By Jeff Warren and Alex Marks, partners at Burke, Warren, MacKay & Serritella, P.C.

Implications for Business Owners and Employers

While Illinois’ enactment of the Firearm Concealed Carry Act ("Act") has important implications for business owners, and at first blush appears to offer them clear choices, a closer look reveals the Act does not provide a simple way for most business owners to prohibit the carrying of handguns within their shops, offices or other workplaces by their employees, customers and visitors.

We believe the rights of business owners and employers under the Act have been widely misinterpreted in the news media and by legal commentators, who have incorrectly made sweeping statements such as "businesses or (private employers) may prohibit firearms."  In fact, the Act appears to give no rights to business owners who lease their spaces and is silent on the rights of employers to control whether their employees carry handguns while at work inside or outside the workplace.  We will explain the Act's failure to address these issues, make some suggestions on how a business owner can take steps to make up for some of the Act's deficiencies and offer some thoughts on how business owners can make decisions that carry legal weight and minimize liability.

Overview of the Act

The Act entitles an individual meeting certain qualifications to obtain a license to carry a loaded, concealed handgun.  A licensee is prohibited from knowingly carrying the handgun into certain clearly defined prohibited areas, namely: day-care and pre-school facilities; elementary and secondary schools; any venue under the temporary or permanent control of a college or university for any purpose; courthouses and other buildings or portions of buildings under the control of a unit of government; hospitals; public libraries; airports and other public transportation facilities; buses, trains and other public transportation conveyances; special events open to the public and public gatherings for which a governmental permit is required; property used for special events for which a special events liquor license has been issued; public playgrounds and parks; Cook County forest preserves; gaming facilities; professional sports arenas; amusement parks; zoos; museums; nuclear energy facilities and any areas where federal law prohibits firearms.  These prohibitions do not depend on whether the activity is being conducted on owned or leased property.  They are clear and apply to each category without qualification.

The Act requires the standardized 4-inch by 6-inch sign shown below that is prescribed by the Illinois State Police to be clearly and conspicuously posted at the entrance of a building, premises or real property specified as a prohibited area, unless the building or premises is a private residence.

Rights of Private Property Owners and Tenants

In contrast to the clear definitions applicable to the prohibited areas described above, the single provision of the Act addressing the rights of private business owners cryptically states:

"The owner of private real property of any type may prohibit the carrying of concealed firearms on the property under his or her control.  The owner must post . . . [the standardized] sign [at the entrance of the building, premises or real property] . . . indicating that firearms are prohibited on the property, unless the property is a private residence."

What does this language mean?  It gives the "owner" of the real estate the right to prohibit firearms on the property but also requires the property to be "under his or her control," establishing a two-part test, ownership plus control.  The problem is that in a typical landlord/tenant situation, based on traditional legal principles of "possession" and premises liability, it's the tenant, not the landlord, who is deemed to be "in control" of leased property.  Therefore, while the Act plainly states that the property owner is the only person empowered to impose the prohibition and post the sign, and implies business owners who lease their space have no rights at all, the two-part test strongly suggests that in the typical landlord/tenant situation neither the property owner nor the tenant has any rights under the Act without the cooperation of the other, which is a very impractical result.

This means that a business owner who leases a store, factory or office from which he or she wants to ban handguns must request in writing that the landlord post the required sign at the property entrance, so the posting is, in effect, the joint act of the "property owner" and the person in "control" of the property.  If the landlord is unwilling to post the sign, the business owner's second -best choice is to get the landlord's written "authorization" to the tenant to post the sign at the tenant's entrance, so the posting comes as close to being the property owner's own act as possible.  If a landlord rejects both of those options, a third option is for the tenant to post the sign on its own (since the Act does not prohibit unauthorized posting), understanding that the posting will probably not be enforceable under the Act if challenged.  Tenants choosing the third option should check their leases first to avoid a lease default, as many leases provide that posting any sign requires prior landlord approval.

