Court Refuses to Halt Gun Law
Florida employers will be expected to comply with the
employment-related provisions of the state's controversial "Bring your Guns to
Work" law, Chapter 2008-7 of the Laws of 2008, now that a federal judge has
refused to halt their operation. Two prominent employer groups, the Florida
Retail Federation and the Florida Chamber of Commerce, had challenged the law in
federal court, claiming that it conflicts with the U.S. Constitution by
violating private property rights and also that it is preempted by the
Occupational Safety and Health Act (OSH Act), which requires employers to
furnish their employees a safe workplace.
What the court said.
On employers' power to bar guns in company parking lots, the court said that the
state acted within its authority by allowing guns to be secured in vehicles--as
long as the person "possesses a valid license issued pursuant to [state law]"
and is an employee, independent contractor, or volunteer.
"The Legislature acted within its constitutional
authority in protecting [the right of a worker with a concealed-carry permit a
statutory right to have a gun secured in a vehicle in a parking lot] by
prohibiting a business from asking such a worker whether he or she has a gun in
a vehicle in a parking lot, taking action against such a worker based on a
statement about whether the worker has a gun in a vehicle in a parking lot for
lawful purposes, searching such a worker's vehicle for a gun, conditioning
employment on whether a worker has a concealed-carry permit, or terminating or
otherwise discriminating against a worker with a concealed-carry permit for
having a gun in a vehicle in a parking lot."
On the OSH Act issue, the court ruled that the OSH
Act does not preempt the Florida gun law because the Occupational Safety and
Health Administration has never issued a standard governing guns in parking
lots. For that reason, the court said, Florida is free to legislate in this
The court did, however, strike down the portion of
the law prohibiting employers from barring invitees and customers from bringing
guns onto company property. The law, as written, covers only businesses that
have at least one employee with a valid permit. Therefore, the law would require
businesses to allow customers to have guns in their cars as long as the business
itself is covered. Businesses that do not employ people with permits, however,
be able to bar such customers under the law. The court struck down this portion
of the law as lacking in a rational basis.
What to do.
The court's decision was a preliminary one--meaning that it is subject to a
final decision on the merits. Meanwhile, however, the employment-related
provisions are good law and employers must comply with them. That means that
companies may not ask employees with valid permits about the presence of guns in
their vehicles or take action against anyone with a valid permit based on a
statement that the person had a gun in a vehicle in a parking lot. Nor may
companies condition employment on whether the person has a concealed-carry