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Firing Employee for Lawfully Carrying a Gun When on Company Business:

I just ran across an interesting case on this subject, Winters v. Concentra Health Servs., Inc., No. CV075012082S, 2008 WL 803134 (Conn. Super. Mar. 5). Note that the decision is on a motion to strike, and thus decides only whether the plaintiff's theory is legally valid assuming the facts are as he claims in his complaint. The decision comes long before the plaintiff actually tries to prove the facts:

Having concluded that the plaintiff properly alleged he was an at will employee of Concentra's, the court must next inquire whether he also alleged that his termination from Concentra violated “any explicit statutory or constitutional provision ... or whether he alleged that his dismissal contravened any judicially conceived notion of public policy.” The plaintiff pleads in count one that his termination from Concentra for carrying a lawfully concealed firearm to work in the absence of a clearly established company policy to the contrary violates the fundamental right to possess firearms for self-defense enshrined in article I, § 15, of the constitution of Connecticut. [“Every citizen has a right to bear arms in defense of himself and the state.”]

Ergo, the plaintiff has alleged that his termination violated an explicit constitutional provision, which safeguards an individual's limited right to bear arms in self-defense. Furthermore, while our Supreme Court has not fully elucidated the contours of the right guaranteed by this constitutional provision, it has recognized “that the constitution protects each citizen's right to possess a weapon of reasonably sufficient firepower to be effective for self defense.” Indeed, the court has explained that this limited right “would be illusory ... if it could be abrogated entirely on the basis of a mere rational reason for restricting legislation,” citing Lakewood v. Pillow, 180 Colo. 20, 23, 501 P.2d 744 (1972) (statute prohibiting possession of firearm in vehicle or place of business for self-defense invalid); In re Brickey, 8 Idaho 597, 599, 70 P. 609 (1902) (statute prohibiting carrying of deadly weapon in any form in cities or towns invalid). Accordingly, the plaintiff has explicitly referenced a right that is articulated in a specific provision of the constitution of Connecticut, and which has been judicially recognized by our courts as embodying a public policy that is not easily abrogated.

The defendants respond by arguing both that (1) the plaintiff needs to reference an explicit public policy standing for the proposition that a right to bear arms is sufficient to modify the general standards of at will employment, and that (2) the policy of allowing guns in the workplace for self-defense purposes is trumped by a purportedly countervailing public policy that encourages a safe work environment. Neither argument withstands meaningful scrutiny. The plaintiff does not assert that the right to bear arms modifies a company's ability to prohibit employees from carrying a lawfully concealed firearm in the workplace. Instead, he argues that because Concentra did not have a company policy prohibiting lawful firearms at work, he could not be terminated for availing himself of his constitutional right to possess a weapon of sufficient firepower to be effective for self-defense.

[Footnote: The plaintiff alleges that he consulted his Concentra employee handbook prior to bringing his weapon to work and was unable to locate a policy prohibiting the private possession of lawful firearms at work. Moreover, he pleads that his supervisor was not aware of any such policy, and that the first time he learned of Concentra's zero tolerance policy regarding firearms at work was at the time he was terminated. Assuming the facts alleged by the plaintiff in a light most favorable to sustaining the complaint, the court concludes that he has pleaded the company did not have a policy against lawful firearm possession at work or failed to provide adequate notice to its employees of such a policy.]

This is an important distinction because the public policy animated by article I, § 15, of the constitution of Connecticut is limited in scope and does not prevent a private landowner from prohibiting the otherwise lawful possession of firearms on his land. See Benjamin v. Bailey, 234 Conn. at 465 (article I, § 15, “permits reasonable regulation of the right to bear arms”); General Statute § 29-28(e) (permit to carry pistol does not authorize possession where otherwise prohibited by law or by person owning premises). Thus, while the existence a company policy prohibiting the possession of firearms at work and the plaintiff's prior knowledge of such a policy may later prove dispositive, these factual questions are of no moment in this context because the court must assume the truth of the plaintiff's allegation that Concentra did not have such a policy.

Similarly, the defendants' argument that the public policy allowing qualified citizens to possess a firearm for self-defense purposes is trumped by a purportedly competing public policy that encourages a safe work environment is equally acarpous. Although the defendants are correct that our courts have recognized a public policy “requiring an employer who conducts business in Connecticut to provide a reasonably safe work environment to its employees,” the defendants misperceive any conflict between this policy and the fundamental right to bear arms for self-defense.

As a preliminary matter, it bears emphasis that the defendants offer no evidence to support their implied asseveration that the mere presence of a concealed firearm by a qualified employee makes the workplace less safe. [Footnote: Actually, the plaintiff alleges that he brought his firearm to work with him during night shifts to ensure his personal safety in an otherwise unsafe work environment. Specifically, the plaintiff avers that: Concentra's office was located in a high-crime neighborhood; gang violence had resulted in the death of one person in the street outside Concentra's office; Concentra did not provide building security; and the plaintiff had to walk across a large parking lot to get to his car each night.]

Nevertheless, while an exposition concerning the impact of personal firearms on workplace safety may prove edifying, it is as unnecessary to resolve this motion as it is ultracrepidarian. An employer may prohibit any person from possessing an otherwise lawful firearm on his property, regardless of whether such a policy makes its work environment more or less safe. The court is not, therefore, persuaded that a policy allowing qualified citizens to carry a firearm for self-defense is in tension with a public policy that obligates employers to provide a safe work environment for their employees.

For more on the intersection of state constitutional rights to bear arms and employment law, see these posts of mine from last year. For more on the related subject of the right to self-defense and employment law, see these posts from 2005, as well as the relevant section of this short article of mine on state constitutional rights to self-defense.

As a normative matter, I generally believe that employment at will is the right approach, and that in the absence of a binding contract or some statutorily specified prohibition an employer should be free to terminate its relationship with an employee for any reason. Nor do I think that courts should mandate that employers create explicit policies defining what conduct may lead to termination, or derive constraints on private behavior from the state constitution's constraints on government behavior.

Nonetheless, the tort of wrongful discharge in violation of public policy does exist in many states (though its boundaries vary from state to state, and are often quite unclear). This particular application struck me as worth noting.

And, no, I don't encourage the use of "acarpous," "ultracrepidarian," or even "asseveration."

Bill Poser (mail) (www):
Even if one favors "at will" employment over the policies of, e.g., many European countries, shouldn't their be limits on an employer's ability to fire or punish an employee for things unrelated to the business where the restriction impinges on the employee's ability to conduct himself in a normal manner? For example, suppose that an employee is assaulted by a third party and successfully defends himself in hand-to-hand combat. Although the employee's conduct is lawful self-defense and results in no charges, the employer fires him for violating the employer's "zero-tolerance" no fighting policy. Do we really want to allow employers to do things like this? I don't.
4.3.2008 6:09am
Daniel Chapman (mail):
I don't either, but some people in the workforce might, and if the company can attract enough employees with an asinine policy like that, let them. At will employment works both ways.

I see a bigger problem in letting the courts get their nose into personal employment decisions.
4.3.2008 7:48am
Pennywit (mail):
I have to go with the employers on this one. The issue extends not just to lawfully carrying a firearm, but also to what the employee might do with that firearm. If an employee discharges that firearm -- even in self-defense -- I expect that no employer wants a fight over its responsibility for that employee's actions. Whether those actious are acarpous or not.

--|PW|--
4.3.2008 8:00am
David Schwartz (mail):
For example, suppose that an employee is assaulted by a third party and successfully defends himself in hand-to-hand combat. Although the employee's conduct is lawful self-defense and results in no charges, the employer fires him for violating the employer's "zero-tolerance" no fighting policy. Do we really want to allow employers to do things like this? I don't.
Fine, then you pay for it. But by making it a law, you force everyone else to pay for something they may not want and that, if they did want, they could easily negotiate for in contract.

You aren't doing anyone any favors by giving them a benefit they may or may not want that they could easily negotiate for if they did want it. All you do is force the people who don't want it to pay for it anyway.

This lawsuit is even worse. If my employer can't fire me for a whole host of reasons he has no way to know in advance, my value to him is significantly reduced. My value to him is the value he expects to get from my labor, less any amount he may be forced by law to pay for my labor after he no longer finds it of value. Increasing the latter decreases the former.
4.3.2008 8:27am
libertarian soldier (mail):
But the vocabulary is fabulous.
4.3.2008 8:28am
PersonFromPorlock:
"Ultracrepidarian" is definitely a word for the blog-commenting age!

One way to discourage employers from abusing at-will employment (This isn't directly responsive to the case at hand) would be to make employers pay for all the employee's time that's regulated: for instance, a no-drugs-anytime or no-gay-sex-anytime policy means the employee is on duty 24/7 and has to be paid that way.
4.3.2008 9:12am
Germanicus:
"You aren't doing anyone any favors by giving them a benefit they may or may not want that they could easily negotiate for if they did want it."

Clearly you've applied for a lot of jobs from the position of an unskilled laborer. Most at will employees don't have the bargaining power or the sophistication to contract for anything beyond getting paid to do their work. Unions are one way of getting groups of employees over the threshold of contract negotiation, but I'm guessing some of the people here aren't terribly enthusiastic about unions either. In the absence of unionized bargaining or some sort of protective law (either legislative or common law), the argument that "the employee should have put it into the contract" is willfully naive.
4.3.2008 9:24am
ruralcounsel (mail) (www):
David Schwartz says:

Fine, then you pay for it. But by making it a law, you force everyone else to pay for something they may not want and that, if they did want, they could easily negotiate for in contract.


I guess that only a small percentage of employees could contractually negotiate the terms of their employment. Like boilerplate consumer contracts, most employment agreements are on a "take it or leave it" basis. The point of "at-will" is that there is no individualized contract. So "easily"? I don't believe that.

So if we weren't talking about 2ndA, but 1stA, would you feel any different? The employee spoke out on some political issue that the employer disagreed with ... should the employer be permitted to terminate the employee? Or voted the "wrong" way?

Often the big issue is proving the real cause of the termination ... at least here it seems to be admitted.
4.3.2008 9:34am
NI:
I think Germanicus has it right. Much as my libertarian-wannabe heart wants to give employers a free hand to make whatever policies they like, the reality is that employers will always have an easier time filling a job than laborers do finding another job. If an employer imposes an asinine policy, most workers don't have the luxury of just up and quitting. On average it takes nine months to find a job.

Don't forget we're not that far removed historically from child labor and sweat shops and company towns and overt racial prejudice. I don't trust anybody with too much power.
4.3.2008 9:38am
ruralcounsel (mail) (www):
So, do you suppose the muggers are going to target the night shift employees of this business now, given they know they won't be able to defend themselves?

Wonder if that places any additional liability on Concentra? Don't they have some kind of duty to maintain a safe workplace? Rally the tort litigators!
4.3.2008 9:38am
Justin (mail):
I'm perfectly fine with what I would assume to be my firm's unspoken "no guns" policy (even if the DC handgun ban is overturned), for what it's worth.
4.3.2008 9:38am
justwonderingby:
I think the employers are right on this one. What you want to do (legally) on your own time is your business; on company time, it's their business (literally and figuratively)
4.3.2008 9:39am
ruralcounsel (mail) (www):

All you do is force the people who don't want it to pay for it anyway.

This lawsuit is even worse. If my employer can't fire me for a whole host of reasons he has no way to know in advance, my value to him is significantly reduced. My value to him is the value he expects to get from my labor, less any amount he may be forced by law to pay for my labor after he no longer finds it of value. Increasing the latter decreases the former.


So, just what is the employer paying for here, if he wasn't allowed to terminate someone for legal CCW? He's still getting the labor he contracted for ... this doesn't have anything to do with the quid pro quo of employment. The guy was still doing his job.

Seems to me that the employer and unarmed employees are all "free riders", getting the benefit of protection of the armed employee, or at least the benefit of the mugger's uncertainty of who is armed.

Employers shouldn't have to factor in the cost of post-employment compensation for unfair termination practices ... because all they have to do is halt the unfair practices. Won't cost 'em a thing.


The key here is "...whole host of reasons he has no way to know in advance". So why should the employee bear this burden instead ... vulnerable for being fired for a whole host of reasons he has no way to know in advance. The point of this lawsuit is that CCW should be something that both employer and employee should know about in advance ... after all, how hard is it for an employer to create a policy? Certainly no harder than it is for an employee to "negotiate". Particularly in a late-night high-crime environment, this might have a big influence on whether someone was willing to work that job or not.
4.3.2008 9:57am
Dr. Weevil (mail) (www):
PersonFromPorlock:
At least 'acarpous' makes sense to those readers who've had a year or two of Greek: privative alpha + karpos, "fruit" = "producing no fruit, sterile". I suppose the judge wrote "acarpous" instead of "fruitless" just to show off.

As for 'ultracrepidarian', it could mean "beyond the sandal", from Latin crepida (accent on the E, short I), or "beyond the base of the statue, the sidewalk, the edge, etc.", from Latin crepido (accent on the long I). Neither makes obvious sense here even to a classicist. This page solves the puzzle: 'ultracrepidarian' is the Latin adjective pertaining to the proverbial expression "shoemaker, stick to your last".
4.3.2008 10:05am
Chickenhawk:
EV - So is your normative view that "strong public policy" (which overrides at-will employment) is merely a synonym for "anti-discrimination" or that at-will should trump discrimination law along with 2A rights and others?

Would the normative answer be the same if you held a untenured position at a private institution?
4.3.2008 10:08am
Elliot Reed (mail):
Are those even real words?
4.3.2008 10:10am
Sasha Volokh (mail) (www):
The right to self-defense is a sacred right.

Therefore, like all sacred rights, it should be waivable. Because a right that's non-waivable barely deserves to be called a right at all -- it's more like a duty. You are required to retain your right to self-defense, whether you want to or not! The right to life should imply the right to suicide; the right to liberty should imply the right to contract away your liberty; the right to property should imply the right to alienate your property.

So the right to carry a gun should imply the right to agree not to carry a gun. You could agree to that by making a contract with a specific anti-gun clause; you could agree to that by making a contract incorporating a policy handbook with a prohibition on guns; or you could agree to that by making a contract of the form "you can fire me whenever you want for whatever reason you like," which is the basic rule of at-will employment.

Dave Kopel had a post a while ago about a similar case, where a convenience store employee used a gun to save his own life, and was then fired for having a gun. I think some court held in favor of the employee; this was similarly wrong.

Plus, whether negotiation is easy or even possible at all is irrelevant: As long as you're not required to accept the take-it-or-leave-it contract, you agree to whatever it contains.
4.3.2008 10:45am
PatHMV (mail) (www):
Some people here seem to be under the misapprehension that capitalism guarantees a good outcome 100% of the time. Of course it doesn't. Does any one laborer have much bargaining power for any one job? No. Over time, do laborers collectively have influence over who they choose to work for and at what wages? Yes.

I'm willing to accept things like OSHA regulations (not necessarily the minutae, but in broad strokes), because the harm that can and is done to very large numbers of employees by unsafe working conditions is very obvious and very real. The harm caused by some employers sometimes choosing to fire some employee because he had a gun at work is far less common and far more speculative.

You think an employer should allow workers to carry guns at the workplace? Fine. YOU start a business, undertake all the responsibilities and risks that go with it, and YOU create such a policy. Don't impose it on others, no matter how much of a gun fetish you have.

From a purely pragmatic political standpoint, if you allow in this weakening of at-will employment on an issue you consider important (guns), you're inevitably making it easier for other people to weaken at-will employment on some other issue which you DO think employers should be able to fire people for.

And yes, I feel absolutely the same way if you put it into a First Amendment context instead. If a company wants to hire only Democrats, or only Republicans, that's fine by me.
4.3.2008 10:53am
Emp Att (mail):
But can the employer fire an employee for having a gun at home? If people remember, a few years ago a MI corporation (Weyco, Inc) enacted a policy preventing its employees from smoking, even when they were home. The company then fired four employees for refusing to take a smoking test to determine if they were still smoking at home. Because they were all at-will, they had no legal recourse. Adults have the legal right to smoke, albeit not a constitutional right to smoke.
4.3.2008 10:53am
Kevin P. (mail):
Concentra and any other company should have the right to prohibit the lawful carrying of weapons on their property for self-defense.

And if any of their employees or customers is injured or killed on their premises in a violent crime, the company should be held liable for their prohibition of self-defense and compensate the victims.

All choices should have consequences.
4.3.2008 11:05am
Aultimer:

Sasha Volokh:

"you can fire me whenever you want for whatever reason you like," which is the basic rule of at-will employment


The basic exception to the basic rule is "but you can't fire me for a reason that violates public policy".

Given that the public policy against sexism and racism that arose by common law and statute in the 20th century is a well known and understood piece of the exception, is it reasonable for a guy to think that public policy from a 19th century constitutional amendment would qualify, especially where (perhaps) his last employer had an express policy and the current one doesn't?
4.3.2008 11:12am
pmorem (mail):
Plaintiff alleges there was no written policy. As I understand it, plaintiff further claims he had asked his supervisor about the such policy in advance.

It seems to me that it's rather difficult to negotiate with unwritten rules. It further seems to me that the employment was not the result of good faith negotiations.
4.3.2008 11:18am
Forsooth And:
But can an employer fire someone for voting without prior announcement of a strict "no-voting" policy? "Zero tolerance for voting."

Would it make it more or less legally objectionable if you fired only those employees who voted for a Democrat/Republican--whichever you disfavor?

