State Regulations Update. State Laws Affecting Employers Rights to Regulate Firearms in the Workplace

Transcription

1 State Laws Affecting Employers Rights to Regulate Firearms in the Workplace Stephen E. Fox and Jonathan E. Clark The latest surveys suggest that Americans now possess more than 200 million firearms. And although most gun owners are law-abiding citizens, far too often the US landscape has been a scene for gun violence. Regrettably, the workplace has not been immune from this trend. Data collected from the Bureau of Justice Statistics estimate that, in a single year, 572,000 violent crimes occurred against persons while they were at work. 1 Because of the propensity for violent crime in the workplace, employers have for many years attempted to craft policies designed to reduce or prevent such tragedies in or near the workplace. Some of these efforts took the form of gun-free businesses and included work rules prohibiting employees from bringing firearms onto the employer s premises. But employers may find themselves between a rock and a hard place when enacting these policies. On the one hand, workplace violence committed by employees with their own weapons presents a tangible concern with frightening consequences; on the other hand, job sites in dangerous areas or that pose a risk of assaults on employees leaving work after dark may expose employers to liability if they restrict employees from carrying firearms. For better or for worse, in the preceding years a great number of states have removed this policy choice from individual employers and have enacted laws pertaining to an employee s right to bring a gun to his or her workplace. Specifically, many of these statutes often called workplace-protection or parking-lot laws restrict an employer s ability to bar employees from bringing or possessing lawfully owned firearms on company property. The laws frequently mandate that employers allow their 2015 Wiley Periodicals, Inc. Published online in Wiley Online Library (wileyonlinelibrary.com). DOI /ert

2 employees to store guns inside personal vehicles parked on workplace property, hence the parking-lot law namesake. Perhaps unsurprisingly, recent decisions by the US Supreme Court (D.C. v. Heller, 2008) and (McDonald v. Chicago, 2010) 2 solidifying the Second Amendment s application to individual citizens have emboldened many state lawmakers seeking to expand gun-carry and ownership rights with such expansion inevitably creeping into the work environment. Following is an overview of the states with legislation concerning an employer s right to prohibit an employee from bringing lawfully owned firearms to the workplace. States not mentioned below do not currently have laws in place directly affecting employer policy in this area; however, as always, employers in any state seeking to create policy on this issue should seek the advice of counsel. ALABAMA Known colloquially as the guns-to-work law, the Alabama legislation allows employees to possess a firearm in an employer s parking lot if it is out of sight in a locked motor vehicle. Additionally, (1) the employee must either have a valid concealed weapons permit or (2) the weapon in question must be legal for hunting in the state, during a season in which hunting is permitted by Alabama law, and unloaded, and the possessing employee must have a valid hunting license. Additionally, the possessing employee must have no prior violent-crime convictions or history of workplace incidents involving violence or threats of violence. 3 ALASKA Alaska prohibits employers from enforcing any rule that bans individuals from possessing lawfully owned guns in their motor vehicles or storing their firearms in secured motor vehicles. 4 Employers may, however, prohibit firearms within a secured restricted access area or parking lot within 300 feet of the access area. To do this, an employer must conspicuously post a notice of prohibition at every entrance to the access area. Importantly, an employer is not liable for any injury or damage resulting from the storage of a firearm in an employee s vehicle. ARIZONA Employers in Arizona may not establish, maintain, or enforce a rule prohibiting an individual from lawfully storing or transporting a firearm that is (1) locked in the individual s vehicle and (2) not visible. 5 Additionally, employers may provide separate parking lots for vehicles with firearms, so long 60 Stephen E. Fox and Jonathan E. Clark DOI /ert

