Passage of TX Senate Bill 321

[Charles L. Cotton]

Would the same apply where Corp A contracts Corp B to provide X services where Corp A then leases several floors in it's facility to Corp B for Corp B to run it's local business (which includes providing similar ervices to companies other than Corp A using the leased floors)? Or do the policies of Corp A preventing any person on site from possessing weapons on site (including parking lots in vehicles) override SB321 for the employees of Corp B?

Sorry, I can't answer that without a lot more detail. If Corp. B controls the work of it's employees, sets the work hours, provides tools, and all Corp. A does is contract with Corp. B to get the job done, then Corp. A is likely not an employer. However, this is just a very general overview and specific facts could change everything.

Chas.

[Keith B]

Would the same apply where Corp A contracts Corp B to provide X services where Corp A then leases several floors in it's facility to Corp B for Corp B to run it's local business (which includes providing similar ervices to companies other than Corp A using the leased floors)? Or do the policies of Corp A preventing any person on site from possessing weapons on site (including parking lots in vehicles) override SB321 for the employees of Corp B?

Sorry, I can't answer that without a lot more detail. If Corp. B controls the work of it's employees, sets the work hours, provides tools, and all Corp. A does is contract with Corp. B to get the job done, then Corp. A is likely not an employer. However, this is just a very general overview and specific facts could change everything.

Chas.

The dictionary defines 'Employee' as "a person working for another person or a business firm for pay". So, even if a person is contracted to perform work for the company in-lieu of a company employee on a regular basis, then I would say they constitute being a 'contracted for employee' and are covered. My company has a lot of these types of employees that work for us and are hired through temporary agencies. We consider these types of workers as employees and they must follow the rules just as any direct company employee does. The 'Contractors' that I would consider who would not be covered are those contracted for services like electricians, plumbers, maintenance workers, etc that are actually only there on calls for service, etc.

[Iunnrais]

Hi Keith,

It's a little more complicated than that. Company B doesn't provide staff (aside from the odd consultant/pm for joint projects) in lieu of staff, it provides partitioned access to Company A to infrastructure owned by Company B. I sent a PM with some details to Charles.

[Keith B]

Hi Keith,

It's a little more complicated than that. Company B doesn't provide staff (aside from the odd consultant/pm for joint projects) in lieu of staff, it provides partitioned access to Company A to infrastructure owned by Company B. I sent a PM with some details to Charles.

Yeah, there may be some of those convoluted types of arangements like that which are really hard to determine how it affects your ability to keep the firearm in the car.

[kjolly]

come September 1st need to exercise this new right with caution. Texas is an "at will" state which means a company can terminate you at their descretion and does not need a reason. My office in the HR manual claims to have the right to search your vehicle and if refused they can fire you. The way this works in real life is you cannot be searched without a warrant however they can fire you for any reason. So if you stand on your legal grounds is fine but you might need to go job hunting. Our parking garage is not posted.

[Iunnrais]

Agreed. Just double checked our employee handbook and it is deliberately vague on what constitutes an offense.

"To ensure orderly operations and provide the best possible work environment, <XYZ> expects employees to follow rules of conduct that will protect the interests and safety of all employees and the organization.

It is not possible to list all forms of behavior that are considered unacceptable in the workplace.

Although employment with <XYZ> is based on mutual consent, both the employee and the Company have the right to terminate employment at-will, with or without cause or advance notice."

[OldCannon]

Agreed. Just double checked our employee handbook and it is deliberately vague on what constitutes an offense.

"To ensure orderly operations and provide the best possible work environment, <XYZ> expects employees to follow rules of conduct that will protect the interests and safety of all employees and the organization.

It is not possible to list all forms of behavior that are considered unacceptable in the workplace.

Although employment with <XYZ> is based on mutual consent, both the employee and the Company have the right to terminate employment at-will, with or without cause or advance notice."

Possibly, my understanding it that the law is meant to establish that your vehicle is your private domain like your home. It is legally no different than them searching your home. If you get fired for it, I'm sure you can take it to court for wrongful termination and likely win, but you'll still be out of a job.

