10th Circuit Upholds Okla. ban on employer bans on firearms.

[PeteG]

In March, 2004, the Oklahoma legislature passed a law holding employers criminally liable if they took any action against an employee for storing a firearm in a locked vehicle on company property. Various Oklahoma businesses subsequently filed suit seeking to enjoin the enforcement of the new Oklahoma laws, alleging they were (1) unconstitutionally vague; (2) an unconstitutional taking of private property, as well as a violation of Plaintiffs due process right to exclude others from their property; and (3) preempted by various federal statutes. The district court for the Northern District of Oklahoma held that the challenged laws were preempted by the Occupational Health and Safety Act (OSH Act) of 1970 and permanently enjoined enforcement of the new laws.

The U.S. Court of Appeals for the 10th Circuit recently reversed.

The issue in the case was preemption: whether the Occupational Safety and Health Act preempted state regulations pertaining to maintenance of a safe workplace. (Note: it was the big companies, seeking to assert property rights, who argued for government preemption.)

The statute reads:

BUSINESS OWNERS RIGHTS

A. Except as provided in subsection B of this section, nothing contained in any provision of the Oklahoma Self-Defense Act, Section 1290.1 et seq. of this title, shall be construed to limit, restrict or prohibit in any manner the existing rights of any person, property owner, tenant, employer, or business entity to control the possession of weapons on any property owned or controlled by the person or business entity.

B. No person, property owner, tenant, employer, or business entity shall be permitted to establish any policy or rule that has the effect of prohibiting any person, except a convicted felon, from transporting and storing firearms in a locked vehicle on any property set aside for any vehicle.

21 Okla. Stat. 1289.7a & 1290.22.2 21 Okla. Stat. 1290.22

Here is the Court's reasoning (note the links to the OSHA web site):

The original impetus behind the OSH Act was danger surrounding traditional work-related hazards. See 29 U.S.C. 651(a) (noting the OSH Act arose from concern surrounding personal injuries and illnesses arising out of work situations); S. Rep. 91-1282, at 5178 (describing at length the problems of industrial accidents and occupational diseases, without referencing workplace violence). In recent years, however, OSHA has recognized workplace violence as a serious safety and health issue. See, e.g., Workplace Violence, http://www.osha.gov/SLTC/workplaceviolence/index.html (a section of OSHAs website devoted to workplace violence). To that end, OSHA has issued voluntary guidelines and recommendations for employers seeking to reduce the risk of workplace violence in at-risk industries. See Guidelines for Preventing Workplace Violence for Health Care and Social Service Workers and Recommendations for Workplace Violence Prevention Programs in Late-Night Retail Establishments, both available at http://www.osha.gov/SLTC/workplacevi...solutions.html. OSHA has not, however, promulgated any mandatory standards regarding workplace violence.
. . . .

Because the absence of any specific OSHA standard on workplace violence is undisputed, the district court correctly recognized that the only possible area of OSH Act preemption was under the general duty clause and the OSH Acts overarching purpose. Thus, in finding preemption, the district court held that gun related workplace violence was a recognized hazard under the general duty clause, and, therefore, an employer that allows firearms in the company parking lot may violate the OSH Act. We disagree. OSHA has not indicated in any way that employers should prohibit firearms from company parking lots. OSHAs website, guidelines, and citation history do not speak at all to any such prohibition. In fact, OSHA declined a request to promulgate a standard banning firearms from the workplace. See Standards Interpretations Letter, September 13, 2006, available at 2006 WL 4093048. I n declining this request, OSHA stressed reliance on its voluntary guidelines and deference to other federal, state, and local lawenforcement agencies to regulate workplace homicides. Id. OSHA is aware of the controversy surrounding firearms in the workplace and has consciously decided not to adopt a standard. Thus, we are not presented with a situation where the general duty clause applies because OSHA has been unable to promulgate a standard for an unanticipated hazard. . . .

