The U.S. Supreme Court (SCOTUS) finished its term this year with some decisions that though not directly impacting employers, does compel them to review their benefit plans and other select policies to ensure they stay up to date.
The overturning of Roe v. Wade (Planned Parenthood v. Casey) have some employers reviewing their medical plans as well as other related and ancillary benefits that may need adjustments.
A second SCOTUS decision handed down; however, expanded public guns carry rights. This other decision, New York State Rifle and Pistol Association et. Al. v. Bruen, struck down a New York state law limiting licensing of guns. How might this decision impact Michigan employers? As with Planned Parenthood, this decision compels employers to review their No Weapons and/or Workplace Violence policies. Let’s take a closer look.
Concerns Employers Should Now Have
It is projected that the Bruen decision will lead to the presence of more guns in public. It may also lead to employees (or customers and vendors) to mistakenly think they have new rights to bring guns into the workplace. This would be a misinterpretation of what this ruling says. This decision did not extend gun carrying rights onto private employer premises where otherwise prohibited by policy or rule.
Michigan is a property rights state and as such the property owner (including leases) continues to control what can and cannot be brought onto their property. Employers should be prepared to re-educate those workers and others that think your policy prohibiting guns (and other weapons) in the workplace may now be erroneous under this decision. Remind everyone of your organization’s policy, whatever it may be. This decision offers the opportunity to review an organization’s Weapons policy or if weapons are addressed in a Workplace Violence policy in that policy, with everyone, including management. Supervisors and Managers will no doubt be confronted with employee questions first.
If your organization does not have a workplace safety policy on weapons and threats of violence, it should consider adding one. This policy is standard to most organizations and employee handbooks. The Bruen decision does not in any way change a private employer’s right in this state to ban weapons on their property.
Also keep in mind multi-state employers may have different state laws to contend with. As with in Michigan, it is advisable that an employer understands local culture to take into consideration why local workers may think differently about guns and employee safety. The organization should adjust policy accordingly if necessary.
Mathew Parker, an attorney interviewed for a recent article on the Bruen SCOTUS decision, also suggests employers consider de-escalation training for supervisors. Employer supervisory training will help supervisors and managers better respond to workers challenging an employer’s policies and practices around weapons in the workplace. This type of training also will help in many other situations as well.
When does worker speech go from conversation to threats?
When another employee or supervisor says so. Employers today should communicate to employees that they should not be shy bringing threatening speech or behavior they witness immediately to the attention of the employer. Their policy should state that employees will not be retaliated against if they bring a good faith complaint of a threat to the attention of the employer. This also includes threats from outside the workplace including domestic relations situations. Do not fail to investigate these complaints.
One or two important things to know around employee speech will seem counterintuitive to what this article is saying. Be sure not to violate federal labor law when controlling worker discussions about guns. Employees have the right to discuss terms and conditions of employment under the National Labor Relations Act (NLRA). This will include discussions about the company weapons policy.
In areas of the country where gun rights or even hunting is popular, employees that may have a concern about the employer’s policy and communicate their differing views on the subject or policy are to some extent protected in that speech. Employers should discern how they may respond to employees discussing their objections to the company weapons policy. An employee disciplined or discharged for stating their objection to the policy to other employees may be protected by the NLRA.
In all cases, employers are advised to investigate the situation where a threat may be taking place.
Lastly, an employer may have to respond to an employee where guns may cause anxiety or post-traumatic stress disorder. Where an employer allows guns in the workplace or has armed guards present, an employee complaint based upon the anxiety the presence of a gun in the workplace triggers, could involve the Americans with Disabilities Act. Such a complaint could require the employer to engage in the interactive dialogue conversation with the employee to determine whether an accommodation may be needed for the employee to do their job.
Does the employee’s job require them to face the public where they may see customers that lawfully may carry gun into that place of employment? What accommodation might be found? Or would the accommodation result in an undue hardship on the employer? These are questions an employer will need to address to comply with the Americans with Disabilities Act in the event an employee makes a complaint based upon the presence of a weapon.
ASE provides members with sample Weapons and Workplace Violence policies. Further ASE has a depth of information on employer practices around these two policies so your organization can optimize its policies in these areas. Contact ASE Research for more information.
Source: Law 360. What the Supreme Court’s Gun Ruling Means for Employers (7/8/2022)