Client Bulletin #390

5.28.08

For PDF version of this Client Bulletin, click here

Despite strong opposition from employers and business interests, Georgia Governor Sonny Perdue signed legislation on May 14, 2008, which significantly broadened the places in which licensed gun owners could lawfully possess firearms. In addition, the law, officially known as the “Business Security and Employee Privacy Act,” limits employers’ ability to search employee vehicles and prohibits employers from enforcing policies that prevent employees with handgun licenses from keeping firearms locked and out of sight in their vehicles while parked on the employers’ property.

However, despite these provisions, the legislation, widely referred to as the “bring your gun to work” law, was significantly watered down and contains a myriad of exceptions that provide many, if not most, employers with the ability to restrict employee possession of firearms on their property.

Overview

Under the new law, licensed Georgia gun owners will be permitted to carry concealed firearms in state parks, historic sites, recreational areas, wildlife management areas, on public transportation, and in restaurants that serve alcohol (but only those that derive 50% or more of their sales from the sale of food). Before this modification, persons in possession of concealed firearms in any of the above locations were guilty of a misdemeanor.

For both private and public employers, the new law provides that it is unlawful to “establish, maintain, or enforce any policy or rule” allowing an employer to search private vehicles of its employees or invited guests while on the employer’s property. In addition, the new law prohibits employers from enforcing policies that prohibit employees from having firearms in their vehicles while on company property. At least, that is the idea.

The Exceptions That Swallow the Rule

For employers, the most significant exception provides as follows:

Nothing in [the new law] shall restrict the rights of private property owners or persons in legal control of property through a lease, a rental agreement, a contract or any other agreement to control access to such property. When a private property owner or person in legal control of property through a lease, a rental agreement, a contract, or any other agreement is also an employer, his or her rights as a private property owner or person in legal control of property shall govern.

In other words, Georgia employers who are also owners of the property or who are in legal control of the property, may properly maintain and enforce policies that prohibit employees from keeping firearms in their vehicles, even if the employees have licenses and even if the firearms are locked out of sight. This is in marked contrast to recent legislation enacted in Florida which provides a “blanket prohibition” of employer policies restricting the possession of firearms on the employer’s property.

The Georgia statute has a number of other exceptions: Penal institutions, facilities associated with electric generation operated by a public utility, United States Department of Defense contractors operating on (or contiguous with) military bases or within one mile of an airport, natural gas and liquid petroleum transmission facilities, and water storage and supply operations are wholly exempt from the provisions of the new law. Moreover, the provisions of the new law do not apply to employees who are restricted from carrying or possessing firearms on their employers’ premises due to a completed or pending disciplinary action, any area used for parking on a temporary basis, and where state of federal law prohibits transport of a firearm on the premises of an employer. Finally, the new law does not apply to employers who provide employees “with a secure parking area which restricts general public access through the use of a gate, security station, security officers, or other similar means”; however, any employer policy allowing searches of employee vehicles must be applicable to all vehicles entering the property and must be “applied on a uniform and frequent basis.”

Under the law, searches are always permitted under the following circumstances: 1) by law enforcement pursuant to a valid search warrant, or a valid warrantless search based on probable cause; 2) vehicle searches, if the vehicle is owned or leased by an employer; 3) situations in which a reasonable person would believe that the search is necessary to prevent an immediate threat to human health, life, or safety; and, 4) based on employee consent, where the search is by licensed private security officers for loss prevention purposes based on probable cause that the employee possesses employer property.

Limitations on Liability and Other Miscellaneous Provisions

The legislation contains specific limitations on an employer’s potential liability for damages from the transportation, storage, possession, or use of a firearm unless the employer commits a criminal act involving the use of a firearm or the employer “knew that the person using such firearm would commit such criminal act on the employer’s premises.” Further, the new law specifically provides that the employer’s “efforts to comply with other applicable federal, state, or local safety laws, regulations, guidelines, or ordinances shall be a complete defense” to any action relating to enforcement of rights created by the law. If an employer prevails in a lawsuit brought under the law, the plaintiff is liable for all legal costs of the employer. Finally, the new law does not provide a private right of action for violation of the limitations on employers’ right to search; instead, any such enforcement action must be brought by the Georgia Attorney General.

Importantly, the new law specifically provides that an at-will employee has no greater interest in employment as a result of its provisions and that employment at will remains in force. The new law does not require an employer to implement additional security measures, and if an employer chooses to do so, the adoption of such measures is not admissible against the employer in a lawsuit to show prior negligence or breach of duty.

Next Steps for Georgia Employers

Although the new Georgia law appears to provide employers who own or who are in legal control of property with a potent exception to its provisions, Georgia employers should take the opportunity to review their current policies and revise as appropriate. All employers obviously desire to provide a safe workplace for employees, and a robust security policy that complies with applicable state and federal law is a critical first step.

If you have specific questions regarding the application of the new law to your employment practices or policies, please contact any member of Constangy’s Litigation Practice Group or the Constangy 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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