On
February 18, 2009, the United States Court of Appeals for the Tenth
Circuit issued a long-awaited decision regarding the right of Oklahoma
employers to ban firearms from their property. Reversing a lower
federal court decision in favor of employers, the appellate ruling
reinstates a controversial Oklahoma statute that prohibits Oklahoma
employers from maintaining certain anti-firearms policies. Employees
are once again protected by Oklahoma law from any policy that “has the
effect of” prohibiting the transport or storage of firearms in locked
vehicles, even on private company property.
Background
In March of 2004, the Oklahoma legislature enacted a series of laws
limiting an employer’s ability to prohibit firearm possession by
employees on company property. For example, the Oklahoma Firearms Act
of 1971 was amended to provide, in relevant part, as follows:
No . . . employer . . . shall maintain, establish, or enforce any
policy or rule that has the effect of prohibiting any person, except a
convicted felon, from transporting and storing firearms in a locked
motor vehicle, or from transporting and storing firearms locked in or
locked to a motor vehicle on any property set aside for any motor
vehicle.
21 Okla. Stat. §1289.7a(A).
At the same time, the Oklahoma Self-Defense Act of 1995 was amended
in a similar manner, using nearly identical language. 21 Okla. Stat.
§1290.22.
In their original form, these amendments established standards of
criminal conduct, and a violation could result in a misdemeanor
criminal conviction. Whirlpool Corp. v. Henry, 110 P.3d 83
(Okla. 2005). However, the laws were subsequently further amended to
provide an aggrieved employee with a right to pursue a civil action in
court to obtain actual damages, injunctive relief and attorney’s fees.
21 Okla. Stat. §1289.7a(C).
Critics of the amendments argued that the presence of firearms on
company property could contribute to workplace violence, as well as
increased employer liability for accidental and intentional gun-related
injuries. Furthermore, employers argued that the amendments invaded
upon a private property owner’s right to prohibit firearms from his or
her private property. Proponents of the laws, on the other hand,
argued that these amendments merely protected employees’ Constitutional
rights to bear arms.
Legal Challenge to the Amendments
In October of 2004, a group of Oklahoma employers filed suit in
federal court challenging the validity of the referenced amendments
under a variety of legal theories. In October of 2007, after rejecting
several of those theories, the court issued a permanent injunction
prohibiting the enforcement of the new Oklahoma laws, finding them to
be preempted by federal law. More specifically, the Court concluded
that the Oklahoma amendments served as a “serious obstacle” to
employers attempting to meet their obligations under the “general duty”
clause of the federal Occupational Safety and Health Act (the “OSH
Act”).[1] Therefore, according to the lower court, the Oklahoma
amendments were preempted by federal law and unenforceable.
This week, the United States Court of Appeals for the Tenth Circuit
issued its opinion on the resulting appeal and reversed the district
court. Specifically, the appellate court concluded that the presence
of firearms on company property did not trigger a violation of the OSH
Act “general duty” clause, and therefore, no “serious obstacle” was
presented by the Oklahoma amendments. The court also rejected the
employers’ contention that these laws improperly interfered with the
rights of private property owners. And finally, the appellate court
concluded that the district court’s injunction was an improper
interference by federal courts with Oklahoma’s inherent right to police
the conduct of its citizens.
The Bottom Line
This week’s opinion by the appellate court reinstates the amendments
to full force. Thus, it is once again a violation of Oklahoma law to
“maintain, establish or enforce” any policy that “has the effect of”
prohibiting the transport or storage of firearms in locked vehicles in
designated vehicle areas, even on private company property.
Although this matter may certainly be further appealed, the
likelihood of such action is not yet clear. Therefore, effective
immediately, Oklahoma employers should examine their existing policies
to ensure conformity with these provisions, and refrain from any
efforts to enforce a prohibited policy.
Of course, going forward, it is important to keep in mind the
limited scope of these laws. Employers may not prohibit an employee
from storing or transporting a firearm in a locked vehicle on property
designated for vehicles. However, nothing in the relevant amendments
or the resulting court opinions prevents an employer from prohibiting
firearms in its buildings, on sidewalks, or otherwise outside of a
locked vehicle in a designated vehicle parking area.
[1] The “general duty” clause under the OSH Act requires
that “[e]ach employer shall furnish to each of his employees employment
and a place of employment which are free from recognized hazards that
are causing or are likely to cause death or serious physical harm to
his employees.”