Presented by Christopher Fontan Employees and Firearms BRUNINI, - - PowerPoint PPT Presentation

Presented by Christopher Fontan

Employees and Firearms

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On-the-Job Shooting Incidents

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1986 – Edmond Post Office Massacre

• Patrick H. Sherrill, a postal worker,

reported to work on August 20, 1986

• Had received a formal reprimand from his

supervisor the day before

• Sherrill arrived at work, armed with 3

semi-automatic pistols and ammunition

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1986 – Edmond Post Office Massacre

• By end of the day, Sherrill killed 14 postal workers

and wounded 6 additional workers before killing himself

• At the time, nation's third largest mass murder

committed by single individual in a single incident

• Origin of phrase - "going postal"

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The National Institute for Occupational Safety and Health defines "workplace violence" generally as "physical assaults and threats of assaults (including bullying) of other persons at work

What is Workplace Violence?

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What is Workplace Violence?

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The NY State Department of Labor defines it as "any physical assault threatening behavior or verbal abuse

• ccurring in the work setting."

What is Workplace Violence?

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SHRM defines workplace violence as "an assault or other violent act/threat that

• ccurs in or is related to the workplace

and entails a substantial risk of physical or emotional harm to individuals or damage to company resources or capabilities."

What Workplace Violence is NOT

• Annoying behavior
• Mere dislike of a co-worker
• A rude customer/vendor

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Occupational Safety and Health Administration

• OSHA says over 2 million Americans are

victims of some type of workplace violence each year

• Per OSHA, workplace violence ranks among

the top 4 causes of death in the workplace in each of the last 15 years.

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U.S. Bureau of Labor Statistics - Fatalities

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• In 2013, 4,405 fatal work injuries reported in the

United States.

• Overall, 753 workers were killed as a result of

workplace violence and other injuries by persons/animals

More from The Bureau of Labor

• In 2013, of the 753

fatalities, 397 were homicides and 270 were suicides

• Workplace homicide

total in 2013 was 16% lower than 2012 (475 in 2012)

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100 200 300 400 500 2013 Homicides Suicides Other 100 200 300 400 500 Homicides 2012 2013

More from the Bureau of Labor

• Shootings were the

most frequent manner of death in both workplace homicides (80%) and suicides (47%)

• Of 302 fatal work

injuries involving women, 22% were homicides (compared to 8% for men)

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318 127 79 145 200 400 600 Homicide Suicide Shooting Other 236 415 66 36 200 400 600 Women Men Other Homicides

More from The Bureau of Labor

• Per the BLS, over 3,000 died from workplace

violence between 2006-2010.

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More from the Bureau of Labor

• According to the BLS, from 2003-2012, over 50% of

workplace homicides occurred in 3 occupation classifications:

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Fatalities by Occupation Classification

Sales and Related (28%) Protective Services (17%) Transporation and Material Moving (13%) Other (42%)

What Do These Stats Tell Us?

• “Workplace Violence” includes acts against

workers by:

• Co-workers
• External visitors (customers,

vendors, family members, etc.)

• Former employees

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What Do These Stats Tell Us?

• OSHA has a terminology for this:

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Criminal Intent Type 1 Customer/Clients/Patients Type 2 Co-worker Type 3 Personal Type 4

OSHA Terminology

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Type 1 – Criminal Intent

Violent acts by people who enter the workplace to commit a robbery Or violent act by a former employee who enters the workplace with the intent to commit a crime

Type 3 – Co-worker

Violence against co-workers, supervisors, or managers by current or former employee, supervisor or manager

Type 2 – Customers/Clients/Patients

Violence directed at employees by customers, patients, clients, students, inmates, etc.

OSHA Terminology

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What Do These Stats Tell Us?

