Don’t worry – this is not a Bob Costas halftime post regarding anybody’s opinion on guns. We are just sticking to the court cases here, everyone. Last month, I wrote about some of the issues Wisconsin employers face with deer hunting season. One of those issues that could cause some Wisconsin employers headaches was the new concealed carry law that went into effect November 2011. At the time the law was passed, many employers expressed concern about having firearms in the workplace regardless of personal opinions on this topic. As fate would have it, the Western District of Kentucky recently issued a decision that may present persuasive authority for those Wisconsin employers that seek to restrict the presence of guns at the workplace.
At issue in Korb v. Voith Industrial Servs., Inc., 12CV0222 (W.D. Ky Nov. 28, 2012), was an employee who pulled out a handgun from his car to show a security guard the “sweet deal” he received for $150. The court did not describe a hostile employee. It seems he was simply engaging in his own version of show-and-tell. The employer was not amused and terminated the employee’s employment pursuant to a company policy prohibiting firearms on company property.
Important to the case for the court was Kentucky Revised Statute § 237.106(1), which provides:
No … employer, who is the owner, lessee, or occupant of real property shall prohibit any person who is legally entitled to possess a firearm from possessing a firearm, part of a firearm, ammunition, or ammunition component in a vehicle on the property.
These restrictions may seem familiar to Wisconsin employers who recently wrestled with the provisions of the concealed carry law. Wisconsin Statute §175.60(15m)(b) provides:
An employer may not prohibit a licensee or an out-of-state licensee, as a condition of employment, from carrying a concealed weapon, a particular type of concealed weapon, or ammunition or from storing a weapon, a particular type of weapon, or ammunition in the licensee’s or out-of-state licensee’s own motor vehicle, regardless of whether the motor vehicle is used in the course of employment or whether the motor vehicle is driven or parked on property used by the employer.
Both laws establish strong protections for employees to keep a firearm in their personal vehicle.
Although the Western District of Kentucky court repeatedly pointed out it felt the consequences were rather harsh, it found that the Kentucky law did not protect the employee. As noted by the court, if this was simply a matter of storing the gun in the vehicle, the employee would have been protected. But the employee did more. He took the gun out of its holster and handled it, and he did so for reasons that the statute did not otherwise protect. For the court, this was enough for the employer to lawfully discharge the employee without violating the law.
There is certainly a lot of grey area that could come up factually to distinguish something an employer may encounter in Wisconsin and this Kentucky case. The court observed the employee’s argument that he had not actually removed the gun from the vehicle. In a bit of unclear reasoning, the court explained that an employee could handle a firearm in certain circumstances and still be protected, but this was not one of them. Moreover, this case takes place in Kentucky and is not controlling authority. It is only persuasive authority in Wisconsin. But the application of Wisconsin’s concealed carry law is not well-developed and cases like this one may prove useful to a Wisconsin court. For Wisconsin employers looking for support that an employee’s firearm must remain stored in a vehicle to be lawfully present on the employer’s property when the employer attempts to restrict the presence of firearms on its property, this case may offer beneficial support.