Guns on company property
This story poses a challenge: What is your company’s policy, if one exists at all, on allowing employees with concealed-weapons permits to keep guns in their cars in company parking lots?
A little background:
Several large Florida employers are trying to circumvent a law allowing workers to keep guns in their parked cars, The Wall Street Journal reported last week. In June, a U.S. Supreme Court ruling supported the right to keep handguns at home.
The bigger story: Employers across the country now confront new dilemmas about how and when to allow weapons on company property, as they attempt to balance the Second Amendment rights of their employees (to keep and bear arms) with federal laws requiring them to provide a safe workplace.
Florida is one of at least nine states to pass legislation that allows employees with proper permits to bring guns to workplace parking lots, according to The Journal.
The guns at work debate goes back to 2002 when Weyerhaeuser Co. used search dogs to find drugs in parked vehicles at its Valliant, Okla., paper mill, according to the article. The search also found 12 cars containing guns in violation of a company policy prohibiting firearms. Several employees were fired. Gun-rights advocates got fired-up, pressing support for laws expressly permitting licensed owners to keep their weapons in their cars while at work.
Two years later, Oklahoma lawmakers barred employers from prohibiting "any person, except a convicted felon," from bringing a gun to work. Last year, a federal judge struck down the law, saying that it violated federal guidelines put out by OSHA. The state is appealing.
WHAT FEDERAL GUIDELINES?
Do a search for “guns” on www.osha.gov and you mostly get referred to compressed air guns, handheld nail/stapling guns, explosives and blasting agents, and such.
But there is an interesting letter from Richard Fairfax, OSHA’s director of enforcement programs, responding to a 2005 letter addressed to Labor Secretary Elaine Chao. The letter writer petitioned Chao to establish a nationally binding policy that would ban guns from American workplaces.
Fairfax replied on September 13, 2006, stating in part: “While generally deferring to other federal, state, and local law-enforcement agencies to regulate workplace homicides, OSHA did develop an enforcement policy with regard to workplace violence as early as 1992 in a letter of interpretation that stated:
“‘In a workplace where the risk of violence and serious personal injury are significant enough to be ‘recognized hazards,’ the general duty clause [specified by Section 5(a)(1) of the Occupational Safety and Health Act (OSH Act)] would require the employer to take feasible steps to minimize those risks. Failure of an employer to implement feasible means of abatement of these hazards could result in the finding of an OSH Act violation.’”
Fairfax continued, “This policy statement permits the Agency to reinforce its guidance and outreach efforts with appropriate enforcement action.”
Fairfax’s statement itself seems open to interpretation. OSHA has reassured politicians and business groups many times that its guidelines are advisory and do not create new employer obligations.
Still, OSHA workplace violence guidelines are not specific on the question of allowing or disallowing employees with permits to carry concealed weapons to bring them to work and leave them in their parked cars.
In the 1996, OSHA issued “Guidelines for Workplace Violence Prevention Programs for Night Retail Establishments” and in 1992 issued the “letter of interpretation” that Fairfax quoted. That letter went on to state: “…the occurrence of acts of violence which are not ‘recognized’ as characteristic of employment and represent random antisocial acts which may occur anywhere would not subject the employer to a citation for a violation of the OSH Act.
”Whether or not an employer can be cited for a violation of Section 5(a)(1) is entirely dependent upon the specific facts, which will be unique in each situation. The recognizability and foreseeability of the hazard, and the feasibility of the means of abatement are some of the critical factors to be considered.”
OSHA seems to be focusing the possible application of its General Duty Clause on workplaces such as 7-11s and other retail stores operating at night or 24/7, where the risk of robbery runs high. The agency does not seem ready to apply the General Duty Clause for unpredictable “random antisocial acts,” such as an irate employee fetching his gun from his car’s glove compartment after an argument with a supervisor and marching back to the super’s office to wreak revenge.
In light of such nebulous assumptions, you can see why The Wall Street Journal describes employers as currently scratching their heads and scrambling to figure out how and when to allow guns on company property.
Critics claim the new law increases the risk of workplace violence by making a gun readily available to a raging or unstable worker, according to the article. Plus, critics say, the guns-at-work laws provide no offsetting safety benefits because a law-abiding employee wouldn't have time, in the event of an assault in the parking lot, to access a gun locked inside a car.
So, what’s your policy?
Dave Johnson, ISHN Editorjohnsond@bnpmedia.com