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Workplace Vol. 2013 No. 3
This NRA-backed legislation breezed through the legislature this session, passing by a wide margin in both the Senate and House of Representatives. Prior versions of this law faced stiff resistance from the Tennessee business community last year, and divided Republican lawmakers on an issue implicating core conservative values: whether the right to bear arms as set forth in the Second Amendment of the Constitution trumps the rights of private property owners to control access to their land. But this year’s version of the legislation represented more of a compromise with business groups, including a provision stating that businesses will not be liable for damages or injuries caused by firearms stored on their premises by employees in accordance with the new law. Also, unlike prior versions of the proposed law, the current bill does not expressly create a new “protected category” of carry-permitted gun owners, and does not state that employers may not discipline or terminate employees for bringing weapons onto employer property. However, the law does not state that employers may terminate employees on this basis either. The law’s silence on this issue understandably causes some confusion among employers and other businesses who wish to comply with the law. So, what does the new law mean to Tennessee employers and other property owners? As a refresher, currently, the law (prior to addition of the new Section 1313) states that: “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.” T.C.A. 39-17-1315(b)(1). This language, found in Section 1315 of Title 39, has been widely interpreted to mean that, if an employer posts a “No Weapons” policy, it can ban weapons on its property, including in employee vehicles parked on employer property. The “guns in trunks” bill adds a Section 1313 to Title 39, leaving the current language in 1315 intact. So, as of July 1, 2013, the law will state that an employer can prohibit guns on their premises if they post, but will also state that carry-permit holders have a right to have guns properly stored in their vehicles parked on the employer’s property. Because the statutory language is ambiguous (and arguably conflicting), a court called upon to decide this issue would likely look to legislative history (recorded statements of lawmakers) to determine the intent of the law’s authors. But here, too, there are contradictions. Legislative history The law’s sponsor in the House of Representations, Rep. Jeremy Faison (R-Cosby), has gone on record stating that the new law’s 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 an employer would be free to fire someone for having a gun – or for any other reason, or no reason at all. A legislative attorney supported Faison’s view in committee testimony, comparing the measure to a drinking law: anyone 21 or older may lawfully possess alcoholic beverages in Tennessee, but that doesn’t mean an employer cannot prohibit alcohol on its premises or fire someone for violating company policy, he said. But Senate sponsors, including Sullivan County Republican Ron Ramsey, the Speaker and Lieutenant Governor, took a different view. Ramsey stated that that case law makes it problematic for an employer to fire someone solely for exercising a lawfully conferred right. And, the same day that Governor Haslam signed the bill into law, several Senators took the rare step of submitting to the Senate clerk an “explanation of vote” for publication in the Senate Journal. Their explanation, in part: “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.” Bottom line So, can employers with broad “no weapons” bans continue to enforce those policies against carry-permit holder employees after July 1, 2013? The bottom line is that, presently, there is no definitive answer to that question. A case certainly could be made that, notwithstanding the emphatic legislative history from the Senate side, if the framers of the law meant to create a cause of action for retaliatory discharge, they would have, or should have, said so in the statute itself. But, ultimately, this is an issue that will be decided in the courts. Therefore, employers who are not eager to be the test cases for this new law should exercise extreme caution when enforcing broad no-weapons bans. And unfortunately, even employers who don’t have broad weapons bans and who have no intention of testing the law should proceed with caution. This is because, if carry-permit holders are a new protected class (which we don’t know yet), then, as with any protected category or conduct, any termination involving a covered individual might potentially involve an allegation that the stated reason for the termination is pretextual. For example: “You say you fired me because I was a bad employee, but I think the real reason is you found out I have a gun in my car.” Thus, prudent employers need to add this potential protected criteria (if known) to their “checklist” – similar to race, gender, age, workers compensation claims activity, and so forth – when evaluating the risk of any particular termination. Employers will also need to wrestle with the question of whether it is advisable to gather information on which workers have gun carry-permits and are bringing their weapons to work. There is no prohibition in the law on gathering this information. Having this information about who has weapons at work might contribute to a safer work environment, and could also protect carry-permit holders from being mistakenly subjected to disciplinary action. But, on the other hand, taking deliberate steps to gather this information means obtaining knowledge of a possibly protected criterion, making an employer an easier target for a wrongful discharge claim. There is not necessarily a “one-size-fits-all” answer to these questions, as employers of different sizes and with different workforces and cultures may reach different solutions to balancing the various issues, risks, and interests in play. In any event, Tennessee employers should review their weapons policies prior to July 1, determine their approach to this issue, and educate their supervisory workforces on the employer’s enforcement position. Also, it is probably a good idea to get some expert advice prior to taking adverse action against an employee where a carry-permit may be in the picture. Please contact the author of this article or any of Butler Snow’s Labor and Employment attorneys for guidance. Workplace is published by the Butler Snow Labor and Employment Group. This newsletter focuses on developments in areas such as policy manuals, staffing and employment contracts, compliance matters, employment litigation and labor law. |