The district courts conclusion is also belied by the only opinion issued by an Administrative Law Judge (ALJ) concerning a general duty clause violation due to workplace violence. See Megawest Fin., Inc., 1995 OSAHRC Lexis 80 (May 8, 1995). In Megawest, the Secretary of Labor cited the operator of an apartment community located in a rough neighborhood for failing to take steps to prevent residents violent acts. See id. at *1-2, *6-7. The ALJ reversed the Secretarys citation, ruling that potential violent behavior by residents did not constitute a recognized hazard within the meaning of the general duty clause. Id. at *32. In reversing the citation, the ALJ expressed the difficulties associated with requiring employers to abate hazards of random physical violence. See id. at *28 (recognizing that the hazard of physical assault . . . arises not from the processes or materials of the workplace, but from the anger and frustration of people). The ALJ stressed that an employees general fear that he or she may be subject to violent attacks is not enough to require abatement of a hazard under the general duty clause. See id. at *27; see also Pa. Power & Light Co. v. Occupational Health and Safety Review Commn, 737 F.2d 350, 354 (3d Cir. 1984) (recognizing that an employers duty does not extend to the abatement of dangers created by unforeseeable or unpreventable employee misconduct); Pratt & Whitney Aircraft v. Secy of Labor, 649 F.2d 96, 104 (2d Cir. 1981) (indicating the OSH Act only requires employers to guard against significant risks, not ephemeral possibilities); Natl Realty and Construction Co., Inc. v. Occupational Safety and Health Review Commn, 489 F.2d 1257, 1266 (D.C. Cir. 1973) (noting that [a] demented, suicidal, or willfully reckless employee may on occasion circumvent the best conceived and most vigorously enforced safety regime).

Undeterred by OSHAs and Megawests express restraint in policing social behavior via the general duty clause, the district court held firearms stored in locked vehicles on company property may constitute a recognized hazard. In so finding, the district court relied heavily on OSHAs general statement that employers may be cited for a general duty clause violation [i]n a workplace where the risk of violence and serious personal injury are significant enough to be recognized hazards. Standard Interpretations Letter, December 10, 1992, available at http://www.osha.gov/SLTC/workplacevi...standards.html. The district court also relied on the ALJs indication in Megawest that it might be possible to violate the general duty clause for failure to prevent workplace violence. See id. at *29 (noting a high standard of proof is necessary to show that an employer recognized the hazard of workplace violence). Despite these general statements, OSHAs action (or inaction) regarding this matter undermines the district courts conclusion. The broad meaning of recognized hazard espoused by the district court is simply too speculative and unsupported to construe as the clear and manifest purpose of Congress. . . .

Roughly translated, the Court held that because OSHA has taken a "hands off" approach to regulating firearms in private work environments, Oklahoma's statute did not interfere with OSH Act's purpose, and no preemption can be found.

PeteG

[wa3ra]

I though long and hard about this issue; I like the outcome for us, but I was a little iffy on the loss of property owners' rights, at first.

The more I though about it, the more I realized that the antis don't need the government...all they would need to do is get businesses to prohibit firearms in cars on their parking lots. Going to the mall? So Sorry, no guns. The grocery store? Nope, no guns in your car. Church, the gas station, the downtown parking garage, the local restaurants?

There is a lot of case law that holds that the interior of our car is very similar to the interior of our house, and anything not in plain sight legally doesn't concern outsiders.

If we secure a weapon on our car, legally, then no one should be able to usurp that right. As a condition of employment, MAYBE they can require that it be in a locked safe in the car, that I can deal with. Otherwise, it isn't much different than them telling me that I can have a radio, or prescription medications, or a baby seat on my car.

Now, we have some caselaw...time to work on this here, I think.

[DaveM55]

Seeing that this was in the 10th Circuit court, does it have any bearing legally in Pa?

[wa3ra]

No, except as a reference.

[LittleRedToyota]

this ruling seems to focus entirely on the OSHA preemption issue.

does anyone know whether or not the courts address the other issues (the employer's private property rights issues) at all?

it sounds like the original suit also made an argument based on the employer's right to regulate what is brought onto, or, rather, who comes onto, their private property. i'm just curious if the courts addressed that issue, and, if so, what their rationale was in saying this is not violation of the employer's private property rights?

[PeteG]

this ruling seems to focus entirely on the OSHA preemption issue.

does anyone know whether or not the courts address the other issues (the employer's private property rights issues) at all?

it sounds like the original suit also made an argument based on the employer's right to regulate what is brought onto, or, rather, who comes onto, their private property. i'm just curious if the courts addressed that issue, and, if so, what their rationale was in saying this is not violation of the employer's private property rights?

[And other questions regarding precedent ... ]

Actually, there is a lot of case law pertaining to the conflict between the "Fundamental Right" to be armed and the "Fundamental Right" to control one's property. One of the things we cover in "Pennsylvania Firearms Law" (unfortunately only briefly) is the difference in attitude between states regarding the conflict.

For example, The Supreme Court of West Virginia has held that it is a wrongful termination for an employer to fire an employee of a convenience store for being armed on the job in contravention of a company policy which prohibits fire. In Pennsylvania, the Superior Court (intermediate appellate court) has held under similar facts that it is not a wrongful termination.

Pennsylvania does recognize that firing an employee for refusing to sign a political petition the employer wants to have signed is a wrongful termination, because it infringes the fundamental right of freedom of conscience (speech). There is "fundamental," and there is "fundamental," which is to say, "political" can be an important component of "fundamental" (and the less qualified the judge the more that is the case).

