A Right to Bear Arms in the Office?

In February 2009, the Tenth Circuit Court of Appeals considered the issue of preemption under the Act, in a case brought by a group of employers challenging Oklahoma's firearm laws, which restricted employers from banning guns in workplace parking lots. See Ramsey Winch, Inc. v. Henry, 555 F.3d 1199 (10th Cir. 2009). The employers argued that Oklahoma's law violated the workplace safety guidelines issued by OSHA. The court unanimously ruled that Oklahoma employees have the constitutional right to keep guns in their vehicles at work.

In connection with the Ramsey Winch case, in 2006, an Oklahoma lawmaker wrote to OSHA to inquire whether guns in the workplace were a recognized hazard. The Agency answered the lawmaker's question by stating: “Gun-related violence is not a recognized occupational hazard in the industry as a whole.” The Tenth Circuit held that OSHA “is aware of the controversy surrounding firearms in the workplace and has consciously decided not to adopt a standard.” The court found that the “Act is not meant to interfere with states' exercise of police powers to protect their citizens,” and discussed OSHA's reluctance to regulate, and courts' reluctance to find preemption, in areas dealing more generally with social policy and crime prevention, rather than specific workplace-related conditions and hazards.

The court viewed the Oklahoma law as an example of general regulation under the state's police power. In the absence of clear congressional intent to preempt state law in that area, the court did not find preemption under the Act's general duty clause. Similarly, in 2008, a Florida District Court rejected an OSHA preemption challenge to Florida's gun law. See Florida Retail Federation, Inc. v. Attorney General of Florida, 576 F. Supp.2d 1301 (N.D. Fl. 2008). Should OSHA change its mind, we can expect further challenges to state laws allowing gun-toting employees at work.

The Supreme Court's Decision in District of Columbia v. Heller

In 2008, the United States Supreme Court addressed rights under the Second Amendment in District of Columbia v. Heller, in connection with a local law banning the possession of handguns and requiring all other firearms to be kept at home, disassembled or trigger-locked. See District of Columbia v. Heller, 128 S.Ct. 2783 (2008). The Supreme Court held that the Second Amendment protects an individual's right to bear arms. It then struck down the District of Columbia law because it violated that right. However, the Court noted that the right secured by the Second Amendment is not unlimited. The Court recognized the validity of “longstanding prohibitions” on the possession of firearms by felons and the mentally ill. It also recognized laws prohibiting firearms in “sensitive places,” such as schools and government buildings, as well as laws imposing conditions and qualifications on the commercial sale of firearms.

The Supreme Court's decision in Heller leaves a lot of questions unanswered. For example, the Court declined to establish a standard against which gun control laws will be measured; it did not address whether the Second Amendment affects the laws of the individual states differently from those in the federally controlled territory of the District of Columbia, whose status is unique; the Court did not address whether the right to bear arms inside the home for self-defense also extends to a person's car or his place of work; and the decision did not address clearly when safety concerns outweigh an individual's right to bear arms. In light of the Heller decision, it is unclear how the Court will balance employer safety requirements against an individual's rights under the Second Amendment in the future.

Interplay Between State and Federal Law

In May 2009, the Montana Legislature passed a law asserting that guns manufactured and sold in Montana to people who intend to keep their weapons in Montana are exempt from federal gun registration, background checks, and dealer licensing rules because no state lines are crossed. Montana will take the position that its “made in Montana” guns are unique and sufficiently segregated to be outside federal regulations. That principle will probably be tested in court. There may well be a decision over how far the federal government's regulatory authority extends. Similar measures have been introduced in Texas and Alaska. The federal government has argued that it has authority to regulate firearms under the interstate commerce clause of the U.S. Constitution because they can so easily be transported across state lines. If the Federal Bureau of Alcohol, Tobacco and Firearms (“ATF”) issues a determination that the manufacture of these firearms is illegal without federal dealership licensing, the issue will probably make its way to the United States Supreme Court.

Recently Enacted State Laws

At press time, at least 13 states had passed legislation banning employers from prohibiting firearms in employees' vehicles at work. Alaska, Arizona, Florida, Georgia, Indiana Kansas, Kentucky, Louisiana, Minnesota, Mississippi, Nebraska, Oklahoma, and Utah enacted laws that place some limitations on an employer's right to prohibit guns in cars parked on the premises of the employer. Similar legislation is pending or has been considered in Alabama, California, Missouri, Montana, New Hampshire, Pennsylvania, South Carolina, Tennessee, Texas, Virginia and Wisconsin.