Tennessee Passes Guns in Trunks LawApril 9, 2013 By Kara E. Shea |
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Workplace Vol. 2013 No. 3
This NRA-backed legislation breezed through the legislature this session, passing by a wide margin in both the Senate and House of Representatives. Prior versions of this law faced stiff resistance from the Tennessee business community last year, and divided Republican lawmakers on an issue implicating core conservative values: whether the right to bear arms as set forth in the Second Amendment of the Constitution trumps the rights of private property owners to control access to their land. But this year’s version of the legislation represented more of a compromise with business groups, including a provision stating that businesses will not be liable for damages or injuries caused by firearms stored on their premises by employees in accordance with the new law. Also, unlike prior versions of the proposed law, the current bill does not expressly create a new “protected category” of carry-permitted gun owners, and does not state that employers may not discipline or terminate employees for bringing weapons onto employer property. However, the law does not state that employers may terminate employees on this basis either. The law’s silence on this issue understandably causes some confusion among employers and other businesses who wish to comply with the law. So, what does the new law mean to Tennessee employers and other property owners? As a refresher, currently, the law (prior to addition of the new Section 1313) states that: “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.” T.C.A. 39-17-1315(b)(1). This language, found in Section 1315 of Title 39, has been widely interpreted to mean that, if an employer posts a “No Weapons” policy, it can ban weapons on its property, including in employee vehicles parked on employer property. The “guns in trunks” bill adds a Section 1313 to Title 39, leaving the current language in 1315 intact. So, as of July 1, 2013, the law will state that an employer can prohibit guns on their premises if they post, but will also state that carry-permit holders have a right to have guns properly stored in their vehicles parked on the employer’s property. Because the statutory language is ambiguous (and arguably conflicting), a court called upon to decide this issue would likely look to legislative history (recorded statements of lawmakers) to determine the intent of the law’s authors. But here, too, there are contradictions. Legislative history The law’s sponsor in the House of Representations, Rep. Jeremy Faison (R-Cosby), has gone on record stating that the new law’s 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 an employer would be free to fire someone for having a gun – or for any other reason, or no reason at all. A legislative attorney supported Faison’s view in committee testimony, comparing the measure to a drinking law: anyone 21 or older may lawfully possess alcoholic beverages in Tennessee, but that doesn’t mean an employer cannot prohibit alcohol on its premises or fire someone for violating company policy, he said. But Senate sponsors, including Sullivan County Republican Ron Ramsey, the Speaker and Lieutenant Governor, took a different view. Ramsey stated that that case law makes it problematic for an employer to fire someone solely for exercising a lawfully conferred right. And, the same day that Governor Haslam signed the bill into law, several Senators took the rare step of submitting to the Senate clerk an “explanation of vote” for publication in the Senate Journal. Their explanation, in part: “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.” Bottom line So, can employers with broad “no weapons” bans continue to enforce those policies against carry-permit holder employees after July 1, 2013? The bottom line is that, presently, there is no definitive answer to that question. A case certainly could be made that, notwithstanding the emphatic legislative history from the Senate side, if the framers of the law meant to create a cause of action for retaliatory discharge, they would have, or should have, said so in the statute itself. But, ultimately, this is an issue that will be decided in the courts. Therefore, employers who are not eager to be the test cases for this new law should exercise extreme caution when enforcing broad no-weapons bans. And unfortunately, even employers who don’t have broad weapons bans and who have no intention of testing the law should proceed with caution. This is because, if carry-permit holders are a new protected class (which we don’t know yet), then, as with any protected category or conduct, any termination involving a covered individual might potentially involve an allegation that the stated reason for the termination is pretextual. For example: “You say you fired me because I was a bad employee, but I think the real reason is you found out I have a gun in my car.” Thus, prudent employers need to add this potential protected criteria (if known) to their “checklist” – similar to race, gender, age, workers compensation claims activity, and so forth – when evaluating the risk of any particular termination. Employers will also need to wrestle with the question of whether it is advisable to gather information on which workers have gun carry-permits and are bringing their weapons to work. There is no prohibition in the law on gathering this information. Having this information about who has weapons at work might contribute to a safer work environment, and could also protect carry-permit holders from being mistakenly subjected to disciplinary action. But, on the other hand, taking deliberate steps to gather this information means obtaining knowledge of a possibly protected criterion, making an employer an easier target for a wrongful discharge claim. There is not necessarily a “one-size-fits-all” answer to these questions, as employers of different sizes and with different workforces and cultures may reach different solutions to balancing the various issues, risks, and interests in play. In any event, Tennessee employers should review their weapons policies prior to July 1, determine their approach to this issue, and educate their supervisory workforces on the employer’s enforcement position. Also, it is probably a good idea to get some expert advice prior to taking adverse action against an employee where a carry-permit may be in the picture. Please contact the author of this article or any of Butler Snow’s Labor and Employment attorneys for guidance. Workplace is published by the Butler Snow Labor and Employment Group. This newsletter focuses on developments in areas such as policy manuals, staffing and employment contracts, compliance matters, employment litigation and labor law. |
