Employee Threats and Guns: Minnesota Employer Rules

How can a Minnesota business ban guns from its building?

A Minnesota business bans guns by making a “reasonable request” in one of two ways: posting a sign that meets the statute at every entrance, or personally telling the person that guns are prohibited and demanding compliance. A person who stays after that request may be ordered to leave.

Minn. Stat. § 624.714, subd. 17 applies to a “private establishment,” meaning “a building, structure, or portion thereof that is owned, leased, controlled, or operated by a nongovernmental entity for a nongovernmental purpose.” That covers a store, office, shop, or plant. The two methods are:

1. The posted sign. The sign must be posted “at every entrance to the establishment” and must contain this language: “(INDICATE IDENTITY OF OPERATOR) BANS GUNS IN THESE PREMISES.” The statute sets the placement: “readily visible and within four feet laterally of the entrance with the bottom of the sign at a height of four to six feet above the floor.” It also sets the lettering: “black arial typeface at least 1-1/2 inches in height against a bright contrasting background that is at least 187 square inches in area.” An 11-by-17-inch sign has a background of 187 square inches.
2. Personal notice. The business or its agent “personally informs the person that guns are prohibited in the premises and demands compliance.”

The consequence is limited. A person who stays after a reasonable request “may be ordered to leave the premises,” and “A person who fails to leave when so requested is guilty of a petty misdemeanor. The fine for a first offense must not exceed $25.” The statute also states that it “sets forth the exclusive criteria to notify a permit holder when otherwise lawful firearm possession is not allowed in a private establishment,” so a general no-trespass sign does not replace the gun sign for a permit holder. I suggest training managers to give the personal notice in words that track the statute, because a sign at one door does not reach a person who entered through another.

What are the limits on a business gun ban in Minnesota?

A Minnesota business may not ban lawful guns in its parking facility or parking area, may not bar a peace officer’s lawful carry, and cannot use the posting rules against a security guard working in the course and scope of employment. A landlord also may not restrict its tenants’ lawful carry.

Each limit comes from Minn. Stat. § 624.714, subd. 17:

• Parking. “The owner or operator of a private establishment may not prohibit the lawful carry or possession of firearms in a parking facility or parking area.”
• Peace officers. The owner or operator “may not prohibit the lawful carry or possession of firearms by a peace officer” within the establishment “except when specifically authorized by statute,” and it may require the officer’s official credentials before entry. The statute does not limit this rule to on-duty officers.
• Security guards. “This subdivision does not apply to a security guard acting in the course and scope of employment.” The business may require the guard’s credentials and permit card before entry.
• Landlords. “A landlord may not restrict the lawful carry or possession of firearms by tenants or their guests.” A business that leases space to others should read this before posting a building it shares with tenants.
• Homes. “This subdivision does not apply to private residences.”

The parking and peace-officer limits protect only lawful carry. Whether a particular person’s carry is lawful turns on the permit and possession rules in the rest of section 624.714 and related statutes.

How can an employer restrict employees from carrying guns at work?

A Minnesota employer may adopt a policy that restricts employees’ carry or possession of firearms “while acting in the course and scope of employment” and may discipline employees who violate it. The policy may not prohibit lawful carry or possession in a parking facility or parking area.

Minn. Stat. § 624.714, subd. 18(a) provides: “An employer, whether public or private, may establish policies that restrict the carry or possession of firearms by its employees while acting in the course and scope of employment. Employment related civil sanctions may be invoked for a violation.” Employment-related civil sanctions are workplace consequences such as a warning, suspension, or termination. Subdivision 18(c) then limits the policy: “Notwithstanding paragraphs (a) and (b), an employer or a postsecondary institution may not prohibit the lawful carry or possession of firearms in a parking facility or parking area.”

Subdivision 18 speaks to employees at work. Customers, vendors, and visitors are reached through the posting or personal-notice rules in subdivision 17, covered above. A written weapons policy should cover:

• where it applies (the building, company vehicles, job sites, and work time) and the parking-area exception the statute requires;
• whom it covers, with a note that visitors are handled through signs or personal notice;
• how employees report a weapon or a threat, and to whom;
• the discipline that may follow a violation, applied the same way to every employee.

