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Florida Federal Court Rules Employees May Leave Guns in Cars While at Work

  • August 5, 2008

Weeks after Florida's "Guns-at-Work" law went into effect, a federal court in Tallahassee has refused a request from employer groups to halt implementation of the part of the law allowing employees with concealed weapons permits to keep guns locked in their vehicles while at work. Florida Retail Ass'n v. Attorney Gen. of Fla., No. 4:08cv179-RH/WCS (N.D. Fla. Jul. 29, 2008). Under the law, the attorney general has authority to bring civil or administrative action against employers, and any person may bring a civil action against violators. Courts may award costs and attorney's fees to the prevailing party in actions brought under the law. The Florida Attorney General's office is reviewing claims by several companies that assert they are exempt from the law and may prohibit their employees from keeping weapons on employers' property.

Injunction Request Refused

Shortly after the law took effect on July 1, 2008, the Florida Retail Association and the Florida Chamber of Commerce filed for an injunction in federal court challenging the "Guns-at-Work" law as unconstitutional and preempted by the federal Occupational Safety and Health Act ("OSHA").

The court rejected preliminarily the plaintiffs' challenge as to the provisions of the law relating to employment, finding them likely constitutional. However, the court found the portions of the law relating to customers likely unconstitutional because the statute drew irrational distinctions between similarly-situated businesses. The court also held that, because no OSHA standard addresses guns in parking lots, Florida is not preempted from regulating in this area. Accordingly, the court granted a preliminary injunction enjoining the Florida Attorney General from enforcing only the parts of the law relating to customers.

Employees Can Keeps Guns in Vehicles

The statute defines an "employee" as a person "who possesses a valid license issued pursuant to s. 790.06" (concealed weapon permit) and who either is an employee, an independent contractor, or a volunteer. The statute defines an "employer" as a business in any form "that has employees." Thus, a business is an "employer" under the statute if it has at least one worker with a valid Florida concealed-carry permit. Employers are subject to the statute's requirements, but businesses which do not have at least one worker with a concealed-carry permit are not subject to the statute. The plaintiffs argued that the distinction between statutory employers and other businesses was irrational and unconstitutional.

Noting that the legislature has "significant discretion" in regulating employment, the court found the provisions rational and likely constitutional. For example, the court observed, the legislature may require the payment of minimum wages, limit hours of work or require the payment of overtime, impose and require the withholding of taxes, impose safety standards, and prohibit discrimination on various grounds. Given this broad discretion, the court held that "[p]rohibiting a business from conditioning employment on whether a worker has a concealed-carry permit" fell within the legislature's authority.

Accordingly, these provisions of the statute remain in effect and prohibit employers from:

  1. conditioning employment on the fact that an employee or a prospective employee holds or does not a hold a gun license;
  2. terminating or otherwise discriminating against any employee simply because the individual possesses a firearm inside his or her locked, privately-owned vehicle;
  3. preventing any employee from entering the parking lot or place of business because his or her vehicle contains a legal firearm; or
  4. taking any action against an employee based upon verbal or written statements of any party concerning possession of a firearm stored inside a motor vehicle lawfully parked in a parking lot.

Customers Cannot Keep Guns in Vehicles

The court found the provisions relating to customers irrational and likely unconstitutional. The law requires a business with at least one worker who has a concealed-carry permit to allow a customer to keep a gun in a vehicle in the parking lot regardless of whether the customer has a concealed-carry permit. Therefore, under the law, two businesses that were identical, "except that one happens to have a worker with a concealed-carry permit and the other does not," would be treated differently. The court said there was "no rational basis for the state to compel one business to allow customers to have guns in the parking lot while allowing the otherwise-identical business next door to ban them."

The court also pointed out the "practical difficulties" in applying these provisions. It said, "Workers are hired, fired, or resign daily. Concealed-carry permits are issued, revoked, surrendered, or expire daily." Thus, the obligation to comply with the statute could change daily, according to the court, and a business may not know "whether it is subject to the statute or not." Accordingly, the court enjoined implementation of the portions of the statute relating to customers.

Guns-at-Work Law Not Preempted by OSHA

The plaintiffs argued that the state law is preempted by OSHA. The court rejected this argument, finding that under OSHA, "Congress has explicitly authorized the states to act on worker safety issues as they deem appropriate." While a federal OSHA standard would preclude a state from regulating the same subject-matter, unless it had a federally approved state OSHA plan (Florida does not), no standard is in effect under the federal law relating to guns in parking lots.

 In so holding, the court reached a different result than an Oklahoma federal district court which found a similar statute in that state was preempted by OSHA. Conoco Phillips Co. v. Henry, 520 F. Supp. 2d 1282 (N.D. Okla. 2007).

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The attorney general's office has said it does not plan to appeal the decision. The plaintiffs have not indicated whether they will appeal. In the meantime, employers should review their policies to ensure compliance with the law. Jackson Lewis attorneys are available to answer inquiries regarding this law and assist employers in all areas of workplace law.

©2008 Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.

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