Is conceal and carry justified in the workplace? | submitted by Nilesh P. Patel

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2011 Wisconsin Act 35, otherwise known as the Conceal and Carry Law, goes into effect on November 1 of this year. The new law will allow licensed individuals to carry, defined as “to go armed with,” a concealed weapon into most public and private spaces, including into the workplace. Employers who do not want to allow concealed weapons will have to exercise their right to opt their workplace out of the new law’s reach.

This article discusses the reasons why employers should exercise that right, unless there is an important business justification for the carrying of concealed weapons in the workplace or in other places during the course of employment. The article does not discuss the carrying of unconcealed weapons or what a general “conceal and carry” policy should look like.

Employer rights and limitations

Employers will have the ability to prohibit licensed employees from carrying a concealed weapon, even a specific type of concealed weapon, into the workplace and during the course of their employment. It should also be possible to prohibit the carrying of concealed weapons in only certain parts of the job. The one limitation is that employers may not prohibit a licensed employee from carrying or storing a concealed weapon in the employee’s motor vehicle, even if the vehicle is used in the course of employment or parked on property used by the employer.

However, employers may want to look into the possibility of requesting or reaching an agreement where employees voluntarily agree not to carry or store a concealed weapon while a vehicle is used to conduct the employer’s business or while in the employer’s parking lot. Lastly, while employers may draft a policy that would limit employees from carrying a concealed weapon onto the premises, employers must post at least a 5”x7” sign near all the entrances to notify others (visitors, vendors, clients, etc.) of the restrictions.

As a side note, employers who lease their property should contact their landlord to avoid a situation of conflicting policies, where one party wants to allow concealed weapons, while the other one does not.

Factors to consider

Regardless of personal views on gun ownership, concealed weapons (and even unconcealed weapons) should only be allowed in the workplace if there is a solid business justification. The questions to ask are whether concealed weapons add value to the organization and its purposes, to its employees, or to its clients.

Obvious examples where employers could allow concealed weapons are security industries or security occupations, such as law enforcement. However, no others readily come to mind.

The nightmare scenario that supports allowing employees or others to carry concealed weapons is where someone shows up armed and becomes violent. In that instance, having employees armed with concealed weapons may limit injuries and casualties. However, an individual who is untrained and untested in handling such stressful situations may not be so helpful. The person is just as likely to become a target or may injure others who get caught in a crossfire. So while the idea of people being able to defend themselves sounds reassuring, the reality may be far worse.

In most cases, employers are better off hiring an armed security guard or screening for weapons, rather than allowing individuals to carry concealed weapons. The administrative hassles alone make it easier to prohibit concealed weapons. If concealed weapons are allowed, will employers want to track who has one? What about ensuring whether individuals have a proper license? Or ensuring that the proper type of concealed weapon is brought in? What policies, standards, or methods will employers insist on so that weapons do not get stolen, “borrowed,” or otherwise misplaced?

Assuming employees will not be allowed to bring a weapon of any kind into a disciplinary or termination meeting, where will the weapon be stored in the meantime? Lastly, depending on the company’s size, how much time do employers want to spend dealing with employee discipline issues when rules are not followed properly?

The new law does provide immunity to employers who do not prohibit one or more employees from carrying a concealed weapon. The immunity would be from any liability resulting from the employer’s decision to allow concealed weapons. There is no corresponding immunity for employers who do prohibit concealed weapons. In theory, this seems like a business advantage; allow concealed weapons and be absolved of any damage awards in case something goes wrong.

However, this is a new law and there will likely be substantial litigation to determine what the Legislature means by “any liability arising from [the employer’s] decision.” Did the Legislature intend there to be blanket immunity for the initial decision to allow concealed weapons, plus all consequences that result from that decision? Or does the immunity only extend to the initial decision to allow concealed weapons but not to subsequent problems that flow from other decisions, such as failure to discipline someone who does not follow the employer’s policies? Only time and the courts will provide those answers.

In the meantime, the costs associated with allowing concealed weapons may include increased insurance or worker’s compensation premiums, damage to the business’s reputation as a safe place to be or to work, and most importantly, injury or loss suffered by innocent bystanders.

Nilesh P. Patel is the principal attorney of the Mahadev Law Group, LLC, which focuses on employment law issues in the workplace.

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