Bring Your Gun to Work Day?

We've All Heard of "Bring Your Child to Work Day." But What About Your Gun?

You may recall a few weeks ago, Washington Wizards star basketball player Gilbert Arenas pleaded guilty to gun charges after he took his handgun into the team's locker room. What if Arenas had been in Indiana and had left his Smith and Wesson in his car? A potential new law that just passed both houses of the Indiana General Assembly would make "take your gun to work day" a right for almost every employee in Indiana - and a potential nightmare for Indiana employers.

On January 21, 2010, the Senate voted 41-9 to approve a bill that would make it illegal for employers in Indiana to adopt any policy or rule that would prohibit employees (or contractors) from having firearms in their locked vehicles while the vehicle is on company property. There are some exemptions in the law, for schools, correctional facilities, private residences, child-care facilities and domestic-violence shelters. The Indiana version of "take your gun to work," authorizes civil lawsuits by employees, including the payment of the employee's attorneys fees, if they win. A similar bill passed the Indiana House of Representatives on January 27, 2010. Now, lawmakers will try to iron out minor differences in the bills. This is the third attempt to pass a "take your gun to work" law in Indiana. There are currently "take your gun to work" laws in 11 states: Alaska, Arizona, Florida, Georgia, Kansas, Kentucky, Louisiana, Minnesota, Mississippi, Oklahoma and Utah.

Supporters of the bill believe that the law is necessary to protect the rights of those employees who may want to go hunting before or after work, and to protect those who believe they need to have a gun available in their car to defend themselves on the way to and from their jobs. Despite these concerns, many employers and business groups, including the Indiana Chamber of Commerce and Indiana Manufacturers Association, believe that such a law would violate employers' property rights and severely inhibit their ability to maintain a safe workplace.

The trend of adopting "take your gun to work" laws really began in Oklahoma in 2002. Following an employee drug overdose, an employer in Oklahoma enlisted the help of trained dogs to inspect its parking lot. The dogs didn't find any drugs, but they did sniff out guns in vehicles belonging to four employees. Given that it was hunting season, this came as no surprise to the employer. Nevertheless, having guns in the parking lot violated the employer’s written policies, and the employees were all fired. The employees sued for wrongful termination, but lost. As a result, Oklahoma passed its "take your gun to work" law in 2004. In 2007, however, a federal judge issued an injunction against the enforcement of the law, ruling that the law was in conflict with an employer's obligation to maintain a safe workplace under Occupational Safety and Health Administration (OSHA) regulations. That injunction was overturned last year by a unanimous 10^th Circuit Court of Appeals, citing evidence that OSHA did not regard the Oklahoma law as necessarily being in conflict with workplace safety provisions. The ruling in Oklahoma appears to have cleared the way for more such "take your gun to work" laws, like the one being considered in Indiana.

If the Indiana bill becomes law, Indiana employers will need to closely review their current workplace violence policies and gun restriction rules. Many employers in Indiana have implemented "zero tolerance" policies to prevent violence in the workplace. Many of those policies provide for a total ban on guns and other weapons, including restrictions against bringing firearms onto company parking lots or parking garages. The ability to use discretion in adopting such policies and procedures will be severely curtailed, if not eliminated, if Indiana adopts a "take your gun to work" law. It will become more important than ever for employers to adopt policies and rules that are specific with respect to how the issue of firearms on company property should be handled, especially in light of employer's continuing obligation to provide a safe workplace.

If you have questions about this potential law, please contact Paul Sinclair. Sinclair is a partner in Ice Miller's Labor and Employment Practice Group.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice.  The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.