IMPACT OF CONCEALED CARRY ON WISCONSIN EMPLOYERS
Arnold Bennet, an early twentieth century English novelist once said “[a]ny change, even a change for the better, is always accompanied by drawbacks and discomforts.”
The new concealed carry legislation, simply because of the change it represents, may naturally cause discomfort for some employers. The mere sight of a weapon in public or in your business will most likely take a certain amount of getting used to when the new legislation takes effect on November 1, 2011. However, with a greater understanding of what precisely the law provides for employers, that discomfort may be more easily alleviated.
For employers, there are three important questions about the new concealed carry law that immediately come to mind:
1. What control does an employer have as to whether an employee may bring a weapon to work?
2. What control does an employer have as to whether a member of the public may bring a weapon onto the premises?
3. What potential liability exists when an employer allows or denies a weapon on the premises by either an employee or member of the public?
Thankfully, based on the legislation itself, some guidance is provided.
As a threshold matter, the good news is that Wisconsin is the 49th state to enact similar legislation allowing concealed carry. Therefore, Wisconsin is not charging into a new frontier with no guidance. This does not mean there will not be a certain amount of trial and error under Wisconsin’s new law as the Wisconsin courts begin to interpret and apply the new legislation to various cases. However, between the legislation itself and the guidance Wisconsin can borrow from other jurisdictions, the transition may not be as difficult as one might imagine.
The new legislation provides that an employer may prohibit an employee from carrying a concealed weapon in their employment, or during any part of the course of their employment. Wis. Stat. 941.232(3)(a). This means that the employer can institute its own rules and regulations as to whether it will allow its employees to carry a weapon while at work or even away from work while on duty. Of course, just like other rules, the concealed carry rules will need to be applied equally to all employees to avoid any claims of discrimination. It would be wise to amend your employee handbook to include any such prohibition as well as post appropriate notices to employees at the workplace to ensure consistent and uniform application of the prohibition.
Although an employer can ban employees from bringing guns into the workplace or carrying them while on the job, an employer may not prohibit an employee from carrying a concealed weapon in the employee’s own motor vehicle regardless of whether the vehicle is used within the course of the employee’s employment or whether the vehicle is driven or parked on property used by the employer. Wis. Stat. 941.232(3)(b). In other words, while the employer can restrict employees from carrying weapons into work or carrying the concealed weapon while on duty, it can not restrict employees from having a concealed weapon in their own personal vehicle, even if the vehicle is on the employer’s property or is used by the employee in their employment.
As to members of the public, an employer may also prohibit members of the public from carrying a concealed weapon onto its premises if it provides the appropriate notice. Wis. Stat. 943.13(2m)(c)2. If an employer prohibits concealed weapons on its premises and provides the required notice, and a member of the public disregards that prohibition, they may be charged with trespass to land and receive a citation for a Class B forfeiture. The only method by which an employer can provide the required notice to the public is to post the required signs in the method described by statute. Wis. Stat. 943.13(2)(bm). The sign must be orange and at least 8.5 inches by 11 inches. Wis. Stat. 943.13(2)(bm)1. The sign must be located in a prominent place near all of the entrances to the building, or part of the building, where firearms are prohibited. Wis. Stat. 943.13(2)(bm)2. It must be placed in a position where any individual entering the building should reasonably be expected to see the sign. Wis. Stat. 943.13(2)(bm)2.
As to municipalities, there are specific additional regulations concerning whether employees and members of the public may bring a concealed weapon onto the premises. The bill generally prohibits carrying a concealed weapon into a police station, sheriff’s office, a prison, a jail, a house of correction, or a courthouse. Wis. Stat. 941.232(2)(a)1-3. In addition, the statute prohibits anyone from carrying a concealed weapon into a building owned or leased by a municipality if: (1) the building has electronic screening for weapons at all public entrances, and (2) provides locked storage for weapons on the premises while the person carrying the weapon is present in the building. Wis. Stat. 941.232(2)(a)5.
Finally, the next issue which naturally comes to mind for any employer is what liability may exist based on either the allowance or prohibition of concealed weapons for employees or members of the public. The statute provides that an employer who chooses to allow employees or a member of the public to carry a concealed weapon is immune from liability arising from that decision. Wis. Stat. 941.232(3)(c); Wis. Stat. 943.16(6). Of course, if the employer is negligent in another fashion, other than simply choosing to allow concealed weapons, it may not be immune from that separate liability which may arise.
The new concealed carry legislation is certainly a significant change in Wisconsin. However, a greater understanding of what precisely the new law entails for employers should assist in alleviating the drawbacks and discomfort which inevitably accompany change.
If you have any questions regarding the impact of the new concealed carry legislation, or require assistance in responding to the legislation, please contact Ronald Stadler or Aaron Graf.