Employers that are required to allow firearms to be stored in employees' vehicles on their property have been concerned about liability for injuries and damage caused by those firearms. To address these concerns, states such as Alaska, Florida, Georgia, Louisiana, Oklahoma, and Mississippi have included civil liability waivers in their parking-lot firearms laws. Typically, these provisions immunize employers from state liability arising from compliance with the law; however, they do not protect employers from liability under the federal law such as the general duty obligations under the Act.

Some states have also included exceptions for certain types of parking areas, vehicles, and industries. These exceptions allow employers to establish or maintain prohibitions on firearms in parking areas when certain criteria are met, such as: secured parking areas, company vehicles, and special types of employees, e.g., those involved in national defense, aerospace, and nuclear power generation.

The following illustrates the positions of various states on the issue of gun control in the workplace.

Arizona

On May 13, 2009, the Arizona State House of Representatives passed a bill that would permit workers to store their firearms in their locked vehicles.

Texas

In March 2009, the Texas Senate unanimously approved a bill that would restrict an employer's right to prohibit an employee who holds a license to carry a concealed handgun from keeping a legal firearm in a locked, privately owned, vehicle in an employer-controlled parking lot or garage. The law would also create a new cause of action for employees who are terminated for storing a firearm in compliance with the statute. There are a number of significant exceptions including allowance of employers to enforce a policy, which prohibits employees from concealing the firearm from plain view. Also, restrictions may be placed on use of parking areas for the general public if an alternative location on the employer's property exists. According to the bill, which at press time had still not passed, the employer would have the option of providing an alternative parking area for those employees with firearms. Employers may prohibit an employee from carrying a firearm on business premises or in a vehicle owned or leased by the company. Employers cannot be sued under Texas law for damages that result from a firearm if it is stored in accordance with the law.

Utah

On March 31, 2009, Utah's Governor signed two bills into law: one allows the storage of firearms in the employee's locked vehicle while at work; the other allows employees to choose how they carry a handgun for self-defense (i.e., open, concealed, loaded or unloaded).

Florida

In July 2008, after a three-year fight in the state legislature, Florida enacted the Preservation and Protection of the Right to Keep and Bear Arms in Motor Vehicles Act. Employers and other business owners can no longer prohibit employees, customers, vendors or other “invitees” from keeping a firearm locked in a parked car while conducting business at the facility. No “Right to Carry” license is required. The new law requires the Florida Attorney General to bring claims on behalf of employees or customers against employers or businesses. The Attorney General can negotiate a settlement; however, individuals whose rights have been violated under the law still have the right to bring a civil action. The law also provides a fine of $10,000 for each violation.

Georgia

In 2008, Georgia passed the Business Security and Employee Privacy Act, which expanded the areas in which holders of firearms licenses may legally carry concealed weapons and places some limitations on employers' rights. Similar to the Florida law, the Georgia law prohibits employers from banning concealed weapons on company property. It also places significant limits on an employer's right to search vehicles parked on site. Unlike Florida's law, however, Georgia's law does not apply to employers that own the employee parking lot property. It preserves the rights of the employer, as a property owner, to restrict access by prohibiting concealed weapons. The Georgia law does not permit the employer to search the employees' vehicles even if parked at the employer's place of business, unless there is reason to believe that the employer might present an immediate threat to the health, life, or safety of others. The employee must consent to the search, which may defeat the purpose. Also, if there is consent, then query whether the exception is needed. Further, if an employee is subject to disciplinary action, employers may revoke the right to bring concealed weapons on the property. This provision does not seem effective, as an employee subject to discipline may well be a person likely to commit violence in the workplace. Finally, company-owned vehicles are exempt.

Alaska

In Alaska, employers are prohibited from establishing policies banning employees from bringing weapons to company parking lots.

