Lessons from a Shooting Close to Home

Delaware experienced a tragedy yesterday at the New Castle County courthouse. As reported by ABCNews.com, a man embroiled in a custody dispute entered the courthouse lobby this morning shortly after 8 a.m. and opened fire, fatally wounding two women and injuring two Capital Police officers. The shooter exchanged gunfire with the officers and died at the scene.

The courthouse is just a few blocks away, on the same street as our firm’s offices. Reports of the story spread quickly but were not confirmed until this afternoon. The courthouse was evacuated and will be closed tomorrow.

Gun violence certainly has been on the minds of many of us in the past several months. The dialogue has even extended to the topic of guns in the workplace. For example, despite the devastating events of the recent past, some state legislatures are considering legislation that would permit employees to keep loaded firearms in their vehicles, even in the employer’s parking lot.

According to this post at Fox Rothschild’s Employment Discrimination Report, 20 states have adopted a “parking-lot” law. Al Vreeling offers his thoughts on Alabama’s recently proposed law in Guns Do Not Belong In the Workplace, at HR Hero.

Oklahoma’s “open-carry” law takes a different approach and, as I understand it, provides an exception for employers, preserving their right to manage the workplace with the policies of their choosing. For those who are interested, our friends at McAffee Taft are hosting a free webinar, Guns or No Guns–Weighing Workplace Weapons Policies, on this issue on February 21.

Guns In the Workplace: Implications of Open-Carry Laws

Prof. Stephen Bainbridge makes a great argument against state laws that permit employees to store guns in their cars. In his post, Guns vs. At-Will Employment, Prof. Bainbridge discusses a recent decision by the Kentucky Supreme Court interpreting that state’s gun laws. In its opinion, the Court found that an employee who was fired for having a handgun in his car (for which he had proper license), could bring a wrongful-termination suit against his employer, the University of Kentucky. Prof. Bainbridge concludes that these state laws constitute a significant and problematic exception to the employment-at-will doctrine.

On McAfee & Taft’s EmployerLinc blog, Charlie Plumb recently wrote about a new law in Oklahoma that raises similar issues. “Concealed-carry laws” also took effect last year in Wisconsin and Texas.

Guns At Work: Impact Update

Roughly six months have gone by since guns-at-work laws were passed in Georgia and Florida.  I posted previously about the legislative initiatives in both states.  (See Georgia Takes One Step Backwards in the Fight Against Workplace Violence; Florida Law Permits Guns at Work; Delaware Initiates an Anti-Workplace Violence Training Program).  John Phillips, at The Word on Employment Law, has done an excellent job following up on similar efforts in other states.handgun   He posted yesterday about the direct impact that these guns-at-work laws can have–for employers, its armed, and unarmed employees, and its clients and customers.  In the post, John writes about a Starbucks employee who was shut in the leg while working.  The employee was not only the victim in this case–he was also the shooter.  He shot himself while working with a gun he’d brought to work.  See John’s post for more details and a discussion of the potentially far ranging implications that these new laws can have for employers and employees.

July 29: Guns in the Workplace Webinar

Lou Michels and Halima Horton of McGuire Woods will be presenting a free webinar about state gun laws that prohibit employers from outlawing firearms on company property–including employee-owned guns kept in personal vehicles.  This is a topic we’ve covered here a number of times and are likely to hear more about as incidents of workplace violence continue to occur across the country.  I’d encourage you to take advantage of this free, 1-hour program.  It is scheduled for July 29th at 12:30 EDT and you can register online.

For previous posts on Guns in the Workplace and Workplace Violence, see:

Georgia Takes One Step Backwards in the Fight Against Workplace Violence

Employee Shooting Results in Unusual Liability for Workplace Violence

Florida Law Permits Guns at Work; Delaware Initiates an Anti-Workplace Violence Training Program

Local Violence & Workplace Violence: Keeping It Safe

Georgia Takes One Step Backwards in the Fight Against Workplace Violence

Workplace violence is a modern-day reality.  Conscientious employers take every precaution possible to prevent on-the-job injuries as well as to plan in advance for the unpreventable.  The new Georgia law, known as the “Parking Lot Law,”  makes it much more difficult to be a conscientious employer.


Exemptions for Property Owners

Georgia Governor Sonny Perdue signed the “Business Security and Employee Privacy Act” on May 14. This Act expands the areas in which holders of firearm licenses may legally carry concealed weapons – and places some limitations on employers’ rights.  Similar to the recently passed Florida law, the Act prohibits employers from banning concealed weapons on company property.  It also puts significant limits on an employer’s right to search vehicles parked on site.

