Guns in Trunks

An Erosion of Tennessee’s Employment- at-Will Rule?

Note: After this article went to print, and immediately before publication, the Tennessee Attorney General issued an opinion on what limitations, if any, 2013 Tenn. Pub. Acts, Chapter 16 (“Chapter 16”) places on employers’ rights to terminate an employee who brings a firearm or firearm ammunition onto the employer’s property.  Tenn. Op. Att’y Gen. 13-41 (May 28, 2013).  In that opinion, the Attorney General has unambiguously opined that the “guns in trunks” legislation “does not impact the employer/employee relationship” and does not prohibit an employer from terminating an employee for possession of a firearm or ammunition on the employer’s property. This opinion would have significantly, but not completely, altered our article.  While not binding on the courts, opinions of the Tennessee Attorney General are ‘persuasive,’ Whaley v. Holly Hills Mem. Park Inc., 490 S.W.2d 532, 533 (Tenn. Ct. App. 1972), and ‘entitled to considerable deference.’  State v. Black, 897 S.W.2d 680, 683 (Tenn. 1995).” Metro. Gov't of Nashville v. Ollis, No. M2010-02046-COA-R3-CV, 2011 Tenn. App. LEXIS 399, *7 n.8 (Tenn. Ct. App. July 22, 2011). 

The Attorney General’s opinion does not address Chapter 16’s impact on Tenn. Code Ann. § 39-17-1359 which is the statute that currently authorizes public and private employers to lawfully prohibit firearms on their property, provided they post the required signage.  Chapter 16 appears intended to eliminate the employers’ rights under Tenn. Code Ann. § 39-17-1359 where the permit carrier is in compliance with the new law.  The preamble to Chapter 16 also refers to “concerned citizens who want to reasonably and legally protect themselves and their families, back at home and on the way to and from work ….”  And the definition of “parking area” in Chapter 16 “means property provided by a business entity, public or private employer.”  For these reasons, our advice to employers would be to tread lightly in this area, or risk being a test case for a terminated permit carrier.  In the end, the Tennessee appellate courts will have to decide the interplay between these two statutes, whether Chapter 16 is ambiguous, and, if so, the impact of Lt. Gen. Ron Ramsey’s letter inserted into the Senate Journal referred to below.

A new Tennessee law, Public Chapter No. 16, allows Tennessee employees who hold a valid handgun-carry permit to bring their firearms onto their employer’s parking lots.[1] This so-called “guns in trunks” legislation was signed by Gov. Bill Haslam on March 14 and will become effective on July 1, 2013. The law states that handgun-carry permit holders may lawfully store firearms and ammunition in “the permit holder’s privately owned motor vehicle,” on “any public or private parking area” in a location where it is permitted to be, so long as the firearms and ammunition are: “(1) kept from ordinary observation if the permit holder is in the motor vehicle; or (2) kept from ordinary observation and locked within the trunk, glove box, or interior of the person’s vehicle or a container securely affixed to the vehicle if the person is not in the vehicle.”[2]

As one can imagine, the debate over this legislation created some tension between proponents of the Second Amendment and the Tennessee business community. In the end, the right to bear arms prevailed, at least to a limited extent. This article sets out the basic nuances of the new law, how it is likely to affect Tennessee employers, and some recommendations for the time being.

The Basics of “Guns-in-Trunks” Legislation

Public Chapter No. 16 only applies to those individuals who have a valid handgun carry permit.[3] As background, Tennessee law requires, among other things, applicants for a handgun-carry permit to submit fingerprints for a criminal background check, complete a handgun safety course and pay a fee.[4]

While the matter is not free from doubt, a basic reading suggests that the law probably applies to all of the vehicle owner’s firearms, not just those covered by the handgun carry permit. For example, even though the permit would only apply to a concealable firearm, like a handgun, the law appears to allow the vehicle owner to properly store a shotgun in his trunk provided he has a handgun-carry permit. The law would only apply to vehicles owned by the permit holder — it would not apply to borrowed, rented, or company-owned vehicles. Importantly, the law does not allow employees to carry the firearms inside the workplace or on their person.

