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As of Jan. 1, 2016, handgun license holders in Texas may legally carry their guns in visible holsters on their hip or shoulder. Previously, license holders were required to carry their guns in a concealed manner.
Employers, however, can still prohibit firearms in the workplace.
“Texas loves two things more than anything: their guns and property rights. These two rights or interests run at one another when it comes to questions of an employer’s right to restrict someone from bringing a gun onto their premises,” Steve Roppolo, an attorney in the Houston office of Fisher & Phillips, told SHRM Online.
Employers with gun policies “have to tweak these now,” Roppolo said.
Employers can still prohibit firearms—concealed or openly carried—in the workplace as long as they provide notice that such weapons are not permitted on the premises. Although the notice may be provided verbally, “we’ve told clients not to rely on oral communication,” Roppolo said. He suggested putting something in writing clearly informing employees that no firearms are permitted. “Then you can prove that you’ve told them not to carry.”
This written policy should appear in the employee handbook, he noted. But just having a policy—even a written one—is not enough.
Employers should also post signs saying that firearms are prohibited, said Lloyd Chinn, an attorney in Proskauer’s New York City office. Texas law sets forth specific requirements for such signs. There are two separate statutes—one for open carry and one for concealed handguns.
Under Section 30.07 of the Texas Penal Code, the open carry sign should contain language indicating that a licensed gun owner “may not enter this property with a handgun that is carried openly.” The language must be in both English and Spanish. It must appear in contrasting colors with block letters at least 1 inch high. The sign must be displayed in a conspicuous manner clearly visible to the public at each entrance to the property.
Section 30.06 of the Penal Code applies to concealed weapons and has similar requirements.
“You need to have both notices,” Roppolo said. “You can combine them, but you have to comply with the requirements of both statutes.”
“Employers need to remember that, in Texas, if you prohibit weapons on your premises, employees still have the right to transport a weapon in their personal vehicle and to keep it in their locked cars,” according to John Harrison, an attorney in Ogletree Deakins’ Dallas office.
That is because, under a 2011 law, employers may not prohibit employees from storing lawfully possessed firearms and ammunition in vehicles parked in the employer’s parking lot (or garage or other lot provided by the employer). The owner of a firearm or ammunition is permitted to store those items in a locked, privately owned car as long as the possessor holds a concealed handgun license.
The open carry law does not change this. While it allows public and private employers to prohibit licensees from carrying their firearms onto the “premises” of the business, the statutory definition of premises “does not include any public or private driveway, street, sidewalk or walkway, parking lot, parking garage, or other parking area.”
That caveat—that lawfully possessed weapons may be stored in locked cars in company parking lots—should be written into a policy that otherwise prohibits weapons, Harrison said.
He provided the following sample handbook policy:
Employees are not permitted to carry (either openly or in a concealed manner) any firearms while on the company’s premises, while at client work locations on company business, while in company vehicles, or while acting as a company representative at any work-related activities, meetings, or functions. This prohibition against the possession or carrying of firearms applies even if the employee is licensed to carry a concealed handgun or to openly carry a handgun by the state of Texas. Employees are permitted to transport and store in a safe and discreet manner a legal firearm and ammunition in a personal vehicle while the vehicle is in the employee parking area. This policy is intended to comply with all applicable state laws concerning employee rights to possess and carry firearms and shall be interpreted and enforced accordingly.
Many employers thought open carry meant that “they would have to allow employees to walk with holsters to the copy machine,” Roppolo said. That’s not the case—but absent a policy, that kind of behavior may be OK, he said.
“Employers do not want employees bringing firearms into the workplace,” Chinn said. “It creates an environment of fear and intimidation, and I think that the potential for disputes turning violent is that much greater when you have employees carrying guns.”
Because the law spells out clearly that businesses can still prohibit firearms, “Employers should take advantage of the statute as providing a way to keep armed employees out of the workplace,” he concluded.
Joanne Deschenaux, J.D., is SHRM’s senior legal editor.
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