DETROIT—Now might be a good time for employers to review their policy toward preventing violence in the workplace in light of Public Act 381, the concealed weapons law that became effective on July 1. And if a firm is operating without one, well, now might be a good time to rethink that position and consider writing one.
“It’s a way of avoiding the kinds of tragedies that have occurred from time-to-time in various employers’ establishments,” said Michael Alaimo, a partner in the Detroit office of Miller, Canfield, Paddock and Stone PLC and a member of the firm’s labor employment group. “It’s a good thing to do to protect a workforce.”
A written policy can also provide an employer with some liability protection in case that tragedy does occur. If an employee is injured, workers compensation generally covers that. But not when the action of an employer leads to an injury, and the action is then proven to be intentional. Workers comp then fades out of the picture, and a lawsuit may begin to fill the next frame.
“For example, if a supervisor in the workplace became aware of someone’s propensity for violence and failed to take appropriate action, someone could at least allege that the employer was on notice and their failure to respond is the equivalent of an intentional act,” said Alaimo.
“The other thing, of course, is if a customer should be injured. In that case, the workers compensation statute doesn’t apply and the customer, or the family of a customer, might believe that the employer could have prevented it if they had taken more appropriate action,” he added.
Employers should know that PA 381 allows them to ban handguns from the workplace and wherever an employee conducts business on behalf of the company. It does not, however, give them the right to forbid workers from obtaining a concealed firearms permit or prohibit them from carrying a concealed handgun while off the job.
But the law isn’t crystal clear on whether an employer can ban concealed weapons from the parking lot, if a licensed carrier leaves one in the glove box.
“That is probably going to be a gray area that may have to be ultimately litigated to get some clarification. But we will be advising our clients that it would be appropriate for the policy to cover that situation, as well,” said Alaimo.
As for a policy itself, Alaimo advised that boiler-plate language should be avoided. Each company needs to create one that is indigenous to itself. So don’t go to legal-forms.com and start downloading someone else’s policy in order to save some cash.
When the concealed firearms policy is written, it should be inserted into the employee handbook and included as part of the overall strategy to prevent workplace violence. As for that strategy, Miller Canfield suggested it should include at least five points.
1. Companies should make use of screening devices. Job applications, references, prior employment contracts, criminal checks, results of drug and alcohol tests, and interviews with employees can all reveal potential problems.
2. Companies should be aware of warning signs. Threats of physical harm, significant changes in behavior, a fixation on weapons, and a history of violence can all be signs of potential violence.
3. Companies should create and implement reporting procedures. Every employee should know how and where to report potentially violent situations.
4. Companies should investigate any reported problems. An established procedure should be followed during an investigation, detailed notes should be kept, and the review should remain as confidential as possible.
5. Companies should take appropriate disciplinary action for violations of policy. The punishment should fit the crime.
Of those points, the last one can be the toughest to create.
“That is one of the more difficult aspects of this. Obviously an employer doesn’t want to overreact. Trying to judge what kind of situation they have on their hands may sometimes be difficult,” said Alaimo. “But there are things that need to be considered.
“For example, is this the first instance where this person has been involved in that kind of behavior. Are we talking about a verbal threat? Are we talking about a gesture, which was interpreted as a threat? Are we talking about physical touching? Those are different types of acts, which may require different responses.”
Benchmarks should be created for the different situations and employers need to recall what they’ve done in the past when a problem surfaced. A consistent response, Alaimo said, needs to be considered, but not made so rigid that every violation results in the same penalty.
If an employer is too busy to create a policy or too confused as how to start writing one, Alaimo recommends taking ideas to an attorney that is familiar with the company and asking for help on how to communicate those ideas to employees. He also suggested that employers not panic.
“I think the readers should not be overly concerned about the CCW statute. Violence gets into the workplace from a variety of avenues. This, perhaps, increases the likelihood of one avenue. But it’s not the only source,” said Alaimo.
“The key for employers is to have some kind of a warning- and-investigation system. So that when there are warning signs, these filter up to the right people and the right people can take a look at them. Sometimes that’s all it takes to cool things down.”
Alaimo also had a few words for those employers who may not feel the need to ban concealed handguns from the workplace.
“They are definitely taking a chance,” he said. “ The risk that they’re running is that these things happen sometimes without a lot of warning, and we are part of a very litigious society.”