Due to the extensive drilling and production activity in the Eagle Ford, Marcellus, Bakken, and other shale plays, E&P companies are reviewing their policies regarding the possession and use of alcohol, drugs, and guns and other weapons by employees and contractors. Here are five factors to consider in creating or updating your own policies:
- Institute “No Expectation of Privacy” Policies: By making it clear in your policies that employees and contractors have no reasonable expectation of privacy in areas such as their vehicles, offices, desks, file cabinets, computers, or lockers, you may protect yourself from potential liability. See O’Connor v. Ortega, 480 U.S. 709, 717 (1987). Even if the search invokes the Fourth Amendment (discussed below), a search is not in violation of the Fourth Amendment unless the employee had a reasonable expectation of privacy. Furthermore, other potential tort claims, such as invasion of privacy, must similarly involve some expectation of privacy.
- Consider posting a “No Concealed Handgun” sign: In Texas, a land owner or lessee can preemptively prevent a concealed weapons license holder from carrying a “handgun” on an owner’s premises by posting a sign that is compliant with § 30.06 of the Texas Penal Code. Section 30.06 prohibits concealed weapons license holders from “carry[ing] a handgun on [the] property of another without effective consent.” TEX. PENAL CODE ANN. § 30.06(a)(1) (West 2011). A person carrying a concealed handgun who fails to heed signage that complies with § 30.06 commits a Class A misdemeanor. By the letter of the law, compliant signage must be a single sign in contrasting colors with text 1” or greater in height. It must contain exactly the text specified by law and be in both English and Spanish. The sign must be posted in a conspicuous manner that is “clearly visible to the public.” Id. Concealed handgun license holders are generally instructed that signage that does not comply exactly with § 30.06 is not binding. Other states may have similar signage requirements.
Note that in Texas, an employer generally cannot prohibit an employee who lawfully possesses a firearm or ammunition from “transporting or storing a firearm or ammunition . . . in a locked, privately owned motor vehicle in a parking lot, parking garage, or other parking area the employer provides for employees.” TEX. LAB. CODE ANN. § 52.061 (West 2012). However, there are several exceptions to this limitation, such as if the employer leases the property under a valid oil, gas, or other mineral lease, and the lease prohibits possession of firearms on the property.
- Include prohibitions in your leases and contracts: Consider including language in your master service agreements and other contracts preventing employees of contractors and subcontractors from carrying handguns or other weapons onto the premises. Clearly establishing these limitations at the outset of the relationship will not only set expectations, but also provide remedies if an incident does occur. Examining your current leases and contracts will also instruct as to whether you may prohibit employees from storing firearms in their locked, privately owned motor vehicles, as discussed above.
- Exercise caution in using private security or police to conduct searches: Drilling operators are private employers and are not generally subject to the search and seizure provisions of the Fourth Amendment. However, by involving public police officers in conducting searches for contraband, you run the risk of involving a “state actor,” thereby invoking the requirements of the Fourth Amendment, which require voluntary and knowing consent by the employee before a search is conducted. Even using a private security officer may invoke the requirements of the Fourth Amendment if that officer retains certain police powers or acts under color of state authority, such as carrying a deadly weapon or maintaining the power of arrest greater than that of a normal citizen. It is important to ensure that, if you use a private security guard, the security guard acts separate and apart from law enforcement. Note that there is no reason why law enforcement may not become involved after a search is completed.
- Get your employees’ written consent to search: Regardless of the legality and propriety of an employee search, it is a wise practice to obtain an employee’s prior written consent to search his person or property. Such consent may be obtained in a general consent form that the employee signs at the beginning of, or any time during, the employment relationship. Consent to search is a defense against Fourth Amendment claims of unlawful search and seizure and other private tort claims and it is not generally unconstitutional for a private employer to require consent as a condition of employment. See U.S. v. Sihler, 562 F.2d 349 (5th Cir. 1977).