But even though politics color the law, the outcome of each case will still depend very much upon the facts of the case. I doubt the 10th Circuit would have held the same way vis-a-vis the due process arguments had the Oklahoma legislature enacted a statute that said it was illegal to fire an employee for being armed while inside performing his or her job.

I think there are powerful arguments in Pennsylvania for overturning the Superior Court holding; but that case will have to await the development of the right set of facts, plus an employee who is sufficiently determined to spend time and money to protect his right to be armed. We may wait a very long time. Or it could happen tomorrow.

In the meantime, I was surprised to see that Oklahoma made it a crime to preclude employees from having guns in their cars, as opposed to passing a law making disciplinary action against the employee a civil wrong. But there you have it.

Here is what the 10Th Circuit said about the property rights issue (with certain citations and technical material omitted):

The district court rejected Plaintiffs argument that the Amendments are an unconstitutional taking of private property and a violation of Plaintiffs due process right to exclude others from their property. Plaintiffs raise these arguments as an alternative grounds for affirmance, however, and we address them accordingly. . . . As a matter of law, we review Plaintiffs challenge to the constitutionality of the Amendments de novo.

Regulation of private property may be so onerous that it violates the Takings Clause of the Fifth Amendment and requires the government to provide compensation. . . . Regulatory acts requiring payment are either (1) a per se taking, . . . or (2) a taking as characterized by the standards set forth in Penn Central Transp. Co. v. City of New York, 438 U.S. 104 (1978). One category of per se takings is where the government requires an owner to suffer a permanent physical invasion of her property. . . . Such regulatory action is often referred to as a physical taking. ... A sub-category of physical per se takings is a land-use exaction in which the government demands that a landowner dedicate an easement allowing public access to her property as a condition of obtaining a development permit. ... Such demands by the government are so onerous that, outside the exactions context, they would be deemed per se physical takings. Id. at 547.10

Recognizing that a permanent physical invasion by the government has not occurred here in the traditional sense, Plaintiffs argue the Amendments are a physical per se taking because they require Plaintiffs to provide an easement for individuals transporting firearms. Thus, the argument goes, the Amendments constitute a permanent physical invasion akin to the land-use exaction takings in [ cited cases omitted ] . We do not find Plaintiffs per se taking argument persuasive. A per se taking in the constitutional sense requires a permanent physical occupation or invasion, not simply a restriction on the use of private property. [ cited cases omitted ] Here, the Amendments are most accurately characterized as a restriction on Plaintiffs use of their property. In [ prior cases] specific, individual landowners were forced to dedicate portions of their privately owned land for public use in exchange for a development permit from the local governing authority. [ cited cases omitted ] In contrast to the regulatory acts in [ prior cases ], the Amendments (1) apply to all property owners, not just Plaintiffs, (2) merely limit Plaintiffs use of their property, and (3) do not require Plaintiffs to deed portions of their property over to the state for public use.

Plaintiffs argue that, even if the Amendments are not a per se taking, a taking has nonetheless occurred under the standards set forth in Penn Central. Penn Central establishes that while a regulatory act may not constitute a per se taking, it can be functionally equivalent to the classic taking in which government directly appropriates private property or ousts the owner from his domain. [ Citation omitted.] The major factors under the Penn Central inquiry are (1) [t]he economic impact of the regulation on the claimant, (2) the extent to which the regulation has interfered with distinct investment-backed expectations, and (3) the character of the governmental action. [ Citation omitted.] In essence, Penn Central focuses on the magnitude of a regulations economic impact and the degree to which it interferes with legitimate property interests. [ Citation omitted.] Plaintiffs takings argument also fails under the Penn Central inquiry. First, the only economic impact cited by Plaintiffs is the general claim (located in a footnote of their brief) that allowing firearms onto an employers property inevitably increases costs linked to workplace violence. [ A proposition for which there is no factual support of which I am aware, which is, I suspect, why this speculation is relegated to a footnote. – ed. ] A constitutional taking requires more than an incidental increase in potential costs for employers as a result of a new regulation. See id. at 538 (Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law.) (quoting Pa. Coal Co. v. Mahon, 260 U.S. 393, 413 (1922)). Second, Plaintiffs do not assert any interference with their investment-backed expectations, and, therefore, have failed to demonstrate that the right to exclude others is so essential to the use or economic value of their property that the state authorized limitation of it amount[s] to a taking.

