All HR Professionals:The House of Representatives “railroaded” a bill to passage which would allow any employee with a concealed weapon permit to have a gun, out of sight, in their locked car, while in an employer’s parking lot. A copy of HB1873 is attached. Under the bill, it would be illegal for an employer to prohibit such an employee from having the gun in the employer’s parking lot, and illegal to discriminate against any such employee for bringing a gun to work.The bill is now in the Senate and there are some efforts underway to make a couple of amendments:
- To give the property owner immunity from liability for any occurrence involving the gun; and
- To exempt facilities that might be terrorist targets, such as utilities, refineries, etc.
If you believe that there is no circumstance under which you want an employee to have a gun at work, please contact your State Senator . . . NOW! This bill is moving fast!
It is easy to contact your Senator. Just click here, type in your home address, with commas, as follows: 999 Main St., Little Rock, AR, 72201. (DO NOT FORGET THE COMMA BEFORE THE ZIP CODE!) That will bring up the name of your Representative and your Senator, with a link to their contact information.
Please contact your Senators now. The debate thus far has been on right to carry arms vs. rights of property owners. They need to hear the HR perspective on this issue. If you have any questions, please contact any of the following:
Donna Merriweather, SPHR
ARSHRM State Legislative Affairs Co-Director
Senior Vice President-HR Director
P. O. Box 417901 Main Street • Arkadelphia, AR 71923
Darrin E. Coon, SPHR
ARSHRM State Legislative Affairs Co-Director
Business and HR Manager
John Brown University
2000 W. University Street • Siloam Springs,AR 72761
Russell Gunter, SPHR
ARSHRM Government Affairs Director
Cross, Gunter, Witherspoon & Galchus, P.C.
500 Clinton Ave., Suite 200Little Rock, AR 72201(501) 371-9999fax: (501) eat1@eau1eav1eaw1
Talking Points: ACRA Amendment
1. When legislature passed Arkansas Civil Rights Act in 1993, intent was to mirror federal anti-discrimination statutes of Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act.
a. Two exceptions:
i. Federal law covered employers with 15 or more employees while the state law covers employers with 9 or more employees.
ii. Federal law has a 6 month statute of limitations while the state law has a one year statute of limitations.
2. Under federal statutes, a plaintiff cannot sue an individual. Claims must be brought against the employer only.
3. Arkansas Supreme Court ruled last year that a plaintiff could sue individuals (supervisors, managers, human resources professionals, co-workers, etc.) for retaliation in an employment context.
4. This is not what legislature intended.
a. (Russell Gunter was appointed to the Arkansas Civil Rights Commission in 1991 by Governor Bill Clinton and was heavily involved in the legislative session when the ACRA was passed in 1993.)
5. Proposed Amendment does the following:
a. Clarifies that there is a cause of action for retaliation under the employment provisions of the Arkansas Civil Rights Act.
b. Clarifies that only an employer can be sued under the employment provisions of the Arkansas Civil Rights Act.
c. Mirrors federal law.
d. Does not limit in any way the recovery that a plaintiff can obtain under the employment provisions.
6. Surrounding States
a. The following states do not allow individual liability under their civil rights legislation:
i. Oklahoma, Texas, Louisiana and Mississippi
b. Missouri does allow individual liability. Tennessee allows in limited circumstances.
7. Impact of Not Amending
a. Increased cost of litigation
i. Businesses may have to hire two law firms to defend an employment claim, one for the employer and one for the individual sued.
ii. First line supervisors, co-workers, etc. cannot afford the cost of defense of an employment lawsuit.
iii. First line supervisors, co-workers, etc. do not have the resources to satisfy a judgment against them.
iv. Potential bankruptcy should not be a concern of an employee who is about to be promoted to a supervisory position.
v. Plaintiff cannot recover twice for same act of discrimination, therefore if a plaintiff gets full recovery from employer, cannot seek additional recovery from individual.
vi. Suing the individual is a trial attorney’s tactic to increase potential cost of defense, enhancing settlement possibilities.
HUMAN RESOURCES PERSPECTIVE
- The Human Resources Profession is committed to the elimination of discrimination and retaliation in the workplace.
- The Human Resources Profession is also responsible to ensure that their entity’s supervisors and managers make appropriate evaluations of performance for pay and promotion purposes, do appropriate counseling and discipline, and when necessary, make recommendations on termination of employment.
- If individual supervisors and managers are subject to the cost of defending a lawsuit each time they make an evaluation or do appropriate counseling or discipline, Human Resource Professionals will have a very difficult time getting supervisors and managers to do their job. Indeed, it will make it very difficult to find individuals willing to accept these roles given the likelihood of having to defend a lawsuit.
- The cost of defending an employment retaliation lawsuit could break or bankrupt most individual first line supervisor, and many manager level employees. This is true even if the individual ultimately wins the lawsuit!
- The employing entity remains, and should remain, liable for employment discrimination and retaliation.