Extension of the workplace...Can an employer prohibit carry?

Extension of the workplace...Can an employer prohibit carry?

This is a discussion on Extension of the workplace...Can an employer prohibit carry? within the Concealed Carry Issues & Discussions forums, part of the Defensive Carry Discussions category; An interesting issue recently came up. In Texas, an employer can prohibit concealed carry by formally making it a part of company policy to prohibit ...

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Thread: Extension of the workplace...Can an employer prohibit carry?

  1. #1
    New Member Array WowTexas's Avatar
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    Extension of the workplace...Can an employer prohibit carry?

    An interesting issue recently came up.

    In Texas, an employer can prohibit concealed carry by formally making it a part of company policy to prohibit employees to carry at the workplace. This does NOT affect others (unless a 30.06 sign is properly displayed), only employees. In fact, if the company has put the no-carry policy in place, it does not have to display a 30.06 sign in order to prevent employees from carrying.

    So let's say an employer has put the no-carry policy in place for its employees.

    Does this policy apply to what might be considered an "extension of the work place"? If so...how does one define where the work place is?

    Case in point.

    Employer is a home health care company, providing in-home care for people, including elderly. Employer has the no-carry policy in place (assume it is properly documented in the employee manual, etc.)

    Employee care giver (who is licensed carrier) carries a concealed handgun to a patients home. Is that carry prohibited because it is an extension of the workplace and the employer has prohibited carry at the work place?

    It goes one step further...

    What if the care giver takes the handgun out and "shows it" to the patient...even lets the patient hold the gun to have a look. IMO, the gun is no longer concealed and the care giver has not only violated the law, but violated common sense. It doesn't matter if the care giver is licensed as a concealed carrier, or that she is in a private home...it's not her home, and the gun is not concealed. (Not to mention that the patient was a VERY elderly woman who had no business having a loaded gun in her hands...)

    I would be interested to hear your thoughts about what constitues an extension of the work force, and whether a person who is prohibited by company policy from carrying on company premises is also prohibited in the "extended workplace".

    All the best!

    Mike


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    Distinguished Member Array noway2's Avatar
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    IMO, being on employer time makes it an extension of the workplace.

    I am also of the opinion that an employer should not be able to deny you the ability to cary. Others here will disagree.

    Sent via mental telepathy
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    Ex Member Array ArmyMan's Avatar
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    Quote Originally Posted by WowTexas View Post
    .....
    I would be interested to hear your thoughts about what constitues an extension of the work force, and whether a person who is prohibited by company policy from carrying on company premises is also prohibited in the "extended workplace".

    All the best!

    Mike
    That would depend on the exact wording of the policy. An employer so inclined should be careful to define 'extended workplace'.

    IMO, however, any such infringement by the employer is just that, an infringement, one which is unjustified and thus unconstitutional if the employer can't demonstrate a need. Employers and businesses should be specifically prevented from banning otherwise lawfull carry.

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    VIP Member Array ghost tracker's Avatar
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    Let's take it several steps further. While the care giver is showing-off his handgun to this mentally incompetent old lady, her thug grandson comes in to steal her last remaining food stamps & the motor off her iron lung. She, because she's mentally incompetent, now hands the shiny object to her grandson because she's tired & it's heavy. The handgun is fumbled, falls to the tile floor, resulting in a negligent discharge. The bullet go through the wall and kills her grandson's thug accomplice as he helps himself to Granny's Oxycodone he plans to sell at the Elementary School from the bathroom cabinet. Who gets arrested? Who gets sued? Who gets a medal from the mayor?

    Legal scenarios require legal opinions. Legal opinions are popcorn farts unless they are given by lawyers. And even lawyers can be wrong. Ask any convict.
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    Member Array Ogre's Avatar
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    Quote Originally Posted by WowTexas View Post
    An interesting issue recently came up.

    In Texas, an employer can prohibit concealed carry by formally making it a part of company policy to prohibit employees to carry at the workplace. This does NOT affect others (unless a 30.06 sign is properly displayed), only employees. In fact, if the company has put the no-carry policy in place, it does not have to display a 30.06 sign in order to prevent employees from carrying.

    So let's say an employer has put the no-carry policy in place for its employees.

    Does this policy apply to what might be considered an "extension of the work place"? If so...how does one define where the work place is?

    Case in point.

    Employer is a home health care company, providing in-home care for people, including elderly. Employer has the no-carry policy in place (assume it is properly documented in the employee manual, etc.)

    Employee care giver (who is licensed carrier) carries a concealed handgun to a patients home. Is that carry prohibited because it is an extension of the workplace and the employer has prohibited carry at the work place?

    It goes one step further...