Tri-State Decision

A 2005 Fifth Circuit decision, which covers Texas, Louisiana, and Mississippi, held that workplace shootings were a workers' compensation matter. See Tanks v. Lockheed Martin Corp., et al., 417 F.3d 456 (5th Cir. 2005). The decision stemmed from a 2003 shooting rampage at a Lockheed Martin plant in Meridian, MS, in which an employee left a mandatory diversity training class at his work site, returned with a 12-gauge shotgun and semi-automatic rifle, and shot 14 people before killing himself. The Fifth Circuit's holding meant that employees and family members who sued the employer for liability were limited to awards of $150,000 each. The ruling stated that “[t]he only viable conclusion is that ' [the employee's] act of shooting cannot be separated from the employment status of his victims.” Critics of the decision argue that it could lead large corporations to believe there is no need to curtail workplace violence because of their potentially limited liability.

Conclusion

Litigation between state's rights advocates, the National Rifle Association, employers, and employees will certainly seek answers to the questions created by the courts' decisions and various state laws regarding firearms in the workplace. Notwithstanding the enactment of the state laws, employers still must provide a safe workplace for employees, and intervene where appropriate. If necessary, as a response to violent behavior by a worker, an employer may need to secure a court order prohibiting the employee from carrying guns to work. In states with pro-gun laws, employers may need to re-write employee handbooks to include firearms policies specifically created to reflect the reality that guns could be present in the parking lot. Employee training should take place to explain exactly what is, or is not, allowed by the employer within the confines of the law. In states that have not enacted such laws, employers should review this issue with employment counsel and develop policies and procedures with respect to firearms at work.

Rosanna Sattler, a member of this newsletter's Board of Editors, is a partner and a member of Posternak, Blankstein and Lund's Executive Committee. Her extensive litigation practice includes business litigation, environmental, employment and insurance coverage disputes. Nancy Puleo is an Associate in the firm's Employment and Litigation Departments.

The idea of employees bringing guns to work strikes fear in the hearts and minds of employers everywhere. Workplace violence is rising in the face of layoffs, furloughs, and the economic pressures suffered by employees. Employers now must balance the duty to maintain a safe workplace with employees' right to bear arms under the Second Amendment of the Constitution of the United States, their rights under state constitutions, and laws allowing guns at work ' which is a new and growing trend in employment legislation.

The Import of the Occupational Health and Safety Act

Section 654(a)(1) of the Federal Occupational Health and Safety Act (the “Act”), also referred to as the “general duty” clause, mandates that each employer “shall furnish to each of its employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious harm to his employees.” While the United States Occupational Safety and Health Administration (“OSHA”) has issued voluntary guidelines and recommendations for employers seeking to reduce the risk of workplace violence, it has not promulgated any mandatory standards.

In February 2009, the Tenth Circuit Court of Appeals considered the issue of preemption under the Act, in a case brought by a group of employers challenging Oklahoma's firearm laws, which restricted employers from banning guns in workplace parking lots. See Ramsey Winch, Inc. v. Henry , 555 F.3d 1199 (10th Cir. 2009). The employers argued that Oklahoma's law violated the workplace safety guidelines issued by OSHA. The court unanimously ruled that Oklahoma employees have the constitutional right to keep guns in their vehicles at work.

In connection with the Ramsey Winch case, in 2006, an Oklahoma lawmaker wrote to OSHA to inquire whether guns in the workplace were a recognized hazard. The Agency answered the lawmaker's question by stating: “Gun-related violence is not a recognized occupational hazard in the industry as a whole.” The Tenth Circuit held that OSHA “is aware of the controversy surrounding firearms in the workplace and has consciously decided not to adopt a standard.” The court found that the “Act is not meant to interfere with states' exercise of police powers to protect their citizens,” and discussed OSHA's reluctance to regulate, and courts' reluctance to find preemption, in areas dealing more generally with social policy and crime prevention, rather than specific workplace-related conditions and hazards.

The court viewed the Oklahoma law as an example of general regulation under the state's police power. In the absence of clear congressional intent to preempt state law in that area, the court did not find preemption under the Act's general duty clause. Similarly, in 2008, a Florida District Court rejected an OSHA preemption challenge to Florida's gun law. See Florida Retail Federation, Inc. v. Attorney General of Florida , 576 F. Supp.2d 1301 (N.D. Fl. 2008). Should OSHA change its mind, we can expect further challenges to state laws allowing gun-toting employees at work.

