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” argu- ment 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.

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