Bar News - April 19, 2017
Labor & Employment Law: Regulating Weapons in Private and Public Workplaces
By: Mark T. Broth and Anna B. Cole
New Hampshire Governor Chris Sununu signed into law the so-called “constitutional carry” legislation, Senate Bill 12, on Feb. 22, 2017, to ensure “New Hampshire citizens are guaranteed the fundamental right to carry a firearm in defense of themselves and their families, as prescribed by Article 2a of our state constitution.”
The law, which took immediate effect, repealed New Hampshire’s law prohibiting individuals from carrying a loaded firearm in their car or concealed on their person without a license (RSA 159:4). Following the enactment of SB12, most individuals in New Hampshire do not need to hold a valid license to carry a loaded weapon openly or covertly on their person or in their car. Many employers are now left asking, what impact, if any, does the change in New Hampshire law have on their ability to make and enforce rules regarding the possession of weapons on their premises?
For private sector employers, the answer is that the new law has very little impact. All employers retain control over their property and can, with limited exceptions, regulate the conduct of those entering their premises. Employers are also mandated by federal and state laws to make and enforce reasonable work and safety rules governing the conduct of their employees. Accordingly, private sector employers may establish work rules prohibiting their employees from bringing weapons into the workplace.
If an employer wishes to adopt such a rule, it is best practice to clearly define terms and establish the boundaries of the rule’s application. For example, does the prohibition apply only to the employer’s building, or does it also prohibit weapons in the employee’s car in the employer’s parking lot (a rule that would vex many employees, particularly during hunting seasons)? Does the prohibition apply only to guns, or to other types of weapons?
These rules have very little effect if employees are not informed of them, so employers should make sure employees receive written notice of the rules, that the notice be periodically redistributed. Additionally, the rules should be a subject for safety training, and employees should be informed of the consequences they will face if they violate the rules.
The analysis for public sector employers is more complicated. Public employers are trustees of public lands and buildings and are not able to exercise the same property rights as private employers. While public employers are mandated by state law to establish and enforce workplace safety rules (RSA 281-A:64; RSA 277 et seq.), municipalities and other public entities are prohibited by state law from adopting local regulations or ordinances relative to the possession of firearms (RSA 159:26).
Some have argued that this provision is so broad that it prohibits public employers from adopting and enforcing work rules that forbid firearms in the workplace. Further, it remains unsettled as to whether such workplace rules, when adopted and enforced by a local government, would constitute an unconstitutional infringement on an individual’s right to bear arms under the state and federal constitutions.
While these legal considerations remain unresolved, public employers remain obligated to provide their employees with a safe workplace. There are many circumstances in which a public employer’s failure to regulate guns in the workplace would constitute a safety risk, such as determining the number and types of weapons carried by law enforcement personnel, prohibiting firefighters from carrying weapons or ammunition on a fireground, or preventing a public works employee from carrying a loaded handgun while operating a jackhammer.
While clearly wanting to prevent municipalities from developing their own possession and carry ordinances, it seems unlikely that the Legislature intended to strip public employers of the ability to maintain a safe work environment. Thus, it is at least arguable that public sector personnel policies banning guns in the workplace are distinguishable from the types of local government “ordinances and regulations” prohibited by RSA 159:26.
As a general matter, municipal regulations and ordinances are laws of general application within the community; in contrast, workplace rules are, by definition, of limited application, in that they affect only employees, not persons or businesses located in the community. Relying on such arguments, other jurisdictions with similar state statutes have refused to interpret their statutes to prohibit local governments from enacting workplace rules related to firearms. See, e.g., Cherry v. Municipality of Metropolitan Seattle (Washington, 1991); Doe v. Medford School Dist. (Oregon, 2009).
Similarly, courts in other jurisdictions have held that, when governments are acting as employers, they may impose reasonable workplace rules related to possession of weapons without infringing on their employees’ constitutional right to bear arms. The federal court in the Southern District of New York, in Montalbano v. Port Authority of New York (2012), found that a public employer imposed a reasonable restriction on employee’s firearm use as a condition of employment. In District of Columbia v. Heller (2008), the court struck down law that prohibited possession of guns in the home but stated that its opinion should not be interpreted to undermine longstanding regulations imposing limitations on possession of weapons under specific circumstances, including in government buildings. In McDonald v. City of Chicago (2010), the court stated that: (“[T]he right to keep and bear arms is not ‘a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose’” (quoting Heller).
These cases are consistent with the general understanding that, although individuals do not relinquish their constitutional rights when they agree to work for the government, public employers nonetheless have the power to impose reasonable limitations on those rights, if doing so is pertinent to the employee/employer relationship (See, e.g., Garcetti v. Ceballos, 2006).
These are issues that will require clarification by the Legislature or courts. Until they are resolved, local governments may nonetheless want to consider adopting reasonable workplace rules that are necessary to provide their employees with safe work environments. Although any such rules may be subject to challenge, local government officials might sleep better knowing they have taken reasonable measures to protect employee safety.
Mark Broth and Anna Cole are members of Drummond Woodsum’s Labor and Employment Group. Their practice focuses on the representation of private and public employers in all aspects of the employer-employee relationship.