The Supreme Court's Decision in District of Columbia v. Heller

In 2008, the United States Supreme Court addressed rights under the Second Amendment in District of Columbia v. Heller, in connection with a local law banning the possession of handguns and requiring all other firearms to be kept at home, disassembled or trigger-locked. See District of Columbia v. Heller , 128 S.Ct. 2783 (2008). The Supreme Court held that the Second Amendment protects an individual's right to bear arms. It then struck down the District of Columbia law because it violated that right. However, the Court noted that the right secured by the Second Amendment is not unlimited. The Court recognized the validity of “longstanding prohibitions” on the possession of firearms by felons and the mentally ill. It also recognized laws prohibiting firearms in “sensitive places,” such as schools and government buildings, as well as laws imposing conditions and qualifications on the commercial sale of firearms.

The Supreme Court's decision in Heller leaves a lot of questions unanswered. For example, the Court declined to establish a standard against which gun control laws will be measured; it did not address whether the Second Amendment affects the laws of the individual states differently from those in the federally controlled territory of the District of Columbia, whose status is unique; the Court did not address whether the right to bear arms inside the home for self-defense also extends to a person's car or his place of work; and the decision did not address clearly when safety concerns outweigh an individual's right to bear arms. In light of the Heller decision, it is unclear how the Court will balance employer safety requirements against an individual's rights under the Second Amendment in the future.

Interplay Between State and Federal Law

In May 2009, the Montana Legislature passed a law asserting that guns manufactured and sold in Montana to people who intend to keep their weapons in Montana are exempt from federal gun registration, background checks, and dealer licensing rules because no state lines are crossed. Montana will take the position that its “made in Montana” guns are unique and sufficiently segregated to be outside federal regulations. That principle will probably be tested in court. There may well be a decision over how far the federal government's regulatory authority extends. Similar measures have been introduced in Texas and Alaska. The federal government has argued that it has authority to regulate firearms under the interstate commerce clause of the U.S. Constitution because they can so easily be transported across state lines. If the Federal Bureau of Alcohol, Tobacco and Firearms (“ATF”) issues a determination that the manufacture of these firearms is illegal without federal dealership licensing, the issue will probably make its way to the United States Supreme Court.

Recently Enacted State Laws

At press time, at least 13 states had passed legislation banning employers from prohibiting firearms in employees' vehicles at work. Alaska, Arizona, Florida, Georgia, Indiana Kansas, Kentucky, Louisiana, Minnesota, Mississippi, Nebraska, Oklahoma, and Utah enacted laws that place some limitations on an employer's right to prohibit guns in cars parked on the premises of the employer. Similar legislation is pending or has been considered in Alabama, California, Missouri, Montana, New Hampshire, Pennsylvania, South Carolina, Tennessee, Texas, Virginia and Wisconsin.

Employers that are required to allow firearms to be stored in employees' vehicles on their property have been concerned about liability for injuries and damage caused by those firearms. To address these concerns, states such as Alaska, Florida, Georgia, Louisiana, Oklahoma, and Mississippi have included civil liability waivers in their parking-lot firearms laws. Typically, these provisions immunize employers from state liability arising from compliance with the law; however, they do not protect employers from liability under the federal law such as the general duty obligations under the Act.

Some states have also included exceptions for certain types of parking areas, vehicles, and industries. These exceptions allow employers to establish or maintain prohibitions on firearms in parking areas when certain criteria are met, such as: secured parking areas, company vehicles, and special types of employees, e.g., those involved in national defense, aerospace, and nuclear power generation.

The following illustrates the positions of various states on the issue of gun control in the workplace.

Arizona

On May 13, 2009, the Arizona State House of Representatives passed a bill that would permit workers to store their firearms in their locked vehicles.

Texas

In March 2009, the Texas Senate unanimously approved a bill that would restrict an employer's right to prohibit an employee who holds a license to carry a concealed handgun from keeping a legal firearm in a locked, privately owned, vehicle in an employer-controlled parking lot or garage. The law would also create a new cause of action for employees who are terminated for storing a firearm in compliance with the statute. There are a number of significant exceptions including allowance of employers to enforce a policy, which prohibits employees from concealing the firearm from plain view. Also, restrictions may be placed on use of parking areas for the general public if an alternative location on the employer's property exists. According to the bill, which at press time had still not passed, the employer would have the option of providing an alternative parking area for those employees with firearms. Employers may prohibit an employee from carrying a firearm on business premises or in a vehicle owned or leased by the company. Employers cannot be sued under Texas law for damages that result from a firearm if it is stored in accordance with the law.