Current law allows public or private employers to post a “no firearms” sign in order to ban firearms both inside their establishments and in their parking lots.[5] The contents of the notice are specified in Tenn. Code Ann. § 39-17-1359(h). The guns in trunks law carves out an exception for permit holders who keep firearms locked and out of sight in their vehicles. However, employers may still prohibit firearms in their parking lots in instances where the vehicle owner does not have a valid handgun-carry permit, or the vehicle at issue is not owned by the employee.[6]

As a concession to Tennessee businesses, Public Chapter No. 16 provides employers with immunity from liability for injuries resulting from the “transportation” and “storage” of a firearm and/or ammunition in a privately owned vehicle.

How Will ‘Guns-in-Trunks’ Legislation Affect Tennessee Employers?

The real question, and one that seems to be causing quite the confusion, is whether an employer can terminate a permit-holding employee who is otherwise in compliance with Public Chapter No. 16, where the employer prohibits firearms on its premises. Let’s start with the general proposition that Tennessee is an employment-at-will state. This means that both the employer and the employee are permitted, with certain exceptions, to terminate the employment relationship “at any time for good cause, bad cause, or no cause.”[7] That being said, the Tennessee Supreme Court has created an exception to the employment-at-will rule when an employee is terminated for a reason that violates a clear public policy.[8]

So, does Public Chapter No. 16 establish a public policy protecting a permit carrier from termination by an employer who: (1) posts a notice prohibiting employees from bringing weapons on the premises, as allowed under Tenn. Code Ann. § 39-17-1315(b)(1); and (2) whose notice meets the requirements of Tenn. Code Ann. § 39-17-1359?

This, of course, becomes an issue of statutory construction. The most basic rule of statutory construction is to ascertain and give effect to the intention and purpose of the legislature.[9] Where the language contained in the four corners of a statute is plain, clear and unambiguous, the duty of the courts is to construe and apply the law as written.[10] It would appear on the face of the new law that the legislature intended to remove an employer’s rights to prohibit any carry permit holder (employee or visitor) from bringing firearms into the employer’s approved parking area — so long as the individual complies with the law.[11] The recitals of the law support a public policy of allowing a carry permit holder to travel to and from work in his own vehicle with his firearms. The ambiguity, if there is one, is that the legislature did not explicitly refer to Tenn. Code Ann. § 39-17-1315(1) among the statutes partially superseded by Public Chapter No. 16.

If a reviewing court determines the interplay between these statutory provisions to be ambiguous, the court may consider the legislative debate in ascertaining the intent of the statute.[12] Let’s assume the statute is found to be ambiguous. Will the legislative debate provide a degree of clarity? Probably not. In regard to Public Chapter No. 16, the legislature’s message is markedly conflicting. On the one hand, the House sponsor, Rep. Faison (R-Cosby), stated in testimony before the subcommittee that:

… we are not going to dictate policy setting at a business, and if a business decides to fire someone, or to reprimand someone that is their role … and we as a legislature are not taking a posture to dictate to them … this is an at-will state … and [the business] will still be able to do whatever they want with the person who had a gun in their car.[13]

Conversely, Lt. Gov. Ron Ramsey (R-Blountville), along with four other Senators, inserted a letter in the Senate Journal on the day the act was signed by Gov. Haslam in which they explained (perhaps belatedly) that their intent behind the legislation was, in part, to prevent employees from being terminated for exercising their rights under Public Chapter No. 16. Specifically, the letter stated:

employers who terminate employees just for exercising this right may violate the state’s clear public policy that handgun carry permit holders are allowed to transport and store firearms or ammunition under the described circumstances. An employee may have a claim for retaliatory or wrongful discharge if the employee is fired just for exercising this right.[14]

At the least, there appears to be a communication breakdown between the House and the Senate on this bill.

