'Bring Your Gun to Work' and You're Fired: Terminated Employees' Potential Rights for Violations of Parking Lot Laws

Author:Malerie Leigh Bulot
Position::J.D./D.C.L., 2018. Paul M. Hebert Law Center, Louisiana State University.
Pages:989-1024
 
FREE EXCERPT
“Bring Your Gun to Work” and You’re Fired:
Terminated Employees’ Potential Rights for
Violations of Parking Lot Laws
TABLE OF CONTENTS
Introduction .................................................................................. 990
I. The Individual Right to Keep Arms in Parking Lots ................... 994
A. Parking Lot Laws Vary, but Policy Does Not ....................... 995
1. Guns on Company Property: Who, What, When,
Where, How Limitations ................................................. 997
B. Parking Lot Laws Held Constitutional, yet Subject to
Criticism ................................................................................ 999
1. Constitutionality Under the Takings Clause ................... 999
2. Constitutional Because No Federal Preemption ............ 1001
3. Unconstitutional When Statutes Distinguish
Between Businesses ...................................................... 1004
II. Actionable Violations of Parking Lot Laws ............................... 1005
A. Express Rights of Action Within Parking Lot Laws ........... 1006
B. Blow the Whistle to Get a Remedy ..................................... 1007
C. The Tort of WDVPP: Common yet Complicated ................ 1009
III. Swindol v. Aurora Sciences Flight Corp.:
The Right Outcome for Mississippi ........................................... 1011
IV. Employee Recovery Under WDVPP and
Whistleblower Statutes ............................................................... 1013
A. Rationale of WDVPP ........................................................... 1013
B. Whistleblower Statutes’ Rationale and
Rights of Action ................................................................... 1017
V. Applying WDVPP and Whistleblower Statutes to Utah
and Louisiana Parking Lot Laws ................................................ 1018
A. Utah: A WDVPP State ......................................................... 1018
B. Louisiana: A Whistleblower State ....................................... 1021
Conclusion .................................................................................. 1024
990 LOUISIANA LAW REVIEW [Vol. 78
INTRODUCTION
In August 2016 at a Black & Decker facility in Tennessee, security
guards escorted an employee to the company parking lot as he cursed at
them and yelled racial slurs.1 When exiting the building, the raging
employee pulled out a knife and fought with security.2 The employee cut
car tires,3 raced to his vehicle in the company parking lot, retrieved his
automatic rifle stored within it, and fired 120 rounds at security, other cars,
and the facility.4 Law enforcement labeled the event an instance of
“workplace violence.”5 This violent workplace shooting was made
possible in part by a Tennessee law that forbids employers from
proactively banning firearms from their premises. In 2013, the Tennessee
Legislature passed a “Parking Lot,” or “Bring Your Gun to Work,” law
(“Parking Lot law”), which prohibited employers from instituting policies
that ban the storage of firearms in vehicles on company property, including
the parking lot.6 As a result, the shooter could keep his firearm in his
vehicle on the company parking lot, ready for such an attack.
Workplace violence like the Black & Decker incident is prevalent in
the United States.7 In 2010, there were 518 workplace homicides,8 405 of
Copyright 2018, by MALERIE LEIGH BULOT.
1. Maranda Faris , Man accused of firing over 120 shots at Black & Decker,
JACKSON SUN (Aug. 29, 2016), http ://www.jacksonsun.co m/story/news/crime
/2016/08/29/black-decker-suspect-facing-charges-fired-120-rounds/ 89517874/
[https://perma.cc/2ABE-CMVG].
2. Id.
3. Id.
4. Fortunately, no one was injured. Maranda Faris & Katherine Burgess,
Disgruntled Black & Decker employee arrested in shooting, JACKSON SUN (Aug.
25, 2016), http://www.jacksonsun.com/story/news/crime/2016/08/25/shots-fired-
