Pennsylvania Labor and Employment Blog : Pennsylvania Labor and Employment Lawyer & Attorney : McNees Wallace & Nurick Law Firm : Human Resources, Workplace and Business Law : Harrisburg, Lancaster, Allentown, Lehigh

On June 26, 2008, the United States Supreme Court issued a landmark decision confirming that the Second Amendment of the United States Constitution protects an individual's right to keep and bear firearms. In District of Columbia v. Heller, the Supreme Court interpreted the language of the Second Amendment for the first time in nearly 70 years and struck down the District's 32-year-old ban on handguns and trigger-lock requirements for other firearms.

This decision already has generated significant national attention and debate. Although the Court formally recognized the individual right to bear arms in Heller, the majority's decision does not define the scope of that right. Thus, the full meaning and ramifications of this decision will be unclear for many years to come. 

That said, we can state what the Heller decision does not mean. From an employment law perspective, the Heller decision should have no effect on an employer's ability to promulgate weapons or workplace violence policies that ban handguns or other types of weapons from its facilities. Constitutional protections are not applicable to private sector employers, absent some form of state action. For the same reason that an employee may not rely on the free speech protections of the First Amendment as a defense to discipline issued by a private sector employer, an employee cannot rely on Heller and the Second Amendment as a defense to a violation of an employer's weapons or workplace violence policy. As for public sector employers, Justice Scalia, writing for the Court, expressly noted that the right recognized in Heller "is not unlimited" and that the decision should not "cast doubt" on restrictions barring firearms near schools or in government buildings. If the government may lawfully prohibit the carrying of handguns in government buildings, public sector employers also may have reasonable employment policies regarding handguns and other weapons. 

Thus, employers can enjoy the national debate and discussion following the Heller decision while knowing that it should not impact their employment policies.  The "RIght to bear Guns at Work" was the subject of a post on CNN's Small Business noting that some state laws provide for a right of employees to bear arms in workplace settings.  Pennsylvania has no law that creates a right for employees to bring firearms to work.

• Email This
• Print
• Comments
• Trackbacks

HR professionals are reminded of their workplaces’ vulnerabilities every time an episode of workplace violence is reported in the media like this morning’s headline “6 dead in plastics factory shooting rampage.”  The scope of the problem set out in statistics. There were 5734 workplace fatalities reported to OSHA (2005 is the last year statistics are available). Assaults and Violent Acts accounted for 792 workplace fatalities.

Media accounts typically report about the “warning signs” that were missed and speculate on how the incident may have been prevented. There are, of course, psychological tests and assessment tools that are predictive of violent behavior, but there are significant legal restrictions on their use. Assessments that are not "medical tests" may be used on a pre-employment basis, but should not be used as the principal reason for a hiring or promotion decision.

There is no profile of a potential workplace violence perpetrator; however, there are traits when coupled with at risk situations that increase the likelihood of violent behavior. Sheryl and Mark Grimm of the Workplace Violence Headquarters have developed a Formula for Workplace Violence that includes a list of traits as follows:

• Previous history of violence, toward the vulnerable, e.g., women, children, animals
• Loner, withdrawn; feels nobody listens to him; views change with fear
• Emotional problems, e.g., substance abuse, depression, low self-esteem
• Career Frustration, either significant tenure on the same job of migratory job history
• Antagonistic relationships with others
• Some type of obsession, e.g., weapons, other acts of violence, romantic/sexual, zealot (political, religious, racial), the job itself, neatness and order.

There is a major legal distinction made between an employer's treatment of an applicant with a potentially violent personality and addressing employee conduct that expresses violent behavior. The EEOC has stated that its position on the distinction between perception and conduction in its  Enforcement Guidance for Individuals with Psychiatric Disabilities :

34. When can an employer refuse to hire someone based on his/her history of violence or threats of violence?

An employer may refuse to hire someone based on his/her history of violence or threats of violence if it can show that the individual poses a direct threat. A determination of "direct threat" must be based on an individualized assessment of the individual's present ability to safely perform the functions of the job, considering the most current medical knowledge and/or the best available objective evidence. To find that an individual with a psychiatric disability poses a direct threat, the employer must identify the specific behavior on the part of the individual that would pose the direct threat. This includes an assessment of the likelihood and imminence of future violence.

30. May an employer discipline an individual with a disability for violating a workplace conduct standard if the misconduct resulted from a disability?

Yes, provided that the workplace conduct standard is job-related for the position in question and is consistent with business necessity. For example, nothing in the ADA prevents an employer from maintaining a workplace free of violence or threats of violence, or from disciplining an employee who steals or destroys property. Thus, an employer may discipline an employee with a disability for engaging in such misconduct if it would impose the same discipline on an employee without a disability. Other conduct standards, however, may not be job-related for the position in question and consistent with business necessity. If they are not, imposing discipline under them could violate the ADA.

OSHA’s General Duty Clause requires employers to “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” OSHA provides some resources to help employers meet this requirement.

Given the legal limitations confronting employers in their efforts to provide a safe workplace, the following are some suggestions in development of a Violence Program:

• Establish and communicate a written violence policy
• Consider pre-employment assessments and background checks
• Establish an Employee Assistance Program
• Train supervisors to recognize warning signs of employee violence
• Recognize "at risk" situations like employee discipline or discharge and plan accordingly
• Consider professional evaluations of at-risk employees based on objective signs of workplace problems
• Assess workplace security measures
• Develop and Communicate a Disaster Management Plan

• Email This
• Print
• Comments
• Trackbacks (1)