[i8godzilla]

If I really wanted to be a jerk, as the owner of a corporation, I could start another corporation (with a different address/P.O. Box) that would then employ all of my current employees. The new corporation would then contract labor to my original corporation. All employees at the original site would then be contractors who do not benefit under the new law.

It would be easier to lease the parking lot to a new company. That company could then post the parking lot 30.06. Employees could be required to buy a parking pass from the new company if they wished to park there. The employer could even reimburse the employees' parking fees.

Dare you to bet me that this will not happen....................

That wouldn't work for at least two reasons. First, TPC §30.06 doesn't apply to a CHL unless they are carrying pursuant to their CHL. Since having a handgun in your car isn't illegal (Motorist Protection Act), you would not be carrying pursuant to your CHL. Also, a person could put the handgun in the truck and it would not be "on or about [their] person" so they wouldn't be "carrying."

Chas.

Forgive me if this sounds argumentative, that is not my intention.

What happens during a traffic stop? Do you not need to provide your CHL when asked for you DL? If you are carrying under the protection of the MPA, what authority does a LEO have to temporarily confiscate your weapon? If asked if you have a weapon, can you simply state, "that is not related to this traffic stop"? We have heard stories about LEOs dis-arming CHLs during traffic stops. I know the law allows the LEO to disarm for 'safety' reasons, however, this applies to carrying with a CHL. What about MPA?

Thanks!

[C-dub]

Agreed. Just double checked our employee handbook and it is deliberately vague on what constitutes an offense.

"To ensure orderly operations and provide the best possible work environment, <XYZ> expects employees to follow rules of conduct that will protect the interests and safety of all employees and the organization.

It is not possible to list all forms of behavior that are considered unacceptable in the workplace.

Although employment with <XYZ> is based on mutual consent, both the employee and the Company have the right to terminate employment at-will, with or without cause or advance notice."

Possibly, my understanding it that the law is meant to establish that your vehicle is your private domain like your home. It is legally no different than them searching your home. If you get fired for it, I'm sure you can take it to court for wrongful termination and likely win, but you'll still be out of a job.

I don't think this is correct. We now have the right to protect our car like it was our home, but for purposes of a search by a company, not a law enforcement agency, our car or truck doesn't have those same rights. An RV like a trailer, motorhome, or camper mounted onto a pickup is given those same protections a home is from searches. I don't remember, someone else might, but no matter what we have signed as a condition of employment, I don't think an employer can search an RV and I think if they tried to terminate someone because they were not allowed to they would lose in court if it was taken that far.

So, I would think the thing to do if my company wants to search my car for "stolen property" after September 1, 2011, would be to let them and let them find the gun. This way if they do terminate me later for nothing I can point to this as a reason. The only times I'm aware of my company terminating someone for no reason is during the first 90 days where it is spelled out in our employment contracts that this can happen. This usually happens because we find out that their personality doesn't mesh with coworkers or just isn't suited for this type of work. Every other time I can think of they have terminated for a reason and explained that reason to the person being terminated. This is especially useful when terminating someone in a protected class so they will not attempt to sue us for wrongful termination.

I think a company that doesn't give a reason for termination after discovering the gun will have a tough time proving it wasn't for that reason if taken to court. They will probably start scrambling for other reasons that may not be so easy to find.

[Charles L. Cotton]

You're not argumentative at all. At first blush, what I posted appears to conflict with Tex. Gov't Code §411.205, but there is no conflict. In order for Tex. Penal Code §30.06 to apply to a person, they must be carrying a handgun under the authority of their CHL. However, Gov't Code §411.205 imposes a duty to display a license on every armed CHL, regardless whether they are carrying under the authority of their licenses. Therefore, it would apply in our cars, homes, sporting events, etc.

Chas.

Sec. 411.205. REQUIREMENT TO DISPLAY LICENSE. If a license holder is carrying a handgun on or about the license holder's person when a magistrate or a peace officer demands that the license holder display identification, the license holder shall display both the license holder's driver's license or identification certificate issued by the department and the license holder's handgun license.

