Security Guards: Pitfalls Regarding Naming and Defining Roles

NEWS | The Towne Law Firm, P.C. | May 2021

Security Guard with Blue Sky background and TLF logo, Labor & Employment Law New York State, Albany

ALBANY, N.Y. – Many businesses struggle to define the roles of their employees; a common misconception that occurs in many industries is when businesses struggle to understand the qualifiers for a security guard contrary to an employee whose job duties are similar to that of a security guard, but do not constitute a security guard title. An employee will be considered a security guard if he or she spends more than 50% of their time performing security-related duties, performs those duties while armed, or wears a military style uniform or insignia. If an employee engages in any of the above without proper training, an employer could be subject to a significant fine. To avoid penalties, at the time of hiring, employers should make it clear that the employee will not be protecting, deterring, or patrolling for more than 50% of their regularly scheduled work hours, will not be armed with a weapon, and will not wear a military style uniform or insignia.

Is My Employee a Security Guard?

The question of whether an employee is considered a security guard under the eyes of the law is significant. Having an employee perform security guard duties in violation of the rules and regulations, as detailed below, will result in your business incurring a fine, which can be significant. But what is a security guard and how can you avoid incurring a penalty?

Security Guard Qualifiers:

GBL Article 7-A § 89-f(6) defines a security guard as a person other than an active police officer employed to principally perform one or more of the following:

  • Protection of persons and/or property from harm, theft and/or unlawful activity
  • Deterrence, observation, detection and/or reporting unlawful or unauthorized activity
  • Street patrol service
  • Response to, but not installation or service of, a security alarm system

This statute also provides that non-exempt security guards must be registered and complete several hours of training at an approved school.

19 NY ADC 170.1(c) states that “principally performing” means:

  1. Engaged in the functions set forth above for more than 50% of the person’s regularly scheduled work hours;
  2. Employed to perform any or all of the functions set above for any duration, with the condition of such employment being that he or she is armed with a weapon; or
  3. Employed to perform any or all of the above functions for any duration, with the condition of such employment being that the employee wear a military style uniform or insignia, either being indicative of security guard status.

Case law (Contemporary Services Corp. v. Perales, 13 N.Y.S.3d 263 (2015)) also provides that designating employees as security guards or retaining the power to assign them to security-related duties for more than half of their work schedules subjects such employer and the employee to the Security Guard Act, whether or not the employees are actually designated as a “security guard.” The employer in this case was subject to a $284,000 penalty for violating the statute!

As you can see, employers should exercise caution in assigning security-related duties to any employees, regardless of whether the employee is a designated “security guard.”

What can you do to avoid any issues?

  • At the time of hiring, make it clear that the employee will not be protecting / deterring / patrolling for more than 50% of their regularly scheduled work hours, will not be armed with a weapon, and will not wear a military style uniform or insignia
  • While you may want to call an employee a security guard to imbue them with a sense of authority, we recommend against doing so unless you’re willing to risk exposing yourself to having to comply with a series of onerous regulations under the Security Guard Act
  • If you do want the employee to “principally perform” security guard duties pursuant to the above, consult Towne Law Firm and we’ll walk you through how to make sure you’re in compliance with the Security Guard Act.

 

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