I am aware of no court or legislature that has recognized a legal right to smoke. The mere ability to smoke tobacco lawfully does not make it a right--just look at the many other substances the smoking of which governments have prohibited: peyote, hemp, coca leaf. They could legally add tobacco to the list, though it would be politically unappealing.

In contrast, there is a legal, constitutional right to vote. There is a legal and, at least in most states--perhaps all depending on incorporation--constitutional right to bear arms for self-defense.

I like at-will employment. But where it involves actual legal rights, I am inclined to say that an employer should be able to fire employees for exercising a legal right only if it announces and informs the employees of such a policy in advance.
4.3.2008 11:20am
Lone Sloane (mail):
AS a resident of an At-Will state (Texas), and married to a career HR person, I agree with Forsooth here.

As a side note -- the employee *would* (in Texas) have a right to unemployment benefits. Absent a policy, absent previous notification, the firing was not "for cause".
4.3.2008 11:38am
Archon (mail):
For those who question the practicality of carrying concealed while on the job; when is the last time you heard of the NRA having a disgruntled employee show up with a gun and shooting up the place?
4.3.2008 11:44am
Sasha Volokh (mail) (www):
Aultimer: Yes, if the current state of Connecticut contract law is that there's this public policy exception to at-will employment, then it's entirely possible that it covers this. And given that, I would probably even say that people accept these jobs assuming that they're subject to the current state of Connecticut contract law.

So my argument should just be taken as a statement of what the law should be. I think there shouldn't be any public policy exception to at-will employment. If there are to be any restrictions, they should be explicitly stated in some statute, for instance an anti-discrimination statute preventing racially motivated firings, or an anti-vote-buying statute preventing binding agreements not to vote, or the like.
4.3.2008 11:45am
JosephSlater (mail):
There is quite a bit of law on what does and does not constitute the tort of wrongful discharge in violation of public policy. While EV is right that the law varies considerably from state to state, it would have been a pretty big stretch from any case I know (and this is my field) for the court to rule for plaintiff here.
4.3.2008 11:46am
U.Va. 3L:
Concentra and any other company should have the right to prohibit the lawful carrying of weapons on their property for self-defense.

And if any of their employees or customers is injured or killed on their premises in a violent crime, the company should be held liable for their prohibition of self-defense and compensate the victims.


No. Sasha Volokh gets this exactly right up above. No one is forcing a person to work at Concentra's apparently dangerous headquarters. No one is forcing a customer to enter a business that doesn't allow guns on the premises. Employees always have the choice to find another employer; customers always have the choice to find another business. Once they sign a contract forbidding guns on the premises, or once they accept a ban on firearms as the price of doing business, they've freely bargained away their right to self-defense. They shouldn't be entitled to compensation for a (perhaps stupid) choice they made of their own free will.
4.3.2008 11:48am
PatHMV (mail) (www):
Forsooth, that makes no sense. You have a legal RIGHT to pick your nose, scratch your ass in public, not bathe, and insult anybody who walks up to you. Must an employer have a written policy that explicitly requires regular bathing and being polite to the people you interact with?

What about the employer's RIGHT to freedom of association? What about the employer's RIGHT to decide who to hire and who not to hire?
4.3.2008 11:48am
NI:

And yes, I feel absolutely the same way if you put it into a First Amendment context instead. If a company wants to hire only Democrats, or only Republicans, that's fine by me.


I disagree with your premise, that because an employer wields economic power over someone he has the right to be as oppressive and heavy-handed with it as he likes. But I'd like to know if there's an outer limit to your belief in employment at will.

Should I be able to fire my secretary for refusing to sleep with me? Or for not arranging for her 16-year-old child (legal in my state) to sleep with me?

Should I be able to require my employees to attend my church, or give money to organizations they find repulsive? Should I be able to require them to live in company towns (the rules for which will be set by me), or accept payment in scrip redeemable at the company store?

Is there an outer limit to how much an employer owns someone just because he signs the checks? And if so, where do you think that limit is?
4.3.2008 11:50am
PatHMV (mail) (www):
For that matter, what if I, as a customer, would prefer to do patronize only those businesses who prohibited their employees from carrying guns? Don't I have a RIGHT to make that choice?
4.3.2008 11:51am
Deoxy (mail):
This is a difficult area, for a couple of reasons:


Concentra and any other company should have the right to prohibit the lawful carrying of weapons on their property for self-defense.

And if any of their employees or customers is injured or killed on their premises in a violent crime, the company should be held liable for their prohibition of self-defense and compensate the victims.

All choices should have consequences.


Ah, but they DON'T, you see. Good luck holding that company liable! It won't happen.

(Example: Employee can't carry gun, or even leave it in their car, so that must travel to work unarmed... if they are attacked en route to work, and can't defend themselves, there's no place in this country where the employer will be held liable.)

So that's the first difficulty; here's the second:


From a purely pragmatic political standpoint, if you allow in this weakening of at-will employment on an issue you consider important (guns), you're inevitably making it easier for other people to weaken at-will employment on some other issue which you DO think employers should be able to fire people for.


But "at-will" has already been ridiculously weakened by all kinds of things that I think employers should be able to do. Racism? Sexism? Religion? What business is it of the government's who I employ, or why? If I want to only hire blacks, whites, Jews, Muslims, atheists, men, women, gays, straights, parents, or amputees, that MY business, not the governments, and yet, there they are, sticking their nose in it. (Actually, if they REALLY enforced those laws equally, I suspect that they would lose the support of most minority and women's groups, as those groups are basically able to benefit from those laws without actually having to follow them.)

So, if that's the model we have (where the government already enforces all kinds of stuff I don't want), why shouldn't I press for them to enforce at least a few things I DO want? To put it another way, we are already PAYING for this, why not get something for our expenditure?
4.3.2008 11:52am
Deoxy (mail):
On the other side of the argument, most of the analogies being drawn are not very good: voting happens off the company premises while not "on the clock". Presumably, one could carry in that circumstance as well. Speech may also be curtailed while "on the clock".

The difficulty is that, in this case, the analogy is that one could not bring one's voicebox (gun) to work , which imposes a burden on one's excerise of the associated right even when no longer "on the clock".
4.3.2008 11:56am
Sasha Volokh (mail) (www):
NI: Those scenarios sound fine by me. The sex parts might be covered by anti-prostitution laws, so that would fall under my view that any constraints on at-will employment should be covered explicitly in some statute. (You mentioned the 16-year-old was legal in your state, so one doesn't have to get into statutory rape; but the analysis would be similar.) But since I believe prostitution should be legal, I would (as a separate matter) oppose those laws, so after they're repealed, you would then be able to fire an at-will employee for those reasons.
4.3.2008 11:56am
PatHMV (mail) (www):
NI, generally, absent specific statutory requirements, yes. I would support specific statutory requirements in several of the instances you describe, but not in others. You may have noted that I supported things like OSHA regulations in my earlier post, which should have made it clear that I do support some limits on the doctrine of employment at will. But not a lot.

In general, I try to view all of these things in the context of transactions between individuals. If my grandfather hires a guy to cut his yard, are there any circumstances where the state should be able to FORCE him to continue to hire the guy after my grandfather decides he doesn't want the guy to work for him again, doesn't want the guy coming on his property, next to his house?

These "rights" you folks keep trying to grant the employEE are "rights" you are taking away from the employER.
4.3.2008 11:57am
whit:
"The right to life should imply the right to suicide; the right to liberty should imply the right to contract away your liberty"

except neither is ACTUALLY true. if i have reasonable cause to believe you are suicidal, or have attempted same, i can take you into protective custody.

and you can only contract away your liberty to a certain extent. you can't sell yourself into slavery.
4.3.2008 12:03pm
PatHMV (mail) (www):
Do those of you talking about imposing liability on the employer also support holding companies who allow their employees to carry guns liable when their employee gets trigger happy and accidentally shoots some innocent person? How about holding them liable if an employeee merely brandishes a weapon at a co-worker? I don't. I think the person to be held liable in any shooting or other act of violence is the person who did the shooting. All else is speculative.
4.3.2008 12:08pm
Crackmonkeyjr (www):
I tend to side with freedom to contract and that would seem to indicate that an employer is allowed to fire an employee for bringing a gun to work with them. If you don't like that your boss won't let you bring your gun to work with you, you're free to find another job.

As it is, an employee can already fire you for having a political bumper sticker on your car or attending a political rally of a candidate that they don't like and I tend to think that freedom of speech and assembly are the most fundamental of the fundamental rights.

With regard to the previous posters comment about an employee firing your for voting, or for a particular candidate, I would presume that that would actually be illegal, but not under employment law. Instead it would be illegal under voting laws, which generally prohibit you from paying someone to cast their vote in a particular way.
4.3.2008 12:09pm
Sasha Volokh (mail) (www):
whit: I agree that that's not actually the rule. I'm just arguing about what should be the rule. I don't think the suicidal should be restrained.
4.3.2008 12:14pm
Tony Tutins (mail):
Was it really unfair of Concentra to fire Winters for carrying a gun to work? Consider the number of workplace shootings, carried out to avenge some grievance, that made the news over the past 10-15 years, to the point that "going postal" entered our language. There were three in one day on Tuesday, in fact, in Boston, North Carolina, and Virginia.

A prudent employee would have been aware of this backdrop, and worked to assure his employer that they had nothing to fear from his carrying a gun. He should have gotten written authorization from upper management, instead of just relying on the absence of a written policy, or the perhaps off-hand response of his immediate supervisor. The company probably had no written policies against bringing anthrax germs or phosgene gas on the premises either, relying on employees' "common sense" to keep such items out of the plant.

The most prudent approach of all would have been to start with a reason to carry a gun, such as the fear of being attacked crossing the parking lot. The company might have provided an alternative solution, such as giving him a well-lit parking space near the door.
4.3.2008 12:16pm
Elliot123 (mail):
How many law firms allow associates to wear a HILLARY FOR PRESIDENT T-shirt to the office everyday?
4.3.2008 12:17pm
NI:
Sasha, here's the problem with your unlimited approach to employment at will: Libertarians fail to understand that power wielded by private hands causes just as much harm (in some cases more) than power wielded by the state. It's nice that the government won't throw me in jail for going to the wrong church (or, in my case, no church at all), but if my children will go hungry or miss out on an education I can no longer afford to give them, then am I really free? We forbid state churches because of the harm that they do; well, company churches cause the same harm, especially in areas that are one-industry towns.

To a certain extent, I think we have to get away from the public/private distinction and instead look at the harm that a particular policy is intended to prevent. We recognize that allowing people to make certain types of choices for themselves is a good thing. We don't let the government lock people up for making different choices. We shouldn't allow employers to starve them for making different choices (at least unless a choice actually impacts on the business).
4.3.2008 12:24pm
whit:
sasha, thanks for the clarification
4.3.2008 12:29pm
ruralcounsel (mail) (www):
In general, I try to view all of these things in the context of transactions between individuals. If my grandfather hires a guy to cut his yard, are there any circumstances where the state should be able to FORCE him to continue to hire the guy after my grandfather decides he doesn't want the guy to work for him again, doesn't want the guy coming on his property, next to his house?


There's a difference, I think (and hope), between an independent contractor and an employee ... the guy your grandfather hires to mow his yard isn't an employee. Unless, of course, your grandfather withholds income tax, social security, pays workmans comp, posts all the necessary OSHA &EEOC posters as required by an employER, and tells the guy he's got the job indefinitely.

But even so, like it or not, the "wild west" days of employer independence and unaccountability via "at will" employment are waning. Especially when too many try to become poster-children for "at will" reform, by acting in an unreasonable manner. Why else do you think the "public policy" exceptions were made statutory? Abuse of the "at will" doctrine will hasten its downfall, and remove whatever benefits it might have for an employer. Might even be enough to revive the concept of labor unions again.
4.3.2008 12:29pm
ruralcounsel (mail) (www):
PatHMV:
Do those of you talking about imposing liability on the employer also support holding companies who allow their employees to carry guns liable when their employee gets trigger happy and accidentally shoots some innocent person? How about holding them liable if an employeee merely brandishes a weapon at a co-worker? I don't. I think the person to be held liable in any shooting or other act of violence is the person who did the shooting.
Only if the employer required the employee to carry the firearm as a part of the job. Respondeat superior. Otherwise, like you said, liability accrues to the weapons holder/firer.
4.3.2008 12:35pm
Crackmonkeyjr (www):
NI: The problem you speak of of a private employer forcing you to choose between starving and going to a particular church is only a problem if you assume that you have a right to be employed by a particular employer. Walmart has no duty to employ anyone. If they wanted to, they could shut down all of their stores tomorrow and tell everyone to go home, except for employees that have entered into contracts which place limitations on the conditions of their termination.

When the government throws you in jail for not going to their church, they are not just refusing to provide you with an opportunity, they are taking your liberty, and they are not allowed to do that except in accordance with the US Constitution (assuming you are talking about the US Government).
4.3.2008 12:35pm
Elliot Reed (mail):
Elliot123: even in California, it would have to be a pretty darn low-key firm to tolerate t-shirts every day.
4.3.2008 12:39pm
DangerMouse:
Therefore, like all sacred rights, it should be waivable. Because a right that's non-waivable barely deserves to be called a right at all -- it's more like a duty. You are required to retain your right to self-defense, whether you want to or not! The right to life should imply the right to suicide; the right to liberty should imply the right to contract away your liberty; the right to property should imply the right to alienate your property.

Sasha, do you see any limits on the ability to wave "sacred" rights? Are you in favor of children selling themselves as prostitutes? Or people selling themselves into slavery? What about gladitorial games with deadly weapons, if consentual? Or perhaps your focus is on other fetishes. Regardless, I think that there are limits on these so-called "freedoms" that infringe on human dignity and that no person should do, consentual or not.

Libertarianism is really a monstrous moral system.
4.3.2008 12:39pm
NI:
By the way, I have an idea for a novel that explores these same themes, albeit not in an employment context. Since I'm never going to have time to actually write it, here it is:

A loathesome disease is sweeping the land that attacks small children. Neither the symptoms nor the disease are treatable; they scream in agony for a month and then die.

A scientist discovers both a cure and a vaccine. He does not write down or patent them; he carries them in his head so that way nobody else knows but him. He's gay. He only treats and vaccinates children whose fathers agree to sleep with him. Then, he decides that since there are only so many hours in the day, he will only treat children whose fathers he finds particularly attracive and who agree to sleep with him. He immediately becomes the most hated man on the planet (including by gays, who consider him a public relations catastrophe).

Under the same principles we've been discussing, should he be compelled to do something different? Or do his property rights entitle him to watch children die horrible deaths so he can gratify his sexual desires with straight dads who are put to a choice of having sex they find repulsive with someone they find repulsive? Sasha, your child just contracted the disease. What's your answer?
4.3.2008 12:40pm
Crackmonkeyjr (www):
ruralcounsel:
The sorts of taxes you withhold from money paid to someone doing a job for you is an effect, not a cause of them being an employee. Whether they are an employee rather than an independent contractor is determined by how much control over them and whether you supply the tools of the job (along with a couple other things).

Not only that, but independent contractors tend to have greater rights that workers because they tend to have contracts to perform particular jobs that can only be broken for cause.

With regard to at-will employment waining, I suggest you check out NY at some point. Here, if you don't have a contract, unless you show that you were fired because of your race, religion, nationality or disability, you're pretty much out of luck.
4.3.2008 12:41pm
PatHMV (mail) (www):
NI: Your argument is why I am willing to accept SOME limitations on employment-at-will, in some circumstances. If EVERY business decided to prohibit their employees from carrying guns, if such near-universal restriction was actually affecting society as a whole, then I might support a different result. I accept the Civil Rights Act limitations on employment-at-will because I believe the harm caused by the massive racial discrimination faced by black people in this country outweighed the harm caused by limiting employers' freedom of association. The individual harms were so numerous and frequent and severe, they became harms to society as a whole. It was, thus, appropriate to legislate to prevent that harm.

But that by no means suggests that government should intervene in these private areas to prevent ALL harm to individuals. There are enough employers out there with enough different policies that individuals remain largely free to find other employment if they don't like the policies of a particular employer.

Ruralcounsel, you mention labor unions. That's a VASTLY preferable option than government intervention. As I support freedom of contract, I support the right of employees to contract with each other to negotiate with the employer as a group. I don't support laws which mandate "closed shops," and there are some difficulties associated with the free rider problem of non-union-employees getting the same benefits as union employees, but those are details to be haggled over and worked out.
4.3.2008 12:47pm
PatHMV (mail) (www):
NI, that's an absurd example which has nothing to do with the resolution of this issue, largely for the reasons noted in my previous post.
4.3.2008 12:49pm
Justin (mail):
"Would it make it more or less legally objectionable if you fired only those employees who voted for a Democrat/Republican--whichever you disfavor"

And yet I know several law firms who do that, either for a particular practice group, or for the entire firm. Now I don't know any large firm that does that, but I do know certain smaller firms that do, even ones that do general (if sometimes politically-charged) litigation.
4.3.2008 12:56pm
ruralcounsel (mail) (www):
Tony Tutins
Consider the number of workplace shootings, carried out to avenge some grievance, that made the news over the past 10-15 years, to the point that "going postal" entered our language.

