Rights of Employers OUTSIDE of company 'premises'

[dicion]

Hey all, new to the site. Applied for my CHL last month.

I've been reading these forums top to bottom, and the laws backwards and forwards, and feel I have a good grasp on them, however, I have some questions.

Being that I already wrote the AG of the state of Texas a letter, hoping he would reply (he hasn't), I'll just post the letter here.
I would appreciate any/all input, even if you have no idea on what the answer might be.

Code: Select all

Dear Mr. Attorney General,

I know you recieve many questions regarding Texas CHL laws, and 99% of them can be answered by simply referring  people to the appropriate section of the law regarding such matters. I have read all CHL-Related laws multiple  times, and still am unable to determine the answer I am seeking. I was hoping you could give me an answer, or, if  one is not available, then at least your opinion as to how a court of law would most likely interpret the law in  this case.

First, let me detail my profession to you, as this issue is in direct regard to what I do for a living. I work  for a private company that does work under government contracts. Specifically, I build, install, and maintain  traffic signals for government agencies in the city of <REMOVED> Texas.

Most of my job is spent on the road, away from any sort of office. I frequently work in public areas, in public  streets, at public intersections, at all hours of the day and night. Frequently, I am required to work alone (for  example, if an intersection malfunctions in the middle of the night, and I am the person on-call, I am the first  responder to the intersection.) Due to this, and concerns about my safety during these happenings, I decided to persue a Texas CHL.

I understand the law, regarding Employer-Employee relations as far as Concealed handgun license holders is concerned is as follows:

GC 9411.203. RIGHTS OF EMPLOYERS. This subchapter does not
prevent or otherwise limit the right of a public or private employer to
prohibit persons who are licensed under this subchapter from carrying
a concealed handgun on the premises of the business.

Which basically states that employers can prevent employees from carrying on their premises via company policy.  In this section, however, 'premises' is not defined. However, in other sections of concealed handgun related  laws, Premises is defined as the following:

PC 46.03
(a2) For purposes of this section, "premises" includes real property
and a recreational vehicle that is being used as living quarters, regardless
of whether that use is temporary or permanent. In this subsection,
"recreational vehicle" means a motor vehicle primarily designed as
temporary living quarters or a vehicle that contains temporary living
quarters and is designed to be towed by a motor vehicle. The term
includes a travel trailer, camping trailer, truck camper, motor home,
and horse trailer with living quarters.

and

PC 46.035
(f)(3) "Premises" means a building or a portion of a building. The
term does not include any public or private driveway, street, sidewalk
or walkway, parking lot, parking garage, or other parking area.

Furthermore, the upcoming HB1301 aims at defining Premises in that exact section as identical to Section
46.035(f)(3), Penal Code listed above.

In my mind, this means that any Judge or Jury would most likely take the meaning of 'premises' as defined in  Section 46.035(f)(3), Penal Code if it were to arise in a CHL-related manner in a court of law, before HB1301 passes, if it does.

Now, on to my issue. After mentioning to my employer that I was pursuing a CHL for reasons of personal security,  I was promptly met with much resistance, which included a company policy that stated that 'Possession of  Firearms... on company property or at company-sponsored events' was against company policy, and could result in  disciplinary action. "Fine" I told them, "I will not carry on company property". Which, according to GC 9411.203  above was completely within their right to say.

However, they then proceeded to continue to tell me, verbally, that carrying while driving a company truck, or  while working at a work site, it was also against policy. Their point of view was that the company truck  construed 'company property' and also that 'they did not believe that any of our customers would appreciate or  approve of' myself carrying a concealed weapon.

Now, here is where it gets tricky. My company also charges me, with direct debit from my paycheck, $30 a pay  period (every 2 weeks) for use of the company vehicle. I drive this vehicle home from work every day. This $30  fee is supposed to cover 'personal use' of the vehicle. Eg, the driving to, and from work, and for example,  driving to/from lunch breaks while on the job. To me, this constitutes some sort of 'rental' or 'shared'  arrangement of the vehicle, since over the vehicle's expected lifetime, which I estimate as 5-7 years, I will  have paid more then 1/4 of the vehicle's purchase price for this 'personal use' of said vehicle. I am wondering  how or if the law or a judge would view this as 100% 'company property' in this case, or if they would agree,  with me, in saying that I had at least some vested interest in the vehicle.

