Texas Open Carry Goes Into Effect January 1, 2016

As of January 1, 2016, it will be legal to carry a handgun openly or concealed if you are licensed by Texas or a state with reciprocity subject to exceptions outlined by the law.

Employers can comply with the various categories of state guns-at-work laws, but employers should also be aware that gun-related incidents can result in liability under several different legal theories, including:

  • Occupational Safety and Health Act (OSH Act)
  • Workers’ compensation law
  • Tort law, such as a negligent hiring claim from a third-party victim

OSHA’s General Duty Clause 

While there is no federal law establishing an employer’s duty to prevent workplace violence, an employer has a duty to provide a safe working environment under the OSH Act, which regulates workplace health and safety.  So employers that violate the OSH Act general duty clause can be issued citations by the Occupational Safety and Health Administration.

Workers Compensation 

Workers’ compensation benefits are largely governed by state law. Typically, employees can receive workers’ compensation benefits for injuries arising out of and in the course of their employment. An employee injured as a result of a gun-related incident at work may be eligible for workers’ compensation benefits.

General Liability 

Under common law, an employer can be vicariously liable for wrongful acts by an employee or subcontractor in the course and scope of their employment. In general, an employee or subcontractor who acts violently is acting outside the scope of their employment. However, depending on the facts of a particular situation, an employer could be liable if the employee or subcontractor was acting in the course and scope of their employment when they injured another person.

Negligence Claims 

Because laws do not limit a nonemployee’s negligence claims, an employer may face negligence claims from a third-party victim of gun-related violence. For example, if an employee or subcontractor with a known propensity for violence injures a third party, or customer, depending on the facts of the particular case, an employer may be sued for negligent hiring, supervision, and retention.

Negligence claims are governed by state law. Primary considerations generally include whether the employer should have known that the employee could cause harm to others and, if so, whether the employer acted reasonably under the circumstances. Would you incur the expense to run background checks on all your subs and their employees?

In conclusion, Catto & Catto recommends that your company make your worksites a gun free zone.  State law may grant permissions, but you as an employer can require your workplace to be weapon free.  To ban handguns from your worksites, you must post TWO notices – one prohibiting concealed carry of handguns (PC 30.06) and the other prohibiting open carry of handguns (PC 30.07). Posted signs must meet all of the following requirements:

  • Include language in both English and Spanish: "Pursuant to Section 30.06, Penal Code (trespass by license holder with a concealed handgun), a person licensed under Subchapter H, Chapter 411, Government Code (handgun licensing law), may not enter this property with a concealed handgun” and "Pursuant to Section 30.07, Penal Code (trespass by license holder with an openly carried handgun), a person licensed under Subchapter H, Chapter 411, Government Code (handgun licensing law), may not enter this property with a handgun that is carried openly",
  • Appear in contrasting colors with block letters at least one inch in height, and
  • Be displayed in a conspicuous manner clearly visible to the public at each entrance to the property.

Parking Lot Restrictions and Exceptions

Senate Bill 321, supported by the National Rifle Association (NRA), was signed into law by Governor Rick Perry in June of 2011. In a nutshell, the law prohibits employers from banning storage of firearms in employee vehicles parked in company lots, provided they have a license and where possession is not otherwise prohibited by state or federal law. Again, there are exceptions you will want to review.

Contact our risk management team for assistance.

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