Guns in the Workplace and Workplace. Title Goes Here. Violence. Presented By: Jonathan O. Harris

Transcription

1 Guns in the Workplace and Workplace Title Goes Here Violence Presented By: Jonathan O. Harris

2 Guns in Trunks Update

3 Guns in Trunks Act, 2013 Criminal code amended to allow, without criminal penalty, the holder of a valid handgun carry permit recognized in Tennessee to transport and store a firearm or firearm ammunition in the permit holder s privatelyowned motor vehicle while on or utilizing any public or private parking area, if the firearm is kept from ordinary observation and locked within the trunk, glove box or interior of the person s privately owned motor vehicle.

4 Questions by employers Does Guns in Trunk law preclude an employer from: (1) Having a policy that prohibits guns present on its parking lots? (2) Firing an employee who violates that policy?

5 May 28, 2013 Attorney General Opinion Question presented: does this criminal law prohibit an employer from terminating an at-will employee who brings a firearm or firearm ammunition onto the employer s property? Answer given: No. Chapter 16 does not impact the employer/employee relationship.

6 Attorney General Opinion Criminal law vs. employment law Act only decriminalizes carrying guns in your trunk. Act does not address and thus has no impact on the employment relationship between an employer and an employee. Tennessee has long adhered to the employment-at-will doctrine.

7 Attorney General Opinion An employer may establish employment policies that an employee must follow in the workplace, and such policies may restrict otherwise lawful activities. Analogy to smoking laws employers cannot fire an employee for smoking on his own time (TCA (e)(2)). Legislature knows how to identify illegal termination grounds.

8 Attorney General Opinion Reaction from the Tennessee Legislature?

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10 Legislature s Office of Legal Services ( OLS ) Opinion January 13, 2014 OLS issues its own opinion in response to a question from Lt. Gov. Ron Ramsey. Ramsey asked whether law needed to be amended to prohibit employers from firing employees for having guns in their trunks.

11 AG and OLS agree on some points: The law applies only to gun owners with proper permits. The gun must be stored in a vehicle owned by the permit holder (i.e., the law does not permit guns to be stored in company trucks).

12 AG and OLS agree on some points: The gun must be stored out of sight in a locked vehicle (i.e., in trunks ). The gun must stay in the trunk the law does not protect a permit holder who removes the gun from the vehicle in a parking area in which weapons are otherwise prohibited.

13 Key disagreement: Whether an employer can fire an employee who is a permit holder and has a gun in his trunk on company property.

14 OLS opinion Act is a gateway to allowing permit holders to maintain guns in their vehicles regardless of the rights of the owner of the property. Act protects a person complying with the provisions of Tenn. Code Ann from negative repercussions, including those that are employment related.

15 OLS opinion According to the OLS, the decriminalization of a gun permit holder s actions (keeping a gun in his or her trunk at work) also protects the permit holder from the operation of the employer s work rules.

16 OLS opinion Employers reaction?

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18 Conflict between AG and OLS My take on what an employer should do

19 SHRM Workplace Violence Survey 2/3 have had violent incidents since 2000 Verbal threats were the most common Almost 90% have written workplace violence policies Nearly 80% have security systems designed to control access More than 25% of victims of violence were HR professionals

20 WORKPLACE VIOLENCE AN EPIDEMIC? Center for Disease Control says so Violence has reached epidemic proportions 111,000 violent incidents per year An average of 80 workplace homicides per year Almost half were in the South

21 WORKPLACE VIOLENCE Is the second leading cause of death in the workplace overall Is the leading cause of death in the workplace for females

22 Warning Signs of Violent Behavior Fascination with weapons Substance Abuse Severe Stress Violent History Severe Changes in Psychological Functioning

23 Warning Signs of Violent Behavior (cont.) Decreased or Inconsistent Productivity Social Isolation and Poor Peer Relationships Poor Personal Hygiene Drastic Changes in Personality

