“Guns-at-Work” Laws

On March 18, 2010, Indiana Gov. Mitch Daniels signed the Possession of Firearms and Ammunition in Locked Vehicles Law (Indiana Code 34-28-7). Under the new law, effective July 1, 2010, Indiana employers must refrain from adopting or enforcing any rule that prevents an employee from lawfully storing firearms and ammunition in their locked vehicles while parked in their employer’s parking lot. Indiana joins 12 other states with similar laws, including Alaska, Arizona, Florida, Georgia, Kansas, Kentucky, Louisiana, Minnesota, Mississippi, Nebraska, Oklahoma and Utah, most of which were passed in the last five years. Gaming employers who operate in any of these states should be aware of the legislation and ensure that their policies are in compliance.

Indiana’s “Guns-at-Work” Law
The core provision of Indiana’s new statute is quite simple: Employers may not adopt or enforce an ordinance, resolution, policy or rule that prohibits, or has the effect of prohibiting, any “employee, including a contract employee” from possessing a firearm or ammunition that is “locked in the trunk of an employee’s vehicle, kept in the glove compartment of the employee’s locked vehicle, or stored out of plain sight in the employee’s locked vehicle.”

Indiana’s statute protects only those individuals who may legally possess a firearm or ammunition without a specific federal license. It does not apply to the possession of a weapon “for which an individual must possess a valid federal firearms license issued under 18 U.S.C. § 923 to possess the firearm, ammunition, or other device.” The Indiana General Assembly included a wide variety of exceptions in the statute. For example, an employer may prohibit employees from bringing any firearms or ammunition on the property of a “child caring institution,” an “emergency shelter care child caring institution,” a “private secure facility,” a “group home,” an “emergency shelter care group home” or a “child care center.” There are a number of other exceptions as well.

Private Right of Action
Under Indiana’s new statute, any “individual” who believes he or she “has been harmed by a violation” of the new statute may file a private civil action. If the court finds that “a person” has violated the new statute, the court may award actual damages, court costs and attorney’s fees to the “prevailing individual.” A court may also “enjoin further violations of this chapter.”

The very broad damages language is troubling for a couple of reasons. First, it does not define “harm,” leaving open the question of whether an employer could be liable under the statute if it maintains a statute-violating policy on its books but never enforces the policy. Second, the private right of action is not limited to employees and contract employees. Indeed, any “individual” who could show “harm” because an employer had a policy that prevented an employee from keeping a weapon in his or her locked vehicle could potentially gain relief.

On the bright side, Indiana’s law strips courts of jurisdiction over any actions brought against an employer “who is in compliance with [with the new law] for any injury or damage resulting from the employer’s compliance.”

Other “Guns-At-Work” Laws
Like Indiana’s law, the “Guns-at-Work” statutes in Georgia, Louisiana and Mississippi expressly provides employers with immunity from a civil action for any damages that result from occurrences involving the transportation or storing of firearms pursuant to those laws. Arizona’s law, by contrast, does not provide immunity from suit if employees or others are injured or killed as a result of an employee carrying or storing a firearm in his or her private vehicle on the employer’s premises.

In addition, other states’ legislation provides more detailed guidance as to what employers may or may not do with respect to vehicle searches. In Georgia, for example, employers may search an employee’s vehicle for firearms if there is a reasonable risk of an immediate threat to human life or safety, or, if an employee consents, for loss prevention purposes based on probable cause that the employee unlawfully possesses the employer’s property. Arizona’s law does not restrict an employer’s ability to search an employee’s vehicle for firearms if the vehicle is located in the company’s parking lot. By contrast, Florida’s law explicitly prohibits employers from inquiring about the presence of a firearm in a vehicle and forbids an employer from searching a private vehicle to determine whether it contains a firearm.

The Indiana statute says nothing about vehicle searches. Presumably, vehicle searches for weapons, stolen property or other similar materials are still acceptable in Indiana. Employers should, however, be particularly careful to conduct only vehicle searches that are actually necessary and that are well supported by the factual circumstances. And, of course, if a search reveals legal firearms in a previously locked trunk, a glove compartment, or otherwise out of plain view, the employer should not take action against the employee as a result of the discovery.

Finally, Arizona’s “Guns-At-Work” law explicitly allows employers to prohibit the storage of firearms in company-owned vehicles. By contrast, the new Indiana law does not address whether employers may control the contents of their own vehicles.

Safety Measures
Although most employers used to enjoy the ability to ban firearms altogether from their property, including parking lots, the growing number of states adopting “Guns-at-Work” laws has changed the landscape for employers wishing to reduce the likelihood of gun-related violence in the workplace. Moreover, these laws arguably are in conflict with OSHA’s “General Duty Clause,” which requires employers to provide employees with a safe workplace free from recognized hazards. According to a 2005 study in the American Journal of Public Health, workplaces that allow guns are five to seven times more likely to suffer homicides than those that ban firearms. With the current economic climate prompting so many reductions in force, the likelihood of violence could be considered a workplace hazard, particularly with guns on the property.

In anticipation of the new law’s effective date of July 1, 2010, gaming employers with operations in Indiana and other states with “Guns-at-Work” laws should review and update their workplace policies to ensure that they do not prohibit guns in locked vehicles, unless a statutory exception applies. At the same time, all Indiana employers should implement a strong workplace violence policy that, among other things, prohibits weapons anywhere on the property other than in locked vehicles in the parking lot. Moreover, if an employer in Indiana wants to be able to search vehicles on company property for weapons, this should be included in the workplace violence policy. Consistent enforcement of the policy may prevent employees from claiming they are being harassed or punished for exercising their right to carry lawful firearms in their private vehicles.

Finally, gaming employers in all states, regardless of whether there is a “Guns-at-Work” law, should consider taking additional steps in their ongoing efforts to reduce the likelihood of any type of violence in the workplace. These steps include:

• Implementing and disseminating a strong policy against workplace violence, setting forth conduct that will not be tolerated and steps employees should take to report any threatening or violent behavior. For employers located in states without laws regarding employees’ right to store firearms in their vehicles while on company property, the policy should contain a blanket prohibition against bringing any firearm or other weapon onto company property, even if left in a vehicle in the company’s parking lot. All employers may adopt a policy that prohibits bringing firearms into the workplace or removing them from a locked vehicle in the parking lot.
• Conducting pre-employment criminal background checks to determine whether applicants are at risk for engaging in violent behavior in the workplace.
• Providing employees with training on workplace violence and harassment, including how to reduce the potential for workplace violence and the appropriate action to take when confronted with a potentially violent or harassing situation.
• Reviewing and updating safety and security measures to deal with the increased risk of violence associated with the presence of guns on company property, including the installation of metal detectors and other mechanisms to ensure employees are not bringing firearms into the workplace.

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