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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?
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More on Firing Employees for Possessing Guns Outside Employer Property:

Last week I blogged about a federal district court's holding 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 court concluded that such firing would violate the tort cause of action created by Ohio state courts and known as "discharge in violation of public policity"; 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....

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.

The comment thread yielded an interesting discussion about whether this was a sound application of this tort -- and one can of course argue about whether the tort is sound more broadly, or whether the employment-at-will principle should be preserved as broadly as possible (perhaps subject to specific statutory exceptions created by the legislature, not by courts).

But a couple of days ago, I ran across another interesting provision -- Ohio's concealed carry status, which provides (Ohio Rev. Code § 2923.126(C)(1)) (emphasis added):

Nothing in this section shall negate or restrict a rule, policy, or practice of a private employer that is not a private college, university, or other institution of higher education concerning or prohibiting the presence of firearms on the private employer's premises or property, including motor vehicles owned by the private employer. Nothing in this section shall require a private employer of that nature to adopt a rule, policy, or practice concerning or prohibiting the presence of firearms on the private employer's premises or property, including motor vehicles owned by the private employer.

Does this statutory provision provide extra support for the district court's view, by implicitly assuming that employer power over employees' gun possession should extend only to the employer's property? Or should it be ignored, on the grounds that it merely restates one aspect of the employment-at-will doctrine, and other aspects -- such as the employer's power to fire the employee for using whatever products the employer might dislike (absent an express state statute restricting that power) -- remain untouched?

79 Comments
Firing Employee for Lawfully Carrying a Gun When on Company Business:

I just ran across an interesting case on this subject, Winters v. Concentra Health Servs., Inc., No. CV075012082S, 2008 WL 803134 (Conn. Super. Mar. 5). Note that the decision is on a motion to strike, and thus decides only whether the plaintiff's theory is legally valid assuming the facts are as he claims in his complaint. The decision comes long before the plaintiff actually tries to prove the facts:

Having concluded that the plaintiff properly alleged he was an at will employee of Concentra's, the court must next inquire whether he also alleged that his termination from Concentra violated “any explicit statutory or constitutional provision ... or whether he alleged that his dismissal contravened any judicially conceived notion of public policy.” The plaintiff pleads in count one that his termination from Concentra for carrying a lawfully concealed firearm to work in the absence of a clearly established company policy to the contrary violates the fundamental right to possess firearms for self-defense enshrined in article I, § 15, of the constitution of Connecticut. [“Every citizen has a right to bear arms in defense of himself and the state.”]

Ergo, the plaintiff has alleged that his termination violated an explicit constitutional provision, which safeguards an individual's limited right to bear arms in self-defense. Furthermore, while our Supreme Court has not fully elucidated the contours of the right guaranteed by this constitutional provision, it has recognized “that the constitution protects each citizen's right to possess a weapon of reasonably sufficient firepower to be effective for self defense.” Indeed, the court has explained that this limited right “would be illusory ... if it could be abrogated entirely on the basis of a mere rational reason for restricting legislation,” citing Lakewood v. Pillow, 180 Colo. 20, 23, 501 P.2d 744 (1972) (statute prohibiting possession of firearm in vehicle or place of business for self-defense invalid); In re Brickey, 8 Idaho 597, 599, 70 P. 609 (1902) (statute prohibiting carrying of deadly weapon in any form in cities or towns invalid). Accordingly, the plaintiff has explicitly referenced a right that is articulated in a specific provision of the constitution of Connecticut, and which has been judicially recognized by our courts as embodying a public policy that is not easily abrogated.

The defendants respond by arguing both that (1) the plaintiff needs to reference an explicit public policy standing for the proposition that a right to bear arms is sufficient to modify the general standards of at will employment, and that (2) the policy of allowing guns in the workplace for self-defense purposes is trumped by a purportedly countervailing public policy that encourages a safe work environment. Neither argument withstands meaningful scrutiny. The plaintiff does not assert that the right to bear arms modifies a company's ability to prohibit employees from carrying a lawfully concealed firearm in the workplace. Instead, he argues that because Concentra did not have a company policy prohibiting lawful firearms at work, he could not be terminated for availing himself of his constitutional right to possess a weapon of sufficient firepower to be effective for self-defense.

