Hitting the Mark: Gun Laws for the Workplace

Tami Hannon
E: thannon@mrrlaw.com

Over 85% of workplace homicides are the result of intentional shootings, according to 2015 statistics from the Bureau of Labor Statistics. Correspondingly, the number of new concealed carry permits issued is on the rise. Issuances of new permits increased in Ohio by over 100% between 2014 (58,066) and 2016 (117,951). The latest data for Kentucky shows 31,504 new licenses issued in 2014 and 39,173 new licenses issued in 2015, a 24% increase.

With the increased media coverage of gun-related violence and the increased likelihood that one or more of your employees possess a concealed carry license, many employers are seeking ways to address the presence of guns in the workplace. Certainly, employees’ perception of safety not only impacts their willingness to come into work but also their productivity while at work. Often, employers think of banning guns in the workplace as a way to minimize concerns of workplace safety and violence, but state laws in Ohio and Kentucky limit your ability to outright ban guns in the workplace.

Ohio

Effective March 20, 2017, revised O.R.C. §2923.1210 went into effect, limiting an employer’s ability to prevent employees who possess valid concealed carry permits from carrying firearms onto the employer’s premises. The new law permits concealed carry permit holders to store firearms or ammunition in their cars while their cars are on the employer’s property or assigned job site. You may require that firearms or ammunition remain in the employee’s private vehicle and be stored in a locked box or compartment when the employee is not in the motor vehicle. You may still prohibit the possession of firearms that are not properly stored or that are not possessed by an employee with a valid concealed carry permit. You can also still prohibit employees from carrying firearms (1) into the workplace, (2) in company cars, (3) outside of their vehicle while on company property, or (4) where otherwise prohibited by law, such as police stations, correctional facilities or school safety zones.

The law also protects business owners from liability associated with firearms or ammunition that are brought onto the business owner’s property under the law.

Kentucky

Kentucky Revised Statute 237.106(1) provides that an employer cannot prohibit an employee from keeping a firearm in a vehicle on company property unless the employee is prohibited from carrying a firearm by federal or state law; however, that firearm can only be removed from the vehicle in an act of self-defense of others or property or with the employer’s authorization. An employer who violates these rights is liable in civil damages. Even with these broad protections, Kentucky courts have upheld additional administrative requirements, such as requiring employees to disclose any weapon kept in their privately-owned vehicle while that vehicle is on the employer’s property, requiring a copy of the permit to carry to be kept on file with the employer, or requiring employees to store all firearms in a locked safe while the firearms are on the employer’s premises.

Best Practices

You should generally consider what, if any, protections that you would like to put into place to address workplace violence. The trend in concealed carry permits shows that the number of new permits being issued is on the rise. As such, it is increasingly likely that one or more of your employees will have a license and may wish to carry while at work. This trend along with the corresponding state laws makes it imperative that you have a clear policy outlining your expectations and convey that policy to your employees.

In creating your policy, consider whether you wish to restrict the carrying of concealed weapons in your building generally or whether you want to restrict employees from bringing weapons into the building or company cars. Restricting employees from having ready access to firearms can potentially deter violence; however, those bent on causing harm are unlikely to comply with such a policy. Alternatively, consider whether allowing the limited carrying or access to firearms by those who are properly licensed through the state may potentially deter others from causing violence.

If you want to allow (or must allow depending on your state law) licensed employees to carry their firearms, consider how you want to address storage of those weapons, under what circumstances (if any) an employee can remove that weapon from their vehicle, whether you want to be advised of who is carrying a weapon, and whether you want the employee to provide a copy of his or her state issued license. Consider whether you want to (or already) have a system securing or monitoring employee parking lots to minimize the likelihood that an upset employee returns unnoticed with a weapon. The policy should also provide clear warnings to employees as to the potential discipline they could face if they violate your policy.

Note that the concealed carry of a weapon by an individual without a validly issued permit is a crime. Policies should expressly prohibit employees from carrying concealed weapons without possessing a valid, state issued permit regardless of which stance you take on permitting weapons by those with a permit.

Aside from crafting a policy addressing the carrying of guns, you should also consider and prepare a workplace violence policy. This policy should outline what is considered workplace violence, set procedures for employees to report threats or violent acts, set a disciplinary procedure or sanction for employees that violate the policy, and explain any resources you offer to assist employees, such as counseling or an employee assistance program.

In light of increasing workplace violence, special consideration should also be given to addressing situations that can be highly emotional, such as terminations or layoffs of employees. It is best to contact legal counsel before undertaking these situations for assistance in determining best practices to minimize potential issues.

 

 

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Don’t Spoil that Evidence! Tips on Initiating, Implementing, and Maintaining a Litigation Hold Policy

By Doug Holthus
dholthus@mrrlaw.com

Business owners and managers recognize that litigation is inevitable.

Saving for another day any discussion of its sanity, this reality drives the imperative that every prudent business create, implement, and maintain a Litigation Hold Policy. This is particularly true inasmuch as most every jurisdiction in the United States recognizes some bases for a potential and separate claim for “Spoliation of Evidence.” A “Spoliation Claim” (in most every jurisdiction) is recognized as a separate tort and depending upon the litigation venue, proof of evidence spoliation can result in an award of (among other items) separate monetary damages and negative inferences. In other words, an instruction/directive from the particular court that says, in effect and to the entity (or person) not having properly preserved a document, “OK, then … since you can’t produce the document and did not preserve it from loss or destruction, then that document must have contained information adverse to you position … and that’s how this court will rule.”

Not good.

So, how to best attempt to protect against a potential “Spoliation Claim”? If your business is sued or even (in most jurisdictions) has some reasonable belief that litigation is imminent, then you must be proactive and among other steps (without limitation):

  1. Develop a written “Hold Notice” and “Hold Policy,” and make certain these both are communicated to all employees.
  2. Whenever such Hold Notices are distributed, make certain the distribution is tracked and maintained. NOTE: even “Hold Notices” and Hold Policies” can be separately challenged as inadequate.
  3. Currently and proactively identify those locations where potentially relevant information (hard copies, electronic data, photos, etc.) is stored … filing cabinets, work-rooms, desks, closets, back seats of cars, file rooms, data systems, servers, desk-tops, laptops, tablets, IT service providers, mobile devices, and even data that has been shared with any third-party service providers.
  4. Define and identify those positions and persons who are to be immediately contacted for the timely preservation of all possibly relevant information and communications.
  5. Communicate with your General Counsel, outside counsel, and all third-party document and IT service providers as soon as possible (after litigation is filed, or expected to be filed) and in so doing, establish and implement clear goals and expectations relative to the preservation of all possibly relevant information and communications..
  6. Develop an “Exit Checklist” together with a process that preserves such information relative to any employees who separate from employment, for any reason. This will most certainly require a coordinated effort with your organization’s HR Dept.

This is by no means an exhaustive list, yet hopefully will provide some guidance in the creation, implementation, and maintenance of a Litigation Hold Policy.

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