Utah

On March 31, 2009, Utah's Governor signed two bills into law: one allows the storage of firearms in the employee's locked vehicle while at work; the other allows employees to choose how they carry a handgun for self-defense (i.e., open, concealed, loaded or unloaded).

Florida

In July 2008, after a three-year fight in the state legislature, Florida enacted the Preservation and Protection of the Right to Keep and Bear Arms in Motor Vehicles Act. Employers and other business owners can no longer prohibit employees, customers, vendors or other “invitees” from keeping a firearm locked in a parked car while conducting business at the facility. No “Right to Carry” license is required. The new law requires the Florida Attorney General to bring claims on behalf of employees or customers against employers or businesses. The Attorney General can negotiate a settlement; however, individuals whose rights have been violated under the law still have the right to bring a civil action. The law also provides a fine of $10,000 for each violation.

Georgia

In 2008, Georgia passed the Business Security and Employee Privacy Act, which expanded the areas in which holders of firearms licenses may legally carry concealed weapons and places some limitations on employers' rights. Similar to the Florida law, the Georgia law prohibits employers from banning concealed weapons on company property. It also places significant limits on an employer's right to search vehicles parked on site. Unlike Florida's law, however, Georgia's law does not apply to employers that own the employee parking lot property. It preserves the rights of the employer, as a property owner, to restrict access by prohibiting concealed weapons. The Georgia law does not permit the employer to search the employees' vehicles even if parked at the employer's place of business, unless there is reason to believe that the employer might present an immediate threat to the health, life, or safety of others. The employee must consent to the search, which may defeat the purpose. Also, if there is consent, then query whether the exception is needed. Further, if an employee is subject to disciplinary action, employers may revoke the right to bring concealed weapons on the property. This provision does not seem effective, as an employee subject to discipline may well be a person likely to commit violence in the workplace. Finally, company-owned vehicles are exempt.

Alaska

In Alaska, employers are prohibited from establishing policies banning employees from bringing weapons to company parking lots.

Tri-State Decision

A 2005 Fifth Circuit decision, which covers Texas, Louisiana, and Mississippi, held that workplace shootings were a workers' compensation matter. See Tanks v. Lockheed Martin Corp., et al., 417 F.3d 456 (5th Cir. 2005). The decision stemmed from a 2003 shooting rampage at a Lockheed Martin plant in Meridian, MS, in which an employee left a mandatory diversity training class at his work site, returned with a 12-gauge shotgun and semi-automatic rifle, and shot 14 people before killing himself. The Fifth Circuit's holding meant that employees and family members who sued the employer for liability were limited to awards of $150,000 each. The ruling stated that “[t]he only viable conclusion is that ' [the employee's] act of shooting cannot be separated from the employment status of his victims.” Critics of the decision argue that it could lead large corporations to believe there is no need to curtail workplace violence because of their potentially limited liability.

Conclusion

Litigation between state's rights advocates, the National Rifle Association, employers, and employees will certainly seek answers to the questions created by the courts' decisions and various state laws regarding firearms in the workplace. Notwithstanding the enactment of the state laws, employers still must provide a safe workplace for employees, and intervene where appropriate. If necessary, as a response to violent behavior by a worker, an employer may need to secure a court order prohibiting the employee from carrying guns to work. In states with pro-gun laws, employers may need to re-write employee handbooks to include firearms policies specifically created to reflect the reality that guns could be present in the parking lot. Employee training should take place to explain exactly what is, or is not, allowed by the employer within the confines of the law. In states that have not enacted such laws, employers should review this issue with employment counsel and develop policies and procedures with respect to firearms at work.

Rosanna Sattler, a member of this newsletter's Board of Editors, is a partner and a member of Posternak, Blankstein and Lund's Executive Committee. Her extensive litigation practice includes business litigation, environmental, employment and insurance coverage disputes. Nancy Puleo is an Associate in the firm's Employment and Litigation Departments.