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Employee Gun Possession (Outside Employer Property) Presumptively Protected Against Employer Retaliation?

Private employers are, in nearly all states, presumptively free to fire employees for any reason or no reason at all. There are quite a few statutory limits on this (such as bans on discrimination based on race, sex, and the like), and of course this rule can be changed by contract, whether individual employment contract, union contract, or academic tenure contract. Many states have also recognized judge-made rules of "termination in violation of public policy," for instance when an employer fires an employee for performing jury duty, alerting authorities to employer violations of safety regulations, or doing other things.

Some courts have looked to state constitutional protections as sources of such "public policy." Thus, even when the state constitution only prohibits government suppression of certain conduct, state courts may use this (but certainly do not always us ethis) as a guide for fashioning similar common-law prohibitions on private employer conduct. The rules vary from state to state, and they can be trumped by state statute, since these are just common-law rules (even when inspired by the state constitution), not constitutional mandates. Still, they are potentially quite important.

A federal district court has just applied this principle to hold that Ohioans — even ones employed by private employers — are presumptively protected from being fired for off-employer-property (and presumably off-duty and lawful) possession of guns. The case is Plona v. UPS, 2007 WL 509747 (N.D. Ohio Feb. 13) (emphasis added):

Plona, an Ohio resident, was employed by UPS at a facility in Cleveland, Ohio.... Plona ... was terminated in April 2006, allegedly because UPS discovered that Plona had a handgun in his vehicle while at work. Plona alleges that he had the handgun, which was disassembled and unloaded, and locked in his car in a public-access parking lot used by both UPS employees like Plona and non-employees/customers of UPS. On the day of his termination, UPS announced that law enforcement would be conducting a routine search of all persons and property on UPS premises for contraband. When Plona informed law enforcement about the handgun locked in his car, and the handgun was then discovered, he was terminated....

[T]he court proceeds on the facts alleged in the complaint and all inferences drawn in Plona's favor, meaning that the court presumes for the purposes of this motion that the parking lot where Plona's car was parked was not UPS company property....

Plona has made one claim in his complaint against UPS, for wrongful termination in violation of Ohio public policy. That claim, under Ohio common law, has four elements: (1) that a clear public policy existed and was manifested in the federal or state constitution, statute or administrative regulation, or in the common law (the “clarity” element); (2) that terminating employees under the alleged circumstances would jeopardize the public policy (the “jeopardy” element); (3) that the termination was motivated by conduct related to the public policy (the “causation” element); and (4) that the employer lacked overriding legitimate business reasons for termination (the “overriding justification” element).... The first two elements — clarity and jeopardy — are questions of law, to be determined by the court..

In this case, the claimed source of the “clear” public policy is the Ohio constitution, Article I, Section 4, which states that “[t]he people have the right to bear arms for their defense and security ...” Plona asserts that Ohio has a clear public policy, as stated by its constitution, permitting its citizens to bear arms and that allowing UPS to terminate him for possessing an unloaded, disassembled firearm off of company property would jeopardize that public policy.... The court finds that the public policy of Ohio permitting citizens to bear arms, as stated in Article I, Section 4 of the Ohio constitution, is clear enough to form the basis of a wrongful termination claim.

As far as the court could determine, only one court has previously addressed whether the right to bear arms, as enshrined in Article I, Section 4 of the Ohio constitution, can serve as the basis for a wrongful termination in violation of public policy claim. Petrovski v. Fed. Express Corp., 210 F.Supp.2d 943, 948-49 (N.D.Ohio 2002). However, the plaintiff in Petrovski was not terminated for possession of a firearm, just for “conversations concerning firearms.” Therefore, while the court in Petrovski addressed the question before this court, it did so only in dicta, as it was not faced with the situation of actual firearm possession as in this case....

Burdens on employees while at work do not jeopardize their rights; they are instead permissible limits on the rights enshrined in the Ohio constitution. See, e.g., Ohio Rev.Code § 2923.126(C) (permitting a private employer to prohibit firearms on company property).

