United States: Guns at Work: The Implications of the Fifth Circuit's Recent Decision in Swindol v. Aurora Flight Sciences Corporation

The US Court of Appeals for the Fifth Circuit's recent decision in Swindol v. Aurora Flight Sciences Corporation casts new doubt on the enforceability of employer policies prohibiting employees from carrying firearms onto their employer's property.1 Applying Mississippi law, the Swindol court carved out an exception to the employment-at-will doctrine for employees who, consistent with state law but in violation of their employer's policy, store a firearm in a parked vehicle on the employer's premises.2

The decision is particularly significant in that the court held that employees may sue their employers for adverse employment actions that are inconsistent with Mississippi's "guns-at-work" statute.3 Section 45-9-55 of the Mississippi Code provides, in relevant part, that "a public or private employer may not establish, maintain, or enforce any policy or rule that has the effect of prohibiting a person from transporting or storing a firearm in a locked vehicle in any parking lot, parking garage, or other designated parking area."4

At least 15 other states have enacted statutes which, similar to Section 45-9-55, constrain an employer's ability to restrict guns on its premises.5 Prior to Swindol, courts that had examined this issue had declined to create a private cause of action for employees who were penalized for carrying firearms onto their employer's property.6

Swindol brings into sharp focus the tension between two competing public policies: employees' Second Amendment rights and employers' efforts to avoid workplace violence. According to the Bureau of Labor Statistics, an average of 551 workers are killed each year as result of workplace shootings.7 Employers can be held liable for their employees' acts of violence at the workplace under various legal theories, including violations of the federal Occupational Safety and Health Act and various state law tort theories, such as negligent hiring, negligent supervision and negligent retention.8 To manage their legal risks and to provide a safe workplace for their employees, many employers have implemented policies barring employees from bringing firearms onto the employer's premises.

In Swindol, the plaintiff, Robert Swindol, was an employee of defendant Aurora Flight Sciences Corporation (Aurora).9 Aurora terminated Swindol's employment after discovering a firearm in his vehicle parked on Aurora's property, in violation of company policy prohibiting firearms on its premises.10 Swindol filed suit against Aurora in the US District Court for the Northern District of Mississippi, asserting claims for wrongful discharge and defamation.11 Relying on Section 45-9-55, Swindol argued that Aurora's firearms policy was illegal and that the company had terminated his employment in violation of Mississippi's public policy favoring gun rights.12 Aurora moved to dismiss for failure to state a claim for relief under Fed. R. Civ. P. 12(b)(6), arguing that Section 45-9-55 did not create an exception to the at-will doctrine.13 The district court agreed with Aurora and dismissed the case.14 The Fifth Circuit reversed.

In the absence of controlling precedent, the Fifth Circuit certified the following question to the Mississippi Supreme Court, the state's highest court: "Whether in Mississippi an employer may be liable for a wrongful discharge of an employee for storing a firearm in a locked vehicle on company property in a manner that is consistent with Section 45-9-55."15 After reviewing the case law creating public policy exceptions to the at-will doctrine and the legislative history of the Section 45-9-55, the Supreme Court held that "[t]he Legislature has independently declared via Section 45-9-55 that terminating an employee for having a firearm inside his locked vehicle is legally impermissible."16 Accordingly, the Supreme Court concluded that "an employee is wrongfully discharged if terminated for an act specifically allowed by Mississippi law, the prohibition of which is specifically disallowed by . . . statutory law." 17

Applying this decision, the Fifth Circuit found that the statutory exception recognized by the Mississippi Supreme Court was akin to a public policy exception. Therefore, the US Court of Appeals for the Fifth Circuit determined that an at-will employee has the right to maintain an action for wrongful discharge if terminated based on a policy that violates Section 45-9-55.18 The Court of Appeals concluded that Swindol had stated a claim for wrongful discharge under Mississippi law.