One problem with the second-best option described above is that the single provision of the Act dealing with private property does not address whether one portion of a property can be designated as a prohibited area (e.g. an office suite in a high-rise tower or a store in a shopping center) when other portions of the property are not so designated.  Because other sections of the Act defining other prohibited areas use descriptions like "a building or portion of a building," making it clear that the prohibition can apply to one portion of a building without the others, the Act's private property provision makes no such distinction and leaves the question unanswered.

Can Employers Prohibit their Employees From Carrying Handguns While at Work?

The Act says nothing at all about the rights of employers to regulate employee conduct.  As shown in the discussion above, in dealing with private property, the Act refers only to property owners and persons in control of real estate, which are purely real estate law issues.  The Act does not address whether a private business employer as a term of employment may prohibit its employees from bringing handguns into the workplace or carrying them outside the workplace while conducting the employer's business, which raises employment law issues as well as an employer's common law liability for the acts of its employees when they act within the scope of their employment.

Does possession of a license to carry under the Act trump an employer’s well-established common law right to control lawful employee behavior in the workplace?  Unlike similar laws in other states, the Act is silent on this point and provides no guidance as to whether it alters an employer's right to impose workplace controls on its employees.  We believe the rights of a licensee to carry a handgun under the Act will ultimately be ruled subordinate to the rights of employers to control working conditions and their employees' conduct while on the job within or outside of the workplace, but we also believe the Act’s failure to deal with the issue explicitly will give rise to years of uncertainty and costly litigation between employers and employees before it is resolved, which is bad news for business owners.

Liability Risks of Allowing Concealed Carry

Unlike states such as Wisconsin, Illinois’ passage of the Act did not include an immunity provision to protect private property owners (and/or business owners) who decide to allow concealed carry in their premises. Property owners, employers and/or business owners who control the decision to permit concealed carry and decide to allow it face an increased risk of liability for, among other things, premises or workplace liability for bodily injury and wrongful death.  Therefore, regardless of whether a business owner favors or opposes concealed carry from a personal viewpoint, prohibiting firearms from workplaces and enforcing the prohibition is probably the safest practice from a liability standpoint.

Conclusions

The ambiguities in the Act have put business owners and employers in a difficult situation, with no statutory immunity for the consequences of their decisions one way or the other.  Business owners and employers need to understand the Act and decide how to address its important implications and effect with regard to their customers, visitors, and employees.  Here are a few suggestions for dealing with the choices:

• Business owners who want to prohibit their employees from carrying handguns while on the job inside or outside the workplace should develop a clear written employment policy on workplace safety, including a ban on handguns and other weapons, and deliver a copy to, and obtain a signed receipt from, each existing and new employee.  Because this action is based on an employer's common law right to impose conditions on the employer/employee relationship, and not the Act, it would not depend on the posting of any sign under the Act but neither would it affect the rights of customers, vendors and other visitors who are licensees to bring handguns into the workplace
• Business owners who own their places of business and want to prohibit their employees, customers and other visitors from bringing handguns into their places of business should post the standardized sign prescribed by the Act at the entrance to their property in addition to developing an employment policy
• Business owners who lease their places of business and want to prohibit their employees, customers and other visitors from bringing handguns into their places of business should ask their landlords to post the standardized sign prescribed by the Act, or as a second-best choice, obtain their landlords' written authorization to post the standardized sign at the entrance to their premises
• Business owners who do not own their places of business and want to prohibit handguns in their places of business should remember to ask for provisions addressing the posting of signs under the Act when negotiating new leases or amendments to their existing leases.

Although space limitations do not enable us to deal with all of the issues and questions raised by the Act, it should be obvious from this discussion that the Act is neither simple nor clear and that business owners should exercise care in planning and implementing their decisions relating to "concealed carry."

The article was prepared by Jeff Warren and Alex Marks, partners at Burke, Warren, MacKay & Serritella, P.C.  Jeff advises and represents business owners and their enterprises in a variety of matters.  He can be reached at 312 840 7020 or jwarren@burkelaw.com.  Alex is a commercial litigator handling a wide array of disputes in both state and federal court with a special focus his practice on labor and employment issues. Alex can be reached at 312 840 7022 or amarks@burkelaw.com.

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