    What if the care giver takes the handgun out and "shows it" to the patient...even lets the patient hold the gun to have a look. IMO, the gun is no longer concealed and the care giver has not only violated the law, but violated common sense. It doesn't matter if the care giver is licensed as a concealed carrier, or that she is in a private home...it's not her home, and the gun is not concealed. (Not to mention that the patient was a VERY elderly woman who had no business having a loaded gun in her hands...)

    I would be interested to hear your thoughts about what constitues an extension of the work force, and whether a person who is prohibited by company policy from carrying on company premises is also prohibited in the "extended workplace".

    All the best!

    Mike
    The first part is kinda clear (IMHO but IANAL), if you are on company time, doing company business then you are "in the workplace".

    The second I have even less knowledge of, as I do not know Texas law exactly, am I right in reading what you are saying as it is illegal in TX to let anyone know you have a firearm? Even if you are "friends" with them and further that you cannot show your "friend" your weapon? I understand not just taking the weapon out for the heck of it but you can't even share your "hobby" with friends/family?

    I have heard several say they wan't to move to TX, but if the above is the case I don't. If a friend asks me about my firearm I will take it out and show it to them, family too. As one can tell from that statement I am not of the C.A.N.T. school, I carry always but tell often. My wife, friends, family, co-workers etc. all know I carry. Heck, most of the time I am OC and CC as is my wife. I do not understand the C.A.N.T followers, especially those that won't even tell their significant other...

    I do have an issue with people who want to dictate what a private company does. It is THEIR company, the constitution only limits the GOVERNMENT, not private individuals or companies. I can do what I want with MY property, I can deny carry if I want, so can a private company, you don't like it, don't work for them. Its the same as any business that denies carry that you won't spend your money at, if you want to carry all the time start your own company and allow carry.

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    Ex Member Array ArmyMan's Avatar
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    Quote Originally Posted by noway2 View Post
    IMO, being on employer time makes it an extension of the workplace.

    I am also of the opinion that an employer should not be able to deny you the ability to cary. Others here will disagree.

    Sent via mental telepathy
    I appreciate meeting a like mind on both the issue of employers being able to arbitrarily deny civil rights, and an annoyance of Tapatalk's signature and those who choose not to disable it :)

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    Member Array Ogre's Avatar
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    Quote Originally Posted by ArmyMan View Post
    I appreciate meeting a like mind on both the issue of employers being able to arbitrarily deny civil rights, and an annoyance of Tapatalk's signature and those who choose not to disable it :)
    so, ya'll are saying a private company has no rights to say what occurs on their property? Hmmmm interesting, sounds like our fearless leader "you did not build that company", it is not your company you will do what I say.

    You don't like the policy, start your own company and allow carry or get a job that allows carry.
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    VIP Member Array suntzu's Avatar
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    Quote Originally Posted by ArmyMan View Post
    That would depend on the exact wording of the policy. An employer so inclined should be careful to define 'extended workplace'.

    IMO, however, any such infringement by the employer is just that, an infringement, one which is unjustified and thus unconstitutional if the employer can't demonstrate a need. Employers and businesses should be specifically prevented from banning otherwise lawfull carry.
    Sir, explain to me how it is unconstitutional. I mean really explain it in the legal sense, not just saying that I should be able to carry anywhere I want without any consideration to what a private owner of a house or company wants and desires.

    I prohibit students from carrying firearms while we are in training (skydiving). From the time they walk in the door it gets locked up. Do you think I am a tyrant? Not an employer employee issue but similiar.

  9. #9
    Ex Member Array ArmyMan's Avatar
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    Quote Originally Posted by suntzu View Post
    Sir, explain to me how it is unconstitutional. I mean really explain it in the legal sense, not just saying that I should be able to carry anywhere I want without any consideration to what a private owner of a house or company wants and desires.

    I prohibit students from carrying firearms while we are in training (skydiving). From the time they walk in the door it gets locked up. Do you think I am a tyrant? Not an employer employee issue but similiar.
    Skydiving is inherently dangerous and I believe you could easily demonstrate a 'need' to prohibit firearms or anything else which may interfear with the proper operation of a parachute. Even in Army Airborn school, soldiers do not jump with anything other than their perachutes until they've mastered specified levels of skill.

    Quote Originally Posted by Ogre View Post
    so, ya'll are saying a private company has no rights to say what occurs on their property?
    That's not at all what we're saying.


    If you fire an employee just because they have brown eyes, they are going to win a wrongful-termination claim against you and draw unemployment off of you:
    Wrongful Termination of At Will Employment

    The Civil Rights Act in 1964 extended anti-discrimination protections to employees, whose employment could no longer be terminated for reasons such as their race, gender, skin color, religion, or national origin. Additional legal protections now exist to deter certain forms of age discrimination. Following the creation of these anti-discrimination laws, it became possible for employees to argue that their terminations were "pretextual" - that is, although their employers were citing lawful reasons to terminate their employment, their employers were actually motivated by unlawful discriminatory motives.