On the other hand, punishing employees for exercising constitutional rights while outside the workplace jeopardizes public policy to a much greater degree.... Permitting UPS to terminate Plona for possession of a firearm off of company property would be no different than permitting UPS to terminate Plona for possessing a firearm at his residence. And allowing an employer to terminate an employee for exercising a clearly established constitutional right jeopardizes that right, even if no state action is involved.

Therefore, because the court presumes that Plona's possession of handgun was not on UPS property, and UPS did not have a policy prohibiting Plona from possessing a firearm at that location, the court shall deny UPS's motion to dismiss. However, the court will allow the parties to revisit this issue after discovery, on summary judgment, if necessary....

Note that this is only presumptive protection — in some situations, an employer might still argue that it has an "overriding legitimate business reason[]" for the termination. Note also that this is just one district court; it's not clear whether this view will be upheld on appeal, or accepted by Ohio state courts (which are the ultimate arbiters of Ohio law, and which treat federal decisions of Ohio law as at most persuasive, not binding, precedent). Still, it struck me as worth noting, especially since similar arguments could be made in the many other states that have individual right-to-bear-arms provisions in their state constitutions.

Related Posts (on one page):

  1. Firing Employee for Lawfully Carrying a Gun When on Company Business:
  2. More on Firing Employees for Possessing Guns Outside Employer Property:
  3. Employee Gun Possession (Outside Employer Property) Presumptively Protected Against Employer Retaliation?
John (mail):
I must say that as a policy matter I don't get this. How is this different from, say, exercising your constitutional right to be a member of the KKK and getting fired for being a bigot? But, you say, correctly, that you have a constitutional right to be a bigot! Yes, you do. But I don't see why I must employ you if I don't like you.

If it is so important (e.g., like protecting against racial discrimination), let the state pass a statute. But if I don't like some one, e.g., because he is a Republican, or a Ward-Churchill-raving-lunatic, I should not be required to keep him in my employ, even though the reason I don't like him is the way he chooses to exercise various rights he has (voting, speaking, etc.).

Do you think the result would be different if the employer were some little old lady and this guy was her chauffeur?
2.22.2007 3:00pm
Byomtov (mail):
I don't understand. Is the lot UPS property or is it a public parking lot located near UPS, so that it is just convenient for UPS employees and customers to park there?

If the latter, on what basis is it part of "UPS premises" subject to search? If the former, why the court's presumption otherwise? Surely it's no great mystery who owns the lot.
2.22.2007 3:04pm
tjvm:
From the opinion:

"From the allegations of the complaint, it is unclear precisely where the parking lot was located in relation to UPS's facility, and whether the parking lot was owned by UPS (and therefore considered "company property"). However, the court proceeds on the facts alleged in the complaint and all inferences drawn in Plona's favor, meaning that the court presumes for the purposes of this motion that the parking lot where Plona's car was parked was not UPS company property. After discovery in this matter, should that turn out not to be the case, the court is willing to revisit this issue."
2.22.2007 3:15pm
Bob Leibowitz (mail) (www):
An inferential nuance is the court's recognition of an implicit individual right as opposed to a state militia convenience. This may give rise to caution on the part of overly zealous employers.

As to the comparison to speech with KKK content, I suspect such speech would be equally protected if delivered off the premises. This is in line with general acceptance of the limits of an employer's purview.

I can and would fire a bigot for being a bigot on the job, but I don't think that I can fire a bigot if his only bigotry is expressed elsewhere.

Of course, given that bigots of both the left and right tend to be ungracious people, I would hope not to hire such or, having done so, would feel free to fire them for the attitude they bring to work.
2.22.2007 3:22pm
arbitraryaardvark (mail) (www):
Plona is represented by the teamster's union. I wonder what position if any they took in the dispute. Did Plona pay for his own lawyer?
Byomtov: The post doesn't say they searched his car, it says he told them there was a gun in his car.
John: Certainly there's your side to that argument. I think what may have been important here is that UPS didn't have a stated policy that employees couldn't own guns - they fired him arbitrarily, for off the job conduct. The statutes distinguish between being a member of an unpopular organization,which you can be fired for, and certain other activites or statuses.. voting may be protected in Ohio from employer retaliation. Hmm, perhaps that's why some branches of the KKK register as churches, with a possible protection of employment rights on religious grounds. Whether normatively there should be such statutes, is a different question.
2.22.2007 3:24pm
Waldensian (mail):
I'm nobody's idea of an employment lawyer, so pardon the stupid question: to what extent does the "public policy exception" in wrongful termination cases apply to hiring? I.e., assuming this ruling stands, could a company still discriminate on the basis of lawful gun ownership when hiring?
2.22.2007 3:27pm
Tom Holsinger (mail):
You haven't LIVED as an attorney until you discover, during a deposition, that your client has carried a loaded gun into the deposition.

