In the Crosshairs: Gun Rights Vs. Employer Liability by Tara E

In the Crosshairs: Gun Rights vs. Employer Liability By Tara E. Faenza, Miami

In the United States, nearly 500 ho- riod. . . . While customers and co- tion against a customer, employee, or micides occur in workplaces every year, workers who commit these crimes invitee based upon verbal or written and roughly three-quarters of those were often armed at the time of the ar- statements of any party concerning homicides involve firearms, according gument, some were not and retrieved possession of a firearm stored inside to the Bureau of Labor Statistics.1 One a firearm from an unspecified location a private motor vehicle in a parking before committing a homicide. Thus, lot for lawful purposes. A search of a of the most widely known episodes of immediate and ready firearm access private motor vehicle in the parking workplace violence occurred in 1986 was commonly observed in argumen- lot of a public or private employer to when a postal employee entered his tative workplace deaths.6 ascertain the presence of a firearm workplace with two semi-automatic within the vehicle may only be con- weapons and murdered fifteen people Transportation incidents were the ducted by on-duty law enforcement while injuring six. In the following thirty most common fatal workplace events personnel, based upon due process years, the phrase “going postal” has nationally in 2016, with “violence and and must comply with constitutional become a cultural reference for violent other injuries by persons and animals” protections. the second most common fatal work- behavior, especially in the workplace. . . . . There is even a line of “active shooter” place event nationwide at 17%.7 video games called “Postal.”2 For This subsection applies to all public employers, “going postal” reflects the “Bring Your Gun to Work” sector employers, including those already prohibited from regulating reality of workplace violence and of One apparent way to reduce fatal possible liability for negligent hiring, firearms under the provisions of [sec- workplace violence is to ban firearms tion] 790.33.8 supervision, and security. As discussed from the premises, since the vast ma- below, employers seeking to keep em- jority of incidents are firearm-related. ployees safe from workplace violence This Florida statute, commonly called However, a 2008 Florida law—sec- the “bring your gun to work” law, is can be caught in the crosshairs of tion 790.251, Florida Statutes—spe- conflicting laws. really more of “leave your lawful con- cifically allows employees, customers, cealed weapon in your car” law. Shortly and invitees to have firearms near an Workplace Violence after section 790.251 was introduced, employer’s place of business: a leasing agent for an apartment com- According to the Occupational Safety (4) Prohibited acts. — No public or munity in Florida sued his employer for and Health Administration (OSHA): private employer may violate the wrongful termination, alleging violation Workplace violence is violence or the constitutional rights of any customer, of public policy—specifically, the right threat of violence against workers. It employee, or invitee as provided in to bear arms in self-defense—after he can occur at or outside the workplace paragraphs (a)-(e): was fired for carrying a gun to the sight and can range from threats and ver- (a) No public or private employer may of a shooting on community premises.9 bal abuse to physical assaults and prohibit any customer, employee, or In granting summary judgment in favor homicide, one of the leading causes invitee from possessing any legally of the employer, the court reiterated of job-related deaths. However it owned firearm when such firearm is Florida’s “at-will” employment doctrine manifests itself, workplace violence lawfully possessed and locked inside 10 is a growing concern for employers with no public policy exception. In or locked to a private motor vehicle in and employees nationwide.3 its ruling, the court also rejected the a parking lot and when the customer, employee’s reliance on newly enacted employee, or invitee is lawfully in One OSHA report estimates that section 790.251, Florida Statutes.11 The such area. nearly two million Americans each court cited three reasons for finding year are victims of violence in the (b) No public or private employer such reliance to be “misplaced.” First, 4 workplace. In 2017, the Department may violate the privacy rights of a the employee did not have the gun in of Labor (DOL) reported 5147 fatal customer, employee, or invitee by his car, but rather carried his firearm occupational injuries, including 458 in- verbal or written inquiry regarding across company property.12 Second, the presence of a firearm inside or tentional homicides, over 76% of which the statute was enacted more than a were attributed to “shooting” violence.5 locked to a private motor vehicle in a parking lot or by an actual search of a year after the employee’s termination A recent study published in Injury Epi- 13 private motor vehicle in a parking lot and could not be applied retroactively. demiology noted: to ascertain the presence of a firearm Finally, the legislature had not created There were 1553 firearm workplace within the vehicle. Further, no public an exception for the specific facts pre- homicides during the study pe- or private employer may take any ac- sented by the case, evidencing a strong

