Tag Archives: jurisdiction

‘Boss, Can I Carry While I’m Working?’

If you own a bricks-and-mortar firearms retail store, at some point you will have to deal with this question, if you haven’t already. There are both pros and cons to having your employees carry in your store while they’re on the clock, so let’s look at the list of them.

Cons

There are a number of questions you should be asking before allowing your staff to carry while working—and a “No” to any of them should give you pause.

Do my employees have an acceptable level of training to use a firearm in a life-threatening situation should the need arise? Do they even know how to discern which situations call for the potential use of deadly force and which ones require less-lethal remedies?

Is the potential for the use of deadly force realistic for your store design? In many jurisdictions, law enforcement trains to a “21-foot rule” to determine when deadly force can be an option, this being the distance needed for an officer to effectively draw a weapon and fire when confronted. Inside your store, though, the reaction space may be more like three feet across the gun counter. Knowing that, does allowing your staff to carry become more of a liability—are they more prone to a gun grab, for instance, or will they simply not have the time and distance needed to draw and fire in a close-quarters attack—than an asset?

Do my business and health insurance policies cover any and all aftermath resulting from a use of force by an employee?

Are there any local, state or federal laws that prevent my employees from carrying their personal firearms while at work or restrictions to carrying while working that would hurt my business?

Do your employees need concealed carry permits to carry legally in your store? Does your store need any kind of special security licensing to permit your employees to work while armed?

Are your employees trained in first aid?

Are you in a high-crime area? If so, is your area one where crimes occur with some frequency when businesses are open?

Is your business located remotely or is challenging for law enforcement to get to in a timely manner?

There’s another concern you should address, and that is the one having to do with the impression that having a staff of armed employees makes on your customers.

“I worked in a firearms retail store and indoor shooting range in the D.C.-metro area for many years back in the 1990s,” Jennifer Pearsall, the National Shooting Sports Foundation (NSSF) director of public relations, told me. “For many years the county our store resided in refused to sign off on concealed carry permits, but when some state legislation made the application process more universal, naturally everyone wanted to carry. That was certainly true for several of our employees, especially since our store had been burglarized a couple times, though always after hours. But the owner decided not to allow it. We had a customer base consisting of everyone from serious antique collectors to competitive pistol shooters and hunters, but we also regularly had novices in the store. The owner didn’t want to give those newcomers and those quieter collectors we often had in the store an impression that was in any way intimidating or unapproachable. That’s a legitimate consideration, emphasis on ‘consideration.’ What’s normal to us as professionals in the industry isn’t always normal to those on the outside—you do have to put yourself in your customers’ shoes and ask, ‘What would I think if this was my first time walking through my store’s door?’ Too, a store that has an extremely active 3-Gun competitor or cowboy action shooting crowd might make a different decision about in-store carry than one that routinely fills their first-time shooter safety classes. There is no right or wrong answer to this beyond the one you come up with yourself based on what you know about your customer base as it exists now and how you want to expand that base.”

Pros

Many of the pros to allowing your employees to carry while at work should be obvious, but let’s take a look at some of them in greater detail. Some of these are predicated on your having a policy regarding their ability to carry in your store, while others address a “Yes” response to an item in the “con” list above.

Your employees have some level of training in self-defense and are active participants in the shooting sports outside of work. These things can certainly help make them better salespeople.

Your employees have been educated about the laws of open and concealed carry in your state and can help pass that information on to customers seeking the same.

If you had to obtain special licensing or institute a training program to enable your employees to carry during work, this might reduce your risk of liability to your insurance carrier.

Having your employees carry during open business hours, especially open carry, is a visual deterrent to criminals.

Employee carry can serve as an advantage for stores located in remote areas and far away from emergency responders.

When presented as “normal” and “not a big deal,” open carry by your staff could help mitigate apprehension in customers new to your store and open the door for discussion on subjects like the legality of concealed carry in your area, what kind of gun and holster to buy and other subjects that will interest these novice gun owners.

