Employers Facing Guns at Work Law

As “Guns at Work” laws are debated across the country, employers will want to keep an eye on Florida’s recently enacted and challenged gun law, which took effect on July 1. The Florida law generally requires employers to allow employees, independent contractors and volunteers to keep firearms locked in or locked to private vehicles in an employer’s parking lot. Although the law was written to cover customers and business invitees as well, a federal court struck down that portion of the law at the end of July. In its split decision, the court upheld the law as it relates to employees, independent contractors and volunteers.

The Court’s Split Decision

In Florida Retail Federation, Inc. v. Attorney General, the court resolved a challenge to the new law on a preliminary basis. Unless the parties agree otherwise, this decision is subject to revision after further consideration.

The court upheld the constitutionality of the employee portion of the law and further concluded that it does not conflict with an employer’s obligation to provide a safe workplace under the Occupational Safety and Health Act (OSHA). This decision is contrary to an October 2007 federal district court decision that struck down an Oklahoma gun law due to a conflict with an employer’s OSHA obligations. (That case, ConocoPhillips Co. v. Henry, is currently pending before the Tenth Circuit Court of Appeals.) The court also struck down as unconstitutional the portion of the law relating to customers and invitees. The court found this portion to be irrational and therefore unconstitutional because it applied to only some businesses due to some unusual definitions used in the law.

As a result, employers in Florida must continue to comply with the law as it relates to employees. Businesses, however, may prohibit customers and invitees from bringing firearms onto their parking lots and other property, unless the situation is covered by some other law (e.g., law pertaining to law enforcement officials).

Prohibitions With Respect To “Employees”

Notably, this law defines the term “employee” to include independent contractors and volunteers as well as traditional employees. (To avoid confusion, these three categories – traditional employees, independent contractors and volunteers – are referred to below as “workers.”) Also, a worker must have a valid Florida concealed-carry permit to be protected under this law. Specifically, public and private employers may not:

  • Prohibit any worker with a concealed-carry permit from keeping a legally owned and lawfully possessed firearm locked in or to a private vehicle in a parking lot;
  • Ask a worker with a concealed-carry permit whether he or she has a firearm in a private vehicle in a parking lot;
  • Search for a firearm in the private vehicle of a worker with a concealed-carry permit;
  • Take any action against a worker with a concealed-carry permit based on any statement regarding a firearm inside a private vehicle in a parking lot for lawful purposes;
  • Condition employment on whether a person has a concealed-carry permit or on an agreement not to keep a legal firearm locked in a private vehicle in a parking lot;
  • Prohibit a worker with a concealed-carry permit from entering the employer’s parking lot because of a legal firearm that is for lawful purposes and out of sight within a private vehicle;
  • Terminate or discriminate against a worker with a concealed-carry permit based on the worker locking a gun in a private vehicle in the parking lot or based on the worker exhibiting a firearm for lawful defensive purposes.

These prohibitions apply only to privately-owned vehicles and not company vehicles. Also, a limited exception applies to various properties including school property, and property where the employer deals with regulated combustible or explosive materials.

What To Do Now

Florida employers should review and, as necessary, revise any existing policies that address firearms or a right to search employee property. Also, employers should conduct training for supervisors and security personnel regarding the new law and safety measures to be used in response to the risk of firearm violence. Note: Georgia and Louisiana recently enacted similar laws, so employers in these states should also review their policies for compliance with the new laws.