Wednesday, September 14, 2011

Guns in the work place, revisited.

Guns in the work place...this doesn't sound like such a good idea unless you are talking about the military.  A recent incident which occurred in  Benton Harbor, Michigan involving the attempted robbery of a pharmacy highlights the issues of work place violence, employee self help, and the scope of an employer's obligation to provide a safe workplace.

According to media reports, on May 8, two men entered a Walgreens pharmacy.  One of the men pushed an employee down the aisle and jumped over the counter and confronted the pharmacist.  The man pointed his gun at the pharmacist who was trying to call 911 and tried to shoot him; the gun misfired.  The pharmacist, who a had a concealed weapons permit and was carrying a gun, opened fire.  He missed, and the two would be robbers fled.  He had not told Walgreens that he carried a hand gun while at work.  A video has been released which shows the attempted robbery.

The pharmacist was fired for violating Walgreens' non escalation policy which, according to media reports, requires employees to be compliant in emergency situations.  A  company spokesman indicated that store policy specifically prohibits employees from carrying weapons and to avoid confrontation.  The company utilizes high definition surveillance cameras in furtherance of its position that arrest is an effective deterrent to future robberies. Walgreens attorneys have said that the company had a plausible and legitimate business reason for terminating the pharmacist.

The pharmacist filed suit alleging wrongful termination.  In the Complaint, the pharmacist alleged that in 2007, he was working the night shift when it was robbed at gun point.  He requested that a panic button be installed and that the store be closed when there were power outages.  Walgreens never responded.

In the Complaint, the pharmacist stated that when the robber pointed his gun at him and attempted to pull the trigger, he felt that his life and those of the others in the store were in imminent danger.  He pulled out his gun and fired at the robber.  The Complaint alleges that there is a right to self defense under constitutional , statutory, and common law.  As a result, his termination was in violation of public policy.

Under Michigan's concealed weapons law, an employer can prohibit an employee from carrying a concealed weapon in the course of employment with the employer.  MCLA Sec. 28.425n.  If, as indicated, Walgreens prohibited employees from carrying weapons consistent with Michigan law, what is the basis of the public policy claim in light of the state concealed weapons law ?

Violence in the workplace has been recognized as a health and safety issue.  In 2009, OSHA issued a detailed document entitled Recommendations for Workplace Violence Prevention Programs in Late-Night Retail Establishments. The report contains detailed discussions of minimizing risk through engineering controls and workplace adaptions and through administrative and work practice controls.  Appended to the report are checklists including a workplace violence inspection checklist with a section addressing security measures.  Among the devices are physical barriers, security cameras, panic buttons, alarm systems, internal phone system to activate emergency assistance; phones programmed to dial 911, and personal alarm devices.  There is no mention of employees' carrying weapons as a device.  OSHA recently issued a new compliance directive entitled Enforcement Procedures for Investigating or Inspecting Incidents of Workplace Violence.


While the facts of this case are compelling in terms of split second decision making in the face of a deadly threat, the facts do not state a claim under Michigan law.  Employers can prohibit employees from carrying weapons during the course of employment which Walgreens apparently did.  OSHA has specifically recognized the threat--workplace violence in late night retail establishments and issued comprehensive recommendations for employers.











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