Type 4 – Personal

Violence in the workplace by someone who does not work there – but who is known to, or has a personal relationship with, an employee

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Potential Causes of Workplace Violence

• Society of Human Resource Management (“SHRM”)

Study:

• Personality conflict was #1 motivating factor
• 2003 - 51%
• 1999 - 55%
• 1996 - 65%
• Personal relationship problems and emotional/mental

illness tied as next highest cause

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0% 50% 100% 2003 1998 1996 Other Personality Conflict

SHRM: Potential Warning Signs - Coworkers

• History of Violence
• fascination with weapons
• demonstrated violence toward inanimate objects
• evidence of earlier violent behavior

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SHRM: Potential Warning Signs - Coworkers

• Threatening Behavior
• states intention to hurt someone
• holds on to grudges
• excessive behavior (phone calls, gifts, obsessions)
• preoccupation with violence
• unable to take criticism in stride

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SHRM: Potential Warning Signs - Coworkers

• Intimidating Behavior
• argumentative
• displays unwarranted anger
• uncooperative

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SHRM: Potential Warning Signs - Coworkers

• Increase in Personal Stressors
• unreciprocated personal romance
• serious family or financial problems
• recent job loss

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SHRM: Potential Warning Signs - Coworkers

• Marked changes in mood/behavior
• extreme/bizarre behavior
• irrational beliefs/ideas
• appears depressed or has heightened anxiety
• marked decline in work performance

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SHRM: Potential Warning Signs - Coworkers

• Socially isolated
• history of negative interpersonal relationships
• few family or friends
• views the workplace as home and co-workers as

"family"

• has obsessive involvement in his or her job

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Employer Obligations Concerning Workplace Violence

• Presently, there are no Federal or Mississippi State

laws that expressly prohibit employers from allowing workplace violence in the private sector.

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U.S. Federal Laws

• Closest thing: Occupational Safety and Health

Act (“OSHA”) - General Duty Clause

• General Duty Clause requires employers to provide a

safe and healthful workplace for all workers covered by the OSH Act

• Employers who do not take "reasonable steps" to

prevent or abate a "recognized violence hazard in the workplace" can be cited for an OSHA violation

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Mississippi’s Laws

• Mississippi "Open Carry" Law
• Mississippi's new "Purse Carry" Law
• Mississippi's Restriction on Employer weapon

prohibition

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Mississippi 2013 House Bill 2

New “Open Carry” Law

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Prior Law: Quick Run-Down

• No state permit is required to possess a rifle, shotgun or

handgun (with exceptions)

• No state permit is required to purchase a rifle, shotgun or

handgun (with exceptions)

• However, it was unlawful to carry a concealed pistol, revolver,

rifle with a barrel less than 16”, shotgun with a barrel less than 18”, machine gun, fully automatic weapon, or any muffler or silencer without a license

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Prior Law: Carrying Miss. Code Ann. § 97-37-1

• An adult (18 or older) may carry a firearm
• r deadly weapon concealed within the

confines of his own home or his place of business, or any real property associated with his home or business or within any motor vehicle.

• Any person may carry a firearm or deadly

weapon concealed if the possessor of the weapon is then engaged in a legitimate weapon-related sports activity or is going to or returning from such activity.

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Prior Law: Carrying Miss. Code Ann. §97-37-1

• “Concealed” means hidden or obscured

from common observation. “Concealed” does not include any weapon listed in subsection (1) of this section, including, but not limited to, a loaded or unloaded pistol carried upon the person in a sheath, belt holster or shoulder holster that is wholly or partially visible, or carried upon the person in a scabbard or case for carrying the weapon that is wholly or partially visible.

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New Law: House Bill 2

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More importantly, HB 2 says the requirement of licensure to carry a firearm concealed DOES NOT apply to anyone carrying a stun gun or pistol that is not concealed – meaning in a holster or case. Stated Purpose: Amends Mississippi Code Annotated §§ 97-37-1, 97-37-15, 97-37-19 and 45-9-101 to clarify the carrying of concealed weapons. According to HB 2, "concealed" means "hidden or

• bscured from common observation," but does not

include a pistol carried in a holster or case.

New Law: House Bill 2

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HB 2: the requirement of licensure to carry a firearm concealed DOES NOT apply to anyone carrying a stun gun or pistol that is not concealed – meaning in a holster or case.

