GUNS AND THE WORKPLACE - Nexsen Pruet€¦ · A person in their home or upon their real property –or if the person has the permission of the owner or the person in legal possession

James T. Hedgepath**Certified Specialist in Employment and Labor Law

GUNS AND THE

WORKPLACEEMPLOYMENT LAW QUARTERLY BREAKFAST BRIEFING

JANUARY 19, 2017

www.nexsenpruet.com Employment Law Quarterly Breakfast Briefing: Guns and the Workplace

WHY DISCUSS GUNS AT AN EMPLOYMENT LAW

BRIEFING?

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‣ Misinformation – Fact v. Fiction – What does the law

really say about firearms?

‣ Concealed Weapons are everywhere – 276,084 CWPs in

South Carolina as of 12/31/15 (4.832 million+ population)

‣ Number likely grew by 30-35K in 2016

‣ What about concealed weapons in the workplace?

‣ What is the workplace?


WHY DISCUSS GUNS AT AN EMPLOYMENT LAW

BRIEFING?

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‣ 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?


THE BASICS

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‣ 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.


THE BASICS (CONT.)

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‣ What is a “handgun”?

‣ S.C. Code Ann. § 16-23-10(1) defines “handgun” as a “firearm

designed to expel a projectile and designed to be fired from the

hand, but shall not include any firearm generally recognized or

classified as an antique, curiosity, or collector’s item, or any that

does not fire fixed cartridges.”

‣ More simply, a handgun is a pistol or revolver that an individual has on

hand to shoot and not to collect as a hobby


THE BASICS (CONT.)

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‣ Who can an lawfully possess a handgun without a CWP (assuming the individual

can legally own a handgun)?

‣ A person in their home or upon their real property – or if the person has the permission of the

owner or the person in legal possession or legal control of the home or real property

‣ In the individual’s vehicle IF the handgun is secured in a closed glove compartment, closed

console, closed trunk, or in a closed container secured by an integral fastener and transported in

the luggage compartment (trunk or cargo area if no trunk) of the vehicle

‣ Think two steps

‣ While carrying an unloaded handgun, in a secure wrapper, from the place of purchase to the

individual’s home or fixed place of business or while in the process of changing or moving one’s

residence or changing or moving one’s fixed place of business

‣ The owner or the person in legal possession or the person in legal control of a fixed place of

business while at the fixed place of business (open carry is allowed in this situation)


THE BASICS (CONT.)

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‣ 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 South Carolina

gun registration requirements

‣ 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)


THE BASICS (CONT.)

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‣ 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 . . . ?


THE BASICS (CONT.)

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‣ Who can purchase a firearm from a private individual?

‣ To purchase a long gun or handgun from a private individual in South

Carolina, the buyer must be at least 18 years old

‣ 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 . . .?


THE BASICS (CONT.)

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‣ 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


THE BASICS (CONT.)

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‣ 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)


CONCEALED WEAPONS PERMIT (CWP)

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‣ South Carolina “Law Abiding Self-Defense Act of 1996”

‣ Generally allows CWP holder to carry a handgun in most places

‣ What is a “concealable weapon”?

‣ Firearm having a length of less than 12 inches measured along its greatest

dimension, i.e., small and medium sized handguns

‣ “Must be carried in a manner that is hidden from public view in normal wear of

clothing except when needed for self-defense, defense of others, and the

protection of real or personal property”



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‣ Who can obtain a CWP?

‣ Must be resident of South Carolina or qualified non-resident (own real

property in SC)

‣ Must be at least 21 years old

‣ Must be able to qualify (with concealable handgun of the individual’s choice)

‣ Must submit application to SLED (State Law Enforcement Division) –

fingerprinting, background check, etc.

‣ Must complete CWP course provided by licensed instructor



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‣ Unlawful places to carry even with a CWP (non-exhaustive list)

‣ Any governmental building, e.g., police station, courthouse, detention facility

‣ Polling place on election day

‣ Any school; however, S.C. Code Ann. § 16-23-430(B) provides that a CWP holder may possess

a concealed weapon on school premises “when the weapon remains inside an attended or locked

motor vehicle and is secured in a closed glove compartment, closed console, closed trunk, or in a

closed container secured by an integral fastener and transported in the luggage compartment of

the vehicle”

‣ Daycare or pre-school facility

‣ Any place where carrying a firearm is prohibited by federal law

‣ A church unless the individual has express permission of the appropriate church official or

governing body

‣ Hospital, medical clinic, or doctor’s office, unless authorized by the employer



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‣ Can a CWP holder carry a concealed weapon into a residence?

‣ S.C. Code Ann. § 23-31-225 provides that a CWP holder may not “carry a

concealed weapon into the residence or dwelling place of another person without

the express permission of the owner or person in legal control or possession, as

appropriate.”

‣ What about carrying a concealed weapon from a personal automobile to a hotel

room?

‣ S.C. Code Ann. § 23-31-230 provides as follows: Notwithstanding any provision

of law, any person (not just a CWP holder) may carry a concealed weapon from

an automobile or other motorized conveyance to a room or other accommodation

he has rented and upon which an accommodation tax has been paid.”



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‣ 2016 Changes to CWP law

‣ In June 2016, Governor Haley signed a bill allowing CWP holders to carry

concealed weapons in bars and restaurants that serve alcohol

‣ This was previously illegal

‣ If the CWP holder is carrying a concealed weapon in a restaurant or bar, the

CWP holder may not consume alcohol



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‣ What if a business owner wants to prohibit concealed carry at their place of

business?

