Employment Law Daily Whether its restricted parking lot access allowed enforcement of employer’s no firearms policy will go to jury
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Thursday, August 30, 2018

Whether its restricted parking lot access allowed enforcement of employer’s no firearms policy will go to jury

By Joy P. Waltemath, J.D.

Finding material fact disputes as to whether access to a military shipbuilding company’s parking lot was sufficiently restricted to allow it to enforce its security protocol prohibiting its employees from having firearms and all other weapons on company premises, including parking lots, a federal district court in Mississippi refused to grant summary judgment against a fired employee’s claims of wrongful discharge under Mississippi’s statute protecting employees’ rights to store firearms in their locked vehicles in any employer parking lot. The court was unconvinced that posting no trespassing signs, conducting security patrols, and having closed-circuit camera surveillance were sufficient under the law at the time to show restricted access. In any event the employee provided conflicting evidence that the signs were rusted, falling down, and not legible; he also claimed he had never seen cameras or security guards patrolling the premises (although a security guard patrolling the premises is how his firearm was found). Nor would the court bar the employee’s claim for punitive damages (Smith v. Huntington Ingalls Inc., August 27, 2018, Ozerden, H.).

After a security guard patrolling the employer’s parking lot observed “two speed loaders for a revolver” in plain view inside the employee’s van, a supervisor retrieved the employee from work so that he could unlock his van to search it. In addition to the two speed loaders, which were filled with hollow point bullets, the search found a revolver loaded with five rounds of hollow point bullets. The employee was asked to leave and not return until the company’s labor relations department contacted him. When it did and he and his union rep met with management, they gave management a copy of the Mississippi Supreme Court’s decision in Swindol v. Aurora Flight Sciences Corp., contending the employee should not be fired based upon the court’s interpretation of Mississippi Code § 45-9-55. The company fired him anyway, and the employee sued for wrongful discharge, including a claim for punitive damages.

Restricted access under Mississippi law. Mississippi Code § 45-9-55(2) provides an exception to the statutory prohibition against employer policies banning firearms in locked vehicles in any employer parking lot—where “access is restricted or limited through the use of a gate, security station or other means of restricting or limiting general public access onto the property.” The employer argued it “restricts public access with no-trespassing signs, security patrols, and closed circuit cameras monitored in a central security station,” and its policy prohibiting weapons was “communicated to its employees during their orientation, through articles in the shipyard newspaper, and by way of signs posted at the entrances of all parking lots which state that weapons are prohibited and that vehicles are subject to search.” Citing the handgun and ammunition found in the employee’s van, the company said both the employee’s wrongful discharge and his punitive damages claims should be dismissed because, in terminating him, it relied on advice of counsel based on this restricted public access.

Employment at will exception. Discussing Mississippi and Fifth Circuit precedent holding that yes, an employer may be liable for the termination of an employee for having a firearm in a locked vehicle, and that the state “for the first time recognized a statutory exception to the employment at will doctrine that is equivalent to the public policy exception,” the court found it genuinely disputed which specific security measures the company actually had in place and whether they were effective to properly restrict the parking lot under Mississippi law, or to place employees on notice that the parking lot was restricted. The court found it notable that the parking area was not gated nor did it have manned, controlled access to its parking lots. The fact the employer cited prohibitive costs to do so was not at all persuasive to the court, which pointed out the company made a business decision to forgo the expense of gates and/or security stations: “However, expense does not constitute a permissible ground for violation of the Second Amendment or Mississippi law.”

Second Amendment infringement. Instead, the court discussed fact issues regarding whether the parking lot policy infringed the Second Amendment rights of its employees, citing its thousands of employees who commuted “long distances on public roads to and from work.” The policy as applied “arguably has the effect of precluding its employees from having firearms in their vehicles during these commutes, which in some cases may be quite long,” said the court, also wondering “whether the parking lots in this situation can properly be considered parts of the workplace given the size of Ingalls’ actual work facilities and its workforce.” It also questioned whether there were any controlled access points, and noted that it was undisputed that vehicles are not searched or screened as they enter the parking lots. “When balanced against the potential for intrusion on a constitutional right and a violation of state law, the effectiveness of Ingalls’ parking lot policy in achieving its stated goal of improving security seems questionable,” concluded the court.

Punitive damages. Nor would the court dismiss the punitive damages claim. It would not say that a reasonable juror would be precluded from finding that the employer’s reliance on the advice of counsel was not in good faith, since the company did not deny that it was aware of the statute and the decision in Swindol when it terminated the employee.

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