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Tenth Circuit Lifts Injunction on Oklahoma Gun Laws that Prohibit Employers' "No Weapons" Policies

Oklahoma’s gun laws making employers criminally liable for prohibiting employees from storing firearms locked in vehicles on company property are not preempted by the federal Occupational Safety and Health Act (“OSH Act”), the U.S. Court of Appeals for the Tenth Circuit has held.  Ramsey Winch Inc. v. Henry, No. 07-5166 (10th Cir. Feb. 18, 2009).  Rejecting the arguments of Oklahoma businesses, the Court reversed the district court’s grant of a permanent injunction that kept Oklahoma from enforcing the sections of its gun laws that prohibited property owners from banning the storage of firearms locked in vehicles on the owner’s property.

The Tenth Circuit Decision

After several employees of Oklahoma businesses were terminated for storing firearms in their vehicles parked on their employers’ property in violation of company policy, the Oklahoma legislature amended its firearms laws to include “guns-at-work” provisions to protect gun owners’ constitutional right.  The Oklahoma Firearms Act and the Oklahoma Self-Defense Act were amended to prohibit property owners from banning the storage of legal firearms locked in vehicles located on the owners’ property (“Amendments”).  The OFA later was amended to protect property owners from tort liability.

The plaintiffs, a number of companies in Oklahoma, sued to prohibit enforcement of the Amendments.  They argued that the Amendments were unconstitutional, violated the plaintiffs’ due process, were facially vague, and preempted by the OSH Act.  The district court rejected all but the OSH Act preemption argument.  The court found that the Amendments were preempted by the OSH Act’s “general duty clause” and granted a permanent injunction.  It held that gun-related workplace violence was a “recognized hazard” under the general duty clause.  Oklahoma appealed the decision to the U.S. Court of Appeals for the Tenth Circuit, and the appellate court reversed, finding that the OSH Act’s “general duty clause” does not preempt Oklahoma law. 

“[W]here it is impossible for a private party to comply with both state and federal requirements, or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,” the state law is preempted by the federal law, the appeals court wrote.

The “general duty clause” (section 5(a)(1)) of the OSH Act imposes on an employer the duty to “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.”  While the Occupational Safety and Health Administration (“OSHA”) has recognized workplace violence is a serious safety and health issue, it has not issued any mandatory standards regarding workplace violence.  OSHA has issued voluntary guidelines and recommendations for employers seeking to reduce the risk of workplace violence in at-risk industries (such as health care, social service, and late-night retail establishments). 

The Court found the absence of any specific OSHA standard on workplace violence significant in refuting the notion that gun-related workplace violence was a “recognized hazard” under the general duty clause of the OSH Act.  Furthermore, OSHA in 2006 declined a request to promulgate a standard to ban firearms from the workplace.  Accordingly, the Court held the Amendments conflicted with no OSHA standard, and therefore, are not preempted by the OSH Act.

The Court went on to reject arguments that the Amendments were unconstitutional, violated the plaintiffs’ due process, and were facially vague.  It found the Amendments did not require a permanent physical occupation or invasion of the property that would amount to an unconstitutional taking.  Next, in rejecting the due process argument, the Court found the state legislature had a rational basis for promulgating the Amendments, holding it would not “second guess the wisdom of legislative policy-determinations.”  Finally, in a footnote, the Court rejected the argument that the Amendments were facially vague.  It found the Amendments clear in the conduct it prohibited.  Accordingly, the district court’s grant of a permanent injunction was reversed.

State Guns-at-Work Initiatives

Oklahoma is among a growing number of states that have enacted guns-at-work legislation.  Violations of these laws usually open companies up to civil or criminal penalties and lawsuits.  In addition to Oklahoma, the states with guns-at-work laws are Alaska, Florida, Georgia, Kansas, Kentucky, Louisiana, Minnesota, and Mississippi.  A major National Rifle Association legislative initiative has led to proposals in other states, including Arizona, Missouri, and Tennessee.   (See the National Rifle Association’s Political Victory Fund, www.nrapvf.org.)

Additionally, last year, the U.S. Supreme Court ruled that individuals in Washington D.C. had a constitutional right under the Second Amendment to keep handguns in their homes.  District of Columbia v. Heller, 128 S.Ct. 2783 (2008).  The Supreme Court’s decision did not answer whether that right extends to the workplace.  Furthermore, as with the Oklahoma law, the Florida guns-at-work law withstood challenge. 

Reduce the Likelihood of Workplace Violence

In the interest of workplace safety, many employers would prefer to ban firearms completely from their property, including their parking lots.  Fears that a disgruntled employee with a firearm in his or her vehicle might resort to violence are not unfounded.  In June 2008, an employee in a Kentucky plant argued with his supervisor at work and, after retrieving his gun from his car, shot his supervisor and five co-workers inside the plant.  While most state guns-at-work laws provide employers with immunity from any resulting injuries, this is small comfort should gun violence take place.

State guns-at-work laws create challenges for employers, but interested employers should consider implementing safety measures, including:

• If located in a guns-at-work state, determine if you qualify for an exception to the law.  For example, some states provide an exemption for properties on which substantial activities involving national defense, aerospace or homeland security are conducted, or properties on which possession of a firearm is prohibited by federal law or a federal contract.
• If not located in a guns-at-work state, disseminate a strong policy against workplace violence, clearly prohibiting certain conduct and providing a procedure to report threats.  This may include a prohibition against bringing weapons on employer property.
• Conduct pre-employment screenings and background checks to alert you to those persons who might be prone to violent behavior.
• Provide employees with training on how to avoid workplace violence and how to detect early warning signs, as well as anti-harassment training.
• Implement security and access control measures to ensure that firearms are not brought into the workplace, even if they are in the company parking lot.  Such measures may include silent alarms and metal detectors.  Companies may contemplate increasing their security measures when announcing layoffs and terminations.

Jackson Lewis attorneys are available to assist employers with this and other workplace matters.

Related Links
District of Columbia v. Heller Florida Federal Court Rules Employees May Leave Guns in Cars While at Work Florida Law Gives Employees the Right to Keep Firearms in Vehicles Louisiana Employers No Longer Can Prohibit Guns At Work