Can't Ignore It Any Longer - The Texas Legislature Is In Session
Posted
10:49 AM
by Michael Fox
I don't know if it has been that there is so much going on in Washington or a feeling that it is unlikely that anything too severe to employers will actually come out of the Texas legislature, but for some reason I have basically ignored our state solons. Although they joined us here in Austin in the middle of January, they are still basically in the organizational stage. The new Speaker of the House is to announce committee assignments only this week. Committee assignments taking time.
But a news item ($) in Employment Law 360 reminded me that there is at least one area where employers could be vulnerable: guns in parking lots. That's right, Senator Hegar (R-Katy) has now introduced SB 370. The key paragraph:
A public or private employer may not prohibit an employee who holds a license to carry a concealed handgun ... who otherwise lawfully possesses a firearm, or who lawfully possesses ammunition from transporting or storing a firearm or ammunition the employee is authorized by law to possess in a locked, privately owned motor vehicle in a parking lot, parking garage, or other parking area the employer provides for employees.One argument will likely be that a number of other states have passed similar measures. I can just hear my mother asking me: "If all your friends jumped off a cliff ..."
Labels: political
Guns vs. Business on the NYT Editorial Page — and the Texas Version
There is no debate that doing so [allowing guns at the workplace] endangers workers. Workplaces that tolerate guns are five to seven times more likely to suffer homicides than job sites that ban firearms, according to a 2005 study in The American Journal of Public Health. The notion that self-defense mandates keeping guns in office drawers or out in parking-lot glove compartments is a dangerous fantasy. Even worse, SB 534 has already passed the Senate, and like its counterpart HB 992 (also passed out of committee), provides a cause of action for anyone discharged for having a gun on an employer's parking lot that has complied with a convoluted scheme involving the employee providing his supervisor a written statement that he has a gun, along with copies of the gun license and allowing the employer to provide an alternative place for storage. I can just see it now, instead of a hat check closet, employer's will now have a gun check closet. I am not terribly optimistic that these bills won't make it through the legislature. If you are concerned, you better speak up soon. Labels: HR general, political
OSHA Preemption Fires a Blank in Oklahoma Gun Law Case
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. Labels: political
Texas Supreme Court - Employer Not Liable For Employee's Off Work Conduct
The case turned on the employer's duty to the injured police officer. The Supreme Court began by re-affirming the basic rule of long-standing in Texas -- "in the absence of a relationship between the parties giving rise to the right of control, one person is under no legal duty to control the conduct of another, even if there exists the practical ability to do so." While noting that the employer/employee relationship can give rise to this duty, the Court noted generally it was limited to responsibility only for off-duty torts committed either on the employer's premises or with its property.
While I Am in the Land of Aloha, the Legislature Permits Guns on Employer Parking Lots Premises
Labels: HR
Posted
10:19 AM
by Michael Fox
Not often that employment issues get space on the New York Times editorial page, but last week it weighed in on the battle between business and the gun lobby over employers' rights to ban guns from the workplace that is being fought in legislatures across the country.
I am not a hunter, nor a student of the 2nd amendment, but I do know a bit about workplaces, and let me tell you this is an important issue for employers and its crazy to think employers shouldn't have the right to ban handguns. The NYT agrees, Workers’ Safety and the Gun Lobby.
If safety is the issue, which of course it is, the NYT points to this:
The debate is happening just up the street from me as the Texas legislature is in session and has several bills before it. One bill, HB 220, has already passed out of committee. It would prohibit employers from banning guns in parking lots unless two conditions are met: (1) the parking lot, garage, or other area is completely surrounded by a gate and is not open to the public; and (2) ingress to and egress from the parking lot, garage, or other area are monitored by security personnel.
These kinds of exceptions, which are not practicable, are cover for legislators who can use the "exception" to show that they were "reasonable." Garbage.
I write this (mostly) in jest, but there are important issues that could plague an employer because of these bills. The NYT article mentions liability, and hand in hand with this consideration, insurance premiums could conceivably rise because of the possibility of gun-related injuries. Many small businesses already battle to keep premiums low for their employees. For example, one small KS company recently installed a gym on its premises and created a health awareness committee to lower employee premiums. I cannot imagine that their health insurance provider would dance for joy upon learning of a similar bill in KS. In addition, as you stated, the “convoluted scheme” required by the bill will just add another paperwork requirement for employers and make their job that much more confusing.
