Employee Right to Bear Arms Under State Law

By James B. Thelen Dec 1, 2009
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December CoverIt is a recognized principle that citizens have the right to “bear arms” under the U.S. Constitution and many state constitutions. As a practical matter, this right is of no real consequence in the workplace, where employers are typically free under federal law to adopt policies banning guns from their workplaces as part of their responsib​ility to provide a safe workplace. It should be noted that an employer does not fail in its legal duty to maintain a safe workplace if it does not have a no-weapons policy, but many employers do have such a policy.

Still, employers must be aware of an employee’s state-law rights to possess or carry weapons, because it is not always true that such a right is subordinate to an employer’s otherwise appropriate no-weapons policy. State laws on this issue vary.

In Florida, for example, a state law prohibits employers from adopting policies to ban employees from keeping guns in parked cars on company premises. Challenging the law, the Florida Retail Federation contended that the law should not be enforced because it arguably was subordinate to the “general-duty” clauseof the primary workplace safety law, the federal Occupational Safety and Health Act. The general-duty clause requires employers to provide each employee a place of employment free from recognized hazards that could be injurious or deadly. A Florida federal district court upheld the law in Florida Retail Federation Inc. v. Attorney Gen. of Florida, 576 F.Supp.2d 1281 (N.D. Fla. 2008).

A similar situation arose in Oklahoma, where a group of employees who had been fired for having guns in their cars in a company parking lot, in violation of company policy, argued the policy violated their right to bear arms. The federal court there upheld the employer’s actions, but only because it was permissible at the time, under state law, for the company to adopt and enforce the policy (Bastible v. Weyerhaeuser Co., 437 F.3d 999 (10th Cir. 2006)). A subsequent amendment to the Oklahoma law (Okla. Stat. tit. 21, §1290.22(B) (Supp. 2006)) imposed a restriction like that in Florida, barring employers from maintaining the policy, and this amendment also withstood a legal challenge (Ramsey Winch Inc. v. Henry, 555 F.3d 1199 (10th Cir. 2009)). Other states prohibiting employers from banning firearms on company property include Alaska, Arizona, Georgia, Kansas, Kentucky, Louisiana and Mississippi.

In Michigan, by contrast, the issue arises in a somewhat different posture. There, a law enacted in 2001 relaxed standards for local weapons-licensing boards to issue permits allowing citizens to carry concealed weapons. An exception to the law, however, specifically authorizes employers to adopt policies banning employees from carrying concealed weapons at work or in the course of employment.

The bottom line—as with all policy development—is that HR leaders must be aware of special state law requirements wherever the organization has employees.

The author is an attorney with Miller, Canfield, Paddock and Stone PLC in Lansing, Mich., and the immediate past president of the SHRM-affiliated Human Resource Management Association of Mid-Michigan.

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