Employers: Gun rights in the workplace are back on the agenda :: 09/01/2022

It’s no surprise that this year in particular, gun laws remain top of mind for many Americans. But they remain so particularly for employers too – not least because of a recent bombshell opinion by the Supreme Court, which may indirectly impact gun rights in the workplace.

The Supreme Court’s opinion in New York State Rifle and Pistol Association v. Bruen saw the overturning of a century-old New York gun safety law, which required a license to carry concealed weapons in public places. The Supreme Court ruled that this law was unconstitutional, meaning that New York’s law (and similar laws covering roughly a quarter of the people in the United States), are no longer viable.

New York State Rifle & Pistol Association v. Bruen

Bruen was the first significant Second Amendment decision from the Supreme Court since District of Columbia v. Heller was decided in 2008. In Heller, the Supreme Court held that the Second Amendment protects an individual’s right to possess a handgun for traditionally lawful purposes disconnected with service in a militia, such as the self-defense of one’s home. The Supreme Court also held that gun restrictions in “sensitive places” – such as areas outside of one’s home, like schools, churches, or other public places – remained permissible.

Bruen tested the limits of Heller’s caveat however, by examining exactly what type of gun restrictions could be enacted in these “sensitive places.”

The facts of Bruen were as follows: Petitioners were two members of the New York State Rifle & Pistol Association. Each applied for a license to carry a firearm on a concealed basis in New York for the purpose of self-defense. Under New York law, a resident could obtain an unrestricted license to carry a concealed firearm outside their home or business for self-defense only if they could establish that “proper cause” for the license existed. New York courts defined proper cause as requiring the applicant to “demonstrate a special need for self-protection distinguishable from that of the general community.” If an applicant could make that showing, they would receive a license for public carry, which allowed the applicant to carry a firearm for a limited purpose.

Applying this standard, a licensing officer denied both of the petitioners’ applications, finding that neither individual met the “proper cause” standard dictated by New York law. The petitioners subsequently filed a suit against the state official, alleging their Second and Fourteenth Amendment rights were violated when the licensing officer denied their unrestricted-license applications. They argued that New York’s law violated the Second Amendment by requiring that applicants for unrestricted concealed-carry licenses demonstrate a special need for self-defense. The district court dismissed the suit, but the petitioners appealed to the U.S. Supreme Court.

The Supreme Court argued that to justify a firearm regulation, the government must show that the regulation is “consistent with this Nation’s historical tradition of firearm regulation.” The Court ultimately held that New York’s concealed-carry licensure restrictions did not meet this standard and that New York’s proper cause licensure requirement was not sufficiently rooted in an American tradition to pass muster. The Court also found that New York’s law provided licensure officials too much discretion and subjectivity in deciding whether someone applying for a concealed carry license had met the state’s proper cause requirements. As such, the proper cause requirement violated the Second and Fourteenth Amendments by preventing citizens with ordinary self-defense needs from exercising their right to keep and bear arms.

Ramifications

Bruen related specifically to New York’s gun licensure law, but the ramifications of its holding will likely be felt in other states as well. Seven states have similar gun safety laws, and at least one (Maryland) has already suspended its law in the wake of the Bruen decision. Further, gun restrictions that implicate the Second Amendment in any jurisdiction must now comply with the standard set forth in Bruen, which requires “affirmative proof that its firearms regulation is part of the historical tradition.”

Recent federal legislation on gun control

Around the same time as the Supreme Court issued its Bruen decision, the U.S. Congress passed its first gun safety restrictions in decades.

In fact, on the same day the Supreme Court issued the Bruen opinion (June 23), 2022, the Senate passed a bipartisan gun safety bill aimed both at increasing investments in the country’s mental healthcare system and preventing dangerous individuals from accessing guns. The next day, the House passed the bill, and on June 25, 2022, the bill was signed into law.

The legislation contains several restrictions relating to gun safety, including:

• Expanding background checks for potential gun buyers under 21 years old by providing authorities with up to 10 business days to study mental health and juvenile records.
• Authorizing $750 million to help states implement and run crisis intervention programs
• Providing for millions of dollars to be allocated to school safety.
• Closing “the boyfriend loophole,” meaning that anyone who is convicted of a domestic violence crime against someone with whom they have a “continuing serious relationship of a romantic or intimate nature” is prohibited from possessing a gun. Previously, this restriction applied primarily to spouses, partners who cohabitate with, or with whom the parties shared children, but not other forms of serious interpersonal relationships.
• Investing in mental health resources, including millions of dollars to be allocated to states to run mental health and drug courts, as well as other intervention programs.