3 Fall 2015 as the lot is near the workplace and does not require an additional fee to park. Notably, Arizona provides multiple exceptions for work sites such as military installations and nuclear plants. Finally, employers are permitted to prohibit employees from carrying weapons into the workplace premises. ARKANSAS There is no state law directly related to employers in Arkansas, but it is unlawful for a person to have a loaded handgun on his or her person or in a motor vehicle unless the individual has a concealed-carry license. Additionally, firearms are not permitted on the premises of various establishments, including places of worship, schools, airports, and government buildings. 6 COLORADO Employers in Colorado may restrict or prohibit weapons in the workplace, including those brought by individuals who have been lawfully issued a concealed-carry license. Specifically, Colorado s concealed-carry statute states: Nothing in this [statute] shall be construed to limit, restrict, or prohibit in any manner the existing rights of a private property owner private employer, or private business entity. 7 FLORIDA Florida passed a law in 2008 known as the Preservation and Protection of the Right to Keep and Bear Arms in Motor Vehicles Act. 8 Unsurprisingly, given its name, the statute broadly protects rights of the individual gun owner/ employee. Specifically, the statute prohibits an employer from restricting the possession of any legally owned firearm that is locked inside an individual s motor vehicle in the employer parking lot. 9 The law is incredibly comprehensive and, among other things, prohibits termination or discrimination against employees as long as [the] firearm is never exhibited on company property for any reason other than lawful defensive purposes. Additionally, an employer may not attempt to determine whether a firearm is, in fact, locked in an employee s vehicle either through written or verbal inquiry. Exemptions include schools, prisons, nuclear plants, or military-related property. GEORGIA Like Florida, Georgia s legislative scheme also employs a robust parking-lot statute. Employers in Georgia may not condition employment of a prospective employee on any agreement not to store a lawful firearm in a private DOI /ert 61

4 automobile. 10 Notably, employers have no greater duty to prevent injury under the statute and are not liable for damages stemming from incidents involving the transportation, storage, possession, or use of a firearm, unless the employer engages in illegal conduct or knew someone else would engage in criminal conduct. Employers do not have a heightened duty under the statute and are not required to implement security measures. Finally, in the event of the criminal use of a gun in the workplace, an employer who is sued in relation to this statute is entitled to legal costs should it prevail. IDAHO Although no Idaho law specifically restricts an employer s right to prohibit employees from bringing firearms on the premises, no action shall be maintained for civil damages where the claim arises out of the policy of an employer to either specifically allow or not prohibit the lawful storage of firearms by employees in their personal motor vehicles or on the employer s business premises. 11 INDIANA Indiana law prohibits any rule or policy that prohibits, or has the effect of prohibiting, employees including contract employees from possessing a firearm or ammunition that is locked in the truck, glove compartment, or stored out of plain site in an employee s locked vehicle. 12 Exceptions to the general rule include schools (or property being used for a school function), child-care organizations, prisons, and entities or locations required to ban firearms pursuant to federal law. Notably, the statute allows for private civil actions against employers who violate the law including awards for costs, attorneys fees, and the enjoining of any further violations. And employer compliance with the statute cannot give rise to a claim for injury or damage. IOWA Iowa does not have a parking-lot law, per se. And in the state it is unlawful to carry a concealed firearm or other loaded weapon without a permit; however, a notable exception is that business owners are allowed to go into their own place of business armed. 13 KANSAS Kansas employers are permitted to restrict or prohibit employees from taking concealed weapons onto the employer s premises, provided, however, that 62 Stephen E. Fox and Jonathan E. Clark DOI /ert