A policy aimed at employees’ conduct away from work raises different questions, covered in my page on conduct away from work. For an employee whose behavior is a problem short of a threat, my page on handling a problem employee walks through the steps.

How should an employer respond the day an employee makes a threat?

When an employee threatens violence, the first steps should be to protect people, preserve what was said, and decide whether to call the police; then investigate, decide on discipline, and document the decision. A threat to commit a violent crime can itself be a crime in Minnesota.

Minn. Stat. § 609.713, subd. 1 makes it a crime to threaten, “directly or indirectly, to commit any crime of violence with purpose to terrorize another,” or “in a reckless disregard of the risk of causing such terror.” Whether to involve law enforcement is your decision, and a report lets the police decide whether the threat is criminal.

Minnesota’s occupational safety law also sets a general duty. Under Minn. Stat. § 182.653, subd. 2, each employer must furnish a place of employment “free from recognized hazards that are causing or are likely to cause death or serious injury or harm to its employees,” and the federal Occupational Safety and Health Act sets a parallel duty in 29 U.S.C. § 654(a)(1). Federal OSHA’s own guidance says “There are currently no specific OSHA standards for workplace violence,” and that an employer that “becomes aware of threats, intimidation, or other indicators” of potential violence “would be on notice of the risk of workplace violence” (OSHA). That guidance is OSHA’s view, not a rule.

A response the same day can follow these steps:

1. Separation. I suggest sending the employee who made the threat home, with or without pay under your policy, because it removes that person from the workplace while you find out what happened. For an employee exempt from federal overtime, the federal salary rule allows pay deductions “for unpaid disciplinary suspensions of one or more full days imposed in good faith for infractions of workplace conduct rules,” and “Such suspensions must be imposed pursuant to a written policy applicable to all employees” (29 C.F.R. § 541.602(b)(5)). That exception reaches suspensions imposed “for infractions of workplace conduct rules.” For time away that the employer causes, the same regulation provides: “An employee is not paid on a salary basis if deductions from the employee’s predetermined compensation are made for absences occasioned by the employer or by the operating requirements of the business. If the employee is ready, willing and able to work, deductions may not be made for time when work is not available” (29 C.F.R. § 541.602(a)(2)).
2. Evidence. I suggest saving the text, email, voicemail, or video, and having each witness write down what they heard in their own words, because a restraining-order petition must be supported by a sworn affidavit stating the specific facts.
3. Investigation. I suggest interviewing the target, the witnesses, and the employee who made the threat, and asking about earlier incidents, because a negligent retention claim turns on what the employer knew or should have known during employment. My guide on how to run a workplace investigation covers the interviews and the report.
4. Decision. I suggest applying your written rules the same way you have applied them before, because EEOC guidance accepts discipline for a threat when the employer would impose the same discipline on an employee without a disability. My page on misconduct policies covers consistent enforcement.
5. The reporting employee. Under Minn. Stat. § 181.932, subd. 1, an employer may not retaliate against an employee who “in good faith, reports a violation, suspected violation, or planned violation of any federal or state law” to the employer or to law enforcement. Under Minn. Stat. § 181.935, an employee injured by retaliation may sue for damages and reasonable attorney’s fees.

How do negligent hiring and negligent retention claims work in Minnesota?

Minnesota courts hold an employer to reasonable care in hiring people whose jobs may put them in a position to harm others, and they can impose a duty to act once the employer learns during employment that an employee is dangerous. The second theory, negligent retention, is the one a threat at work can trigger.

In Ponticas v. K.M.S. Investments, 331 N.W.2d 907 (Minn. 1983), the Minnesota Supreme Court recognized negligent hiring and held that “an employer has the duty to exercise reasonable care in view of all the circumstances in hiring individuals who, because of the employment, may pose a threat of injury to members of the public.” The case involved an apartment manager given a passkey to tenants’ units. The court explained that “The scope of the investigation is directly related to the severity of risk third parties are subjected to by an incompetent employee,” and it declined to require a criminal-record check in every hire: “Liability of an employer is not to be predicated solely on failure to investigate criminal history of an applicant, but rather, in the totality of the circumstances surrounding the hiring, whether the employer exercised reasonable care.”

