On July 1, 2008, Florida's Preservation and Protection of the Right to Keep and Bear Arms in Motor Vehicles Act of 2008 (the "Guns At Work Law") will take effect. The Guns At Work Law provides that no public or private individual or other entity conducting a business in Florida may prohibit any customer, employee, or invitee from keeping a legally owned firearm inside or locked to a motor vehicle in a parking lot.
Under the Guns At Work Law, which will be codified at Florida Statutes section 790.251, employers are prohibited from:
- Asking employees, customers or invitees whether they have a firearm inside or locked in a vehicle in the employer's parking lot;
- Searching a vehicle in a parking lot to ascertain the presence of a firearm;
- Refusing to allow any employee, customer or invitee to enter a parking lot because of the presence of a firearm in such person's private motor vehicle;
- Taking any action against a customer, employee or other invitee based upon statements made by any party concerning possession of a firearm stored inside a private motor vehicle in a parking lot;
- Conditioning employment on the fact that an employee holds or does not hold a license to carry a concealed firearm;
- Terminating employment or otherwise discriminating against an employee or expelling a customer or other invitee for possessing a firearm, so long as the firearm is not exhibited on company property for other than lawful purposes.
The above provisions do not apply to motor vehicles owned, leased or rented by the employer or the employer's landlord. Additionally, the Guns At Work Law does not apply to:
- Correctional institutions;
- Nuclear-powered electricity generation facilities;
- Properties where substantial activities are conducted involving national defense, aerospace or homeland security;
- Properties where the primary business involves combustible or explosive materials;
- Property on which the possession of a firearm is prohibited under any federal law, contract with a federal government entity or Florida law.
The Guns At Work Law provides a private right of action for employees, customers or invitees whose rights are violated under the law; it also provides for the recovery of costs and attorneys' fees to the prevailing party. Additionally, the Florida Attorney General is authorized to bring a civil or administrative action to enforce the rights of any person aggrieved by a violation of the Guns At Work Law. The attorney general may seek damages, injunctive relief and civil penalties of up to $10,000 per violation. If the attorney general prevails, the state is entitled to recover its reasonable costs and attorneys' fees.
Constitutional Implications of the Guns At Work Law
The validity of Florida's Guns At Work Law is already under attack. The Florida Chamber of Commerce and the Florida Retail Federation have filed suit in federal court challenging the constitutionality of the law claiming it violates private property rights and conflicts with the requirements of the Occupational Safety and Health Act ("OSHA"), which requires employers to furnish their employees a workplace that is "free from recognized hazards that are causing or are likely to cause death or serious physical harm" to employees. These arguments might invalidate the Guns At Work Law. A federal court in Oklahoma has enjoined a similar law, finding that the federal obligation to provide a safe workplace for employees under OSHA's general duty clause trumps a state law that threatens workplace safety. See ConocoPhillips Co. v. Henry, 520 F. Supp. 2d 1282 (N.D. Okla. 2007). Oklahoma's Attorney General has appealed that ruling, the appeal is currently pending before the U.S. Tenth Circuit Court of Appeals.
Compliance With New Restrictions
Employers with operations in Florida should consider taking the following actions to comply with the new law:
- Review and update policies prohibiting firearms on the employer's property; exclude a bar against keeping legally owned firearms locked in personal vehicles in parking areas by persons with valid concealed-weapons permits;
- Review and update safety and security measures to deal with the increased risk of violence associated with the presence of guns on company property;
- Provide training on Florida's Guns At Work Law to Human Resources personnel;
- Provide training on Florida's Guns At Work Law to all security personnel.