March 14, 2018
Few topics produce more heated reactions than guns, gun violence, and the Second Amendment. For employers in North and South Carolina, this subject can be especially fraught, as both states are near or at record highs in gun ownership. Moreover, as frightening workplace and school shootings become all too frequent, customers, vendors and employees want to know whether, and to what extent, they can or should arm themselves as they go about their workday.
In this light, Nexsen Pruet’s Employment Law team is offering a three-part series of articles on guns in the workplace. Our first piece explores gun ownership statistics, handling the Second Amendment argument, and tailoring a gun policy to fit your workplace needs. The second will assist employers with disciplinary issues involving guns, as well as a related policy concern: searches and seizures in the workplace. Finally, we will close with an article regarding forward-facing gun policies; i.e., guns in the hands of your customers, clients, and vendors.
Gun ownership near an all-time high
Statistics vary, but most reliable sources estimate there are between 300 and 350 million guns in the United States. Between 42 percent and 44 percent of U.S. households have at least one gun. This number is actually down slightly from the late 1980s and early 1990s, when the figure was about 47 percent. Drilling down a bit, surveys indicate that approximately 3 in 10 Americans personally own a gun, and an additional 11 percent live with someone who does. Additionally, of the 70 percent who do not own a gun, roughly 38 percent say they “could see themselves owning a gun at some point in the future.” Estimating gun ownership by state is especially tricky, but most data puts at least one gun in 40 to 45 percent of South Carolina homes and 25 to 30 percent of North Carolina homes.
Concealed carry permits are also on the rise. In South Carolina, there are about 308,000 concealed-carry permit holders; in North Carolina, the number is nearly double, at roughly 605,000. In sum, between three and four people out of every 10 in North and South Carolina own or have ready access to a gun, and nearly 1 million residents of the two states can legally carry a concealed handgun.
The Second Amendment
With gun ownership so high and gun-related issues so controversial, many employers hesitate to even broach the subject of guns with their employees. And those that do often hear, “I know my Second Amendment rights” in response. Statements like this stem from the popular misconception that amendments to the U.S. Constitution, in particular the Second, override anything thought to be remotely in conflict. That is simply incorrect. The amendments only restrain government action against an individual; they are not applicable to private employers or their workplace policies. Indeed, the reality is the exact opposite: The workplace policies of private employers always prevail over the Second Amendment. Bottom line, you can – and should – address the subject head on and without fear of the Second Amendment.
Conflict between employee and employer rights
There is a significant difference between whether an employee has a legal right to carry or possess a gun in the workplace and whether the employer allows the employee to do so. For example, an owner or lessee of property, with the legal right to occupy that property, may permit legal gun owners to carry a weapon on their private property – even if the individual does not otherwise have a legal right to carry that weapon on a city street. In other words, a business (or private property) owner can permit gun owners (even those without a concealed-carry permit) to carry a weapon on that property. Conversely, that same property owner or lessee could choose to ban any guns on the property – even those in the hands of a legal concealed carry permit-holder. In short, it is up to you, the employer and business owner, to determine if, and to what extent, you allow guns in the workplace.
What, exactly, is the “workplace”?
It is important to first define what, precisely, is the workplace. The workplace plainly consists of the physical area where work is completed. In an office setting, this would include all workstations or cubicles, break rooms, and restrooms. In a manufacturing setting, it would include similar areas, such as the manufacturing floor, locker rooms, changing areas and the like. The “workplace” also includes company-owned vehicles, company-managed parking areas and, depending on the circumstances, may include personal vehicles for which the company pays the employee a stipend. Generally, however, personal vehicles are not the workplace, even if the employee is commuting to work in the vehicle. Thus, an employer could not ban an employee from keeping his or her gun in a personal vehicle. However, the company could bar any gun from entering the parking lot; that would include a gun inside a personal vehicle.
Scenario 1: The policy of no policy
A “see-no-evil, hear-no-evil” policy is a bad idea in almost every respect. It is particularly troubling with regard to guns in the workplace. Indeed, any employee with a legal right to own and possess a weapon can – and may already be – carrying a handgun or long gun in a company vehicle, unless the employer has drafted a well-written policy providing otherwise. Furthermore, if an employee is the owner of a concealed weapon permit, he or she would be legally allowed to carry a handgun onto, and inside, your company property – unless, once again, a policy says otherwise.
Scenario 2: Zero tolerance
A zero tolerance policy – that is, no guns of any kind, in any manner, anywhere in the workplace – is permissible and fully enforceable in both North and South Carolina. Employers sometimes favor this format because it leaves no gray areas or room for interpretation. If adopted, a new zero tolerance policy should be in writing, either in a revised employee handbook or in a new, stand-alone policy. It should also be communicated clearly and in several different formats (company-wide email, breakroom posting, etc.).
Other companies disfavor zero tolerance, especially in gun-friendly states, because it would not allow, for example, an employee to leave his rifle in the company parking lot after a long morning in the duck blind. Moreover, a zero tolerance policy is difficult to enforce consistently, and discriminatory enforcement brings with it a separate set of issues.
Scenario 3: The middle ground
A middle ground is possible. For example, some employers choose to allow workers who are concealed-permit holders to carry their weapon to work, but require them to leave it in their vehicle. Others allow employees who are permit holders to carry on-the-job but bar them from using their weapons for anything other than self-defense. A middle-ground policy provides more flexibility for employees who present no safety concerns but who, for example, want to carry a rifle in their vehicle for post-work hunting.
Regardless of which option you choose (and there are many available), the key is to have a well-drafted, written policy; clearly communicate that policy to your employees; and enforce it consistently going forward.
In a future installment we will discuss disciplining employees for violating weapons policies, as well as whether and how to search employee property in company workspaces. In the meantime, contact the Nexsen Pruet Employment Law team at any time for assistance with your gun policy.
Our Insights are published as a service to clients and friends. They are intended to be informational and do not constitute legal advice regarding any specific situation.