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Return Fire: Employers Who Disregard State Gun Laws May Expose Themselves to Wrongful Termination Liability

Across the country, employers today must be aware of their state’s gun laws. “Bring your gun to work” laws, enacted in over 20 states, pose a particular challenge to employers because they limit the extent to which employers can regulate guns on workplace premises. Addressing Mississippi law, the Fifth Circuit recently held that Mississippi employees can sue employers for wrongful termination if they are fired for storing a licensed firearm in a locked vehicle on company property, Swindol v. Aurora Flight Sciences Corporation.

The Fifth Circuit’s Decision in Swindol

Mississippi Code § 45-9-55(1) prohibits employers from establishing or enforcing any policy prohibiting employees from storing or transporting firearms in locked vehicles in workplace parking areas. Aurora Flight fired employee Robert Swindol for having a firearm in his locked vehicle on the company parking lot — a violation of its policy banning firearms on their premises. The Fifth Circuit recognized the policy was illegal, but certified the question of whether enforcement of the illegal policy gave rise to a cause of action for wrongful discharge to the Mississippi Supreme Court. The Mississippi Supreme Court responded that the statute could make an employer liable for wrongful discharge because the Mississippi legislature took “express legislative action” with Section 45-9-55(1), creating a legislative exception to the accepted employment doctrine that an “at-will” employee can be terminated at any time. In other words, Aurora Flight could not terminate Swindol for storing a firearm in his locked vehicle. Based on the Mississippi Court’s response, the Fifth Circuit concluded that the employee could assert a claim for wrongful discharge.

The Effect on Texas Employers

While the Fifth Circuit’s ruling in Swindol has no direct effect except in Mississippi — since the Court was applying Mississippi state law — the Swindol Court’s reasoning is instructive in states with similar laws. Texas, for instance, has enacted Texas Labor Code § 52.061 which, like the Mississippi statute, states that employers may not prohibit their employees from keeping guns in locked personal vehicles parked on company premises.

Employers who violate state gun laws, like Texas’ Section 52.061, are at risk. While Texas law does not favor exceptions to the employment-at-will doctrine, when confronted with an employer’s violation of an express statutory prohibition, Texas courts may find that the statute provides a rationale for allowing a terminated employee to pursue a cause of action for civil damages. At a minimum, Texas employees are likely to be able to seek a declaratory judgment against any employer who has a policy that violates Section 52.061. Employers in states with “bring your gun to work” laws should consider this risk if their existing gun policies do not comply with a state statute and the growing risks associated with enforcing such policies.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.