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Aug 2, 2013

By Paul E. Starkman

Illinois recently became the last state in the nation to pass a gun control law when it enacted the 168-page Firearms Concealed Carry Act.

Persons who obtain permits under the Act (including employees) will have a right to carry concealed firearms onto businesses and workplaces, unless the business falls within one of the “prohibited areas” exception or posts notices at entrances stating that weapons are not permitted on the premises.

For many Illinois employers, the new law is a scary proposition given how prevalent workplace violence has become in recent years. The U.S. Bureau of Labor Statistics reports that workplace violence caused nearly 17 percent of all U.S. workplace fatalities in 2011, with shootings being the most frequent cause of death in both homicides and suicides at work.

  • “Prohibited Areas” — The Illinois Act contains a “prohibited area” exception that forbids even permit holders from knowingly carrying a firearm into certain designated “prohibited areas.” Examples of these areas include childcare facilities, universities, casinos and government buildings among others. “Prohibited areas” and private residences do not have to post signs prohibiting concealed firearms, though it may be prudent to do so.
  • No Guns” signs required — If a business does not meet the definition of a “prohibited area,” but wants to prohibit weapons at the work site, the business owner will have to “clearly and conspicuously” post signs at the entrances stating that firearms are prohibited on the premises.
  • Special rules for parking lots — Businesses and employers who are not “prohibited areas,” but post no-guns signs, must recognize that their concealed weapon bans will not extend to their parking areas. Under the new Act, employees, visitors, and others with concealed carry permits will be able to store their firearms in their vehicles even when parked in the parking lot of a workplace that otherwise bars concealed firearms, as long as either the vehicles are locked and the firearm is out of sight or the firearm and ammunition are in a locked container.

The Act goes on to provide that license holders can even carry a concealed firearm in the immediate area outside of their vehicles in a parking lot, but only for the limited purpose of storing or retrieving the firearm within the vehicle’s trunk and only if the firearm is unloaded. This carve-out of parking lots is consistent with other states’ “guns-in-parking-lots” law.

Gray areas

The new state gun laws raise many questions for employers.

Question: Under this new law, can employers in Illinois or other states ask employees and applicants if they have concealed carry permits?

Answer: In Illinois, the Act is silent on this issue, but the concealed-carry laws in other states prohibit such questions. Only Nevada allows public access to the identities of concealed-carry permit holders.

Q: Will employees have a legal cause of action if they are terminated for violating workplace rules that do not comply with this new law?

A: In Illinois, the Act is silent on if it creates a private cause of action. If the new law is held to reflect an important public policy in Illinois, then Illinois employees may have a wrongful termination claim under Illinois common law that may be based on violations of this law.

Steps employers must take

New laws raise new issues for employers across the country. Employers are asking what to do about these new Concealed Carry Acts. Examples of steps based on Illinois’ new Act include:

  1. Employers must determine if they operate in a “prohibited area” under the Act.
  2. If not, they must determine if they want to allow or prohibit concealed firearms onto their premises.
  3. If a business wants to prohibit concealed firearms, it must determine if they own or merely leases the property on which the business is located.
  4. In Illinois, employers who own their own premises and wish to prohibit weapons at work must post conspicuous 4″x 6″ signs at their entrances prohibiting concealed firearms on their premises. Employers who lease their premises should review their written lease agreements and may need to work with their landlords before implementing anti-gun policies.
  5. Illinois employers who want to prohibit firearms must immediately revise workplace policies to make them consistent with the new Illinois law, including the new rules on guns in parking lots. These new workplace policies should cover guns in company-owned vehicles.
  6. Such employers must also revise their procedures regarding workplace searches, investigations, risk assessments, and responses to violence issues.
  7. Employers must train their personnel on how to respond to reports of concealed weapons and threats of workplace violence, including when and how employees can be asked about concealed carry permits, what work areas can be searched, and when to involve law enforcement.

How does the Illinois Act compare with other laws?

The law makes Illinois one of 35 “must issue” states, meaning that state officials must issue a license as long as the applicant is older than 21 years of age, has a Firearm Owner’s Identification card, passes a criminal background check (including fingerprinting), and passes a 16-hour training course that includes a “live fire” component.

In other words, a license must be granted unless law enforcement can show a “suspicion that the applicant is a danger to himself or herself or others, or a threat to public safety,” such as two or more DUIs or a drug/alcohol-related offenses or conviction of a crime involving the threat or use of violence within five (5) years. In “may issue” states like Alabama, California, and New York, state authorities have discretion to deny conceal carry licenses.

The 16-hour training requirement in Illinois is the most extensive in the country (Missouri, for example, requires only eight hours). The costs for the five-year license for Illinois residents ($150) and out-of-state applicants ($300) are higher than in neighboring states. Unlike Florida, Michigan, Texas and 34 other states, Illinois does not grant reciprocity or recognize other states’ conceal carry licenses, but non-residents can obtain an Illinois license by paying the $300 fee (if the other state’s law is “substantially similar”).

It is important to recognize that the new Illinois Act is not a “stand-your-ground” law that allows the use of deadly force in self-defense. It is also not like other states’ “castle doctrine” laws that give the right to use deadly force in the defense of one’s home or (in some states) your business Nor is it an “open-carry” law like the Oklahoma 2012 statute that allows permit holders to display their handguns openly in a holster.