"You don't really think you can get this case to trial, do you, Tom?"
"You have a point, Larry, he wouldn't get past the metal detector."

Judge Larry O'Neill now sits on the USDC Eastern, Fresno.
2.22.2007 3:30pm
billb:
It seems like the smart thing to do is to not give employees a reason for termination. Don't say, "I'm firing you because I don't like bigots, and you go to KKK meetings after work." As long as the employee hasn't been bigoted toward someone while on the job, he doesn't need to know that his off-job behavior is the reason you fired him. Just say, "Joe, we have to let you go. Sorry." Fight the human urge to rationalize it.
2.22.2007 3:32pm
DaveN (mail):
I think an important part of the decision is that it is the denial of a motion to dismiss based on the pleadings--which are construed in favor of the non-moving party and to which the moving party is entitled to judgment solely as a matter of law.

Thus, since the property's ownership is ambiguous, the court must presume it is property not owned by UPS--a fact that will likely be resolved by the time UPS files the Motion for Summary Judgment.

My specialty is not employment law, so I have no clue as to what limitations there are to employment at will for such things as as an employee's political affiliation or activities when such affiliation or activities are being conducted on the employee's private time.
2.22.2007 3:37pm
Brian G (mail) (www):
If the Russians ever parachuted outside of the firm where I work, a la Red Dawn, they would be outgunned just by the partners. I am afraid to tell them I only own 2 guns lest I find myself out of a job!

Plus, at my firm, the "I'm out for the rest of the day, I'm going to the shooting range" is as acceptable as saying "I have to go, my kid just got rushed to the hospital."
2.22.2007 3:38pm
Justin (mail):
From a Federal Courts standpoint, this seems like a pretty awful decision. Federal courts should be pretty (small c) conservative when it comes to carving out new state common law. It seems like the better option, if available, would have been to refer the issue to the Ohio Supreme Court (a conservative enough institution, though very corporate friendly, as well), or in the alternative, dismiss the case as not ground in any established state law.

I assume an appeal will be forthcoming.
2.22.2007 3:39pm
Duncan Frissell (mail):
You haven't LIVED as an attorney until you discover, during a deposition, that your client carried a loaded gun into the deposition.

I bet cops do it all the time. Whenever I'm thinking about meeting (and arguing) with cops at work (as I do frequently), I always consider that it's hard to argue with armed men.
2.22.2007 3:41pm
Adeez (mail):
This is a great issue, and I am genuinely interested in what the many libertarians here think.

Employment-at-will is a very strong doctrine, so to speak. Every additional exception to this rule vastly increases litigation, and thus, costs for employers.

True, Boss could fire Worker for no reason at all, nor need Boss give Worker a reason. Boss could simply say "GET OUT" and that's that. However, all Worker need do is claim that since no reason was given, then the real reason "must" have been b/c of his race, or age, or national origin, or gender etc. etc. Once we start adding additional, vaguer, standards like public policy, the potential for abuse skyrockets. It's not that hard to make a prima facie case of discrimination when the employer refuses to give a reason for discharge.

Note, to the few here who lack reading comprehension skills, that I'm not making any judgments. I'm just exploring the issue. And I do genuinely wanna hear from a libertarian, if one would be so kind.
2.22.2007 3:45pm
JosephSlater (mail):
As an employment law prof. living in Ohio, first, thanks for posting a very interesting case.

