GUNS AND THE WORKPLACE

Transcription

1 GUNS AND THE WORKPLACE CASHRM 2017 LEGAL UPDATE MARCH 13, 2017 C. Grainger Pierce, Jr. & Katie Burchette

2 WHY DISCUSS GUNS AT AN EMPLOYMENT LAW BRIEFING? Misinformation Fact v. Fiction What does the law really say about firearms? Concealed Weapons are everywhere about 1 in 20 people in North Carolina hold CWP That is 22x the number of people who held CWPs 20 years ago What about concealed weapons in the workplace? 2

3 WHY DISCUSS GUNS AT AN EMPLOYMENT LAW BRIEFING? Conflict between Employer rights and Employee rights Can an employer prohibit all weapons in the workplace? What if employee or other individuals have a CWP? 3

4 THE BASICS Many types of firearms Our discussion will focus primarily on handguns with a few references to long guns Fully automatic firearms require special permitting and are not a part of this discussion This program is not intended to be a comprehensive discussion of Federal, South Carolina, or North Carolina gun law. Contact us with specific questions. 4

5 THE BASICS (CONT.) What is a handgun? N.C. Gen. Stat (2) defines handgun as a firearm that has a short stock and is designed to be held and fired by the use of a single hand. More simply, a handgun is a pistol or revolver that an individual has on hand to shoot. 5

6 THE BASICS (CONT.) Where can an individual lawfully possess a handgun without a CWP (assuming the individual can legally own a handgun)? In North Carolina, open carry is legal and protected by our state constitution, but localities have limited authority to restrict firearms in some locations. Easier to outline where the individual can t open carry: Any assembly where a fee has been charged for admission; Any establishment in which alcoholic beverages are sold and consumed; Courthouses; Certain state buildings; and Parades/Demonstrations. 6

7 THE BASICS (CONT.) Where can an individual lawfully possess a handgun without a CWP (assuming the individual can legally own a handgun)? When transporting in a vehicle, accessibility is important. The weapon cannot be concealed or in ready access to an occupant of the vehicle. If the weapon is concealed near, in close proximity to, or within the convenient control and access of an occupant, which would allow him to use the weapon quickly, then a fair probability exists that the occupant is in violation of the law. Opinion from Former N.C. Attorney General, Roy Cooper So the Batmobile is out. 7

8 THE BASICS (CONT.) What is a long gun? Traditional firearms such as shotguns and hunting or target rifles Also non-traditional rifles, such as AR-15s, incorrectly referred to as assault weapons To be considered legal without a special permit, federal law requires rifles to have a barrel length of at least 16 inches. Shotgun barrel lengths must be at least 18 inches. With respect to normal handguns and long guns, there are no Federal or North Carolina gun registration requirements, unless you live in Durham County, then you have to register a handgun According to recent numbers from the Washington Post, the number of firearms in the United States may be as high as 360 million and as low as 245 million. That means there may be more firearms than people in the United States. An estimated 50 million new firearms were purchased in the United States during the Obama presidency (that s more than 17,000 per day) 8

9 THE BASICS (CONT.) Who can purchase a firearm from a federally licensed seller? To purchase a long gun from a seller with a Federal Firearms License ( FFL ), the buyer must be at least 18 years old To purchase a handgun from a seller with an FFL, the buyer must be at least 21 years old The same age requirements apply to purchasing ammunition for long guns and handguns (18 for long gun ammunition, 21 for handgun ammunition) Providing false information to an FFL seller during the gun buying process, including age, is a federal crime What about legal disabilities...? 9

10 THE BASICS (CONT.) Who can purchase a firearm from a private individual? To purchase a long gun or handgun from a private individual in North Carolina, the buyer must have obtained a permit to purchase a handgun or a CWP. Federal law still applies to the age requirement for purchasing ammunition, i.e., still 21 years old to purchase hand gun ammunition What about legal disabilities...? 10

