Employers Unnerved by Ruling Upholding the Legality of Guns in Workplace Parking Lots

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Posted by Heidi Schwartz

A new ruling by a federal appeals court means managers in a growing number of states must accept what, for many, is a troubling reality — their employees have the legal right to keep guns in their cars at work, even with layoffs on the rise and economic tensions running high, said attorney James P. Anelli, an attorney in LeClairRyan‘s Labor and Employment Group.

On February 19, 2009, the U.S. 10th Circuit Court of Appeals reversed a District Court ruling, thereby upholding an Oklahoma law that gave workers the right to keep guns in their locked vehicles. “This unanimous and clearly worded ruling has broad implications for managers in the several states that have passed laws like Oklahoma’s,” said Anelli, who is based in the law firm’s Newark, NJ office. “It also could embolden pro-gun lawmakers around the country to draft similar measures.”

The aim of the Oklahoma law, introduced with the support of the National Rifle Association, was to stop companies from banning guns in workplace parking lots. The rationale was that such prohibitions violated employees’ constitutional rights to possess and carry firearms. In October 2007, however, U.S. District Judge Terence Kern issued an injunction against the enforcement of the state’s legislation. The new law, he ruled, created an obstacle to employers charged with maintaining safe workplaces according to requirements issued by the U.S. Occupational Health & Safety Administration (OSHA).

In its 3-0 ruling, the appeals court cited evidence that OSHA does not regard the Oklahoma law as being in conflict with its workplace safety provisions. “The court pointed specifically to a January 16 letter by an acting OSHA official that signified OSHA’s neutrality on the matter,” Anelli noted. “Essentially, this ruling amounted to a clear invitation to states that have passed these types of provisions to feel free to enforce them. For employers who had hoped to see these types of provisions thrown out in court, this is a dramatic development.”

Indeed, several Oklahoma employers, including Weyerhaeuser Corp., Whirlpool Corp., and ConocoPhillips, had challenged the Oklahoma law out of safety concerns. In the wake of the appeals court ruling, Anelli said, human resources and legal teams in states where these pro-gun laws have passed may need to rewrite employee handbooks to include firearms policies specifically crafted to reflect the reality that guns could be present in the parking lot. States that have passed pro-gun laws similar to Oklahoma’s include: Georgia, Florida, Alaska, Kentucky, Mississippi, Kansas and Minnesota. Similar measures are under consideration in the statehouses of Alabama, Louisiana, Montana, Tennessee, Utah, and Virginia.

“I have never seen an employee handbook that had a firearms policy,” said Anelli, who has 20 years of experience representing management in employment discrimination and labor litigation. “It is more than prudent to adopt policies on how firearms should be handled and to explicitly state, for example, that guns must stay locked in vehicles and cannot be brought into the workplace.”

Even as they draft such policies, however, employers must still provide a safe workplace and intervene where appropriate. For example, if an employee exhibits violent behavior there may still be a basis to take appropriate action to ensure that the workplace remains safe. In fact, some states allow employers to obtain court orders limiting the possession of firearms in parking lots even when the local law allows them if there is an indication of potential violence.

Still, Anelli said, company executives in states that have passed such laws should remember that they have not been relieved of their obligation to keep the workplace, including its parking lot, safe. It is their responsibility to work with security professionals, attorneys and local law enforcement officials to defuse situations involving potential violence and the possible use of firearms. They can also take other steps to protect both their companies and employees. Some types of businesses, for example, may have been legally exempted from the applicable law and can therefore continue to enforce gun bans. Others might be able to carve out “secured parking areas” that are gun-free but still in compliance with their states’ laws.

Importantly, the Court also rejected the employers’ arguments that, as a “property owner,” they could regulate if firearms were stored in employee vehicles. The appeals court ruled, however, that the Oklahoma law could most accurately be “characterized as a restriction on Plaintiff’s use of their property.” In short, the appeals court ruled that the employer’s property could be regulated in this manner and withstand constitutional “taking” arguments. Part of the ruling is based on the notion Oklahoma was expanding the rights of its citizens, as citizens, to store firearms in their vehicles as opposed to regulating employers or addressing employment, per se.

Anelli added that if OSHA were to reverse course and declare such laws in conflict with its existing safety provisions — perhaps after a policy review by the Obama administration — or if other appellate panels were to issue conflicting rulings on the legality of firearms in workplace parking lots, the U.S. Supreme Court might take up the matter.

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9 Responses
  1. Richard Saunders says:

    What happens when an employer changes an HR policy to forbid guns in parking lots and an employee gets car-jacked or raped on their commute home? Lawsuit?

    I realize that employers can make rules as they see fit on their private property but employers should respect an individual’s right to keep a firearm in a locked vehicle.

