Client Bulletin #387

Tampa & Port St. Lucie, FL
4.16.08

For PDF version of this Client Bulletin, click here

The Florida “Preservation and Protection of the Right to Keep and Bear Arms in Motor Vehicles Act of 2008” was signed into law yesterday, April 15, by Governor Charlie Crist and will take effect July 1. The new law, known as the “Bring Your Gun to Work” law, mandates that employers allow employees to keep firearms in their locked vehicles at work if the employees are licensed to carry concealed weapons. The law applies to any employee, customer or “invitee” with a concealed weapon permit who keeps a legally owned firearm in a locked private vehicle in a parking lot. There are approximately 487,000 concealed weapon permit holders in Florida.

It has been reported that the Florida Retail Federation and Florida Chamber of Commerce will be filing a lawsuit to challenge the law.

Summary of the Law

 Here are some more specifics about the law:

Employers may not inquire, either orally or in writing, about the presence of a firearm inside a private motor vehicle in a parking lot or search the vehicle to determine whether a firearm is inside. Vehicle searches are allowed only by on-duty law enforcement personnel based upon due process and in compliance with the individual’s constitutional rights.

Employers may not require, as a condition of employment, potential employees to agree that they will not keep legal firearms locked inside their vehicles for lawful purposes.

Employers may not terminate or otherwise discriminate against employees for exercising their constitutional right to keep and bear arms or for exercising the right of self-defense, as long as the firearms are never exhibited on company property for any reason other than lawful defensive purposes.

On a more positive note, employers will not be liable in civil actions based on actions taken or not taken because of the employers’ obligations under this law. Presumably, this would provide Florida employers with immunity from civil lawsuits by victims of workplace violence, if the perpetrators had brought their guns to the workplace pursuant to this law.

The law applies to both public and private sector employers, except for certain school properties; state correctional institutions; employers who conduct substantial activities involving national defense, aerospace or domestic security; and employers where the primary business conducted is the manufacture, use, storage or transportation of combustible or explosive materials regulated under state or federal law.

An individual aggrieved under this law may bring a private action to recover court costs, attorneys’ fees, and reasonable “personal cost and losses.” The Florida Attorney General can also bring administrative and judicial enforcement actions against offending employers.

How to comply

Assuming that the law survives the anticipated legal challenges, here are some tips for Florida employers:

Searches of vehicles for weapons must be conducted by the local law enforcement agency. This is the case even if an employer has reason to suspect that the individual will become violent, and even if a witness alleges that the individual has made threats and has a weapon in the vehicle. The law as written is unclear as to whether the prohibition on searches applies only to individuals with concealed weapon permits or to all searches for weapons.

Employers cannot take adverse employment action against employees based on witness statements of threatening behavior and a weapon in the vehicle.

That said, employees, customers, and invitees do not have the right to bring weapons out of the vehicles and onto the premises except for lawful self-defense. Employers still have the right to prohibit firearms anywhere other than in locked vehicles and to conduct searches to that effect (if otherwise permitted). Furthermore, the new law applies only to firearms that are being used for a lawful defensive purpose. Thus, if the individual uses even a lawfully possessed firearm for an unlawful purpose, such as to threaten a co-worker or to “show off,” the employer may take action.

Employers should consider implementing policies that address these issues, and stress the prohibition against bringing firearms into the workplace, brandishing firearms in the parking lot (other than for lawful self-defense) and prohibiting threats or threatening behavior of any type. Employers also need to consider training on workplace safety to provide a “safe workplace” as required under OSHA’s general duty clause. Finally, employers should have a response plan in place in the event that gun violence does occur.

If you would like further information on Florida’s new law, or assistance in complying with the law, please contact any attorney in Constangy’s Florida offices, or the attorney of your choice.

Constangy, Brooks & Smith, LLC has counseled employers, exclusively, on labor and employment law matters since 1946. The firm represents Fortune 500 corporations and small companies across the country. More than 100 lawyers work with clients to provide cost-effective legal services and sound preventive advice to enhance the employer-employee relationship. Offices are located in Georgia, South Carolina, North Carolina, Tennessee, Florida, Alabama, Virginia, Missouri, and Texas. For more information about the firm's labor and employment services, visit www.constangy.com, or call toll free at 866-843-9555.

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