NO GUNS ALLOWED AT WORK IN ILLINOIS? By: Meredith Pike. Many employers have raised questions and concerns regarding the impact of Illinois new Firearm

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1 NO GUNS ALLOWED AT WORK IN ILLINOIS? By: Meredith Pike Many employers have raised questions and concerns regarding the impact of Illinois new Firearm Concealed Carry law ( Act ) on the workplace. The Act became law on July 9, 2013.[i] In passing the Act, Illinois became the 50th state in the nation to legalize the right to carry concealed firearms. However, the Act leaves unanswered the status of firearms in the workplace. The Act recognizes the right to carry concealed firearms in public subject to certain limitations. However, the Act gives little to no guidance on how these limitations are to be implemented in the workplace. This article addresses some of the difficult decisions employers now face under the new law. In particular, this article addresses the impact the Act will have on bank clients, as in house counsel for a number of banks have raised this issue as a particular concern to bank employers. The Illinois General Assembly passed the Act in reaction to the Seventh Circuit s decision in Moore v. Madigan[ii]. In that case, the Seventh Circuit found the Illinois Unlawful Use of Weapons ( UUW ) and Illinois Aggravated Unlawful Use of Weapon ( AUUW ) statutes to be unconstitutional because they contained a blanket prohibition on the carrying of guns in public[iii]. Following the Supreme Court s rulings in Heller[iv] and McDonald[v], the Seventh Circuit held that the Second Amendment prohibits a complete ban on the right to bear arms in public, but recognized that Illinois is entitled to assert reasonable limitations on this right[vi]. The Seventh Circuit gave the Illinois legislature 180 days to craft a new gun law that imposed reasonable restrictions consistent with public safety and the Second Amendment[vii]. On September 12, 2013, the Illinois Supreme Court reached the same conclusion as the Seventh Circuit and found the section of the AUUW that constituted a comprehensive ban on the right to bear arms in public to be unconstitutional[viii]. Adopting the Seventh Circuit s analysis, the Illinois Supreme Court concluded that the Second Amendment protects the right to possess a firearm outside of the home subject to reasonable regulation [ix]. Can a private employer, particularly a bank, prohibit the possession of firearms by its employees? As is true of many answers under the Act, it depends. Unlike many states that recognize, specifically, a private employers right to restrict the use of firearms by its employees[x], the Illinois Act contains no such language. Further, while the Act identifies certain locations as off limits for the carrying of concealed weapons schools, for

2 example, a bank is not one of them[xi]. As a result, private employers in Illinois, including banks, are left with the option of complying with the following provision of the Act if they want to restrict the possession of firearms by their employees: 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 a sign in accordance with subsection (d) of this Section indicating that firearms are prohibited on the property, unless the property is a private residence[xii]. The Act requires the Illinois State Police to promulgate rules for the sign, but the Illinois State Police have not established these rules, yet[xiii]. Until these rules are in place, employers can rely on the Act s broad guidelines: The sign must be 4 inches by 6 inches; The sign must state that the carrying of firearms is prohibited ; and The signs must be clearly and conspicuously posted at the entrance of a building, premises, or real property [xiv]. Of course, employers should continue to check with the Illinois State Police, and once the rules are set forth, employers should adjust their signs accordingly. In sum, as long as the employer is also the owner of the real property where he does business, the Act allows an employer to prohibit its employees from possessing firearms in the workplace. However, what does it mean to be an owner of private real property of any type? What if the employer leases its offices as may be true for many bank branches? The law does not define the meaning of owner and therefore, it is unclear whether employers who lease their offices are entitled to invoke the provisions of the Act that allow a property owner to prohibit firearms on the premises. Until this ambiguity is resolved, employers who lease property are best advised to work with their landlords to seek an addendum to their existing leases or a provision in new leases allowing them to post the signs and prohibit firearm possession by their employees under the Act. They should consult with their attorneys in drafting these lease provisions to ensure compliance with the Act. Further, while employers can prohibit employees from carrying firearms in their parking lots, under the Act, employers cannot prohibit their employees from having a concealed firearm in the immediate area surrounding his or her vehicle or from storing the firearm in a case within a locked vehicle or locked container out of plain view[xv]. As a practical matter, employers should work with their counsel to develop or revise existing weapons policies to make sure they comply with this exception under the Act and then educate their employees about where they can and

3 cannot possess firearms while at work. Can an employer face liability for wrongful termination by prohibiting an employee from carrying a concealed weapon at work? There are no specific protections afforded to employers under the Act and due to its newness, it is unclear how Illinois courts will deal with a claim by an employee that he or she was wrongfully terminated for possessing a firearm at work when that employee had a concealed carry license pursuant to the Act. However, states outside of Illinois have addressed this issue and it is likely that Illinois courts will look to these states for guidance. In these states, employees asserted wrongful termination claims by arguing that a substantial public policy reason exists their Second Amendment right that overcomes the general presumption that an employer may discharge an at will employee for any reason[xvi]. In examining this issue, these states recognized that an employee s Second Amendment right to bear arms is not limitless and that an employer has a right to enforce reasonable restrictions on an employee s possession of a firearm in the workplace. However, these states looked to the specific statute of their state that regulated firearms in determining whether the employer s restrictions were reasonable and thus, whether termination was proper. Where an employer s policy complied with the statute, the courts found, uniformly, that an employee cannot prevail on a wrongful termination claim[xvii]. However, where the employer s policy violated the state statute regulating the possession of firearms, the Supreme Court of Kentucky found that an employee could pursue a wrongful termination claim under the public policy exception to the general presumption that an employer may discharge an at will employee for any reason[xviii]. Illinois recognizes the general rule that an at will employee can be discharged for any reason except in certain instances, including when the termination violates a public policy mandate; an employee can bring a retaliatory discharge claim for this type of violation[xix]. This exception is narrow and to state a retaliatory discharge claim, an employee must allege that (1) the employer discharged the employee, (2) in retaliation for the employee s activities, and (3) that the discharge violates a clear mandate of public policy [xx]. Given the Seventh Circuit s and Illinois Supreme Court s statements that the public right to bear arms is subject to reasonable regulation, it is likely that in determining whether an employee has a valid retaliatory discharge claim, Illinois courts, like courts in other states, will acknowledge that an employee s Second Amendment right is not limitless and recognize that an employer has the right to regulate firearms in the workplace. Further, similar to courts in other states, Illinois courts will likely examine whether the employer s policy complies with the Act in determining

