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How do your workplace policies stand up against state weapons laws?

July 6th, 2014  |  Joy Waltemath

By Joy P. Waltemath, J.D.

If it hasn’t already, chances are your organization will, sooner or later, confront the issue of employees carrying concealed weapons at work and, depending on the states in which you do business, you’ll need to prepare your organization for laws addressing weapons in vehicles, self-defense, and “stand your ground,” and determine how those laws intersect with your employment policies.

Non-escalation policy upheld

In what appears to be one of the first of these cases to reach the federal appeals courts, last  month the Sixth Circuit upheld Walgreen’s decision to force a pharmacist to resign for violating its non-escalation policy after he shot at armed robbers while on duty. Even though the pharmacist was licensed to carry under state law, the Michigan licensing statute did not prohibit Walgreen’s from preventing its employee from carrying a concealed pistol on the job. Neither the conceal and carry law, nor the state’s Self-Defense Act, nor any other law cited by the pharmacist provided the basis for a public policy exception to his at-will employment (Hoven v Walgreen Co, June 2, 2014, Moore, K).

Shootout with no injuries

A full-time pharmacist with Walgreen’s since 2006, the employee had experienced an armed robbery at work in 2007. After Walgreen’s refused his request that it install a panic button or other security system, he obtained a Michigan license to carry a concealed weapon, bought a gun, and began carrying it to work hidden in his pocket. Several years later, gun-wielding robbers entered the store where the employee was working. When he tried to dial 911, one of the gunmen jumped over the counter and pointed a gun at him. The employee backed away, drew his concealed weapon, and fired it multiple times; no one was shot or injured. Eight days later Walgreen’s told him he had violated its non-escalation policy and gave him the choice of resigning or being fired. He resigned.

Sources for public policy?

Filing suit, the employee alleged that he was fired in violation of Michigan public policy for “lawfully exercising his right of self-defense, the defense of others, and to carry a concealed weapon.” These public policies allegedly were expressed in the Second Amendment of the U.S. Constitution; Article I, Sec. 6 of the Michigan Constitution; the Michigan Criminal Jury Instructions 2d 7.15; and several state statutes (Michigan Compiled Laws Secs. 780.951, 780.971, 750.227, and 28.421).

Look first to state’s public policy exceptions

On appeal (the district court granted Walgreen’s judgment on the pleadings), the Sixth Circuit noted that Michigan courts have not yet considered a claim for violation of public policy involving the rights asserted here. Accordingly, it considered whether the pharmacist was terminated for exercising a right conferred by a well-established legislative enactment and separately analyzed each of the potential sources of public policy he identified. The court quickly dispensed with his assertions that the federal or state constitutions, or criminal jury trial instructions, could be the source of a claim for public policy wrongful discharge.

Nor did the Michigan Self-Defense Act or related provisions support the employee’s claim because, although they related to self-defense, they did not “confer” a general right to engage in self-defense but rather to present a criminal defense. Similarly, the complex regime for licensing concealed weapons was not a source of public policy that could support this wrongful discharge claim because the statute he specifically cited said the right to carry a concealed weapon in the course of employment may be limited by the employer.

What does this mean for employer weapons or violence policies?

Know your state laws. The Sixth Circuit’s careful analysis of the statutes involved here, particularly Michigan’s Self-Defense Act and its concealed carry law, suggests that courts will painstakingly tease apart statutory language in an attempt to discern legislative intent — and to determine whether an employer’s actions crossed the line. Notably, not all conceal and carry laws provide specific language addressing employers, as Michigan’s does. Additionally, two different federal district courts in Kentucky earlier this year took apart Kentucky’s weapons-in-vehicles law to reach different results in separate cases of two employees who were disciplined in situations that involved guns in vehicles. That suggests you should spend a few hours now examining the relevant gun laws in your state in light of the “every word matters” approach courts have taken so far. It could save you substantially more time later.

What does your state’s “weapons-in-vehicles” or “parking lot” law specify, if there is one? Not all states with concealed carry laws also have laws providing for employees’ rights to keep a weapon concealed in a locked vehicle on the employer’s premises. And, while many of these laws are similar, their language is decidedly not identical, and it is important to track the statutory language carefully. For example, enforcing one employer’s weapons policy did not violate Kentucky’s weapons-in-vehicles law because the policy did not bar employees from storing weapons in their vehicles; rather, it required employees to complete and file with the employer a “Weapons Approval Form,” which the employee had failed to do. Although the employee argued the statute precluded all forms of regulation, the court disagreed, saying “If the Kentucky legislature had intended to limit an employer’s right to require the disclosure of weapons, they would have done so” (Mullins v Marathon Petroleum Co, LP).

This would not be true in states like Florida, where “no employer may violate the privacy rights” of an employee (or others) “by verbal or written inquiry regarding the presence of a firearm” inside or locked in a vehicle, or by conducting “an actual search of a private motor vehicle in a parking lot to ascertain the presence of a firearm within the vehicle” (Fla Stat, Sec. 790.251(4)(b)). No disclosure can be compelled in Indiana or North Dakota either, and Alabama requires an employer believe its employee presents a risk of harm before making an inquiry, for example.

What do you know about your state’s stand-your-ground or self-defense statute, if your state has one? Not all stand-your-ground laws apply only to criminal proceedings, for starters. Moreover, these types of laws typically provide either self-defense or immunity. Self-defense is an affirmative defense — an argument that a weapon user was justified in his or her actions. An immunity law, such as Florida’s stand your ground law, confers more complete protection, and Florida’s law specifically applies in both the civil and criminal contexts.

A Florida state appeals court ruled in April that a finding of stand-your-ground immunity by a criminal court wasn’t necessarily determinative in a civil action brought by a non-party to the criminal case that involved “the same nucleus of facts and the same use of force.” The civil case involved a workplace incident — a current employee striking a former employee with a baseball bat — and after criminal charges were dismissed, the employer and bat-wielding employee moved to dismiss the civil action that had been filed against them by the former employee. The Florida appeals court ruled that collateral estoppel did not apply to completely bar the former employee’s civil claim, but that the trial court should not have dismissed the claim without conducting an evidentiary hearing on the stand-your-ground immunity claim (Professional Roofing and Sales, Inc v Flemmings).

Craft your policies carefully. Maybe it’s self-evident, but consider creating state-specific addenda for your workplace weapons policies. In the Mullins case cited previously, the weapons policy had a Kentucky addendum, which stated, “for Kentucky sites only, employees or contractors who lawfully possess a weapon may store such a weapon in his or her privately-owned vehicle” so long as the employee met certain administrative requirements, including completing and having on file a current “Weapons Approval Form” that disclosed the weapon. Of course, this won’t work everywhere; see, for example, Alabama, Florida, Indiana, and North Dakota above.

Watch for legislative changes. In light of all the above, anticipate that state legislatures also will be watching how judges interpret these laws. In addition to the potential for brand new legislation, states may seek to modify existing laws to close perceived loopholes or ensure that the rights of individuals – or employers – are protected.