There is one major difference between the Parking Lot Law and the Florida law, the Preservation & Protection of the Right to Keep & Bear Arms in Motor Vehicle Act of 2008, which was signed into effect on April 14, 2008.  The Georgia law does not apply to employer that own the employee parking lot property.  It preserves the rights of the employer as a property owner, to restrict access by prohibiting concealed weapons.  The Florida law is broader and applies even to businesses that own the property. 

Apparently Not-So-Obvious Exceptions

Employers who do not own the property where employees are permitted to park is given some protection under the law. Some of the exceptions seem so fundamentally necessary that it’s ironic to have them be specially carved out of the law. 

For example, one of the most significant is a discipline-based exception.  If an employee is subject to disciplinary action, employers may revoke his or her right to bring concealed weapons onto the property.  This certainly sounds like an important carve out. 

Yet, how effective can it really be?  You would expect that an employee who is already subject to discipline and then chooses to violate another policy by bringing a gun to work would be the person most likely to carry out an act of violence in the workplace.  At that point, what difference does a policy violation make?

Another, seemingly obvious exception is company-owned vehicles.  In other words, the employer may prohibit employees from carrying a concealed weapon while driving a company-owned vehicle.  Really, is it necessary to explicitly exempt vehicles owned by the employer? 

When Can an Employer Search the Vehicle?

The law does not permit employers to search employees’ vehicles even if parked at the employer’s place of business.  There is one very important exception to this prohibition. The prohibition on searches is lifted if there is reason to believe that the employer might prevent an immediate threat to the health, life, or safety of others. 

The Act also permits employers to search an employee’s locked vehicle in the case of theft–sort of.   There are limits on this exception that make its application very limited.  First, the theft has to be detected by a private security officer.  Obviously, this means that most small businesses cannot utilize this exception.  Second, the employee must consent to the search.  Sort of defeats the purpose, doesn’t it?  If the employee consents, is the exception even needed at all? 

Employer Liability

The law includes limits on potential employer liability from injuries arising from weapons brought to work by employees.  Although the intention of the legislature is a valued one, it does not seem to reconcile with the purpose of banning guns at work. 

By prohibiting employees from carrying concealed weapons at work, employers don’t just want to limit their legal exposure.  I feel confident saying that the purpose of such a policy is to prevent violence at work.  The safety of employees, customers, and other invited guests is the object of this type of policy.

Limiting liability on paper will not prevent the violence from occurring in the first place.  Nor will it effectively prevent employers from being named in a resulting lawsuit.  Despite the fact that they might not be on the hook for damages, they will inevitably be forced to incur the expense of litigation. 

With all due respect to the Georgia legislature, it seems that this bill takes several steps backwards in the necessary effort by employers to protect the safety of their workforce.

See also our prior post on the Florida “Guns at Work” bill, Florida Law Permits Guns at Work; Delaware Initiates an Anti-Workplace Violence Training Program

Employee Shooting Results in Unusual Liability for Workplace Violence

A preventative workplace violence strategy can be an important best practice.  As we’ve previously discussed in a post about what employers can learn when violence hits close to home, employers also should have a real strategy for the “during” and “after” of a workplace violence incident.  One common prevention tool popular among employers today is the Employee-Assistance Provider (EAP).  Considered by many to be an effective way to intervene before little troubles become big problems, EAPs have enjoyed increased popularity over the past several years.

alcohol and violence

The recent settlement by an EAP in a case involving a fatal workplace shooting may shine new light on just how much influence this type of service may have over your employees and how much risk you incur if you don’t set clear policies with your EAP. It should put employers on high alert about your EAPs policies on how they address and communicate referrals where violence is an issue.

The shooting in 2003 killed six employees in a Lockheed Martin plant in Meridian, Mississippi.  The suit was filed by Erica Willis, the daughter of one of the six victims.  The shooter worked at the Lockheed facility for 20 years before the shooting, in which he also took his own life. Willis filed suit not against Lockheed, the shooter’s employer, but against Lockheed’s EAP, NEAS, Inc.

The suit alleged that some of the employees who worked alongside the shooter had been complaining for months that their coworker had threatened them and used racial slurs in the presence of Black employees.  And, a year before the shootings, Lockheed told him that his continued employment would be contingent on completing a counseling program through NEAS. 

NEAS referred him to an affiliate, which cleared him to return to work after just three counseling sessions.  Later that year, he was attending a mandatory diversity training program when he walked out of the class without explanation.  He returned with a shotgun and a rifle. 

The suit claims that NEAS, Inc. (the settling party), failed to provide its affiliate with a full background for the referral.  Instead, NEAS is alleged to have stated only that the employee had “boundary/communication issues.”