Second, this strikes me as a BIG departure from the general run of "wrongful discharge in violation of public policy" cases. This area of tort law has been almost exclusively confined to cases involving acts and public policies with a specific nexus to the workplace. So, it can be a violation to fire somebody for refusing to perjure themselves about their employer or otherwise refusing to commit a crime on their employer's behalf; for refusing to violate a safety regulation applicable to the employer; for missing work time for jury duty; even seeing a lawyer about a injury that occurred because of the job (as in the case the court cites).

There is no such nexus to the workplace here. I think John got it right in his first comment: if this gives rise to a public policy action, why doesn't, say, an exercise of speech protected by the First Amendment? The tort of wrongful discharge has not been held to prevent private employers from firing employees for political speech off the job, for example. And we don't have to go to the KKK/Nazi/communist examples. I don't know of any decision that holding that a private sector employer who fired an employee for being a Republican, Democrat, or Libertarian might be committing the the tort of wrongful discharge in violation of public policy.

I don't see how this case could be upheld without creating broad and unprecedented inroads into employemnt-at-will. I suppose a court could decide that the Ohio Constitution privileges gun ownership more than, say, free speech rights. But if I were a betting man, I would bet against it.
2.22.2007 3:57pm
PersonFromPorlock:
I think I'd like to see an employee, fired for off-duty behavior, sue his former employer for back wages on the grounds that the employer was asserting 24/7 employment when he'd only paid for 8/5.
2.22.2007 4:17pm
Bruce Hayden (mail) (www):
When I was inside counsel in AZ, I quasi ran into this. AZ passed a must issue concealed carry law, and so I had notices placed at the entrances forbidding the carrying of firearms into the plant. But we also published to the employees that they couldn't have firearms on company property. Fine. But I also knew that a lot of the employees had guns locked in their cars in the quasi-company parking lot. Only quasi now, because we had sold the building and adjoining property and were leasing it back. So, technically, under this, we probably couldn't enforce the prohibition in the parking lots anyway. But our real concern was having the notice to employees on record for our own liability, so we never searched the cars in the parking lot (might have had to fire a good chunk of the employees, given how many had concealed carry permits).

And, luckily, I never saw any guns, nor did any of the employees admit to me that they were carrying or had guns in their cars, so never had to address any of these issues. It might have been a disaster if I had, since our employment counsel was in an extreme Red State, and would likely not have understood the gun culture that I was dealing with.
2.22.2007 4:24pm
Justin (mail):
Certification by federal district courts to the Supreme Court of Ohio is permitted. See, e.g., Smith v. Howard Johnson Co., 615 N.E.2d 1037 (Ohio 1993). As such, I repeat my distaste for the decision on comity grounds.
2.22.2007 4:45pm
Waldensian (mail):

AZ passed a must issue concealed carry law, and so I had notices placed at the entrances forbidding the carrying of firearms into the plant.

I don't follow this reasoning. Is there any evidence that persons with concealed carry permits are likely to use lawfully carried firearms to injure others at work? Did the insurance company freak? Or were you just following a dictate from on high, reasons unknown?
2.22.2007 4:52pm
David M. Nieporent (www):
True, Boss could fire Worker for no reason at all, nor need Boss give Worker a reason. Boss could simply say "GET OUT" and that's that. However, all Worker need do is claim that since no reason was given, then the real reason "must" have been b/c of his race, or age, or national origin, or gender etc. etc. Once we start adding additional, vaguer, standards like public policy, the potential for abuse skyrockets. It's not that hard to make a prima facie case of discrimination when the employer refuses to give a reason for discharge.
Sometimes not -- but sometimes the lack of reason can make it harder for an employee. No reason given = no way for the employee to even call its credibility into question, let alone prove it was a pretext. (Of course, the employee doesn't need to disprove the employer's reason in order to make out a prima facie case, but it gives the employer flexibility later to explain why the employee was fired.)

But you're definitely right that the vaguer the standard -- and public policy can be quite vague -- the more burden it puts on employers, and the more creative it allows plaintiffs' attorneys to be.


Note, to the few here who lack reading comprehension skills, that I'm not making any judgments. I'm just exploring the issue. And I do genuinely wanna hear from a libertarian, if one would be so kind.
As a libertarian, I think employment at will means employment at will. In the absence of an employment contract, employers (private sector employers, that is) should be able to fire an at-will employee for any reason at all, just as an at-will employee can quit for any reason at all.



