In a case arising out of Mississippi, the United States Court of Appeals for the Fifth Circuit ruled recently that terminating an employee for possessing a firearm in a legally permissible manner violates the “public policy” exception to employee at will. In Swindol v. Aurora Flight Sciences Corporation, 2016 BL 255951, Case No. 14-60779 5th Cir. August 8, 2016), the federal court had previously asked the Mississippi Supreme Court to answer a certified question about the effect of Mississippi Code Section 45-9-55 on the traditional employment-at-will rule in that state. The Mississippi Supreme Court ruled that the Mississippi statute, which makes terminating an employee for having a firearm inside his locked vehicle on company property “legally impermissible,” falls within the “public policy” exception to the employment-at-will rule.
Most employers are aware that Tennessee, and many other states, is an “employment-at-will” states where employees without a written employment contract or similar writing guaranteeing employment for a specific period of time, can be terminated at any time with or without cause, and that such employees are also free to resign at any time. Tennessee courts have previously created a “public policy” exception to that rule which provides that an employee cannot be terminated in violation of a “clearly expressed” constitutional, statutory or regulatory provision intended to protect certain actions, such as filing a claim under the Workers’ Compensation law. Tennessee also has a Public Protection Act, T.C.A. § 50-1-304, which prohibits the termination of an employee for refusing to participate in, or remain silent about, an unlawful activity.
Although the Swindol decision applies only within the Fifth Circuit Court of Appeals which includes Texas, Louisiana and Mississippi and is based on Mississippi law, the Tennessee courts, including the Sixth Circuit Court of Appeals, are likely to follow the same rationale based on the Tennessee statutes authorizing employees to bring firearms onto company property provided that they comply with certain requirements. In the 2015 legislative session, the Tennessee legislature passed a statute which specifically prohibits an employer from discharging or taking any adverse action against an employee solely for transporting or storing a firearm or ammunition in an employer parking area provided that the employee complies with the provisions of the “guns in trunks” legislation passed in 2013. (T.C.A. § 29-17-1313(a)).
Under that statute, the employee has the burden of establishing that he or she was terminated “solely” based on the employee’s transportation or storage of a firearm or ammunition in the employer’s parking area. The “guns in trunks” statute provides that employees may bring hand guns onto an employer’s property provided that they hold a valid handgun carry permit; park in a location on company property where they are permitted to park; and store the firearm or ammunition so that it cannot be observed if the permit holder is in the vehicle, or stored out of sight in a locked trunk, glove box or container securely fixed to the vehicle if the permit holder is not in the vehicle.
Although employers retain the right to require employees who bring firearms onto the company’s property to park in specifically designated areas, the law did not answer whether an employer could require an employee to disclose the fact that he or she had a valid handgun carry permit, or had a handgun in his or her vehicle on the company’s property. Given the prohibition of adverse action against an employee who exercises his or her right under the “guns in trunks” law, employers may consider it wiser to not know who has a permit or who has a handgun properly locked in a car on company property. Absent such knowledge, the employee will have the added burden of proving that the employer “knew” that he or she possessed a handgun carry permit, or brought a handgun onto the company’s property, as the first step in attempting to prove that any adverse action taken against the employee was taken “solely” because of those facts.
Of course, even “at will” employees cannot be terminated or subjected to an adverse employment action based on any category protected by law (race, gender, religion, national origin, age, etc.), in retaliation for filing a complaint under any federal or state non-discrimination law, exercising rights under a federal or state statute, or for engaging in concerted activity protected under the National Labor Relations Act. As savvy employers know, heavy reliance on the continually eroding “employment-at-will” doctrine could prove risky, and employers are wise to analyze and seek guidance to ensure that adverse employment decisions do not run afoul of the ever-growing exceptions.