5 Fall 2015 licensed employees are allowed to store firearms in their automobiles while at work even if the employees vehicles are parked on the employer s property. 14 In addition, businesses open to the public may restrict or prohibit individuals from carrying concealed weapons while on the premises although not in the business s parking lot provided the restriction is posted. KENTUCKY Kentucky does not allow employers to prohibit any person legally entitled to possess a firearm from doing so in a vehicle on the company property, unless the person is prohibited from possessing a firearm or ammunition. 15 Such firearms may also be removed from the vehicle in cases of self-defense or related acts. Additionally, the law provides an antidiscrimination measure, stating that any employer who fires, disciplines, demotes, or otherwise punishes an employee who is lawfully exercising a right guaranteed by [this statute] and who is engaging in conduct in compliance with this statute shall be liable in civil damages. Exceptions to the general rule include government land where firearms are prohibited or otherwise controlled, certain penal facilities, and when state law otherwise prohibits firearm possession on the property. LOUISIANA Louisiana law mandates that any person who lawfully possesses a firearm may transport or store [it] in a locked, privately owned motor vehicle in any parking lot, parking garage, or other designated area. 16 Additionally, an employer is not liable for civil damages resulting from an occurrence involving a firearm stored or transported pursuant to the statute. An employer is allowed to adopt policies requiring employee firearms be locked in private vehicles and hidden away from public view, or otherwise within a locked container in the vehicle. Finally, an employer may provide a secured, alternative parking area that provides temporary storage for unloaded firearms so long as the alternative area is close to the main parking area. MAINE In Maine, employers cannot prohibit an employee with a conceal-carry permit from keeping a firearm in the employee s automobile so long as the vehicle is locked and the gun is not visible. 17 Notably, the law also applies to employees of the state. As with many other states, the exceptions include locations where the carrying or possession of a firearm is otherwise prohibited by law. DOI /ert 63

6 MICHIGAN A Michigan employer may not prohibit an employee from (1) applying for or receiving a license to carry a concealed pistol and (2) carrying a concealed pistol in compliance with a license. 18 Importantly, however, the law does not prohibit employers from stopping their employees from carrying concealed pistols during the course of their employment. MINNESOTA Minnesota employers are allowed to ban guns from the premises of their businesses; however, they cannot prohibit firearms in the parking areas. 19 Essentially, employers may prohibit employees from carrying firearms while employees are acting in the course and scope of their employment and may establish policies that restrict the carry or possession of such firearms. MISSISSIPPI An employer in Mississippi may not establish or otherwise enforce a rule that has the effect of prohibiting a person from storing a firearm in a locked vehicle in any parking lot, garage, or other designated area. 20 A private employer, however, may ban weapons in vehicles, if the employer maintains a fence, gate, security station, or otherwise restricts or limits general public access to the property. Finally, employers may ban concealed weapons on their premises generally by posting a written notice readable from at least 10 feet, that the carrying of a pistol or revolver is prohibited. MISSOURI An employer in Missouri may have a gun-free policy. However, the state maintains very specific notice and posting requirements in order to keep concealed weapons off of the premises. 21 Included among the requirements, the notice must be (1) conspicuous and (2) 11 inches by 14 inches with lettering not less than 1 inch. NEBRASKA Nebraska s concealed-carry law provides relevant provisions for employers. 22 Specifically, the statute provides that an employer may wholly prohibit 64 Stephen E. Fox and Jonathan E. Clark DOI /ert

7 Fall 2015 a permit-holding gun owner from bringing a concealed weapon onto the premises provided the employer has posted conspicuous notices advising permit holders that firearms are prohibited. Importantly, gun owners do not run afoul of these provisions if the employer has not posted a notice. Additionally, licensed firearms owners do not violate the statute if parking in an area open to the public and storing the gun in a compartment of the vehicle. Nebraska employers may also prohibit employees from carrying concealed weapons in employer-owned vehicles. NORTH CAROLINA Simply put, business owners in North Carolina may prohibit the carrying of concealed weapons where the premises owner posts a conspicuous notice prohibiting same. 23 NORTH DAKOTA Similar to Florida s statute, employers may not prohibit a lawful firearm owner from possessing the legally owned gun if it is locked inside a private motor vehicle in a parking lot, and the employee is lawfully in the area. 24 Additionally, an employer may not attempt to determine whether the employee has a firearm locked inside the employee s vehicle subject to a search by on-duty law enforcement adhering to due process. Nor can employers condition employment on whether the employee holds a concealed-carry license or any agreement by the employee to prohibit the keeping of a legal firearm locked inside a private vehicle in the employer s parking lot. The statute also prohibits discrimination or termination under this provision, while sheltering employers from liability in civil actions based on acts taken in compliance with this law. Exceptions include schools, prisons, military property, and state hospitals. OHIO Ohio allows private employers to prohibit licensees from carrying firearms onto the employers premises. 25 Notably, however, the statute specifically provides that private employers are also not required to prohibit weapons in the workplace. The Ohio law also provides immunity to employers in a civil action brought for injuries stemming from a licensed gun owner bringing a handgun onto the premises, unless the private employer acted with malicious purpose. Ohio law also provides a list of locations in which a licensee is never allowed to carry a concealed weapon, including buildings operated by the state or a political subdivision. DOI /ert 65