reported-near-passmore-lane-businesses-locked-down/89338202/ [https://perma.cc
/EW9A-7U2A].
5. Id.
6. See TENN. CODE ANN. §§ 39-17-1313, 50-1-312 (2017).
7. This trend of workplace violence has persisted since at least the 1990s.
Workplace homicides declined in 2004, U.S. BUREAU OF LABOR STATS. (2005),
http://www.bls.gov/opub/ted/2005/aug/wk5/art04.htm (see chart) [https://perma.cc
/GY3G-RMBW]. Between 2006 and 2010, just over 3,000 people were victims of
workplace homicide. Id.
8. Workplace Homicides from Shootings, U.S. BUREAU OF LABOR STATS.,
http://www.bls.gov/iif/oshwc/cfoi/osar0016.htm (last modified Sept. 16, 2015)
[https://perma.cc/ZK72-HZY7].
2018] COMMENT 991
which were shootings9 and 77 of which resulted in multiple fatalities.10
Despite potential workplace fatalities and the employer’s duty to provide
a safe work environment,11 employers in 21 states cannot prohibit
employees from storing firearms in vehicles on company parking lots.12
Though some workplace violence may be unavoidable,13 these Parking Lot
9. OCCUPATIONAL SAFETY & HEALTH ADMIN. OFFICE OF COMMCN, OSHA
TRADE RELEASE: OSHA ISSUES COMPLIANCE DIRECTIVE TO ADDRESS WORKPLACE
VIOLENCE (Sept. 8, 2011), https://www.osha.gov/pls/oshaweb/owadisp.show_docu
ment?p_table=NEWS_RELEASES&p_id=20637 [https://perma.cc/9AQA-FR86].
10. Workplace Homicides from Shootings, supra note 8. The trend continued
when in 2012 there were 463 workplace homicides, 81% of which resulted from
shootings. News Release: Na tional Census of Fa tal Occupational Injuries in 2012
(Preliminary Results), U.S. BUREAU OF LABOR STATS., https://www.bls.gov/news
.release/archives/cfoi_08222013.pdf (last modified Aug. 22, 2013) [https://perma.cc
/2M6Z-ZQ3Z].
11. See, e.g., Taboas v. Mlynczak, 149 F.3d 576, 582 (7th Cir. 1998); Gallose
v. Long I sland R.R. Co., 878 F.2d 80, 84−85 (2d Cir. 1989); MacNeil v. Labor
and Indus. Review Comm’n, 2012 WL 147861, at *4 (Wis. Ct. App. Jan. 19,
2012); Parsons v. United Tech. Corp., Sikorsky Aircraft Div., 700 A.2d 655, 666
(Conn. 1997); Sprouse v. Miss. Emp’t Sec. Comm’n, 639 So. 2d 901, 904 (Miss.
1994) (Prather, J., dissenting); see a lso Occupational Safety and Health Act, 29
U.S.C. § 654 (2012) (aiming to provide for a hazard-free work environment).
12. See, e.g., ALA. CODE § 13A-11-90 (2017); ALASKA STAT. § 18.65.800 (2017);
ARIZ. REV. STAT. ANN. § 12-781 (2017); FLA. STAT. § 790.251 (2017); GA. CODE
ANN. § 16-11-135 (2017); IDAHO CODE § 5-341 (2017); 430 ILL. COMP. STAT. § 66 /
65 (2017); IND. CODE ANN. § 34-28-7-2 (2017); KAN. STAT. ANN. § 75-7c10 (2017);
KY. REV. STAT. ANN. § 237.106 (West 2017); LA. REV. STAT. § 32:292.1 (2017); ME.
STAT. tit. 26, § 600 (2017); MINN. STAT. § 624.714(18) (2017); MISS. CODE ANN. §
45-9-55 (2017); NEB. REV. STAT. § 69-2441 (2017); N.D. CENT. CODE § 62.1-02-13
(2017); OKLA. STAT. tit. 21, §§ 1289.7a, 1290.22 (2017); TENN. CODE ANN. §§ 39-
17-1313, 50-1-312; TEX. LABOR CODE ANN. § 52.061 (West 2017); UTAH CODE ANN.
§ 34-45-103 (West 2017); WIS. STAT. § 175.60(15m) (2017). Given the general
prohibition, this Comment refers to these statutes as “Parking Lot laws.
13. Some workplace violence is simply unavoid ablea company firearm
ban, for instance, will not ward off disgruntled employees who retrieve guns from
their homes, domestic violence situations that bleed into the workplace, or
robberies. See generally Jennifer Moyer Gaines, Employer Liability for Domestic
Violence in the Wor kplace: Are Employers Walking a Tightrope Without a Safety
Net?, 31 TEX. TECH. L. REV. 139, 148 (2000). An employer may foresee violence
resulting from gun storage on company property. See Dana Loomis et. al.,
Employer Policies Toward Guns and the Risk of Homicide in the Workplace, 95
AM. J. PUB. HEALTH 830, 831 (2005). There is also some value in an employer
being able to maintain a ban of firearms. One 2005 study found that a workplace
without a firearm ban was seven times more likely to have a homicide than a
company with a firearm ban. Loomis et al., supr a, at 831.

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