The law giving handgun carry-permit holders the right to transport and store firearms and/or ammunition in their vehicles parked in an employer's parking lot goes into effect July 1, 2013. With the enforcement deadline at hand, employers understandably want to know whether they need to alter current "no-weapons" policies, which ban weapons on all parts of the employer's property including parking lots. Unfortunately, the answer remains uncertain, although a recent opinion from the State Attorney General seems to indicate that such policies may still be enforced by employers.
To recap, the popularly dubbed "guns in trunks" bill was signed into law by Governor Bill Haslam on March 14, 2013 after passing by a wide margin in both the state Senate and House of Representatives. Under the new law, the holder of a valid handgun carry-permit may transport and store a firearm or ammunition in his or her privately-owned vehicle while utilizing "any public or private parking area," but only if the vehicle is parked in a permitted location, and the firearm or ammunition is "kept from ordinary observation." Previous versions of the law faced resistance from the Tennessee business community last year, but passed easily this year, helped along by provisions of the new bill stating that businesses will not be liable for damages or injuries caused by firearms stored by employees on their premises in accordance with the new law.
The new bill ("Chapter 16") amends an existing law governing criminal offenses ("Title 39"), which had been widely interpreted to allow employers to ban weapons from their premises as long as notice is given. Title 39 reads, in part, "An individual, corporation or business entity is authorized to prohibit the possession of weapons by employees otherwise authorized by this subsection ... on premises owned, operated or managed by the individual, corporation or business entity. Notice of the prohibition shall be posted or otherwise noticed to all affected employees."
So, the question is, following the enactment of Chapter 16, can employers still ban weapons even in vehicles, and even if the owner has a carry-permit? The sponsors of the bill seemed to disagree on the answer to that question. During this year's debate, the bill's sponsor, Representative Jeremy Faison (R-Cosby), said its purpose is to prevent criminal prosecution of employees, not to infringe on employer rights. He said Tennessee would remain an at-will-employment state and employers would be free to fire someone for having a gun – or for any other reason or no reason at all.
But Senate sponsors, including Sullivan County Republican Ron Ramsey, the Senate speaker and lieutenant governor, argued that case law makes it problematic for an employer to fire someone solely for exercising a lawfully conferred right. Ramsey and other senators also took the rare step of submitting to the Senate clerk an "explanation of vote" for publication in the Senate Journal. In part, the explanation says, "This bill did not change the employment-at-will doctrine in the state. However, by creating a statutory right for permit holders to transport and store firearms or ammunition in accordance with this bill, employers who terminate employees just for exercising this right may violate the state's clear public policy that handgun carry-permit holders are allowed to transport and store firearms or ammunition under the described circumstances. An employee may have a claim for retaliatory or wrongful discharge if the employee is fired just for exercising this right."
And most recently, State Attorney General Robert Cooper weighed in, issuing an opinion on May 29, 2013 stating that employers can lawfully fire workers who bring guns to work in violation of the employer's policy, even if the employee otherwise abides by the provisions of Chapter 16 (having a carry-permit, storing the weapon in his vehicle as required by the statute, and so forth). The attorney general opinion says that while the law removed criminal penalties for carrying a gun to the employer's property without permission, it did not change the state's at-will employment status. The attorney general opinion also holds that Chapter 16 does not apply to a handgun carry-permit holder operating a privately-owned vehicle that has been leased, rented, or borrowed from the permit holder. And, the attorney general opines that if a security camera records an employee storing his weapon in his vehicle, then the weapon in question has not been "kept from ordinary observation" as required by the statute.
The new attorney general opinion is persuasive authority and will bolster the position of employers who may wish to test the new law by continuing to enforce broad no-weapons bans. But given the conflicting legislative history and all-around controversial nature of the issue, it seems likely that terminations of carry-permitted employees will nevertheless be challenged in the courts.
And finally, it seems quite likely that, due to the "loose ends" left by the passage of Chapter 16, this issue will be addressed in the legislature yet again next year, possibly resulting in further amendments to Chapter 39.
Bottom line, employers should review their workplace violence and no-weapons policies, and should tread particularly carefully when disciplining or terminating employees who violate these rules. As always, it is best to seek legal advice tailored to the specifics of your situation. Please contact the author of this article or any of Butler Snow's Labor and Employment attorneys for guidance.
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