    ~snip~

    Some states will permit an "at will" employee to bring a lawsuit on the basis that the employer violated an implied covenant of "good faith and fair dealing" in association with the termination decision. In such states, even with an at-will employee, the employer must extend some degree of fairness in the decision to terminate employment.
    I argue that 'lawful possession of a firearm' be added to the list because laws supporting preferences of private business owners to arbitrarily ban a right do not meet SCOTUS "Strict Scrutiny" standards. The typical employee has a need to carry, whereas the typical employer does not have a need to ban.


    ******
    If you remove a customer just because they have brown eyes, you will be cited by the State for braking Public Accommodation codes.

    For example:
    South Dakota Code 20-13-23

    20-13-23. Public accommodations--Unfair or discriminatory practices. It shall be an unfair or discriminatory practice for any person engaged in the provision of public accommodations because of race, color, creed, religion, sex, ancestry, disability, or national origin, to fail or refuse to provide to any person access to the use of and benefit from the services and facilities of such public accommodations; or to accord adverse, unlawful, or unequal treatment to any person with respect to the availability of such services and facilities, the price or other consideration therefor, the scope and equality thereof, or the terms and conditions under which the same are made available, including terms and conditions relating to credit, payment, warranties, delivery, installation, and repair.
    When you open your business to the public, you have to conduct 'fair and equal treatment' to each person who voluntarily walks through your door. You cannot deny access to your business just because a customer is one of these protected classes. You cannot refuse to sell to a customer just because the customer belongs to one of these classes. You can't do that now, you wouldn't be able to do that if 'lawfully carrying a firearm' were added to the list.

    I want to add 'lawfully carrying a firearm' as a protected class because I have a need to carry whereas the business does not have a need to deny.


    *****
    The way you win this argument is to demonstrate a 'need' to keep firearms off your property. 'My property, my rules' fails the SCOTUS "Strict Scrutiny" standard because a right always supersedes preference.

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    VIP Member Array suntzu's Avatar
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    You are not being discriminated against. Get over it. They don't want your gun on their property.

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    If I don't want you to smoke or get drunk in my house, or in my business that is my right and my property. I own it and I get to make the rules, if you don't like my rules you can go somewhere else. Likewise if I want to allow people to smoke in my resturant anywhere that want too, that is my right. if you don't like cigerette smoke then you don't have to eat there.

    Be careful about asking for government regulations on private property, you can loose more rights than you gain
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    VIP Member Array Cupcake's Avatar
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    An employer can demand pretty much anything they want...it's not about the firearms laws. Employer says don't wear blue jeans at work...if they find you wearing blue jeans at a patients house - yes, you can get fired. That's not about your rights, that's about you violating the workplace rules you agreed to when you took the job.
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    New Member Array WowTexas's Avatar
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    Texas Law says:

    PC 46.035. UNLAWFUL CARRYING OF HANDGUN BY LICENSE
    HOLDER. (a) A license holder commits an offense if the license holder
    carries a handgun on or about the license holder's person under the
    authority of Subchapter H, Chapter 411, Government Code, and
    intentionally fails to conceal the handgun.

    ******

    I read that as making it illegal to not conceal your handgun in a place where it is required by law to be concealed. So...you obviously couldn't show your pal your new gun in the WalMart parking lot. Can you show him in your home...yes. Can you show him in HIS home...technically speaking...I don't know. Can you show him on other private property... I don't know.

    It's an interesting issue and maybe there are some smart folks here who know the Texas law as it pertains to this issue. (Whether it should be legal or should not be legal...that's another discussion. It is what it is, until it aint.)

    Mike
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    VIP Member Array ghost tracker's Avatar
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    There's a difference in having a Constitutional Right and a sense of personal entitlement. It's your employers right to set the rules because YOUR check comes from HIS account. If you are on the clock & have an reasonable expectation to be paid, then he has a equally reasonable expectation that you will follow his written guidelines. If you DON'T like his rules the answer is very simple. Become self-employed, let your check come from your OWN account, and set any rules you please.
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    Senior Member Array Gaius's Avatar
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    ArmyMan, you raise an interesting issue. Although the rules vary state to state, as a general proposition, if you work in an "employee at will state", consider the following.

    You have a valid CCW license. Your employer tells all employees that any employee who carries a concealed gun, anywhere, at any time, and in any place, will be fired. Can the employer do that? As a general rule, the answer is yes. But this seems to include off premisses non-work related legal activities. I know. The Indiana cigarette case is a case in point. The owner of the company did not like people who smoked. He told his employees that any one who smoked, any time, any place, anywhere, including within their own homes, could be fired. Under the employee at will rules, this was permitted. Don't like my policy? Work somewhere else. (I might add that the state legislature apparently was somewhat outraged over this and limited a company's right to so act, at least in the case of tobacco.) Have fun with this.
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