11 THE BASICS (CONT.) What is a legal disability? A legal disability is a personal condition that prevents an individual from buying or possessing a firearm, regardless of who the seller is Lifetime Federal Firearms Disability Individuals with a federal or state felony conviction or adjudication, or individuals with a federal misdemeanor conviction with a potential jail term of more than 1 year, or those with a state misdemeanor conviction with a potential jail term of more than 2 years almost always have a legal disability Why potential? Applicable federal law does not care about the sentence actually applied 11

12 THE BASICS (CONT.) Other legal disabilities (not exhaustive list) Addiction to illegal drugs Adjudicated mentally defective or committed to a mental institution (present or past) Dishonorable discharge from military service Renounce U.S. citizenship Subject to a domestic restraining order in which a court found the individual to be a credible threat to the physical safety of another Individual is illegally in the U.S. Conviction of a misdemeanor crime of domestic violence as defined in 18 U.S.C. 922(g)(9) 12

13 CONCEALED WEAPONS PERMIT (CWP) 13

14 CONCEALED WEAPONS PERMIT (CWP) Relevant Law: N.C. Gen. Stat (2016). Generally allows CWP holder to carry a handgun in most places, but not when holder is under the influence of alcohol or illegally obtained substances. 14

15 CONCEALED WEAPONS PERMIT (CWP) Who can obtain a CWP? Must be U.S. citizen or lawfully admitted for permanent residence Must have been North Carolina resident for at least 30 days Must be at least 21 years old Must not suffer from a mental or physical infirmity that prevents safe handling of a handgun Must complete CWP course provided by licensed instructor 15

16 CONCEALED WEAPONS PERMIT (CWP) Unlawful places to carry even with a CWP (non-exhaustive list) Any school, assembly where an admission fee has been charged, or into an establishment in which alcoholic beverages are sold and consumed. Certain state properties, such as courthouses Legislative buildings Areas prohibited by federal law Law enforcement agency or correctional facility Area housing only State or federal offices Office of State or federal government not located in building exclusively occupied by State or federal government Any premises where notice that carrying a concealed weapon is prohibited is conspicuously posted OR where the owner has prohibited such carrying School grounds except secured within vehicle 16

17 CONCEALED WEAPONS PERMIT (CWP) Can a CWP holder carry a concealed weapon into a residence? Not where there is a conspicuous notice or where the owner has directly prohibited it. What is conspicuous? 17

18 CONCEALED WEAPONS PERMIT (CWP) What if a business owner wants to prohibit concealed carry at their place of business? N.C. Gen. Stat (c)(8) specifically addresses this issue: An individual may prohibit the presence of handgun on his/her premises by posting a conspicuous notice or statement by the person in legal control of the workplace location. 18

19 CONCEALED WEAPONS PERMIT (CWP) 19

20 OTHER RELEVANT LAW Common law offense of going armed to the terror of the people. Cannot carry a gun to terrorize others and in a manner likely to cause terror. Localities can prohibit open carry in publicly-owned buildings, on the grounds and parking lots of those buildings, in public parks, or in public recreation areas. Cities are permitted to limit/prohibit discharge of firearms, except when used in defense of person or property or by policy officers. Counties are permitted to limit/prohibit discharge of firearms, except when used in defense of person or property, by police officers, or to take birds or animals. 20

21 PENDING LEGISLATION? During the Legislative Session, 69 bills concerning handguns were introduced, most of them procarry. For example: The Homeland Security Patriot Act This has languished untouched for almost two years, so it s passage is highly unlikely. Of those 69, only 6 were passed, none of which address general handgun use and transport. 21

22 EMPLOYER POLICIES VERSUS EMPLOYEE RIGHTS 22

23 EMPLOYER POLICIES VERSUS EMPLOYEE RIGHTS What are an employer s rights regarding prohibiting guns in the workplace? 23

24 EMPLOYER POLICIES VERSUS EMPLOYEE RIGHTS Scenario 1 Employer has no policy regarding guns in the workplace (and the employer has not provided verbal direction to employee about guns in the workplace) Can an employee keep any legal firearm (handgun or long gun) in his her/her vehicle? Can an employee without a CWP carry a concealed handgun or rifle in the workplace? What about openly carrying a handgun or rifle in the workplace? Can an employee with a CWP carry a handgun or long gun in the workplace? 24

