On Monday, July 28, 2008, a federal judge preliminarily upheld a portion of Florida's "Guns-At-Work" law which went into effect on July 1, 2008. Denying in part, and granting in part, a preliminary injunction sought by Florida business groups, Judge Robert L. Hinkle of the U.S. District Court for the Northern District of Florida decided that the portions of the law applicable to employees, as defined by the statute, are likely constitutional and may be enforced, whereas the portions of the law applicable to customers and invitees are unlikely to withstand constitutional scrutiny and may not be enforced.


The employee portion of the law prohibits an employer, as defined by the statute, from conditioning employment upon whether an employee or prospective employee has a concealed weapons permit and further prohibits an employer from terminating or discriminating against any employee for possessing a legal firearm locked inside a vehicle on the employer's property. Additionally, an employer may not inquire as to whether an employee has a firearm locked in a personal vehicle nor perform any search of a motor vehicle to ascertain the presence of a firearm. Judge Hinkle refused to block the enforcement of these provisions at this stage—thus non-exempt employers must allow employees who hold concealed weapons permits to keep guns in their locked cars.


Judge Hinkle ruled that the portion of the law that applied to customers was likely unconstitutional because the law requires a business with at least one worker who holds a concealed-carry permit to allow a customer to have a gun in a vehicle in a parking lot without regard to whether the customer has a concealed-carry permit, whereas a similarly situated business without a worker who holds a concealed-carry permit is not required to allow a customer to have a gun in a vehicle in a parking lot. Prior to the ruling, the law precluded employers from prohibiting a customer or other invitee (vendors, visitors, etc.) from possessing legal firearms in their vehicles as well as prohibiting searches of the vehicles driven by customers and invitees. As a result of the ruling, the Attorney General is not permitted to enforce any portion of the law that addresses an employer's treatment of customers or invitees.


Notably, Judge Hinkle's ruling did not affect any of the possible exemptions from the law including those which apply to employers which conduct substantial activities involving national defense, aerospace, homeland security or those whose primary business involves certain type of combustible or explosive materials.


Judge Hinkle emphasized that his ruling is preliminary in nature and is subject to revision when the action is fully submitted on the merits. The parties to this case are now reviewing Judge Hinkle's opinion to determine the best course of action, which may include an interlocutory appeal.

What Employers Need to Do

It is imperative that each employer have a policy which follows the above recent ruling and implement the appropriate training program to ensure compliance. Failure to comply may expose the employer to potential liability including an award of all reasonable personal costs and losses suffered by the employee as well as a recovery of costs and attorneys' fees.