Posted on Mar 12, 2015 by Jessica Lee Gooding
Author’s Note: At the time of this blog post, the South Carolina Assembly has yet to weigh in on House Bill 3306, which could alter the guidance provided below. As always, it is best to check with your legal counsel concerning best practices for legal compliance with this and other laws regulating the workplace.
Guns are a tough issue for many business owners. They may own guns and support the Second Amendment, but as business owners, they recognize that when employees bring guns to work, potential liability is created. And while some employees may feel like their Second Amendment rights are limited by workplace policies, most will understand their employer’s concern for dangerous accidents – and resulting lawsuits – that can occur when employees are permitted to carry concealed weapons.
For legislators, the issue comes down to employers’ property rights versus individuals’ gun rights. In South Carolina, the General Assembly, so far, has sided firmly with employers. Business owners have the right to prohibit – or allow – guns in the workplace. This applies to all company property, including the parking lot and company vehicles.
This could change with a bill filed in the General Assembly, House Bill 3306, which would allow employees to bring guns to company parking lots, as long as the weapons are stored out of sight and are locked in a vehicle. Even if the bill passes in its present form, employers would retain an absolute right to ban guns elsewhere on company property.
If you choose to prohibit guns in the workplace, you should communicate the policy in an employee handbook and ensure that every employee acknowledges the rule upon hiring. We recommend that the policy include the right to search an employee’s purse, lunchbox, briefcase or car if the employer has a reasonable suspicion that the weapons rule is being violated. Employees have the right to refuse a search, but that would allow the employer to terminate them. Of course, for government employers, any policy related to searches must comply with the Fourth Amendment.
A policy prohibiting weapons must be enforced consistently. As with any other policies on employee conduct, you’ll be on shaky legal ground if you ignore violations by one employee and discipline another.
Employers can’t prohibit off-site carry
There are some gray areas.
Let’s say you have an employee who travels in her own car on company business. Courts have not yet decided whether the employer has the right to prohibit that employee from carrying a concealed weapon with the proper license. Employers generally have the right to prohibit employee conduct that is inconsistent with company values or considered to be unprofessional, but because individuals have a Constitutional right to possess a fire arm, prohibiting an employee from legally carrying one while on business away from the office may go too far. You can have a policy that “discourages” the carrying of weapons while on company business, but employees are free to regard it only as a suggestion.
However, you do have the right to expect appropriate conduct from the employee on company business. Just as you can forbid employees from texting on their personal cell phones while driving on company business, you can set reasonable expectations for the safe handling of weapons. Any action that endangers the life or well-being of any other employee, customer, vendor, or other party may be grounds for discipline under a workplace safety policy. Anything that makes a customer uncomfortable can be covered by a professional code of conduct. South Carolina does not allow open carry of firearms by civilians, so there’s no reason for an employee to ever let anyone know they are carrying a weapon.
You still need an employee policy if you allow guns
If you choose not to have a prohibition on guns, there are several precautions you should take, including discussing it with your insurance carrier.
Ask employees if they ever expect to bring a gun to work and where it is stored – in a briefcase, for example, or the glove box of a car. You have a right to know, and you can require that the weapon be stored in a manner that makes it less likely to fall into the wrong hands.
As with employee weapons carried off of your premises, you should expect safe behavior. That means safe storage and never accessing the gun at work, short of an emergency. If you run a retail business, you may want to tell employees not to use a gun to prevent a robbery, but only to protect themselves or others from grave injury. This advice comes from the perspective of reducing the risk of injury to bystanders and the litigation that surely would follow.
Advocates from both sides of the political spectrum regularly try to amend state gun laws, so it’s a good idea to consult legal counsel to ensure your weapons policy aligns with current law and reduces your exposure to costly litigation.
Jessica Lee Gooding is an associate in the Columbia, S.C., office of Turner Padget, where her practice focuses on employment litigation and personal injury litigation. She may be reached at (803) 227-4338 or by email at firstname.lastname@example.org.