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updated: 8/14/2013 12:33 PM

What new concealed carry law means for Illinois businesses

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  • Illinois' new concealed carry law seems straightforward enough on the surface. But for businesses, the issues aren't quite so simple.

      Illinois' new concealed carry law seems straightforward enough on the surface. But for businesses, the issues aren't quite so simple.

 
 

Illinois' new concealed carry law seems straightforward enough on the surface.

But for businesses, the issues aren't quite so simple.

If a suburban business wants, for example, to ban handguns in company-owned buildings, it still in most cases can simply display a sign prohibiting them.

But that same business can't prohibit an employee from keeping a gun locked up in a car in the parking lot.

And say, heaven forbid, a shooting takes place in the workplace despite the prohibition. Could the business face liability issues because it presumably did not allow employees to protect themselves?

Or say the reverse. That the business allows guns in the workplace and a shooting incident takes place? Could the business face liability issues because it didn't restrict the weaponry?

Because of questions like these and more, the Illinois State Chamber of Commerce was flooded with so much interest when it offered a webinar last month on the subject that it ended up adding a second session and then a third. And some legislators like state Rep. Tom Morrison, a Palatine Republican, say they plan public meetings to talk about the concealed carry law because they've been swamped with so many questions.

Illinois was the 50th state to adopt concealed carry, doing so a month ago with apparent reluctance in response to a federal court order, but if being last meant learning from others, the learning did not reduce complexity or challenges.

When the Wisconsin legislature passed a concealed-carry law two years ago, it did so with an immunity provision that protected businesses in the state from liability if something went wrong at the workplace as a result.

But the Illinois General Assembly included no such provision in its legislation. Businesses in the suburbs have considerable reason, therefore, to craft weapons policies carefully so as to limit exposure.

How much confusion is there?

Well, although the law was only passed in July, it's already in effect. But because it gave the Illinois State Police as long as six months to develop a mandatory 16-hour training program and a process for applying for permits, the average citizen still cannot carry a concealed firearm in public and the specific requirements for business signage on the subject remain a little unclear.

And while many business operators assume they will have the authority to decide whether concealed handguns are or are not allowed in their place of business, many will not. The law grants property owners that authority, not businesses. Businesses that own their own buildings, therefore, will have that authority. But businesses that rent building space will not; those businesses will be at the mercy of their landlords.

The concealed carry legislation includes exceptions, areas where concealed handguns are prohibited. Some are fairly obvious places like schools, playgrounds, taverns, government buildings, hospitals and medical facilities like nursing homes, stadiums and arenas. Signage and formal policies are not needed to ban concealed guns at those places.

But it's not always quite so clear at a restaurant. In general, patrons and employees would be allowed by law to possess concealed guns in them -- but not if 50 percent of the establishment's revenue comes from alcohol.

State Rep. Marty Moylan, a Des Plaines Democrat who voted against the law, said guns should be banned in any restaurant serving alcohol for clarity's sake. He said the law can confuse patrons. He encouraged owners to be clear with signs and rules. "You don't want any misconceptions of the law," Moylan said.

The new law likely will force many restaurant owners to create new business policies, said Deno Roumanidakis, operations director for Bob Chinn's Crab House in Wheeling.

"We will have to consider a sign, and we'll need to change our policy for our employees and the restaurant," Roumanidakis said.

Despite the complexities, many business leaders believe their companies already are prepared. The new law likely won't have any major impact at manufacturer DMG/Mori Seiki USA Inc. in Hoffman Estates, said its President Mark H. Mohr.

"We already have a policy in our handbook that states: 'Firearms, weapons, and other dangerous or hazardous devices or substances are prohibited from the premises of DMG/Mori Seiki USA without proper authorization,'" Mohr said.

At Just Tires in Arlington Heights, Goodyear long ago asked the retailer to place a sign in its window declaring the premises off-limits to guns. No incidents preceded the sign, but many customers have told store manager Tony Alfonso they're glad the retailer posted it.

"They said they feel safer and some thought we were more conscientious about gun safety," Alfonso said. "It brought them into a comfort zone."

Meanwhile, state Rep. Morrison, a proponent of the law, said while many business operators can decided whether they want concealed carry to apply to their business, he'd encourage businesses not to ban guns. The point of the legislation is to allow people to protect themselves, and being the only business on the block that bans concealed guns could make it a target, Morrison said.

"They don't want to carry out a robbery when the business is defending itself," Morrison said. "I think it's wise to just be low key about it."

