New England Biz Law Update
While laws regulating guns in the workplace are common elsewhere in the United States, they are also becoming a challenge for New England employers, particularly those with multi-state operations.
The new workplace gun laws in Maine and Wisconsin are illustrative of the challenges these laws can pose — and may be a harbinger of workplace gun bills to come. And some other New England states may not be far behind. For example, New Hampshire is considering adopting a new law on the issue.
Thus, employers should monitor these laws and develop compliant policies and procedures pertaining to guns in their workplaces.
Maine’s workplace gun law
Under Maine’s new gun law, an employer “may not prohibit an employee who has a valid permit to carry a concealed firearm … from keeping a firearm in the employee’s vehicle as long as the vehicle is locked and the firearm is not visible.”
If that results in injury or death, such as by the theft of a gun from a vehicle in the parking lot and its subsequent use, then the employer will be immune from civil liability “unless the employer or an agent of the employer intentionally solicited or procured the other person’s injurious actions.”
Unfortunately, the Maine law does not specify whether employers have a duty to ensure that their employees’ guns are, in fact, covered by a valid permit, kept in a locked vehicle and stored out of sight. That raises the possibility that the statute’s immunity provision may not apply if the employer failed to exercise some reasonable (although unspecified) level of care.
Accordingly, Maine employers might consider requiring employees who wish to keep guns in their cars to notify the employer, to provide a copy of the valid gun permit, and to park in a designated, monitored area of the parking lot. Restrictions on access to vehicles in this area also might be appropriate.
The statute states that it does not affect any of the provisions of the Maine Workers’ Compensation Act. Thus, injury resulting from use of a gun brought to work pursuant to this law may be treated as a workplace injury under the act. This provides Maine employers with yet another incentive to develop appropriate safeguards in connection with the new gun law.
Significantly, the Maine law does not restrict an employer’s right to ban weapons in the workplace itself, nor does it contain a penalty for employees who store unlicensed guns in their vehicles, fail to lock their vehicles, and/or leave their guns in plain view.
Employers must develop policies concerning discipline and discharge for such offenses, and the lawful extent of these policies will ultimately be determined by the courts as disputes over them arise.
New Hampshire’s HB 334
New Hampshire’s proposed law, House Bill 334, would prevent all public and private entities in New Hampshire from banning the possession of firearms (or knives) on any property owned in whole or in part by the state, unless the ban were expressly allowed by statute.
As such, HB 334 would prevent New Hampshire’s public colleges and universities, as well as facilities such as Verizon Wireless Arena, Northeast Delta Dental Stadium (formerly Fisher Cats Ballpark), and New Hampshire Hospital, from banning employees, patrons and visitors from carrying guns on the premises.
New Hampshire’s House of Representatives approved HB 334 and sent it to the Senate. However, on Jan. 26, after a lengthy and heated debate, the Senate Judiciary Committee voted to send the bill to “interim study,” where it is expected eventually to be removed from consideration.
Until such time, though, passage of HB 334 will remain a possibility for which covered employers should be prepared.
Wisconsin’s workplace gun law
Wisconsin’s new gun law goes much further, and a bill modeled after it could present a worst-case scenario for New England employers.
Under the new law, employees may carry licensed concealed weapons in the workplace unless specifically prohibited by the employer. But the risks and burdens to the employer of imposing such a prohibition are significant.
If a Wisconsin employer prohibits employees, patrons and visitors from carrying guns on the premises, then the employer loses immunity from any resulting injury or death, as the new law immunizes only those employers that allow guns on the premises.
The reasoning for this counterintuitive immunity arrangement appears to be this: If the employer prevented the victim from carrying his own gun for personal protection, and the victim was shot by a perpetrator who succeeded in skirting the employer’s prohibition on guns, then the employer should have potential liability for enabling that to happen.
Unfortunately, the Wisconsin law is silent as to the employer’s duty of care to the gun-less victim in such a scenario, thereby compounding the risk of liability to the employer.
This immunity arrangement poses a difficult dilemma for Wisconsin employers. If the employer prohibits concealed weapons in the workplace, the possibility of workplace violence may be reduced, but at the cost of the employer losing immunity from liability in the event of a gun-related injury or death.
Conversely, if the employer allows concealed weapons on the premises, its immunity from liability will be preserved, but the likelihood that a violent incident will occur may increase.
A Wisconsin employer that prohibits guns on the premises must post signs (at least five inches by seven inches in size) that (i) state that concealed or open firearms are prohibited in the building and/or on the premises, and (ii) specify the area or areas to which the prohibition applies.
Such signs must be placed “in a prominent place near all of the entrances to the part of the building to which the restriction applies and [where] any individual entering the building can be reasonably expected to see the sign.”
As noted, however, that does not protect the employer against liability in the event that an individual violates the prohibition and causes a gun-related injury or death.
The Wisconsin law even extends to the employer’s parking lots and into employee vehicles used off-site for business purposes.
In that regard, the law states that an employer “may not prohibit an employee … from storing a weapon, a particular type of weapon, or ammunition in the employee’s own motor vehicle, regardless of whether the motor vehicle is used in the course of employment or whether the motor vehicle is driven or parked on property used by the employer.”
Thus, employees in Wisconsin may store weapons in their vehicles at all times—even while making deliveries, driving clients to the airport, or performing any other work-related functions.
Recommendations for employers
Employers, particularly those with multi-state operations, should work with counsel to determine if they are affected by the new Maine law, and multi-state employers should consider whether they are impacted by the Wisconsin law or by the workplace gun laws of any other state.
At least 15 other states (Alaska, Arizona, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Minnesota, Mississippi, North Dakota, Oklahoma, Texas and Utah) have laws permitting guns on employer property. While those laws mainly concern guns in employee vehicles parked on the employer’s property, each law has its own specific requirements and must be reviewed carefully.
For instance, while most Indiana employees may keep guns in the vehicles that they drive to work, their employers may not ask them if they own or transport guns, or require employees storing firearms in their vehicles to park off-site.
The new Maine and Wisconsin statutes, as well as New Hampshire’s HB 334, do not include such restrictions.
Further, some states’ workplace gun laws, including those of Arizona, Indiana and Kansas, do not include employer immunity provisions, requiring heightened consideration of the policies, practices and measures that employers should implement to prevent a workplace incident.
As these new bills and statutes are becoming more common, employers should keep a careful watch on these issues, particularly as employers cross state lines, to ensure compliance with all applicable laws.
