Gun Fight at the OK Parking Lot
by Terry Maddry
September 11, 2008
Security leaders in states that now require an employer to not prohibit employees from bringing a gun to work, stored in their parked vehicle on company property, find themselves caught in a shifting landscape where a gun-free workplace has given way to compromises, conflicts and confusion.
Eleven states have some form of gun laws that now apply to the workplace. The states are: , , , , , . See the state-by-state chart elsewhere in this News & Analysis article.
Numerous security leaders surveyed by Security Magazine have some concerns over such state legislation.
Peter J. Brennan, director, security operations & investigation for Dow Jones & Company, believes that employees should not be allowed to bring a gun to work if the employer has an existing “gun free” policy. And, when asked if employers should revisit or create a “guns in the workplace” policy, Brennan said, “No, unless forced to by a lawsuit or court decision.”
Acknowledging that the topic of gun controls and rights carries significant emotional baggage, Branch Walton, a retired Secret Service agent and former director of corporate security for Cummins Engine Co., takes a balanced view. “There are valid arguments from both sides. I understand and agree with points from both sides but after careful examination of all arguments, my opinion is that each employer has the right to ban weapons from its property. I’ve made many presentations on workplace violence discussing cases where incidents occurred because of the easy access to firearms.”
Evaluating the Dangers
“Ultimately, the question is: What poses the greatest potential danger? I believe it is allowing easy weapon access to disgruntled employees, vendors, visitors and strangers on the property.”
Sean Ahrens, project manager, security consulting and design services at Schirmer Engineering, agreed. “A concealed weapon provides an opportunity for a person’s irrational anger to lead towards a criminal act. By eliminating the immediate opportunity, there’s the possibility the person contemplating an act of violence may release in other non-violent ways.”
There is commonality among the enacted laws across most of the states. All but require the worker to have a valid concealed weapons permit issued in the state where he or she works. All specify that workers’ guns must be stored in a vehicle, even if the garage or parking lot is on the employer’s property. There are common exemptions: in schools, jails, prisons and at nuclear power plants.
Differences in Laws
In many cases, an employer can refuse a worker with a gun on private parking lot and garage property if the parking facility is secured, restricts public parking and provides vehicle searches that are uniform and frequent. Such higher security is also very costly. Still, in , employers may prohibit guns in the employers’ parking areas only if they offer a facility for the temporary storage of unloaded firearms or if there is an alternative parking lot within reasonable distance to the company lot.
There are other differences among state laws.
Some are minor while others are significant. law, for instance, permits restaurant workers to have a gun at work, even when the restaurant sells liquor, as well as concealed carry on state parks and “public transit” but not at certain public gatherings.
According to Brennan, who feels that companies should take a strong stand on property rights, also pointed out that the “States should be responsible for any damages or injuries caused as a result of an employee who was allowed by state law to carry a gun or store one on company property in a vehicle.”
Not all states with “guns in the workplace” laws have liability provisions. Six of the eleven states include in their legislation a liability waiver for employers but only specific to each state’s laws and regulations. The waiver does not cover federal laws and regulation as well as the federal Occupational Health and Safety Act of 1970 and its general duty clause, which directs employers to provide a place of employment free from recognized hazards that are causing or likely to cause death or serious physical harm.
Uniquely, the federal regulations were the tipping point in when a judge considered a recent case involving ConocoPhillips, which supported a “guns free” workplace policy. The judge in the case said that the federal OSHA’s general duty clause trumped the state law. His ruling is on appeal.
Some gun rights advocates point out that federal OSHA – through actions of some top agency officials -- has consistently declined to clearly establish that firearms in the workplace should fall under the general duty clause. The closest the federal agency came was workplace violence prevention guidelines for retail establishments with night time hours. OSHA officials now characterize the retail rules as recommendations and believe they do not fall under the general duty clause.
That may have changed a little in a recent federal OSHA ruling that pitted a small union of security officers and . The union petitioned OSHA to permit the officers to carry concealed weapons if they have a permit. The university objected. And OSHA ruled for , choosing safety over any crime fighting because of officer guns on the campus. The agency did not, however, invoke its general duty clause.
