WisBar News: Concealed carry: Could prohibiting weapons in the workplace lead to liability?:

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  • Concealed carry: Could prohibiting weapons in the workplace lead to liability?

    The concealed carry law is expected to be signed into law this week, taking effect Nov. 1, 2011. This article discusses how the new law may impact property owners, business owners, and employers, with some insight from experienced employment law attorneys.

    Joe Forward

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    Concealed carry: Could prohibiting weapons in 
the workplace lead to 
liability?July 6, 2011 – When Gov. Scott Walker signs the concealed carry bill, Wisconsin will join 48 other states that allow qualified residents to carry concealed weapons. So what does that mean for property owners, businesses, and employers?

    The new law creates immunity for property owners and employers who allow concealed weapons on property or at a place of business. It will also allow property owners and employers to prohibit employees and visitors from carrying concealed weapons on the premises by providing proper notice. So what are the liability risks?

    “The addition of immunity under the new law does not necessarily correspond with an increase in liability, at least for employers who prohibit concealed weapons,” said Milwaukee attorney David Froiland, a partner in Foley & Lardner’s labor and employment practice group. “If an employer prohibits guns pursuant to the posting requirements, then employer liability should be the same on the day after the law becomes effective as the day before.”

    Gov. Walker is expected to sign the proposed law this week, meaning most of its provisions would take effect on Nov. 1, 2011.

    The proposed new law

    The new law allows qualified persons to carry concealed weapons, except in certain places like county, state, or federal courthouses and police stations, among others places. Allowable “weapons” include handguns, electronic tasers, billyclubs, and knives other than switchblades.

    To be qualified, a person must apply for a valid license. The state must issue licenses to persons who meet the application requirements. Applicants must be at least 21 years of age, complete a training program, and go through a background check before a license is issued.

    Under the new law, a license-holder is guilty of trespassing if he or she has proper notice from the residential or commercial property owner or occupant that he or she may not enter or remain on the premises while carrying a concealed weapon.

    In these circumstances, prohibiting persons from entering property with a concealed weapon requires notice by a conspicuous sign (at least 5 inches by 7 inches) “located in a prominent place near all of the entrances” or “all probable access points.”

    Failure to post proper signage prohibiting concealed weapons on the premises, at least on an employer’s premises, probably means the prohibition lacks legal effect, according to Froiland.

    “This means that the improperly notified employee who carries a covered weapon on the premises cannot be disciplined,” Froiland said.

    Immunity, property owners and employers

    Under the new law, property owners or occupiers that do not prohibit an individual from carrying a concealed weapon on property are “immune from any liability arising from its decision.” This would include business owners or occupiers.

    This provision seems to insulate a property owner/occupier from all liability for injuries sustained by third parties as a result of a decision to allow weapons on the premises, even if the decision is made negligently, that is, without regard to the foreseeable consequences.

    Immunity does not extend to a property owner/occupier who prohibits a licensed individual from carrying a concealed weapon onto the property or into a place of business.

    Similarly, an employer can prohibit employees from carrying concealed weapons in the workplace, but cannot prohibit employees from carrying concealed weapons or storing weapons in their motor vehicles as a condition of employment.

    However, an employer that does not prohibit one or more employees from carrying a concealed weapon in the course of employment “is immune from any liability arising from its decision.” Presumably, this immunity clause bars claims based on the tortious or negligent acts of an employee occurring within the scope of employment.

    But what if an employer prohibits employees from carrying concealed weapons at work, using the proper signage? With a legal right to protect oneself through concealed carry, could an employee argue that an employer failed to establish a safe workplace because a prohibition on weapons in the workplace took away the employee’s right to legal self-protection?1

    Consider the following hypothetical: An employee has a license to carry a concealed weapon, but a business prohibits the employee from bringing his or her handgun to work and posts proper signs to that effect. A disgruntled former employee walks in and starts shooting. Under the new concealed carry law, the business is not immune from liability.

    Froiland says in this situation, worker’s compensation should usually be the exclusive remedy against the employer, at least “where, at the time of the injury, the employee is performing service growing out of and incidental to his or her employment.”2

    Workplace policy

    On the other hand, could an employer subject itself to liability claims if it did not properly enforce a prohibition on concealed weapons in the workplace?3 In other words, must the employer do more than post signs prohibiting concealed weapons?

    "An employer’s choice to do no more than post signs does not automatically subject it to liability," said Milwaukee attorney Cherice Hopkins, an associate in Foley & Lardner’s labor and employment practice group. "Typically, there must be a basis for holding the employer responsible for the act of its employee, such as foreseeability of the misconduct."

    However, Hopkins says its best that the employer have a written policy that addresses the prohibition on concealed weapons in the workplace. It will reinforce the employer’s serious stance on the prohibition, and inform employees of the discipline they face if they violate the prohibition, decreasing the likelihood that an employee will ignore the prohibition and bring a weapon to work. 

    Whether employers only post signs or take additional steps to inform employees of the prohibition, Hopkins says it is vitally important for the employer to enforce its prohibition.  Weapons are not truly prohibited if an employer says “no weapons” but then looks the other way when employees bring weapons to work.

    Consider the following hypothetical: An employee has a license to carry a concealed weapon, but a business prohibits the employee from bringing his or her handgun to work. The employee does so anyway. The gun goes off accidentally one day while the employee is working, injuring a non-employee (customer or vendor). The business is not immune from liability.

    Liability may depend on whether the employer could reasonably foresee this situation occurring, Hopkins says. According to Froiland, the third-party could potentially sue the employer in this situation, but its liability exposure would probably be no different than it was prior to the effective date of the concealed carry law.

    “It’s not clear to me that [the employer] in this situation has done anything wrong (negligently or otherwise) which would subject it to liability,” Froiland said. “In any event, it seems that the employer has the same risks of third-party liability after the effective date.”

    Conclusion

    Property owners, businesses, and employers may prohibit concealed weapons by posting proper signage. Those prohibiting concealed weapons will not enjoy immunity from liability that arises from that decision under the new law.

    But, according to Froiland and Hopkins, that does not necessarily mean prohibiting concealed weapons will lead to increased liability when the law takes effect, at least not for employers who wish to prohibit concealed weapons in the workplace.

    By Joe Forward, Legal Writer, State Bar of Wisconsin

    Endnotes

    1 Richard Dahl, Packing Heat: The Sign of the Future May be ‘Please Check Your Gun at the Door,’ 82 A.B.A. J. 72 (Aug. 1996).

    2 Wis. Stat. section 102.03(1)(c)1.

    3 Nicole Hartley, Business Owner Liability and Concealed Weapons Legislation: A Call for Legislative Guidance for Pennsylvania Business Owners, 108 Penn St. Law Rev. 637, 644 (2003-04), see also Restatement (Second) of Torts section 323 (1965).




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