Fleet Policy vs. the Second Amendment

October 29, 2012

A new issue has emerged, which is the clash of fleet policy with an employees right to carry a concealed weapon for self-protection. There arecurrently 18states that provide a permit system for citizens to legally carry a concealed weapon in a personal vehicle while parked on company property. The statesare Alaska, Arizona, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Michigan, Minnesota, Mississippi, North Dakota, Ohio, Oklahoma, Texas, Utah, and Wisconsin.

For example, the Wisconsin law allows a permitted employee to keep a firearm in a personal vehicle, even if it is used for employment.

(NOTE: For our international readers, the Second Amendment to the U.S. Constitutionprovides a U.S. citizen the constitutional right to lawfullypossess and bear a firearm; however, various court rulings over the past two centuries haveimposed certain restrictions.)

Employers have long banned guns from the workplace as part of a violence-prevention strategy, but those policies are being tested in states that have passed laws allowing citizens to carry concealed weapons. For instance, in the 2012 case Mitchell v. University of Kentucky, the Kentucky Supreme Court supported a wrongful termination claim by an employee of the universitys medical center who was fired for legally storing a weapon in his vehicle while on campus property.

This issue has already affected other fleet managers. One incident involved a major pizza chain. One of its drivers, who had a legal permit to carry a weapon, fired it in self-defense, killing an armed would-be robber. The driver faced no criminal charges because prosecutors determined he acted in self-defense. However, the company fired him for violating its no-weapon rule.

In another instance, a major document retrieval company fired an employee in Georgia for carrying a weapon in her car. The employee argued Georgia law does not prohibit an employee from carrying a firearm while on company business. The employee further argued she legally obtained a permit to carry the weapon for self-defense, the weapon was secured in her car in compliance with company policy, and she openly revealed she was carrying a weapon when going through a security gate while visiting a customer. The companys counter-argument was that another employee was present in her car and it had a zero-tolerance policy for any action that could endanger employees or customers.

These laws vary state by state, and a company would have to thoroughly examine the laws of a particular jurisdiction to determine the best policies for firearm regulations, said Richard Alaniz, senior partner at Alaniz and Schraeder, a national labor and employment firm based in Houston. In general, in states that have enacted firearms-in-the-workplace legislation, employers cannot prohibit an employee from lawfully storing a gun out of sight in a locked vehicle. Furthermore, employers generally cannot condition employment upon whether an individual has a concealed weapon permit.

Second Amendment advocates argue that a corporate zero-tolerance policy violates employees legal rights. They further question whether a company negates its responsibility to protect employees when asking them to disarm. If a state allows concealed weapons, advocates contend that firing an employee (licensed to carry a firearm) because a gun is kept in the car while parked at work is grounds for a wrongful termination lawsuit.

There are also several gray areas, such as employees who work out of a home office where legal firearms may be kept. Would this be considered a violation of company policy? If a company allows employees to keep guns in their car while on its premises, what are the implications if that employee is asked by a manager to run an errand on company business? Many of these issues do not have a clear legal answer, since firearm workplace laws are relatively new, said Alaniz. The Texas firearm-in-the-workplace statute did not take effect until Sept. 11, 2011, and the statutes in Wisconsin and Utah took effect November 2011.

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Fleet Policy vs. the Second Amendment