Last week I blogged about a federal district court's holding that Ohioans -- even ones employed by private employers -— are presumptively protected from being fired for off-employer-property (and presumably off-duty and lawful) possession of guns. The court concluded that such firing would violate the tort cause of action created by Ohio state courts and known as "discharge in violation of public policity"; the case is Plona v. UPS, 2007 WL 509747 (N.D. Ohio Feb. 13) (emphasis added):
Plona, an Ohio resident, was employed by UPS at a facility in Cleveland, Ohio.... Plona ... was terminated in April 2006, allegedly because UPS discovered that Plona had a handgun in his vehicle while at work. Plona alleges that he had the handgun, which was disassembled and unloaded, and locked in his car in a public-access parking lot used by both UPS employees like Plona and non-employees/customers of UPS. On the day of his termination, UPS announced that law enforcement would be conducting a routine search of all persons and property on UPS premises for contraband. When Plona informed law enforcement about the handgun locked in his car, and the handgun was then discovered, he was terminated....
[T]he court proceeds on the facts alleged in the complaint and all inferences drawn in Plona's favor, meaning that the court presumes for the purposes of this motion that the parking lot where Plona's car was parked was not UPS company property....
Plona has made one claim in his complaint against UPS, for wrongful termination in violation of Ohio public policy. That claim, under Ohio common law, has four elements: (1) that a clear public policy existed and was manifested in the federal or state constitution, statute or administrative regulation, or in the common law (the "clarity" element); (2) that terminating employees under the alleged circumstances would jeopardize the public policy (the "jeopardy" element); (3) that the termination was motivated by conduct related to the public policy (the "causation" element); and (4) that the employer lacked overriding legitimate business reasons for termination (the "overriding justification" element).... The first two elements — clarity and jeopardy — are questions of law, to be determined by the court..
In this case, the claimed source of the "clear" public policy is the Ohio constitution, Article I, Section 4, which states that "[t]he people have the right to bear arms for their defense and security ..." Plona asserts that Ohio has a clear public policy, as stated by its constitution, permitting its citizens to bear arms and that allowing UPS to terminate him for possessing an unloaded, disassembled firearm off of company property would jeopardize that public policy.... The court finds that the public policy of Ohio permitting citizens to bear arms, as stated in Article I, Section 4 of the Ohio constitution, is clear enough to form the basis of a wrongful termination claim....
Permitting UPS to terminate Plona for possession of a firearm off of company property would be no different than permitting UPS to terminate Plona for possessing a firearm at his residence. And allowing an employer to terminate an employee for exercising a clearly established constitutional right jeopardizes that right, even if no state action is involved.
The comment thread yielded an interesting discussion about whether this was a sound application of this tort -- and one can of course argue about whether the tort is sound more broadly, or whether the employment-at-will principle should be preserved as broadly as possible (perhaps subject to specific statutory exceptions created by the legislature, not by courts).
But a couple of days ago, I ran across another interesting provision -- Ohio's concealed carry status, which provides (Ohio Rev. Code § 2923.126(C)(1)) (emphasis added):
Nothing in this section shall negate or restrict a rule, policy, or practice of a private employer that is not a private college, university, or other institution of higher education concerning or prohibiting the presence of firearms on the private employer's premises or property, including motor vehicles owned by the private employer. Nothing in this section shall require a private employer of that nature to adopt a rule, policy, or practice concerning or prohibiting the presence of firearms on the private employer's premises or property, including motor vehicles owned by the private employer.
Does this statutory provision provide extra support for the district court's view, by implicitly assuming that employer power over employees' gun possession should extend only to the employer's property? Or should it be ignored, on the grounds that it merely restates one aspect of the employment-at-will doctrine, and other aspects -- such as the employer's power to fire the employee for using whatever products the employer might dislike (absent an express state statute restricting that power) -- remain untouched?
Related Posts (on one page):
- Firing Employee for Lawfully Carrying a Gun When on Company Business:
- More on Firing Employees for Possessing Guns Outside Employer Property:
- Employee Gun Possession (Outside Employer Property) Presumptively Protected Against Employer Retaliation?