WORKPLACE LAW – Guns in the Workplace

Question: Recently one of my store managers asked if he could carry a concealed handgun at work. After the recent school shootings I am wondering whether it is a good idea to have someone who is trained to handle a firearm on-premises.

Answer: Employers have a duty to provide a workplace free of “hazards.” While this duty historically focused on hazardous materials and equipment, the duty has expanded to include prevention of workplace violence. As a result, California law has evolved to provide workplace protections for victims of domestic violence, prohibitions on workplace bullying, and legislation that allows employers to obtain restraining orders and injunctions to protect employees.

California does not have a “guns at work” law, so private employers may ban guns at work and prohibit employees from bringing guns to work or on the employer’s premises. Most California employers have policies that strictly prohibit the possession and use of weapons in the workplace. However, after President Trump’s proposal to arm teachers in response to school shootings, some employers may be wondering whether adopting more gun-friendly policies in the workplace is a good idea. Proponents argue that having one or more individuals who are trained and armed at a worksite would deter shooters. The issue is whether such a policy will promote workplace safety, and whether the risks of such a policy outweigh the potential benefits.

Before adopting such a policy employers should carefully consider the potential legal ramifications. While a gun license and concealed carry permit authorize their holder to own and carry a firearm, the holder’s right to use that firearm is limited by the holder’s legal right to self-defense. The right to self-defense is recognized only when the degree of force used is reasonably necessary to defend one’s own life or the lives of others. Therefore, if the employee exceeds the scope of reasonable force by using a firearm, the employee’s self-defense claim will fail and the employee may be criminally or civilly liable for personal injury. This liability could be extended to the employer under a theory of vicarious liability if a fact-finder finds that the weapon was discharged within the scope of the employee’s employment—a finding that is significantly more likely if an employer has authorized that employee to carry a firearm in the workplace. The employer could also face liability for negligence.

In addition to increasing the risk of legal liability, permitting only certain employees to carry firearms may lead to strained workplace relationships. This is particularly true if the authorized persons are perceived by co-workers as unreasonable or quick-tempered. The presence of firearms in the workplace may also cause fear of accidental injury.

Because authorizing gun-use in the workplace may create more risks than benefits, employers should consider other measures to ensure that their employees remain safe while at work, including installing security cameras, providing safety training, and developing an active shooter response plan.

According to the U.S. Bureau of Labor Statistics, about 5% of all businesses experience an instance of workplace violence each year. By being proactive about workplace safety, you and your workforce will be better able to respond to an active threat.