Tennessee’s so-called “guns-in-trunks” or “guns-in-parking-lots” law that was passed in 2013 by the state’s General Assembly took effect last summer.
While no test cases have yet made their way into the courts, according to legislative attorneys studying the issue, much uncertainty has been voiced over the past year. One of the biggest questions is whether the law in any way hinders an employer from terminating a worker who, in violation of a no-guns-on-the-premises policy, leaves a gun stored in his or her vehicle while it’s parked on the employer’s property.
The law now generally assures that if state-licensed gun-carry permit holders carefully conceal and secure a firearm in their locked vehicle while at work, they will not be subject to criminal prosecution.
However, one nagging issue that’s caused much uncertainty among lawmakers and lawyers is whether employees can be terminated for keeping a gun in their car against the employer’s wishes. Even the governor, who signed last year’s guns-in-lots legislation, has indicated he’s not entirely sure how the law interfaces with Tennessee’s “employment-at-will” workplace doctrine, which generally assumes employers can fire employees for any reason unless the law specifically says otherwise.
The most high-profile or “official” legal analysis that’s been offered on the matter to date was an opinion released back in May by Attorney General Robert Cooper, who concluded that the new statute language “only decriminalizes the carrying and storage of firearms and firearm ammunition.” The law “does not address and thus has no impact on the employment relationship between an employer and an employee,” wrote Cooper.
But while many lawyers, gun-rights activists and business-community advocates have concluded that the new law is clear as mud, Lt. Gov. Ron Ramsey sees things straightforwardly: The attorney general’s office is wrong.
In a press release issued Thursday, Ramsey, the speaker of the Tennessee Senate, reiterated a charge he’s made in the past – that Attorney General Cooper, a Democrat, bears much of the guilt for doubt swirling around the issue because he “has muddied the waters by calling this law into question.”
Noting that the state attorney general’s opinion “is not binding,” and therefore “has no more force of law than any other lawyer’s opinion,” Ramsey’s office provided a link to a memorandum issued earlier last week from two staff lawyers with the Legislature’s Office of Legal Services. Their conclusion, said Ramsey, “mirrors the views of employment attorneys who are advising employers to tread lightly on the right of employees with handgun permits as they travel to and from work.”
“Last session we passed a law which protected private property rights while allowing permit holders to lawfully keep a firearm stored in their car while at work. This opinion makes clear we did just that,” said Ramsey. He concluded, “There need be no further clarification.”
The eight-page memorandum states that the new statute language “provides protections to an employee who acts in compliance with” the law passed last year.
Because Tennessee has for more than two decades “established a clear public policy of expanding rights and protections of handgun carry permit holders,” the memorandum’s authors, attorneys Karen Garrett and Joel Hayes, anticipate that state courts could be expected to rule in a terminated, otherwise law-abiding gun-owner’s favor. That’s because employees “generally may not be discharged for attempting to exercise a statutory or constitutional right, or for any other reason which violates a clear public policy which is evidenced by an unambiguous constitutional, statutory, or regulatory provision,” the memorandum states.
Garrett and Hayes noted the courts have held that “employees discharged as a consequence of an employer’s violation of a clearly expressed public policy” may have a case against the employer for wrongful discharge. The memorandum also noted that “these public policy exceptions to employment-at-will are generally not explicitly stated in the Code.”
The memorandum went on to report that “Tennessee’s employment lawyers are warning clients that firing an employee who adheres to the requirements of (the new statute language) will most likely face a retaliatory action for wrongful termination based on the public policy exemption.”
Indeed, the memorandum cited various articles by Tennessee lawyers with expertise in workplace law who caution employers that last year’s guns-in-lots legislation introduced uncertainties to the state’s employment-at-will doctrine.
However, the articles on the subject linked in the memorandum generally indicate the law is not as cut-and-dried as it is presented by the Office of Legal Services attorneys — or for that matter, Lt. Gov. Ramsey.
“(C)an employers with broad ‘no weapons’ bans continue to enforce those policies against carry-permit holder employees after July 1, 2013?” wrote Kara E. Shea last summer in the Butler Snow “Labor and Employment Group” newsletter. “The bottom line is that, presently, there is no definitive answer to that question. A case certainly could be made that, notwithstanding the emphatic legislative history from the Senate side, if the framers of the law meant to create a cause of action for retaliatory discharge, they would have, or should have, said so in the statute itself. But, ultimately, this is an issue that will be decided in the courts.”
Another article cited in the Office of Legal Services memorandum from lawyers at the firm Waller, Lansden, Dortch & Davis commented, “There is confusion about whether the ‘Guns in Trunks’ law limits an employer’s ability to discipline an employee solely for possessing a firearm and/or ammunition in his or her car.” The Waller article added that disagreement between Ramsey and the sponsors of the legislation in the state House of Representatives, who “asserted that the legislation was not intended to affect employment decisions,” creates confusion in the legislative intent of the statute as well.
On Feb. 28, when the guns-in-lots bill was being debated on the House floor, sponsor Jeremy Faison, R-Cosby, was asked point-blank by Democratic Caucus Chairman Mike Turner, “Under this bill, can an employer terminate a gun permit holder if he brings a gun on this property in his parking lot?”
Faison responded, “The answer is yes.” Faison continued:
“Technically, according to this bill, can they still fire? Absolutely, but I would say this: There will be legislation filed, and we’ll come back and say that these people are acting in accordance with the law. I would also say this: If you fire someone for doing something legal, somebody’s going to be planning unemployment, you know, this isn’t where you just go drop and fire somebody. We’re setting a policy in the state of Tennessee that we recognize the value of what a permit holder has went through. They’re good, honest citizens. They don’t need to be fired for that. But, in this state, we are an ‘at-will’ state.”
Gun-rights activist John Harris, executive director of the Tennessee Firearms Association, has for years been pushing for what he terms “Safe Commute” legislation that would unequivocally protect lawful gun-owners both from criminal prosecution and employer retaliation for storing a firearm in their vehicles while at work. He has been highly critical of the legislation passed last year and is calling on the Legislature to amend and clarify the statute to ensure workers get a plainly affirmed legal right to keep a gun in their car while they’re on the job.
Harris blasted Ramsey’s statements last week, suggesting that the Office of Legal Service’s attorneys “are just grasping at straws to make Ramsey happy.”
“I don’t always agree with the attorney general, but the attorney general mirrored in his opinion almost the exact points we were saying were serious flaws with the bill when it was being debated,” said Harris.
He added that courts have it within their power to void laws deemed too vague for average citizens to understand. Given the disagreements among people with training in the law, the current statute is clearly imprecise and ambiguously worded, Harris said.
“If the sponsors and different groups of attorneys don’t agree on what the law does, how are the courts supposed to determine what it does?” Harris said. “If this is Ramsey’s idea of the way to write a law, then he shouldn’t be re-elected.”