Tennessee employers, according to the Tennessee Attorney General, can still terminate employees for violating a "no weapons" policy, despite the new "guns in trunks" legislation due to take effect July 1, 2013. In his opinion letter, Attorney General Robert Cooper answers "yes" to a hot topic of conversation among employers – and their attorneys – in the wake of the bill's passage – Can an employer still terminate an employee who brings a weapon onto the employer's property in violation of the employer's policies?
We supplement here that "yes" with a word of caution.
Attorney General Cooper explains that the new "guns in trunks" legislation amends only the Tennessee law governing criminal offenses. He explains that the legislation "does not address and thus has no impact on the employment relationship between an employer and an employee." Op. Tenn. Att'y Gen. No. 13-41 (May 28, 2013). The opinion letter states that employers often are permitted to establish policies that restrict otherwise lawful activities and that the plain and unambiguous language of the new provision does not address the employment relationship.
However, Tennessee courts have long recognized a public policy exception to the at-will employment doctrine. That exception provides that employees may not be terminated for exercising a statutory or constitutional right or for any other reason that violates a clear public policy of the state of Tennessee as evidenced by unambiguous constitutional, statutory, or regulatory provision. Crews v. Buckman Labs. Int’l, 78 S.W.3d 852, 858 (Tenn. 2002) (quoting Stein v. Davidson Hotel Co., 945 S.W.2d 714, 716-17 (Tenn. 1997)). Thus, a Court could consider the new criminal statute as an unambiguous statutory provision that shows a clear public policy of the state to allow permitted gun owners to transport firearms in their vehicles, even onto an employer's premises.
It is this tension that causes us to urge Tennessee employers to proceed with caution. The Attorney General's (AG) opinion letter is helpful to employers but does not address this long-standing public policy exception to Tennessee's employment-at-will rule. Plus, while helpful, the AG opinion letter does not have the force of law.
A few takeaways for Tennessee employers:
- We would not suggest that an employer would want to be the test case.
- The AG opinion, while helpful, is not the final say and a Court could use the new "guns in trunks" legislation to articulate a recognized public policy exception to the employment-at-will rule.
- If faced with a possible discipline issue on a weapons violation, seek legal counsel as to whether there exists other sound footing, not inconsistent with the new law, for the contemplated termination.
- The AG opinion does clarify that leased, rented, and borrowed vehicles are not included within the protection of the new "guns in trunks" law. In accordance with the plain language of the statute, permit holders may only transport firearms and ammunition in their privately-owned vehicles.
- The AG opinion also clarifies that there is no "grace period" from the ordinary observation restriction that would allow a permit-holder to transfer a weapon from one location to another such that the weapon could be observed by a security camera. The weapon must be kept from ordinary observation at all times.
- The AG also clarified that the new law's protection extends to both a firearm and firearm ammunition.
- What to expect in light of the opinion letter:
- Efforts in the legislature to clarify the effect of the legislation on the employment relationship; and
- Caution on the part of employers to avoid becoming the test case.