from ‘asserting jurisdiction under State law over any occupational safety or health issue’ relating to guns in parking lots.”14 Second, the court ruled that OSHA “is not a general charter for courts to protect worker safety.”15 If it were, the court reasoned, “then all businesses would have a duty to ban guns.”16 The court expressed doubt, however, “that even the plaintiffs really assert this is the law; they at least have not done so explicitly in this case.”17 This Florida decision has not been appealed.

Uncertain Legal Landscape
In light of the diametrically opposed judicial decisions from Oklahoma and Florida, the legal landscape remains uncertain, at least until the Tenth Circuit rules in the Oklahoma case. Regardless how the Tenth Circuit rules, though, these laws put employers in a very difficult position. Compliance arguably violates their obligation to protect their employees, while noncompliance subjects them to civil or criminal penalties, or both. Although most state guns-in-the-workplace laws provide employers with immunity from any resulting injuries or deaths, immunity would be small solace for an employer whose employees or customers were shot by an armed employee, permitted to bring his weapon to work.

What can employers do to avoid this choice between putting their employees and customers at risk of injury and facing penalties themselves for non-compliance?

If the employer is located in a state with legislation authorizing employees to bring firearms to work in their cars, assess whether the employer qualifies for an exception to the statute. For example, some states provide an exemption for employers whose parking lots are secured and not otherwise open to the general public. In some states other exemptions may apply to (a) properties on which possession of a firearm is prohibited by federal law or contract with a federal government entity; (b) properties on which substantial activities involving national defense, aerospace, or homeland security are conducted; or (c) facilities dealing with the manufacture, use storage, or transportation of combustible or explosive material.

Assess whether state law is preempted by certain federal regulatory requirements. For example, businesses that deal with certain quantities of dangerous chemicals must submit a security plan for approval to the Department of Homeland Security (DHS) under federal Chemical Facility Anti-Terrorism regulations, 6 C.F.R. Part 27. DHS will likely require that such facilities maintain a security plan mandating a gun-free workplace with an exception for security personnel. Additionally, any employer subject to regulation under the Maritime Transportation Security Act, 46 U. S. C. Chapter 701, may be required by DHS to maintain a gun-free workplace.

Consider following the lead of employers in Oklahoma and Florida and filing a suit for a declaratory judgment challenging the state statute.

Ban firearms from business premises. Even in states prohibiting employers from banning firearms in company parking lots, employers still have the right to ban firearms from the business premises themselves.

Implement physical security and access control measures to ensure that firearms are not brought into the workplace itself. Employers may consider enhancing all of these measures when announcing terminations or lay-offs.

Take additional steps to maintain the security of the parking lot and vehicles in it since the employer is now on notice that the vehicles may contain firearms locked in them.

Conduct thorough pre-employment screening.

Train employees on how to avoid workplace violence and how to detect early warning signs, and conduct exit interviews when employees retire, quit, or are transferred in order to identify potential violence-related security or management problems.

Act Now, Employers
State laws authorizing employees to store guns in their cars in company lots can create a dilemma for employers seeking to comply both with the statute and their legal obligation to provide a safe workplace. Employers should recognize this dilemma and take appropriate action now, rather than after an incident occurs that injures employees or customers and places the employer itself at legal risk.

References
1. See 29 U.S.C. § 654(a)(1).

2. See Employee Policies Towards Guns and the Risk of Homicide in the Workplace, 95 American Journal of Public Health, May 2005, Vol. 95, No. 5.

3. Id. at § 16-11-135(b).

4. Conoco Phillips Co. v. Henry, 520 F. Supp. 2d 1282, 1335 (N.D. Okla. 2007).

5. Id. at 1286.

6. Conoco Phillips Co. v. Henry 520 F. Supp. 2d 1282 (N.D. Okla. 2007).

7. Id. at 1324.

8. Id.

9. Id. at 1334 (emphasis in original) (citations omitted).

10. Id. at 1329-40.

11. Florida Retail Fed’n, Inc. v. Attorney General of Florida, Case No. 4:08cv179- RH/WCS, 2008 WL 2908003 (N.D. Fla. July 28, 2008).

12. Id. at *1.

13. It held unconstitutional that portion of the statute that required businesses with at least one worker having a concealed-carry permit allow customers to have guns in their vehicles because there was no rational basis for distinguishing between businesses on the basis of whether or not they had at least one employee with a concealed-carry permit.

14. Id.

15. Id.

16. Id.

17. Id.

This article originally appeared in the January 2009 issue of Occupational Health & Safety.

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