Also, In addition to the above, Texas law states that:

PC W6.02. UNLAWFUL CARRYING WEAPONS. (a) A person commits an offense
if the person intentionally, knowingly, or recklessly carries on or
about his or her person a handgun, illegal knife, or club if the
person is not:
(1) on the person's own premises or premises under the person's
control; or
(2) inside of or directly en route to a motor vehicle that is owned
by the person or under the person's control.

Basically stating that a vehicle merely being 'under a person's control' is sufficient to allow a handgun to be carried within that vehicle. And this is not even related to CHL carry, but rather carry by an un-licensed person.

So, even if it was considered 100% a company vehicle, since the definition of 'premises' does not include a vehicle, and the vehicle was fully under my control, I read this to mean that I am fully, legally, allowed to carry a concealed weapon in my company vehicle, and that employer policy has no jurisdiction on this matter while outside the premises of the company.

Also, In regard to their view of the customers 'not approving of' my carrying a concealed weapon. If any business wishes persons to refrain from carrying a concealed weapon in their buildings, it is as simple as posting the proper signs in compliance with section 30.06 of the Texas Penal Code, or, for buildings that require some sort of access agreement, placing a written notice compliant with section 30.06 in the notice would also prevent persons from  entering with a concealed handgun.

In closing, I would like to say that I also understand their unspoken concern of bringing discredit, scorn, or negative public opinion to the company, if something were to happen that required myself to have to use my concealed handgun to prevent the application of deadly force upon myself or someone else. However, I also ask, what discredit or scorn would be brought against the company if something did happen, to myself or someone else, that could possibly have been prevented or stopped, had I been allowed to carry my handgun fully licensed and legally, during the course of my job? To me, that answer is a no-brainer. I also understand that Texas is an employment at-will state, and that my company could easily fire me for another reason other then my opposition to their policy. However, I feel that these are questions that need to be answered.

Please, feel free to contact me regarding any questions of clarifications required in the above text. I tried to be as clear and concise as possible, but as is the issue with all legal-related questions, nothing is ever cut-and-dry as we would like it to be.

Mr. Attorney General, I thank you for your time in reading my letter, and wish you a pleasant day.

I know it's a reader... but It's something that directly affects me, and I would like to have at least some sort of opinion on it from someone who knows the law better then myself.

Thanks

[dicion]

Also, before anyone says anything, Yes, I know that I did invite the opposition by mentioning it to my employer, and would probably have been better served by not mentioning it at all.

However, Many of my co-workers have recently been getting CHL's, and everyone in the office is generally pro 2A, I really did not actually think it would be a problem, until it came up in casual conversation (about best carry guns, the current ammunition shortage, etc) The problem does not actually lie with my boss, or even his boss. We are an international company, and company policy is set by persons much higher then themselves.

So my manager said "Well, I think that's actually against company policy", so, being the prudent person I am, I read the policy, which didn't really answer anything to me, so (another mistake on my part), I emailed corporate about the policy, and it's relation to CHL. Thats when the storm started pretty much.

[seamusTX]

That's a good letter; and as someone who writes for a living, I do not say so casually.

It's quite clear in Texas law that an employer can fire an employee for any or no reason, other than sex, race, religion, age, national origin, or disability. In the case of no reason, they may have to pay a pittance in unemployment. Most employers consider this the cost of doing business when they want to get rid of (in their eyes) a troublemaker.

This is why pizza delivery men get fired for defending themselves.

IMHO, you would not be prosecuted for lawfully carrying a handgun in a company-owned vehicle or on duty when you have a CHL. However, I am not a lawyer, and my opinion has no weight.

I don't think the Attorney General will respond in any meaningful way to a letter from a private citizen. It's possible that your state senator or representative can get an official response.

- Jim

[Keith B]

First off, welcome to the forum.

I think we could have saved you some trouble in writing.

Basically, your employer can fire you for anything. That is the bottom line for employment.

As for legally binding, a 30.06 sign of course prohibits you from carrying in a location unless improperly posted somewhere that can't prohibit carry. Also, per your letter, they have now given you oral notice that you cannot carry a firearm. You are now legally bound to not carry while performing your duties as their employee. Also, IMO if you are using their company vehicle, whether you pay or not, they can restrict you from carrying.

I am not a lawyer, but that is pretty well the skinny as I see it. Unfortunately I think they have you over a barrel.

Jim beat me to it, but basically said the same thing. I am sure others will chime in here.

[dicion]

I understand what you are saying, and Yes, I know that I would not get prosecuted for doing so.

Also, in reference to the notification, Yes, they did give me significant notification under 30.06 that I cannot carry on their 'premises' which I admitted that I would not do. Since, however, a vehicle is not defined as 'premises', their notification should not apply to any vehicle I am driving.