Consider the number of employees assaulted, robbed, raped or murdered on the job or getting to/from the workplace. You think being a clerk at a 7-11 on the midnight shift is a safe job? How about being a night shift nurse at a metropolitan hospital, walking to or from your car in the wee hours? Liquor store clerk? Cab driver? Pizza delivery person? Gas station attendant at a placec open 24/7. Hotel desk worker? I don't have actual statistics, but I'll bet its a lot more frequent than employee-committed workplace events.

Employers may not like the publicity of allowing armed employees, but should they really be able to force their employees to accept those risks (which they don't disclose when hiring).

Remember when colleges used to try and hide the crime statistics for their campuses, so as not to scare off applicants? I recall they had to be dragged kicking and screaming into disclosing those stats.

So maybe the solution is to require full disclosure, so that both parties are bargaining with all the information about crime, both in the workplace and the surrounding neighborhood. But employers won't like that either, because they might have to offer "combat pay" for some shifts, or secure parking areas.
4.3.2008 12:58pm
Prufrock765 (mail):
I am with Sasha and Pat and Tutins. This is not a close question--the employer wins.
My question to the gun zealots is to ask them to change (hypothetically) the gun into a piece of the most extreme and vile porn.
Would any(...all?) private employers have to provide some sort of explicit policy before firing an employer found in possession of such property? Why?
As far as the "public policy" argument is concerned, I would think the public policy in favor of safe workplaces is much more over-riding. (I know that the response from the gun zealots is that MORE guns makes a workplace safer. This strikes me as counter-intuitive)
4.3.2008 1:01pm
Crackmonkeyjr (www):
ruralcounsel: The issue here isn't banning employers from letting their employees have a gun, its about letting employers decide whether to let their employees can have a gun. I wouldn't be surprised if a lot of the places you described do allow their employees to have a gun, or even provide one. On the other hand, if you apply for one of those dangerous jobs and they don't let you have a gun, you're free to look elsewhere.
4.3.2008 1:03pm
Elliot123 (mail):
"But even so, like it or not, the "wild west" days of employer independence and unaccountability via "at will" employment are waning."

Whenever an employer hires an employee, he is taking a risk that the investment in the employee will not generate the expected return. As the ability to shed employees falls, so does the risk in hiring. The rational employer will be less likely to hire as his risk grows.

In the past I have hired a few inexperienced persons, and taken a chance they will be able to perform. Some worked out; some didn't. I would never have done that if I couldn't get rid of them whenever I chose.
4.3.2008 1:03pm
David Schwartz (mail):
NI: If I am starving, shouldn't I be glad that I can increase my value to an employer by agreeing to go to his church? Won't that give me a competitive advantage over the other people who aren't willing to do so? Would you take that ability away from me by law and force me to starve?

It's funny to me that you can't see how backwards you have this.
4.3.2008 1:06pm
NI:
PatHMV, it's not an absurd example. It's precisely on point. He doesn't owe a cure to anyone, just like (as crackmonkey points out) Wal Mart doesn't owe a job to anyone. He can close up shop and not treat anybody. So if you're a libertarian and you take private property seriously, why shouldn't he be allowed to share his intellectual property with the people he wants on the terms he wants?

Granted, there are reasons why that could not happen in the real world, although none of Ayn Rand's novels would happen in the real world either. But if you think people with power haven't done despicable things to people without power, you haven't been paying attention.
4.3.2008 1:06pm
ruralcounsel (mail) (www):
Crackmonkeyjr:
Nothing I said was about banning ownership, only CCW on the job. You read into it something that wasn't there, and that because of the topic, I had assumed was obvious.

Sure, "free to look elsewhere" is a fine response ... so long as everyone has the same information at the onset. You can't say that something was bargained for or negotiated if it was undisclosed.
4.3.2008 1:08pm
NI:
But David, going to your employer's church does not increase your value to your employer, except in his head. Producing whatever he's in the business of producing provides value to your employer.
4.3.2008 1:09pm
Bruce Hayden (mail) (www):
Do those of you talking about imposing liability on the employer also support holding companies who allow their employees to carry guns liable when their employee gets trigger happy and accidentally shoots some innocent person? How about holding them liable if an employeee merely brandishes a weapon at a co-worker? I don't. I think the person to be held liable in any shooting or other act of violence is the person who did the shooting. All else is speculative.
The first part of this brings up the common misconception that those with CCW permits are dangerous, or likely to be more dangerous than those without. But, that assumption does not stand up to reality. What has been somewhat surprising is the extremely low misuse of guns by CCW permit holders.

So, maybe the better lawsuit would be the opposite, against explicitly gun free businesses (colleges, etc.) when someone invades with a gun, and there is no one there to respond because of the prohibition on guns.
4.3.2008 1:11pm
PersonFromPorlock:
Crackmonkeyjr:

If you don't like that your boss won't let you bring your gun to work with you, you're free to find another job.

Indeed. And Soviet Jews who didn't like the regime's official anti-semitism were free to find another country. This is a defense?
4.3.2008 1:11pm
PatHMV (mail) (www):
NI... perhaps because I've never made a pure libertarian argument. In fact, I've gone to some lengths to explain WHY I'm not making an absolutist argument, by focusing on the harm to society as a whole, not just to isolated individuals. We are not free if the government does nothing to protect us from harm, and we are not free if the government protects us from everything it deems harmful. So instead, we strike a balance. This balance isn't easily reducible to some nice, tidy ideology, but in practice we in the United States have been able to strike a pretty good balance despite that. That's why your example is absurd.
4.3.2008 1:12pm
David Schwartz (mail):
NI: As for your disease hypothetical, it is not relevant because there are only two options. If he will only provide the cure on those terms, then he will only provide the cure on those terms. What's your third alternative? Torture?

Obviously that would be a despicable thing for him to do, but we're no worse off with him doing that than we are without him.

Perhaps you need to add some king of "brain plucking" machine (that can take the information out of his head) to the equation and then ask if we're justified in using it.

By the way, I have addressed similar hypotheticals with extreme libertarians and can generally get them to go along with the use of force by arguing that in truly abnormal emergency situations, it is moral to compel an irrational person to act rationally. This is why you can "borrow" someone's crowbar to pry a child out of a burning car even if they have a "do not touch even to pry a child out of a burning car" sign on their crowbar.
4.3.2008 1:13pm
PatHMV (mail) (www):
PersonFromPorlock... do you truly see no real difference between the ability to find another job in America and the ability for Soviet Jews to find another country?
4.3.2008 1:13pm
David Schwartz (mail):
But David, going to your employer's church does not increase your value to your employer, except in his head. Producing whatever he's in the business of producing provides value to your employer.
Surely any employer who insisted people go to his church to work for him would prefer to hire people who will go to his church. It's axiomatic.
4.3.2008 1:14pm
ruralcounsel (mail) (www):
Crackmonkeyjr:
ruralcounsel:
The sorts of taxes you withhold from money paid to someone doing a job for you is an effect, not a cause of them being an employee. Whether they are an employee rather than an independent contractor is determined by how much control over them and whether you supply the tools of the job (along with a couple other things).


I didn't say that those things determined whether the person was an employee or IC. What I implied was that if that person were an employee, the grandfather would be required by law to do those things. And since he clearly doesn't, they aren't. There's a difference.

And, when a court tries to make that determination (employee or IC), those are the kinds of factors they often look at to decide the "level of control and oversight".

So, either way, I don't understand what point you were trying to make in that post.
4.3.2008 1:16pm
PatHMV (mail) (www):
No, Bruce, it doesn't rely on that misperception. It relies on the employer having the freedom to decide for himself what the risks are. Just because you declare it to be so doesn't make it so. Personally, I agree with you that on the whole, CCW permit holders are statistically safer than just about anybody else. But I don't insist on imposing my view on that subject on the rest of the world.
4.3.2008 1:16pm
Forsooth And:
Pat,

Voting is an express civil right. Under my proposal, your Grampa can warn his hired help that "If you ever vote again, you'll be fired!" That is announcing the policy in advance. And Gramps should be allowed to terminate him if he votes again. But not if Gramps has not previously announced the policy.

Rudeness and filthiness are not express civil rights--they are not particularly guaranteed in law. I would fight an attempt to outlaw rudeness or filthiness because that would be totalitarian. I hate totalitarianism. It is not totalitarian to require that an employee be warned before getting fired for properly exercising their express civil rights. They can still be fired if they continue after the announcement of the policy.

Now, if Gramps is hiring illegal aliens, and they're voting illegally, that's another matter! Perhaps they all go to jail. :-)
4.3.2008 1:17pm
PatHMV (mail) (www):
Also, NI, you don't get to decide what adds value to an employer. The employer gets to decide that. There's no law that I know of which requires employers to behave in a way which YOU deem rational. Indeed, family businesses very often make "irrational" decisions because they place their family's values ahead of the businesses'. Sometimes that pays off for the business in the long run, sometimes it doesn't. But since they own it (private property rights and all, you know), they get to decide whether to act rationally (as you see it) or not.
4.3.2008 1:18pm
David M. Nieporent (www):
So, just what is the employer paying for here, if he wasn't allowed to terminate someone for legal CCW? He's still getting the labor he contracted for ... this doesn't have anything to do with the quid pro quo of employment. The guy was still doing his job.
The problem is, this demonstrates naïveté about our tort system. If the employee misuses the gun and injures someone -- anyone -- the employer faces the risk of being held liable, regardless of whether the employer even knew about it, let alone approved of it. The employer is paying for a slightly more certain legal climate for the business.

The key here is "...whole host of reasons he has no way to know in advance". So why should the employee bear this burden instead ... vulnerable for being fired for a whole host of reasons he has no way to know in advance.
Well, that misses the point of at will employment, which is that the employer can fire the employee for any reason. The employer doesn't have to list all the reasons in advance why he might choose to fire someone; he can just decide to let an employee go.

The problem is, so many on the left only want to look at it from the point of view of the employee, and not from the point of view of the employer. Put yourself in an employer's shoes: you hire someone. At some point, you decide you're unhappy with this person. Why should you have to justify to anybody why you don't want to pay this person anymore? After all, the employee can quit whenever he wants; he doesn't have to justify himself to you, or to anybody else. So why should you be stuck, just because you gave this guy a chance, paying him forever until a bureaucrat or a court decides that you can stop?
4.3.2008 1:19pm
David Schwartz (mail):
The point is, if he can compel employees to go to his church, he will prefer to hire someone willing to go to his church over someone unwilling. If not, not. This may be the only way I can feed my family. I am starving. Why would you take this job away from me?

In the same way, "equal pay for equal work" laws rob people who might be willing to work for less than everyone else of their competitive advantage. Why hire the starving guy who really needs the job if you have to pay him the same amount as the well-fed guy who looks to have a bit more endurance?
4.3.2008 1:20pm
Bruce Hayden (mail) (www):
My last post was hypothetical. In a previous employment, as in-house counsel in a shall-issue employment-at-will state, I had "no guns" signs posted (it was company policy). Looking back, I might have done things differently, ignoring that I knew that a number of employees had guns in their cars and that several at least had CCW permits.

But I probably wouldn't have, despite the statistics about CCW holders. From a company's point of view, it is probably easier to dodge liability when you post the "no guns" signs than if you don't, despite the statistics to the contrary about the dangers of CCW.
4.3.2008 1:22pm
PatHMV (mail) (www):
Forsooth, you're still saying that the government can FORCE my grandfather to continue to employ the man, period. In fact, in most states, the default rule is that a contract without a specified term can be terminated for any reason, announced or otherwise, at will, period. You would require my grandfather to create a detailed policy handbook listing specifically what the employee could and could not be fired for, and if he didn't do that, he couldn't fire the guy without the government forcing him to rehire him.

And free speech is an express civil right. I have a constitutional right to say "Vendor X sucks and is, in my opinion, the worst vendor on the planet." That's guaranteed to me by the First Amendment, even more clearly than the right to carry a gun is guaranteed by the Second Amendment. Does that mean that Vendor X can't fire me for saying that to its customers?
4.3.2008 1:23pm
PatHMV (mail) (www):
I understand, Bruce. As a practical matter, I live in the South, and there are a lot of guns here. As a result, there are a lot of stupid things done with guns here. One company I represented a few years ago fired an employee after he accidentally shot himself in the leg with a gun which (of course) policy prohibited from carrying on the worksite.
4.3.2008 1:26pm
Tony Tutins (mail):
ruralcounsel: I have no doubt that carrying a gun at work is a reasonable response to a number of workplace dangers. But packing at work is not the norm in Connecticut. The failure of Winters to discuss his concern for his personal safety with management, and to make sure that going about armed was OK with them, suggests to me that he was not acting in good faith.

Put it this way: I would not automatically assume I could bring my dog to work with me, just because there was no anti-pet policy in the employee handbook, in a culture and a place where taking pets to work is clearly not the norm.
4.3.2008 1:35pm
David M. Nieporent (www):
I disagree with your premise, that because an employer wields economic power over someone he has the right to be as oppressive and heavy-handed with it as he likes. But I'd like to know if there's an outer limit to your belief in employment at will.
No. And I disagree with your premise that an employment relationship is one of "wielding economic power over someone" rather than a mutual exchange.
Should I be able to... Or for... Should I be able to... Should I be able to...
I think all your questions frame the issue the wrong way. The issue is not what you can require your employee to do; you can't require your employee to do anything. The issue is whether you should have to justify your decision for terminating the employment once you're no longer satisfied with it.

But turn your questions around: should a secretary be able to quit her job because her employer won't sleep with her, or with her 16-yo daughter? Should an employee be able to quit his job because his employer attends the wrong church, or no church? Should an employee be able to quit his job because his employer gives money to organizations the employee finds repulsive? Etc.?

I'll bet you think so, don't you? An employee shouldn't have to justify why he wants to terminate the employment. Even if it's for a "bad" reason -- a racist white employee doesn't want to work for black employers -- you probably don't think that the employee should be forced to continue working there.
Is there an outer limit to how much an employer owns someone just because he signs the checks? And if so, where do you think that limit is?
An employer doesn't "own" anyone. He trades them money for services, rendered under certain working conditions. The "outer limit" is when the employee no longer thinks the money, balanced against the working conditions, are as valuable as his services.
4.3.2008 1:41pm
David M. Nieporent (www):
ruralcounsel: I have no doubt that carrying a gun at work is a reasonable response to a number of workplace dangers. But packing at work is not the norm in Connecticut. The failure of Winters to discuss his concern for his personal safety with management, and to make sure that going about armed was OK with them, suggests to me that he was not acting in good faith.
I don't think that phrase means what you think it means. What on earth do you mean "was not acting in good faith"?
4.3.2008 1:48pm
NI:

By the way, I have addressed similar hypotheticals with extreme libertarians and can generally get them to go along with the use of force by arguing that in truly abnormal emergency situations, it is moral to compel an irrational person to act rationally. This is why you can "borrow" someone's crowbar to pry a child out of a burning car even if they have a "do not touch even to pry a child out of a burning car" sign on their crowbar.


OK, so we all agree (including libertarians) that property rights are not absolute. The question is WHERE the line is to be drawn and not WHETHER it is to be drawn.

PatHMV (and David), I don't get to decide what an employer thinks is rational or what adds to the value of the business, and neither does the government. That's exactly right. And if the employer's decisions impacted only the employer and the employee I might even pack up and go home.

But they don't. If you have a heavily Catholic area where no decent jobs will go to Protestants, Jews or atheists, that's just as harmful to society as if the government banned those other religious views outright. Non-Catholics who aren't able to move elsewhere will turn to crime to support themselves. You'll have an entire underclass of unemployable people with the resulting social problems that result from having an underclass of unemployable people.

I am not a socialist. I would not turn businesses into arms of the state. But we live in the real world, where irrational behavior impacts on other people.
4.3.2008 1:55pm
emsl (mail):
Some judge has been reading old opinions from Judge Selya in the First Circuit. As to the substance, we don't let employees pray on the factory floor either. That seems ok with everyone.
4.3.2008 1:58pm
wrangler5 (mail):
Following up on David M. Nieporent's point above: Isn't it true that (1) if an employee is killed on the job (including, presumably, going to and from a car in the company lot) the employer's liability is (typically) both set and limited by the applicable Workers Comp statute? Whereas, (2) if an employee successfully defends himself on company property, the employer is (at least potentially) subject to civil suit from the attacker or the attacker's kin for vastly more in damages than the Worker's Comp amount?

If that's so, then under current law shouldn't an economically rational employer ALWAYS choose (A) to place employees at risk of injury or even death by limiting their ability to injure others, rather than (B) essentially risk the company by allowing employees the means to defend themselves on company property?

Until laws change to limit an employer's exposure to claims from injured or dead criminals (including the exposure to the cost of defending such claims), or to impose liability on employers for denying employees the ability to defend themselves, employees should expect to be at risk on the job.
4.3.2008 2:05pm
MichaelG (www):
This is probably not going to be one of my more carefully thought out postings. But I'm am interested in seeing responses anyhow.

It is said that inalienable rights can not be transferred nor can they be repudiated. (reference other than dictionary.com?)

I believe that corporations do not have rights only privileges granted by the people via the rule of law. People owning the corporation have property rights, but those are subjugated to the natural rights of people when they interact with corporate body as represented by the employees of the corporation.

Therefore the desires of any corporation that would have the people or the courts believe that a person has voluntarily given up their inalienable rights to life, liberty and the ability to protect them, in exchange for employment at will is a desire that cannot be morally sustained in challenge.

I direct your thinking to the references to Seneca, Locke and especially Price available at: http://en.wikipedia.org/wiki/Inalienable_rights as this is all that I have had time to review this morning before writing this.