  2. Tomi Y says:

    In answer to the question: what happens when an employee gets carjacked on the commute home….There will be a lawsuit either way. Carrying a gun in a car doesn’t resolve anything. It just promotes further unnecessary violence on the streets, and its always the innocent that gets hurt, not the gun yielding nut that feels like god because he’s carrying. Law abiding gun owners don’t feel the need to carry. Look at the news. Its always the un-registered that is carrying for no good reason.

    • Douglas says:

      When the words “always” or “never” are spoken or written, I immediately classify the whole paragraph as lacking sufficient sophistication to reflect reality and not worth considering. And doubly so when followed by an obvious fabrication.

  3. Stanley Neil says:

    I work in a federal office, but the parking is public area. Most of the guys and some of the women here have a gun locked in their cars. To answer Tomi Y, carrying does not “promote” further violence, but has stopped violence at least twice within sight of my office. And it’s not always the innocent that get hurt. I’m law abiding, and do feel the need to carry.

  4. Jeremiah Hover says:

    Agreed, Stanley. In right to carry States, you can be assured that law-abiding citizens are not doing so to promote violence, but to stop it from ever occuring in the first place. Additional restrictions on firearms will not deter irrational/unstable people, or criminals from using guns. It will only punish those of us who enjoy our second amendment rights while not addressing the root cause of most gun violence…the under-resourced agencies tasked with removing illegal weapons from our streets.

  5. Mark McIntyre says:

    Neither a published company policy nor any signs that a company can post on their gates and doors will keep some nut from entering their facility with a gun. In fact, local, state, and federal laws do little against those most likely to use a firearm in a criminal manner. For the most part, those people are already criminals are have a wire loose. The restrictions and laws only keep law-abiding employees from being able to protect themselves. I personally have had to fire employees that I had a very real concern that they would show back up with a firearm, but I knew the company’s policy was absolutely no protection. That type of individual has no regard for policies or laws.

    I’ve recently had to conduct two rounds of RIFs, and the thought that one of the employees let go might have a pistol in their vehicle didn’t even cross my mind. It wouldn’t have bothered me had I known for a fact that they did all have pistols in their cars. I’ll go even further; since our company is so security-minded, if there was a shooting at the facility we would all try to rush out of the building only to be penned up in the fenced-in parking lot. I would hope that somebody actually would have something they could fight back with.

  6. John Roemer says:

    It is the unprepared, law abiding citizens that are the victims of the ‘no guns allowed’ corporate attitude. The attitude stems from a corporate desire to not address the root issues, but chose a simple response by issuing another meaningless written regulation. If business really thought that just posting a notice would solve a problem, why don’t banks merely post a notice ‘No Robberies Permited on This Premisis!’? Then they could save a lot of money by laying off their security guards. NOT! When someone ‘looses it’ I hope someone nearby has quick access to a gun. Have you ever tried to call 911? By the time you get through and a trained, armed policeman arrives on the scene, all he will need is a pen to write up the report of damage done and people killed.

  7. Chuck says:

    I was surprised to read that OK is proposing a law that is similar to MN. I am not aware of any problems as a result of the law here. I work with many individuals who live for the fall hunting seasons. Many work earlier shifts which allow them to hunt immediately after work without going home to get their gun. In my experience, having their gun in a locked vehicle has been a non-issue. I am more concerned about the charecters wandering the streets of Mpls with unlicensed guns than my co-workers, most of whom are NRA members and have been trained in gun safety.

  8. William DeSouza says:

    The law may now allow the right.
    But, the vast majority of states do not allow a firearm to be a loaded condition inside a vehicle period. I have lived and worked in states like CA, FL, MA, TX, NV, NY. In those states, all are required to be licensed. Firearms must be unloaded(breach, chamber, magazine housings open, and clear. The ammunition in either a locked glove box or trunk, not stored with the firearm or out in the open for all to see.

    On a companies private property, the company has the right to restrict the issue. They can do the following, by requiring notification of HR and Security (if they have one) to require employees to notify the company if they have it in their vehicle, also they must show the proper permit or license. The company should also require the employees to provide a non revocable insurance bond of 1 million dollars or more. As is with the Texas company I contracted with had in place for those who chose to carry. After all it is the company’s responsibility for each and every employees health and safety.

    I am a firearms owner, over 30 years with NRA membership, a Veteran and a for many years Faciltiy Mgr. with responsibility for the safety and security departments. I know there are many employees I would not trust on iota with a firearm, not even a butter knife. To many out there are not responsible enough in their basic life functions, never mind a loaded weapon in the vehicle.

    I have witnessed this both on the good and bad end result of an employee with a firearm on the company property.

    I do believe a company should have the right to regulate and restrict firearms on company property. For if ever the negative issue happens, you can be sure the employees will be lawyering up to sue at a pin drop.

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