Guns-at-Work Laws Headed West

By Dunn, Carney, Allen, Higgins & Tongue

Several states have enacted so-called “guns-at-work” laws which generally prohibit employers from imposing policies that prevent employees from storing firearms in locked vehicles on company property.  These states include Florida, Georgia, Mississippi, Louisiana, Kentucky, Minnesota, Kansas, Oklahoma and, as of September 30, 2009, Arizona.  In exchange, employers receive statutory immunity from certain tort claims.

Why the New Focus on Gun-at-Work Laws

The primary rationale for these laws expressed by state legislatures is that allowing businesses to prohibit firearms on their property effectively keeps gun owners from exercising the Second Amendment right to have a firearm available for self defense. 

The concern by state legislatures for their citizens’ Second Amendment rights was heightened following the US Supreme Court’s June 26, 2008, decision in District of Columbia v. Heller confirming that the Second Amendment protects an individual’s right to possess a firearm for private use, as opposed to providing only a collective right applying to state militias.  Other concerns include accommodation of employees who hunt or participate in shooting sports before or after work.

Recent Challenges

The Oklahoma guns-at-work law was recently tested, but survived federal appellate court scrutiny.  The primary challenge was whether the law was preempted by OSHA’s “general duty clause”.  This clause requires employers to furnish each employee a place of employment which is free from recognized hazards that are causing or are likely to cause death or serious physical harm.  In upholding Oklahoma’s guns-at-work law, the 10th Circuit Court of Appeals found the absence of any specific OSHA standard on workplace violence significant in refuting the notion that gun-related workplace violence was a “recognized hazard” under OSHA’s general duty clause.

The Rules in Oregon

At this time, there is no guns-at-work legislation pending in Oregon.  Private sector Oregon employers are generally free to impose policies prohibiting the possession of firearms on their property.

However, the rule for certain public sector employers may be different.  In November 2007, a Jackson County school district’s policy prohibiting teachers from carrying firearms in school was upheld, even though a state law allows licensed gun owners to generally carry concealed weapons in public places.  The court’s decision turned largely on the difference between a local ordinance, which may not regulate firearms under Oregon’s preemption statute, and a school district policy attempting to accomplish the same purpose.  The trial court’s decision was appealed to the Oregon Court of Appeals, and, at this time, we are still awaiting the court’s decision.  We will provide an update when a decision is rendered by the Court of Appeals.  In the meantime, Oregon employers may want to review their employee handbooks and other policies to determine whether to include or delete prohibitions of firearms on company property after consideration of various factors, including the particular culture of their company, the co
mpany’s geographic location, and employee and customer sentiment on these issues.

Thanks to Dan Drazan for writing this Enews.  If you have any questions about these issues, please contact Dan or Tamsen Leachman.

Also — Don’t forget to register for the September Employment Seminar:

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Examining the organizational impact of serious employee misconduct and the importance of a strategic response.

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