8 intention not to create the exception Employer Immunity and when their employees engage in vio- to at-will employment. The court said: Liability lence involving firearms; however, that “The Legislature had the opportunity is not the case. Employers may still Florida Statute 790.251, the “bring to create such an exception when it face liability from suits under negligent your gun to work” law, affords employ- enacted [section 790.251] and chose hiring and negligent retention theories. ers some measure of protection from not to do so, making clear Florida The Amber Guyger case in Texas has liability when they comply with the has no general ‘right to bear arms on garnered national attention in this re- statute: employer property’ exception to at-will gard. Guyger, a female police officer, discharge.”14 (5) DUTY OF CARE OF PUBLIC shot and killed an unarmed man after AND PRIVATE EMPLOYERS; IM- she mistakenly entered his apartment “Stand Your Ground” MUNITY FROM LIABILITY.— (thinking it was her own) and mistook 19 Employers cannot stop employees or (a) . . . [A] public or private em- him for an intruder. In defense, Guyger 20 customers from possessing a firearm ployer has no duty of care related asserted the “castle-doctrine.” That in their cars at the business, so long to the actions prohibited under such defense failed, and she was convicted as the firearm remains in the vehicle subsection. of first-degree murder and sentenced 21 and does not enter the employer’s (b) A public or private employer is to ten years in prison. physical building. But what happens not liable in a civil action based on Guyger was off duty at the time of the when violence occurs in the parking lot actions or inactions taken in compli- shooting; however, she was in uniform or another location onsite? By way of ance with this section. The immunity and allegedly issued verbal com- 22 example in a non-employment context, provided in this subsection does not mands. In the civil suit, Jean v. City Michael Drejka fatally shot unarmed apply to civil actions based on actions of Dallas, Texas and Amber Guyger, Markeis McGlockton in the parking or inactions of public or private em- plaintiffs pled multiple claims for relief lot of a Clearwater convenience store ployers that are unrelated to compli- against the City of Dallas, including ance with this section. in July 2018. Both were customers of excessive use of force, failure to prop- the store.15 Ultimately, a jury convicted (c) Nothing contained in this section erly train officers on use of force, and Drejka of manslaughter and sentenced shall be interpreted to expand any failure to properly supervise and disci- him to twenty years in prison.16 The existing duty, or create any additional pline Guyger. The plaintiffs’ complaint shooting occurred in a parking lot, pre- duty, on the part of a public or private alleged that Guyger’s Pinterest post- cisely where employers are required to employer, property owner, or property ings served as warnings of her views allow guns that are lawfully possessed. owner’s agent. towards violence: Drejka, who had a concealed weapons At first glance, Florida employers are 26. . . . Defendant Guyger’s Pintrest license, was not charged for over a seemingly off the hook from liability account demonstrates that she is month due to Florida’s “stand your continued, next page ground law.”17 The statute provides that deadly force is justified when “neces- sary to prevent imminent death or great bodily harm to [oneself] or another or to prevent the imminent commission of a forcible felony.”18 Employers can seek to protect them- selves from liability by preventing employees from bringing firearms inside the workplace, but employers must permit lawfully possessed firearms in locked vehicles in the parking lot. Moreover, it would appear employers cannot stop someone from attempting to “stand the ground” with that gun in a parking lot. Given the different out- comes in the Drejka case and the case involving George Zimmerman (which preceded Drejka by several years and where the “stand your ground” argument was successful), juries may be retreating from affirming vigilante-style defenses.

