Seyfarth Synopsis: A couple of Circuit Court decisions last week may cause some trepidation for your company’s HR managers as they shuffle through the off-duty activities of company employees that get brought onto the company’s property and into its business. This blog offers some comments on the decisions, and recommendations for employers.

Last week, we had decisions from two federal circuit courts that may be concerning to employers. In Robert Swindol v. Aurora Flight Sciences Corp., No. 14-60779 (5th Cir. Aug. 8, 2016), the employer had what it thought was a legal company policy that banned firearms from company property, including the employee parking lot. The employee had a firearm in his automobile, which was discovered by the employer, who then terminated the employee for violation of the no firearms policy.

In Swindol, the plaintiff argued that the employer wrongfully terminated him for keeping a firearm locked inside his car in violation of company policy. He alleged his action was protected by Mississippi Code Chapter 9, Section 45-9-55 (which states that an employer is not permitted to prohibit transportation or storage of firearms on employer property). The employer responded that the plaintiff could not assert wrongful discharge because Section 45-9-55 did not create an exception to the employment-at-will doctrine; however, the Mississippi Supreme Court weighed in on that argument in an earlier, related decision, Robert Swindol v. Aurora Flight Sciences Corp., No. 2015–FC–01317–SCT, 2016 WL 1165448, at *6 (March 24, 2016), and held that the State statute could make an employer liable for wrongful discharge. Thus, the Fifth Circuit concluded that the plaintiff had stated a claim for wrongful discharge under Mississippi law where he alleged he was terminated when the employer enforced a legally impermissible firearms policy against him.

In Ronald Godwin v. Rogue Valley Youth Corr. Fac., et al., No. 14-35042 (9th Cir. Aug 10, 2016), that employer terminated the employment of that plaintiff for wearing a motorcycle club insignia and expressing that association. The district court held that the plaintiff “was not wrongfully terminated in violation of his First Amendment rights to association and free speech.” On appeal the plaintiff challenged that ruling arguing that his association with the motor cycle club would be protected under the First Amendment, which in this context “required that his expression/association relate to a matter of public concern.”

On appeal, the Ninth Circuit Court of Appeals found that “public concern is something that is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public at the time of publication.” Citing City of San Diego v. Roe, 543 U.S. 77, 83-84 (2004) (per curiam). As such, the Court stated, “[a]n employer may not interfere with an employee’s First Amendment rights unless there is evidence that the employee’s actions have actually disrupted the workplace or are reasonably likely to do so in the future.” Citing Nichols v. Dancer, 657 F.3d 929, 931 (9th Cir. 2011).

The Court reversed and held that nothing in the record before the Court indicated that the plaintiff’s expression “impeded the performance of his job duties, adversely affected discipline or personnel relationships, or interfered with the work of the [employer]. Nor does the record indicate that his expression would be reasonably likely to disrupt the workings of the [employer] in the future.”

While these cases are both pretty unique from a factual perspective, they do suggest that it’s a good idea to dust off your employee policies and determine whether they are current, in conflict with any specific state laws in which your company does business, or whether it’s an opportune time to give those policies a tune-up. Additionally, before disciplining or terminating an employee, remember that the courts, the U.S. Department of Labor, and the National Labor Relations Board have consistently and regularly been updating and revising what they consider to be “clearly legal.” So, stay tuned for further updates on other “things that make you go…. huh???”