IMMUNITY FOR WHAT? WHAT DOES THE EMPLOYER IMMUNITY UNDER WISCONSIN’S NEW CONCEALED CARRY LAW REALLY PROVIDE?

Posted by Attorney Roger L. Pettit in Employer-Employee Relationship, Business Management / Comments

Wisconsin Act 35 became effective November 1^st. one of the act’s provisions provides immunity for employers “from any liability arising from its decision” to allow employees and invitees who are properly licensed to carry a concealed weapon.

The purpose of the grant of immunity no doubt was to encourage acceptance of weapons in the workplace for those who have gotten a license to do so. But what does this immunity really mean? In order to put the discussion into context, employers need to keep in mind that the new law doesn’t protect the gun carrying employee from the effects of carrying the weapon. That is, if an employee causes harm to the person or property of another, or commits a crime with a weapon, he or she is not immune from the consequences of the action just because the employee was carrying the weapon legally.

Using an example in an area with which most of us are more familiar, if an operator of an automobile causes injury by it use, that person is responsible for the injury even if properly licensed. Conversely, if a collision causing injury was not the fault of the operator, then even if the operator had no driver’s license, he or she would not be liable. But if an employee was injured by a fellow employee or invitee, would the employer be immune from suit solely because the user had a license to drive the car?

The question of employer liability will focus on the duty that an employer has to it’s employees and others. In the automobile example, if an employer allows an impaired, but licensed driver operate a company vehicle and the impared driver injures someone while driving, the employer may be responsible. I see no distinction between the driver in my example and a situation where an employee

even though properly licensed, injures a co employee or other person where the employer has a duty to protect against such behavior. I doubt that an employer’s duty in such situations will be determined by whether the weapon user was licensed to carry the weapon used to cause the harm.

What does this mean for employers? It is my opinion that the employer’s focus should be on how the allowance of weapons in the workplace will affect other obligations that the employer has. One very important obligation that an employer has is to provide a safe workplace. For several years, there has been a nationwide emphasis on addressing violence in the workplace, and the Occupational Safety and Health Act (OSHA) considers the control of violence to be a part of the employer’s duty to provide a safe workplace.

It would be little more than speculation as to how the immunity granted by Wisconsin’s Concealed Carry Law will actually work, but the employer’s duty to its employees just may be of more importance than its duty to satisfy a few employees and customers who wish to legally carry a weapon. And it is improbable that the duty to provide a safe place to work will be satisfied just because weapon carrying employees are properly licensed.

There is a happy ending to this dilemma.  Make sure your workplace is properly insured. National carriers have had experience in forty-eight other states, and workplace violence is still an insurable risk. My  contacts in the industry advise me that regardless of the employer’s decision to allow or not allow concealed carry, the carriers like to see an insured have written policies for weapons much as the employer would have a drug and alcohol policy in place. Workplace violence insurance is available, and it may be prudent to look into it as employer’s  wrestle with the decision to allow or not to allow concealed carry.

References, which include model policies, to literature on the subject of workplace violence- including a link to the OSHA web site on the subject- are included below:

Bank - Workplace Violence Prevention & Response Policy; Concealed Carry - Questions & Answers; Example of Workplace Violence Policy;OSHA Sample Workplace Violence Program & Forms, Sample Workplace Violence Policy; Workplace Violence - Issues in Response - FBI and Workplace Violence Policy & Procedures - UCSC.

I am from Kansas, a state that has allowed licensed concealed carry for over ten years. According to the Kansas Attorney General only 35,000 permits have been issued in a state with a population of close to 4 million, with only 7,106 of the permits going to residents of the county that houses the state’s largest city Wichita. If the Kansas experience holds true for Wisconsin, interest in this subject will wane over time. What will not go away is the expectation by employees and government that the workplace be reasonably safe from workplace violence. Is the immunity granted by the new concealed carry law may not be enough.