25 EMPLOYER POLICIES VERSUS EMPLOYEE RIGHTS Scenario 2 Employer has a policy of no guns in the workplace Can an employee with a CWP carry a concealed handgun in the workplace? Most important thing to remember WHEN IT COMES TO GUNS IN THE WORKPLACE, AN EMPLOYER S POLICY TRUMPS THE CWP LAW IN NORTH CAROLINA 25

26 EMPLOYER POLICIES VERSUS EMPLOYEE RIGHTS HOW DO WE DEFINE THE PREMISES? The premises obviously includes areas of the employer s place of business over which the employer has control, e.g., manufacturing floor, call center floor, warehouse, break rooms, restrooms, locker rooms, etc. What about company vehicles? Probably 26

27 POLICY OPTIONS No policy = No control = More risk Hear no evil, see no evil is a BAD idea Zero Tolerance Policy = Most control = Least risk Somewhat common Can be challenging to enforce consistently Middle Ground Policy = Some control = Some risk Also common Examples CWP holders may possess handguns in their personal vehicles; all employees may possess handguns or long guns in their personal vehicles so long as they do so lawfully (particularly attractive to appease hunters) 27

28 POLICY BEST PRACTICES If an employer implements a policy, it needs to be enforced consistently When choosing an option, understand that it is important to have a policy even if the employer chooses to allow guns in some areas or scenarios Allowing guns in the workplace can impact insurance coverage (discuss with your carrier) Importantly, even if you allow employees, e.g., CWP holders, to possess or carry a gun on company property, you can ask the employee if they do in fact carry or possess a gun at any given time An employer can also provide specific instruction to an employee about possible use of the gun on company property. 28

29 POLICY BEST PRACTICES A guns in the workplace policy should be clearly communicated to all employees, preferably via the employer s employee handbook AND with conspicuous signage In addition, the employer s policy should be expressly communicated to all new employees What if an employer with a no guns policy believes an employee is in violation of the policy? The employer s policy should establish the employer s right to search the employee s purse, lunchbox, briefcase, backpack, car, or similar areas if the employer has a reasonable suspicion that the employee is in violation of the policy Importantly, an employee can refuse to allow such a search; however, such a refusal clearly establishes the employer s right to discipline the employee, including immediate termination of employment For government employers, any policy related to searches must comply with the Fourth Amendment of the United States Constitution 29

30 FINAL NOTES ON POLICIES Can an employer with no policy still prevent concealed guns in the workplace? Absolutely. With respect to any building in the workplace, an employer can simply post the correct signage. Such signage applies to both employees and non-employees Can an employer discipline an employee who violates properly posted signs that prohibit concealed carry? Yes. And in the case of an employee carrying a concealed weapon in violation of properly posted signs, the employee has committed a crime 30

31 POTENTIAL LIABILITY FOR EMPLOYEE DISCIPLINE But what about wrongful termination in violation of public policy? Regarding open carrying of weapons, it is unclear whether an employer would be deemed to be acting in contravention public policy in terminating an offending employee. However, mere discipline would not be actionable. In Pennsylvania, which has a similar wrongful termination body of law, termination due to possession of a gun on a private employer s premises was not deemed actionable. Remember to factor in OSHA obligation to maintain safe workplace. 31

32 Whichever policy option an employer chooses, it is critical to be vigilant Enforce the policy consistently Do not be afraid of the Second Amendment argument The employer s right to prohibit concealed weapons in the workplace and on company property trumps the Second Amendment at least in the private employer Know the law and your rights as an employer 32

33 FINAL THOUGHTS Put in place and communicate a zero tolerance policy for workplace violence Have emergency plans in place for episodes of workplace violence Conduct ANNUAL active shooter training and have a team in place to respond to this type of emergency Do not limit policies to employees. Use combination of policies and signage to address guns in the workplace or on company property with all visitors, including vendors, clients, family members, and the general public 33

34 QUESTIONS/COMMENTS? Grainger Pierce Katie Burchette