Third, the governmental action at issue here involves public crimes of general applicability concern[ing] protection of the community as a whole rather than individual citizens. [ Citation omitted ] Plaintiffs must expect the uses of [their] property to be restricted, from time to time, by various measures newly enacted by the state in legitimate exercise of its police powers. [ Citation omitted ] ; see also Penn Central, 438 U.S. at 125 (noting that laws meant to support the health, safety, morals, and general welfare of the entire community are generally upheld even if they destroy or adversely affect private property interests).
. . .

In reality, Plaintiffs are less concerned about compensation for a taking of [their] property . . . but rather [seek] an injunction against the enforcement of a regulation that [they] allege[] to be fundamentally arbitrary or irrational. [ Citation omitted. ] As such, Plaintiffs due process claim, i.e., the Amendments deprive Plaintiffs of the right to exclude others from their property, is more apt than their takings argument. A government regulation that fails to serve any legitimate governmental objective may be so arbitrary or irrational that it runs afoul of the Due Process Clause. Id. at 542. The Supreme Court, however, has long eschewed . . . heightened scrutiny when addressing substantive due process challenges to government regulation. Id. at 545. Accordingly, we review the Amendments under a rational basis standard. [ Citations omitted. ] Under rational basis review, we look only to whether a reasonably conceivable rational basis exists. Id. at 1290 (citation omitted). We are not allowed to second guess the wisdom of legislative policy-determinations. Powers, 379 F.3d at 1217.

One professed purpose of the Amendments is the protection of the broader Oklahoma community. We need not decide the long-running debate as to whether allowing individuals to carry firearms enhances or diminishes the overall safety of the community. The very fact that this question is so hotly debated, however, is evidence enough that a rational basis exists for the Amendments. -------- end quotation --------

[LittleRedToyota]

thanks for the reply pete!

[adymond]

this ruling seems to focus entirely on the OSHA preemption issue.

does anyone know whether or not the courts address the other issues (the employer's private property rights issues) at all?

it sounds like the original suit also made an argument based on the employer's right to regulate what is brought onto, or, rather, who comes onto, their private property. i'm just curious if the courts addressed that issue, and, if so, what their rationale was in saying this is not violation of the employer's private property rights?

Which private property rights trump which though. My personal vehicle is my private property. I dictate if I keep a firearm in it. The parking lot at my place of employment is open to the public via foot traffic and open to the public vehicle traffic. There is a fee for parking, but it is not necessitated by a visit to my employer.

I could see if the lot was restricted to employees only that there might be more of an employer's private property rights, but I almost feel like their private property rights should begin at the point at which they actually control entrance and egress.

I guess the way I can boil this down is I think if I park my car I should be allowed to store any legal items in my locked vehicle regardless of the company policy on said legal item so long as the item is not brought out of my vehicle.

[PeteG]

Which private property rights trump which though. My personal vehicle is my private property. I dictate if I keep a firearm in it. The parking lot at my place of employment is open to the public via foot traffic and open to the public vehicle traffic. There is a fee for parking, but it is not necessitated by a visit to my employer.

Precisely.

One cannot understand how the law works until they stop looking for absolute rules to follow, and realize that all of the principles we hold dear come into conflict. The law has to accommodate those conflicts, which always involves working out priorities, which means something is going to get compromised for the sake of preserving something else.

People who can only think in black-and-white terms will simply never understand the system, because they are incapable of understanding it. Such people are doomed to quoting bumper-stickers and ranting on the Internet about a world that does not actually exist.

[knight0334]

Which private property rights trump which though. My personal vehicle is my private property. I dictate if I keep a firearm in it. The parking lot at my place of employment is open to the public via foot traffic and open to the public vehicle traffic. There is a fee for parking, but it is not necessitated by a visit to my employer.

I could see if the lot was restricted to employees only that there might be more of an employer's private property rights, but I almost feel like their private property rights should begin at the point at which they actually control entrance and egress.

I guess the way I can boil this down is I think if I park my car I should be allowed to store any legal items in my locked vehicle regardless of the company policy on said legal item so long as the item is not brought out of my vehicle.

Think about it a second... I can park my truck in your driveway and store what I desire in it until its time for me to go home? I'm sure you dont have full control of access for it.. Any walkway, accessible front door, and a doorbell/knocker is carte-blanche permission/invite for ingress and egress between public domain and your door.. ...so that means I can picket from your walkway right?


Private property is private property. If we legislate away property rights, we also legislate our own away - the law is to apply equally and protect equally. Without absolute respect for others' properties we can not have Castle Doctrine. You want to be able to say who does what and how on your land, but no one else can determine what goes on theirs?? Thats not how is works.

I will fight any attempt to restrict companies and employers from determining what is allowed on their land. And if some law does get passed, I will make sure a law that forbids all employees from parking on company property gets passed as well - effectively neutralizing any Oklahoma style law. If someone doesn't like that company's policy, then they are free to look for another employer.