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Do employers have a duty to keep guns out of the workplace? Do they have the power to prohibit guns on their premises? Are they exposed to liability if they don't keep guns out of their workplaces? What has the Utah legislature said about these issues? Chris discusses these questions.

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  1. 1. Guns in the WorkplaceChris WangsgardApril 9, 2013Salt Lake City25th ANNUAL EMPLOYMENT LAW
  2. 2. a) Each employer –1. Shall furnish to each of his employeesemployment and a place of employmentwhich are free from recognized hazards thatare causing or are likely to cause death orserious physical harm to his employees;2. Shall comply with occupational safety andhealth standards promulgated under this Act.OSHA General Duty Clause2
  3. 3. 3Sounds like you have to keep guns out ofyour workplace – right?
  4. 4. The Oklahoma legislature passed a statute whichmade it a crime for an employer to prohibitemployees from storing firearms in locked vehicleson company property.A group of businesses sued to enjoin enforcement,contending that the Guns at Work statuteconflicted with, and was pre-empted by, the OSHAstatute which they contended required them tokeep guns out of their workplaces.The Oklahoma Guns at Work Lawsuit4
  5. 5. The District Court agreed with the employers andprohibited Oklahoma from enforcing the “Guns atWork” statute.The Oklahoma Guns at Work Lawsuit5
  6. 6. Oklahoma appealed.The Tenth Circuit reversed the District Court.The Tenth Circuit dug deeply into the OSHAstatute and the general duty clause and ruledthat neither required employers to keep gunsout of their workplaces.The Oklahoma Guns at Work Lawsuit6
  7. 7.  OSHA has never issued any standardregarding firearms – in fact in 2006 OSHAexpressly declined a request topromulgate a standard banning firearmsfrom the workplace(OSHA Standards Interpretation Letter, Sept. 13,2006 available at 2006 WL 4093048)Key Points7
  8. 8.  Firearms are not a “recognized hazard”covered by the general duty clause; thusthe clause does not require employers toban them from the workplace OSHA does not conflict with, and does notpreempt, the Guns at Work statuteKey Points8
  9. 9. The Tenth Circuit dealt with that: OSHA has not promulgated anymandatory standard for workplaceviolence OSHA has issued voluntaryrecommendations for:– Healthcare and social services workers and– Late-night retail establishmentsBut Aren’t We Required toPrevent Workplace Violence?9
  10. 10. 34A-2-105 Exclusive Remedy…right to recover compensation pursuant to thischapter for injuries sustained by an employee…isthe exclusive remedy against the employer…is inplace of any and all other civil liabilitywhatsoever…on account of any accident or injury ordeath, in any way contracted, sustained,aggravated, or incurred by the employee in thecourse of or because of or arising out of theemployee’s employment, and an action at law maynot be maintained against an employer…But What if Someone Brings a Gun toWork and Injures Another Employee?10
  11. 11.  You do have a common law duty to thesepeople, but it’s not absolute. It’s a duty to usereasonable care to prevent foreseeableinjuries It’s the same duty a grocery store has to itscustomers, so in a lawsuit, the issues will bethe gun equivalent of:1. “did you know lettuce or water was on thefloor?” orBut What if an Employee Brings a Gun toWork and Injures a Customer or Client?11
  12. 12. 2. “had the water or lettuce been on the floor longenough that you should have known it wasthere?” and3. “was it reasonably foreseeable that the lettuce orwater could injure someone?” and4. “were you negligent because you failed toremove the lettuce or water?” and5. “was your negligence if any, the direct andproximate cause of the injury?”But What if an Employee Brings a Gun toWork and Injures a Customer or Client?12
  13. 13.  It would look like Vaughn v. Granite City Steel(an Illinois case) George Vaughn’s body was found lying next to hisautomobile in a parking lot provided by GraniteSteel. He had been shot twice. There were nowitnesses and no suspect was ever arrested. Mr. Vaughn’s heirs sued Granite Steel, alleging thatit had a duty to protect Mr. Vaughn from being shot A jury awarded the Vaughn family $450,000So What Would the Gun Equivalent of aLettuce Leaf on the Store Floor Look Like?13
  14. 14.  On appeal the verdict was affirmedbecause:– Mr. Vaughn was in the parking lot to dobusiness with Granite Steel– Granite Steel had a contract with a guardforce in which the guard force agreed it wasresponsible to protect the people and vehiclesusing the parking lotVaughn v. Granite City Steel14
  15. 15. – Granite Steel’s policy manual stated thecompany’s plant protection department wasexpected:“To maintain the peace and protect all employeesand their property while they are on the Company’spremises.To deny access to all persons not specificallyauthorized or properly invited.To provide a readily available trained andresponsive force to function in emergencies.”Vaughn v. Granite City Steel15
  16. 16. – Although no one had been shot in theparking lot before Mr. Vaughn’s murder,there had been 20 incidents of theft orvandalism in the parking lot in the prior twoyearsVaughn v. Granite City Steel16
  17. 17.  Utah is one of 16 states with what has come tobe called a “Bring Your Gun to Work Law” Section 34-45-103 Utah Code states that noemployer, property owner, landlord, businessentity or other legal entity may establish,maintain or enforce any policy or rule that hasthe effect of prohibiting an individual fromtransporting or storing a firearm in a motorvehicle on any property designated for motorvehicle parkingWhat Does Utah Law Say AboutGuns in the Workplace?17
  18. 18.  Utah Law neither prohibits, nor expressly allowsexcluding guns from business premises otherthan parking lotsWhat Does Utah Law Say About WhetherBusiness Owners Can Exclude Guns FromTheir Offices, Stores and Workplaces?18
  19. 19.  Nothing. The Constitution limits governmentpower. It does not impose duties betweenprivate individuals or companies.What Does the Second AmendmentRequire or Forbid Your Company to DoRegarding Your Employees?19
  20. 20. Company No Weapons PolicyCompany prohibits all persons who enter anyproperty owned or leased by the company fromcarrying on their person or in their vehicle ahandgun, firearm, or prohibited weapon of any kindonto any company property regardless of whetherthe person is licensed to carry a handgun or not.What Does Utah Law Say About aPolicy Like This?20
  21. 21. This policy applies to all employees, contract andtemporary employees, visitors on companyproperty and clients and contractors on companyproperty, whether or not they are licensed to carrya concealed handgun. The only exceptions to thispolicy are police officers, security guards or otherpersons who have been given written consent bycompany to carry a weapon on the property.What Does Utah Law Say About aPolicy Like This?21
  22. 22. All company employees are also prohibited fromcarrying a weapon while in the course and scopeof performing their job for the company, whether ornot they are on company property at the time andwhether or not they are licensed to carry ahandgun. This policy also prohibits weapons atany company sponsored function such as partiesor picnics.What Does Utah Law Say About aPolicy Like This?22
  23. 23.  Chris Wangsgarddirect: (801) 536.6782email: cwangsgard@parsonsbehle.comThank You23