January 09, 2017 Practice Points

Gun Laws Create Patchwork of Competing Legal Considerations

Recent shootings have left employers contemplating policies prohibiting firearms in or around the workplace, but the law varies from state to state.

By David Gevertz – January 9, 2017

Recent mass and workplace shootings have left employers contemplating policies prohibiting firearms in or around the workplace. At the same time, gun-rights advocates and many state legislatures have urged and achieved passage of laws granting employees the right to possess firearms for protection. Because federal law does not explicitly regulate the possession of guns in the workplace, the landscape consists of a patchwork of evolving state laws on the subject. Nevertheless, certain overarching considerations exist.

Parking Lots 
Over 20 states have enacted “parking lot laws,” which allow employees to keep an otherwise lawfully owned firearm in his or her car in a company-owned parking lot, garage, etc. See, e.g., Okla. Stat. tit. 21 § 1289.7a. Several of these laws also allow employers to prohibit firearms in parking lots that have restricted access via fencing and/or monitoring. Still others require employers to provide employees with alternative parking or facilities where they may store their firearms. See Ariz. Rev. Stat. § 12-781(C)(3).

Certain states prohibit employers from searching their employees’ vehicle for firearms or asking employees whether they possess a firearms in their car. See Fla. Stat. Ann. § 790.251. By contrast, Georgia’s law allows employers 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.” See Ga. Code Ann. § 16-11-135.

Offices
Many states allow employers to prohibit an employee from carrying a firearm on his or her person while working, bringing a firearm into company offices, or keeping a firearm in a company-owned vehicle. Several of these states require employers to post a notice if they intend to enforce such a prohibition. For example, Tennessee makes it a crime for an employee to possess a firearm on properly posted property. Several states specify the language that must be included for notice to be effective.

Termination Protection 
Some states, such as Indiana and Florida, prohibit employers from refusing to hire or terminating employees because they own a gun or have concealed-carry permits. See, e.g., Ind. Code § 34-28-8-6(c); Fla. Stat. Ann. § 790.251. Such states, including Florida and North Dakota, typically provide employees with a private right of action against employers who violate these laws, including relief for monetary damages, injunctions, attorney fees, and litigation costs.

Employer Immunity 
Other states, including Georgia, Texas, and Oklahoma, provide employers with varying levels of immunity against suits brought seeking redress for crimes committed by employees who possess firearms in compliance with workplace gun laws. See, e.g., Ga. Code Ann. § 16-11-135; Tex. Labor Code Ann. § 52.063; Okla. Stat. tit. 21 § 1289.7a. Georgia, for example, 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.”

As these laws continue to be added to the books, few of them have been tested in court. As such, employers should routinely update their policies to remain in compliance with the law, while employees should refrain from running afoul of state laws protecting employers’ right to control their property.

 

Keywords: litigation, civil rights, employment, Second Amendment

 

David Gevertz is a shareholder with Baker Donelson in Atlanta, Georgia.


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