Guns_in_the_Workplace

Guns_in_the_Workplace

• 1.
  Guns in theWorkplace Chris Wangsgard April 9, 2013 Salt Lake City 25th ANNUAL EMPLOYMENT LAW SEMINAR parsonsbehle.com
• 2.
  a) Each employer– 1. 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; 2. Shall comply with occupational safety and health standards promulgated under this Act. OSHA General Duty Clause 2
• 3.
  3 Sounds like youhave to keep guns out of your workplace – right?
• 4.
  The Oklahoma legislaturepassed a statute which made it a crime for an employer to prohibit employees from storing firearms in locked vehicles on company property. A group of businesses sued to enjoin enforcement, contending that the Guns at Work statute conflicted with, and was pre-empted by, the OSHA statute which they contended required them to keep guns out of their workplaces. The Oklahoma Guns at Work Lawsuit 4
• 5.
  The District Courtagreed with the employers and prohibited Oklahoma from enforcing the “Guns at Work” statute. The Oklahoma Guns at Work Lawsuit 5
• 6.
  Oklahoma appealed. The TenthCircuit reversed the District Court. The Tenth Circuit dug deeply into the OSHA statute and the general duty clause and ruled that neither required employers to keep guns out of their workplaces. The Oklahoma Guns at Work Lawsuit 6
• 7.
   OSHA hasnever issued any standard regarding firearms – in fact in 2006 OSHA expressly declined a request to promulgate a standard banning firearms from the workplace (OSHA Standards Interpretation Letter, Sept. 13, 2006 available at 2006 WL 4093048) Key Points 7
• 8.
   Firearms arenot a “recognized hazard” covered by the general duty clause; thus the clause does not require employers to ban them from the workplace  OSHA does not conflict with, and does not preempt, the Guns at Work statute Key Points 8
• 9.
  The Tenth Circuitdealt with that:  OSHA has not promulgated any mandatory standard for workplace violence  OSHA has issued voluntary recommendations for: – Healthcare and social services workers and – Late-night retail establishments But Aren’t We Required to Prevent Workplace Violence? 9
• 10.
  34A-2-105 Exclusive Remedy …rightto recover compensation pursuant to this chapter for injuries sustained by an employee…is the exclusive remedy against the employer…is in place of any and all other civil liability whatsoever…on account of any accident or injury or death, in any way contracted, sustained, aggravated, or incurred by the employee in the course of or because of or arising out of the employee’s employment, and an action at law may not be maintained against an employer… But What if Someone Brings a Gun to Work and Injures Another Employee? 10
• 11.
   You dohave a common law duty to these people, but it’s not absolute. It’s a duty to use reasonable care to prevent foreseeable injuries  It’s the same duty a grocery store has to its customers, so in a lawsuit, the issues will be the gun equivalent of: 1. “did you know lettuce or water was on the floor?” or But What if an Employee Brings a Gun to Work and Injures a Customer or Client? 11
• 12.
  2. “had thewater or lettuce been on the floor long enough that you should have known it was there?” and 3. “was it reasonably foreseeable that the lettuce or water could injure someone?” and 4. “were you negligent because you failed to remove the lettuce or water?” and 5. “was your negligence if any, the direct and proximate cause of the injury?” But What if an Employee Brings a Gun to Work and Injures a Customer or Client? 12
• 13.
   It wouldlook like Vaughn v. Granite City Steel (an Illinois case)  George Vaughn’s body was found lying next to his automobile in a parking lot provided by Granite Steel. He had been shot twice. There were no witnesses and no suspect was ever arrested.  Mr. Vaughn’s heirs sued Granite Steel, alleging that it had a duty to protect Mr. Vaughn from being shot  A jury awarded the Vaughn family $450,000 So What Would the Gun Equivalent of a Lettuce Leaf on the Store Floor Look Like? 13
• 14.
   On appealthe verdict was affirmed because: – Mr. Vaughn was in the parking lot to do business with Granite Steel – Granite Steel had a contract with a guard force in which the guard force agreed it was responsible to protect the people and vehicles using the parking lot Vaughn v. Granite City Steel 14
• 15.
  – Granite Steel’spolicy manual stated the company’s plant protection department was expected: “To maintain the peace and protect all employees and their property while they are on the Company’s premises. To deny access to all persons not specifically authorized or properly invited. To provide a readily available trained and responsive force to function in emergencies.” Vaughn v. Granite City Steel 15
• 16.
  – Although noone had been shot in the parking lot before Mr. Vaughn’s murder, there had been 20 incidents of theft or vandalism in the parking lot in the prior two years Vaughn v. Granite City Steel 16
• 17.
   Utah isone of 16 states with what has come to be called a “Bring Your Gun to Work Law”  Section 34-45-103 Utah Code states that no employer, property owner, landlord, business entity or other legal entity may establish, maintain or enforce any policy or rule that has the effect of prohibiting an individual from transporting or storing a firearm in a motor vehicle on any property designated for motor vehicle parking What Does Utah Law Say About Guns in the Workplace? 17
• 18.
   Utah Lawneither prohibits, nor expressly allows excluding guns from business premises other than parking lots What Does Utah Law Say About Whether Business Owners Can Exclude Guns From Their Offices, Stores and Workplaces? 18
• 19.
   Nothing. TheConstitution limits government power. It does not impose duties between private individuals or companies. What Does the Second Amendment Require or Forbid Your Company to Do Regarding Your Employees? 19
• 20.
  Company No WeaponsPolicy Company prohibits all persons who enter any property owned or leased by the company from carrying on their person or in their vehicle a handgun, firearm, or prohibited weapon of any kind onto any company property regardless of whether the person is licensed to carry a handgun or not. What Does Utah Law Say About a Policy Like This? 20
• 21.
  This policy appliesto all employees, contract and temporary employees, visitors on company property and clients and contractors on company property, whether or not they are licensed to carry a concealed handgun. The only exceptions to this policy are police officers, security guards or other persons who have been given written consent by company to carry a weapon on the property. What Does Utah Law Say About a Policy Like This? 21
• 22.
  All company employeesare also prohibited from carrying a weapon while in the course and scope of performing their job for the company, whether or not they are on company property at the time and whether or not they are licensed to carry a handgun. This policy also prohibits weapons at any company sponsored function such as parties or picnics. What Does Utah Law Say About a Policy Like This? 22
• 23.
   Chris Wangsgard direct:(801) 536.6782 email: [email protected] Thank You 23