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This is serious . . . do you want an armed workforce?

Those of you that read this thing on a regular basis know that I tend to be a little flippant in how I look at the issues of the day for employers.  I try to have a little fun with what I write.  Not this time and not with this topic.  This one is way too serious.  So I might sound way more like a lawyer than I normally do.  That is on purpose, because I want you to know the score before you change your policy.  As we usually do, we are going to focus on the law in Michigan.

So let’s start with the assumption that your organization has a written employment policy that prohibits any employee from carrying any type of weapon in the workplace, which necessarily includes any firearm that is owned and carried based on a valid Michigan-issued concealed carry license (“CCL”).  That would not be unusual.  In fact, I would say it would be unusual if your organization does not have such a policy.  And let’s say you are considering changing your policy to permit certain employees, say managers, to carry firearms on company property if they hold a valid CCL and comply with provisions that would be set forth in a new yet-to-be-drafted employment policy on this issue.  So far so good, right?

Before you do that, you might want to consider the implications.  Under Michigan law, any individual that holds a valid Michigan CCL may carry a concealed weapon on private property.  However, the law expressly permits an employer to prohibit an employee from carrying a concealed weapon in the course of his or her employment with that employer.  MCL 28.425n(2)(b).

Now the worst happens and an employee that you permitted to carry a firearm to work shoots somebody.  There is no Michigan state or federal case law that addresses the situation of an employer expressly permitting an employee to carry a firearm with a valid CCL, who subsequently shoots another individual in the scope of the employee’s employment with justification for doing so, e.g., in self-defense or in defense of others.  Under Michigan law, however, both of these defenses would be available in the civil context for the employee to rely on in defense of any tort claim against them.  To prevail based on self-defense, the employee responsible for shooting the decedent/injured individual would need to prove by a preponderance of the evidence that he or she reasonably believed his or her life was in imminent danger or that there was a threat of serious bodily harm.  See, e.g., Wright v. Shore Crest Lanes & Lounge, Inc., 2000 WL 3353866, at *1 (Mich. App. Ct. Jan. 11, 2000).  Similarly, to prevail based on defense of others, an employee would need to prove that he or she reasonably believed another person was in imminent danger of death or serious bodily harm.  Both defenses present inherently fact intensive inquiries, with the amount of force, what a reasonable person would believe, and other facts informing the inquiry.  If the employee prevailed on such a defense, the company would not be liable, given that the employee was justified under general tort principles (simply stated, acted reasonably).  However, given the factual nature of this inquiry, it is likely that a plaintiff that was injured (or his or her estate if killed) would file suit and litigate the issue, with summary disposition potentially difficult to achieve in the employee’s and the company’s favor without a trial on the facts.

If the employee was unsuccessful in prevailing on any such defense, or if the employee was justified in his actions but inadvertently hit another employee or non-employee bystander, the company could be held liable.  In the event an employee permitted to carry a gun at work shot another person without justification, or shot at a person with justification but hit another person that was a bystander, the injured individual would likely sue the company under a theory of respondeat superior, negligent hiring, negligent supervision, or combination thereof, with the respondeat superior theory the most likely legal theory.  Under respondeat superior, an employer is generally liable for the torts of its employees committed within the scope of their employment.  If the company adopts a policy allowing certain employees to carry concealed weapons during their employment, the company could be liable for its employee’s conduct because its policy permitted the employee to carry the firearm, and any shooting would likely be construed as intended to advance or at least protect the company’s business interests, e.g., protecting its employees and providing a safe work environment.  Of course, this inquiry would be fact-dependent as in any other tort case, but the company would have potential exposure.  Compare Martin v. Jones, 302 Mich. 355, 357 (1942) (concluding defendant-employer was not liable to plaintiff for injuries he sustained when shot by the defendant-employee while the defendant-employee was working as a service station manager because defendant-employee did not shoot plaintiff in furtherance of the defendant-employer’s business) with Cook v. Michigan Central Railroad Co., 189 Mich. 456 (1915) (holding a question of fact of whether night watchman employed to guard his master’s property who shot plaintiff was acting within scope of employment).

What if the person shot is another employee?  If that is the case, then under the Michigan worker’s compensation law, the company may be able to successfully argue that the Worker’s Disability Compensation Act (“WDCA”) is its employees’ exclusive remedy for any injury sustained as a result of an employee shooting, although again, there is no Michigan case directly on point.  The WDCA “is an employee’s exclusive remedy against an employer, unless the employee suffers an injury as a result of an intentional tort.”  LaDuke v. Ziebart Corp., 211 Mich. App. 169, 170 (1995).  Accordingly, for the WDCA not to apply, an injured employee (or their estate) would need to prove that the intentional tort exception applies to recover under general tort principles rather than the WDCA.  But the intentional tort exception is exceedingly narrow, requiring “a plaintiff to show that the defendant had actual knowledge that the plaintiff would suffer a specific injury and that the defendant disregarded that knowledge.”  Id. at 172 (citations omitted).  “It is not enough to show that a risk of injury existed or that someone, but not necessarily the plaintiff, was certain to suffer an injury.”  Id.  In LaDuke, the Michigan Court of Appeals applied these principles to a workplace shooting, where the decedent-plaintiff was a branch operations manager for the defendant-employer and was killed when he was shot by an employee he was in the process of terminating (who was subsequently convicted of murder).  Id.  The decedent argued the intentional tort exception applied to exempt his claims from the WDCA, but the Court of Appeals disagreed.  In reaching this conclusion, the Court held that decedent was unable to carry his burden “of showing that [his employer] intentionally instructed plaintiff to fire [the employee] with the actual knowledge that [the employee] would injure [plaintiff].”  Id.  The Court concluded there was no evidence that the defendant-employer had the requisite knowledge for the intentional tort exception to apply, because it had no knowledge that the employee posed a physical threat or had a criminal record when it asked plaintiff to terminate him.  To the contrary, the record evidence showed that the employee was quiet, not aggressive, and hard working.  Id.; see also Devlin v. Kaplanis, 43 Mich. App. 519, 521 (1972).

Under LaDuke, the company may be able to persuasively argue the WDCA should similarly apply to any claim against it, as the company would likely be able to show it did not have the requisite knowledge that its armed employee would harm a particular employee.  However, it is unclear how an employment policy that permits company employees to carry firearms, and contemplates that the employee may have to discharge the weapon even in certain limited circumstances while on duty, may impact this analysis.  For example, it could be argued that knowingly permitting guns in the workplace, particularly in what may be known to be hostile or potentially hostile terminations, rises to the level of knowledge to trigger the intentional tort exception of the WDCA, thereby subjecting the company to general tort liability, and the accompanying greater damages available under these tort principles.  In addition, having such a policy will place an affirmative duty on the company to ensure that its armed employees do not present a known threat.  As noted above, in LaDuke, the Court emphasized that the intentional tort exception did not apply at least partially because the employer had no knowledge that the terminated employee was a threat or had a criminal record.  This, of course, means that the company must continually do background and criminal records checks on employees who will be allowed to carry guns.  The company will also have an affirmative duty to make sure that the armed employees are up to date on any required training and that the armed employees always have a current CCL.    In short, the company would have an affirmative duty, that it does not currently have, to make sure the armed employee did not pose a threat to other employees.

I, know, I know, that is a lot to digest.  But that was the point.  You see the answer is never as simple as “Let’s let our employees carry guns to work.”  That may be the answer for your workplace and it may not be, but if you are considering it, we need to talk first.