8 OKLAHOMA In Oklahoma, an employer is permitted to prohibit or control the possession of weapons on any property owned or controlled by the person or business entity. 26 Importantly, however, the law also provides that an employer shall not be permitted to establish any policy or rule that has the effect of prohibiting any person, except a convicted felon, from transporting and storing firearms in a locked vehicle on any property set aside for any vehicle. In short, employers may not prohibit individuals from bringing guns into business parking lots, so long as the person is not a felon and the vehicle is locked. SOUTH CAROLINA Employers in South Carolina may bar licensed gun owners from carrying weapons onto the premises of the workplace. 27 Moreover, employers may prohibit individuals from carrying weapons while using any machinery or vehicle owned or operated by the business. Notice is properly given to gun owners when the business or property owner posts a sign stating No Concealable Weapons Allowed. The sign must also meet certain specific size, font, and placement requirements outlined by statute. SOUTH DAKOTA Although no laws directly interfere with an employer s right to ban employees from bringing weapons to work, South Dakota notably allows business owners to have a pistol or revolver on the premises without a license. 28 TENNESSEE Tennessee allows licensed gun owners to store or transport firearms and ammunition in privately owned vehicles while in public or private parking areas, so long as the vehicle is (1) lawfully parked, (2) locked, (3) and the gun or ammunition is not visible. 29 If the gun owner is not in the vehicle, the gun or ammo must be locked away in a trunk or other compartment. Employers in the state may still prohibit weapons from the workplace (excluding parking areas) but must conspicuously place a notice specifying the ban. Tennessee also has an immunity provision for employers, who are exempt from liability for damages resulting from an employee s actions involving a gun transported in accordance with this statute. 66 Stephen E. Fox and Jonathan E. Clark DOI /ert

9 Fall 2015 TEXAS Unsurprisingly, Texas also has a parking-lot law. The Lone Star State bars employers from prohibiting licensed-to-carry employees from transporting or storing a firearm or ammunition in a locked, privately owned car in a parking lot, garage, or other area the employer provides for employee parking. 30 Notable exceptions include company-owned vehicles, school districts, and land owned by someone other than the employer. Additionally, employers may prohibit employees from bringing firearms into the employer s building. Finally, the statute provides some critical employer immunity by noting that the presence of firearms or ammunition does not, in and of itself, constitute a failure of the employer to provide a safe workplace and, further, provides that employers are not required to patrol or inspect company parking lots to ensure employee compliance with the statute. UTAH Utah has a robust parking-lot law. Employers may not enact policies that prohibit an employee from transporting or storing a firearm in a vehicle on any parking-lot property if the gun is locked in the vehicle or in a container attached to the vehicle, and not in plain view from the outside. 31 Employers may, however, restrict firearm possession in parking areas, so long as at no additional cost to the employee the employer provides alternative parking in a safe and secure monitored location that is proximate to the workplace. Like several other states, Utah employers who comply with the statute have broad civil immunity for any occurrence resulting from or incidental to the use of a firearm, by any person, unless the use of the firearm involves a criminal act by the person who owns or controls the parking area. Additionally, the statute provides private actions against employers who violate the statute that include actual and punitive damages if a violation leads to injury or death, or if the employer was previously warned by the Utah attorney general. WISCONSIN Employers in Wisconsin may prohibit employees from carrying concealed weapons in the course of employment or during any part of the course of employment. 32 This does not mean, however, that Wisconsin employers may prohibit employees from having firearms in their own vehicles. To the contrary, employers may not prohibit, as a condition of employment, an individual with a concealed-weapons license from carrying a concealed weapon or ammunition or from storing a weapon or ammunition in the [employee s] own motor vehicle, regardless of whether the motor DOI /ert 67