I guess I did not phrase my question properly, IF my employer fired me, and specifically stated that as a reason (which they would be dumb to do, since they don't have to state a reason), would there possibly be a case against unlawful termination, since Texas CHL law only limits employers right to prohibit CHL Carry on their 'premises'? There is no mention of any sort of 'on the clock' or 'being paid' or simply 'under the employ' category of prohibition in the law.

My point is, granted that an employer can fire you for anything with no reason, can they fire you WITH a reason, and that reason being Lawful CHL Carry against company policy outside company premises.

Does that make sense?

In other words, if they wanted to fire me for this reason, they would have to fire me for NO reason, or another reason, or risk a lawsuit?

My goal here is not to get fired, but rather to rally against the current policy, and get it changed by showing that the policy is attempting to cover an area that it cannot, under law, in the state of Texas. I'm not planning on violating it, and as I said, my office, and my boss are very 2A friendly. He does not think I am being a 'troublemaker' in this issue, and is concerned about it himself, since someone doing the exact same job I am doing was assaulted at night, while they were alone, during the performance of their duties before. (They ended up stabbing their assaulter with a flat-blade screwdriver, the only weapon at their disposal at the time.)

The policy currently reads:

"The possession of weapons, including ... , firearms, ... is prohibited..."

I would recommend they change it to:

"The unlawful possession of weapons, including ... , firearms, ... is prohibited..."

And Seamus, thank you for the compliment on the writing. I am not a writer, or anything close, so that letter took me about 6 or so hours until I thought it was 'just right' :) I'm nowhere near that good at expressing my ideas on say, a forum ;)

[srothstein]

I am not a lawyer, so take this for worth what you paid, but I don't think you would have a case against the employer. Texas has very strong laws on at-will employment. This means that any employer can fire any employee for almost any reason. Likewise, you can also quit for the same reasons. There are exceptions, such as private employment contracts, negotiated collective bargaining contracts, and civil service (where it applies).

The only reasons I know of where an employer can be successfully sued for wrongful termination are where the listed cause (or the actual cause if it is not what was listed) is a violation of public policy. Public policy can be defined as laws that specify reasons a person cannot be fired. Basically, as I understand it, there are about 7 protected classes that it is illegal to fire a person for being a member of. These are race, gender, national origin, ethnicity, age (if over 40), religion, or physical disability. Another class would be retaliation for reporting violations of the law (whistle-blowing).

So, we are down to the point of you can be fired but not prosecuted. I think the question asked in another thread was "fired or dead?" That is the choice you need to make. Along with concealed means concealed and keeping it off the actual business premises, and you have all of the points you need to consider, in my opinion.

[seamusTX]

I agree with Steve.

Suing an employer for lawful termination is a losing game unless the employer stated in no uncertain terms that they were firing you for one of the prohibited reasons. Even if you could be reinstated, very few people can go for long without violating company policy or failing to meet some performance goal, if that's what the employer wants.

(I knew someone who was fired and reinstated for such a case. The employer put him to work shredding old records in a basement room. He eventually quit.)

Your choice is whether or not to carry and risk being fired for violating company policy.

If you choose to carry, I would recommend having zero debt and several months' pay in the bank -- or maybe your spouse has a good income.

- Jim

[jimlongley]

I am not a lawyer, so take this for worth what you paid, but I don't think you would have a case against the employer. Texas has very strong laws on at-will employment. This means that any employer can fire any employee for almost any reason. Likewise, you can also quit for the same reasons. There are exceptions, such as private employment contracts, negotiated collective bargaining contracts, and civil service (where it applies).

The only reasons I know of where an employer can be successfully sued for wrongful termination are where the listed cause (or the actual cause if it is not what was listed) is a violation of public policy. Public policy can be defined as laws that specify reasons a person cannot be fired. Basically, as I understand it, there are about 7 protected classes that it is illegal to fire a person for being a member of. These are race, gender, national origin, ethnicity, age (if over 40), religion, or physical disability. Another class would be retaliation for reporting violations of the law (whistle-blowing).

So, we are down to the point of you can be fired but not prosecuted. I think the question asked in another thread was "fired or dead?" That is the choice you need to make. Along with concealed means concealed and keeping it off the actual business premises, and you have all of the points you need to consider, in my opinion.