What impact does the Swindol decision have on employers' workplace firearm policies? For Mississippi employers, it means that they cannot enforce employment policies that violate Section 45-9-55. The ruling thus constrains their ability to implement gun-free workplace policies. Although the Fifth Circuit's decision is not controlling outside Mississippi, employers in other states need to consider whether their workplace firearm policies are consistent with the applicable state laws addressing an employee's right to carry firearms. Courts in other states, particularly those with public policies favoring gun rights, could use the reasoning in Swindol to reach similar decisions. Importantly, employers—and particularly those with facilities in more than one state—should be mindful of these "guns-at-work laws" when crafting workplace firearm policies, employment agreements, employment policies and employee handbooks. Employers with employees in multiple states should consider tailoring separate firearm policies for each applicable jurisdiction.

At the same time, employers should not read Swindol too broadly. The decision only prohibits adverse actions against employees who violate policies prohibiting storage of firearms in parked vehicles. Indeed, most "guns-at-work laws" permit employers to maintain policies banning firearms from their actual work premises.19 For this reason, employers must be familiar with the details of the gun rights statutes in each state where their employees are located.

Footnotes

1. [Swindol v. Aurora Flight Scis. Corp., No. 14-60779, 2016 WL 4191136 (5th Cir. Aug. 8, 2016). ]

2. [Id. at, *2. The Fifth Circuit reached a similar conclusion in Parker v. Leaf River Cellulose, L.L.C., No. 15-60034, 2016 WL 4245455, at *1 (5th Cir. Aug. 10, 2016). Based on its decision in Swindol, the court vacated its prior order affirming the district court's dismissal of the plaintiff's wrongful discharge claim. ]

3. [Miss. Code. Ann. § 45-9-55 (West 2016). ]

4. [Id. ]

5. [Alaska Stat. § 18.65.800; Ariz. Rev. Stat. § 12-781 (A); Colo. Rev. Stat. § 18-12-214; Fla. Stat. § 790.251; Ga. Code § 16-11-135; Kan. Stat. § 75-7c10 ; Ky. Rev. Stat. § 237.106; La. Stat. § 32:292.1; Me. Rev. Stat. tit. 26, § 600; Minn. Stat. § 624.714; N.D. Cent. Code § 62.1-02-13; Okla. Stat. tit. 21, § 1289.7; Tenn. Code § 39-17-1359; Tex. Labor Code § 52.061; Wis. Stat. Ann. § 175.60. ]

6. [Bastible v. Weyerhaeuser Co., 437 F.3d 999, 1008 (10th Cir. 2006); Hansen v. Am. Online, Inc., 96 P.3d 950, 952(Utah 2004); Stewart v. FedEx Exp., 114 A.3d 424, 428 (Pa. Super. Ct. 2015), appeal denied, 126 A.3d 1285 (Pa. 2015); Bruley v. Vill. Green Mgmt. Co., 592 F. Supp. 2d 1381, 1387 (M.D. Fla. 2008), aff'd sub nom. Bruley v. LBK, LP, 333 F. App'x 491 (11th Cir. 2009).]

7. [US Bureau of Labor Statistics, Workplace Homicides from Shootings, January 2013, available at http://www.bls.gov/iif/oshwc/cfoi/osar0016.htm. ]

8. [Under OSH Act employers have a general duty to provide a safe workplace for their employees. 29 U.S.C. §654(a)(1) (2011). ]

9. [Swindol, 2016 WL 4191136, at *1. ]

10. [Id. ]

11. [Swindol v. Aurora Flight Scis. Corp., No. 1:13-CV-00237-SA-DAS, 2014 WL 4914089, at *1 (N.D. Miss. Sept. 30, 2014), aff'd in part, rev'd in part and remanded, No. 14-60779, 2016 WL 4191136 (5th Cir. Aug. 8, 2016). ]

12. [Id.at *3 ]

13. [Id. ]

14. [Id. at *1 ]

15. [Swindol v. Aurora Flight Scis. Corp., 805 F.3d 516, 523 (5th Cir. 2015), certified question answered, 194 So. 3d 847 (Miss. 2016). ]

16. [Swindol v. Aurora Flight Scis. Corp., 194 So. 3d 847, 854 (Miss. 2016). ]

17. [Id. ]

18. [Swindol, 2016 WL 4191136, at *2. ]

19. [Supra note 5. ]

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