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April 22, 2009
'I Can Bring My Gun to Work, Right?'

The above may sound like a strange question, but it’s not so strange in Oklahoma. The issue concerns only transporting weapons in personal vehicles that are locked before employees enter the workplace, but it’s been a very hot topic in the state. A recent ruling has changed the picture yet again.

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What happened. In 2004, state legislators amended the Oklahoma Firearms Act and Oklahoma Self-Defense Act to say employers could not bar employees from bringing weapons onto company property, provided they were locked in vehicles during working hours. The amendments were the Legislature’s response to the firing of several Weyerhauser paper factory employees in 2002, whose suit for wrongful termination was still pending when lawmakers acted.

In fall 2004, before the amendments were effective, the Oklahoma attorney general challenged them and was joined by several state employers, all of whom barred employees from bringing guns to work. A federal district court in 2007 reviewed the plaintiffs’ arguments—the amendments were unconstitutional, violated plaintiffs’ due process rights, were vague, and were preempted by the Occupational Safety and Health (OSH) Act—and rejected all of them except the OSH Act preemption.

Plaintiffs said the OSH Act’s “general duty clause,” which requires employers to maintain environments that are free from “recognized hazards,” would be violated by the presence of guns on employer premises. The district court bought that argument and issued a permanent injunction against implementing the amendments. The injunction was appealed to the 10th Circuit, which covers Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming.

What the court said. Appellate judges agreed with the lower court on the plaintiffs’ first three arguments. So the remaining question was about OSH Act preemption. But in 2006, an Oklahoma lawmaker wrote OSHA to ask if it sees guns in the workplace as a recognized hazard. As a 10th Circuit appeals judge wrote, “OSHA is aware of the controversy surrounding firearms in the workplace and has consciously decided not to adopt a standard.” That is, OSHA answered the lawmaker’s inquiry by saying, in part, “Gun related violence is not a recognized occupational hazard in industry as a whole.”

So the appeals court allowed the Oklahoma amendments to go into effect, and employers must now allow workers to keep weapons in their locked vehicles on company premises. Ramsey Winch Inc. v. Henry, U.S. Court of Appeals for the 10th Circuit, No. 07-5166 (2/18/09).

Point to remember: OSHA has ducked the issue, so employers in states that allow guns on their premises should ramp up their antiviolence policies and retrain workers.

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