4 whether termination was proper. Can an employer face liability if a shooting takes place on its premises? The Act does not address the liability an employer can face if it prohibits its employees from carrying a concealed weapon and a shooting takes place despite the prohibition. The Act s silence on employer liability is all the more reason for employers who want to ban firearms in the workplace to make sure their policies comply with the prohibitions allowed under the Act and that their employees are educated about these policies. Hopefully, employer liability in this context can be addressed in the future by sensible amendments and in the meantime, will probably be dictated by the level of knowledge an employer has about a violation of its firearms policy. If an employer allows its employees to carry a concealed weapon and a shooting takes place can the employer face liability? Unlike other states[xxi] which have answered this question by giving employers immunity, the Act is silent on the liability an employer can face for allowing weapons in the workplace. This issue is also something that will need to be addressed by amendments or developed by case law. Again, it is important for employers to make sure their policies comply with the Act and that they educate their employees about acceptable workplace practices in light of the new law. What is the bottom line for employers? Much uncertainty exists for employers under the Act. That said, there are steps an employer can take to minimize exposure under the Act. Employers should work with their counsel to draft policies that comply with the Act and certainly review and update existing handbooks and policies to make sure they do not violate the Act. Further, employers need to educate their employees about these changes in light of the new law. Additionally, employers who lease, rather than own property, like bank branches, should work with their landlords and consult with their attorneys to have lease provisions added that allow them to restrict the possession of firearms in the workplace. Employers also need to watch how this new law is interpreted by the courts and track amendments to the law. The Act is very new and says very little about what an employer can and cannot do. Employers will need to adjust their policies and handbooks accordingly as Court decisions are issued and amendments are added. Attorneys and employers should communicate frequently about these developments and employers should have their firearms policies reviewed on a regular basis to ensure compliance.

5 [i] 430 ILCS 66/1, et. al. [ii] Moore v. Madigan, 702 F.3d 933 (7 th Cir. 2012). [iii] Id. at 942. [iv] District of Columbia v. Heller, 554 U.S. 570 (2008). [v] McDonald v. City of Chicago, U.S., 130 S.Ct (2010). [vi] Moore, 702 F.3d 933, 942. [vii]id. [viii] People v. Aguilar, 2013 IL (Ill.) [ix] Id. at 21. [x] Brian A. Vandiver, Employees Gun Rights v. Employers Property Rights, DRI for the Defense (2013) (surveys states that recognizes the right of private employers to restrict the use of firearms). [xi] Illinois is different from states, like Michigan, that prohibit, specifically, the carrying of any firearm on the premises of a depository financial institution or affiliate of a depository financial institution. M.C.L.A (d)(1)(a). [xii] 430 ILCS 66/65 (a 10). [xiii] See faq.cfm [xiv] 430 ILCS 66/65(d). [xv] 430 ILCS 66/65(b). [xvi] Plona v. United Parcel Service, Inc. 558 F.3d 478, 481 (6 th Cir. 2009); Bastible v. Weyerhaeuser Company, 437 F.3d 999, 1007 (10 th Cir. 2006); Mitchell v. University of Kentucky, 366 S.W.3d 895, 898 (Sup. Ct. Kentucky 2012); and Hansen v. America Online, Inc., 96 P.3d 950, 8 (Sup. Ct. Utah 2004). [xvii] Plona v. United Parcel Service, Inc. 558 F.3d 478, 481 (6 th Cir. 2009) (finding the employee could not pursue a wrongful termination claim for having a firearm in his vehicle because the employer had a statutory right to prohibit firearms on its property); Bastible v. Weyerhaeuser Company, 437 F.3d 999, 1007 (10 th Cir. 2006) (finding policy that complied with statute that gave employer right to regulate use of firearms on its property barred wrongful termination claim); and Hansen v. America Online, Inc., 96 P.3d 950, 8 (Sup. Ct. Utah 2004). [xviii] Mitchell v. University of Kentucky, 366 S.W.3d 895, 898 (Sup. Ct. Kentucky 2012) (The University of Kentucky terminated an employee for having a firearm in his car pursuant to a policy that prohibited university employees from having any firearms on university property, including parking lots. As the policy violated a Kentucky statute that specifically stated that a person shall not be prohibited from keeping a firearm in a glove compartment of a vehicle, the Supreme Court of Kentucky found that the employee could pursue his wrongful termination suit.). [xix] Turner v. Memorial Medical Center, 223 Ill.2d 494, 500 (Ill. 2009). [xx] Id. [xxi] See e.g., Wis. Stat (21)(b)(c).