And of course there was my ex-employer who fired me for having an on the job accident, but of course that would be illegal, so first they moved me out of the job where I was doing quite well, into which I had been promoted from technical trainer, and into a couple of other jobs, and then dumped me with a letter stating that we had explored my (skills and jobs available, etc.) but there was no room in the company for me anymore, etc.

Of course I was fired the day after workman's comp released me for full duty, but try proving it.

[bdickens]

I suppose you've learned your lesson: Don't ask if you don't want to know. Some things are better left alone.

[dac1842]

I read your letter, I have not read all responses so please forgive me If I repeat what others have addressed.
Our company also considers company vehicles as company property. This has been upheld in many arbitration hearings. I am the discipline officer for our company which is very unioinized. The union members when disciplined have the right of appeal to a neutral aribtrator who in most cases is an attorney. The position that the company vehicle is company property has solid basis. In fact if you read the parking lot bill currently making its way through the House it is very specific in that it pertains to privately owned vehicles and not to vehicles owned or leased by the employer.

You cannot be prosecuted for carrying in the company vehicle as far as I see ( I am no attorney) but you can be terminated. You have to weigh the risk/benefit of your decision. The arguement is made that if you keep it concealed and keep your mouth shut you probably would be ok. Before making that decision you might want to understand the company as the owner of the vehicle has the right to search the vehicle without cause.

I realize you have a CHL. However under the current laws if the employeer permits you to carry or ignores the fact you do and you during the scope of your employment use the weapon to defend yourself and you hit an innocent bystander, the employer would be sued. SB 730 exempts the employer from liability to a point (Charles correct me if I am wrong here).

As much of a 2nd amendment supporter as I am, and as a CHL holder, if I owned a company I would really have to think long and hard about allowing my employees to carry while on my clock. And my hesitation is soley based on the liability that a jury may find I have by allowing you to carry or knowing you carry and not taking actions to prohibit it. As an employer I would not be willing to risk my company and the jobs of all those that work for me to support ones right to carry.

Having said all that, if the law exempted me from liability, I would have no issue with allowing it. But we live in a lawsuit happy society, fueled by lawyers looking for any way possible to sue anyone to make as much money as they can, what is right, what is wrong has no bearing on their actions. ( NOT ALL LAWYERS ARE THAT WAY)

Hopefully SB 730 will pass the House and make it's way to the Governors mansion for his autograph.

[Keith B]

Thanks for the info dac1842.

IANAL either, but knowing that the company vehicle is considered legally company property, and that dicion has now been given verbal notice (legally 30.06) by his boss, I am thinking he could be prosecuted for carrying in the vehicle. While there is no test case that I am aware of to set precedence, we may not really know how it would be ruled, but I think all of the definitions apply to the company owned vehicle too.

Let the debate begin!!

[USA1]

dont ask...dont tell

[dac1842]

USA 1, shouldn't our creed be, "Don't tell so they don't ask"! ?

[dicion]

Thank you everyone for your responses. You have definately helped clarify what could be interpreted as law.

The 'vehicle as company property' part though is definately interesting. I believe in the wording of 30.06, it says it can only apply to 'premises', and that premises only counted as a building, or part of a building, so in that case, wouldn't 30.06 not even apply to vehicles, even if they were legally company, or someone else's property?

You'd think that if that were true, then you could be prosecuted for carrying in a vehicle owned by a car rental company, if the rental company had a 30.06 sign at their office you rented it from, since the vehicle is owned by the company, and the company gave effective 30.06 notification.

Also, in other locations in the law, it states that simply being in control of a vehicle is sufficient enough to carry in it, without a CHL. Since 30.06 only applies to CHL holders, I would take this to mean that a vehicle is definately not considered a premises of a company. Either that, or Non-CHL holders could legally carry in such a vehicle, whereas CHL holders could not (I doubt this is true)

[seamusTX]

IANAL either, but knowing that the company vehicle is considered legally company property, and that dicion has now been given verbal notice (legally 30.06) by his boss, I am thinking he could be prosecuted for carrying in the vehicle.

PC 30.06 refers to "property," and we can look at 30.05 and see that property includes vehicles. Therefore it is theoretically possible to prosecute someone for carrying in a vehicle after receiving oral notice that it was forbidden.

IMHO, no DA would bother to prosecute such a case of a victimless misdemeanor. It is too difficult to prove beyond a reasonable doubt that oral notice was given.

Also, employers do not want the kind of expense, publicity, and paper trail that comes with a criminal case, having their employees and records subpoenaed, and so forth.

We've all heard many cases of pizza drivers being fired, but they are never prosecuted if they possess their weapon legally.

- Jim