Enforceability of Employer’s Prohibition on Firearms Rests Primarily on State Law

Last month, the 10th U.S. Circuit Court of Appeals determined that Oklahoma laws supporting the right of individuals to possess firearms in locked vehicles on company property are not preempted by the federal Occupational Safety and Health Act, and therefore are enforceable.  That decision rested on the facts that the Oklahoma state statutes were instituted to regulate employees as members of the general public and not as “workers” and, therefore, that the statutes did not conflict with OSHA standards. 

In an interesting follow up, the 6th U.S. Circuit Court of Appeals has addressed a similar issue from a different perspective, and has upheld an employer’s anti-firearm policy.  In that case, an individual’s employment termination after the discovery of a firearm in his vehicle on company-controlled property was held not to have violated “public policy,” even though the state’s constitution guarantees its citizens the right to bear arms for defense and security.  Plona v. UPS, Inc., 6th Circ., No. 08-3512, 3/6/09.

Gary Plona was fired from his job with United Parcel Service, Inc. (UPS) in Cleveland, Ohio, after a firearm was found in his vehicle, which was parked in a UPS-leased parking lot adjoining his workplace.  UPS has a written policy prohibiting its employees from possessing firearms while on company property or while conducting company business; the prohibition specifically includes its parking lots and customer sites.  Plano signed an acknowledgement form indicating that he was aware of that policy.

In April 2006, sheriff’s deputies were in the process of conducting a search of cars in the parking lot after receiving a report of contraband located in that area.  During that search, a search dog being used by the deputies identified Plona’s car as suspicious.  While giving consent for a search of his car, Plano admitted that there was a firearm in that vehicle.  There was, in fact, a .22 caliber Luger pistol under the front seat, and an empty ammunition magazine in the glove box.  Plona did not have a permit to carry a concealed weapon, nor had he registered the pistol.  When UPS was made aware of the situation, Plona was fired.

Ohio is an “at-will” employment state – which means that an employer may fire an employee “for any cause, at any time whatsoever,” even if that termination is a violation of certain employee rights.  However, the Ohio Supreme Court has carved out an exception to that at-will employment doctrine for circumstances in which an employee’s firing contravenes public policy.  In other words, an individual cannot be fired for reasons that would jeopardize a clear policy for the public good.

Plona filed a lawsuit against UPS, alleging that he had been fired in violation of public policy – the right to bear arms embodied in Article I, Section 4 of the Ohio Constitution.  However, the district court granted summary judgment in favor of UPS, holding that Plona had not demonstrated that a clear public policy had been jeopardized by his termination.  On appeal, the Sixth Circuit upheld that decision, finding that Ohio does not, in fact, have a clear public policy with respect to the allowance of firearms at workplaces.  In support of that holding, the Court pointed out that at least one Ohio law specifically provides that employers may “prohibit[] the presence of firearms on the private employer’s premises or property.”

While Plona attempted to prove that UPS’ reason for firing him was “pretextual,” the Court pointed out that such a rationale simply goes to the “fairness” of the termination.  Ohio’s at-will doctrine allows termination for any reason, fair or unfair.  The real issue in this case is whether Plona’s termination was against a clear public policy, which would make it illegal.  The Court found that UPS plainly was within its rights – as spelled out by Ohio law – to prohibit firearms in the workplace.  Plona’s firing was not a violation of public policy, and dismissal of the case was appropriate.

While this result differs from the Tenth Circuit’s decision to uphold Oklahoma’s statutes related to firearms in the workplace, the different results were premised on vastly different state laws.  The Tenth Circuit’s decision was based on the wording of two Oklahoma laws that specifically include provisions holding employers criminally liable for prohibiting employees from storing firearms in locked vehicles on company property.  In this case, the Ohio legislature’s intent to provide authority to employers with respect to limiting firearms at work sites forms the basis of the Sixth Circuit’s opinion.  While workplace safety remains a primary focus of most employers, employers also should remain alert to state and local laws related to firearms, and to developing case law in this area, in order to avoid liability for an inadvertent violation of the law.