Some of the most notable recent mass shootings in the United States have been perpetrated by current or former employees in their workplaces. For example, on April 10, 2023, an employee of a bank in Louisville, Kentucky, who had been notified that he was going to be terminated, shot and killed five bank employees and wounded many others who were attending a morning staff meeting. In 2021, a Santa Clara Valley Transportation Authority employee shot and killed nine of his fellow employees in a San Jose, California railyard. In its publication, “Active Shooter Incidents in the United States in 2022”, the FBI reported that of the 50 active shooter incidents in the United States in 2022, 14 of them, comprising 28 percent of the total, occurred in “commerce” settings.
Bullying, intimidation, and harassment were previously more ubiquitous forms of workplace violence. However, in the wake of increasingly common shootings involving disgruntled employees and in the absence of more robust legislation regulating the purchase and sale of guns, employers need to be increasingly focused on preventing gun violence in their workplaces, especially those with doors open to the public, like hospitals, government facilities, shopping centers, banks and restaurants.
Employers’ General Duty to Provide Safe Workplace
Keeping employees out of harm’s way is not the only reason employers need to focus on minimizing gun-related violence. Workplace violence reduces productivity and retention, costing employers billions per year nationwide. In addition, employers may face legal consequences and significant liability if they fail to take appropriate steps to avoid these kinds of incidents.
The General Duty Clause of the Occupational Safety and Health Act (“OSHA”), 29 U.S.C. § 654(a)(1), requires employers to maintain workplaces “free from recognized hazards that are causing or likely to cause death or serious physical harm.” Although OSHA contains no specific rules on workplace violence, OSHA has cited employers under the General Duty Clause for failing to prevent foreseeable workplace violence, which may include monetary and criminal penalties. For example, in March 2019, in Sec’y of Labor v. Integra Health Management, Inc., the Occupational Safety and Health Review Commission (“OSHRC”) affirmed a citation issued to Integra, a social services provider, after a mentally ill client and member with prior convictions for aggravated assault and battery fatally stabbed one of Integra’s employees who had previously reported the client’s disturbing behavior. OSHRC concluded that Integra violated the General Duty Clause by exposing its employees “to the hazard of being physically assaulted by members with a history of violent behavior.”
Employees injured at work are usually limited to seeking compensation for injuries and lost wages under an employer’s workers’ compensation coverage. However, with the rise of workplace violence, employees and, in some cases, third parties, such as patients, customers, vendors, or contractors have filed civil actions against employers alleging they inadequately thwarted threats of workplace violence, including mass shootings. Such lawsuits may include claims of negligent hiring/supervision, hostile work environment, and vicarious liability. For example, families of employees killed in the April 2021 FedEx ground facility mass shooting sued FedEx in Indiana federal district court alleging negligence in failing to prevent the shooting. However, the judge dismissed that lawsuit on grounds that workers’ compensation was the only remedy available to the employees’ families because there were no allegations that FedEx was warned of the threat. Conversely, in 2016, a federal district judge in Washington, D.C. declined to dismiss similar lawsuits against government contractors, whose employee committed a mass shooting at a U.S. Navy facility, because the companies knew the shooter had been arrested on gun charges before and that other employees reported feeling he might hurt others.
Similarly, employers are typically only held liable for the conduct of their own employees when such conduct occurs within the scope of their employment. In certain cases, however, courts may find that employers had a duty, and failed, to control or prevent their employees’ actions outside the scope of employment. An example of such a case may be when obvious warning signs were present or the employer otherwise knew or should have known that an employee posed a risk of committing workplace violence.
Despite the rise in workplace gun violence and the potential legal consequences for failing to prevent it, many employers still lack two of the most arguably essential prevention strategies. The first is a workplace anti-violence policy (including robust complaint procedures for potential threats of workplace violence including an employee hotline and investigation procedures). The second is an emergency operations plan that includes assembling a workplace violence assessment and prevention team comprised of employees from senior management, human resources, security, legal and other areas. Other strategies include training all employees on identifying (and reporting) threats, troubling behavior or warning signs; training employees on active shooter response tactics (such as “run, hide, fight”); and increasing security measures like access control, alarms, and video surveillance.
Additionally, if a former employee becomes an imminent danger, obtaining a restraining order may be possible. An increasing number of states, including Arizona, California, North Carolina and others, have laws expressly allowing employers to seek restraining orders preventing certain individuals from entering the workplace or contacting employees.
It is not only current employers that face potential exposure; former employers do as well. A former employer may face lawsuits from both the employer where the violent act occurred, as well as any victims or their families, under claims like failure to warn or negligent misrepresentation. Although employers are often reluctant to provide negative references out of fear of defamation claims or other lawsuits, former employers may want to consider avoiding providing neutral references in these situations. For example, if an employer provides a neutral reference for a former employee who was terminated for bringing a gun to work or repeatedly counseled for threatening other employees, a new employer may have claims against the former employer if the employee then attacks employees at the new workplace.
Impact of Supreme Court’s Opinion in New York State Rifle & Pistol Association v. Bruen
Employers also need to pay close attention to developing case law applying the U.S. Supreme Court’s opinion in New York State Rifle & Pistol Association v. Bruen that expanded the right of Americans to bear arms as guaranteed by the Second Amendment of the U.S. Constitution by significantly curtailing a state’s ability to restrict citizens’ right to carry firearms publicly for their self-defense. The Bruen opinion did not explicitly address the workplace; nor does it prevent employers from enforcing their own restrictions on the possession and carrying of firearms in their own workplaces. Because the Bruen opinion recognized a constitutional right to bear arms in public for self-defense, however, it may result in challenges to private restrictions, including workplace bans on guns in the workplace.
Employers also need to pay close attention to applicable state laws. Currently, no state law restricts a private employer from prohibiting weapons in the workplace, provided the employer complies with applicable state laws, which remain unaffected by the Bruen opinion. Generally, state laws contain two types of regulations: requiring signage (although the precise contours of the signage requirement differ from state to state) and permitting employees to bring firearms into parking lots on the employer’s property. Additionally, several states prohibit or restrict employees from storing firearms in privately-owned vehicles parked on employer property. Other states have laws that allow employees to keep firearms in their private vehicles even when they are parked on employer-owned property, though some of those states have limitations on where the firearm must be stored inside the vehicle.
Finally, some states grant immunity to employers from liability for any injuries resulting from the storage of a firearm in a vehicle in employers’ parking lots. Further, three states (Florida, North Dakota and West Virginia) prohibit inquiries about firearms that may be stored in vehicles, and prevent employers from searching employees’ vehicles for firearms, although searches may be conducted by law enforcement officials.
Recommendations for Employers
In light of the current importance and ever-changing nature of this area of law, particularly since the Supreme Court’s Bruen opinion, and the proliferation of mass shootings in the U.S., employers should consult with legal counsel to ensure that they have legally compliant and effective workplace policies dealing with guns and potential deadly violence in the workplace.