http://volokh.com/archives/archive_2007_02_18-2007_02_24.shtml#1172173543 [Eugene Volokh, February 22, 2007 at 2:45pm <http://volokh.com/archives/archive_2007_02_18-2007_02_24.shtml#1172173543> ] Trackbacks <http://www.technorati.com/cosmos/search.html?rank=&url=http%3a%2f%2fvolokh.com%2farchives%2farchive_2007_02_18%2d2007_02_24.shtml%231172173543> Employee Gun Possession (Outside Employer Property) Presumptively Protected Against Employer Retaliation?
Private employers are, in nearly all states, presumptively free to fire employees for any reason or no reason at all. There are quite a few statutory limits on this (such as bans on discrimination based on race, sex, and the like), and of course this rule can be changed by contract, whether individual employment contract, union contract, or academic tenure contract. Many states have also recognized judge-made rules of "termination in violation of public policy," for instance when an employer fires an employee for performing jury duty, alerting authorities to employer violations of safety regulations, or doing other things. Some courts have looked to state constitutional protections as sources of such "public policy." Thus, even when the state constitution only prohibits government suppression of certain conduct, state courts may use this (but certainly do not always us ethis) as a guide for fashioning similar common-law prohibitions on private employer conduct. The rules vary from state to state, and they can be trumped by state statute, since these are just common-law rules (even when inspired by the state constitution), not constitutional mandates. Still, they are potentially quite important. A federal district court has just applied this principle to hold that Ohioans -- even ones employed by private employers -- are presumptively protected from being fired for off-employer-property (and presumably off-duty and lawful) possession of guns. The case is Plona v. UPS <http://volokh.com/files/plona.pdf> , 2007 WL 509747 (N.D. Ohio Feb. 13): Plona, an Ohio resident, was employed by UPS at a facility in Cleveland, Ohio.... Plona ... was terminated in April 2006, allegedly because UPS discovered that Plona had a handgun in his vehicle while at work. Plona alleges that he had the handgun, which was disassembled and unloaded, and locked in his car in a public-access parking lot used by both UPS employees like Plona and non-employees/customers of UPS. On the day of his termination, UPS announced that law enforcement would be conducting a routine search of all persons and property on UPS premises for contraband. When Plona informed law enforcement about the handgun locked in his car, and the handgun was then discovered, he was terminated.... [T]he court proceeds on the facts alleged in the complaint and all inferences drawn in Plona's favor, meaning that the court presumes for the purposes of this motion that the parking lot where Plona's car was parked was not UPS company property.... Plona has made one claim in his complaint against UPS, for wrongful termination in violation of Ohio public policy. That claim, under Ohio common law, has four elements: (1) that a clear public policy existed and was manifested in the federal or state constitution, statute or administrative regulation, or in the common law (the "clarity" element); (2) that terminating employees under the alleged circumstances would jeopardize the public policy (the "jeopardy" element); (3) that the termination was motivated by conduct related to the public policy (the "causation" element); and (4) that the employer lacked overriding legitimate business reasons for termination (the "overriding justification" element).... The first two elements -- clarity and jeopardy -- are questions of law, to be determined by the court.. In this case, the claimed source of the "clear" public policy is the Ohio constitution, Article I, Section 4, which states that "[t]he people have the right to bear arms for their defense and security ..." Plona asserts that Ohio has a clear public policy, as stated by its constitution, permitting its citizens to bear arms and that allowing UPS to terminate him for possessing an unloaded, disassembled firearm off of company property would jeopardize that public policy.... The court finds that the public policy of Ohio permitting citizens to bear arms, as stated in Article I, Section 4 of the Ohio constitution, is clear enough to form the basis of a wrongful termination claim. As far as the court could determine, only one court has previously addressed whether the right to bear arms, as enshrined in Article I, Section 4 of the Ohio constitution, can serve as the basis for a wrongful termination in violation of public policy claim. Petrovski v. Fed. Express Corp., 210 F.Supp.2d 943, 948-49 (N.D.Ohio 2002). However, the plaintiff in Petrovski was not terminated for possession of a firearm, just for "conversations concerning firearms." Therefore, while the court in Petrovski addressed the question before this court, it did so only in dicta, as it was not faced with the situation of actual firearm possession as in this case.... Burdens on employees while at work do not jeopardize their rights; they are instead permissible limits on the rights enshrined in the Ohio constitution. See, e.g., Ohio Rev.Code ยง 2923.126(C) (permitting a private employer to prohibit firearms on company property). On the other hand, punishing employees for exercising constitutional rights while outside the workplace jeopardizes public policy to a much greater degree.... Permitting UPS to terminate Plona for possession of a firearm off of company property would be no different than permitting UPS to terminate Plona for possessing a firearm at his residence. And allowing an employer to terminate an employee for exercising a clearly established constitutional right jeopardizes that right, even if no state action is involved. Therefore, because the court presumes that Plona's possession of handgun was not on UPS property, and UPS did not have a policy prohibiting Plona from possessing a firearm at that location, the court shall deny UPS's motion to dismiss. However, the court will allow the parties to revisit this issue after discovery, on summary judgment, if necessary.... Note that this is only presumptive protection -- in some situations, an employer might still argue that it has an "overriding legitimate business reason[]" for the termination. Note also that this is just one district court; it's not clear whether this view will be upheld on appeal, or accepted by Ohio state courts (which are the ultimate arbiters of Ohio law, and which treat federal decisions of Ohio law as at most persuasive, not binding, precedent). Still, it struck me as worth noting, especially since similar arguments could be made in the many other states <http://www.trolp.org/main_pgs/issues/v11n1/Volokh.pdf> that have individual right-to-bear-arms provisions in their state constitutions.
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