[Footnote: The plaintiff alleges that he consulted his Concentra employee handbook prior to bringing his weapon to work and was unable to locate a policy prohibiting the private possession of lawful firearms at work. Moreover, he pleads that his supervisor was not aware of any such policy, and that the first time he learned of Concentra's zero tolerance policy regarding firearms at work was at the time he was terminated. Assuming the facts alleged by the plaintiff in a light most favorable to sustaining the complaint, the court concludes that he has pleaded the company did not have a policy against lawful firearm possession at work or failed to provide adequate notice to its employees of such a policy.]

This is an important distinction because the public policy animated by article I, § 15, of the constitution of Connecticut is limited in scope and does not prevent a private landowner from prohibiting the otherwise lawful possession of firearms on his land. See Benjamin v. Bailey, 234 Conn. at 465 (article I, § 15, “permits reasonable regulation of the right to bear arms”); General Statute § 29-28(e) (permit to carry pistol does not authorize possession where otherwise prohibited by law or by person owning premises). Thus, while the existence a company policy prohibiting the possession of firearms at work and the plaintiff's prior knowledge of such a policy may later prove dispositive, these factual questions are of no moment in this context because the court must assume the truth of the plaintiff's allegation that Concentra did not have such a policy.

Similarly, the defendants' argument that the public policy allowing qualified citizens to possess a firearm for self-defense purposes is trumped by a purportedly competing public policy that encourages a safe work environment is equally acarpous. Although the defendants are correct that our courts have recognized a public policy “requiring an employer who conducts business in Connecticut to provide a reasonably safe work environment to its employees,” the defendants misperceive any conflict between this policy and the fundamental right to bear arms for self-defense.

As a preliminary matter, it bears emphasis that the defendants offer no evidence to support their implied asseveration that the mere presence of a concealed firearm by a qualified employee makes the workplace less safe. [Footnote: Actually, the plaintiff alleges that he brought his firearm to work with him during night shifts to ensure his personal safety in an otherwise unsafe work environment. Specifically, the plaintiff avers that: Concentra's office was located in a high-crime neighborhood; gang violence had resulted in the death of one person in the street outside Concentra's office; Concentra did not provide building security; and the plaintiff had to walk across a large parking lot to get to his car each night.]

Nevertheless, while an exposition concerning the impact of personal firearms on workplace safety may prove edifying, it is as unnecessary to resolve this motion as it is ultracrepidarian. An employer may prohibit any person from possessing an otherwise lawful firearm on his property, regardless of whether such a policy makes its work environment more or less safe. The court is not, therefore, persuaded that a policy allowing qualified citizens to carry a firearm for self-defense is in tension with a public policy that obligates employers to provide a safe work environment for their employees.

For more on the intersection of state constitutional rights to bear arms and employment law, see these posts of mine from last year. For more on the related subject of the right to self-defense and employment law, see these posts from 2005, as well as the relevant section of this short article of mine on state constitutional rights to self-defense.

As a normative matter, I generally believe that employment at will is the right approach, and that in the absence of a binding contract or some statutorily specified prohibition an employer should be free to terminate its relationship with an employee for any reason. Nor do I think that courts should mandate that employers create explicit policies defining what conduct may lead to termination, or derive constraints on private behavior from the state constitution's constraints on government behavior.

Nonetheless, the tort of wrongful discharge in violation of public policy does exist in many states (though its boundaries vary from state to state, and are often quite unclear). This particular application struck me as worth noting.

And, no, I don't encourage the use of "acarpous," "ultracrepidarian," or even "asseveration."

186 Comments