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Legal Updates

Laws Regulating Guns In The Workplace Are Coming To New England

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 this 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 this 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.  This 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 (“HB 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 state Senate.  However, on January 26, 2012, after a lengthy and heated debate, the Senate Judiciary Committee voted to send the bill to “interim study,” where it is expected to eventually 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 this 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 this to happen.  Unfortunately, the Wisconsin law is silent as to the employer’s duty of care to the gunless 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, then this may reduce the possibility of workplace violence, 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, then this will preserve its immunity from liability, but may increase the likelihood that a violent incident will occur.

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, this does not protect the employer against liability in the event that an individual violates this 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 this 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 affected by the Wisconsin law or by the workplace gun laws of any other state.  In this regard, 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 these 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.

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The Firm gratefully acknowledges the efforts of Brian D. Carlson of Schwartz Hannum PC for his help in preparing this article.  This article previously appeared in the March 2012 edition of New England In-House (NEIH).  The Firm is also grateful to NEIH for its support in publishing this article.