The bottom line is that, even without looking to the legislative debate (as conflicting as it may be), Public Chapter No. 16 probably creates another public policy exception to Tennessee’s employment-at-will rule. As such, we would caution Tennessee employers not to discipline or terminate an employee for exercising his or her right under the guns-in-trunks law.

So what can an employer wanting to protect its business/employees from workplace violence do, if anything? Such an employer can, and should, post notices prohibiting firearms on its premises, except where they are properly stored by a handgun carry permit holder in a designated parking lot. Employers can also require their employees to declare whether they are exercising rights under the new law, provide a copy of the carry permit, and require them to park in a designated parking area. The latter approach (identify and segregate) should be carefully considered. Once the employer requires disclosure, that employee is in a new protected category. Terminating the employee, especially close in time to the disclosure of the carry permit, could have the unintended consequence of generating a suit for violation of public policy, regardless of the relation of the termination to the exercise of rights under the law.

There is no doubt that this legislation raises many questions. These questions will have to be addressed (hopefully sooner rather than later) by the courts before we have a clear picture of how this law will affect Tennessee employers. Meanwhile, caution is the order of the day.

Notes

  1. Formerly Senate Bill No. 142 and House Bill No. 118, Public Chapter No. 16, codified at Tenn. Code Ann. § 39-17-1313.
  2. Tenn. Code Ann. § 39-17-1313(a)(2).
  3. Id.
  4. See e.g. the preamble to Tenn. Code Ann. § 39-17-1313.
  5. See Tenn. Code Ann. § 39-17-1315(b)(1).
  6. See Tenn. Code Ann. § 39-17-1313(a).
  7. Crews v. Buckman Labs Int’l, 78 S.W.3d 852, 857 (Tenn. 2002).
  8. Guy v. Mut. of Omaha Ins. Co., 79 S.W.3d 528, 535 (Tenn. 2002) (“This jurisdiction has also recognized, however, that the traditional at-will rule is not absolute; restrictions have been imposed upon the right of an employer to terminate an employee when the employee is discharged in contravention of well-defined and established public policy. The essence of the public policy exception is that an employee may claim damages for retaliatory discharge when the motivating factor for the discharge violates a clear public policy evidenced by an unambiguous constitutional, statutory or regulatory provision.”).
  9. Carson Creek Vacation Resorts Inc. v. State, 865 S.W. 2d 1, 2 (Tenn. 1993).
  10. Green v. Johnson, 249 S.W.3d 313, 318 (Tenn. 2008.)
  11. Tenn. Code Ann. § 39-17-1313(a) states, “Notwithstanding § 39-17-1309, 39-17-11, or § 39-17-1359, … the holder of a valid handgun carry permit recognized in Tennessee may transport and store a firearm or firearm ammunition … while utilizing any public or private parking area .…” (emphasis added.)
  12. See, e.g., Tenn. Code Ann. , 914 S.W.2d 84 (Tenn. Ct. App. 1995).
  13. Rep. Faison, “Statement to the House, Subcommittee on Civil Justice. House Bill 118,” Feb. 2, 2013. Available at: http:// tnga.granicus.com/MediaPlayer.php?view_id=269&clip_id=7054&meta_id=132801.
  14. Senate Journal. 108th Gen. Assembly, Mar. 14, 2013 (letter from Lt. Gov. Ramsey, et al. to Chief Clerk of Senate).

Edward G. Phillips EDWARD G. PHILLIPS is a lawyer with Kramer Rayson LLC in Knoxville, where his primary areas of practice are labor and employment law. He graduated with honors from East Tennessee State University and received his law degree from the University of Tennessee College of Law in 1978 with honors, and as a member of The Order of the Coif. He is a former chair of the Tennessee Bar Association’s Labor and Employment Law Section.

 

 

Brandon Morrow BRANDON L. MORROW is an associate with Kramer Rayson LLP in Knoxville, where his primary areas of practice are labor and employment and litigation. He earned a bachelor’s degree from the University of Tennessee and a law degree from UT College of Law in 2012.