LABOR & EMPLOYMENT NEWSLETTER - TO BAN OR NOT TO BAN? EMPLOYERS UNDER THE GUN

On June 26, 2008, the United States Supreme Court struck down Washington, D.C.’s 30-year-old total ban on handgun possession in the District.¹ The nation’s highest court held in District of Columbia v. Heller that an individual’s right to own firearms is guaranteed by the United States Constitution’s Second Amendment and, therefore, the District’s total ban on such ownership exceeds governmental authority to reasonably restrict such ownership and possession. Perhaps in anticipation of the Supreme Court’s ruling on the individual right to own firearms, gun advocate groups have pursued aggressive legislative and judicial strategies to advance the right of gun owners to carry and use their weapons, including public places.

For instance, in April, Florida enacted a controversial law that would prevent employers from stopping workers who bring their guns on to office premises.² Then, in the wake of the Heller decision, a Georgia statute took effect on July 1 allowing people with concealed weapons permits to carry guns into restaurants, state parks and on public transportation.³ Thereafter, City of Atlanta officials declared the Hartsfield-Jackson Atlanta International Airport (by some measure the world’s busiest airport) a “gun free zone” and warned that anyone carrying a gun there would be arrested.⁴ GeorgiaCarry.org, a gun rights group, sued the City of Atlanta and the airport, claiming that the airport qualifies as mass transportation under the new Georgia state law. However, on August 11, 2008, a United States District Judge in Atlanta upheld the gun ban, stating that allowing persons to bring guns into the airport could be a “serious threat to public safety and welfare.”⁵ Of course, federal law already bars passengers from bringing weapons to and past airport check points.⁶

The Texas Experience

The State of Texas passed legislation ten years ago to allow qualified persons to apply for and, after required training, obtain permits to carry concealed handguns.⁷ Recently, to much public support and concern, the Harrold Independent School District School Board enacted a plan to allow teachers to carry concealed handguns in the public classrooms.⁸ As one might expect, the public reaction has been mixed to the Harrold ISD’s action, but the controversy has focused attention on what the law is in Texas regarding the authority of landowners, businesses, and public entities to preclude gun owners (even concealed handgun permitees) from carrying firearms onto their premises.

The Current Law

Under Texas law, an eligible person (generally, someone who is at least 21 years of age and who is not a convicted felon, chemically dependent, or diagnosed with a significant psychiatric disorder) can obtain a handgun proficiency certificate and apply to the Texas Department of Public Safety to obtain a license to carry a concealed handgun.⁹ However, currently public and private employers in Texas currently have the express right “to prohibit persons who are licensed . . . from carrying a concealed handgun on the premises of the business.”¹⁰ Bars, hospitals, and nursing homes, are required to “prominently display at each entrance” a sign to give notice in both English and Spanish that it is unlawful for a concealed handgun licenseholder to carry a handgun on the premises.¹¹

State agencies or subdivisions of the state and state employees may not be held liable for damages for the actions of a concealed handgun licenseholder.¹² However, the statutory immunity does not apply to an act or failure to act by the state, state agency, or subdivision, or officer of the state, “if the act or failure to act was capricious or arbitrary.”¹³

Most private employers, therefore, are not required to display signs on their premises to prohibit their own employees from carrying concealed handguns on the premises, nor are they granted statutory protection from claims arising from the acts of such licenseholders.

Under present Texas law, even those licensed to carry concealed handguns are not permitted to carry their weapons into courthouses, racetracks, secured areas of airports, or on the premises of a school or educational institution, whether the institution is public or private, “unless pursuant to written regulations or written authorization of the institution.¹⁴ It was under this express exception that the Harrold ISD enacted its own authorization for “specific school employees to possess certain firearms on school property at school-sponsored or school-sanctioned events, and at board meetings.” But “only those school employees who have obtained and maintained a current license, in accordance with state law, to carry a concealed handgun are eligible to be authorized to possess a firearm on school property.”¹⁵

Additionally, a person licensed to carry a concealed handgun is not authorized to carry a handgun on the premises of a correctional facility, in an amusement park, on the premises of a church, synagogue, or other established place of religious worship, at any meeting of a government entity, or while intoxicated.¹⁶ However, such statutory limitations on the right of a concealed handgun licensee to carry the handgun does not extend to “any public or private driveway, street, sidewalk, or walkway, parking lot, parking garage, or other parking area.¹⁷

Recent Legislative Proposals

In the 2007 session of the Texas Legislature, a bill was introduced that would make it illegal for employers to prohibit employees who are licensed to carry handguns from keeping their guns locked in their cars in a parking lot, parking garage, or other parking area provided by the employer to its employees.¹⁸ The employee would have been required to file notice of intent to store the concealed handgun with his or her employer, and the employer would be prohibited from discharging, displaying, or otherwise penalizing in any manner, that employee.¹⁹ The legislation did not apply to schools, or to employers that provided non-public parking to its employees that is constantly monitored by security personnel, and the employer provides for the employee an alternative parking area immediately adjacent to or adjoining the main parking area in which the employee may transport or store a handgun.²⁰ The proposed legislation would have expressly protected a public or private employer from any civil action resulting from the use of the concealed handgun in an employee parking area.²¹ SB 534 never reached a vote in the legislature and did not become law.

Questions and Future Debates

The Texas Legislature will be back in session in 2009. Given the successes of gun rights groups before the U.S. Supreme Court and in state legislatures like those in Florida and Georgia, employers in Texas can reasonably anticipate that further legislative initiatives intended to advance the rights of those licensed to carry concealed handguns will be considered in the 2009 legislative session. Bills like SB 534 are likely to be re-introduced. However, as the law currently stands, employers, both public and private, have the right to prohibit persons from carrying firearms onto their premises, and employers can even legally preclude employees and customers who are licensed to carry concealed handguns from doing so on their premises. Employers are not legally prohibited from terminating or otherwise taking disciplinary action against employees who violate such prohibition. However, presently under Texas law there is no statutory protection against civil liability arising from use of handguns on their premises, whether employers enact firearm bans or not.

¹District of Columbia v. Heller, 128 S.Ct. 2786 (U.S. 2008).

²Fla. Stat. § 790.251 (2008).

³Georgia State House Bill 89 (2008).

⁴Dallas Morning News, August 12, 2008 at p. 7A.

⁵GeorgiaCarry.org, Inc., et al. v. City of Atlanta, et al., Civil Action No. 1:08-CV-02171-MHS, Minute Sheet for proceedings held in open court on August 11, 2008, commencing at 1:35 p.m. and concluding at 4:25 p.m.

⁶Aviation and Security Transportation Act of 2001, 49 U.S.C. 44901.

⁷Tex. Gov’t Code § 411.171-411.208 (1997).

⁸Dallas Morning News, August 19, 2008 at p. 3A; Harrold ISD 244901.

⁹Tex. Gov’t Code §§ 411.172, 411.174.

¹⁰Tex. Gov’t Code § 411.203.

¹¹Tex. Gov’t Code § 411.204.

¹²Tex. Gov’t Code § 411.208.

¹³Tex. Gov’t Code § 411.208(d).

¹⁴Tex. Penal Code § 406.03 (2007).

¹⁵Harrold ISD Safety Program/Risk Management Emergency Plans.

¹⁶Tex. Penal Code § 46.035 (2007).

¹⁷Tex. Penal Code § 46.035(f)(3) (2007).

¹⁸Senate Bill 534, Texas Legislature 2007.

¹⁹Id.

²⁰Id.

²¹Id.