New Law: Reaction to HB 2

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Supporters of HB 2 say it simply restates the right to bear arms (and the right to

• pen carry) as provided by the

Mississippi Constitution.

New Law: Reaction to HB 2

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• The Hinds County district

attorney, sheriff, four constables and four state senators sued to block HB 2 from becoming effective, saying they feared people would become trigger-happy and put officers and civilians in danger

• Hinds County Circuit Judge

Winston Kidd entered TRO 7/12/13

New Law: Response to Injunction

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The Mississippi Attorney General’s office defended the open-carry measure, and filed an appeal asking the state Supreme Court to overturn Judge Kidd’s ruling. Hood said he expected justices to take several weeks to consider the appeal, and he believed they would let the measure become law.

New Law: Response to Injunction

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Mississippi Governor Phil Bryant, about 80 lawmakers and the NRA requested to file briefs to the Supreme Court in support of HB 2. In general, the briefs asserted that plaintiffs’ challenge to HB 2 was based on unsubstantiated assertions and alarmist claims that disaster would follow enactment of HB 2. Their briefs also asserted that open carrying in Mississippi has and would continue in the absence of HB 2

New Law: Supreme Court’s Ruling

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August 29, 2013: The Mississippi Supreme Court unanimously upheld the open-carry law Held that Judge Kidd erred in issuing injunction

New Law: What HB 2 Means for You

SO…

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If House Bill 2 is enacted, what will it mean for employers? Businesses may experience more patrons, or even employees, openly wearing firearms and demanding entrance to private establishments. Although the law is ambiguous when it says a person may carry a weapon in their place of business, the law most likely intends only to protect the person from criminal prosecution rather than to confer an absolute right to carry a weapon on someone else’s property.

Post a Sign!

Employers are provided safety in that they can disallow anyone with a firearm in their place of business if the proper sign is displayed. Indeed, even with a concealed carry permit, the holder can be "disallowed in any place" where the owner has a sign stating that "carrying

• f a pistol or revolver is

prohibited."

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“Purse Carry”

• Took effect July 1, 2015
• Senate Bill 2394
• Sponsored by Senator Terry Burton (R. Newton)
• Signed into law by Gov. Phil Bryant on 4/10/15
• Without the need for a state-issued permit, citizens

are allowed to carry a concealed gun in

• A purse
• A briefcase or
• Other fully enclosed satchel

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“Purse Law”

• Also reduces fees for people to obtain and

renew a concealed-carry license.

• The fee for a new license would drop to $80 from

$100.

• The renewal fee for people younger than 65 would

drop to $40 from $50

• For those 65 and older, the renewal fee would drop

to $20 from $25.

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“Purse Law”

The bill also specifies that disabled veterans, people on active- duty military service and current or honorably retired law enforcement

• fficers don’t need a

license to carry a concealed gun.

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Mississippi Code §45-9-55

Restrictions on Employer’s Ability to Mandate Regulations of Firearms

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A Public or Private Employer May NOT:

Establish, maintain or enforce any policy/rule that has the effect of prohibiting a person from transporting or storing a firearm

In a locked vehicle in any parking lot In any parking garage In any other designated parking area*

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*Subject to certain exceptions

A Private Employer MAY Prohibit an Employee:

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From transporting or storing a fire arm In a vehicle in a parking lot In a parking garage Or other parking area the employer provides for employees to which access is restricted Through use of a gate, security station or other means of limiting access by general public

Additional Notes re: §45-9-55

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The restriction does not apply to vehicles

• wned/leased by employers and used by

employees in the course of business

In other words, employers can restrict gun storage there

The restriction does not authorize a person to transport/store a firearm on any premises where possession of a firearm is prohibited by federal or state law

Important Caveat: Civil Immunity

Resulting or arising out of “an occurrence”

Involving the transportation, storage, possession or use

• f a firearm

A public or private employer

SHALL NOT be liable in a civil action for damages

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Why is Civil Immunity so Important?