My thinking is coming from the direction of the source of the arguments that were used to demonstrate that a person could not choose to enter into a contract of voluntary slavery, meaning one that required the "employee" to voluntarily give up natural rights, could not be enforcable since some rights, unalienable ones, can not be given up.

MichaelG
4.3.2008 2:07pm
Tony Tutins (mail):

"was not acting in good faith"?

I mean I suspect the employee was not dealing honestly and openly with his employer, because he deliberately concealed the fact he was carrying a gun to work from his employer because he feared the consequences to his career if his employer found out. Finally, in this case, because that his alleged reason for carrying a gun -- the fear of walking across the parking lot -- was merely a rationalization after the fact. To me, concealing material facts and lying once you get caught are signs you are not acting in good faith.
4.3.2008 2:16pm
PersonFromPorlock:
PatHMV:

PersonFromPorlock... do you truly see no real difference between the ability to find another job in America and the ability for Soviet Jews to find another country?

My point is that the ability of employees to leave is no more a blanket justification for whatever arbitrary rules an employer wants to impose than the ability of (some) Jews to leave the USSR was a justification for its anti-semitism. Some things are intrinsically bad regardless of whether they're done by the state or an individual. Indeed, if some things weren't bad a priori there'd be no need for laws at all, since it wouldn't matter what happened. It wouldn't even matter that it didn't matter.
4.3.2008 2:17pm
PatHMV (mail) (www):
NI: But that's exactly my point. The situation under discussion here with the gun issue is not like the situation where "no Irish need apply." Convince me that employers with strong "no guns" policies are having a significant detrimental impact on the general right to bear arms, and I'll consider that maybe some regulation is necessary. But a few isolated cases does not make for a trend or any great societal harm which would justify burdening the employer's private property rights and the employer's freedom to contract.
4.3.2008 2:19pm
ruralcounsel (mail) (www):
Tony Tutins:
I would not automatically assume I could bring my dog to work with me, just because there was no anti-pet policy in the employee handbook, in a culture and a place where taking pets to work is clearly not the norm.


Refresh my memory for me. Which Amendment in the Bill of Rights guarantees the right to have your dog with you at all times? So, ... if you have a really small dog and you put it in your pocket, is it concealed carry? My point, of course, is that the actual topic involves a natural right to self-defense which (we hope from Heller) is addressed in the 2nd Amendment, unlike pets.

If we were talking about pets, or the right to wear paisley ties, or to not wash frequently, display pornography, or even to put up "Vote Hillary" stuff in workspaces ... my analysis would be quite different.

Mr. Nieporent has raised the issue of "not acting in good faith" for me. Pray tell, what was not in good faith? He went to work, he did his job, he tried to find out if there was a prohibition policy and found there wasn't, they found out he CCW'd, they fired him. I think someone even said he checked with his supervisor first.

Sounds like he acted in good faith to me. What most of the counter arguments have been is that the employer shouldn't have to show good faith, since employers should be free to do whatever strikes their fancy. Which, I suppose, is the purest libertarian viewpoint. My view is altered by the "bad faith" actions of the employer ... libertarian-style freedom-of-contract only functions well when there is full disclosure of pertinent data, and two reasonable, rational people on either side of the negotiating table.

I believe the employer has the right to restrict weapons on the employers property, I just don't believe they should make their employees guess about it if they want to keep their job.
4.3.2008 2:19pm
whit:
"Libertarianism is really a monstrous moral system"

not that i agree (as mentioned earlier) that you should be able to sell yourself into slavery, etc. but you are missing the point.

libertarianism is not a MORAL system at all. it's a system of GOVERNMENT. government =/= morality.

iow, a libertarian can simultaneously say "i don't think government should regulate private sexual consensual sex" while he could simultaneouly think that various forms thereof: (take your pick) premarital sex, same sex intercourse, sodomy, WHATever, ARE immoral.

similarly, a libertarian could think pot smoking COMPLETELY immoral, yet still not think its any of GOVERNMENT's business whether one does it.

see the distinction?

fwiw, i'm not a "strict" libertarian. that's why i can agree on laws against, for example incest. or selling oneself into slavery, or believe police/etc. should have the authority to take suicidal people into protective custody.

but your whole approach is wrong to say libertarianism is a monstrous MORAL system. it's not a moral or immoral system. it's a government thang
4.3.2008 2:21pm
PatHMV (mail) (www):
I fundamentally disagree with that, PFP. As I said before, if the state prohibits all possibility of harm to individuals, we are not free (because the right to pick one's risks is surely an attribute of freedom), but if the government does not protect us from at least some harm by the strong and malicious, we also are not free. Striking the balance between the two requires recognition of real differences in the real world.

What freedoms does an employer have, under your point of view?

That's a more general question to all of you supporting impinging on the employer's freedom, by the way. For what can an employer legitimately decide to fire somebody? As I follow your logic, the employee should be able to exercise his First Amendment freedom of expression right to dress as he pleases and to speak as he pleases, so the employer wouldn't be able to fire them for not following the dress code or bad-mouthing the company. Would you have the government set up job requirements for every single job in the country, and only employees who fail to be productive in accordance with the designated job requirement can be fired?
4.3.2008 2:25pm
whit:
"That's a more general question to all of you supporting impinging on the employer's freedom, by the way. For what can an employer legitimately decide to fire somebody? As I follow your logic, the employee should be able to exercise his First Amendment freedom of expression right to dress as he pleases and to speak as he pleases, so the employer wouldn't be able to fire them for not following the dress code or bad-mouthing the company. "

i think one can reasonably distinguish between acts that affect the workplace and one's that don't. for example, i can see an employer banning ALL religious symbols - crosses, etc. not even saying that's legal, but i can see it .

i cannot see the same argument for banning CONCEALED religious symbols (worn under your shirt, etc.)

same thing with tattoos.

or guns.
4.3.2008 2:27pm
PatHMV (mail) (www):
ruralcounsel, you seem to have an astonishingly small view of the rights we are guaranteed by the Constitution. Do you not care for the 9th and 10th Amendments? Do you not believe that the First Amendment guarantees you a right to dress as you please? Do you seriously contend that the government has a right to forbid you from wearing paisley ties?
4.3.2008 2:27pm
Forsooth And:
Okay, you have persuaded me that my proposal is probably worse than at-will employment. It is likely best to rely on old-fashioned "shaming" of companies with stupid rules.

For example, the current public outcry over Pizza Hut disciplining its driver for legally using a firearm in self-defense from armed robbery.

Sometimes the market consequences of shaming will be real and effective, other times not, but it preferable to ever-encroaching regulation. I would hope that a related resulting market outcome would be decent employers offering to hire the pizza driver, but it appears the scared-of-litigation mindset is prevailing.

So how about a statute declaring that "No employer shall be found liable for incidents involving employee-owned firearms"? The employer could still freely fire employees with guns (even without notice), but they may be less inclined to do so where there is no fear of liability.
4.3.2008 2:32pm
PatHMV (mail) (www):
I'm with you on both counts, Forsooth.
4.3.2008 2:35pm
Jay D:
It is my opinion that a person (in the colloquial sense, i.e. a human being) should be able to fire any employee for any reason.

A corporation, in America's corporatist system, should be treated like "government" and not be permitted to abridge rights.
4.3.2008 2:41pm
PatHMV (mail) (www):
Ok, Jay, then please address the concerns I've raised elsewhere. Your logic means that no corporate employer could impose a dress code, and no corporate employeer could prohibit their employees from speaking negatively about their products and services. Do you agree that those are consequences of the rule you propose?
4.3.2008 2:44pm
Sasha Volokh (mail) (www):
NI: It's certainly true that certain decisions made by private companies have a greater effect on their employees than certain decisions made by the government; for instance, if I live in a city where Acme Inc. is the biggest employer, but Acme Inc. refuses to give me a job, that might reduce my satisfaction much more than if the government wanted to search me without cause, or prevent me from burning the flag, or whatever.

It's not like libertarianism denies this. It's just that libertarianism (rightly) believes that it's irrelevant. As long as Acme Inc. has the right to not offer me a job, they should be able to offer me a job on whatever terms they like. Therefore, in the libertarian view, calling it economic coercion, or power, or (as you call it) "harm" is just inaccurate; it's just the failure to grant a benefit, one that the company is under no duty to grant.

On your hypothetical about the gay scientist who discovers a cure that he keeps secret and only sells it to attractive men who sleep with him, that's an easy case: Of course he's acting within his rights.

DangerMouse: As for children selling themselves into prostitution -- libertarians generally favor more limited rights for children, and I don't have much of a beef with that, though exactly where and how to draw the line is fuzzy. So I'd be comfortable with a prohibition on prostitution for kids.

As for people selling themselves into slavery, there's a difference of opinion among libertarians on this. Is your future liberty right one that belongs to you today (because you now own your whole body for all time), or does it only come into being at the moment the liberty could be exercised (in which case it could only be waived at the moment, and so you couldn't sell yourself into slavery)? I think the second view is intriguing (it would still allow long-term contracts, just not for specific performance), but I think the better view is that you now own all the rights to your body, so you should be able to sell yourself into slavery.

As for consensual gladiatorial games with deadly weapons, this is easy: Of course they should be allowed.
4.3.2008 3:02pm
ruralcounsel (mail) (www):
PatHMV:
you seem to have an astonishingly small view of the rights we are guaranteed by the Constitution. Do you not care for the 9th and 10th Amendments? Do you not believe that the First Amendment guarantees you a right to dress as you please? Do you seriously contend that the government has a right to forbid you from wearing paisley ties?

While I recognized the difference of government action versus private action, I had chosen to ignore it earlier because having the right of self-defense implied in the 2nd A made it easier to refer to in that way. What you speak of above are rights of the individual, but don't ascend to the level of self-defense. Think of it as a balancing test.

While there are many things the government doesn't have a right to encroach upon, there are also some things that a private entity doesn't have a right to encroach upon. Self-defense is one such thing. (If it is truly bargained away, it isn't an encroachment.)

I don't believe employers have a right to make employees accept risks that the employer knows about but the employees don't (or may only suspect). Those risks weren't part of the employment bargaining process.

Employers should not be allowed to make employees die for their jobs; no uninformed consent or lack of consent to take on risks known to the employer. Preventing the means for self-defense in a high crime environment is tantamount to that. The employee should have been told he couldn't CCW ... then maybe he would have asked for a higher wage to offset the risk. Or if the higher wage wasn't available, maybe he'd have chosen a different job. He shouldn't have to assume that he wouldn't be allowed to protect himself in order to keep the job, unless it was explicitly bargained for.

We don't allow drug companies to hire humans to find out what the lethal dose of a drug is by telling them it's just a placebo. We don't allow supervisors to send their workers into a lethal atmosphere without an air-pack, when the supervisor knows of the danger but the worker may not. Same thing. The employer doesn't have a right to an ignorant cheap employee.
4.3.2008 3:02pm
K Parker (mail):
ruralcounsel, your point about the First Amendment is good, but I think it would be even stronger (i.e. a better parallel) to ask, "Would you be OK with the employer making it a firing offense for an employee to bring Time Magazine/National Review/The Nation on the premises with his other personal effects, in order to read it at break time?" (And Prufrock765, your bias is showing: what I just posited is far more comparable than your "vile porn" case.)

PatHMV
Do those of you talking about imposing liability on the employer also support holding companies who allow their employees to carry guns liable when their employee gets trigger happy and accidentally shoots some innocent person?
On the same basis as any other assault by an employee? Sure. But if you mean extra special considerations because of the magic presence of the gun (as opposed to an assault with some item already in the workplace, or some other implement brought from home, or with the assailant's bare hands)? Then no, of course not.
4.3.2008 3:03pm
tvk:
Wait, this is ridiculous. Say that I check the company handbook and there is no policy against me joining the KKK. Joining the KKK, by the way, is constitutionally protected association. The company fires me because I am a member of the KKK. I can sue for wrongful discharge?
4.3.2008 3:05pm
Nony:
tvk: My guess is that, if you asked your supervisor, chances are good you'd be advised that you would be fired.

I'm thinking the reason that this strikes a chord is that most people here think that (if events transpired the way the plantiff says) the guy got fired for an ex post facto policy violation.
4.3.2008 3:22pm
Elliot123 (mail):
"Refresh my memory for me. Which Amendment in the Bill of Rights guarantees the right to have your dog with you at all times?"

So can associates at law firms wear their HILLARY FOR PRESIDENT shirt to the office everyday? Isn't that covered by the first amendment?
4.3.2008 3:23pm
K Parker (mail):
PatHMV,
Convince me that employers with strong "no guns" policies are having a significant detrimental impact on the general right to bear arms,
Before I embark on what's clearly going to be a lot of research and writing, can we have some agreement ahead of time on what your goalposts are?

And please--dress per se is not speech, though obviously words printed on clothing are. I care nothing for the bogus "expressive" shadows and penumbras some think are cast by the First Amendment. (Which is not to say the Fed Gov is anywhere authorized to legislate issues of dress, I [sadly] hasten to add.)
4.3.2008 3:25pm
Smokey:
The plaintiff alleges that he consulted his Concentra employee handbook prior to bringing his weapon to work and was unable to locate a policy prohibiting the private possession of lawful firearms at work. Moreover, he pleads that his supervisor was not aware of any such policy, and that the first time he learned of Concentra's zero tolerance policy regarding firearms at work was at the time he was terminated.

Amending an employee handbook is trivial. Once the supervisor was aware of the issue, the company could have very easily informed the work force that effective immediately, no firearms are allowed on company premises.

Instead, without warning, the company deliberately sandbagged its employee.
4.3.2008 3:28pm
ruralcounsel (mail) (www):
Elliot123:
Maybe you hadn't read this last post yet ...

http://volokh.com/posts/1207206303.shtml#349039

I think that addresses your concern.

BTW, the associates can wear the shirts, every day. They just have to be CONCEALED CARRY (underneath some other shirt!). :-)
4.3.2008 3:32pm
tvk:
Smokey, yes, I understand the point that this seems ex post sandbagging. My point is that companies do this all the time, most of the time quite justifiably, for employee acts that are stupid in the context of the work environment even while being constitutionally protected. E.g. downloading porn, joining the KKK, etc., etc. They don't have to post that as "company policy" beforehand. if ex ante notice of prohibition of every stupid act was required before discharge, that will require a company policy handbook that was longer than the code of federal regulations, or vitiate at-will employment. And the supervisor did not approve the behavior, he just said there was no company policy against it.
4.3.2008 3:35pm
KenB (mail):
As someone from an employment-at-will state who has defended numerous EEO charges, I think it a bad idea to expand the list of illegal reasons to fire someone. I say that even though I think the policy at issue was probably unreasonable.

Am earlier commenter noted the problem of proving the real reason someone was fired. Anyone disgruntled with his employment situation need only cast a complaint in terms of EEO or another illegal reason to take adverse action. Though the EEO process imposes significant expense on employers, I found it more a generalized grievance process than anything really addressing unlawful discrimination. When the actual grievance is not cognizable under the law, recast it as something that is. When you do that, you have a fact issue that must be endlessly and expensively vetted.

Of course real discrimination exists, and I would not do away with the EEO process, though I do wish there could be a more efficient way to separate out the people who've simply cast their grievance as an EEO matter, because that's the only avenue offering relief. I haven't thought of a way to do that.
4.3.2008 3:35pm
whit:
"Amending an employee handbook is trivial. Once the supervisor was aware of the issue, the company could have very easily informed the work force that effective immediately, no firearms are allowed on company premises.

Instead, without warning, the company deliberately sandbagged its employee."

which imo, regardless of whether the law allows them to fire the guy w/o advising of the (non-existent) policy, the above was clearly the RIGHT thing to do from a "good employer" standpoint. iow, it's fair and thoughtful.

this also shows the advantage of being a union member, like i am

POWER TO THE PEOPLE!!!

heck, they can't even fire people (sometimes) who TOTALLY screw up!
4.3.2008 3:38pm
ruralcounsel (mail) (www):
tvk:

My point is that companies do this all the time, most of the time quite justifiably, for employee acts that are stupid in the context of the work environment even while being constitutionally protected.
...
They don't have to post that as "company policy" beforehand. if ex ante notice of prohibition of every stupid act was required before discharge...


And since when is wanting to be able to defend yourself in a high crime neighborhood a "stupid act"?
4.3.2008 3:41pm
Randy R. (mail):
How about a real situation? Several years ago, a trucker for a major food store chain in the south fired him. the reason? Because occasionally, while completely on his own time, he liked to dress in women's clothes.

He was straight and married. Never dressed like a women while driving a truck or on company time. He filed a lawsuit, but lost.

To me, that's nuts. What you do on your own time is *your* business, not your employer's. Of course, there might be exceptions -- if you are working for a company, and your offtime is directly to hurt your employer in some fashion, I can see you being fired. But otherwise, off time is off time.

However at work time is the company's time, and you should be required to do what the employer asks, and that includes mode of dress and behavior. If you don't like it, then apply for another job.

Or better yet, just bitch and complain about what a jerk your employer is. It's America's favorite past time in any case.
4.3.2008 3:42pm
Randy R. (mail):
KenB: "Of course real discrimination exists, and I would not do away with the EEO process, though I do wish there could be a more efficient way to separate out the people who've simply cast their grievance as an EEO matter, because that's the only avenue offering relief. I haven't thought of a way to do that."