By putting all the precursors in place to allowing your employees to carry—their training, store carry policy and any necessary licensing, discussions with your insurance carriers and lawyer—you are better equipped to deal with a deadly force situation if one does occur. This includes everything from first aid and working with law enforcement arriving on the scene to handling the media, counseling and any workman’s comp claims for employees, insurance claims and any matters that need to be handled by a court.

Only you can decide what’s right for your store when it comes to allowing your employees to carry while they’re working. Whatever decision you make, simply by working through the lists of pros and cons here and adding in any other factors that could affect your store and livelihood, you’ve improved how you do business.

As they say, work smarter, not harder.

This article was originally published on NSSF.

He Who Sits On His Rights Loses Them

Never Ignore the Statute of Limitations
The Wisconsin Court of Appeal was called upon to resolve a dispute over the application of a statute of limitations in a suit against American Family Mutual Insurance Company, Gage Creighbaum, Sherry Lagios, and Dimitrios Lagios (the “defendants”) who appealed an order denying their motion to dismiss. The trial court held that the defendants waived their statute of limitations defense by not raising it prior to filing their notice of appearance and serving their request for admissions in response to Maas’ amended complaint. In Justin M. Maas v. American Family Mutual Insurance Company, Gage M., No. 2011AP1661 (Wis.App. 08/01/2012) the Wisconsin Court of Appeal resolved the issue.

Background
On August 20, 2007, Creighbaum crashed his vehicle into a vehicle operated by Maas, resulting in personal injury to Maas. On August 18, 2010, two days before the end of the three-year statute of limitations period, Maas filed a summons and complaint against the defendants related to his injuries. Maas failed to serve any of the defendants with the summons and complaint.

Maas filed an amended summons and complaint on February 15, 2011, which he served on the defendants. The amended summons and complaint contained the same cause of action and named the same defendants as the original summons and complaint. The defendants filed an answer to Maas’ amended summons and complaint alleging Maas failed to obtain proper service of process on Creighbaum and the Lagioses and the court therefore lacked personal jurisdiction over them and alleged that Maas’ claim was barred by the statute of limitations.

The trial court denied the motion, concluding that the defendants’ failure to raise their jurisdictional objection prior to filing the notice of appearance and serving the request for admissions constituted a waiver of their statute of limitations objection. The court further held that Maas’ action was properly commenced and that the amended complaint related back to the original complaint.

Analysis
On appeal, the defendants argued that even though Maas filed his original summons and complaint two days prior to the running of the three-year statute of limitations period, his claim is barred because he failed to serve any of the defendants with the summons and complaint within ninety days of the filing as required by Wisconsin statutes.

The Wisconsin Court of Appeal concluded that the statutes are clear. An action to recover damages for personal injuries shall be commenced within 3 years or be barred. An action is commenced as to any defendant when a summons and a complaint naming the person as defendant are filed with the court, provided service of an authenticated copy of the summons and of the complaint is made upon the defendant within 90 days after filing. Thus, if service is not made within ninety days of the filing of the summons and complaint, the action is not commenced. If not commenced within the three-year statute of limitations period, the action is barred.

It was undisputed that Maas failed to serve any of the defendants with the original summons and complaint within ninety days of filing. Wisconsin procedure requires, therefore, that the court conclude his action was never commenced prior to the running of the limitation period and is therefore barred.

Maas’ failure to serve the defendants with the original summons and complaint within ninety days was a fundamental defect which deprived the trial court of personal jurisdiction over the defendants and rendered the original pleading a legal nullity. The trial court conclusion that the defendants waived their jurisdictional objection by failing to raise the objection when they filed their notice of appearance and served their requests for admissions in response to Maas’ amended pleading fails since there was nothing for the defendants to waive.

Conclusion
Maas’ failure to serve the defendants with the original summons and complaint within ninety days resulted in the three-year statute of limitations period expiring without an action having been commenced. The failure was a fundamental defect which rendered the pleading a legal nullity and could not be remedied by the subsequent filing of an amended pleading after the statute of limitations period expired.