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Mississippi Legislature Passes §45-9-55

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Three years after the Lockheed Martin shootings, the Mississippi Legislature passed Section 45-9-55 of the Mississippi Code, which allowed employees to keep weapons in their locked vehicles in the employer’s parking lots, if those lots were not

• therwise denied access to the general public by fences, a gate,

security station or other means.

Challenges to Mississippi’s “Employment At-Will” Doctrine Based on Firearms

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Mississippi’s Employment At-Will Doctrine

Mississippi is an “employment at-will” state – meaning that employees for an indefinite term can have employment terminated “at the will”

• f the employer (or the employee) without

legal repercussion. In other words, an employer can generally fire an employee for good reason, bad reason or no reason at all.

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Mississippi’s Employment At-Will Doctrine

In 1993, Mississippi adopted a new state-law exception to the “at-will” doctrine when it began recognizing employee tort claims for wrongful, or retaliatory discharge.

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Mississippi’s Employment At-Will Doctrine – Exception

Two Mississippi exceptions to Employment At-Will under McArn – only two exceptions to this doctrine have been recognized by the courts in Mississippi. An employee may file a suit for wrongful discharge when:

• He or she refuses to commit an illegal act at the

direction of the employer; or

• He or she reports an illegal act by the employer.

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Additional Notes re: §45-9-55 – Note

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New Challenge – Swindol v. Aurora Flight Sciences (N.D. Miss.)

In May 2013, an employee of an aerospace company in Mississippi fired an employee for having a weapon in his locked vehicle, which was parked in their open parking area

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New Challenge – Swindol v. Aurora Flight Sciences (N.D. Miss.)

This company had also “established, maintained and enforced” a company policy prohibiting firearms anywhere on company property, which would include the open parking lot, in violation of state law.

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New Challenge – Swindol v. Aurora Flight Sciences (N.D. Miss.)

Swindol references Mississippi law specifically permitting its citizens to carry firearms in their vehicles and specifically prohibits employers from adopting policies preventing the safe-keeping of firearms in locked vehicles in open parking lots (45-9-55)

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New Challenge – Swindol v. Aurora Flight Sciences (N.D. Miss.)

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Plaintiff seeking to have the Court enforce the Mississippi law permitting employees’ weapons stored in locked vehicles in open parking lots, to give employees a fighting chance to defend themselves if such an horrific incident occurs at work.

New Challenge – Swindol v. Aurora Flight Sciences (N.D. Miss.)

“Such ‘no-firearm’ policies, which are in violation of Mississippi law, deprive law-abiding and sane firearm

• wning employees any possibility of self-defense in a

situation such at that that occurred at the Lockheed Martin plant in Meridian, Mississippi, in 2003. One can

• nly speculate what would have occurred had the

employees at Lockheed been able to flee the building and retrieve their weapons from their locked vehicles and defend themselves.”

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New Challenge – Swindol v. Aurora Flight Sciences (N.D. Miss.)

This suit sought to establish a third McArn exception, the right of an employee to have access to his or her firearm in necessary self- defense, without being fired for doing so.

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New Challenge – Swindol v. Aurora Flight Sciences (N.D. Miss.)

• U.S. District Court Judge Sharon Aycock dismissed

Swindol’s lawsuit on September 30, 2014

• Held that it was not for the Federal Courts to “adopt

innovative theories of state law, but simply to apply that law as it currently exists.”

• Noted Mississippi’s steadfast resistance to expand the

McArn Doctrine in the 20 years since its inception

• Recognized that other states with statutes similar to
• Sec. 45-9-55 expressly provides private right of civil

action when violated.

• Case presently on appeal to U.S. Fifth Circuit Court
• f Appeals

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Presented By:

Chris Fontan

Brunini, Grantham, Grower & Hewes, PLLC 190 East Capitol Street (Zip - 39201) (601) 948-3101 (office) (662) 960-6802 (fax) cfontan@brunini.com www.brunini.com

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• This presentation is not designed or intended to

provide legal or professional advice, as any such advice requires the consideration of the facts of the specific situation.