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Private employer’s no-gun policy trumps individual’s gun rights

June 20, 2014

By Mike Burns, courtesy of SBAM Approved Partner ASE

A Michigan employer exercised its right to control its property and employment policy rights when it fired an employee for bringing a gun into the workplace and using it. So said The Sixth Circuit Court of Appeals recently.

Jeremy Hoven, a pharmacist, was an at-will employee at a Walgreen’s in Berrien County. Following a robbery in 2007, and no longer feeling he was in a secure environment at work, Mr. Hoven requested extra security for his store. When this did not happen, Mr. Hoven took gun training classes and obtained a concealed weapons permit. He then began carrying a concealed weapon to work.

In 2011 there was another robbery attempt. Mr. Hoven tried to call 911 but one of the perpetrators pointed a gun at him. Mr. Hoven drew his weapon and exchanged fire with the robber. No one was injured.

The company conducted an investigation. Several days later it gave Mr. Hoven the choice to resign or be discharged for violating the company’s non-escalation policy. He chose to be discharged. Mr. Hoven then sued Walgreen’s, arguing that discharging him was a breach of public policy.

Mr. Hoven acknowledged that he was an at-will employee who could be fired for any reason unless the reason violated public policy. However he argued that his Second Amendment and Michigan state’s right to bear arms was one of public policy. Therefore, terminating his employment in the practice of that right was a violation of public policy.

For good measure, he also argued that the Occupational Safety and Health Act (OSHA) promoted self-protection. Furthermore he argued that Walgreen’s was negligent, reckless and in willful and wanton disregard for his safety. These last counts were dismissed by the lower court.

Reviewing current Michigan law on the public policy exceptions to at-will employment, the Appeals Court found that a termination violates public policy under any of these circumstances:

(1) The employee is discharged in violation of an explicit legislative statement prohibiting discharge of
employees who act in accordance with a statutory right or duty

(2) The employee is discharged for the failure or refusal to violate the law in the course of employment

(3) The employee is discharged for exercising a right conferred by a well-established legislative enactment

Hoven unsuccessfully argued that the Second Amendment of the United States Constitution, Article I of the Michigan Constitution, Michigan Criminal Jury Instructions, and four different Michigan compiled laws all established a public policy exception to the at-will employment doctrine.

The court disagreed, finding in Walgreen’s favor on all counts.

The takeaway for employers in this case is that under current Michigan law an individual does not have the right to bring a gun into a workplace against that private employers wishes. This is regardless of the many federal and state legal theories about the right to bear arms.

It is important to know that several states across the country have laws in place, or language in their state Constitutions, that supersede an employer’s property and policy rights where gun possession in the workplace is concerned. Currently, Florida, Texas and Kentucky recognize a gun owner’s right to carry in the workplace, or any private property, over the property owner’s right to prohibit it. A Bloomberg article has noted that as of 2011 at least 37 states were considering laws to restrict employers from banning guns in the workplace. Michigan is one of those states. However, in Michigan these bills have not made much progress in the legislature.

Michigan employers should review applicable state law and their policies about bringing guns into the workplace, knowing that their right as employers to prohibit such a practice has been sustained in the Sixth Circuit (and thus in Michigan).

One important but often overlooked component of such a policy is the areas of the employer’s property it can cover. Many employees who legally carry concealed weapons think their vehicles, parked on company property, are exempt from such a policy. Language that clearly prohibits guns not only in the workplace itself but also in the company parking lot will head off any confusion about that aspect of the policy.

For more information on weapons policies, use the SBAM Ask An Expert service.

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