Incidentally, to add to the original EV post, in addition to general "public policy" grounds, some states have explicitly passed laws saying that employees can't be fired for lawful behavior in their off time. (Some of those laws were passed to protect smokers, but they're often written more broadly.)
2.22.2007 4:59pm
Byomtov (mail):
AA,

The post doesn't say they searched his car, it says he told them there was a gun in his car.

Yes, but he didn't just walk in and announce it. He told them because it was about to be searched.

And, not being a lawyer, it is incomprehensible to me why no one bothered to find out who the lot belonged to before spending time on this. Does it really need discovery, etc.?
2.22.2007 5:09pm
Eli Rabett (www):
I know any number of places that will fire any employee who brings a gun (or a bunch of other stuff) onto their property. As said above, the policy has to be announced. The funny thing is that people continually bring guns and other stuff and get fired and get mad.
2.22.2007 5:46pm
JosephSlater (mail):
David M. Nieporent:

Yeah, I thought about those "any lawful activity" statutes, which haven't gotten the play in the courts I would have predicted. But I hope you would agree, the wronfgul discharge tort has never been read that broadly.

Byomtov:

If I had been the company's lawyer, I wouldn't have bothered to check the ownership of the lot, because I would have been quite confident that it didn't matter in that, assuming the employee was at-will, I could fire him for off-duty, off-property conduct. Of course, I would have been wrong. . .
2.22.2007 6:03pm
Henri LeCompte (mail):
Well, this case does bring up the somewhat interesting question of just where, exactly, is the "line of privacy" beyond which there is no justification for an employer venture?

In this case, for the sake of argument, lets say that the parking lot was not UPS's property. So, in other words, the employee was just a "gun owner." Can an employer fire you for that? What about this-- does an employer have the power to search your home, your car, your person, your private property? If you refuse, you are fired. Why not? Does an employer have the authority to forbid you from getting married? Having children. Drinking socially? On and on and on. Do any of these things and you are fired!!

So, are you an employee or a slave? I can't help but think that living in a "right to work" state does NOT mean that you have no enforcable right to privacy from your employer. That sounds like insanity.

It also sounds like some of you are advocating precisely that! When you talk about firing bigots, then you are suggesting that your employer has the authority to discover that you are a bigot. Just like in this case, when they searched this guy's private property that was not on UPS grounds. Why couldn't they search his car or house to find out if he was a bigot also?
2.22.2007 6:05pm
Hattio (mail):
Just out of curiousity, how many states have a duty of good faith and fair dealing clause implied to all employment contracts by public policy? I know there is an Alaska case which decided an employer couldn't make a shift worker (two weeks on and two weeks off) come in and do a UA over the time he was off. I don't remember the exact holding was though, and if I remember right the holding was fairly narrow.
2.22.2007 6:08pm
Houston Lawyer:
I would like to know what other activities are covered by this exception to the employment at will doctrine. Would they be barred from firing him if they had found porn in his car?

If an employee is prohibited from carrying a gun in his car and is carjacked on the way home is his employer liable for depriving him of his preferred means of self defense?
2.22.2007 6:16pm
glangston (mail):
This reminds me of the story, true or not, of one Auto Maker only allowing their brand of auto in the company lot. Find your own spot to park if you were a traitor.

Lawful ownership of anything seems to be entirely different than the issue of free speech. What if the item were a prescription for Viagra? Or a copy of the Communist Worker's Daily? The court proceeded as if the company did not own the lot. I'm not aware that a lot owner cannot search your car for his own purposes nor could an operator that leases unless given specific permission by some contract.
2.22.2007 6:24pm
JosephSlater (mail):
Hattio:

Very few states use the duty of good faith and fair dealing doctrine in employmnet at-will cases.

