Employee fired for having gun in truck states wrongful discharge claim
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Thursday, August 11, 2016

Employee fired for having gun in truck states wrongful discharge claim

By Dave Strausfeld, J.D. An employee who alleged he was fired for having a gun in his truck stated a common law claim of wrongful discharge, held the Fifth Circuit, relying on the Mississippi Supreme Court’s recent answer to a certified question in which it ruled that a Mississippi statute entitling employees to keep firearms locked away in their vehicles while at work can support a public-policy exception to the employment-at-will rule. The district court should not have dismissed his public policy claim (Swindol v. Aurora Flight Sciences Corp., August 8, 2016, Southwick, L.). The employee parked his truck in his company’s parking lot with a firearm locked inside. When the company’s managers learned about the gun, they fired him later that same day for violating a policy forbidding firearms on company property, he said. He commenced a diversity action in federal court, asserting a state-law claim for wrongful discharge in violation of public policy. When the district court granted the company’s motion to dismiss, he appealed. Question certified to state supreme court. Because the case raised an important, unsettled question of state law, the Fifth Circuit decided it was appropriate to certify to the state supreme court the question "Whether in Mississippi an employer may be liable for a wrongful discharge of an employee for storing a firearm in a locked vehicle on company property in a manner that is consistent with Section 45-9-55." In March 2016, the Mississippi high court answered that certified question in the affirmative, denying rehearing in July. With the state court’s response in hand, it was a straightforward matter for the federal appeals court to apply it to the instant case. Mississippi’s law on guns in workplace parking lots. Section 45-9-55 of Mississippi’s Code provides that "a public or private employer may not establish, maintain, or enforce any policy or rule that has the effect of prohibiting a person from transporting or storing a firearm in a locked vehicle in any parking lot, parking garage, or other designated parking area." There are some exceptions listed such as where the parking lot is protected by a gate or security station. Narrow public-policy exception. Compared to most other states, Mississippi’s highest court has shown great reluctance to create common-law exceptions to employment at will. The two exceptions to the Mississippi employment-at-will doctrine identified by the state supreme court in McArn v. Allied Bruce-Terminix Co. over 20 years ago were the only two recognized—until the one endorsed here in response to the Fifth Circuit’s certified question. Lack of clarity in state court’s answer? Notably, the Fifth Circuit appeared somewhat uncertain whether the Mississippi Supreme Court had actually given an approving nod to a new public-policy exception. In responding to the certified question, the Mississippi court explained that Section 45-9-55 constitutes "express legislative action" that makes terminating an employee for having a firearm inside his locked vehicle on company property "legally impermissible." Seemingly scratching its head, the Fifth Circuit panel wrote: "Because the Mississippi Supreme Court equated the statutory exception under Section 45-9-55 with the public policy exceptions of McArn, we conclude the court was holding that the relevant cause of action for discharging someone in violation of this statute is the same as that already recognized for wrongful discharges under McArn, namely, a tort action with the same categories of relief being available." Not immune from liability. The parking-lot firearms statute also contains a provision that immunizes employers from liability for damages resulting from "an occurrence involving the transportation, storage, possession or use of a firearm covered by this section." The Mississippi high court explained that this section does not inhibit suits such as the plaintiff’s here, but instead protects employers from liability for the actions of employees or third parties that may result from firearms being on company property, presumably including accidents. Based on the Mississippi court’s response to its certified question, the Fifth Circuit concluded that the employee stated a claim for wrongful discharge under Mississippi law, so the appeals court reversed the dismissal of his claim and remanded for further proceedings.

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