9 claim . . . . Accordingly, Plaintiffs have and focus on problem employees with IN THE CROSSHAIRS, continued also failed to allege sufficient facts to known violence issues. While simply support an inference of causation.26 watching case law develop might be a dangerous individual with highly The district judge will now decide advisable in some areas of the law, it is violent and anti-social propensities. whether the case will be allowed to not wise here. Once tragedy strikes for Defendant, Guyger’s posts include proceed against the City of Dallas, but an organization, the effects can be last- statements like “Personally I think I allegations that the city failed to prop- ing. Employers should proactively seek deserve a medal for getting through erly supervise and train Guyger should to improve hiring and pre-employment this week without stabbing someone serve as a warning to employers. background checks, ensure strict poli- in the neck with a fork”; “People are cies of preventing workplace violence so ungrateful. No one ever thanks and disciplining offenders, and closely me for having the patience not to kill A Strong Offense Is the Best monitor dangerous social media post- them”; “I wear all black to remind you Defense ings. With more than thirty years of not mess with me, because I’m al- As discussed, Florida law protects ready dressed for your funeral (saved history lessons involving workplace employers from some liability relating to firearm violence, the goal of employers to love to laugh with comment “yah I workplace violence as a result of allow- got meh a gun a shovel and gloves if should not be simply to avoid liability, ing employees to keep firearms in their I were u back da f[***]k up and get out but to avoid tragedy. of meh f[***]king ass.”; “Stay low, go cars. Generally, workers’ compensation fast, kill first, die last, one shot, one laws are the sole remedy for injuries Tara E. Faenza is kill, no luck, all skill” was saved to her in the workplace, with the exception a labor and quotes for inspiration. Such post were of intentional torts. With juries show- employment available to the public and violated ing less sympathy toward “stand your associate at DPD’s social media polices however ground” defenses, it may be harder for Perlman, Bajandas, Defendant Guyger was never repri- employers to defend these cases. 23 Yevoli & Albright, PL manded for the same. Additionally, while the State of Florida in Miami and rep- prevents those convicted of felonies Daryl K. Washington, attorney for resents companies from owning firearms and carrying the Jean plaintiffs, stated: As“ we al- T. FAENZA and employees in licenses, it does not conduct a full lege in our pleadings and as we have employment and la- background check on those who apply always argued, Amber Guyger was bor disputes and advises clients in all for licenses. Instead, Florida requires clearly on duty. The great majority of aspects of employment law and general only that the applicant is over the the evidence, and the presentation by litigation matters. age of twenty-one, a citizen or legal Amber Guyger’s side, was that she was resident, not a felon; that three years a police officer and that she acted as a Endnotes have elapsed since the applicant has 1 police officer would behave.”24 It would Economic News Release, U.S. Dept. of La- had a conviction or withholding of ad- bor, Bureau of Labor Statistics, Census of Fatal be, Washington said, “totally awful in judication for a lesser offense; and that Occupational Injuries News Release (Dec. 18, situations like this” to “simply release 2018) at Table 2, https://www.bls.gov/news.re- the applicant has not been convicted lease/cfoi.t02.htm [hereinafter Economic News the city from liability when there’s an of- of misdemeanor domestic violence.27 25 Release]. ficer [who] takes the life of someone.” Also, an employee background check 2 Postal, Postal 2, Postal III, and Postal Redux The magistrate judge in the Jean case would not necessarily reveal that a are video games created by Running with Scis- sors (an American video game developer com- was unmoved, recommending that the person has had anger or other mental city be dismissed from the suit: pany). health issues not culminating in an ar- 3 Fact Sheet, OSHA, Workplace Violence [P]laintiffs’ assertions that Officer’s rest or conviction, but the background (2002), https://www.osha.gov/OshDoc/data_ actions resulted from a lack of train- check might, to some extent, shield em- General_Facts/factsheet-workplace-violence. pdf. ing, supervision, and/or discipline are ployers from liability for negligent hiring. 