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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."

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