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Employment policies also have a place in the discussion of gun ownership

December 21st, 2012  |  Ron Miller

Counterintuitive as it may seem, the Connecticut school shooting has actually resulted in an upsurge in the gun purchases, even as the President and others have called for more effective gun regulation. Studies have show that weapons in the household seldom offer protection in the event of a robbery or home invasion. It’s just as likely that those weapons will be turned on the homeowner during criminal activity, or worse yet, some innocent will likely be harmed or killed by a mishandled weapon.

Weapons at work. But employers also may have a say in the activities of gun owning employees. For example, a Kentucky employee went too far in displaying his gun, despite a state law that permits a gun owner to possess his weapon in his own vehicle in the employer’s parking lot.

In Korb v Voith Industrial Services, Inc, an employer’s termination of an employee for removing a loaded firearm from his own vehicle in a company parking lot and showing it to a security guard did not violate Kentucky Revised Statutes Sec. 237.106, which protects employees from adverse employment actions for the nonconcealed possession of weapons in a vehicle on an employer’s property, ruled a federal district court in Kentucky. Removal of the weapon from the vehicle exceeded the statutory protections for mere possession; further, the employee’s handling of the firearm did not come within any of the statute’s acceptable purposes.

Although court agreed that, on its face, enforcement of the employer’s workplace weapons policy could conflict with the statute. In this instance, the employee’s actions went beyond those statutorily permitted, which only included handling a firearm in “self-defense, defense of another, defense of property, or as authorized by the owner, lessee, or occupant of the property.” Nor could a security guard’s willingness to accompany the employee to his car, nor his question about the authenticity of the weapon, be construed as authorization by the owner of the property to handle the gun. Accordingly, because the statutory protections for possession of a weapon did not extend to the employee’s handling of it, on these facts the company had the discretion to terminate the employee for the policy violation, and the employer was entitled to judgment as a matter of law.

Vigilante justice. Of course, whose blood doesn’t get to pumping at the prospect of a righteous case of vigilante justice? We’ve all seen those police video shows where some robber intent on separating a seemingly defenseless store clerk from the cash register receipts. The robber is threatening, arrogant, and bullying, but before you know it the clerk gets the drop on the bad guy and either pummels him into submission, or a full blown gun battle ensues, and it’s the robber who ultimately has to flee for his life.

A Walgreens pharmacist was described as “heroic” in media accounts for his attempt to thwart a workplace robbery using his own weapon, but the employer took a dim view of his actions and terminated him for violating its “non-escalation” policy. In Hoven v Walgreen Co, the employer successfully thwarted a wrongful discharge suit filed by the former pharmacist who alleged that his termination for firing his personal, lawfully concealed handgun during an armed robbery at work violated public policy.

Public policy exception. Following the attempted robbery, the pharmacist’s response drew national attention. But within a week, Walgreens fired him allegedly for violating its “non-escalation” policy in connection with the attempted robbery. In his subsequent wrongful discharge suit, the pharmacist named seven sources that he argued established a public policy that would allow him to lawfully exercise his rights of self-defense, defense of others, and to carry a concealed weapon.

Michigan law recognizes a public policy exception to at-will employment in three situations: (1) where an explicit legislative statement prohibits the discharge; (2) where sufficient legislative expression of policy implies a cause of action for wrongful termination; and (3) where the reason for the discharge was the employee’s exercise of a right conferred by a well-established legislative enactment. A federal district court in Michigan granted the employer judgment on the pleadings because the pharmacist identified no well-established legislative enactment that either allowed employees to possess handguns on the premises of their private employers or that prohibited employers from discharging employees who engaged in such conduct.

Disposing of the federal and state constitutional protections for the right to bear arms, the district court noted that these provisions do not govern private conduct but protect only against state action. Moreover, none of the statutory provisions cited by the pharmacist implied a cause of action for wrongful termination. But even if they had, the pharmacist still needed to identify a well-established legislative enactment that addressed his employer’s actions here and, in the court’s view, none of his sources conferred rights on employees.

Concealed weapons law. Contrary to the pharmacist’s assertions, Michigan’s Concealed Pistol Licensing Act Sec. 28.425n(2)(b) “does not prohibit an employer from prohibiting an employee from carrying a concealed weapon in the course of his or her employment.” This plain statutory language effectuated a Michigan public policy to allow private employers to limit handguns in the workplace, the court noted. Other statutes relied on by the pharmacist, such as those establishing penalties for unlawfully carrying a concealed weapon, criminal procedure statutes creating a rebuttable presumption that use of force is warranted in response to the breaking and entering of business premises, and the state Self-Defense Act (and jury instructions) excusing the use of deadly force in self-defense, were similarly unavailing. Because the district court found that the Michigan Concealed Pistol Licensing Act did not support a public policy exception to Michigan’s at-will employment presumption it awarded judgment on the pleadings to the employer.

We can’t accurately predict the course of future events, but some level of foresight and good judgment could dictate a different result in many instances of gun violence. There is no real justification for assault weapons in the hands of civilians whether they are sportsmen, gun enthusiasts, or collectors. Moreover, unlike the vision of some individuals, the Second Amendment does not give Americans the unfettered right to arm themselves. We have to recognize that life has changed significantly since the days of the founding fathers and arming the militia is a totally different concept than existed at the time of the nation’s inception. As these cases demonstrate, a spontaneous action by an employee may not be shielded by state law against an employer’s decision to take disciplinary action for weapons at work.

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