Statutes of limitation were designed to protect people against stale claims because, if suit is not filed promptly, memories fade and witnesses can move away from the jurisdiction. Parties and lawyers that wait until the last moment to sue are taking a chance of losing those rights because of their sloth. Mr. Maas is not without a remedy, however, because his lawyer’s failure to serve the defendants within the 90 days allowed by statute might allow for a case against the lawyer for failing to act within the custom and practice of lawyers in his community.

Although the waiver argument was original and successful in the trial court it did not stand up to scrutiny since no one can waive a nullity nor can a cause of action be created by waiver.

Telecommuting: The Future Office or an Insurance Nightmare?

Some employers view telecommuting as the cure-all to reduce fixed costs associated with real estate and to lure prospective employees to their workplace. Questions have persisted in the minds of some about the pros and cons of telecommuting. From the risk management standpoint we need to ask: Do we really understand the potential risk ramifications of telecommuting?

Telecommuting can be defined as the practice of employees working out of their private residences on a regular basis (once a week, twice a week, or more). With advances in technology (e-mail, computer networks, fax modems/machines, phone systems, etc.) telecommuting continues to increase at a steady rate. This virtual office atmosphere (being able to be connected essentially anywhere) has significantly increased the number of employees who can perform their jobs effectively from home. Tens of millions of Americans work at home on a regular basis.

The Benefits

  • Millions/billions saved in real estate costs including heating/cooling/electrical, etc.
  • Increased productivity to the company — employees are allowed to work at their own pace/environment with fewer interruptions.
  • Environmental benefits from less fuel consumed and less pollution.
  • Shorter commute times for those who still go to offices as a result of fewer vehicles on the road.
  • “Flex” time for family commitments and increased employee satisfaction.

It is also necessary to provide work-at-home employees with the same safe environment given to office employees. Each employer is required by OSHA to provide employees with a safe work environment regardless where the “work” is located. There was a proposal by OSHA to require home-office inspections but it was quickly dropped.

Challenging Insurance Issues

  • When are (are not) employees working?
  • If an employee slips and falls, was the employee working or taking out the trash?
  • What happens if an employee goes to the grocery store during the workday and becomes involved in an auto accident?
  • What if the employee is attacked in their own home during working hours?
  • Who pays for equipment and furniture?
  • Who pays for equipment and furniture if it is damaged in a fire or stolen?
  • What if a fire is caused by excessive electrical requirements of computers, fax machines, copy machines, and other business equipment?

Many of these issues are handled on a case-by-case basis depending on jurisdiction. While it seems clear that there is liability associated with injuries that occur in the home office, it is less clear how you can prove work-relatedness or non-work-relatedness. When accidents happen there are rarely any witnesses. Case law is being developed to address some of these issues but most cases are still decided based on the individual circumstances.

The property damage/loss issues need to be established as company policy. Most employers do not provide deluxe home offices for their employees. Many do provide an assortment of equipment (computers, phones, fax machines, etc.) to help the employee stay connected with the workplace. These items are business equipment and probably not covered by the employee’s insurance policies.

Employee Perceptions
Some employees are very comfortable telecommuting and being away from their fixed, corporate office. Others are concerned about their ability to work with the constant distractions of their home and family. Still others do not have or want to make room in their homes for a home office environment. There are valid concerns about staying visible to their co-workers and their management. Many employees feel isolated and not “part of the team.”

The flexibility that telecommuting allows is unquestionably of great value to many employees but it is not for everyone. The positive goodwill generated by the telecommuting environment often encourages employees to work longer and have a better opinion of the company.

Ergonomics
A majority of telecommuters are computer users. After all, it is technology that has enabled many employees to become telecommuters. The ergonomic concerns for home office workers must be addressed to minimize this significant risk factor. Employee education and training is the most effective tool. Home office inspections by trained ergonomists are usually not completed due to the cost involved and the perception of invading the privacy of the employee.