24 Considerations Severe Injury/death 2. Potential employer liability to injured parties 3. Potential employer liability to alleged wrongdoer 4. Legal tools available to employer in the fight against violence 5. ADA/perceived as disabled

25 Preparing for the Unthinkable: The 3 P s Policies Procedures Plans

26 Policies Drug-Free Workplace Weapons Reporting Discipline/Termination Fighting Violence Threats Insubordination

27 Procedures For reporting suspicions, threats, acts For verifying suspicions or accusations For responding to suspicious behavior, threats, or violent behavior For training all employees hourly, supervisors, management on policies related to workplace violence

28 Develop a Plan Establish a Violence Prevention and Reaction Team Management and Supervisors Human Resources Security

29 Develop an Action Plan (cont.) Ensure that the hiring process is not rushed Check references Background search Though be careful of the Fair Credit Reporting Acts requirements and prohibitions EEOC Considerations Drug screens

30 Develop an Action Plan (cont.) Examine Termination Procedures Rapid removal Example: Termination meeting with witness and security followed by security escort Immediate return of company property Notify Security Have presence during confrontation and, if necessary, after termination for reasonable period

31 Develop an Action Plan (cont.) Counseling for Employees Voluntary referral EAP, other Mandatory referral Beware ADA issues

32 Develop an Action Plan (cont.) Examine Security Measures Limit third-party access Ensure that postings and signs are legally correct Develop a draft no-trespassing letter and be ready to send it when the occasion arises Coordinate with local law enforcement

33 SAFETY PLAN Establish, Communicate, Train, Revise Discuss and coordinate safety strategies with co-workers Develop pre-arranged procedures to alert others that help is needed Train on safety strategies and alert procedures

34 Safety Plan (cont.) Identify emergency evacuation procedures Establish protocol for calling the police (emergency/nonemergency)

35 Safety Plan (cont.) Install help or panic buttons at strategic locations Develop a procedure to cease operations and secure the premises Evaluate the need for security alarms, cameras, security personnel

36 Know and Apply the Tennessee Workplace Violence Act Tennessee law provides special protection for employers faced with suspected threatening behavior Tenn. Code Ann

37 Workplace Violence Act: Any employer or employee who has suffered unlawful violence or a credible threat of violence from any individual, or an organization that the individual is affiliated with, which can reasonably be construed to have been carried out at the workplace, may seek a temporary restraining order and an injunction prohibiting further unlawful violence or threats of violence by that individual, or the organization that individual is affiliated with, at the workplace.

38 Workplace Violence Act Credible threat of violence means a knowing and willful statement or course of conduct that would cause a reasonable person to believe that the person is under threat of death or serious bodily injury and that is intended to, and that actually causes, a person to believe that the person is under threat of death or serious bodily injury.

39 Prerequisites to getting a TRO: Must file an affidavit that shall show that the petitioner has conducted a reasonable investigation into the underlying facts that are the subject of the petition.

40 Know and Apply the Tennessee Workplace Protection Act The Court may order the employee to stay away from a worksite, cease harassing or threatening behavior, or cease other behavior. For the initial, emergency hearing on the restraining order, the suspected employee need not be provided with notice. However, after the emergency, temporary order is issued, the employer must schedule a hearing on a permanent order within 15 days.

41 Know and Apply the Tennessee Workplace Violence Act A permanent no-contact order can be for 3 years. Can reapply to renew order prior to expiration. Though it s only a piece of paper, it is the first step in proactively combating threats of violence. Once a no-contact order is in place, if an employee violates the order and comes to a workplace, then he or she is subject to immediate arrest.

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43 Thank You! Jonathan O. Harris Ogletree, Deakins, Nash, Smoak & Stewart 401 Commerce Street, Suite 1200 Nashville, TN (615)

44 Copyright Information Any reproduction in any form or incorporation into any information retrieval system or any use without the express written consent of Ogletree Deakins is prohibited. Please direct all inquiries to Client Services Department, Ogletree Deakins, 600 Peachtree Street, Suite 2100, Atlanta, Georgia or