If I really wanted to be a jerk, as the owner of a corporation, I could start another corporation (with a different address/P.O. Box) that would then employ all of my current employees. The new corporation would then contract labor to my original corporation. All employees at the original site would then be contractors who do not benefit under the new law.

It would be easier to lease the parking lot to a new company. That company could then post the parking lot 30.06. Employees could be required to buy a parking pass from the new company if they wished to park there. The employer could even reimburse the employees' parking fees.

Dare you to bet me that this will not happen....................

That wouldn't work for at least two reasons. First, TPC §30.06 doesn't apply to a CHL unless they are carrying pursuant to their CHL. Since having a handgun in your car isn't illegal (Motorist Protection Act), you would not be carrying pursuant to your CHL. Also, a person could put the handgun in the truck and it would not be "on or about [their] person" so they wouldn't be "carrying."

Chas.

Forgive me if this sounds argumentative, that is not my intention.

What happens during a traffic stop? Do you not need to provide your CHL when asked for you DL? If you are carrying under the protection of the MPA, what authority does a LEO have to temporarily confiscate your weapon? If asked if you have a weapon, can you simply state, "that is not related to this traffic stop"? We have heard stories about LEOs dis-arming CHLs during traffic stops. I know the law allows the LEO to disarm for 'safety' reasons, however, this applies to carrying with a CHL. What about MPA?

Thanks!

[C-dub]

You're not argumentative at all. At first blush, what I posted appears to conflict with Tex. Gov't Code §411.205, but there is no conflict. In order for Tex. Penal Code §30.06 to apply to a person, they must be carrying a handgun under the authority of their CHL. However, Gov't Code §411.205 imposes a duty to display our license on every armed CHL, regardless whether they are carrying under the authority of our licenses. Therefore, it would apply in our cars, homes, sporting events, etc.

Chas.

Thanks Charles.

I think this also settles my contention that a CHL holder cannot legally have a gun in their car without their CHL and claim they are carrying under the authority of the MPA. Doesn't it?

[KahNManN]

My insructor explained that CHL holders are basically held to a higher standard and have to comply with more laws & regulations than non-CHL holders. Reading Sec. 411.205. REQUIREMENT TO DISPLAY LICENSE tells me that if you get pulled over and have your gun within reach in your car, you'd better have your CHL on you as the firearm would be "on or about" your person. You might be okay though, if it's in the trunk - don't know if that's far enough away to be considered "not about" your person though...

I'm pretty careful - I probably won't have my gun with me without my license.

[FNguy]

If I really wanted to be a jerk, as the owner of a corporation, I could start another corporation (with a different address/P.O. Box) that would then employ all of my current employees. The new corporation would then contract labor to my original corporation. All employees at the original site would then be contractors who do not benefit under the new law.

Such a persons would not be "contract personnel," they would be "leased employees" and the employer would be subject to SB321.

Chas.

Is that in Texas law somewhere? For example, the security guards at the chemical plants usually are employed by a guard service that places them at the plant. Does that mean they're also employees of the plant and not contract personnel?

[FNguy]

Quite a few other states have passed parking lot laws over the past 3-4 years and we haven't heard of issues in those locations. I doubt many, if any, companies will go through that much trouble to try and find a loophole in the law to work around it. Usually after the initial fight, they just go along with the ruling.

I agree it will be rare. Probably as rare as companies doing random searches of employees' cars.

[C-dub]

If I really wanted to be a jerk, as the owner of a corporation, I could start another corporation (with a different address/P.O. Box) that would then employ all of my current employees. The new corporation would then contract labor to my original corporation. All employees at the original site would then be contractors who do not benefit under the new law.

Such a persons would not be "contract personnel," they would be "leased employees" and the employer would be subject to SB321.

Chas.

Is that in Texas law somewhere? For example, the security guards at the chemical plants usually are employed by a guard service that places them at the plant. Does that mean they're also employees of the plant and not contract personnel?

I'd have to look through some of the e-mails from my company's HR department, but I think that is the case. Many court decisions regarding things like FMLA and overtime pay have gone against the employer because they did not think they were the person's actual employer since they were contracted.