Fall’s colder weather not only means that we are in the crux of college football season, but it also means that the primary hunting seasons in Alabama are just around the corner.
During hunting season, some employees may be inclined to leave directly from work to head to their hunting property, or they may arrive at work a little late after they have spent the dawn hours in the woods. Hunting season also brings the increased likelihood that employees will leave firearms in their vehicles while they are at work. It is a good time for employers to be reminded that on August 1, 2013, Governor Bentley signed into law new legislation regarding an employee’s rights to carry certain firearms onto an employer’s property. This new legislation gives employees the right to keep certain firearms in their personal vehicles, even though they are in an employer’s parking lot. See Alabama Code §13A-11-90 (1975). Employees now have the statutory right to leave in their cars either a pistol, if they have a valid concealed weapons permit, or any firearm that can be used for hunting purposes in Alabama other than a pistol.
There are certain limitations to an employee’s right to possess a firearm used for hunting (as opposed to possessing a pistol with a concealed weapons license). For example, the hunting firearms must be kept unloaded at all times while on an employer’s property; they must be stored out of sight; the employee must possess a valid Alabama hunting license; and the employee can only possess the firearm in an employer’s parking lot during a recognized hunting season in Alabama (for the different hunting seasons, go to www.alabamaoutdoor.com ). In addition, the right to possess these firearms on an employer’s property extends only to private vehicles. Therefore, an employee has no statutory right to leave a firearm in a company-owned vehicle.
The right of employees to keep certain firearms in their vehicles at work presents a unique dilemma for employers who want to create and foster a safe working environment. It goes without saying, but employers want to minimize the risk of an employee perpetrating a violent act at work. Under the law, employees are protected in terms of their employment status in exercising their rights to keep firearms in their vehicles. The statute provides that an employer may not take “any adverse action against an employee solely because of the presence of the firearm.” See Alabama Code §13A-11-90(c)(2).
It is important to note that an employer can be liable for any adverse employment action it takes because an employee keeps a firearm in the parking lot in compliance with the law. An adverse employment action is not only limited to terminating an employee, but also involves a wide-range of disciplinary actions that could be prohibited, including an involuntary transfer or demotion.
The new gun law does not forbid an employer from disciplining an employee for leaving a firearm in their vehicle at work in every instance. For instance, the employee must be in compliance with the law in order to be protected against an adverse employment action. An employee can be disciplined for violating the requirements of the law. For example, the law would not protect an employee who is terminated for keeping a pistol in his/her vehicle without a valid concealed weapons permit. Moreover, the law does not protect an employee who keeps an illegal machine gun in their vehicle at work. While a machine gun might deter pesky squirrels, it is illegal under Alabama law to hunt with such a firearm.
In addition, the law does not change an employer’s right to terminate/discipline an employee who makes any threat of violence at work and/or towards another employee. The law specifically provides that an employee loses the right to transport or possess a firearm in their vehicle if the employee has prior “documented” workplace incidences “involving the threat of physical injury or which resulted in physical injury.” It would be appropriate under the law for an employer to forbid an employee from possessing any firearm if the employee has prior documented instances where physical violence was perpetrated or the threat of such violence was made. Again, the emphasis is on the word “documented.” Employers can still be vigilant in responding to any threats made by an employee concerning physical violence, but the employer should stem away from any consideration of whether the employee has a firearm in their vehicle in the decision making process. In other words, employers should be consistent in how they discipline employees who make threats of violence at the workplace or threats towards other co-employees.
The new gun law provides employers with immunity from any incident that arises or results from an employee’s possessing a firearm in the employer’s parking lot. Alabama Code §13A-11-91 (1975), provides:
“An employer and the owner and/or lawful possessor of the property in which the employer is situated shall be absolutely immune from any claim, cause of action or lawsuit that may be brought by any person seeking any form of damages that are alleged to arise, directly or indirectly, as a result of any firearm brought onto the property of the employer, owner or lawful possessor by an employee, including a firearm that is transported in an employee’s privately owned motor vehicle.”
This statute further provides that employers have no legal obligation to patrol, inspect or secure any parking lot, parking garage or other parking area that the employer provides for employees, or to inspect any privately owned motor vehicle located in a parking lot, parking garage or other parking area that the employer provides. The employer also has no duty to investigate, confirm or determine an employees’ compliance with the law.
Given that employees are now protected from being disciplined for leaving a gun at the parking lot, combined with the fact that employers are now given “absolute immunity” for any occurrences involving firearms used by employees while on the property, it may be in the employer’s best interest to not inquire whether any of its employees are possessing a firearm in their vehicle at work. Borrowing from federal case law, there cannot be any liability if an employer has no knowledge that the employee who is disciplined had a firearm in their vehicle. Therefore, to help shield the employer from any liability arising from disciplining an employee who may have a gun in the vehicle, it might be reasonable for the employer to take a “don’t ask, don’t tell” approach. [1]
Just as with any other new legislation, the courts will be tasked with interpreting the language of Alabama’s new gun law and will be tasked with developing the contours surrounding an employee’s claim that he or she was disciplined in exercising their new right to possess a firearm. If an employer has any questions regarding their current policies or how to best handle certain situations with some of its employees, the employer should not hesitate to seek legal counsel.
Prepared by Jonathan W. Macklem
