Employers up in arms over ‘bring your gun to work’ laws

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There’s been a growing trend among states to enact legislation making it illegal for employers to prohibit their employees from bringing their licensed guns to the job site and storing them in their cars.

Florida, for instance, enacted the Preservation and Protection of the Right to Keep and Bear Arms in Motor Vehicles Act of 2008 — more commonly known as the “Bring Your Gun to Work Law” — on July 1, 2008. To date, at least nine states, including Alaska, Georgia, Kansas, Louisiana, Minnesota, and Mississippi, have passed legislation barring employers from prohibiting licensed gun owners from storing guns in their vehicles while at work. Other states, including Wisconsin, have considered and rejected such measures.

The trend is said to have begun in Oklahoma. In October 2002, following an employee drug overdose, an employer enlisted trained dogs to sniff out drugs and firearms in its parking lot.

The dogs found no drugs, but they did find firearms belonging to four employees and eight employees of a subcontractor.

This likely came as no surprise to the employer, as hunting season was just underway and several of the employees had planned to go hunting immediately after their shifts ended.

Nevertheless, the presence of the guns violated the employer’s policy, and the employees were fired. Eight of the terminated employees sued for wrongful termination, and lost. Less than two years later, in 2004, Oklahoma became the second state to pass gun-at-work legislation, with Minnesota preceding it by just a few months.

While Oklahoma sparked other states, and the NRA, into action, the Oklahoma legislation itself did not get off the ground until last month. A temporary restraining order was issued in October 2004, preventing the legislation from ever taking effect.

In June 2005, in an attempt to allay employers’ opposition to the measure, Oklahoma enacted further legislation that exempted employers from legal liability for injuries on the work site due to the use of a gun stored in an employee’s vehicle. Despite this, a permanent injunction was granted in October 2007, as the U.S. District Court of the Northern District of Oklahoma held that the Oklahoma law conflicted with, and was legally pre-empted by, the 1970 Occupational Health and Safety Act. Just last month, the Tenth Circuit reversed the district court’s decision.

Detractors of gun-at-work statutes point to a handful of unfortunate incidents that have followed passage of these laws, including a June 25, 2008 incident in Kentucky where an employee, after fighting with a co-worker and being reprimanded by his supervisor for talking on his cell phone while working and not wearing his safety goggles, shot and killed five co-workers before turning his gun on himself.

The employee, 25-year-old Wesley Neal Higdon, reportedly had been ordered to leave by his supervisor, when he went to the parking lot, retrieved his gun from the glove compartment of his car, and returned to shoot his supervisor, the co-worker with whom he quarreled, and four other employees who were in the break room (one survived). Kentucky had passed a gun-at-work law in 2005.

Proponents of gun-at-work measures, on the other hand, argue that an employee unstable enough to snap during a worksite argument to the point of becoming deadly violent is not going to be dissuaded or abide by an employer policy barring firearms. Thus, the argument goes, absent these legislative protections, only disgruntled, disturbed, and non-law-abiding employees would have access to firearms at work. Advocates of the gun measures also argue that employees, as a result of employer’s restrictions on guns at work, are not able to carry guns during commutes to and from work.

To make the statutes more palatable for employers concerned about liability for not ensuring safety in the workplace, legislators have included express prohibitions exempting employers from civil liability for injuries involving a firearm stored in a locked motor vehicle.

Nevertheless, employers and other organizations in Florida and Oklahoma have brought lawsuits challenging the new gun laws.

In addition to challenging the measures in court, employers have been citing exceptions to the laws. The Disney Company, for instance, asserts that Disney World is exempt from Florida’s gun-at-work law, due to an exemption for companies that “use, store or transport explosives.” A security guard terminated in July 2008, shortly after Florida’s law went into effect, has brought suit, challenging Disney’s position.

In Wisconsin, gun-at-work legislation was introduced in 2006, as part of a larger concealed weapon bill. The bill, SB 403/AB 763, allowed a licensee to carry a concealed weapon, with certain restrictions, and provided for licensing procedures. The bill contained a “private employer restriction” that allowed employers to decide whether it would allow or prohibit employees from carrying a concealed weapon during the course of employment, but it expressly prohibited a private employer from disallowing a licensed gun owner from keeping a concealed weapon in the licensee’s own motor vehicle.

The bill also contained an immunity provision for employers that provided that “[a]n employer that permits any of its employees to carry a concealed weapon … is immune from any liability arising from its decision to do so, if done in good faith.”

The bill passed both the senate and assembly, but was vetoed by Gov. Jim Doyle.

As more of the cases wind through the court systems, it will be interesting to see how the courts balance the Second Amendment rights of gun owners and the property rights of employers in being able to control what is brought on to their premises.