Houston Lawyer:

The tort of wrongful discharge in violation of public policy is pretty narrow (see my earlier post about the types of things it typically covers). There is no way it would cover an employee with porn in his car, and FWIW, that's why I think the case at issue is wrong, or at least a radical reinvention of the law. Reading sexually-themed materials that are protected by constitutional free speech guarantees is not at all what the tort of wrongful discharge has been held to protect in the past, and it's hard for me to distinguish that from owning a weapon when that is constitutionally protected.

Again, it's long been established that employees-at-will can be fired for conduct that is off-duty and off the employer's property, even for conduct that the governmet couldn't constitutionally prohibit.

Henri L.: Some of the issues you raise might be enough to get into a statutory or other exception to at-will. But the default rule is at-will (please note I'm not endorsing that here), which means that unless you find an applicable legal exception, the employer can fire for any reason or no reason at all. Oh, and "right to work" doesn't mean what you are using it to mean -- it's a rule in labor law about whether unions and employers can enter into union security agreements that require some portion of dues to be paid.
2.22.2007 6:33pm
Adeez (mail):
"As a libertarian, I think employment at will means employment at will. In the absence of an employment contract, employers (private sector employers, that is) should be able to fire an at-will employee for any reason at all, just as an at-will employee can quit for any reason at all."

Thanks for the response David N. This is an area of law that I practice, and I still don't know where I stand on the issue. This is one where people may very reasonably differ. But your approach certainly has simplicity and efficiency on its side: both worthy goals. Although it'd put a lot of lawyers out of work! But about five times a week I find myself giving a lecture to a complainant about capitalism and the free market: I tell them that if people were allowed to sue their bosses for being treated unfairly the economy would stop in its tracks and courts would have to be open 24-hrs a day. And this is coming from someone who's neither libertarian nor conservative.
2.22.2007 6:38pm
Joel:
glangston, that's the Ford truck plant in Dearborn, MI.
2.22.2007 6:40pm
JosephSlater (mail):
Following up on the discussion about "at-will" David N. and Adeez are having, the problem is that we don't and won't have anything like pure at-will, so it's arguably not simple or efficient. There are federal statutory exceptions to at-will, state statutory exceptions, and state common-law exceptions -- and needless to say, the state exceptions vary considerably.

In a way, we have the worst of both worlds: U.S. law has many, many, small but often vauge exceptions to employment at-will, which often make employers (or at least their counsel) wary of firing; but the exceptions turn out to be narrow and hard to prove, which means employees often still get fired for dumb, morally questionable "reasons" with no legal recourse.

The pure libertarian answer would be to go back to employment at-will, but there's no realistic chance we're repealing Title VII or getting rid of most of the other exceptions. The hardcore employee rights view is to adopt a default "just cause" rule. To Adeez, I would note that almost every other industrial democracy has abandoned at-will in favor of a default just cause rule, and while there are plusses and minuses to this, you can't say that the economies of, say, Japan and Western Europe have all stopped in their tracks. But whatever you think of that rule, it's not going to happen in the U.S. either. Except in Montana. . . .
2.22.2007 6:48pm
DaveN (mail):
Adeez wrote, "Thanks for the response David N."

Just for quick clarification, David M. Nieporent and I (DaveN)are two different people. I have posted exactly once on a fairly minor point in this discussion but I do not want there to be any kind of confusion between "David N." and "DaveN" where none should be.

That said, I am enjoying this discussion because there are evidently two employment law experts having a very civilized discussion (Joseph Slater and David Nieporent).

This contrasts sharply with some other threads where civiliity does not always rule.
2.22.2007 7:14pm
33yearprof (mail):
[quote]So, are you an employee or a slave? I can't help but think that living in a "right to work" state does NOT mean that you have no enforcable right to privacy from your employer. That sounds like insanity.[/quote]

No. It is serfdom. Precisely the status in which many "enlightened" (arrogant, elitist) employers prefer to see their employees.

It is almost impossible to find a policy level executive who doesn't have "just cause" employment. What's sauce for the goose should be sauce for the gander.
2.22.2007 7:37pm
DaveN (mail):
Ironically, "employment at will" was originally seen as a reform beneficial to the worker since previously he was tied down through long-term contracts with the employer.

