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Sat, Dec 20, 2014

Questions remain regarding new gun law

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NASHVILLE, Tenn. -- The so-called “guns in trunks” or “guns in parking lots” law that was passed in 2013 by the Tennessee General Assembly took effect last summer, but much uncertainty remains about how it will affect employees.

According to legislative attorneys studying the issue, one of the biggest questions is whether the law hinders an employer from terminating a worker who, in violation of a no gun policy, leaves one stored in a vehicle while it is parked on the employer’s property.

The law now generally assures that if state-licensed gun-carry permit holders carefully conceal and secure a firearm in a locked vehicle while at work, they will not be subject to criminal prosecution.

Even Gov. Bill Haslam, who signed the legislation into law, has indicated he is not entirely sure how it interfaces with the “employment-at-will” workplace doctrine, which generally assumes business owners can fire employees for any reason unless the law specifically says otherwise.

The most high-profile legal analysis that had been offered on the matter to date was an opinion released in May 2013 by Attorney General Robert Cooper, who concluded that the new statute language “only decriminalizes the carrying and storage of firearms and firearm ammunition.”

The law “does not address and thus has no impact on the employment relationship between an employer and an employee,” Cooper said in his written opinion.

But while many lawyers, gun-rights activists and business-community advocates have concluded that the new law is clear as mud, Lt. Gov. Ron Ramsey sees things straightforwardly: The attorney general is wrong.

In a recent press release, Ramsey, the speaker of the Tennessee Senate, reiterated a charge he has made in the past – that Cooper, a Democrat, bears much of the guilt for doubt swirling around the issue because he “has muddied the waters by calling this law into question.”

Noting that Cooper’s opinion “is not binding,” and therefore “has no more force of law than any other lawyer’s opinion,” Ramsey’s office provided a link to a memorandum issued earlier last week from two staff lawyers with the Legislature’s Office of Legal Services.

Their conclusion, Ramsey said, “mirrors the views of employment attorneys who are advising employers to tread lightly on the right of employees with handgun permits as they travel to and from work.”

“Last session, we passed a law that protected private property rights while allowing permit holders to lawfully keep a firearm stored in their car while at work. This opinion makes clear we did just that,” Ramsay said.

He concluded, “There need be no further clarification.” 

The eight-page memorandum states that the new statute language “provides protections to an employee who acts in compliance with” the law.

Because Tennessee has for more than two decades “established a clear public policy of expanding rights and protections of handgun carry permit holders,” the memorandum’s authors, attorneys Karen Garrett and Joel Hayes, anticipate that state courts could be expected to rule in a terminated, otherwise law-abiding, gun-owner’s favor.

That is because employees “generally may not be discharged for attempting to exercise a statutory or constitutional right, or for any other reason which violates a clear public policy which is evidenced by an unambiguous constitutional, statutory, or regulatory provision,” according to the memorandum.

Garrett and Hayes noted the courts have held that “employees discharged as a consequence of an employer’s violation of a clearly expressed public policy” may have a case against the employer for wrongful discharge.

The memorandum also noted these public policy exceptions to employment-at-will are generally not explicitly stated in the code.

They went on to say, “Tennessee’s employment lawyers are warning clients that firing an employee who adheres to the requirements of (the new statute language) will most likely face a retaliatory action for wrongful termination based on the public policy exemption.”

Indeed, the memorandum cited various articles by Tennessee lawyers with expertise in workplace law who caution employers that the legislation introduced uncertainties to the employment-at-will doctrine.

However, the articles on the subject linked in the memorandum generally indicate the law is not as easily explained as the Office of Legal Services attorneys present it.

“The bottom line is that, presently, there is no definitive answer,” Kara E. Shea said in the summer of 2013 in the Butler Snow labor newsletter.

“A case certainly could be made that, notwithstanding the emphatic legislative history from the Senate side, if the framers of the law meant to create a cause of action for retaliatory discharge, they would have, or should have, said so in the statute itself,” Shea said. “But, ultimately, this is an issue that will be decided in the courts.”

Gun-rights activist John Harris, executive director of the Tennessee Firearms Association, has for years been pushing for what he terms “safe commute” legislation that would unequivocally protect lawful gun owners both from criminal prosecution and employer retaliation for storing a firearm in their vehicles while at work.

He has been highly critical of the legislation passed last year and is calling on the General Assembly to amend and clarify the statute to ensure workers get a plainly affirmed legal right to keep a gun in their car while they are on the job.

Harris blasted Ramsey’s statements last week, suggesting that the Office of Legal Service’s attorneys “are just grasping at straws to make Ramsey happy.” 

“I don’t always agree with the attorney general, but the attorney general mirrored in his opinion almost the exact points we were saying were serious flaws with the bill when it was being debated,” Harris said.

He added that courts have it within their power to void laws deemed too vague for average citizens to understand. Given the disagreements among people with training in the law, the current statute is clearly imprecise and ambiguously worded, Harris said.

“If the sponsors and different groups of attorneys don’t agree on what the law does, how are the courts supposed to determine what it does?” Harris said. “If this is Ramsey’s idea of the way to write a law, then he shouldn’t be re-elected.”

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Attorney General, General Assembly, GOP, Gun Control, Politics, Public Policy, Republicans, Ron Ramsey, TNReport
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