One of the many pieces of legislation passed by the 2013 General Assembly is SB142/HB118 which created the right of holders of Tennessee handgun carry permits to take their weapons onto their employer's parking lot, provided that they meet certain requirements set forth in the new Act. The bill was signed into law by Governor Haslam March 14 as Public Chapter 16. The Act amends T.C.A. § 39, Chapter 17, Part 13. This bill was sponsored by Lt. Governor Ron Ramsey and passed both the Senate and House with large majorities (28-5 and 72-22). Since the bill allows employers and other property owners a number of choices regarding how employees and visitors must comply with this new legislation, we have prepared a set of questions and answers in an effort to help property owners make those decisions.
Is there a "one-size fits all" policy? If not, why not?
No. The law provides some discretion to employers about how to implement the substance of this law. Each employer can decide whether or not it wants to impose any restriction on firearms on its property either in the possession of employees or of visitors, vendors, etc., and, if so, how it will restrict those firearms.
What are the "basics" our policy should have?
If an employer currently does not have a policy prohibiting weapons in the workplace, it should first decide if it wants to restrict firearms in its parking lots or inside its facilities. If so, it should adopt a policy taking into consideration applicable state laws. The law differs depending on the extent of the restriction. If a policy is adopted to limit firearms in the parking lot, the policy must comply with the "exceptions" set forth in the recently enacted Tennessee legislation. The following is some suggested language:
"Weapons of any kind are not permitted on the premises of XYZ Company, including any and all buildings and grounds. Employees who bring weapons onto the premises will be subject to discipline, up to and including immediate discharge. Under Tennessee law, employees who have valid handgun carry permits are allowed to bring the weapon covered by that permit and ammunition onto the Company's parking lot provided that the permitted weapon is kept in the employee's locked vehicle while it is parked on the premises and so long as the weapon is not visible and is locked in the trunk, glove box or gun safe if the vehicle is not occupied. The weapon may not be removed from the vehicle while it is on XYZ Company property. The Company reserves the right to require any employee to advise the Company if a firearm is brought onto Company property in a vehicle and to provide proof that the employee has a valid handgun carry permit in order to meet this exception."
Employers may continue to post signs that weapons of any description are not permitted in their buildings.
The new law provides employers with certain other rights. Here is a brief overview of the issues:
- An employer may ask an employee to verify, in advance, that the employee has a valid handgun carry permit and to notify the Company that a firearm is stored in the employee's vehicle. Asking for such verification in advance has the advantage of ensuring that the employer knows who may have a weapon in a car parked on the premises and that the employee is lawfully certified to bring the firearm onto Company property. A disadvantage, however, is that having a carry permit or taking advantage of the right to bring a firearm onto Company property as a result of that permit will almost assuredly be considered "protected activity" under Tennessee public policy in light of this new law. Thus, if an employee who has been required to confirm that he has a handgun carry permit is later terminated, the employee could assert that the termination was related to that status. If an employer is not aware of the carry permit (until it becomes an issue), then such "protected activity" is not known to the employer. An employer may lessen this concern by limiting knowledge of which employees have permits to Human Resources, but since Human Resources is involved in most employment actions, any such limit will not completely address this concern.
- An employer may ask those employees who intend to take advantage of this exception to an employer's no-weapons policy to notify the company that they have a weapon in their vehicle. This approach reduces the employer's time investment in documenting and tracking carry permits while alerting the employer to the presence of weapons on their property. But this approach carries the same disadvantage noted in the above paragraph regarding protected activity.
- An employer may require that employees who intend to take advantage of this exception to an employer's no-weapons policy park in designated areas. Any such designated area should be "neutral" in its location. Some advantages to having a restricted area include the ability to focus extra security on that area and to take additional precautions if a disgruntled employee or one involved in any sort of altercation is seen accessing the area and returning to the building during the work day. Disadvantages include the possibility of a claim that such segregation was intentionally set a far distance from the building as punishment or retaliation for those engaging in protected activity (see paragraph a) or highlighting to all others which cars more likely have weapons and thereby create "theft targets." If the weapon is properly stored, theft is not likely to be an issue.
- An employer may – but is not required to – conduct a "walk around" inspection of vehicles in its parking lot to determine if any vehicle contains a firearm that is not stored properly. If a policy prohibiting firearms has been adopted, disciplinary action can be imposed for violating that policy, and the employee may be in violation of state law.
What steps should an employer take in light of this new law?
- If an employer does not have a weapons policy, it should determine whether it wants to adopt such a policy. If the employer decides that it wishes to adopt a policy restricting weapons on its property (especially in its parking lot), the policy should be drafted carefully.
- If an employer has a weapons policy, it should review the policy for language that might violate the new Tennessee law - such as "A valid permit to carry a weapon on company property does not supersede company policy" - and remove such language, replacing it with a broad prohibition in combination with a specific exception in accordance with Tennessee law.
- If creating a policy for use in multiple states, employers must understand the requirements, prohibitions, and potential liabilities may differ in each state, and tailor its policy accordingly. An employer may choose to have a general policy with an additional sentence or paragraph addressing Tennessee employees or may choose to have a general policy included in its employee handbook with a separate rider for distribution to Tennessee employees addressing the limited exception.
- An employer must then decide which disclosure requirements, if any, it wishes to apply to employees. Include these requirements (such as notification, validation of permit, and designated parking location) in the policy.
- Whichever approach is chosen, an employer must apply the policy consistently and treat all employees equally.
If you have any questions about this legislation and compliance with it, please contact one of the attorneys in our Labor and Employment Practice.