4 Id. too vague and conclusory to support In the hiring process, the employer 5 Economic News Release, supra note 1 at the causation element for municipal cannot lawfully ask if the person owns Table 2. liability. They are not sufficient to a firearm. The employer may or may not 6 Mitchell L. Doucette et. al., Workplace Ho- show “how the [alleged] customs and have access to information regarding micides Committed by Firearm: Recent Trends and Narrative Text and Analysis, Inj. Epidemiol., practices . . . were a ‘moving force’ past violence. However, an employer behind the [alleged] specific consti- 6, 5 (2019), https://injepijournal.biomedcentral. who turns a blind eye to the actions of com/articles/10.1186/s40621-019-0184-0 (citing tutional violations made the basis an employee and does not act when News Release, U.S. Dept. of Labor, Bureau of of this suit . . .”. To the extent that Labor Statistics, National Census of Fatal Oc- Plaintiffs allege other action on the signs of danger and violence are appar- cupational Injuries in 2015 (Dec. 16, 2016)). part of Defendant’s policymakers in ent may find itself a defending party to 7 News Release, U.S. Dept. of Labor, Bureau support of causation, the conclusory a negligent retention case. Employers of Labor Statistics, Southeast Information Office, should implement strong violence pre- Fatal Occupational Injuries in Florida – 2016 statements and formulaic recitations (Feb. 22, 2018), https://www.bls.gov/regions/ of the elements in the complaint vention and response training, engage southeast/news-release/2018/pdf/fatalworkinju- likewise do not suffice to state a in stricter supervision of employees, ries_florida_20180222.pdf. An additional 17%

10 were attributed to “[a]ll other” fatal occupational injuries nationally in 2016. Id. 8 Fla. Stat. § 790.251(4)(a)–(b) (2019). 9 Bruley v. Vill. Green Mgmt. Co., 592 F. Supp. 2d 1381, 1384 (M.D. Fla. 2008). Audio Webcast 10 Id. at 1384–85. 11 Id. at 1386. 12 Id. January 8, 2020 13 Id. at 1386–87. 14 Id. at 1387. 12:00 p.m. - 1:00 p.m. 15 Eric Glasser, Man at Center of Clearwater ‘Stand Your Ground’ Case Previously Had Con- frontations at Same Store, WTSP (6:44 AM EDT, Be an Expert in Handling Experts: July 24, 2018), https://www.wtsp.com/article/ news/man-at-center-of-clearwater-stand- Best Practices for Expert your-ground-case-previously-had-con- frontations-at-same-store/67-576767176. Designation, Discovery, Direct 16 Kathryn Varn, Michael Drejka Sentenced to 20 Years in Parking Lot Shooting, Tampa Bay and Cross-Examination (3575) Times (Oct. 11, 2019), https://www.tampabay. com/news/crime/2019/10/10/michael-drejka- sentenced-to-20-years-in-manslaughter-case/. 17 Kathryn Varn, No Arrest in Fatal Shoot- CLICK HERE TO REGISTER ing During Argument over Handicap Parking Space, Tampa Bay Times (July 25, 2018), https:// web.archive.org/web/20180725192819/http:// tampabay.com:80/news/publicsafety/crime/No- arrest-in-fatal-shooting-during-argument-over- handicap-parking-space_170174041. 18 Fla. Stat. § 776.013(1)(b) (2019). 19 Darran Simon, Jurors Can Consider the So- Called Castle Doctrine in the Murder Trial of Ex- Police Officer Amber Guyger, CNN (5:48 AM ET, Oct. 1, 2019), https://www.cnn.com/2019/10/01/ us/amber-guyger-trial-castle-doctrine/index.html. 20 Id. 21 Michael Brice-Saddler et. al., The Amber Guyger Case Has Sparked Emotional Fallout Across Dallas, Wash. Post (7:25 PM EDT, Oct. 10, Audio Webcast 2019), https://www.washingtonpost.com/national/amber-guygers-conviction-has-triggered-emotional-fallout-across-dallas/2019/10/10/7f12dafc- e9f8-11e9-9306-47cb0324fd44_story.html. February 5, 2020 22 Id. 23 Plaintiffs’ Original Complaint [ECF Doc. 5], 12:00 p.m. - 1:00 p.m. Jean v. City of Dallas, 3:18-cv-02862-M at ¶26 (N.D. Tex. Oct, 27, 2018). 24 City of Dallas Might Not Be Part of Botham Jean’s Family’s Civil Lawsuit After All, NewsOne Flexible Work Arrangements: (Oct. 18, 2019), https://newsone.com/3890601/ dallas-botham-jean-amber-guyger-civil-lawsuit/ Legal Implications of a (quotation marks omitted). 25 Lauren Floyd, ‘Amber Guyger Was on Duty’: Millennial Must-Have (3576) Attorney Fights Back Against Judge’s Request to Remove City of Dallas from Jean Family’s Civil Suit, Atl. Black Star (Oct. 22, 2019), https:// atlantablackstar.com/2019/10/22/amber-guyger- CLICK HERE TO REGISTER was-on-duty-attorney-fights-back-against-judg- es-request-to-remove-city-of-dallas-from-jean- familys-civil-suit/ (quotation marks omitted). 26 Findings, Conclusions, and Recommendation [ECF Doc. 33], Jean v. City of Dallas, 3:18-cv- 02862-M (N.D. Tex. Oct, 27, 2018) at pp. 17–18 (internal citations omitted) (quoting Bragg v. Safeek, No. 3-09-CV-1931-N-BD, 2010 U.S. Dist. LEXIS 131487 (N.D. Tex. Dec. 13, 2010)). 27 Fla. Stat. § 790.06 (2019).