By Benjamin M. Ebbink
Mass shootings have become a tragic reality in the United States, with a number of high-profile incidents at schools, workplaces, churches, and other public places rising in recent years. While the country remains deeply divided about the cause of such incidents and how to prevent them, there has been significant discussion, at both the national and state levels, about “red flag” laws as a potential tool to combat gun violence.
“Red flag” laws generally authorize a temporary restraining order to remove firearms from the possession of a threatening person. As in other areas, California recently pushed the envelope by expanding its own version of a red flag law to permit employers, coworkers, and teachers to pursue a restraining order. This may raise a number of interesting issues for employers in the Golden State.
“Red Flag Laws” And Gun Violence Restraining Orders
As mentioned above, a “red flag” law is a state law that authorizes the police or a close family member to seek a restraining order to remove firearms from the possession of an individual who has been deemed to constitute a threat to themselves or others. Connecticut was the first state to adopt such a law in 1999, and today 17 states authorize such actions in one form or another.
A “gun violence restraining order” (or GVRO) is different from a “workplace violence restraining order,” with which many employers are already familiar. The latter generally involves a restraining order sought by an employer or an individual employee seeking to bar an individual from the premises — such as a violent spouse or ex-spouse or a stalker. A GVRO, on the other hand, seeks to temporarily remove firearms from the possession of a person who is a danger to others. In general, the request is made to a judge who makes the final determination whether to grant or deny such a request.
California Expands Red Flag Law To Workplaces And Schools
California instituted its red flag law in 2014, and the original iteration of the law only permitted law enforcement officials and close family members of individuals to seek a restraining order. However, Governor Gavin Newsom recently signed into law Assembly Bill 61, which expands California’s red flag law to include employers, coworkers, and teachers as those eligible to seek a GVRO. The new law took effect January 1, 2020.
Under AB 61, California’s red flag law will allow the following individuals to request GVROs regarding another person:
- An employer of the subject of the petition;
- A coworker of the subject of the petition, if they have had “substantial and regular interactions with the subject for at least one year” and have obtained the approval of the employer; and
- An employee or teacher of a school that the subject has attended for the last six months, if the employee or teacher has obtained the approval of administrators.
Some state “workplace violence restraining orders” also include the confiscation of firearms as a condition of the restraining order. However, California appears to be the first state to authorize employers to directly request gun violence restraining orders. Since California is often a trend setter, other states may soon follow suit, so employers in other states should pay close attention to this trend.
Considerations For Employers
In some situations, the ability to request a GVRO could be a valuable tool for employers to prevent workplace violence. However, various areas of law converge when employers are confronted with these issues — including workers’ compensation issues, OSHA issues, and potential tort liability.
California’s new law does not “require” a person to seek a GVRO. However, an employer who has evidence of potential gun violence by an employee, or who receives a restraining order request from a coworker, could face potential arguments that a duty to act was created. Someone could allege an employer was negligent if it does not pursue such a restraining order.
Therefore, best practice demands that employers sit down with their legal counsel to discuss and consider these issues in a comprehensive and proactive manner. it is important for employers to consider developing an appropriate Workplace Critical Incident Protocol (WCIP) to ensure they have a structure in place for when these issues arise. For employers doing business in California, the discussion and development of any WCIP should now address gun violence restraining orders and the employer’s process and procedures for dealing with such issues.
In some state and local jurisdictions, employers must also navigate the complicated issue of whether to allow concealed weapon permit holders to carry guns at work. Depending on the state in which an employer operates, there may be legal risk associated with prohibiting employees from carrying concealed weapons, and several states have enacted laws permitting gun owners to keep firearms in their personal vehicles on the employer’s property. For these reasons, it is best for employers to consult with counsel to assess the constellation of legal and policy factors in order to make the best decision in this regard.
Employers need to be prepared to face these issues. Occurrences of workplace shootings continue at an alarming rate, as reported in the media on a frequent basis. Employers should consult with legal counsel and safety experts regarding this critically important workplace safety issue.
Ebbink is a partner with employment law firm Fisher Phillips in Sacramento, CA. He may be reached at bebbink@fisherphillips.com.
