Where a state law stands as an obstacle to the execution of the clear objectives of a federal law, or where it is impossible for a party to comply with both state and federal requirements, that state law may be “pre-empted” by the federal statute.  In a case that could have far-reaching implications for employers, a federal appellate court has held that two Oklahoma laws holding employers criminally liable for prohibiting employees from storing firearms in locked vehicles on company property are not preempted by the federal Occupational Safety and Health Act (the OSH Act).  Ramsey Winch Inc. v. C. Brad Henry, 10th Cir., No. 07-5166, Feb. 18, 2009.

Until 2004, numerous Oklahoma businesses prohibited employees from bringing firearms onto company property.  In that year, the state legislature amended its laws to hold employers criminally liable for such prohibition.  In response, a number of Oklahoma businesses filed a lawsuit seeking to enjoin the enforcement of the new laws.  Their position was that employers are authorized, under the OSH Act, to take actions that they deem to be premised upon the health and safety of employees, and that the state laws kept them from that goal. The district court agreed, holding that the challenged laws were preempted by the OSH Act, and permanently enjoining enforcement of those state laws.  On appeal, that decision was reversed by the 10th U.S. Circuit Court of Appeals.

In reversing the district court’s decision, the Tenth Circuit reviewed the preemption issue in detail, beginning with the assumption that the historic police powers of the States are not to be superseded by federal law unless that was the clear intent of Congress.  Courts are not charged with the authority to second-guess a legislative decision, nor do they have the ability to over-rule a state’s law, unless there is basis for pre-emption.  The Court pointed out that while the OSH Act was enacted to assure healthful and safe working conditions, that Act is premised on “work-related” hazards.  Courts to have addressed the issue of violence in the workplace have found gun-related incidents not to be “work-related,” and have specifically recognized that an employer’s duty to maintain a safe workplace “does not extend to the abatement of dangers created by unforeseeable or unpreventable employee misconduct.” 

If gun-related violence is not within the ambit of the OSH Act, such workplace issues can be regulated by state or local laws. In fact, OSHA itself has stressed its deference to “other federal, state, and local law-enforcement agencies to regulate workplace homicides.”  Further, OSHA has issued voluntary guidelines for employers seeking specifically to reduce the risk of workplace violence, but has not promulgated any mandatory standards regarding those incidents. 

Based on those facts, the Tenth Circuit found that Oklahoma’s statutes regarding an employer’s duty with respect to firearms in the workplace are not preempted by the OSH Act.  The Court held that the state statutes regulate workers simply as members of the general public and, therefore, do not conflict with OSHA standards that specifically regulate conduct of workers.

While most companies are concerned about workplace violence, and many employers specifically include a weapons prohibition in company handbooks and policies, employers now must be cognizant of state-based laws and regulations applicable to that issue.  If, in fact, a state statute exists that directly addresses the issue of firearms in the workplace, employers should seek legal counsel before attempting to take an adverse employment action based upon violation of a company policy that conflicts with that state law.


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