This case raises several interesting issues relating to violence at work. 

For one, the recent legislation signed into law in Florida, takes on new meaning in this context.  The State of Florida has a new law that prohibits employers from banning guns from their property.  Cautious employers have clear policies on the presence of weapons on company property, including employees’ cars in the company’s parking lot.  The Florida law that makes such a policy unlawful seems to be an invitation for disaster. 

It is also an unusual example in that the employer did not get sued–the EAP and its affiliates were the named defendants.  (The affiliate was dismissed early in the case).  Usually we counsel clients about workplace violence prevention in the context of suits for negligent hiring, retention, and training, property liability, and even the General Duty Clause of OSHA.  But this story evidences a whole new basis for liability if the employer fails to communicate how its EAP addresses employees with a proclivity for violence.  It’s not so far-fetched to imagine the EAP disclaiming all responsibility on the ground that it was simply following orders and pointing the proverbial finger at the employer who hired it.

And yes, it can happen to you.

Perhaps the single biggest error employers make when it comes to workplace violence is the mistaken belief that it “can’t happen to them.”  Workplace violence is, and has been, in every type of workplace in cities and states across the country.  Fatal and non-fatal incidents occur everywhere and can occur at any time.  On average, 1.7 million workers are injured each year, and more than 800 die as a result of workplace violence.  There are no second chances when it comes to employee safety, so take the initiative to implement preventative practices before it’s too late.

Florida Law Permits Guns at Work; Delaware Initiates an Anti-Workplace Violence Training Program

The new Florida Gun Law would prevent employers from banning workers from bringing guns to work. To describe the legislation a “controversial” would be a gross understatement.

Workplace Violence

Advocates say the intent of the bill is to ensure that citizens’ constitutional right to keep and bear legally owned firearms within their vehicles. Opponents have raised concerns about the increased incidents of workplace violence (and the liability that goes with it). They also argue that they should have the right to set rules on their property. Some workplaces are exempt from the law, such as nuclear power plants, prisons, schools, and homeland security businesses.

The law puts Florida employers in a seemingly unwinnable situation. On one hand, all employers have an obligation to protect the health and safety of their workers under the Occupational Safety and Health Act (OSHA). Yet, they cannot prevent or eliminate a serious safety risk by banning guns in the workplace.

A study by the American Journal of Public Health found that workplaces that allow guns on the premises are roughly five times more likely to have a homicide than those who are not. It is easy to imagine how an angry employee would be more likely to commit an act of violence in the workplace if he simply had to go out to his car to get a gun. So it’s understandable that many Florida employers are staunchly opposed to the bill.

Although the law passed through both houses of the state legislature and was signed by the Governor, it will likely face a difficult challenge in court. Oklahoma passed a similar bill, which was promptly injoined by a federal judge on the ground that it violated federal OSHA laws.

And, while Florida businesses are concerned about the risks that the law may cause, Delaware employers are using the resources offered by the State to prevent workplace violence.

Delaware state government has reached out to Delaware employers to provide guidance in preventing and addressing violence in the workplace. The Delaware Corporate Citizen Initiative, in collaboration with the National Workplace Resource Center on Domestic Violence, published a Model Policy on Domestic Violence in the Workplace. The Model Policy covers all aspects of how domestic violence can impact businesses–from the employee-aggressor whose intimidation tactics spill over into the workplace, to the employee-target who experiences peformance problems as a result of domestic violence.

The Delaware Capital Police have also begun a recent community initiative relating to workplace violence. The Delaware Capitol Police Department is a statewide law enforcement agency responsible for the security of all three banches of state government throughout the state. The Department’s central responsibility is the safety and security of the various state buildings, including the Governor’s Mansion, the Caravel Building, Legislative Hall, the state courts, and more than 80 other buildings in all three counties.

Responding to the current trend in policing, the Delaware Division of Capitol Police has undertaken a community-policing initiative. While the division does not service a traditional community, it does have a similar responsibility to State employees. The Division created a training program on “Violence in the Workplace.” The seminar provides state government employees with an explanation as to what workplace violence is, statistics, reporting, and what to expect of workplace managers and members of law enforcement when these actions are carried out by employees, co-workers, managers, or customers. It also incorporates the Delaware Workplace Violence Policy, giving emloyees a detailed explanation of the purposes of the policy and how it is intended to be applied.

Delaware businesses don’t look far for examples of local workplace violence. I wrote an article on workplace violence for the Delaware Employment Law Letter following last year’s shooting on the campus of Delaware State University. The article, titled Lessons Learned from Local Tragedies, is available at HR Hero.com.