Confusion All Around
Confusion is not limited to corporations and their security leaders.
A four-member panel of state legislators has been tasked to review and recommend legislation to clarify that state’s many gun laws and the contradictions among them. A public gatherings provision of the “guns in the workplace” law prohibits concealed carry. The state considers sports events, political rallies, publicly-owned buildings and church events public gatherings. Some members of the panel want to allow church officials and attendees with valid concealed gun permits to carry guns onto church grounds. Other panel members want to relax the prohibition of issuing a valid concealed carry permit to certain convicted felons and people with certain misdemeanor convictions.
No doubt, following the recent U.S. Supreme Court affirmation that citizens – and not just militias -- have a right to own a gun, in a case specific to , , gun rights advocates have – in many states – taken more aggressive actions, often through lawsuits. In , for instance, gun advocates filed suit to allow people to carry a weapon in so-called non-secure areas of . City and airport officials stood their ground in viewing the entire airport as a “gun-free” zone.
And last month, U.S. District Court Judge Marvin Shoob refused to grant a preliminary injunction, which would have stopped from enforcing the airport gun ban. The lawsuit filed by GeorgiaCarry.org will continue through the courts. Some airports do allow people with guns on non-secure areas of their facilities. The Transportation Security Administration could set a no-guns rule and is considering such a move.
Mass Murder in Kentucky
In another gun rights twist, ’s law does not require a worker to have a concealed carry permit – any adult can bring his or her gun to work. Still, just months ago, a worker at the Henderson, Ky., Atlantis Plastics plant, angry with a supervisor who walked him out of the facility after an altercation over a cellular phone and not wearing safety goggles, went to his vehicle, grabbed a .45 caliber gun and extra ammunition, walked back into the plant and killed the supervisor and four other workers before taking his own life. Critics of the “guns in the workplace” laws contend that the shooter, upset at work, was too close to a weapon. Without a gun in his vehicle, the shooter may have driven off and cooled off.
In a further gun rights twist, in , there is a limited law allowing college students to carry a weapon on campus.
But it’s a different story when it comes to K-12 schools.
Guy Grace, manager, security and emergency planning with the Littleton (Colorado) Public School District, and a member of the Security Magazine advisory board, said, “Personally I am glad that only key trained persons are carrying firearms in our schools. However, out in the streets, I believe in carry conceal for all able persons who want to carry and are trained and competent. However, an employer’s property is generally not out in the streets. So I am for employers allowing or disallowing weapons (based on their policies). If a weapon is allowed, then that employee should have some serious training and the mental competency to carry it.”
Grace, an avid hunter, has one of the largest firearm collections in the area. “My collection consists of old western, World War II to modern military.” He urged security leaders to check their state gun laws on a regular basis, since there are ongoing changes.
Under concealed carry law, Grace observed, “A permittee who is employed or retained by contract by a school district as a school security officer may carry a concealed handgun onto the real property or into any improvement erected thereon, of a public elementary, middle, junior high or high school while the permittee is on duty.”
More generally, state “guns in the workplace” laws tend to have broader coverage impacting many types of businesses while affecting the employer’s control over private property. These laws are spreading.
Twelve states have considered or are now considering such gun rights laws.
They include: Alabama, Arizona, California, Indiana, Montana, New Hampshire, Pennsylvania, South Carolina, Tennessee, Utah, Virginia and Wisconsin.
Security leaders at numerous organizations facing this “guns in the workplace” trend continue to object to the laws or consideration of such laws, claiming that safety concerns, in many cases, outweigh an individual’s right to bear arms. They claim that the U.S. Supreme Court decision applied only to Washington, D.C.’s gun control laws and that the right to bear arms is not carte blanc for gun owners. They also are making a case that the owner of private property can make and enforce reasonable rules over access to it. And some are seeking cover under exemptions to existing legislation.
Walton urges enterprises and their security operations to have or establish a clear gun policy.
“All employers should develop such a policy. Whether it permits or doesn’t permit weapons in the workplace, a written policy must be created with all employees being advised of the policy and sign off that they have been advised of and understand it,” said Walton “The employer and all employees must have a clear understanding of all existing policies and procedures that have been developed for the safety of all.”
