Posted by Eugene Volokh:
Firing an Employee for Gun Possession in Car Parked on Company-Controlled
Parking Lot
http://volokh.com/archives/archive_2009_03_01-2009_03_07.shtml#1236362082
is just fine, holds the [1]U.S. Court of Appeals for the Sixth Circuit
in Plona v. UPS. This is the latest phase in a case I noted [2]two
years ago (though that post came before it became clear that the
parking lot was indeed company-controlled). Here's the relevant
discussion:
Ohio has traditionally adhered to the employment-at-will doctrine,
which permits an employer to terminate an at-will employment
relationship �for any cause, at any time whatsoever, even if done
in gross or reckless disregard of [an] employee�s rights.� But ...
the Ohio Supreme Court [has] carved out an exception to the
employment-at-will doctrine for situations where the employee�s
discharge contravenes public policy. To maintain [such a] claim, a
plaintiff must establish: (1) the existence of a clear public
policy manifested in a state or federal constitution, statute or
administrative regulation, or in the common law (the �clarity
element�); (2) that a dismissal under circumstances similar to the
plaintiff�s dismissal would jeopardize the public policy (the
�jeopardy element�); (3) that the plaintiff�s dismissal was
motivated by conduct related to the public policy (the �causation
element�); and (4) that the employer lacked an overriding
legitimate business justification for the dismissal (the
�overriding justification element�). The clarity and jeopardy
elements are questions of law to be decided by the court.
Here, Plona asserts that the �clear public policy� at issue is
manifested in the Ohio Constitution, Article I, § 4, which states
that �[t]he people have the right to bear arms for their defense
and security ....� He reasons that UPS violated this policy by
terminating him for possessing an unloaded firearm in a parking lot
that he characterizes as quasi-public property by virtue of its use
by UPS customers and its ownership by a party other than UPS.
Plona�s argument is without merit. Although the Ohio Constitution
provides a general right to bear arms, the state certainly does not
have a �clear public policy� of allowing employees to possess
firearms on the premises of their private employers. To the
contrary, the Ohio legislature has specifically provided that
employers may limit their employees� rights to bear arms:
Nothing in this section shall negate or restrict a rule, policy, or
practice of a private employer that is not a private college,
university, or other institution of higher education concerning or
prohibiting the presence of firearms on the private employer�s
premises or property, including motor vehicles owned by the private
employer.
Plona does not dispute that the parking lot in question is owned by
UPS�s wholly owned subsidiary BT-OH, or that the lease between UPS
and BT-OH affords UPS full control over the parking lot. UPS was
thus plainly within its rights, as codified in § 2923.126(C)(1),
to prohibit its employees from possessing firearms in the parking
area. Because Plona cannot show that UPS violated a clear public
policy of the state of Ohio, his wrongful-termination claim fails
as a matter of law.
By the way, to anticipate the likely "of course no court would ever
hold this as to other rights, such as free speech" arguments: In most
states, nongovernmental employers are allowed to fire employees based
on their speech, even speech that's entirely outside employer
property. (For a list of the states that take a contrary view, see
[3]this post chain; I had hoped to blog about more of the statutes
than I noted there, but didn't have a chance to.) There's certainly no
constitutional constraint on firing employees for their off-the-job
speech -- the Bill of Rights generally applies only to government
entities, not private employers -- and there's no federal statutory
constraint on it (except as to a few types of speech, such as union
advocacy).
The matter varies as to other constitutional rights:
1. Free exercise of religion: Federal antidiscrimination statutes
(and similar statutes in many states) generally does bar employers
from firing employees based on the employees' religion, including
the employees' religious practices, and even some on-the-job
practices (though it depends on whether accommodating the practice
would be unduly burdensome to the employer).
2. Right to get pregnant, and right to abortion: A federal
antidiscrimination statute (and similar statutes in many states)
also generally bans discrimination based on pregnancy, which some
courts have interpreted as covering discrimination based on
abortion. See, e.g., Doe v. C.A.R.S. Protection Plus, Inc., 527
F.3d 358 (8th Cir. 2008).
3. Right to marry, or not to marry: Quite a few states' statutes also
bar employers from firing employees based on employees' marital
status.
4. Right to sexual autonomy: Quite a few states' statutes bar
employers from firing employees based on employees' sexual
orientation, which would presumably cover firings based on at
least certain kinds of exercises of the right to sexual autonomy.
Some states also ban discrimination based on lawful off-premises
recreational conduct, which might cover some firings for sexual
activity.
5. Other rights: I know of no laws that bar employers from firing
employees for the exercise of a right to self-incrimination, or a
right to refuse to allow the police to search the employee's
property, and the like.
So courts generally have not barred private employers from firing
people based on the exercise of their constitutional rights (or, to be
precise, their rights to do things free of government restriction).
Congress has, as to a few rights (free exercise of religion, free
speech as to labor matters in many contexts, reproductive rights).
Some but by no means all state legislatures have, as to a few more
rights (right to marry, right to sexual autonomy, and, in fewer
states, freedom of speech). And a few states have done this as to
[4]the right to bear arms, even in some states on company parking
lots. But the only general pattern here is that these rules are almost
always created by legislatures and not by courts (with a few
exceptions for things such as jury service and whistleblowing to
government agencies, and even that not always).
Thanks to [5]How Appealing for the pointer to the Sixth Circuit
decision.
References
1. http://www.ca6.uscourts.gov/opinions.pdf/09a0087p-06.pdf
2. http://volokh.com/archives/archive_2007_02_18-2007_02_24.shtml#1172173543
3. http://volokh.com/posts/chain_1146590806.shtml
4. http://volokh.com/posts/1235062182.shtml
5. http://howappealing.law.com/
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