At Lexology, a recent post discussed a new Kentucky case dealing with the intersection of concealed carry laws and the employment at will doctrine:
At issue in Korb v. Voith Industrial Servs., Inc., 12CV0222 (W.D. Ky Nov. 28, 2012), was an employee who pulled out a handgun from his car to show a security guard the “sweet deal” he received for $150. The court did not describe a hostile employee. It seems he was simply engaging in his own version of show-and-tell. The employer was not amused and terminated the employee’s employment pursuant to a company policy prohibiting firearms on company property.
Important to the case for the court was Kentucky Revised Statute § 237.106(1), which provides:
No … employer, who is the owner, lessee, or occupant of real property shall prohibit any person who is legally entitled to possess a firearm from possessing a firearm, part of a firearm, ammunition, or ammunition component in a vehicle on the property.
These restrictions may seem familiar to Wisconsin employers who recently wrestled with the provisions of the concealed carry law. Wisconsin Statute §175.60(15m)(b) provides:
An employer may not prohibit a licensee or an out-of-state licensee, as a condition of employment, from carrying a concealed weapon, a particular type of concealed weapon, or ammunition or from storing a weapon, a particular type of weapon, or ammunition in the licensee’s or out-of-state licensee’s own motor vehicle, regardless of whether the motor vehicle is used in the course of employment or whether the motor vehicle is driven or parked on property used by the employer.
Both laws establish strong protections for employees to keep a firearm in their personal vehicle.
Although the Western District of Kentucky court repeatedly pointed out it felt the consequences were rather harsh, it found that the Kentucky law did not protect the employee. As noted by the court, if this was simply a matter of storing the gun in the vehicle, the employee would have been protected. But the employee did more. He took the gun out of its holster and handled it, and he did so for reasons that the statute did not otherwise protect. For the court, this was enough for the employer to lawfully discharge the employee without violating the law.
I'm mostly a neutral in the gun control wars, albeit rethinking that issue and lacking any real enthusiasm for constitutionalizing the issue, but I'm defintely not a fan of these laws. As I have explained at considerable length before (and please go read the post before commenting here), I firmly believe employment-at-will ought to trump concealed carry "rights." In brief, laws like those at issue in Kentucky and Wisconsin are part of the steady erosion of carving out one "little exception" to the at will doctrine after another that has essentially eviscerated that doctrine.
In any case, when last I visted this issue, my post moved one blogger to ask:
What if an employer fired employees for keeping “inflammatory” banners or signs concealed in their vehicles, for use at a rally after work? Would Professor Bainbridge mount a fierce defense of the at-will employment doctrine in these circumstances? Probably not. After all, college professors are generally much fonder of talking and demonstrating than shooting.
Piffle. Of course I would raise a defense of the employment-at-will doctrine in those circumstances. First amendment free speech rights limit only the government. In my view, if a private employer wants to prohibit any form of worker speech -- inflammatory or otherwise -- on its own private property and enforce that prohibition by firing workers who violate it, the employer should have the right to do so. The economic and social values of employment at will and property rights makes this an easy case. (And, before you ask, I think labor laws authorizing union speech on employee property are a bad idea, as are laws forbidding private employers from banning religious speech or pretty much any other kind of speech.) I'm much fonder of private property and laissez-faire economic policy, after all, than either talking or shooting.
