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Labor and Employment Law Weekly Update

Legal News: Employment Law Update
03 May 2010

Tips for Keeping the Workplace Safe in a Guns-at-Work State

In recent years, at least 13 states — Alaska, Arizona, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Minnesota, Mississippi, Nebraska, Oklahoma, and Utah — have enacted what are commonly referred to as “guns-at-work” laws. These laws have raised concerns for employers because they permit employees to store their firearms in vehicles located on company property. Some of the laws go a step further by specifically prohibiting employers from establishing policies that ban employees from engaging in this practice. Generally, for employees to store their firearms in a vehicle, these laws require that: 1) the employee be properly licensed to own/carry the weapon, 2) the vehicle storing the gun belong to the employee or be privately owned, and 3) the vehicle be locked. Some laws also require the firearm not be visible from outside the vehicle. Given growing concerns about workplace violence, employers must be creative in order to establish effective safety policies while staying in compliance with the law. Below are some tips for employers operating in a state with a guns-at-work law.

  • Check for Exemptions. If you are in a state that has enacted a guns-at-work law, it is possible that the law will not impact your organization. Several of these laws allow employers to ban the presence of firearms in their parking areas under certain circumstances; for example, if the employer provides a secured parking area or if the presence of firearms in the parking area would violate the employer’s compliance with other laws. Therefore, you should review the law to determine whether your organization qualifies for one of the exemptions.
  • Know the Particulars of the Law. Some state laws are more expansive than others; therefore, it is important to be aware of the various provisions in your respective state law. For example, Florida law is fairly restrictive because it prohibits employers from searching a privately owned vehicle for the presence of a firearm and from inquiring as to the presence of a firearm in a privately owned vehicle.
  • Review Policies and Procedures. Existing policies and procedures should be reviewed to ensure they conform to the law and, if necessary, be revised. This is of particular importance to employers with operations in more than one state, as the variation between state laws will make it more difficult to retain policies that are uniform across the organization. Also, consider establishing a workplace violence policy if your organization does not currently have one in place.
  • Train Employees. Provide employee training on how to spot the warning signs of a potentially threatening situation, how to react if directly faced with a threatening situation, and how to report these incidents.
  • Provide Employee Assistance Programs. Provide employee assistance programs that create a supportive environment and help employees manage anger, anxiety, and other emotions in a constructive, non-violent manner.
  • Implement Security Measures. Put security measures in place that limit access to the workplace, monitor for suspicious conduct, and detect the presence of weapons. Possible security measures include issuing security cards, hiring security guards, or installing metal detectors, silent alarms, or security cameras.


Off the Clock — Or Not?

One area of wage and hour law that has really been heating up in the past five years relates to so-called "off the clock" work. This development has probably been inevitable. As more and more class action litigation challenging the classification of employees has been filed and gone into “discovery,” plaintiffs' lawyers have had more and better opportunities to delve into the minutiae of company timekeeping records (and FLSA regulations) and come up with ever more creative claims.

Time spent working before leaving or after coming home, time spent travelling, and time spent changing into and out of uniforms in particular are coming under increased scrutiny — often in the same class action litigation.

Employers that stick their heads in the sand — even when they know that hourly employees are logging into their computer systems or corresponding via BlackBerry® or the Internet from home — may be in for a rude awakening. Particularly when large numbers of employees are engaging in such activity, even if only for a short time each, courts are increasingly less inclined to view the activity as “de minimis” — and hence non-compensable. Rather, such activity can be deemed to be compensable work, particularly if a significant number of employees are starting their days by logging onto a company computer system for five or 10 minutes before leaving home.

An additional problem spawned by such activity at home is that once an employee does any work during a workday, activities that come after — such as commuting — that might otherwise not normally be considered “work” may become compensable. This is because once work has commenced on a given workday, under the FLSA’s “continuous workday” doctrine, time that might otherwise be non-compensable (such as normal commuting time) can become compensable. Driving time from home to work is not compensable. But if “home” has become a “workplace,” it is treated just like any other workplace — and driving time between workplaces has always been compensable. Similarly, when employers require employees to put on a specific uniform at work, the continuous workday can commence, and all (non-break) time until that uniform is taken off can become compensable.

Now, more than ever, it is important that employers keep abreast of legal developments in the wage and hour arena and proactively audit which activities they do and do not consider to constitute compensable work.


Legal News is part of our ongoing commitment to providing legal insight to our clients and colleagues. If you have any questions about or would like to discuss these topics further, please contact your Foley attorney or one of the following individuals:

Authors

Cherice M. Hopkins
Milwaukee, Wisconsin
414.297.5910
chopkins foley.com

John H. Douglas
San Francisco, California
415.984.9878
jdouglas foley.com