November 1, 2004

RE: Workplace Violence Gun Issues

by Peter Bennett

Employers Must Arm Themselves for Hunting Season

As the leaves on the trees turn to shades of red and orange, so too does the attire of many employees; that is, as employees gear up for an afternoon or weekend of hunting. No matter where we may fall in the political ambit of gun ownership and animal rights, the United States Constitution as well as individual state constitutions, allow a licensed individual the right to bear arms for lawful purposes such as target shooting and hunting.

This right to bear arms can directly conflict with an employer’s obligation to protect its customers and employees from foreseeable acts of violence on company premises. Today, employers are faced with a desperate and violent world. The news is riddled with instances when employees exert their anger and frustration by taking a gun to work and severely injuring or killing others and themselves. The term “going postal” is commonplace vernacular and a reminder of this looming threat.

A non-employee injured by gun violence in the workplace may sue an employer under theories of negligence, negligent hiring, negligent retention and/or negligent supervision. Moreover, an employer could be sanctioned for violating the Occupational Safety and Health Act of 1970 by maintaining a dangerous workplace environment and faces workers compensation claim exposure. Accordingly, an employer must take measures to protect, often to the detriment of an employee’s constitutional rights.

It is this balancing of rights, the employer’s right to regulate private property versus an individual’s personal liberty, which was at issue in Hansen v. America Online, Inc., No. 20020288 (Utah Sup. Ct 2004). In Hansen, three employees of America On-Line (“AOL”) met in the AOL parking lot. The employees were off-duty and met to go target shooting at a nearby gun range. An AOL security camera recorded the three employees transferring each of their weapons into one vehicle.

Four days after this footage was taken, AOL discharged the employee’s for violating its workplace violence prevention policy. This policy prohibited employees from carrying or possessing a firearm of any type at the Utah call center or its parking lot. The workplace violence prevention policy was aptly displayed and the three employees admitted they were familiar with and understood the policy. Nonetheless, the employees felt that an employer should not have the right to control the actions of law-abiding employees, especially off-duty and in a parking lot.

The Utah Supreme Court acknowledged that the right to keep and bear arms is a clear and substantial public policy in Utah. Furthermore, the Hansen court noted that although the employees were “at-will” employees, there are limitations to this at-will doctrine. Specifically, in Utah and many other states, an employer cannot fire an employee for exercising a legal right or privilege. However, the Court noted that in analyzing this public policy limitation, the interests of both the employer and the employee must be considered. After weighing these interests, the Hansen Court determined that an employer can prohibit an employee from participating in certain conduct, such a possessing a firearm, “in an attempt to regulate the workplace environment to promote productivity, security and similar lawful business objectives.”

A similar issue can arise for employers when employees carry concealed weapons pursuant to a state weapons license. Although carrying the weapon may be legal, the risk to an employer’s liability is staggering. As the Center to Prevent Handgun Violence Legal Action Project explains in its publication, “Guns & Business Don’t Mix, a Guide to Keeping Your Business Gun-Free,” there are several instances in which easy access to a weapon was a factor in workplace violence. A disgruntled employee will not have time to “cool-off” if he has a weapon in his locker at work or in his vehicle parked in his employer’s lot. Guns & Business Don’t Mix, A Guide To Keeping Your Business Gun-Free, at p. 15-16.

With this in mind, an employer must come to the sound business conclusion to encourage workplace safety and prohibit the possession of firearms and weapons on company property. This can be accomplished by posting and enforcing a zero-tolerance anti-violence policy, such as the one used by AOL in the Hansen case. Such a policy provides no need for subjective analysis. If an employee possesses a firearm or dangerous weapon at work or anywhere on employer property, the employee will be disciplined and possibly terminated. Such a policy may help divert violence in the workplace and at the same time protect the employer business from unnecessary liability.