Although the law does not mandate that any workplace policy be implemented, employers will need to review their handbooks and policies to ensure that they don't conflict with the law, and that they are specific enough to ensure that employees are on notice of the policies, advised said Jeffrey Risch, partner and chairman of the Labor and Employment Group at SmithAmundsen LLC, a law firm in St. Charles and Chicago.

In addition, he said companies should consider revising workplace violence policies apart from any separate weapons policies.

"Employers should also note that only workers who are properly licensed to carry the firearm and do so in accordance with the statute are protected under the law," Risch said.

Generally, an employer has the right to regulate employee behavior when the employee is under the employer's control or engaging in business on behalf of the employer, Risch said.

"There is certainly no constitutional right to be armed while working, generally speaking, and even if there was, the Second Amendment rights would have to be balanced against the employer and other employees' rights," he said.

For employees who work out in the field, the answer isn't as easy either.

"This could become tricky if the employee working in the field wishes to store a firearm in his or her personal vehicle where the worker may be allowed to store the firearm in accordance with the statute," Risch said.

If a shooting takes place in the workplace despite a company prohibition, could the business face liability claims?

"Unfortunately, the legislature did not address this to immune employers from such theory of liability," Risch said. "We wish it had. Perhaps in the future this can be addressed in the statute through sensible amendments."

But so long as the employer, including its agents, employees, managers and others, had no knowledge that anyone was in violation of its prohibition, such as possessing a loaded firearm in the office, then it should not be held generally liable, he said.

Workers' compensation statutes should be in place to protect co-workers from acts of related violence regardless of what the employer knew or should have known, he said.

As for the reverse, Risch believes companies that allow concealed carry are in a more vulnerable position if a shooting takes place.

"In terms of general liability issues, the employer that does not prohibit concealed carry in its office or in its facility can and will likely face all sorts of legal liabilities when bad things happen," said Risch. "All the more reason for employers to review, modify and update its workplace violence policies and practices when considering the impact of this new law."

Since Wisconsin passed its law two years ago, said Scott Manley, vice president of government relations for Wisconsin Manufacturers and Commerce, "it appears that most businesses did not post a sign prohibiting guns, possibly for a variety of reasons."

The immunity issue, he said, likely played a part in it.

"If they decide not to post a prohibition, then they can enjoy legal immunity of liability as a result of that decision," Manley said,

In Illinois, the more likely liability issue will center on whether a business has reason to suspect an employee might do something violent, said attorney Brandon Anderson, a senior associate also with SmithAmundsen. For example, if an employee repeatedly threatens to retrieve a gun from the car in the adjacent parking lot, but the company does nothing to address the situation.

"From a practical perspective, regardless of the existence of a policy, and regardless of whether any real legal liability exists, an employer will likely be named in any lawsuit predicated on an employee causing any harm or damage with a firearm on or about the workplace premises," Anderson said.

The Seventh Circuit case that struck down the statewide prohibition on concealed carry did not find that the Second Amendment guarantees a right to carry a weapon in the workplace; rather it viewed the issue as the right to carry concealed firearms "in public" or "outside the home," Anderson said.

"From a business perspective, I don't expect much of an impact on an employee's constitutional rights," Anderson said. "That being said, it largely depends on the policies that a business might implement and I'm sure there are going to be a wide array of common sense to bizarre policies. In light of the litigation, indeed successful litigation, backed by gun advocacy groups over the past several years, there is no question that court challenges are possible," Anderson said.

Since the state law is so new, the financial impact on business owners is still "uncertain," he said. If a business wants to prohibit concealed carry according to the law, then obtaining a 4-by-6 inch sign isn't a big financial impact.

However, there could be a financial impact if insurance carriers take the potential presence of weapons in or around the workplace into consideration, he warned.

"That being said, considering that Illinois was the last of the 50 states to allow concealed carry, this should not be a major concern," Anderson said. "Of course, this is a new law, and employers in Illinois will slowly come to terms with it and adjust policies accordingly. Anytime new law impacts that workplace, there're some soft costs associated with such adjustments."

So what does it mean to Main Street?

Don Gingold, owner of Naperville-based Sprocket websites that provides Internet solutions, said he hasn't thought much about the concealed carry law yet.

"Most often I go to the customer or meet publicly so there's no ban policy to consider," he said. "I guess I'd feel differently toward a prospect sitting across from me at Starbucks if I suspected he was carrying a gun."

• Daily Herald Staff Writer Mike Riopell contributed to this report.

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