‣ S.C. Code Ann. § 23-31-220 specifically addresses this issue as follows:

Nothing contained in this article shall in any way be construed to limit,

diminish, or otherwise infringe upon

(1) the right of a public or private employer to prohibit a person who is

licensed under this article from carrying a concealed weapon upon the

premises of the business or work place or while using any machinery,

vehicle, or equipment owned or operated by the business;

(2) the right of a private property owner or person in legal possession or

control to allow or prohibit the carrying of a concealed weapon upon his

premises



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‣ S.C. Code Ann. § 23-31-220 continues as follows:

The posting by the employer, owner, or person in legal possession or control

of a sign stating “No Concealable Weapons Allowed” shall constitute notice to

a person holding a permit issued pursuant to this article that the employer,

owner, or person in legal possession or control requests that concealable

weapons not be brought upon the premises or into the work place.

‣ Thus, an employer, owner, or person in legal possession or control of property

may prohibit a CWP holder from carrying a concealed weapon via either

personal communication or appropriate signage

‣



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‣ Sign Requirements – failure to meet requirements in any way means that the sign is not

enforceable against CWP holders

‣ Requirements – All signs must be posted at each entrance into a building where a CWP

holder is prohibited from carrying a concealed weapon and must:

‣ Be clearly visible from outside the building; and

‣ Be 8 inches wide by 12 inches tall (not 8.5 x11); and

‣ Contain the words “NO CONCEALABLE WEAPONS ALLOWED” in black one-inch tall uppercase type

at the bottom of the sign and centered between the lateral edges of the sign; and

‣ Contain a black silhouette of a handgun inside a circle seven inches in diameter with a diagonal line

that runs from the lower left to the upper right at a 45 degree angle from the horizontal; and

‣ Be a diameter of a circle; and

‣ Be placed not less than 40 inches and not more than 60 inches from the bottom of the entrance door


SAMPLE SOUTH CAROLINA COMPLIANT SIGN

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EMPLOYER POLICIES VERSUS EMPLOYEE RIGHTS

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‣ What are an employer’s rights regarding prohibiting guns

in the workplace?

‣ Let’s start with some basics

‣ There is a difference between whether an employee has a legal

right to carry or possess a gun in the workplace and whether the

employee is allowed to carry or possess a gun in the workplace



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‣ 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 handgun or long

gun in the workplace?

‣ Can an employee with a CWP carry a handgun or long

gun in the workplace?



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‣ 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 SOUTH

CAROLINA



HOW DO WE DEFINE THE “WORKPLACE”?

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‣ The “workplace” obviously includes areas of the

employer’s place of business where work is performed or

employees congregate or move during work hours, e.g.,

manufacturing floor, call center floor, warehouse, break

rooms, restrooms, locker rooms, etc.

‣ What about company vehicles?

‣ YES – a company vehicle is considered part of the workplace.

Thus, a no gun policy would prevent an employee who is or is

not a CWP holder from possessing or carrying a gun while

inside a company vehicle



HOW DO WE DEFINE THE “WORKPLACE”?

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‣ What about travel in a personal vehicle?

‣ NO – a personal vehicle would not be considered part of the workplace. Thus,

while a no gun policy would prevent an employee from carrying a gun from

his/her vehicle into a work area or other prohibited area, an employer cannot

prohibit a CWP holder from possessing or carrying a gun while inside his/her

personal vehicle and off company property even if the employee is on

company time.

‣ The employer is still free to enforce its other policies. For example, any action

involving a gun by an employee who possesses or carries the gun in their

personal vehicle that endangers the life or safety of another employee, client,

etc. would be subject to an applicable workplace safety policy


POLICY OPTIONS

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‣ 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)


POLICY BEST PRACTICES

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‣ 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.

‣ For example, the employee could be instructed that even though he/she is a CWP holder and is

carrying a gun, the gun may not be used to prevent a robbery (the employer cannot instruct the

employee that they cannot use the gun for purposes of self defense; however, an employee could

be disciplined for doing so)


POLICY BEST PRACTICES

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‣ A guns in the workplace policy should be clearly communicated to all employees,

preferably via the employer’s employee handbook

‣ 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


FINAL NOTES ON POLICIES

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‣ Can an employer with no policy still prevent guns in the workplace?

‣ Absolutely. For example, an employer could communicate a no guns in the workplace or on

company property rule verbally to employees. Such a rule would apply to a CWP holding

employee.

‣ Or, 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

‣ In fact, for those employers with places of business that are open to the public, a decision

must be made about whether to allow members of the public to legally carry inside a building

– provided such individuals possess a valid CWP

‣ Can an employer discipline an employee that violates a verbal rule

or 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


POTENTIAL LIABILITY FOR EMPLOYEE

DISCIPLINE

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‣ Courts in some states have recognized a public policy exception to

the employment at-will doctrine when an employer terminated an

employee’s employment for legally storing a gun in the employee’s

vehicle on company policy

‣ South Carolina has not adopted this exception


FINAL THOUGHTS

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‣ 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 guns in the workplace and on

company property trumps the Second Amendment – at least in

the private employer setting in South Carolina

‣ Know the law and your rights as an employer


FINAL THOUGHTS

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‣ 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


QUESTIONS/COMMENTS?

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James T. Hedgepath

864.282.1139

[email protected]

mailto:[email protected]

Documents

GUNS AND THE WORKPLACE - Nexsen Pruet€¦ · A person in their home or upon their real property –or if the person has the permission of the owner or the person in legal possession