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Update: employers and Wisconsin’s new concealed carry law

Now that Governor Scott Walker has signed the Personal Protection Act, Senate Bill 93, Wisconsin has become the 49th state in the country to have some form of concealed carry legislation.  Most aspects of the law will not go into effect until November 1, 2011, so employers have some time to revisit workplace violence policies and evaluate the desire to prohibit or regulate weapons in the workplace and on their premises.

The new law provides that a licensee may not be charged with disorderly conduct for loading, carrying, or going armed with a firearm, so long as there is an absence of criminal or malicious intent.  Businesses which allow concealed carry on their property are immune from liability arising from that decision. Those wishing to prohibit concealed carry on their property, however, must post signs meeting specific requirements for notification and lose that immunity.

The new law identifies the nature of the notice businesses must post if they seek to prohibit firearms in their building or on the premises of the business.  The sign must:

  • Be at least 5 inches by 7 inches.
  • State that concealed or open firearms are prohibited in the building or on the premises.
  • Specify the area to which the prohibition applies.

Signs must be placed in a prominent place near all of the entrances to the part of the building to which the restriction applies or near all probable access points to the grounds or land to which the restriction applies, as applicable, where any individual entering the building, grounds, or land can be reasonably expected to see the sign.  Businesses should consider the universal “no” symbol of a circle around a picture of a firearm with a slash across the middle of the circle, indicating that firearms are prohibited.

The new law also contains provisions specific to Wisconsin employers vis-a-vis their employees.  Employers are provided the option of prohibiting an employee from carrying a concealed weapon in the course of the employee’s employment, with one exception.  An employer may not prohibit an employee, as a condition of employment, from carrying a concealed weapon in the employee’s own motor vehicle, even if the employee uses his or her vehicle in the course of employment or if the motor vehicle is on company grounds.

An employer which allows employees to carry concealed weapons, however, is “immune from any liability arising from its decision.”  If, for example, an employer were to allow employees to carry concealed firearms into their place of business and an employee accidentally discharged his firearm and injured a patron, the employer would be “immune from any liability” that may arise from that incident.

Wisconsin employers and businesses now face what may be a difficult decision: should the employer or business prohibit employees or patrons from carrying concealed weapons — and lose the immunity provided by statute — or should the employer or business allow concealed weapons on the premises and therefore obtain the immunity?  The question calls for individualized considerations that touch on, among other things:  (1) the nature of the service, product or good provided; (2) the nature of the employee workforce or clientele at issue; and (3) the nature of the surrounding community in which the place of business is located.  Employers and businesses will have to consider many issues in deciding whether to prohibit employees and patrons from carrying concealed weapons.

Employers and businesses may be able to obtain immunity, however, while still regulating (short of prohibiting) employees or patrons carrying concealed weapons.  Only employers or businesses which “prohibit” employees or patrons from carrying concealed weapons forego immunity.  Prohibiting something, however, is not akin to regulating something.  The power to “prohibit” implies the power to “regulate,” and regulation can fall short of prohibition.

Employers should seek legal advice as they consider whether to prohibit concealed weapons in the workplace, how that decision may impact future liability, and the development of reasonable restrictions on their employees’ ability to carry a concealed weapon in the workplace.

July 09, 2011

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