That's the balancing act, and to be sure, no one has found the perfect answer to redress both sides. However, if you are an employer today, and you haven't figured out how to fire an employee and avoid an EEO suit, or at least be able to successfully defend against one, then you ought not to be in business. It's a fairly simple matter to do.
4.3.2008 3:45pm
NI:

But that's exactly my point. The situation under discussion here with the gun issue is not like the situation where "no Irish need apply." Convince me that employers with strong "no guns" policies are having a significant detrimental impact on the general right to bear arms, and I'll consider that maybe some regulation is necessary.


Pat:

Here's what you've missed: My comments originally were not directed at you, yet somehow you're who I ended up talking to. Sasha took the position that there should be NO regulation, which is what generated my hypos (including the one about the scientist that you found absurd, and Sasha has now confirmed that he believes the scientist is within his rights). David and others also took the position there should be no regulation whatsoever. So, it was THEIR outer limits I was testing. They don't have any. Let the heavens fall so long as there is no interference with private property. I think they're insane, but that's me.

It doesn't sound to me like you and I are that far apart, frankly. You believe in some regulation and so do I, so we may just be quibbling over where to set the line.
4.3.2008 3:53pm
ruralcounsel (mail) (www):
tvk and Randy R.:

Oh yes, the "employers do this all the time" defense. That changes everything.

But seriously, our Concentra fact pattern is tough ... he had to have the weapon with him at work in order to be able to carry it with him to his parked vehicle, both to arrive at and to leave work. Left in his vehicle, it did him no good at the point of highest risk. We're in a nebulous overlap of "work" time" and "off work" time, even if we ignore he probably had to carry the thing on him during work hours, unless he had a safe place to store it.

That employers do this all the time argues for giving them less license, not more. That old "with freedom comes responsibility" problem.
4.3.2008 3:56pm
David M. Nieporent (www):
I don't believe employers have a right to make employees accept risks that the employer knows about but the employees don't (or may only suspect). Those risks weren't part of the employment bargaining process.

Employers should not be allowed to make employees die for their jobs; no uninformed consent or lack of consent to take on risks known to the employer. Preventing the means for self-defense in a high crime environment is tantamount to that. The employee should have been told he couldn't CCW ... then maybe he would have asked for a higher wage to offset the risk. Or if the higher wage wasn't available, maybe he'd have chosen a different job. He shouldn't have to assume that he wouldn't be allowed to protect himself in order to keep the job, unless it was explicitly bargained for.

We don't allow drug companies to hire humans to find out what the lethal dose of a drug is by telling them it's just a placebo. We don't allow supervisors to send their workers into a lethal atmosphere without an air-pack, when the supervisor knows of the danger but the worker may not. Same thing. The employer doesn't have a right to an ignorant cheap employee.
But this is all based on a very big misunderstanding on your part. The employer is not preventing the employee from being armed. The employer is simply choosing not to retain the employee.

Your argument doesn't make any sense. There are two possibilities: the employer tells the employee "No guns," or the employer doesn't mention it. If he does tell the employee "No guns," then your disclosure provision is satisfied and the employee, by continuing to work there, is doing so with informed consent.

If he doesn't tell the employee about this policy, then the employee never complies with it and is never in a situation when he can't defend himself.

In neither case is he facing some risk that hasn't been disclosed to him.
4.3.2008 3:58pm
byomtov (mail):
Instead, without warning, the company deliberately sandbagged its employee.

Well, that's his story, anyway.

I understand this discussion is supposed to assume the facts are as he claims, but that's a big "if" in my opinion.
4.3.2008 4:02pm
whit:
"I understand this discussion is supposed to assume the facts are as he claims, but that's a big "if" in my opinion"

well, yes. but otherwise we go off into endless tangents, endless even by internet standards.

just like people stipulate in a court of law, i think in any discussion of this sort, the ATMFPIC standard applies: "assuming the mentioned fact pattern is correct."

what's interesting IS the underlying questions that are raised IF we assume the above. if, as an example, the employer (contrary to what is claimed) told the employer he couldn't carry a gun several times, and THEN fired him, the question isn't nearly as interesting.
4.3.2008 4:07pm
NI:
Oh, and here's what's wrong with the argument that because Acme, Inc. is under no obligation to provide jobs, that therefore they may offer jobs on whatever terms they like: I am under no obligation to open my home to guests. Unless someone shows up with a search warrant, I can exclude the whole world from my living room.

But if I do invite people into my home, it doesn't follow that I can set out booby traps, snacks that contain cyanide, or other hazards and then say that because I am under no obligation to open my home, I may therefore open it on whatever terms I like.

Just because you're not required to do something at all doesn't mean that if you choose to do it, you can do it in a way that causes social harm.
4.3.2008 4:11pm
Brock (mail):
I hope no one has raised this in the second half of the mthread, I didn't have time to read it all ...

But I'm still not clear on the employer's right to deny me my constitutional right to defend myself and my state. I'm just as harmed if I am attacked at work as I am if I am attacked at home or on a public street. What if it's "Bring Your Daughter to Work Day" and my daughter is attacked when one of my co-workers "goes postal"?

I'm supposed to have a constitutional right to defend myself, my state and (presumably) my fellow man. That last bit is a good defense in criminal law, so I'll throw it in there. At any rate, I'm supposed to have that right. But somehow someone else's property right in the dirt I am standing on, or in the machine I'm working at, trumps that right. If that's true, how is my right to self defense a meaningful right?

To my mind, the physical safety of myself and my family, my neighbors and my state (in that order) has to be the highest right. The rights of speech, employment and private property are no good to me if I and everyone I care for are dead.

Also, I saw all that b.s. above about "Go find another job." Well, that's b.s. (as I noted). Take my situation as an example: there are only three law firms of the caliber I work at in my state. If all three of them ban firearms, I either have to move to another state, choose another profession, or forgo exercising my Constitutional rights; that is not a meaningful choice. My exercise of that right does not effect in any way my ability to practice law, and has no rational relation to my employment (any more than my race, my political speech, or my gender does (unless I work in a munitions plant or similarly flammable environment)).

Lastly, I'd be more than happy to revisit the tort system in this country to protect employers if their employees abuse their Constitutional rights. If they can't bar me from carrying a weapon, I agree they shouldn't be responsible for what I do with it.
4.3.2008 4:18pm
whit:
"Also, I saw all that b.s. above about "Go find another job." Well, that's b.s. (as I noted). Take my situation as an example: there are only three law firms of the caliber I work at in my state. If all three of them ban firearms, I either have to move to another state, choose another profession, or forgo exercising my Constitutional rights; that is not a meaningful choice"

you left out one option. choose to carry in violation of policy, and take your chances. not a GREAT choice, but a choice

i did exactly that in grad school. my (private) school banned guns. i disagreed, so carried anyway. i concede they could have expelled me if i was found out. that was a risk i chose to take it.
4.3.2008 4:21pm
Sasha Volokh (mail) (www):
NI: If you invited people into your house, making them sign an appropriate waiver, then yes, I would support your right to have booby traps, cyanide snacks, and other hazards.

The interesting question to me is what happens when there's no explicit waiver of particular rights. If you merely invite someone into your house, there's the presumption that they haven't waived those rights. Under current law, if someone accepts at-will employment with you, it might be a fair assumption that they accepted the idea of at-will employment as defined in state law at the time, that is, subject to whatever public policy exceptions exist.

But suppose the at-will employment contract said, as many of them actually do, "Either party can terminate the relationship whenever they like and for whatever reason they like." And suppose there were no public-policy exception in the caselaw. I'd say that was an explicit waiver of any rights related to the discharge.
4.3.2008 4:25pm
Crackmonkeyjr (www):
NI:

You're comparing apples to oranges here. When you get fired, you are left no worse off than if you had not been hired. When I fall into your tiger trap, I am most certainly worse off than had I never been invited into your home.

A more apt comparison would be if you invite someone into your home, are you allowed to kick them out based on a completely arbitrary, previously unspecified reason. The answer to this is yes. You can kick someone out of your home for bringing a gun with them, even if they have a permit and had not been explicitly told not to bring a gun. Heck, you can kick someone out of your home because you are offended by the color of their shirt.
4.3.2008 4:29pm
ruralcounsel (mail) (www):
Neoporent:
But this is all based on a very big misunderstanding on your part. The employer is not preventing the employee from being armed. The employer is simply choosing not to retain the employee.

Incorrect, and totally disingenuous. The employer is punishing an employee who wanted to protect himself. The employer is now fostoring a higher risk environment for other employees than they may have originally realized, and did not bargain for with full disclosure. So now other employees of other employers without "policies" will go unarmed, at higher risk, for fear of the same thing happening.

Your argument doesn't make any sense. There are two possibilities: the employer tells the employee "No guns," or the employer doesn't mention it. If he does tell the employee "No guns," then your disclosure provision is satisfied and the employee, by continuing to work there, is doing so with informed consent.

It's fine to say "NO GUNS" if you do so at the outset, and the employee understands that is a condition of employment. He's allowed to bargain off some of his ability to defend his life. But after the job is accepted and the hourly wage set? Bull. That isn't what happened here.

If he doesn't tell the employee about this policy, then the employee never complies with it and is never in a situation when he can't defend himself.

The employee never gets a chance to decide to comply or not comply ... he doesn't even know there is something to comply with. And in our case, he was actively led to believe there was NOTHING to comply with. So an employee, under your ideal, can't make an informed decision on whether to work that job, quit that job, work the job and comply, work the job and not comply, work that job and comply but ask for more $ to offset the risk ... you are denying that person the ability to make an informed decision.

In neither case is he facing some risk that hasn't been disclosed to him.

The risk that hasn't been disclosed is the risk of losing his job if he holds the means for effective self-defense. Without that disclosure, he can't make an informed decision.


Why is it so difficult for you guys to understand that, just as the value of an employee for an employer depends upon both percieved risks (wages out) and perceived rewards (productivity in)... the value of the job to an employee may be dependent upon the balance between perceived risks (time and safety) and perceived rewards (wages in)? But the employee may be risking her life if denied the means to defend it, and so may require more reward to compensate for taking that job. I bet you have to pay a high steel worker a lot more to work without a fall harness (were it legal) ... so to not disclose a requirement to NOT wear a fall harness while negotiating the hourly wage would be unconscionable.

What you argue for is just the right of the employer to maintain a bargaining advantage (using uncertainty and failure to disclose) in the wage setting process.
4.3.2008 4:30pm
David M. Nieporent (www):
But I'm still not clear on the employer's right to deny me my constitutional right to defend myself and my state. I'm just as harmed if I am attacked at work as I am if I am attacked at home or on a public street. What if it's "Bring Your Daughter to Work Day" and my daughter is attacked when one of my co-workers "goes postal"?

I'm supposed to have a constitutional right to defend myself, my state and (presumably) my fellow man. That last bit is a good defense in criminal law, so I'll throw it in there. At any rate, I'm supposed to have that right. But somehow someone else's property right in the dirt I am standing on, or in the machine I'm working at, trumps that right. If that's true, how is my right to self defense a meaningful right?
Constitutional rights apply against the government, not against private actors. A company telling you not to bring a gun onto its property is simply not infringing on your constitutional rights.

And as has been pointed out several times in this thread, you obviously have a constitutional right to, e.g., claim that Microsoft sells shoddy, overpriced, buggy software -- but you wouldn't think that Microsoft was required to keep employing you after you said that, would you?
4.3.2008 4:31pm
Elliot123 (mail):
"But if I do invite people into my home, it doesn't follow that I can set out booby traps, snacks that contain cyanide, or other hazards and then say that because I am under no obligation to open my home, I may therefore open it on whatever terms I like."

True, but the guest is obliged to leave when you say so.
4.3.2008 4:33pm
Crackmonkeyjr (www):
For the people who think that this the employer should have given prior notice:

Do you believe that an employer should be allowed to terminate an employee without any cause, just because they no longer want to be employing that person? If so, why does now having a cause diminish the employer's right?
4.3.2008 4:35pm
whit:
"You're comparing apples to oranges here. When you get fired, you are left no worse off than if you had not been hired."

cmon, that's a bit disingenuous. first of all, many people who decide to take a job must quit another job to do so. also, ever consider moving expenses, etc.?

when i took my job with my current agency, moved several thousand miles, and incurred MASSIVE expenses.

so, i understand that at will (personally, i am not at will, but i understand te concept) means you can fire for basically any reason.

but don't try to gild your argument by claiming that firing simply puts you where you were before you hired on. there are often LOTS of sunk costs, as well as missed opportunity costs. employers (some more than others) invest in their employees - screening, training, etc. employees also pay many costs (both real and missed-opportunities) in accepting a position.

that's inarguable. of course, this is the internet, so nothing is inarguable :)
4.3.2008 4:38pm
ruralcounsel (mail) (www):

If so, why does now having a cause diminish the employer's right?


Because it is perfectly OK to change your mind about something, but not OK to deliberately mislead someone. The difference between being human, and fraud/bad faith.
4.3.2008 4:40pm
David M. Nieporent (www):
The risk that hasn't been disclosed is the risk of losing his job if he holds the means for effective self-defense. Without that disclosure, he can't make an informed decision.
First, that isn't what you said; what you said was that he was facing undisclosed risk of danger to himself. You said that "Employers should not be allowed to make employees die for their jobs," and you analogized it to testing harmful chemicals or not giving someone air.

Second, he never had the right to the job in the first place, so the risk of losing his job is always legitimate. One big problem here -- expressed in many posts here (and by many politicians) is the mistaken notion that a job is somehow property, belonging to the employee. A job is a contractual arrangement, a mutual exchange between two people. One doesn't "lose" a job; one simply ceases to engage in the exchange.

It's fine to say "NO GUNS" if you do so at the outset, and the employee understands that is a condition of employment. He's allowed to bargain off some of his ability to defend his life. But after the job is accepted and the hourly wage set? Bull. That isn't what happened here.
Ah, yet another misconception. Assuming no preexisting employment contract, there are no "set" arrangements in a job. A job is not a one-time negotiation, but an ongoing arrangement. Either party is free to modify the terms at any time, to set "conditions" of employment at any time. If either party is dissatisfied with the modifications, he is free to terminate the contractual arrangement.

Neither side can retroactively change the terms, so, e.g., the employer can't say, "Well, you carried a gun last week, so I'm not paying you for that week because you breached our agreement," but that's not what we're talking about here. We're talking about saying, "I no longer wish to do business with you in the future." There is no difference between saying, "I won't hire you because you carry a gun" and "I won't continue to employ you because you carry a gun."
4.3.2008 4:45pm
tvk:
ruralcounsel, the point is that the employer may regard it as a stupid, objectionable, etc. act. My employer can fire me if they don't like the way I dress (also protected expression); and there is no requirement that anyone else find the way I dress objectionable. By this judge's reasoning, my employer needs to put a dress code in the company handbook before it can do that. That is crazy.
4.3.2008 4:49pm
Brock (mail):
And as has been pointed out several times in this thread, you obviously have a constitutional right to, e.g., claim that Microsoft sells shoddy, overpriced, buggy software -- but you wouldn't think that Microsoft was required to keep employing you after you said that, would you?

My right to criticize the quality of Microsoft's products seems far less important to me than the right to physical safety. But I would object to Microsoft firing me based on how I vote next October; that's pretty important and non-relevant to my ability to write good code. I don't agree with those who think all 1stA issues are created equal; political speech and association are far more important than many others.

As for why that is, I don't have to say anything for "the truth" of Microsoft's products to get out. The market is more than up to that task. But if I don't vote, that's a real harm to me. No one can do that for me.
Constitutional rights apply against the government, not against private actors.

My right to "not be made maimed/dead" (the other side of self defense) can't be conditional on your consent. I have that right regardless of what you think or say, even if you're a "private actor." I have that right in your living room and in your office. Anywhere you don't have the right to kill or harm me, I have to the right to self defense. They are perfect corollaries. Gaps between them can't exist, because if I can't defend myself from maiming/death my right to sue you later is pretty meaningless.

And I think it goes without saying that in a world where bad guys have guns, I must have the "right to possess a weapon of reasonably sufficient firepower to be effective for self defense." The SupCt of Conn agrees with that.

As for Sascha and I, I think our differences are less of the "we disagree on policy" kind and more of the "we live on different planets and co-exist with different species" kind. His idea of humanity just doesn't match up with the world or people I know, or the simple truths of cause and effect or the inability of medical science or monetary damages to make certain harms whole.
4.3.2008 4:49pm
NI:

A more apt comparison would be if you invite someone into your home, are you allowed to kick them out based on a completely arbitrary, previously unspecified reason. The answer to this is yes. You can kick someone out of your home for bringing a gun with them, even if they have a permit and had not been explicitly told not to bring a gun. Heck, you can kick someone out of your home because you are offended by the color of their shirt.


Actually there are circumstances under which I cannot legally order someone out of my home -- if I am about to commit a murder, for example, and they are coming to the aid of my intended victim. That doesn't mean they get to spend the night, but they do get to stay until my victim is safe.

We can quibble over hypotheticals and none of these quibbles defeat my underlying point: There are lots of things that one is under no obligation to do, but which if one chooses to do them, one assumes obligations. I'm under no obligation to drive my mother to her doctor's appointment, but if I do I best not run a red light and get her killed. It's like special duties in tort law -- you had no duty up until the time that you voluntarily entered into a relationship with the victim.

