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Tuesday, May 28, 2013

Guns in the Parking Lot – No Permit Required

By Tommy Eden, Attorney

On May 22, Alabama Governor Robert Bentley signed into law an Act limiting an Alabama employer’s right to prohibit guns and ammunition in the workplace. While the law does not necessarily allow employees to carry firearms at work, it does allow employees to store, and have access to, firearms kept in privately owned vehicles that are parked in employer provided parking areas. Considering the fact that thousands of Alabama residents hold a concealed pistol permit, this law is likely to have a significant impact on the workplace. Alabama Act 2013-283, commonly referred to as the “Guns in the Parking Lot Act” is effective August 1, 2013.

Scope of the law
The law prohibits public and private employers from enacting and enforcing policies that prevent employees from transporting or storing firearms in their locked, private vehicles while parked on or in an employer provided parking area. However, the law does not prevent employers from prohibiting the possession of concealed handguns on company property. Rather, the restrictions are limited to employers’ treatment of employee parking lots. Importantly, the law applies to all lawfully-owned firearms, not just those owned under a concealed pistol permit.

With Alabama, a total of 19 states have enacted “guns-at-work” or “parking lot” laws, including Alaska, Arizona, Georgia, Florida, Idaho, Indiana, Kansas, Kentucky, Louisiana, Michigan, Minnesota, Mississippi, Nebraska, Ohio, Oklahoma, Tennessee Texas and Utah, with each state imposing varying restrictions on employers’ right to restrict firearms on company property.

Eligibility Criteria
The Act under Section 4 describes firearms that employees may possess in their locked vehicles which are located in their employers’ parking lots. It also restricts an employer from prohibiting an employee from having a firearm which is out of sight and in his or her locked vehicle if the employee has met certain eligibility criteria as follows:

If the employee has a concealed weapons permit: The employee is permitted to have a pistol or long gun (shot gun or rifle) in his or her car


If the employee does not have a concealed weapons permit: The employee can, during hunting season, have an unloaded rifle or shotgun legal for hunting (and not a pistol) out of sight in his or her locked vehicle

The employer can restrict an employee who does not have a concealed weapons permit from having a firearm in his or her car for any of these reasons: • The employee does not have a valid Alabama hunting license;

• The employee has been convicted of a crime of violence;

• The employee has been convicted of a crime involving domestic violence;

• The employee is subject to a domestic violence restraining order;

• The employee has previously been committed to a psychiatric hospital; or

• The employee has prior documented incidents of workplace threats or violence.

  The Act still includes a long list of public places, including most government buildings, Courthouses, Schools, City Council Chambers and County Commission meeting, where citizens and employees could not carry concealed weapons.

While an employer is not permitted to ask, if the employee gives notice that they do possess a gun in their locked vehicle, or if the gun is in plain view, the employer may determine whether the employee meets the above eligibility criteria. If the employee is not in compliance, the employer may take disciplinary action. An employer may not take any adverse employment action against the employee solely based on the presence of a lawful firearm in the employee’s vehicle when the eligibility criteria is meet. Otherwise, the employer is subject to being sued in an Alabama Court, after a 45 day demand period, for lost wages, lost remuneration, benefits, and demotion cause by the adverse action. Additionally, the employer is subject to injunctive action for violation of the rights allowed by the Act and attorney fee to the prevailing party.

Shield from Liability
While some employers may find that the law intrudes upon their private-property rights, it may provide a shield from some liability under Section 5. The employer may not be held liable for damages that flow from use of a firearm that is stored according to the provisions of the law.
Common Sense Counsel
As of September 1, 2013, employees in Alabama can begin taking their guns to work, or at least to the parking lot, without facing the risk of being terminated for doing so. An employer can not even ask about guns in their vehicle. This Act is a classic example of the best compliance policy is “don’t ask – don’t tell.” All Alabama employers are encouraged to promptly review and revise any workplace violence prevention policies relating to the possession of firearms on company property to ensure compliance with the new law. A reading of the entire new Act is highly recommended as its provisions are much more far reaching than just the workplace. Also look hard at updating your Professional Conduction of Prohibition against Harassment to include prohibitions on bulling as objectionable conduct. Workers who are bullied at work may decide that the gun in their pick-up is the great equalized. Training is a critical element of any violence prevention program as every employer has a general OSHA imposed duty to provide a safe workplace.
Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901. The entire Act can be viewed by clicking on the link at www.alabamaatwork.com