By Rocco J. Carbone, III, Esq. of Marshall Denneney Warner Coleman & Goggin, P.C.
In Florida and across the country, impassioned discussions about gun rights are taking place. In the wake of high-profile cases like the George Zimmerman trial and the events at the Naval Yard shooting in Washington, D.C., conceal and carry permits have become a hot topic of discussion. Much of the debate centers around the responsibilities and obligations of individuals who carry firearms. However, what are the responsibilities of employers of individuals who have a permit to carry a deadly weapon?
The Florida legislature and Constitution protect a citizen’s right to bear arms in self-defense. Fla. Const. Art. I § 8(a); § 790.173(2), Fla. Stat. (2008); § 776.032(1), Fla. Stat. (2012). In enumerating this constitutional right, the legislature has established rules and requirements for people who want to carry concealed weapons. A person must strictly adhere to these requirements or risk the loss of this privilege. If one is permitted to carry a concealed weapon, in certain circumstances, an employer may not infringe on this right without violating an individual’s constitutionally protected rights.
In 2008, an issue regarding this privilege arose with the passage of the “guns at work” law. § 790.251. This statute is entitled the “Preservation and Protection of the Right to Keep and Bear Arms in Motor Vehicles Act of 2008.” The Florida legislature intended this act to “codify the long-standing legislative policy of the state that individual citizens have a constitutional right to keep and bear arms… [and] to possess and keep legally owned firearms within their motor vehicles for self-defense.” The act prohibits a public or private employer from restricting the right of an individual who is lawfully carrying a concealed weapon in his or her vehicle.
This statute, as initially enacted, barred an employer from prohibiting “any customer, employee, or invitee from possessing any legally owned firearm when such firearm is lawfully possessed and locked inside or locked to a private motor vehicle in a parking lot and when… lawfully in such area.” § 790.251(4)(a) (emphasis added). Immediately following the passage of this law, several Florida businesses challenged its constitutionality.
In Florida Retail Federation, Inc. v. Attorney General of Florida, 576 F. Supp. 2d 1281 (N.D. Fla. 2008), enforcing, 578 F. Supp. 2d 1301 (N.D. Fla. 2008), the petitioner businesses argued that this law was unconstitutional for several reasons. Ultimately, some of these arguments were successful. The Attorney General was prohibited from enforcing this law on behalf of customers and invitees; however, the Attorney General was allowed to enforce this law on behalf of employers’ employees. Employers must be aware of the possible repercussions of violating this law.
The law restricts an employer’s actions in several ways; no employer may:
- Prohibit employees from possessing a legally owned firearm that is locked inside a private motor vehicle in a parking lot.
- “[V]iolate the privacy rights of a[n]… employee… by verbal or written inquiry regarding the presence of a firearm inside or locked to a private motor vehicle in a parking lot.”
- Perform “an actual search of a private motor vehicle in a parking lot to ascertain the presence of a firearm within the vehicle.”
- Take “any action against a[n]… employee… based upon verbal or written statements of any party concerning possession of a firearm stored inside a private motor vehicle in a parking lot for lawful purposes.”
- Allow anyone other than an on-duty law enforcement officer to search a “private motor vehicle in the parking lot of a public or private employer to ascertain the presences of a firearm within the vehicle… based upon due process and [compliance] with constitutional protections.”
- Condition employment based upon either: 1. one holding, or not holding, a conceal and carry permit, or 2. an agreement between the employer and employee prohibiting an employee from keeping a legal firearm locked in a private motor vehicle.
- Prohibit, or attempt to prevent, an employee from entering the parking lot because the vehicle has a legal firearm in the vehicle.
- “[T]erminate the employment of or otherwise discriminate against an employee… for exercising his or her constitutional right to keep and bear arms or for exercising the right of self-defense as long as a firearm is never exhibited on company property for any reason other than lawful defensive purposes.”
Essentially, this act prohibits an employer from even investigatingwhether an employee is carrying a concealed firearm and prohibits any type of retaliatory action by an employer in the hiring or firing of an employee because that person has a conceal and carry permit and a weapon in the parking lot. However, some exceptions to this right do apply to an individual carrying a weapon in a vehicle.
There are several areas and businesses where one may not carry a concealed firearm. Some of these areas include school property, correctional institutions and any business dealing with combustible or explosive materials. Of particular note, as well, is the fact that an employee may not carry a concealed firearm in a motor vehicle owned by the employer.
The ramifications of the “guns at work” law are potentially costly to employers. Employers face the cost of litigation if an employee alleges that an employer violated his or her right to carry a concealed weapon. In addition, the Attorney General has the authority to bring a civil, or administrative, action against the employer, which can result in an employer having to pay damages and civil penalties. To further complicate matters, the employee can then bring a civil suit against the employer. This can cost even more for the employer because the employee is entitled to attorneys fees if successful.
No matter what type of business one owns in Florida, it is likely that an employer will have an employee who has a conceal and carry permit. Employers must understand the potential liability that can result from the fact that employees have weapons on the premises. With the Stand Your Ground Law not likely to be repealed and the increase in purchases of handguns, in order to protect their livelihood, employers need to be aware of the legal ramifications of this, and similar, laws. Employers should consult with counsel to avoid unnecessary litigation costs and to understand the issue in order to reduce the risk of litigation.
For additional information, contact Rocco at 904.358.4225 or email@example.com .