Beginning in 2011, Texas law prohibits most public and private employers from preventing employees who otherwise lawfully possess a firearm or ammunition from transporting or storing those items in a locked, privately owned motor vehicle in employer-provided parking areas. Texas employers may not impose handgun bans by posting a notice under the Texas Penal Code or by including such a ban in a mandated, federally approved facility security plan, the Attorney General of Texas has said in an opinion released November 5, 2012. In addition, the Attorney General noted that, although the Texas Labor Code (Section 52.061) does not provide a specific remedy to employees for any such violation by an employer, employees might be able to pursue claims for violations against employers under the Uniform Declaratory Judgments Act.
Enacted in 2011, Section 52.061 of the Texas Labor Code provides that an “employer may not prohibit an employee who holds a license to carry a concealed handgun . . . from transporting or storing a firearm . . . in a locked, privately owned motor vehicle in a parking lot, parking garage, or other parking area the employer provides for employees.” However, the law does not authorize a concealed handgun licensee “to possess a firearm . . . on any property where the possession of a firearm . . . is prohibited by state or federal law.” Tex. Labor Code § 52.062(a)(1).
Under the Texas Penal Code (Ann. §§ 30.06(a)-(c)), a property owner, under certain circumstances, may prohibit concealed handgun license holders from carrying a concealed firearm by giving a specific oral or written notice that entry on the property with a concealed handgun is forbidden.
Under certain federal laws and regulations, including the Maritime Transportation Security Act and the Chemical Facility Anti-Terrorism Standards, employers must implement facility security plans that may include bans on firearms. Those plans must be submitted to federal officials for approval.
Penal Code, Facility Safety Plans Do Not Trump Gun Law
The Texas AG was asked several questions regarding whether an employer could prohibit employees with concealed handgun licenses from storing firearms in personal vehicles in their employers’ parking lots under the “prohibited by law” exception. First, the AG examined whether posting a notice in accordance with the Texas Penal Code would come within the exception. The AG noted that, while the Penal Code allows property owners to post a notice prohibiting the possession of concealed handguns on their property, the statute itself does not prohibit possession of a firearm. Thus, the AG concluded that the notice did not constitute “state law” and could not overcome the protections under Section 52.061. Accordingly, the AG determined an employer may not ban the transport and storage of handguns in locked private vehicles in employee parking areas by posting a notice authorized by the Penal Code.
The AG next examined whether facility security plans required by federal law and approved by federal officials preempted the Texas law. The AG noted that a federal statute may preempt state law explicitly, or impliedly, where federal legislation occupies the entire field of regulation and leaves no room for state law or where there is actual conflict between state law and a federal statute such that the state law acts as an obstacle to the objectives of Congress.
The AG determined that federally approved facility security plans did not equate to a federal law that would preempt Section 52.061 because such plans were not a law passed by Congress or “federal regulations properly adopted by an agency acting within its congressionally delegated authority.” The AG noted that a facility security plan, even if mandated by federal law and approved by federal officials, was not a congressional enactment or agency regulation. Accordingly, the AG found an employer could not refuse to comply with Section 52.061 based on a facility security plan.