At least some of these restrictions could come under attack on similar grounds to New York’s now-invalid gun licensure law. Challengers could argue that a red flag law or ban on domestic abusers buying firearms are not “part of the historical tradition,” and thus run afoul of Bruen. While the new law presently remains in full effect, one of the impacts of Bruen is that many gun control restrictions previously believed to be permitted may now be constitutionally suspect.²

States take action

This unsettled landscape has not stopped states from enacting new gun control legislation in response to Bruen. Approximately half a dozen states with similar laws to NY are now considering their next steps, and several states have already signed new bills into law in the wake of Bruen. Those states include New York (where Governor Hochul has signed laws banning guns in certain places and making it a crime to carry a firearm onto private property unless the owner has posted signage permitting firearms on the property); California (restricting firearms that do not have a unique mark of identification or serial number) and New Jersey (mandating safety training to purchase a firearm). Hawaii, Massachusetts, Maryland, and Rhode Island representatives have said they are currently analyzing the Bruen ruling to determine how it may impact their gun laws.

On the other end of the spectrum, even before the Bruen decision, 17 states had no restrictions on carrying a concealed firearm, and 33 states allowed concealed carry with a permit.

In total, 44 states now allow for open carry of some or all firearms (handguns, long guns, or both)

Implications for employers

Because it is plausible to conclude that the Bruen case will lead to an increased number of individuals with a concealed carry permit, employers may want to revisit their firearm policies as permitted by current law and communicate to employees the scope of restrictions (if any) the employer may impose on the carrying of firearms on company property.

Signage

The following states require the posting of signage if a property owner wishes to prohibit firearms, although the precise contours of the signage requirement differ from state to state:

Florida’s laws do not mention the requirement that a sign be posted to prohibit the carrying of firearms inside a premises, but FL Statute 790.06 lists where you are not permitted to carry a concealed weapon (e.g., police stations, prisons and jails, courthouses, polling places, governing body meeting locations, schools, career centers, colleges and universities, airports, and bars).

Nevada’s laws do not explicitly address an employer’s right to ban firearms from the workplace, but do prohibit carrying in a public airport or a public school or childcare facility. Employers may also ban firearms in buildings that have metal detectors if a sign is posted at the public entrance that no firearms are allowed in the building, with some limited exceptions.

Parking Lots

Additionally, multiple states prohibit or restrict employees from storing firearms in privately owned vehicles parked on employer property. Other states have laws that give employees the right to keep firearms in their private vehicles even when they are parked on employer-owned property, though some of those states have limitations on where the firearm must be stored inside the vehicle.

In total, 24 states have some form of a parking lot law that regulates the storage of firearms in a privately owned vehicle on company property. In Idaho, even though it does not have a parking lot law, there is immunity to employers that allow employees to store firearms in their cars in the employer’s parking lot(s).

Out of those 24 states, 10 (Alabama, Arizona, Arkansas, Georgia, Illinois, Indiana, Maine, Tennessee, Utah, and West Virginia), require that the firearm be stored out of sight. While Louisiana does not require this, it does permit an employer to have a policy that the firearm be stored out of site. Nineteen of these states also require the vehicle be locked or that the firearm be in a locked compartment.

Ten states (Alabama, Alaska, Arizona, Florida, Georgia, Idaho, Indiana, Louisiana, Maine, Mississippi, North Dakota, Ohio, Oklahoma, Tennessee, Texas, Utah, West Virginia, and Wisconsin), grant employers immunity from liability for any injuries resulting from the storage of a firearm in a vehicle in the employer’s parking lot. In addition, Florida, North Dakota, and West Virginia prohibit inquiries about firearms that may be stored in vehicles, and prevent employers from searching employees’ vehicles for firearms, although searches may be conducted by law enforcement officials.

Many of these states provide at least one exception to their parking lot laws that permit the employer to prohibit the storage of firearms in a vehicle in a parking lot. The most common exceptions include if the vehicle is owned or leased by the employer, or if firearms are prohibited by federal law.

Other exceptions are for certain types of employers that require additional levels of safety like schools, child care centers, detention and correctional facilities, nuclear stations, employers who work with explosives or combustibles, and employers who work in national defense, aerospace, or homeland security.

Recommendations for employers

Faced with an area of law that is both fast-moving and of great concern for many Americans, many employers find themselves confronting whether they should implement a weapons-in-the-workplace policy and, if so, what that policy can or should look like.

Will the employer ban all weapons, whether held by customers or employees, from its premises?  As noted above, no state law restricts an employer, in its capacity as a private entity, from prohibiting weapons in the workplace, so long as the employer operates within the confines of the parking lot and signage laws previously described.

But since we predict that gun-related laws will continue to proliferate, we recommend that employers consult with legal counsel to ensure their gun-law policies do not run afoul of any applicable state or federal law.

https://www.tlnt.com/employers-gun-rights-in-the-workplace-are-back-on-the-agenda/