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Employer immunity under and potential revisions to Wisconsin’s concealed carry law

Wisconsin’s concealed carry law will take effect on November 1, 2011. Employers across Wisconsin have been considering whether to allow or prohibit employees from carrying concealed weapons in the workplace. One of the main considerations has been the strength of the new law’s grant of “immunity” if employers allow their employees to carry concealed weapons in the workplace.

The law as signed by the Governor provides:  “An employer that does not prohibit one or more employees from carrying a concealed weapon…is immune from any liability arising from its decision.”  2011 Wisconsin Act 35, Section 21.  Exactly what that immunity provides, however, has been a matter of debate.

Some argue that the law, as drafted, would not protect an employer if the employer allows concealed weapons but is negligent in how it goes about allowing them. There is also a dispute about whether the law, as drafted, would mean that employers who prohibit concealed weapons take on more liability after the law’s enactment. One example, in this State Bar of Wisconsin InsideTrack posting, provides:

Consider the following hypothetical: An employee has a license to carry a concealed weapon, but a business prohibits the employee from bringing his or her handgun to work and posts proper signs to that effect. A disgruntled former employee walks in and starts shooting. Under the new concealed carry law, the business is not immune from liability.

The employee who was prohibited from carrying in the workplace, but who was injured by the disgruntled former employee, could argue the employer was negligent in prohibiting weapons in the workplace and, as a result, the employer is liable in tort for negligence. The employer would have many defenses, but who wants to be in court in the first place?

The academic debate occurring between lawyers — and the practical debate occurring in boardrooms across the state — can be avoided with one slight legislative act. Wisconsin, for some reason, did not go as far as other states in protecting employers from increased liability as a result of concealed carry laws. For example, in Ohio, employers are immune from liability caused or related to their decision to permit or prohibit concealed weapons. Wisconsin employers were not provided that two-way immunity. Rather, they were only provided with immunity if they permit concealed weapons.

The Legislature could amend the law to better protect Wisconsin employers. One alternative would be to grant clear, broad immunity to all businesses and employers with language such as:

An employer is immune from any liability, including negligence or other common law duties of care, arising from its decision to permit or prohibit employees or others from carrying concealed weapons on its premises.

This would protect employers regardless of whether they permit or prohibit weapons and would also effectively negate any potential increased negligence liability exposure for employers.

There is another approach to addressing the issue that does not go quite as far in terms of immunity but that would put employers in a better place. This approach would require one small revision to the current law. The law could be tempered with the addition of the following underlined words at the end of the current immunity provision:

An employer that does not prohibit one or more employees from carrying a concealed weapon…is immune from any liability arising from its decision, unless the employer acted with malicious purpose.

With the addition of this language to the law, a plaintiff would not likely be able to assert that an employer was negligent in allowing concealed weapons in the workplace.  A plaintiff would need to prove malicious purpose, and employers would not be subject to creative plaintiffs’ attorneys who frivolously claim that the employer was negligent for whatever injury may result from its decision not to prohibit weapons in the workplace.

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