10 vehicle is used in the course of employment or whether the motor vehicle is driven or parked on property used by the employer. Wisconsin is also a state that provides broad employer immunity for compliance. Specifically, an employer that does not prohibit one or more employees from carrying a concealed weapon under [the statute] is immune from any liability arising from its decision. NOTES 1. Harrell, E. (2011). Workplace violence, National Crime Victimization Survey and the Census of Fatal Occupational Injuries. 2. District of Columbia v. Heller, 554 U.S. 570 (2008); McDonald v. Chicago, 561 U.S. 742 (2010). 3. Ala. Code A Alaska Stat (c)-(d). 5. Ariz. Rev. Stat. Ann (A), (C)(5)-(8); Ark. Code Ann et seq. 7. Colo. Rev. Stat. Ann Fla. Stat. Ann Fla. Stat. Ann , (4)(b), (4)(d), (7)(a)-(e). 10. Ga. Code Ann (b), (g); (e); (h). 11. Ida. Code Ind. Code (a); (b)(1)-(10); ; Iowa Code Kan. Stat. Ann 75-7c10(b)(1); 75-7c01 et seq. 15. Ky. Rev. Stat. Ann (1), (3)-(4); La. Rev. Stat. Ann. 32:292.1(A)-(D). 17. Me. Rev. Stat. Ann. Tit. 26, 600(1). 18. Mich. Comp. Laws. Ann n(2). 19. Minn. Stat , subd Miss. Code Ann (1), Mo. Ann. Stat (15). 22. Neb. Rev. Stat. Ann (3)-(4). 23. N.C. Gen. Stat N.D.C.C (1)(a), (c); (2)-(4); (6)(a)-(d), 6(g). 25. Ohio Rev. Code Ann (C); (c)(2)(a). 26. Okla. Stat. Ann. Tit. 21, (A), (B). 27. S.C. Code Ann S.D.C.L T.C.A Tex. Lab. Code ; Utah Code Ann ; ; (2)-(3). 32. Wis. Stat. Ann (15m)(a)-(b); (21)(c). 68 Stephen E. Fox and Jonathan E. Clark DOI /ert

11 Fall 2015 Stephen E. Fox, a shareholder in the Dallas office of Polsinelli ( has spent more than 25 years in boardrooms and courtrooms across the country acting as a trusted advisor to and courthouse advocate for clients from Fortune 500 corporations to entrepreneurs in complicated and high-profile business and employment disputes. Consistently recognized by peers and clients in state and national surveys as a go-to courtroom advocate, Steve is one of the only lawyers in Texas to be inducted as a fellow into the prestigious College of Labor and Employment Lawyers and selected by his peers in Texas Monthly magazine as one of the top 100 litigation attorneys in Texas. He may be contacted at sfox@polsinelli.com. Jonathan E. Clark is an associate at Polsinelli s Dallas office. He has focused his practice on complex commercial and labor and employment litigation. His legal experience includes all levels of case management, including depositions, mediation, trial, complex discovery, and briefing. Jonathan has also been published in numerous legal journals, including the Texas Lawyer and the Texas Lawbook, and has presented at the HR Southwest Conference and the Annual Polsinelli HR Roundtable. He may be contacted at jclark@polsinelli.com. DOI /ert 69