My how times have changed.
2.22.2007 7:55pm
A. Zarkov (mail):
How about smoking, off the job site of course? Some companies prohibit their employees from smoking anywhere. A city in Florida has prohibited employees from smoking even in their own home.
2.22.2007 8:46pm
David M. Nieporent (www):
Blush. Just to be clear: unlike Prof. Slater, I am not by any stretch an "employment law expert." I've assisted colleagues in a few employment law cases in my day, but IP is my field.
2.22.2007 10:33pm
Dave N (mail):
David Nieporent:

OK--not expert--just intelligent, thoughtful, and well-spoken. You and Professor Slater have had an enjoyable discussion that I, for one, have learned from.
2.22.2007 10:56pm
Joe Huffman (mail) (www):
Great stuff. And so very, very appliciable to my situation. I was able to determine the reason I was fired was about guns because of the content of my blog and other websites that interested them. If I had not had all my log files (and my kids and some of my friends) I would have never known what hit me. As it is I'm in the middle of discovery now.

For the short version of my story see this web page.
2.23.2007 1:49am
A. Zarkov (mail):
Joe Huffman:

Very interesting but not at all surprising. The national labs, including Los Alamos, Livermore, Oak Ridge, Berkeley, Brookhaven etc have been notorious for trampling on their employees. Don't trust them on discovery. One of those labs got caught red-handed destroying documents they were supposed to turn over as part of discovery. While it hurt their court case, they got away with it.
2.23.2007 3:08am
JosephSlater (mail):
David M. N., DaveN, others: thanks, and please call me Joe. Wait, there's also a Joe Huffman posting. . .

A. Zarkov:

As to smoking, as someone mentioned earlier, a number of states have passed *statutes* that prohibit employers from discriminating against employees because of their tobacco use. And again, a few states have passed laws purporting to ban discharges of employees on the basis of the employee using lawful products or taking part in lawful activities (although again, there has been surprisingly little litigation under these laws.

Also, unions typically negotiate "just cause" discharge rules in union contracts, and I doubt smoking off duty would be considered "just cause."

Absent something like that, the tort of wrongful discharge wouldn't protect employees from being fired for being smokers, nor would other employment law rules. Of course, employers are interested in whether their employees smoke because of the almost unique system in the U.S. that puts the so much of costs of health care on employer-sponsored plans.

Also, some of the situations you cite involve public employers, and the rules governing them are somewhat different. Notably, public employees enjoy some constitutional protections (because government employment constitutes state action), unlike private sector employees. See, e.g., the drug testing cases: drug testing private sector workers generally presents no legal issue at all; but in the public sector, the 4th Am. bars certain types of drug tests on certain employees (suspicionless tests of employees who are "not safety sensitive," to be specific).

Finally, the practical point. Even if a law does bar firing an employee for a particular reason (because of their race, tobacco use, or whatever), it's always a tricky proof question for employees to prove that the particular prohibited reason was, in fact, the motivating reason. Employers don't typically say, "sure, I fired him because he was black, is that a problem? They say, "race had nothing to do with it, he was incompetent." And the burden of proof -- which has, in practice, been pretty hard to satisfy -- is on plaintiff. That doesn't mean people don't bring suits when they lose their jobs -- they do. But they usually don't win. Again, arguably the worst of both worlds.
2.23.2007 10:17am
Pol Mordreth (mail):
Messrs Slater and Nieporent, I must add my appreciation for the civility of the debate and also the qualtiy of the debate at this site. I am not an attorney, though I do consider myself reasonably well read on legal matters. I have a few questions in view of clarification:

That doesn't mean people don't bring suits when they lose their jobs -- they do. But they usually don't win. Again, arguably the worst of both worlds.

But isn't that the effect of unemployment compensation? (whether intentional or not) In my experience, an individual fired for any reason / no just cause reason files for unemployment, the employer usually doesn't fight it, and everyone moves on. if there wasn't a safety net, i feel that we would have much more restrictions on dismissing workers.

