By Colin A. Walker of Fairfield and Woods, a Meritas Firm
Introduction In light of mass shootings such as those at San Bernadino, California and Sandy Hook Elementary School in Connecticut, many employers are considering policies prohibiting their employees from possessing firearms during work time or on the employer's property. Such policies help to protect other employees and employers from liability. At the same time, gun advocates, such as the National Rifle Association ("NRA"), carry great weight in state legislatures and have been able to pass laws protecting the right to bear firearms. Many states have adopted laws restricting an employer's ability to prohibit employees from possessing firearms. Employer's considering such policies should be aware of the following. Ten Points Regarding Policies Restricting the Right of Employees to Possess Firearms in the Workplace
1. Potential Liability for Employers Based on Employee's Use of Firearms in Workplace.
Employers could have liability for crimes committed by employees who have guns at work on theories of negligent hiring, supervision or retention; worker's compensation; or the Occupational Health and Safety Act (OSHA). Generally, employers are not liable for crimes committed by their employees. However, if the employer knew or should have known of an employee's violent tendencies and that the employee possessed a firearm, it could be liable for injuries caused by the employee on the theory that it negligently hired the employee or negligently continued to employ the employee. Worker's comp laws require an employer to pay for injuries suffered by an employee on the job and could cover injuries inflicted by another employee with a gun. OSHA requires employers to provide a safe working environment for all employees; failing to prevent an employee from injuring other workers with a firearm could be construed as a breach of this duty.
2. Federal law does not regulate guns in the workplace.
However, some state laws limit employers' ability to restrict an employee's possession of firearms during work time or on the employer's property. Gun advocate groups such as the NRA are pushing to pass similar laws in other states.
3. Parking Lot Laws.
More than 20 states have enacted "parking lot laws," which provide that an employee may have a lawfully-possessed firearm in his/her car in a company parking lot, garage, etc. See, e.g., Oklahoma Statute T. 21 § 1289.7a. However, most of these laws allow an employer to prohibit an employee from carrying a firearm on his/her person while working, having a firearm in company offices, or having a firearm in a company vehicle. Many of these laws also allow employers to prohibit firearms in parking lots, which are "restricted," such as a parking lot that is fenced and access is monitored by security measures. However, some of these laws require employers to provide employees with alternative parking or facilities for gun storage. See Ariz. Rev. Stat. Section 12-781(C) (3).
4. Search for Firearms.
Some state laws prohibit employers from searching employees' cars for firearms or asking employees if they possess firearms in their cars. See Florida Statute, § 790.251. The Florida statute, which is broader than most, also applies to customers and "invitees." However, Georgia's parking lot law allows an employer to search an employee's vehicle for a firearm if "the situation would lead a reasonable person to believe that accessing the vehicle is necessary to prevent an immediate threat to human health, life or safety." Ga. Code. Ann. § 16-11-135.
5. Discrimination Laws.
Some states prohibit employers from refusing to hire or terminating employees because they own guns or have concealed carry permits. See Indiana Code § 34-28-8-6(c); see also Fla. Stat. Ann. § 790.251.
Other states require employers to post notices if they are going to prohibit employees from possessing firearms in the workplace. See Tennessee Code § 39-17-1359. Under the Tennessee law, it is crime for an employee to possess a firearm on properly posted property. Some laws specify language which must be included for the notice to be effective.
7. Civil Action for Employees.
Many of these laws provide employees with a civil action for monetary damages, injunctions, costs and attorneys' fees against employers who violate workplace gun laws. See ND Cent. Code § 62.1-02-13(5); see also, Fla. Stat. Ann. § 790.251. Violation of these statutes has also been held to constitute wrongful discharge in violation of public policy. See Mitchell v. University of Kentucky, 366 S.W.3d 895 (Ky. 2012); but see Stewart v. FedEx Exp., 114 A.3d 424, 429 (Pa.Super. 2015) (holding that termination of employee for possessing gun in glove compartment of vehicle in employer's parking lot did not support claim for wrongful termination in violation of public policy; parking lot law had been proposed, but not enacted, in Pennsylvania at the time of the termination); see also Plona v. United Parcel Service, Inc., 558 F.3d 478, 481 (6th Cir. 2009) (upholding summary judgment dismissing public policy claim and holding, "Although the Ohio Constitution provides a general right to bear arms, the state certainly does not have a `clear public policy' of allowing employees to possess firearms on the premises of their private employers").
8. Employer Immunity.
Some state laws provide immunity for employers for crimes committed by employees who possess firearms in compliance with workplace gun laws. See Oklahoma Statute T. 21 § 1289.7a. The Georgia law provides immunity "unless such employer commits a criminal act involving the use of a firearm or unless the employer knew that the person using such firearm would commit such criminal act on the employer's premises." Ga. Code Ann. § 16-11-135. Texas law provides that an employer is not required to investigate whether an employee's possession of a firearm is contrary to state or federal law. See Texas Labor Code § 52.063.
9. State laws do not trump other laws which prohibit possession of firearms, such as those which prohibit felons from possessing firearms.
In addition, many workplace gun laws provide exceptions for situation impacting public safety such as possession of a firearm on school property, at correctional facilities, on property owned or leased by an oil or gas refiner or chemical manufacturer, or on other property where state or federal law prohibits firearms. See Texas Labor Code § 52.062; see also ND Cent. Code § 62.1-02-13(5).
10. Employers challenging parking lot and similar laws have gained little traction.
In Ramsey Winch Inc. v. Henry, 555 F.3d 1199 (10th Cir. 2009), employers with policies prohibiting employees from possessing guns on their properties challenged the Oklahoma law on the grounds that it was unconstitutionally vague, an unconstitutional taking of private property, a violation of the due process right to exclude others from property, and preempted by federal statutes, including OSHA. The district court agreed and issued an injunction prohibiting enforcement of the law. The Tenth Circuit reversed pointing out that "OSHA declined a request to promulgate a standard banning firearms from the workplace. [ ... ] In declining this request, OSHA stressed reliance on its voluntary guidelines and deference `to other federal, state, and local law-enforcement agencies to regulate workplace homicides.'" So far, OSHA has not adopted such a regulation. See also Florida Retail Ass'n v. Attorney Gen. of Fla., No. 4:08cv179-RH/WCS (N.D. Fla. Jul. 29, 2008).
While policies restricting an employee's ability to possess a firearm at the place of employment or during work time help to protect other employees and the employer from liability, employers should be careful not to run afoul of state laws protecting employee's right to possess firearms. Currently, prohibiting employees from carrying a firearm on his or her person while working or from having guns in the employer's office is permissible in every state. However, prohibiting employees from having firearms in their personal vehicles - even in a company parking lot - and discriminating against gun owners in hiring or the terms and conditions of employment can result in liability in many states. Gun advocates are supporting similar laws in other states, so employers in states which currently do not have such laws should pay attention to proposed legislation. Employers considering such policies should carefully review, and seek advice from competent legal counsel, in any state in which policies limiting employees' ability to possess guns are to be adopted.
Additional Resources "Bring Your Gun to Work" Laws and Workplace Violence Prevention, Garry Mathiason and Andrea Milano, Federal Lawyer, 60-JUN Fed. Law. 60 (June 2013). Employees' Gun Rights vs. Employers' Property Rights: Can Employees Pack Heat at Work?, Brian Vandiver, DRI for the Defense, 55 No. 2 DRI For Def. 43 (2013). Guns at the Workplace, Jonathan Hancock and Joann Coston-Holloway, Baker Donelson, Bearman, Caldwell & Berkowitz, P.C. (2012).