OK, if Acme wants to shut its doors and not hire anyone, they are free to do that. Once they open their doors, the law has the right to redress whatever social harm results.
4.3.2008 4:52pm
ruralcounsel (mail) (www):

First, that isn't what you said; what you said was that he was facing undisclosed risk of danger to himself. You said that "Employers should not be allowed to make employees die for their jobs," and you analogized it to testing harmful chemicals or not giving someone air.

I didn't say it had to be the guy filing the suit. It is every employee who now might forego some self-beneficial activity (like self-defense) for fear of losing their job. Don't try to define away the real issues.

The fired guy may not have a right to the job, but he has a right to nondeceptive negotiations when applying. How would you feel if you applied for a job, it had great pay and benefits, you accepted, and then it turned out it was outside the Green Zone in Bhagdad? "Oh, and you can't be armed." And you were never told until you were there.


Assuming no preexisting employment contract, there are no "set" arrangements in a job. A job is not a one-time negotiation, but an ongoing arrangement. Either party is free to modify the terms at any time, to set "conditions" of employment at any time. If either party is dissatisfied with the modifications, he is free to terminate the contractual arrangement.


There would have been no issue if the employer had announced a new policy, and allowed people to decide whether they wanted to continue in those jobs or not. That would have been a "modification". This was a "hidden condition", not even in the fine print in the middle of a 100 page document. This was a "product defect" in the job as offered, not just part of an "ongong relationship".

There is an apparent intentional and deliberate willful ignorance in what you wrote of what constitutes good faith bargaining AND treatment versus fraud, deceit, and duplicitousness. I hope you disclose these posts to anyone who might ever apply to work for you, so they can buy a Kevlar suit. With a trauma plate in the back.
4.3.2008 5:05pm
David M. Nieporent (www):
My right to "not be made maimed/dead" (the other side of self defense) can't be conditional on your consent. I have that right regardless of what you think or say, even if you're a "private actor." I have that right in your living room and in your office. Anywhere you don't have the right to kill or harm me, I have to the right to self defense. They are perfect corollaries. Gaps between them can't exist, because if I can't defend myself from maiming/death my right to sue you later is pretty meaningless.

And I think it goes without saying that in a world where bad guys have guns, I must have the "right to possess a weapon of reasonably sufficient firepower to be effective for self defense." The SupCt of Conn agrees with that.
Assuming for the sake of argument that everything you say is true, it still misses the point. The debate is not over the right to carry guns. The debate is over the right to work for a particular employer.

Do you honestly think that if you knock on my front door while carrying a gun, I must let you in because you have a right to self-defense? Of course not. You may have such a right, but you don't have any right to be in my home. Similarly, you may have a right to self-defense, but you don't have a right to work for a particular employer.
4.3.2008 5:08pm
Sasha Volokh (mail) (www):
Brock: You said:

As for [Sasha] and I, I think our differences are less of the "we disagree on policy" kind and more of the "we live on different planets and co-exist with different species" kind. His idea of humanity just doesn't match up with the world or people I know, or the simple truths of cause and effect or the inability of medical science or monetary damages to make certain harms whole.

Different planets, I can accept. But "cause and effect" and "the inability of medical science or monetary damages to make certain harms whole"??? I don't even get where anything I said relates to that.
4.3.2008 5:08pm
Arkady:

[B]ut I think the better view is that you now own all the rights to your body, so you should be able to sell yourself into slavery.


If anyone is interested in seeing an opposing argument from a libertarian, see R. Long, "Slavery Contracts and Inalienable Rights: A Fromulation", Formulations, Winter 1994-1995.
4.3.2008 5:43pm
pete (mail) (www):
Whether or not they have the legal right to fire him (I think they do, but that they should not have because it is a stupid policy) it is not too much trouble to put something like this in the employee handbook. I work for a municiple government in Texas and on my first day at work I had to sign many forms including a form saying I would not bring a concealed weapon to work. I think I should be allowed to, but my employer thinks otherwise and I am willing to accept that.

Of course I am not an at will employee, but it is not too hard for employers to go to the very minor trouble of spelling this out for employees ahead of time. I think 39 states now allow for concealed carry so any employer in these states should put down in writing their position ahead of time out of respect for the employee just as they should have a dress code, tardiness policy, etc. written down.
4.3.2008 5:59pm
David M. Nieporent (www):
The fired guy may not have a right to the job, but he has a right to nondeceptive negotiations when applying.
There were no "deceptive negotiations when applying." The employer said, "In exchange for you providing services to me, I will pay you at a rate of $X." The employee said, "Okay." Understood but likely not stated was, "And either of us can terminate this arrangement at any time."
How would you feel if you applied for a job, it had great pay and benefits, you accepted, and then it turned out it was outside the Green Zone in Bhagdad?
Well, pretty foolish for not realizing it sooner, and disappointed that I would have to find a new job.
"Oh, and you can't be armed." And you were never told until you were there.
As I said, disappointed that I would have to find a new job, since those conditions would likely not be acceptable to me.

There would have been no issue if the employer had announced a new policy, and allowed people to decide whether they wanted to continue in those jobs or not. That would have been a "modification". This was a "hidden condition", not even in the fine print in the middle of a 100 page document. This was a "product defect" in the job as offered, not just part of an "ongong relationship".
Again, you miss the point: why is it up to the employees to decide whether they want to continue in the job, rather than up to the employer to decide whether he wants them to continue?

If the employer decides he no longer wants to employ people who own guns, he has no legal, moral, or ethical obligation to announce this policy and give them the opportunity to get rid of their guns so they can continue in the job. He is not "deceiving" anybody, since he never promised anything except that he would pay them for the work they did up to the point at which they were let go.

But by your logic, at will employment is inherently "deceptive."
4.3.2008 6:08pm
Brock (mail):
Sasha Volokh said:
But "cause and effect" and "the inability of medical science or monetary damages to make certain harms whole"??? I don't even get where anything I said relates to that.

Sorry about the "Cause and effect." That bit of hyperbole arose from our differing models of human behavior. I see a cause and imagine a different effect than you do.

The medical science comment arises from my belief, stated above, that rights regarding the safety of the person have to take precedence over economic rights. If you steal $10 I am perfectly made whole by getting that $10 back (assuming no further proximate harm caused by the theft). But in matters of self defense, you can't make me whole once I lose a leg or my life. You can't fix that. So when push comes to shove on whose rights are more important, my rights to physical safety have to trump your rights to hire and fire. I get the impression that you don't agree with that.

David M. Nieporent said:
The debate is not over the right to carry guns. The debate is over the right to work for a particular employer.

What if all employers in the state you live in ban the possession of firearms. Further, that ban extends to the parking lots they own, so you can't have the firearm in your car either. Do you still have a meaningful right to self defense? You can no longer choose to exercise your right by taking a job down the road.

It's my opinion that if all employers working together (whether by plan or happenstance) create a situation that deny you your rights, than no employer can engage in that activity without a good reason (such as the flammable workplace). No free riders. An employer may not exercise personal prejudices which, in aggregate, harm society as a whole. This is the same reasoning behind anti-discrimination laws.

Further, it is my opinion that I have a right to self-defense even when I am in the workplace. I further have a right to defend my co-workers from harm. Although this right may be limited in some contexts, I think employers need a very good reason to trump this right. I can engage in free speech at home using my own computer, but self defense has to be practiced 24/7 (even at work) or it's useless. I'm just as dead if I die at work.
4.3.2008 6:13pm
DeezRightWingNutz:
You know what I find amazing about this debate, and what I admire about libertarians?

It seems to me that most people who are arguing that the employer shouldn't have the right to do what it did also personally disagree with what the employer did.

But most people who think the employer should have the right to fire this employee ALSO think what the employer did was stupid, or least they haven't passed judgement on it.

It shows me that libertarians, probably more than any other group, actually take legal/policy positions that lead to results they acknowledge they don't argee with.

I think that's admirable in case it isn't clear. I'm not accusing those arguing against the employer here of arguing in bad faith. I do, however, recognize that most of the time, a persons legal opinion jibes nicely with their desired policy outcome.
4.3.2008 6:14pm
PatHMV (mail) (www):
Brock, I agree that certain First Amendment free speech and assosciational rights are more important than others (though I may not agree that any deserve LESS protection than others). The problem is that YOU are the one who wishes to infringe on the associational rights of an individual... the employer.

Many of you are obscuring the issue by assuming a corporate employer. I agree that ultimately a corporate person has fewer rights than a human person, though would probably disagree with you over which rights they should and shouldn't have. But let's take the corporate employer out of the picture. Let's imagine a sole proprietorship, and unincorporated business, maybe one with just 5 or 6 employees. Heck, let's go ahead and assume it's the boss/owner and one employee, like the old time drug store my grandfather used to run. Does your analysis change at that point?

In other words, does your analysis depend solely on a corporation being the employer, or do you believe that the government can force an individual, not relying on any grant of privilege or any license from the government, to continue to associate with an employee whom that individual wants to fire?

Also, can I request further clarification of the debating camps to state whether this is only a matter of NOTICE to the employees, or whether it's a matter of whether the employer can impose the condition at all? ruralcounsel, I've particular had a hard time figuring out whether you would accept the firing if the employer had simply given prior warning that possession of a gun was prohibited.
4.3.2008 6:17pm
Brock (mail):
PatHMV said:
Brock, I agree that certain First Amendment free speech and assosciational rights are more important than others (though I may not agree that any deserve LESS protection than others). The problem is that YOU are the one who wishes to infringe on the associational rights of an individual... the employer.

Yeah, I know. This is a Battle Royale of employer's 1stA vs. employee's 2ndA. Who wins? They're both Constitutional rights, but you have to choose which is more important to you (from a society-level point of view). I say employee's 2ndA.

Heck, let's go ahead and assume it's the boss/owner and one employee, like the old time drug store my grandfather used to run. Does your analysis change at that point?

No. My right to self-defense extends to while I'm working at your Grampa's drug store. I get to protect myself (and your Grandpa) from armed assailants there too.

do you believe that the government can force an individual, not relying on any grant of privilege or any license from the government, to continue to associate with an employee whom that individual wants to fire?

Turned slightly around, and for the reasons outlined above, I do not believe any employer can fire you for exercising your right to self defense any more than he can fire you for being black or gay.

The most important thing here for me is that defense is a 24/7 thing. Just like the military has to protect the country from foreign threats 365 days a year (360 won't do), I believe you need to practice self defense every minute or its Constitutionally meaningless. Speech I can practice on my own time because it's timing insensitive. Self defense is a different animal, and therefore must be subject to different rules.
4.3.2008 6:37pm
Sasha Volokh (mail) (www):
Brock: You're right that I don't think "that rights regarding the safety of the person have to take precedence over economic rights." Moreover, one's ability to be made whole is irrelevant to me: If you agree not to defend yourself on the job, you shouldn't defend yourself on the job. You can't be made whole for any resulting injuries, but the only important thing is that you agreed to that regime.
4.3.2008 6:46pm
PatHMV (mail) (www):
Why does my grandfather have to employ you? You believe that self-defense requires carrying a gun 24/7. My grandfather, let's say, doesn't. Why does he have to hire you in the first place? Suppose you are a racist. Does he have to hire you? You're just exercising your free speech. Are you saying it's ok to infringe freedoms sometime, so long as that freedom is not of the sort that must be exercised 24/7?

Again, why do you have a right to employment by my grandfather in the first place? Why does YOUR subjective belief that a gun is required for self-defense 24/7 outweigh his objection to having guns in the workplace?

You needn't balance one right against the other. My grandfather has no obligation to employ you, and therefore you have lost no right when he chooses not to employ you.

How about another context. Suppose a nice little old lady wants to take in a border. Can she condition letting you move in based on whether you will bring a gun into her house or not?
4.3.2008 7:05pm
Brock (mail):
Whereas I don't agree that an employer can even ask you to do that without a darn good reason. I don't have high standards for employers seeking to demonstrate a rational basis for their "No Guns" policy, but seeing as how I have a Constitutional right to self defense I don't see how you can take that away from me on your whim. That's no right at all.

Underlying that concern of course is the very real fact that, whatever you might wish the world to be like, employers and employees do not enjoy equal bargaining power, and "abuse of power" takes many forms.
4.3.2008 7:17pm
Per Son:
I am cutting to the chase!

Absent a contract, an employer can fire you for any reason as long as it does not violate some piece of legislation.
4.3.2008 7:21pm
Stu (mail):

My question to the gun zealots is to ask them to change (hypothetically) the gun into a piece of the most extreme and vile porn.
Would any(...all?) private employers have to provide some sort of explicit policy before firing an employer found in possession of such property? Why?

My extremely vile pornographic gun would not be seen by anyone unless and until I needed it to save my life. Ever hear the expression "better to be judged by 12 than carried by 6"? All the more so, that it is better to be unemployed than carried by 6. And most anyone lawfully carrying a concealed weapon would never let anyone know they were doing so. You analogy fails on that account.

A better analogy would be making an employer let employees possess concealed extreme and vile porn (which they probably have the right to possess already, so long as it's concealed).
4.3.2008 7:23pm
Brock (mail):
PatHMV: There are longstanding laws which treat home-owners taking a border differently than a unit-owner renting units where no co-habitation is involved. Maybe your grandpa (as a sole proprietor) would get a similar benefit.

But regardless, your grandpa doesn't have to employ me. But he should have at least a rational basis for denying me my right to self defense.

Why does YOUR subjective belief

It's not just my belief. Many State Constitutions spell out an explicit right to bear arms as it was understood that actually bearing them (on your person, not in a safe with a trigger lock back at your house) was necessary for meaningful self defense. I guess back when those Constitutions were written, and most people were self employed farmers or artisans or lawyers (there were very few "big employers" back then), so they didn't see the need to spell out that employers could ban them.
4.3.2008 7:26pm
Per Son:
Show me one State Constitution that has a provision that carves a self defense hole in the at-will employment doctrine.
4.3.2008 7:31pm
Tony Tutins (mail):
the actual topic involves a natural right to self-defense

Prudent employees should make sure their employer supports this policy rationale before carrying concealed -- even in the absence of a specific policy -- unless he knows other workers are doing it.
4.3.2008 7:39pm
Sam Wilson (mail):
I am confused that you commenters are ignoring that this employee possessed a CCW license.He has been investigated by law enforcement and no reason to bar him from carrying a weapon could be found in his past. His concerns for personal safety are very reasonable. He was not a threat to anybody except an assailant. The gun free workplace policy does not prevent an individual from "going postal", but it does prevent self defense, and that ought to be a liability that the employer has to bear. It seems to me that the wise employer should prefer to have employees with CCW Licenses. They are not felons, mental cases or liars.
4.3.2008 9:48pm
DeezRightWingNutz:
Sam, I don't think anyone here was defending the company's policy as wise (although I'm sure some would, and I haven't reviewed every comment carefully). They're saying that what the employer did was legal.
4.3.2008 10:00pm
ruralcounsel (mail):
Per Son:

Absent a contract, an employer can fire you for any reason as long as it does not violate some piece of legislation.

Show me one State Constitution that has a provision that carves a self defense hole in the at-will employment doctrine.


I don't think any of us arguing against the employer think that the current at-will employment doctrine will save the employee ... we're just wishing for a better, more just world where it might. Fairness has chipped away at it some, and we're just hoping to see another piece come off now. This is called "hoping to see the legal system advance".

And yes, I think that at-will employment is essentially and inherently deceptive. Very few people who are at-will employees actually understand what that is and what it means. When they lose their jobs because of an economic downturn, they have no issues. When they lose their job because the boss took sides in a disagreement with another employee, they were treated arbitrarily and unfairly and had the gall to complain, or because the boss was an just an ass ... they are stunned that an employer doesn't have to show good cause.

It's a throwback to feudal days, when the nobles could dismiss you at will and send you on your way. Which is why "getting fired" has to do with getting your house burned down to make you leave.
4.3.2008 10:17pm
Thoughtful (mail):
Is no one troubled by the fact pattern?

Like Sasha, I'm an extreme libertarian. I believe in the right to bear arms but also believe in employment-at-will contracts and have no problem with the legality (albeit perhaps not the wisdom) of policies that prohibit guns in the workplace. So I think the firing is obviously legally allowable.

Having said that, it's not cheap to fire someone. It's not like this guy brought porno into the workplace. He brought a gun he was legally allowed to carry (I assume this guy had a CCW license in a CCW state), having been informed by his supervisor it was all right and checking the established work rules, finding nothing to the contrary. The underlying assumption is that he's a good and valued worker.

So why fire him? Why not simply inform him that from this point on he is not to bring his gun into the workplace, and he's free to leave if this is a problem, or prepare to be fired if he continues to bring his gun?

Why the ABRUPT termination? People get counseling and second chances for much worse?
4.3.2008 10:21pm
David Schwartz (mail):
Brock:
It's my opinion that if all employers working together (whether by plan or happenstance) create a situation that deny you your rights, than no employer can engage in that activity without a good reason (such as the flammable workplace). No free riders. An employer may not exercise personal prejudices which, in aggregate, harm society as a whole. This is the same reasoning behind anti-discrimination laws.
Wow, just wow.

If nobody sold peanut-free foods, people with severe allergies to peanuts would die. Therefore, nobody can sell peanuts without a "good reason"? Or nobody can refuse to sell peanut-free foods, whether or not they sell foods?

Businesses make decisions every day that would cause huge problems if every business made that same decision. "No, let's not open any stores in New Jersey". Boy, what a mess if everyone did that!

