Court Rejects ban on guns in workplace parking lots (OK)

[sierra]

By Lydell C. Bridgeford
June 15, 2009
In Ramsey Winch Inc. v. Henry, the 10th U.S. Circuit Court of Appeals unanimously ruled that workers in Oklahoma have the constitutional right to keep guns in their vehicles parked on their employers' parking lots.
The ruling reversed a District Court decision that allowed employers to prohibit workers from keeping legally owned firearms in their vehicles parked on company grounds.

Georgia, Florida, Alaska, Kentucky, Mississippi, Kansas and Minnesota have similar laws on their books, restricting employers from banning guns in their parking lots. State lawmakers in Alabama, Louisiana, Montana, Tennessee, Utah and Virginia have also considered similar legislation.

The 10th Circuit opinion and a series of states' laws regulating commercial property to recognize the Second Amendment — the right to keep and bear arms — means more employers will have to strike a balance between creating a safe work environment and recognizing workers' constitutional rights.

U.S. employers have seen fatal workplace shootings easily occur with guns that were stored in an employee's car in the parking lot. Still, others argue that fatal shootings in the workplace are not always carried out by individuals employed at the company.


OSHA's stance

The Oklahoma case originated because many employers in the state had polices forbidding workers from storing firearms in locked vehicles on company property. In 2004, Oklahoma lawmakers amended the state's firearms laws to restrict employers from banning guns in workplace parking lots.

Eventually, a group of employers filed a lawsuit arguing, in part, that the new laws violated workplace-safety regulations issued by the Occupational Health and Safety Administration. In 2007, the District Court ruled in favor of the employers.

"When you examine the appellate court's decision in the context of the record and the statute passed by the Oklahoma legislature, the court probably applied the law correctly," says James P. Anelli, a labor and employment attorney at the New Jersey-based law firm of LeClairRyan.

The employers that challenge the Oklahoma law didn't have enough evidence to preempt the Oklahoma statue, Anelli explains. The 10th Circuit concluded that, while there may be evidence of employee homicides in the workplace, based on the record before the court and the fact that OSHA, the federal agency in change of workplace safety standards, adopted a neutral stance requires the court to rule in favor of the state.

The judges wrote: "In recent years, OSHA has recognized workplace violence as a serious safety and health issue. To that end, OSHA has issued voluntary guidelines and recommendations for employers seeking to reduce the risk of workplace violence in at-risk industries." The court pointed out that "OSHA has not, however, promulgated any mandatory standards regarding workplace violence."

The 10th Circuit overstated OSHA's silence on the specific questions of employers banning guns in vehicles on parking lots, says Manesh Rath, an employment and labor attorney in the Washington, DC office of Keller and Heckman LLP.

OSHA, as a government entity, faces the unique problem of not violating the Second Amendment, which is a restriction on government powers, says Rath. "Employers, however, are not restricted by the amendment and should be entitled to exercise its right to ban firearms on its facility."

One obstacle that employers confront in mobilizing effective opposition to state legislation expanding gun laws is that the length of most state sessions, unlike Congress, is short, lasting about six months.

"The shorter sessions make it tough for all voices to be heard in the democratic process," Rath contends. "Also, any time you see employment laws being changed at the state legislative level, rather than through the courts, federal legislation or federal agencies, you will see a much bigger threat to employers' rights."

Although states have a right to regulate private property usage, some employers may argue that expanding firearm laws to include certain private property is a stretch, given that a private individual can take action on another person's property, thus limiting some control of the property by the owner.

If the courts continue to uphold states' laws restricting employers from banning guns in their parking lots, businesses may start to challenge the rulings on the grounds that their property rights are being restricted and the firearms laws stray from the standard state laws regulating property usage, such as building codes and easements, explains Anelli.


A patchwork of laws

As of yet, no state has indicated that employees can carry legally owned firearms into the workplace. An employer does not abdicate its obligation to provide a safe workplace simply because a state has passed a firearm statute that allows for parking lot possession.

HR and legal teams in states with pro-gun laws may need to rewrite employee handbooks to include firearms policies specifically created to reflect the reality that guns could be present in the parking lot, Anelli says. Businesses can also post signs around the entrances of office buildings stating that guns are prohibited within the facility.

"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," he adds. Employers still have to provide a safe workplace and intervene where appropriate.

Anelli also points out that an employer may have some leeway in circumventing parking lot gun laws. For example, if a worker exhibits violent behavior, then the employer can obtain a court order limiting the possession of firearms in parking lots, even when the local law allows them, he says.

That's a situation in which an employer has the continuing responsibility to ensure workplace safety. In addition, if an employee alleges that a co-worker has made a violent threat, then the employer has an obligation to investigate if the threat is real.

The courts may be more receptive to suspending that person's ability to carry a firearm in his or her vehicle if that individual is being investigated by the company for posing a threat.

Anelli urges employers, especially those that have offices in different states, to read carefully state laws permitting citizens to store and carry firearms on private property.

The Oklahoma statute did not single out employers' parking lots, but apply to certain property. Some states' statutes carve out schools and malls in their firearm laws.

In states without a statute banning employers from restricting firearms in the parking lot, an employer will have the right to regulate their property in the absence of any state statute.

Still, an employee might argue that he or she has a constitutional right to carry a firearm in a vehicle, particularly in a state where it's legal to carry a firearm in one's vehicle, Anelli says. Those situations will most likely be the subject of more cases down the road

Of course, in states that prohibit citizens from carrying a firearm in their vehicles, an employer would be free to enforce the law by refusing the worker onto the premises and contacting local authorities.

"This [10th Circuit ruling] is a victory for the millions of American workers who have been denied the right to protect themselves while commuting between their homes and their workplace," says Wayne LaPierre, executive vice president of the National Rifle Association.


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[joe817]

Good article. Thanks for posting!

[The Annoyed Man]

Hmmm... I thought OK had a parking lot law in place similar to the one under consideration (hopefully) in the Texas legislature special session. I didn't realize that they didn't actually have it yet.

[AEA]

I'm pretty sure OK passed the law last year. I am guessing thst some idiot employer wanted to be a test case and took it all the way to the Dist. Court!

Good to see a Dist Court siding on the correct side........the LAW!

[fickman]

Yep - the NRA has had a boycott on Conoco for years now. I actually changed filling stations to go along with it. Conoco was one of the companies suing to have the parking lot law overturned.

[A-R]

Great article, thanks for posting.

[ClarkLZeuss]

employers will have to strike a balance between creating a safe work environment and recognizing workers' constitutional rights

I contend that there is no contradiction!

[bryang]

Thanks for posting a very interesting article.

-geo