In Yunker v. Honeywell, Inc., 496 N.W.2d 419 (Minn. App. 1993), an employee harassed and threatened a coworker, and the words “one more day and you’re dead” were scratched on her locker before he killed her at her home after her shift. The Minnesota Court of Appeals quoted a Florida appellate decision as providing “a useful definition”: “Negligent retention, on the other hand, occurs when, during the course of employment, the employer becomes aware or should have become aware of problems with an employee that indicated his unfitness, and the employer fails to take further action such as investigating, discharge, or reassignment.” The court held only that the employer owed the coworker a duty, and it sent the case back without deciding “whether Honeywell breached that duty by failing to terminate or discipline Landin, or whether such a breach was a proximate cause of Nesser’s death.” It rejected the negligent hiring and negligent supervision claims on those facts. My page on negligent retention and supervision covers the theory in more depth.

Two statutes shape the hiring side. Minn. Stat. § 364.021 bars a private employer from asking about criminal history until the applicant is selected for an interview, or before a conditional offer if there is no interview, with an exception for employers that have a statutory duty to check. Minn. Stat. § 181.981, subd. 1 keeps an employee’s criminal history out of evidence in a suit against a private employer in listed cases, including when the job “did not expose others to a greater degree of risk” than ordinary public contact and when “the record is of an arrest or charge that did not result in a criminal conviction.”

When can a business get a harassment restraining order in Minnesota?

A Minnesota corporation can petition for a harassment restraining order when it is a victim of harassment, because the Court of Appeals has held that a corporation is a “person” under the statute. The employee who was targeted may also petition, and a court may issue a temporary order without notice to the respondent.

Under Minn. Stat. § 609.748, subd. 2, “A person who is a victim of harassment or the victim’s guardian or conservator may seek a restraining order from the district court.” In Dayton Hudson Corp. v. Johnson, 528 N.W.2d 260 (Minn. App. 1995), a department store petitioned, and “The petition alleged twelve separate incidents” in which a shoplifter kicked, hit, and bit its loss-prevention employees. The court remanded “for a hearing to determine whether reasonable grounds exist for believing that Johnson engaged in harassment.” The court said, “We hold that a corporation can be considered a person under the statute and reverse,” relying on the legislature’s general definition of person, and it noted that “As a corporate employer, Dayton’s has a duty to its employees to provide a safe work environment.” The court also called the temporary order “overly broad” for barring all contact with the store and its employees, so a petition should ask for restrictions tied to the conduct. An order may be issued “only against the respondent named in the petition,” except that an order against an organization may apply to all of its members, so the petition should name each person the business needs restrained.

The statute defines harassment to include “a single incident of physical or sexual assault” or “repeated incidents of intrusive or unwanted acts, words, or gestures that have a substantial adverse effect or are intended to have a substantial adverse effect on the safety, security, or privacy of another.” The procedure:

• The petition “shall be accompanied by an affidavit made under oath stating the specific facts and circumstances from which relief is sought,” and the court provides simplified forms.
• A temporary order may issue without notice to the respondent, but when the petition alleges harassment under that definition, it “must further allege an immediate and present danger of harassment.”
• A full order requires the court to find “reasonable grounds to believe that the respondent has engaged in harassment” after a hearing.
• Once the respondent knows of the order, a violation “is a misdemeanor,” with higher penalties in the cases the statute lists.

An employer cannot petition for an extreme risk protection order, which bars a person from possessing or purchasing firearms. Under Minn. Stat. § 624.7171, subd. 4, law enforcement, “a city or county attorney, any family or household members of the respondent, or a guardian” may make that petition. For a customer, the trespass statute is another tool: Minn. Stat. § 609.605, subd. 1 makes it a misdemeanor to refuse to leave “on demand of the lawful possessor” and to return “with the intent to abuse, disturb, or cause distress in or threaten another, after being told to leave the property and not to return.” The same paragraph also covers a person who “returns to the property of another within one year after being told to leave the property and not to return, if the actor is without claim of right to the property or consent of one with authority to consent.”

How does disability law apply when a threat involves mental health?

Under federal EEOC guidance, a mental-health condition does not stop an employer from disciplining an employee for a threat under a job-related rule it applies to everyone. Treating a person as a danger going forward is different: the federal ADA regulation requires an individualized assessment of a direct threat, and the Minnesota Human Rights Act has its own serious-threat defense.

