January 24, 2021

Volume XI, Number 24

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Fired For My Firearm? I’ll Sue!

As if employers already did not have enough reasons to have to think through termination decisions carefully, here is yet another “trigger” word that should make employers think twice about plans to discipline or fire an employee: guns. Before terminating an employee for bringing one (or more) gun to work, make sure state law does not create rights allowing employees to do bring them to their work location that might allow an employee to sue.

States have been enacting laws in recent years that require employers to allow employees to keep a gun locked in the employee’s car on company property. A federal appeals court that covers Texas, Louisiana, and Mississippi recently ruled that an employee who was fired after he parked his truck in the company parking lot with his gun locked inside could sue the company for wrongful termination for a public policy violation created by a Mississippi statute containing one of these laws. The company had terminated the employee for violating its policy prohibiting firearms on its property. The company’s human resources manager then held a plant-wide meeting to inform employees that the terminated employee was a security risk and they should call 9-1-1 if he was seen near the plant.

Employers can often feel caught between competing laws in this area. For example, the Occupational Safety and Health Administration’s “general duty clause” requires employers to take steps to prevent workplace violence, but state laws may give employee rights to bring firearms onto their premises that some may think creates a heightened likelihood of serious violence. Negligent hiring and retention causes of action give victims of violence in the workplace common law claims to make against employers. Management and HR ultimately have to find a seemingly fine line between protecting employees from workplace violence, protecting the company from lawsuits related to any such violence, and complying with state laws vesting individuals with rights that potentially challenge these obligations.

Here are steps employers should take in light of these gun laws and your need to ensure a safe workplace:

  • Conduct training on maintaining a workplace free from violence. You can and should still inform your employees that violence is unacceptable and install contingency plans on not only how to prevent it but also what to do in an “active shooter” situation. That said, your training should make reference to exceptions based on any laws that allow employees to keep guns locked in their cars on company property.

  • Employee handbooks should prohibit weapons, including guns, in the areas where employees actually work, but also contain language referring to any state law rights to allow guns in locked cars.

  • HR and managers should remember that if guns are involved with an employment decision, especially a termination, all the facts and circumstances need to be considered. The company should review with employment counsel carefully any such decisions related to guns in locked cars. State laws do provide employers with defenses in such situations, so the particular state laws need to be reviewed at the time.

  • Management should minimize or avoid politically charged discussions, particularly centering on Second Amendment and gun control issues. A seemingly innocent observation or comment may be interpreted as evidence that a discipline or termination was really due to employees’ right to keep firearms in their car. Because some state laws prohibit inquiry as to legal firearm status, the line between a heated discussion and a prohibited inquiry can be a very thin one.

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© 2020 Foley & Lardner LLPNational Law Review, Volume VI, Number 235
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About this Author

John S. Lord Jr., Foley Lardner, Arbitration Attorney, Litigation Lawyer,
Partner

Jack Lord is a partner and litigation lawyer with Foley & Lardner LLP. He focuses his practice on employment litigation and arbitration cases and has tried matters ranging from breach of contract, disability and national-origin discrimination claims to pregnancy and FMLA claims. He works with private and public employers in matters involving labor and employment law compliance. Mr. Lord regularly defends employers in class and collective action lawsuits. He has defended numerous entities that operate “public accommodations” against claims under Title III of the...

407-244-3246
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