These bills do not leave a practicable way out for employers. While an employer could perhaps construct a gate around its parking lot without incurring undue expense, many businesses would be precluded from doing so for at least two reasons: 1) a city law probably disallows this in some areas, and 2) it would be aesthetically damaging and thereby decrease business. As for the second prong of the exception, most businesses simply cannot afford to hire security for this purpose. And these expenses would be imposed merely because employees choose not to leave their firearms at home when going to work…
Being a KS resident, I doubt that the TX legislature would care much about my opinion in the matter. However, concealed carry of firearms has just recently been passed in KS, so perhaps, in a couple of years, I will have my chance to write that letter.
Posted
9:11 AM
by Michael Fox
Yesterday the 10th Circuit reversed a district court's holding that the Oklahoma statute requiring employers to allow employees to bring guns to the employer's parking lot was preempted by the general duty clause of OSHA. Ramsey Winch, Inc. v. Bradley (10th Cir. 2/19/09) [pdf].
Although I had liked the result in the district court, I had both doubted that the rationale would hold up and also was concerned about creating too broad a use of the general duty clause. See my earlier post, Oklahoma Gun Law Case and the Law of Unintended Consequences.
The 10th Circuit also dealt with two constitutional arguments, that the statute resulted in an improper "taking" and was impermissibly vague, but they were no more successful than the OSHA preemption one.
I think the 10th Circuit has it right when it says that this is basically a political argument:
A statute modeled on Oklahoma's is pending in the Texas legislature. See, Can't Ignore It Any Longer - The Texas Legislature Is In Session. Yesterday's decision makes the path for what it will take to avoid having such a statute clearer -- strong political action. Unfortunately, it does nothing to make it easier.
Posted
11:11 AM
by Michael Fox
Although there are a few caveats, Texas employers can breathe a sigh of relief today as the Texas Supreme Court reversed an appeals court holding that an employer was liable for the shooting of a policeman by one of its employees. Loram Maintenance of Way, Inc. v. Ianni (Tx 6/30/06)[pdf].Roger Tingle worked for Loram and traveled with his wife. Tingle was also an enthusiastic participant in an illegal drug culture that was allowed to flourish among the employees at Loram. He had been using methamphetamine on and off the job for ten months before the incident that led to this lawsuit. He testified that he only took the drug for recreational purposes, or to stay awake during work after partying,but there was also evidence that Tingle’s supervisor and co?workers used the drug, and that Tingle’s supervisor had given Tingle time off to purchase more.
Because of his heavy methamphetamine use, Tingle became moody and mentally unstable. In the weeks and days leading up to the incident, Tingle was seen using the drug at work, and he threatened one of his wife’s friends with a knife. Those incidents were reported to Loram management.
On the day of the incident, while at work, Tingle reportedly spoke of attacking his wife. After their shift ended, he and his co-workers were driven back to the motel where they were housed with their families. Later that day, Tingle got into an argument with his wife, forced her into their car, and began to drive out of the motel parking lot. When he threatened his wife with a gun, she jumped out of the car screaming for help. David Ianni, an El Paso police officer, was leaving a nearby restaurant when he witnessed the altercation and went to her aid. When Tingle got out of his car to pursue his wife, Ianni tried to intervene. Tingle then shot Ianni, seriously injuring him.
This is one of those awkward cases where the Court encourages conduct -- doing nothing in the face of a potentially dangerous employee as he is leaving your premises -- that on first blush seems to be counterproductive. But rather than opening the Pandora's box of liability for employers, a better way to get the desired result would be to reconsider Otis, either by the Court or by the legislature, to give some sort of Good Samaritan protection to an employer who tries to exert control in those circumstances.
Today's holding seems to preclude a replay in Texas of the recent decision of a New Jersey court holding an employer liable for the sexual molestation of an employee's step-daughter because it failed to monitor his work computer and discover that he was visiting pornographic sites. See, Mr. Employer - You Should Have Protected Me.
This is one of those cases where bad facts, and justifiable sympathy for the officer, could have made for bad law -- fortunately, this time it didn't.
Posted
11:48 PM
by Michael Fox
I am vacationing on the Garden Island, but taking some time tonite to catch up on what's been going on. When I left Texas the legislature was still in session, although I thought all the economic problems would keep them from doing too much mischief potentially harmful to employers.
But I was as wrong about that, as I was right about how great Kauai would be.
While I was playing, Russell Cawyer at Texas Employment Law Update was posting on the passage of S.B. 321, which puts Texas in company with those states which prohibit employers from barring employees who are licensed to carry weapons from having them in their locked cars in the employers parking lot. There are a couple of exceptions, but they are not going to pick up many employers. Like other states, there is indemnity protection for the employer, although there is that troublesome exception for "gross negligence."
I am not a fan of these laws, although I can't say that I can post of any adverse consequences that have occurred in other states. Hopefully, I won't have occasion to update this post in the future with such a report.
Aloha.
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