It sounds like you are back to arguing that at will employment is inherently wrong.

And should employees get the same treatment? If everyone quit their job, we'd have mass chaos, so you cannot quit your job without "good reason"?!

I hope I am completely misunderstanding your argument.
4.4.2008 12:37am
neurodoc:
I don't know why I started reading this Second Amendment case, since that is not a subject that usually gets my attention. And I did lose interest and stop short of the end. (How did it turn out, did the discharged employee get to pursue his case, or did the court get his legs out from under him?) But I'm glad that I read as far as I did, and then that I skipped to the end, since otherwise I never would have encountered "acarpous" and "ultracrepidarian," and maybe not "asseveration." (Dr. Weevil, nothing to say about the etymology of "asseveration"? I imagine it and "perseveration," a term neurologists have occasion to use, share the same root, but I'm not clear about that from what Google brings up.)

"Acarpous" would seem to be a useful word, so why is it so novel to me? "Sterile," "barren," and other more familiar words do the trick just fine? But William Buckley never contented himself with the most familiar choice.

"Ultracrepidarian" comes across as an "invented" word, though one with an apparently legitimate etymology (Latin pedigree). Must go back to read what William Hazlitt, credited with the first known use of the word, wrote in 1819, a letter described as “one of the finest works of invective in the language.” I've certainly tried my hand at invective, but don't think any effort of mine ever likely to be considered "one of the finest works of invective in the language." (Almost 200 hundred years later, is there anything left to be said/written by way of invective that someone hasn't already said/written better? Or are there always new possibilities waiting to be discovered?)

About Winters v. Concentra Health Servs., Inc., I have nothing to say. And were I to try, I fear I might be called an ultracrepidarian.
4.4.2008 2:25am
neurodoc:
I do think it must be better to call someone an ultracrepidarian than to say they don't know jack$hit about what they presume to speak. (Is one supposed to use a new word three times in a sentence in order to assure retention of it? If so, then I must find one more opportunity to employ "ultracrepidarian." Will save "acarpous" and "asseveration" for later.)
4.4.2008 2:31am
Prufrock765 (mail):
Stu:
My analogy only fails if the facts involved the employee being charged criminally ("judged by 12"). The analogy is strong.
You gun zealots are resting your arguments on the constitutional right to bear arms--a right that is accorded no more privilege than is the right to possess porn.
If you wish to say that there should be a public policy carve-out to the at-will doctrine in favor of guns, you must also provide the same dispensation to the possessor of porn in the workplace. If you are willing to do this (and you may well be), then you are being consistent--if not, not.
My point is, of course, that an employer should be able to fire either worker (or any worker who engages in behavior that would be otherwise constitutionally protected--like shouting Bible verses in the break room) without risk of being sued
4.4.2008 9:55am
David M. Nieporent (www):
I don't think any of us arguing against the employer think that the current at-will employment doctrine will save the employee ... we're just wishing for a better, more just world where it might. Fairness has chipped away at it some, and we're just hoping to see another piece come off now. This is called "hoping to see the legal system advance".
Again, what about fairness to the employer? Why is it "just" to treat the employer as some sort of money tree who exists for the purpose of providing a job to the employee, rather than as an equal party in a mutual exchange?
And yes, I think that at-will employment is essentially and inherently deceptive. Very few people who are at-will employees actually understand what that is and what it means. When they lose their jobs because of an economic downturn, they have no issues. When they lose their job because the boss took sides in a disagreement with another employee, they were treated arbitrarily and unfairly and had the gall to complain, or because the boss was an just an ass ... they are stunned that an employer doesn't have to show good cause.
Willful ignorance is not the same as being deceived.

Moreover, I think what you're saying is only true, to the extent it is, because some people don't put themselves in the shoes of an employer. I think any business owner would be equally stunned if he or she was told that he couldn't fire someone who worked for him without the approval of the courts. I think that if the owner of a restaurant found out that two members of his staff were having a disagreement, and you told him that he couldn't fire one of them because that would be "taking sides," he'd be stunned.
It's a throwback to feudal days, when the nobles could dismiss you at will and send you on your way. Which is why "getting fired" has to do with getting your house burned down to make you leave.
Um, no it isn't. That's folk etymology. (And it doesn't make any sense. Why would a feudal lord burn down a building to get rid of someone? Why not just forcibly evict him?)
4.4.2008 11:05am
Crackmonkeyjr (www):
Not only is burning people's houses as etymology for the term "fired" a myth, but so is the idea that at-will employment goes back to feudalism. Historically, there was an assumption that all terms of employment were 1-year unless otherwise specified. The idea of at-will employment developed in the US in the late 19th century.
4.4.2008 11:28am
ruralcounsel (mail) (www):
Willful ignorance is not the same as being deceived.

Moreover, I think what you're saying is only true, to the extent it is, because some people don't put themselves in the shoes of an employer.


The employees aren't "willfully ignorant". Ignorant, yes. Willfully, no. Most folks don't even understand the distinction, because they have an inate sense of fair play. I'll bet most people would have to look up whether their state is at-will or not, once they are made aware of the different legal status. It has nothing to do with empathizing with an employer (that's just absurd). It has to do with rationality and fairness ... why would you ever expect someone to fire you without good cause? There are plenty of good causes, why would anyone need "no good reason" be one of them.

Sure it's convenient for the employer ...I never said it had no utility. It allows them to hire someone for a lower wage (because the worker assumes some kind of reasonableness standard and so is willing to work for less thinking there is some kind of job security) than they might otherwise have to pay. If the employer said at the outset that they had the right to fire for any or no cause (essentially the right to jerk you around) they'd have to offer a higher wage. "A will" on top of the concept of a "trial period" of employment, is overkill.

I guess pretending something is "folklore" makes you feel better. I did a quick search, and came up with some credible evidence otherwise.

Clevedon, Somerset, Civic Society Newsletter for Summer 1996:
"We discovered recently that the word 'fired', meaning discharged from a job originated on Mendip. It comes from Item 6 of the Laws of Mendip Miners.
"If any man... do pick or steale any lead or ore to the value of xiiid (=13 pence), the Lord or his Officer may arrest all his lead and Oare House or hearthes with his Grooves and Workes and keep them in forfeit... and shall take the person that hath soe affeended and bring him where his house or worke and all his tooles and instruments are... and put him into his house or worke and set fire in all together about him and banish him..." Fired indeed!

BTW, Oxford 6th Ed. shows it as a verb as we're using it first recorded circa 16th century. So probably used much earlier.

I also doubt that the 1 year assumption for employment contracts has feudal origin. In feudal times, one might expect a duration of a harvest season, or some other more natural basis. In fact, I suspect the concept of an employment contract isn't that old. Why contract for what is yours by noble right? "One year" sounds a lot more recent than that, though I have no data. Do you?
4.4.2008 12:48pm
MichaelG (www):
David M. Nieporent wrote:
"Again, what about fairness to the employer?"

Incorporated employers do not have natural rights to self defense. Individuals, as either employee or employer, do have natural rights. This is a distinction that I notice some Libertarians do not make. I consider them "Big Corp libertarians" as opposed to being "Big L libertarians". :)

Prufrock765 wrote:
"You gun zealots are resting your arguments on the constitutional right to bear arms—a right that is accorded no more privilege than is the right to possess porn."

A decision about that may be one of the things that comes
from the DC v Heller decision. If the constitutionally *protected* right is viewed by the court as not only an individual right but as an unalienable right then it should be accorded more of a privilege than is the right to possess porn.

Is this not especially if the Court decides to rule that strict scrutiny should be applied?
4.4.2008 1:09pm
ruralcounsel (mail) (www):
My best guess is that the real purpose of "at will", and why it popped into existance as recently as it has is that it is a convenience for employers in an increasingly industrialized, regulated, and anonymous labor environment to fire someone they might otherwise be barred by law from firing.

It's a great way to avoid EEO-type prohibitions, or dispose of someone that is pro-union, because it throws the burden of proof on the employee. 99+% of the people let go will just accept it and walk away, rather than fight it.


I think that if the owner of a restaurant found out that two members of his staff were having a disagreement, and you told him that he couldn't fire one of them because that would be "taking sides," he'd be stunned.


Yeah, especially if you told him he couldn't do it based on the fact he was sleeping with one of them, and not on the basis of who might have been at fault for the disagreement. Happens all the time.

The "at will" doctrine is used more to justify (no, wrong word ... how about "obfuscate") an unethical immoral termination (note I didn't say illegal ... personal racism, bigotry and other assorted bias is rarely illegal) than not. That's an opinion ... don't know how you'd verify it one way or another.

As someone who considers themselves relatively libertarian, I understand your vehement defense of the employer. Really. But I won't be bound by rigid models when I see how they can be abused. So long as we are going to give an employer the protection of society's laws, we also have a right to expect that they will act in a socially acceptable manner. You are just defending an institutionalized bargaining advantage for labor based upon deception. This isn't freedom to run a business, it's freedom to do so with fraud and deceit. That's where I draw my line.
4.4.2008 1:13pm
PatHMV (mail) (www):
No, MichaelG, the court's decision on Heller will have absolutely no bearing on this issue, because Heller is only about what restrictions the GOVERNMENT may place on gun ownership and gun possession. I can assure you that the Second Amendment will be made no more absolute than the First Amendment. Your right to possess non-legally-obscene porn is absolute in the sense that the government cannot forbid you to possess it. That is the absolute most that Heller will hold, that the government cannot forbid you to possess certain fire arms. It has absolutely zilch to do with what a private employer or a private property owner can require as a condition of continued employment or as a condition of entrance onto the private property.

ruralcounsel... so in your view, because the employee also enjoys the "protection of society's laws," then the employee can not quit a job simply because his employer carries a gun, or because his employer holds racist views?
4.4.2008 2:07pm
Prufrock765 (mail):
rural:
I think interest in this thread is dwindling, but I will throw this out.
I agree that what you say is consistent. But I would reply that I am not sure how you can label an employer decision to terminate as "unethical, immoral".
Do you apply this analysis to any other instance of private contract?; in particular, do you ever lable the action of an employee to terminate the contract as "unethcial" or "immoral"?
4.4.2008 2:13pm
ruralcounsel (mail) (www):
Prufrock765 wrote:
"You gun zealots are resting your arguments on the constitutional right to bear arms—a right that is accorded no more privilege than is the right to possess porn."

Actually, no. This isn't a state actor, so the Constitutional protection really doesn't exist. We're basing it on a more fundamental and basic natural right to self defense. It's what the 2nd Amendment was based on, so think of the Constitutitional right as a little derivative benefit from the larger concept.

Let's pretend that instead of CCW, this guy was fired for "breathing". Now how could that be right? There's no Constitutional right to breath! But it is kind of an implied right ... what good is a job if you can't live? Same thing, but less extreme. What good is a job if you aren't allowed to defend yourself.

Well, you might argue, CCW isn't like breathing. No, it's not. It's just a less deterministic version of the same thing. Failure to be allowed to defend your own life won't necessarily get you killed like not breathing would. But under the right circumstances, it might. So, here comes the Clint Eastwood moment. "Do you feel lucky?" Fortuately, most of us are allowed to decide the answer to that for ourselves ... some of us are more risk-averse than others.

The point is, for an employee to assume this extra risk for the sake of an employer, an employer might be reasonably expected to have to pay a higher wage. Simple. But here, we have an employer who won't say ... lack of good faith disclosure. Worse, he kind of lies about it.

Why? Maybe because he doesn't want to admit that he's putting his employees at risk. Maybe because he doesn't want to advertise this fact to other current and potential employees, who might change their minds about this requirement. Or ask for more money to compensate for the extra risk. Or maybe he just likes the idea of putting his employees in a dangerous position and jerking them around! (Hey, our Big Corp libertarians think thats OK! ... at least so long as he doesn't have to pay for the privilege! Besides, its kind of a power trip.) Hey, maybe he's in cahoots with the local muggers, and he figures he'll get a cut of his payroll money back. Or maybe he has a life insurance policy on the employee that pays the company if he gets killed. Who knows? We're free to speculate ... all we know is that the employer really didn't like his employees to be able to protect themselves ... to the point that he wasn't even going to give them a warning about it.

So he fires this guy. But, gasp! ... the guy doesn't just slink off and find a job elsewhere, mad as hell but unwilling to make a bigger deal of it all. He takes the employer to court! The nerve! Doesn't he know that he's "no worse off" than he was before he got the job ... except that now he has to tell people he was fired from his last job, including on future job applications. Prospective employers love to see that, I'm sure.

So, sorry, no prize for you. Not like porn at all.

I'm not very sure about the natural right to porn, anyway. I suppose if your thoughts are pornographic, you have a natural right to those.

Anyway, even if it were a Constitutional issue (which I don't believe it is), isn't pornography one of the unprotected forms of speech/expression ... not explicitly protected? Or is that just obsene material? Unlike "arms", which actually get their own Amendment and more protection!
4.4.2008 2:30pm
David M. Nieporent (www):

The employees aren't "willfully ignorant". Ignorant, yes. Willfully, no. Most folks don't even understand the distinction, because they have an inate sense of fair play. I'll bet most people would have to look up whether their state is at-will or not,
Not much "looking up" required. All of them. (Montana is a quasi-exception.)
once they are made aware of the different legal status. It has nothing to do with empathizing with an employer (that's just absurd). It has to do with rationality and fairness ... why would you ever expect someone to fire you without good cause? There are plenty of good causes, why would anyone need "no good reason" be one of them.
Again, you still look at it solely from the point of view of the employee. The issue isn't whether there's a good reason, but who decides whether there's a good reason. Why would you expect that a court or government agency could second guess whether you had a good reason to fire someone?

I don't deny that employees have irrational misconceptions about the nature of employment; for instance, I can't tell you how many times people have asked me about "job descriptions" as if those had legal meaning outside of a contractual situation. ("They hired me to do X, but now they expect me to do something entirely different, Y. Can they do that?")

Sure it's convenient for the employer ...I never said it had no utility. It allows them to hire someone for a lower wage (because the worker assumes some kind of reasonableness standard and so is willing to work for less thinking there is some kind of job security)
No, it allows them to hire someone for a higher wage, because they know that they aren't risking being stuck with the person if he doesn't work out, the way employers are in many European countries. (In France, for instance, which is about the antithesis of employment-at-will, employers often have to bribe employees to go away because it's the only way to get rid of them. The money that you have to save up in case you need to bribe them to go away is money that comes out of their wages up front.)

I guess pretending something is "folklore" makes you feel better. I did a quick search, and came up with some credible evidence otherwise.
I don't see how finding a statement that a worker who steals would be punished by having his house and possessions destroyed by fire somehow is evidence that the phrase "fired" originates from this practice. Which, incidentally, had nothing to do with feudalism.

You are just defending an institutionalized bargaining advantage for labor based upon deception. This isn't freedom to run a business, it's freedom to do so with fraud and deceit. That's where I draw my line.
There is no deceit, no fraud. At most, you've claimed that employees are stupid and don't know what "at will" means. That's not "deception."
4.4.2008 2:42pm
Sasha Volokh (mail) (www):
The OED says the employment-type meaning of "fire" (meaning 16 for the first entry for fire (v.) on oed.com) is U.S. slang, and adds: "It has been suggested that this sense is derived from [meaning] 8 [about driving someone away by fire], but this is unlikely."

I agree with those who resist putting at-will employment into feudal times. On the contrary, feudal relations, and the seignorial relation (including with the unfree tenant ("serf" if you will)), are very far from at-will. They're more like lifetime relationships, more like marriage than employment contracts. The serf has obligations to the lord, the lord has obligations to the serf. Of course the lord is in a better position, but my point is that it's not some at-will relation that either party is free to just reject.

The doctrine of at-will employment is a much more recent innovation, and, I would argue, morally praiseworthy. This is part of the evolution from status to contract that has marked the progress of liberty. One's ability to terminate one's relationship with another for any reason, good, bad, or neutral, or for no reason at all -- unless the two of you have agreed otherwise -- is a necessary part of true freedom. You can break that relationship for good economic reason, whim, racism, because the guy annoys you, or whatever; the important thing is that the decision must be yours and yours alone, without your having to ask anyone's permission.

Allowing your contractual partner to assert that he's entitled to stay in a relationship with you against your will, or to have some third party (like a judge or jury) judge whether your reasons were good enough -- well, that looks like feudalism.
4.4.2008 2:49pm
David M. Nieporent (www):
The point is, for an employee to assume this extra risk for the sake of an employer, an employer might be reasonably expected to have to pay a higher wage. Simple. But here, we have an employer who won't say ... lack of good faith disclosure. Worse, he kind of lies about it.
Once more, I point out that this doesn't make any sense. If there's no disclosure to the employee, then the employee will carry if he wants, which means the employee isn't assuming any extra risk.

The only way for the employee to assume additional risk is if he's told and decides to stop carrying. In which case, no deception. And if the issue is important to the employee, then the employer will have to pay higher wages to retain him.
4.4.2008 2:49pm
PatHMV (mail) (www):
ruralcounsel, you've avoided answering my last several direct questions, but let me try one last time to pin you down on a couple of points.

1. If the employer had issued the employee a handbook prior to the employee's accepting the employment offer, and the handbook said: "you are prohibited from carrying a gun while on the job or on company premises or in a company vehicle," would it then be permissible for the employer to fire the employee for subsequently carrying a gun?

