'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

“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.com/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 shootings 9 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 COMMC’N, 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: National Census of Fatal 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 Island 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 also 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 unavoidable—a 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 Workplace: 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., supra, at 831. 992 LOUISIANA LAW REVIEW [Vol. 78 laws nonetheless encumber an employer’s ability to ensure workplace safety 14 and exercise its private property rights. 15 Although Parking Lot laws largely circumscribe an employer’s authority, they are the law in their respective states and govern many companies’ policies. 16 Failure to comply with the statutes carries serious implications for employers; depending on the jurisdiction, criminal penalties or civil damages may be instituted against an employer who fails to comply with the statutes. 17 Most Parking Lot laws, however, fail to provide an explicit right of action to an employee terminated for storing a firearm on company property. 18 When a Parking Lot law is not actionable on its face, an employee must first examine his employment arrangements to determine possible remedies upon termination. The majority of employees in the United States are at-will, meaning that the employer or the employee may terminate the employment relationship at any time for any reason. 19 Because the at-will doctrine lends itself to uncertainty and arbitrariness, 20 many states limit the negative consequences of at-will by recognizing the 14. See Loomis et al, supra note 13, at 831. 15. See Thomas W. Merrill, Property and the Right to Exclude, 77 NEB. L. REV. 730, 745 (1998) (“There is strong evidence that, with respect to interests in land, the right to exclude is the first right to emerge in primitive property rights systems.”); see also Sara Sahni, Gun Battle in Georgia Over Firearms at Work, 25 GA. EMP. L. LETTER 1 (2013). 16. 21 states have these laws. See supra note 12. 17. See ALA. CODE § 13A-11-90; FLA. STAT. § 790.251; GA. CODE ANN. § 16-11-135; IDAHO CODE § 5-341; MINN. STAT. § 624.714(18); OKLA. STAT. tit. 21, §§ 1289.7a, 1290.22; TENN. CODE ANN. §§ 39-17-1313, 50-1-312; see also FLA. STAT. § 790.251(6) ; UTAH CODE ANN. § 34-45-106. 18. See ALASKA STAT. § 18.65.800; ARIZ. REV. STAT. ANN. § 12-781; GA. CODE ANN. § 16-11-135; IDAHO CODE § 5-341; 430 ILL. COMP. STAT. § 66 / 65; IND. CODE ANN. § 34-28-7-2; KAN. STAT. ANN. §...