The Minnesota Human Rights Act bars discharge because of disability (Minn. Stat. § 363A.08, subd. 2) and applies to any employer with “one or more employees” (Minn. Stat. § 363A.03, subd. 16). Disability includes “a physical, sensory, or mental impairment which materially limits one or more major life activities.” The duty to provide a reasonable accommodation in section 363A.08, subdivision 6 applies to employers with 15 or more employees. Those employers must accommodate unless the accommodation would impose an undue hardship, and they “shall initiate an informal, interactive process” with an employee who needs one. Under Minn. Stat. § 363A.25, “It is a defense to a complaint or action brought under the employment provisions of this chapter that the person bringing the complaint or action has a disability which in the circumstances and even with reasonable accommodation, as defined in section 363A.08, subdivision 6, poses a serious threat to the health or safety of the disabled person or others,” and “The burden of proving this defense is upon the respondent.” The federal ADA also applies at 15 or more employees.

Under the ADA, a “direct threat” is “a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation” (42 U.S.C. § 12111), and an employer may require that an individual “shall not pose a direct threat to the health or safety of other individuals in the workplace” (42 U.S.C. § 12113). The regulation requires “an individualized assessment of the individual’s present ability to safely perform the essential functions of the job” and lists four factors: the duration of the risk, the nature and severity of the potential harm, the likelihood that it will occur, and its imminence (29 C.F.R. § 1630.2(r)).

The Equal Employment Opportunity Commission’s guidance on psychiatric disabilities says that “nothing in the ADA prevents an employer from maintaining a workplace free of violence or threats of violence,” and that an employer may discipline for a threat caused by a disability “if it would impose the same discipline on an employee without a disability” (EEOC). Before refusing to hire or return someone for a history of threats, “the employer must identify the specific behavior on the part of the individual that would pose the direct threat.” That guidance interprets the federal ADA; it is persuasive, not binding, in a claim under the Minnesota Human Rights Act. I suggest basing the decision on the conduct and your written rule, not on a diagnosis, because both the regulation and the guidance focus on specific behavior.

What records should an employer keep after a workplace threat?

After a threat, an employer should keep a written record of what was reported, what the investigation found, and what discipline followed. Minnesota law can require you to state the reason for a termination in writing, and the reference statute’s protection for disclosing violence reaches violence documented in the personnel record.

Two statutes turn on the file. Minn. Stat. § 181.933, subd. 1 lets an involuntarily terminated employee ask in writing for the reason within the period the statute sets. The statute then provides: “Within ten working days following receipt of such request, an employer shall inform the terminated employee in writing of the truthful reason for the termination.” Under Minn. Stat. § 181.967, subd. 3, a private employer responding to a reference request may disclose “acts of violence, theft, harassment, or illegal conduct documented in the personnel record that resulted in disciplinary action or resignation and the employee’s written response,” but “A disclosure under clause (5) must be in writing with a copy sent contemporaneously by regular mail to the employee’s last known address.” Violence that never made it into the personnel record is outside that statute’s protection. The statute’s limit on suits over a disclosure also “does not apply to an action involving an alleged violation of chapter 363 or other statute” (Minn. Stat. § 181.967, subd. 6).

I suggest keeping the witness statements, the investigation summary, the policy provision applied, and the discipline notice together, because those are the documents a written reason and a later reference rest on. My pages on the written reason for a termination, the documentation behind a termination, and a termination meeting script cover the termination itself. If the employee who was threatened takes reasonable time off to seek a restraining order, Minn. Stat. § 609.748, subd. 10 requires the employer to keep “All information related to the employee’s leave” confidential.

Next Steps

A Minnesota business controls guns in its building through the statute’s sign or a personal demand, controls employees’ carry through a written policy limited to work, and leaves lawful carry in the parking lot alone. A threat calls for prompt action: protect people, preserve the evidence, investigate, apply your rules evenly, and consider police involvement, a trespass notice, or a restraining order. I suggest reviewing your weapons policy and entrance signs against Minn. Stat. § 624.714 before an incident, because the statute’s notice rules are exact. More on these questions is in my Minnesota employment law practice materials. If you would like me to analyze your weapons policy and entrance signs against the statute, or to work through the steps after a threat, email [email protected] with a brief description.