Back to the firearm aspect, here in TN I have seen many employers prohibit the carrying of firearms by their employees on company property, but on researching the applicable statutes they never posted the property in accordance with state law. My question is this: Since TN employment law states that an employee handbook / rulebook is a de facto employment contract, and therefore the at-will doctrine is modified by the contents of the handbook, would the handbook statement prohibiting firearms generally be seen as obviating the need for the postings as requires in Tennessee code 13-17-1359

Thank you
2.23.2007 12:03pm
JosephSlater (mail):
Pol Mordreth:

Your point about the effect of unemployment compensation on employment law suits is interesting; I would love to see it studied. You're probably right that there would be more suits if we didn't have unemployment comp, even though UC benefits are less than the job would have paid and UC benefits do run out.

Notably, European countries generally have "just cause" rules and MORE generous unemployment benefits than U.S. countries. Some argue that one or both of these rules leads to higher unemployment rates in Europe. That's hard to get a good handle on, because (i) sometimes some European countries have lower unemployment rates than the U.S.; (ii) it's hard to compare U.S. and European unemployment rates, since official numbers are computed quite differently (the U.S. gets lower numbers in part by excluding prisoners, folks in the military, various types of students, etc., which may be a valid way to do it but doesn't allow for good comparisons with countries that don't make those exclusions); and (iii) even if you had good/similarly-calculated figures to compare, there's still a question of how much these legal rules contribute to employment rates.

There's a broader "who's likely to sue" issue in your point also. In my experience, usually, somebody has to have something significantly invested in a job to make it a firing worth suing over: they had worked at X employer a long time; they were making money at a level that would be hard to reproduce quickly in the job market; etc. That's one reason why there are lots more suits about being fired than there are about not being hired.
2.23.2007 1:27pm
godfodder (mail):
A few months ago, in my local news, there was the story of a fast-food manager who "forced" an underage employee to strip in his office "to make sure she wasn't stealing." The press treated it as an abomination, but I guess the manager was on much firmer legal ground than anyone imagined. Take away the "underage" part (...or not?), and convince the police that sexual harrassment was not your motive, and the manager could do pretty much anything he wanted. As long as the "forced" part was limited to "Strip, or you're fired!"

Who knew? I suspect that most people would be surprised to find out that their employer is perfectly within his rights to demand that they submit to a "theft-detering" strip search. And I suppose that this same employer could strip search your spouse, your children, your grandmother-- all in the name of theft deterrance. Or... now that I think about it, he doesn't even have to tell you that! "Strip or you're fired;" nothing more. Now, the employer would have to innoculate himself against a spurious claim of sexual harrassment, so he would need someone present as an observer. Or better yet, lots of people. In fact, best case scenario would be for him to make you strip in front of all your fellow employees-- like in the company parking lot. That way there can be no mistaking it for sexual harassment.

Wow.
2.24.2007 2:32pm
David Muellenhoff (mail):
That doesn't mean people don't bring suits when they lose their jobs -- they do. But they usually don't win.

Perhaps not, but depending on the jurisdiction, and especially the tendency of juries in that jurisdiction to be sympathetic to plaintiffs in employment discrimination/wrongful termination cases, my understanding is that such cases often settle to the plaintiff's benefit ($$$). Especially so when there is a local track record of juries finding for plaintiff but awarding minimal damages, not realizing they may have condemned defendant to pay all of plaintiff's attorney's fees. Defendant is often wiser to settle such a case rather than fighting it, even if they have an excellent chance of winning at trial.

I'm not a litigator by any means; this is just what I've been told by litigators.
2.24.2007 4:45pm
David Muellenhoff (mail):
To clarify, the first two lines of my post were an attempt to quote JosephSlater four posts above.
2.24.2007 4:49pm
bersa45:
What about the question of the employee being car jacked on the way home because he left his legally owned firearm at home because his employer doesn't allow firearms in the parking lot locked in the cars. Are the employers held responsible for taking away that person right to defend themselves?
2.24.2007 10:58pm
JosephSlater (mail):
David M.:

True, lawsuits of any kind can induce settlements, even if the defendant has a pretty strong case. But repeated studies show that employment discrimination plaintiffs do worse than plaintiffs in pretty much ANY other type of civil case, and at every stage (trial, appeal. . .). Competent defense lawyers know that and adjust their settlement considerations and offers accordingly.
2.25.2007 8:27pm