2. Does it make a difference whether the employer is an individual person or a corporation?

3. Assuming that your answer to #1 is "yes" (which seems to be implied by your repeated focus on "notice"), then what if the handbook said nothing about firearms, but said instead: "Employer reserves the right to fire you for any reason at all, and employer is not obligated to even tell you why you are being fired." Would it then be ok for the employer to fire the employee for carrying a gun on company property?
4.4.2008 2:51pm
The Unbeliever (mail):
Let me throw another twist into the argument: what rights would the employer have to enforce such company policies on telecommuting employees?

My company currently has both a no-firearms policy AND a "remote worker" policy that allows someone to work on company time from a location other than our office/cubicle. Does this mean that when I work from home one day a week, I have to remove all firearms from my house before I can log on to the company network? What about if I log in from the local Starbucks, do I have to ensure my table meets the company's Clean Desk policy as well? Do I have to maintain our business casual dress code?

Obviously the company handbook could be amended to take the situations into account, but it seems to me there should be some kind of common sense limit beyond which the employer is just being meddlesome. I think reconciling company policy with the 2nd Amendment right to self-defense within my own home (further strengthened by my state's absolute home-as-castle doctrine) would rather negate any concept of a zero tolerance policy.
4.4.2008 2:53pm
ruralcounsel (mail) (www):
PatHMV and Prufrock765:
Yeah, the threads about dead. I posted that last one before I saw yours though.


ruralcounsel... so in your view, because the employee also enjoys the "protection of society's laws," then the employee can not quit a job simply because his employer carries a gun, or because his employer holds racist views?

But I would reply that I am not sure how you can label an employer decision to terminate as "unethical, immoral".
Do you apply this analysis to any other instance of private contract?; in particular, do you ever lable the action of an employee to terminate the contract as "unethcial" or "immoral"?


You two seem to have the same point, so let me try and put together an argument ...

Yes, I think there are times it would be immoral for an employee to quit. I can imagine an employer placed in a precarious position, physically or economically, where they had depended upon the employee following through. I think it is immoral for the employee to walk off the job without warning, without notice, and leave the employer in the lurch.

We can probably argue whether that is a "renegotiation" of the employment arrangement, or something else, though I doubt it matters to the employer. E.g. I doubt most restaurant owners would think it was just an "at will" issue if their entire waitstaff and kitchen staff walked off the job at 5pm Friday or Saturday night. Especially if it was because they disapproved of something he'd done that didn't really impact them, but they never told him about it.

Let's say they took the jobs he offered at a certain wage, but had they known of his behavior, they would have asked for more $. But they didn't tell him that, so he has no opportunity to adjust/negotiate for that factor. Deceitful? Yes.

Obviously, it's harder to find a situation where a single employee can put an employer through the same ringer that an employer can put a single employee ... unless there is only one employee.

And I still return to the fact that having the freedom to protect one's own life is substantively different than the freedom to be a racist, or posess porn, or whatever other silly surrogate I've seen thrown out here.

Employers so often want to be treated like an individual, but forget that the more employees they have, the greater the social impact their actions have. Which is why there are laws against closing down plants without sufficient warning where a large fraction of a town's workforce is employed there. Hiding the coming closure is illegal ... it unfairly manipulates the local work force. Lot's of people might quit earlier than the planned shutdown to go seek work elsewhere, which would hamper the employer's plans. Put their houses up for sale and trash the local housing market. (Which, I might add, the management is more likely to do before the rank-and-file know. A little like insider trading.) Or demand higher wages if they suspect the company is in trouble, or try to withdraw pension funds or 401k monies. So, similarly, we don't allow the employer to "hide the ball". Or if they do, they are still on the hook for payroll for a fixed time after the plant is closed.
4.4.2008 3:01pm
ruralcounsel (mail) (www):
Just a timing issue ...

ruralcounsel, you've avoided answering my last several direct questions, but let me try one last time to pin you down on a couple of points.

1. If the employer had issued the employee a handbook prior to the employee's accepting the employment offer, and the handbook said: "you are prohibited from carrying a gun while on the job or on company premises or in a company vehicle," would it then be permissible for the employer to fire the employee for subsequently carrying a gun?
YES
2. Does it make a difference whether the employer is an individual person or a corporation?
NO
3. Assuming that your answer to #1 is "yes" (which seems to be implied by your repeated focus on "notice"), then what if the handbook said nothing about firearms, but said instead: "Employer reserves the right to fire you for any reason at all, and employer is not obligated to even tell you why you are being fired." Would it then be ok for the employer to fire the employee for carrying a gun on company property?
IF IT WERE CLEARLY AND UNAMBIGUOUSLY STATED DURING THE HIRING PROCESS, SO THAT EVERYONE KNEW. Generally, someone doesn't get a copy of an employee manual until way too late in the hiring process ... like their first day on the job. It needs to happen back in the "courting phase" of hiring. Before anyone has moved, turned down other offers, etc.

That it?
4.4.2008 3:09pm
Tony Tutins (mail):
I'm still thinking that the more practical solution was for the employee to discuss the matter with his management and obtain their explicit approval, before he started carrying to work. Management should be able to appreciate the problem of late night safety in the parking lot, if real, and approved his being armed as a rational response.

Further, assuming that the employee was not the only late shift worker, he could have suggested forming a volunteer Security Patrol, to ensure safety of all employees who head to their cars late at night. I have worked where employees as extra duty joined Emergency Response Teams. They were trained in CPR and First Aid, as well as how to treat chemical spills and other plant accidents. Our employer valued their going the extra mile at work. One of the heads of our ERT was an auxiliary policeman in the suburb where he lived, which assured the company he possessed a certain level of training and public spirit.
4.4.2008 3:14pm
ruralcounsel (mail) (www):
Nieporent:
The point is, for an employee to assume this extra risk for the sake of an employer, an employer might be reasonably expected to have to pay a higher wage. Simple. But here, we have an employer who won't say ... lack of good faith disclosure. Worse, he kind of lies about it.

Once more, I point out that this doesn't make any sense. If there's no disclosure to the employee, then the employee will carry if he wants, which means the employee isn't assuming any extra risk.

I guess you're being "willfully ignorant" then. Have you never heard of the phrase "chilling effect"? You gotta look past your nose.

The only way for the employee to assume additional risk is if he's told and decides to stop carrying. In which case, no deception. And if the issue is important to the employee, then the employer will have to pay higher wages to retain him.

Wrong. Other employees will assume greater risks without compensation adjustement out of fear of violating some unwritten policy or rule. Your approach is very Machiavellian ... like arguing everyone is better off with hidden agendas, hidden information, lack of disclosure, and extreme information transaction costs. So, if you're a parent, does your family function better if you go around randomly hitting your kids for violation of rules you never articulated? How often? How hard? Do we tolerate that, as a society? I would argue that even parental freedom has some limits.

You're arguing for the poster child of employee abuse.
4.4.2008 3:23pm
PatHMV (mail) (www):
Thanks, ruralcounsel.

On your answer to #3, THAT IS THE LAW TODAY. Employment at will is the law. There's an old truism out there, ignorance of the law is no excuse. If you don't know that employment at will is the law, that's your problem; there's really no excuse for it. Blame your high school, perhaps, but that is in fact the law. Because it's the law, there's no particular need to reproduce it in every single employee handbook. It's the default rule, applicable unless the parties agree in their contract to change it.

As for employees walking off the job, I notice you switched to discussing morality rather than rights. You want the government to be able to force the employer to rehire the employee whom the employer doesn't work, under threat of government sanction. Do you also support the reverse, the government being able to force an individual to return to work (even in the absence of a written contract with a specified term), even if doing so might violate the employee's own sense of morality or propriety?
4.4.2008 3:28pm
ruralcounsel (mail) (www):
Pat HMV
"On your answer to #3, THAT IS THE LAW TODAY."

I don't think so. I have never received an employee handbook during the hiring process ... only long afterward. Or do you just mean to the employment at will being the default?

"You want the government to be able to force the employer to rehire the employee whom the employer doesn't work, under threat of government sanction. "

Actually, I don't believe I ever said that. I think employment arrangements are "special" just like employment contracts, and specific performance isn't generally a good idea. Besides, I recognize the slavery or indentured servant issue lurking out there. But money damages are good, for some limited time period. Irrational employer behavior should have an associated cost.

"Do you also support the reverse, the government being able to force an individual to return to work (even in the absence of a written contract with a specified term), even if doing so might violate the employee's own sense of morality or propriety?"

Only if they negotiated it away in an open and fair process. Recall the Air Traffic Controller strike? But that was under contract. I doubt the legal system can work fast enough to address your scenario in absence of a contract ... because the appropriate response would be to give them a choice (1)go back to work only so long as it took the employer to find replacement help, and get them out of their bind, or (2) be liable for money damages. Just like the reverse should be keep paying the employee until they've had a reasonable chance to find another job.
4.4.2008 3:41pm
PatHMV (mail) (www):
Yes, I meant employment at will, the ability for the employer to fire or the employee to quit at any time for any reason, without even having to specify a reason, is the law today.

You see, though, that you are treating the employees and the employers differently. You want a default rule which allows employees to quit without good reason, unless specifically negotiated away. You want the opposite default rule for employers. If the employee wants to quit simply because he doesn't like his boss' politics, or perhaps because he doesn't want to work for a boss who carries a gun, HE gets to do so. You refuse to extend the same right to the employer, even when the employer is an individual, not a corporation.
4.4.2008 3:48pm
ruralcounsel (mail) (www):
Pat HMV:

There's an old truism out there, ignorance of the law is no excuse. If you don't know that employment at will is the law, that's your problem; there's really no excuse for it.

That is generally in criminal law. Actually, we've altered "caveat emptor" for quite a few more analogous areas, like consumer liability. Are you joining with Neporent in the Machiavelli theory of employment law? I'm beginning to suspect you guys of being "union agitators" posing as unreasonable management! :-)
4.4.2008 3:52pm
ruralcounsel (mail) (www):
Pat HMV:

You see, though, that you are treating the employees and the employers differently. You want a default rule which allows employees to quit without good reason, unless specifically negotiated away. You want the opposite default rule for employers. If the employee wants to quit simply because he doesn't like his boss' politics, or perhaps because he doesn't want to work for a boss who carries a gun, HE gets to do so. You refuse to extend the same right to the employer, even when the employer is an individual, not a corporation.


Not significantly ... as I see it, if the hiring process was open and honest, and everyone had a chance to disclose their "dealbreakers", there is at least some kind of "fair warning" requirement for new issues. Think of it like dating ... you shouldn't be allowed to dump your date in a bad part of town just because you suddenly found out something you didn't like about them that you or they hadn't disclosed ahead. You gotta at least take 'em to a taxi or take 'em home. Make them whole. Works both ways.

What constitutes "good reason" is different for the two groups though. That's why prior disclosure is so important.

And be honest. For most people, it's harder to find a new job than it is for an employer to take on a new hire. What did someone post earlier ... it takes on average 9 months to find employment? The risks are highly disproportionate, in favor of the employer. Unemployment isn't that low!
4.4.2008 4:04pm
JosephSlater (mail):
This thread may be dying, but a few points. First, "pure" at will has pretty much always been unpopular. It was a product of the late 19th century, and even then democratic majorities resisted it, in at least in part. Beginning in the late 19th century, many states passed laws limiting the employer's right to fire (e.g., for joining a union), and other aspects of the employer's perogatives under pure at-will (wage and hour rules). In the late 19th and early 20th centuries, courts struck down hundreds of these laws as unconstitutional, but that era ended with the New Deal.

In the 1930s, the NLRA meant employers couldn't fire for being union members; in 1964, Title VII added a number of prohbited categories (race, sex, national original, religion, color) employers couldn't use in hiring/firing decisions. Other federal statutes (the ADA, the ADEA, etc.) and state laws (20 states currently bar discrimination on the basis of sexual orientation, for example) have been added since.

Plus there are contract (employee handbook) and tort (wrongful discharge theories). These are usually pretty narrow exceptions (and wouldn't protect the employee in the case this thread is about), but they do exist.

Also, many public employees are not at will due to civil service laws (some dating back to the 19th century). And most union employees are not at will because they negotiate contracts requiring just cause for discipline (see what happens when you actually equalize bargaining power in these relationships?)

Oh, and pretty much every other industrialized democracy has abandoned at will and instead uses some form of "cause" req -- including those that have often had lower unemployment rates than those in the U.S., like some Scandanavian countries.

Given all that, it's not surprising that surveys indeed show that a majority of employees AND a majority of employees don't think at-will is the rule (although as David N. Nierpont correctly said, only Montana has adopted a "for cause" rule).

What we have in the U.S., I think (and have argued in print) is the worst of both worlds: with lots of different protections, some not all that clear, employers are uncertain when and how they can fire employees without fear of litigation; but on the other hand, given how specific and narrow most of the exceptions to at will are, employees are not actually given that much protection.
4.4.2008 4:22pm
JosephSlater (mail):
Of the various typos in the post above, I most regret totally mangling David M. Neporent's name.
4.4.2008 4:32pm
Brock (mail):
David Schwartz:
I hope I am completely misunderstanding your argument.

No worries. The argument I was making, which probably had to be constructed from several comments, was that the right of self defense (a) is really important, and (b) has certain characteristics which require it be treated differently than other "really important" rights (like speech). My "no free riders" statement was directed at that concern.

I wouldn't be concerned about peanut allergy sufferers because, usually, they can easily seek out peanut free foods (like carrots or pork loin). The only time I would consider enforcing a "right" to peanut-free food might be where an employee works on an off-shore oil rig and the monthly food supply ship shows up with nothing but peanuts. If the company totally controls the food supply, they must provide food that won't kill you.

Sasha:
You can break that relationship for good economic reason, whim, racism, because the guy annoys you, or whatever; the important thing is that the decision must be yours and yours alone, without your having to ask anyone's permission.

That's a beautiful sentiment. But it ignores the consistent and structural disadvantage most employees find themselves in relative to corporate employers. A bargain between two "people" with consistently out-of-whack bargaining power needs to be subject to the judgment of neutral third parties for fairness. It's the exact same reasoning behind the inability of minors to enter into contracts or give consent to sexual relations.

When I say fairness I mean that in a very limited way (restricted only to actions which inhibit the meaningful exercise of fundamental rights), but I think the fundamental right to self defense should be one of those narrow exceptions to "free contract."
4.4.2008 4:38pm
ruralcounsel (mail) (www):
JosephSlater
Thank you for that thoughtful and educational synopsis!

PatHMV:
To extend the dating analogy a bit further ... it's generally the employer's car, and it should be pretty hard to justify dumping someone off on the side of the highway after the inducement of a date has gotten them far from home.

I'm not arguing to turn every date into marriage. Just for some openness and honesty in the dating process. The opposing argument has always seemed to me to be for unrestricted use of the ejection seat.

While it may be a bit hard for most attorneys to comprehend unless they've had a different career at some point in their lives, most labor in this country is considered to be pretty fungible by management.
4.4.2008 4:38pm
LarryA (mail) (www):
Okay. I have a concealed handgun license and carry at work.

When I took the job I carefully read through the employee policy manual concerning carrying. It listed "possessing an unauthorized firearm on company premises" as cause for immediate termination. So I went to my supervisor and asked about my handgun. Her response was that the state of Texas authorized me (CHL) to carry, therefore my handgun was not unauthorized. So I carry. No one here has a problem with it.

This is roughly the same procedure the employee here followed.

Of course, I live in Texas and work for a family violence/rape crisis center, so attitudes about violence are somewhat more realistic.

I am aware that my boss can fire me at any time for any reason, just as I can quit at any time for any reason. However, I would say that firing me without warning for complying with what my supervisor told me was company policy would be an unfair practice, particularly since it involves both state and federal constitutional issues.

Some have noted that policy manuals may not spell out every cause for termination. However, in my long job experience "firearms on company property" is one of the most common policies I've seen. In the twelve years since concealed carry was passed in Texas, I've worked full or part-time for six businesses. Of them two would not allow me to carry, one (a gun store) almost required it, and the other three allowed it.

So I have to side with the employee, since he made a good-faith effort to discover the policy and follow it. The employer should have changed or stated the policy and given the employee opportunity to comply.
4.4.2008 5:57pm
David Schwartz (mail):
LarryA: The whole point of at-will employment is that neither side has to be fair. Quitting your job at a time that is inopportune for your employer is not fair either. If both sides want to prohibit unfair activity, they are free to negotiate such a deal. But if you don't want to have justify quitting, don't expect your employer to have to justify firing you.

It seems to me that nearly everyone who argues employers should not be free to fire employees for some reason always seem to feel it's perfectly okay if an employee wants to quit for that same reason.

I once quit a job because I found out my boss, (who I considered to be slightly, but not dangerously, unstable), carried a gun. I saw him messing with it in his office in a way I considered abnormal, and quit immediately.
4.5.2008 1:41am
Ryan Waxx (mail):
That's a pretty darn high bar, David.

But I'm glad to hear we can do away with an entire sector of jurisprudence based on your say-so.
4.5.2008 3:04am
Ryan Waxx (mail):

It shows me that libertarians, probably more than any other group, actually take legal/policy positions that lead to results they acknowledge they don't argee with.


Perhaps you would find it a lot more comprehensible if you were to understand that libertarian ideals and individual-rights ideals aren't always the same thing, despite many folks holding both beliefs.

But perhaps you are more interested in seeking out perceived flaws in an ideology you don't like than in understanding it. You wouldn't be the first.
4.5.2008 3:11am