Many employees are not inclined to personally spend the money required for the proper equipment. If their employers do not provide the equipment, the employees use whatever equipment they have. This includes working at fixed height tables with non-adjustable chairs …. generally an ergonomic nightmare.

Educational efforts should be focused on the importance of having a good chair and adjusting the chair and workstation surface to minimize awkward postures. Excellent ergonomic training materials are readily available.

The issue of laptop computers must be addressed in your ergonomics program. A laptop is not designed for regular use – the keyboard is too small and either the keyboard or monitor screen will be in a poor position with respect to allowing neutral postures. Laptop uses should be provided docking stations with separate monitors and keyboards. At a minimum, employees should have a separate keyboard and mouse such that the laptop monitor can be raised to an appropriate level to allow for neutral postures.

The importance of exercise and stretching can not be overstated for computer users. The affects of non-occupational activities (such as additional computer use or video game playing) must also be stressed during educational efforts.

Security Issues
From a risk management perspective, another important aspect to consider is network security. Dial-up connections are inherently less secure than the network connections in the office. Remote users often neglect back-up storage of critical information. These issues need to be addressed through your business continuity and information technology plans. Also, business interruption exposures may exist at home and between office networks from undetected viruses or lack of anti-virus protection programs.

Telecommuters can be a significant component of your business continuity plan (BCP) . If your central office location is destroyed it typically does not impact the telecommuters workspace. Alternate computer networking arrangements are still critical. To be truly effective, your BCP must include a risk assessment at each home office location.

Telecommuting Safety Program
No matter how small or large your organization may be, every employer needs to establish a Telecommuting Safety Program. Such a program might include the following:

Objective
To reduce the frequency and severity of work-at-home accidents and incidents by informing telecommuters of their safety and health rights and responsibilities.

Program Elements
A. Employee training
B. On-site hazard assessment
C. Safety and health consultation
D. Accident investigation
E. Provision of appropriate safety and health devices
F. Contract with employees authorizing home visits

Employee Responsibilities
A. Conduct in-home inspections
B. Complete training
C. Report all incidents

Evaluation Mechanisms
A. Incident rates
B. Incident report forms
C. Workers’ compensation claims
D. Employee feedback

Specific Questions to Consider

Home Inspections

  • Is there a functioning smoke detector in the employee’s home?
  • Are there two or more means of exit/egress from the work area?
  • Are aisles/passageways in the work area clear at all times?
  • Are work area properly illuminated?
  • Are electrical cords/wiring adequately loaded/grounded?

Ergonomics

  • Is the workstation properly adjusted?
  • Have employees been trained on ergonomics?

Air Quality

  • Are gas fired appliances provided with exhaust vents?
  • Has indoor air been tested/evaluated for humidity, moisture, radon, carbon monoxide/dioxide, etc.?

Incident/Accident Investigation

  • Have company policies been established and implemented stating who will perform home inspections and incident investigations to address potential “invasion of privacy” issues?

Company Responsibilities

  • Has training been provided in home inspections, ergonomics, fire hazards, trips/falls, etc.?
  • Are computer equipment and office furniture provided and set up to meet employee needs?

Employee Responsibilities

  • Have employees completed all work-at-home training programs?
  • Do employees follow all established policies regarding home inspections and incident/accident reporting?

Evaluation

  • Has an annual evaluation of the Telecommuting Safety Program been performed?
  • Does comparison of telecommuting vs. office incident rates justify continued telecommuting?

Conclusion
Telecommuting is here to stay. There are too many benefits for employers and employees. As risk management and insurance professionals we need to acknowledge the risks presented by telecommuters and identify and implement corrective actions to minimize our exposure.

Authors
Dirk Duchsherer collaborated with Steve NyBlom (CSP, CPEA, ARM, ALCM) in writing this article. Steve is the Assistant Administrator of the Risk Management/Insurance Practice Specialty and is a Vice President with Aon Risk Services in Los Angeles, CA.