And policies that go against state “guns in the workplace” laws can create a dustup.
Businesses Seek Exemptions
In , for example, some enterprises have refused to permit worker guns in company parking lots and garages, claiming that they are exempt from the state law. The most visible fight involves the Walt Disney Co., and its Disney World operation. Long having a “gun free” workplace policy, Disney said the ban on worker guns in vehicles on Disney property would remain, no matter the state law. It said it was exempt because the law itself exempted organizations that have a valid permit to purchase, store and use explosives. Disney World holds a nightly fireworks show.
Universal , another giant resort, theme park and studio, claimed an exemption stating it has an ongoing work-study program involving high schoolers. And Georgia-Pacific, the owner and operator of a paper mill close to , stated that federal Homeland Security regulations, in which guns are prohibited at its type of facility, trumps the state law. The Florida Chamber of Commerce and the Florida Retail Federation both continue to oppose the state’s “guns in the workplace” law saying that it is a “direct attack” on their property rights.
Opposition to the gun rights law also has come from some in the security profession. ‘During the risk assessments and consultations I have provided for hundreds of businesses in the United States and many businesses in the State of Florida, I have rarely encountered a moderate or large size business or shopping center that does not prohibit employees, customers and other invitees from possessing firearms in the vicinity of the business,” said John Harris of The Harris Group, a firm specializing in premises liability consulting and litigation support.
In a recent sworn statement, Harris emphasized three points:
“Because the act prohibits a business from engaging in any acts that would enable the business to become aware of the existence of firearms in the vicinity of the business, and severely restricts the ability of the business to take action even when it becomes aware of a specific threat, it makes it impossible to effectively safeguard a business’ employees, customers and other business invitees from the risk of death or severe bodily injury resulting from the use of a firearm on the business’ premises.
“Since the hands of the business are tied with respect to guns in motor vehicles, the only method of effectively safeguarding employees, customers and other business invitees while on the business premises would be to search the persons entering the premises with either weapons detectors or by physical scanning. In a large business center or mall, this is not practicable due to the necessity of multiple points of entry. Moreover, such methods would drive away a significant number of customers because of the inconvenience, the aversion to imposition on personal privacy and the heightened perception of security risks associated with such extreme measures.
“Based upon my studies of security of business premises of different sizes and configurations and of authoritative literature and case studies of violent acts on business premises, it is my opinion that a person confronted with a threat of death or serious bodily injury would not have an opportunity to retrieve a firearm locked in or on a motor vehicle in sufficient time to serve as a defensive deterrent.”
More Changes to Come
The situation gets muddier.
In his ruling this summer, U.S. District Judge Robert Hinkle upheld a provision of the Florida law that allows employees holding a state-issued concealed weapons permit to keep a gun locked in their vehicle in the company’s parking lot. But Hinkle then upheld a request from retailers to prevent customers from locking firearms in their cars while shopping or visiting a private business.
At about the same time, four state senators formed a panel to consider expanding the “guns in the workplace” legislation to allow guns into churches. Currently churches are public gatherings, at which guns are not permitted. The panel also is considering loosening prohibitions concerning people convicted of certain felonies and misdemeanors.
W. Barry Nixon, executive director of the National Institute for Prevention of Workplace Violence, and a member of the Security Magazine advisory board, has advice for security leaders. “In states where ‘guns are permitted in the parking lot,’ employers should include in their policy that vehicles must be locked and are subject to inspection. Possessing a weapon in an unlocked vehicle will be grounds for immediate termination. The policy should also include that employees choosing to carry their weapon onto company property must register their permit to carry the weapon with the company and sign a release agreeing to be searched whenever they enter the company’s facilities.”
In states that do not have “guns in the work place” laws, he said, “A policy should state that the company is a ‘gun free’ work environment and that possession of a gun and any other weapons may be grounds for termination. Signs to this effect should be posted at the entrance to parking lots and buildings. Also specific procedures should be put in place to ensure that weapons are not brought into company buildings.”