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Open Carry at Work: Balancing Employee Rights

If you’re like many Texas employers, you may be having mixed feelings about the new open carry law that went into effect January 1, 2016.

“Texas loves two things more than anything: their guns and property rights. These two rights, or interests, run at one another when it comes to questions of an employer’s right to restrict someone from bringing a gun onto their premises,” Steve Roppolo, an attorney in the Houston office of Fisher & Phillips, told SHRM Online.

To help clear the air, we bring you some facts pertaining to the new law:

According to the Texas Workforce Commission (TWC), the new ruling allowing open carry does not change the legality of a policy barring guns in the workplace (or while in company vehicles or on company business). Employers may even restrict an employee from carrying a weapon (openly or concealed) during work hours in his or her own car that is used for company business. This includes holders of open carry and concealed carry licenses (CCL), in most cases. Specifically, TWC states:

  1. The Constitutional protection to bear arms afforded to U.S. citizens in the Second Amendment does not apply to disputes or controversies between private citizens, so a company would not be constrained under the U.S. Constitution from barring guns in the workplace (or in the work-related situations cited above).
  2. The Texas Constitution applies the same way.
  3. In fact, there is no federal or Texas law that would prohibit a company from A) enforcing a ban on open carry at work (or guns at work in general) and B) insisting that employees follow it as a condition of employment.

That being said, Texas Labor Code Section 52.061 allows CCL holders and those who legally possess firearms to secure those firearms and ammunition inside their own locked vehicles parked on their employer’s property. However “if an employer has a gun-free workplace policy, employees can be charged with criminal trespass if their weapon leaves the vehicle,” says Dianna Bowen, an attorney with Thompson & Horton, LLP in Dallas, Texas. (For more on the statute allowing guns in locked vehicles, read Opinion No. GA-0972 by the Texas Attorney General’s Office.)

If you are interested in restricting or banning open carry at work, TWC recommends first creating or revisiting your existing weapons policy. Be sure it is specific enough to cover everything you believe could be used by someone to inflict harm (not just open carry or concealed handguns). This may include what the government calls “usual implements of combat, mayhem, and personal violence” which are firearms, clubs, sharp and/or pointed objects, explosive or incendiary devices, and noxious, caustic, or toxic chemicals. It may also include “ordinary objects” that could be used as weapons against others.

Then, post signs communicating your policy. In Texas, separate signs are requirements for firearms that are open carry (Pursuant to Section 30.07, Penal Code) versus concealed carry (Pursuant to Section 30.06, Penal Code). While the State of Texas Department of Public Safety outlines specific requirements for these signs (specific wording must appear in contrasting colors with block letters at least one inch in height, for instance), the Department itself does not sell or provide these signs. More on the signage can be found at the Department’s site.

What if an employee doesn’t follow the restrictions? Legally, the employee—even one holding a valid handgun license—could face a Class A misdemeanor if it is shown at trial they were personally given the notice by oral communication after entering the property. As far as employment goes, TWC states, “If the employee violates a weapons law, even while off-duty, in such a way that it damages the company’s reputation, goodwill, or business standing in the community, or causes his work to suffer (absences due to answering the charge), such a violation could legitimately be the basis for appropriate corrective action.”

What’s your stance: Do you allow open carry at work? Are guns in the workplace in general prohibited within your walls? Why? How do you balance the rights of employees in each side of the argument? Tell us what you think in the comments below. We’d love to know your thoughts!

 

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