FLASH: Court rules against employer – Employee’s gun rights protected

A Federal district Court has ruled that a former Ohio UPS employee’s case alleging wrongful termination for a firearm at work may proceed.

The court found that the public policy of Ohio permitting citizens to bear arms, as stated in Article I, Section 4 of the Ohio constitution, is clear enough to form the basis of a wrongful termination claim.

From Volokh.com:

A federal district court has just applied this principle to hold that Ohioans — even ones employed by private employers — are presumptively protected from being fired for off-employer-property (and presumably off-duty and lawful) possession of guns.

Plona, an Ohio resident, was employed by UPS at a facility in Cleveland, Ohio.... Plona ... was terminated in April 2006, allegedly because UPS discovered that Plona had a handgun in his vehicle while at work. Plona alleges that he had the handgun, which was disassembled and unloaded, and locked in his car in a public-access parking lot used by both UPS employees like Plona and non-employees/customers of UPS. On the day of his termination, UPS announced that law enforcement would be conducting a routine search of all persons and property on UPS premises for contraband. When Plona informed law enforcement about the handgun locked in his car, and the handgun was then discovered, he was terminated....

The Plona case is interesting, and exciting, for gun owners in Ohio. We should caution you, however, that this decision is far from final. The only thing the decision did was rule that UPS was not entitled to summary judgment. This is among the easiest of burdens to carry, and does not equate into winning the battle long term.

We do think, however, that perhaps the door has been opened for a long term challenge to employer parking lot bans. In the Plona opinion, Judge Aldrich talks about how it is impermissible to tamper with an employee’s right outside the workplace. In fact, quite a bit of ink is used in analyzing a prior case, which dealt with limiting speech at work, with the UPS case. As the Judge said:

The point, however, is not who is burdening the right, but where the burden takes place. Petrovski concerned speech made at the workplace while at work, which employers have an interest in controlling, and which is subject to greater regulation by that employer than speech of employee while not at work…. Burdens on employees while at work do not jeopardize their rights; they are instead permissible limits on the rights enshrined in the Ohio constitution……On the other hand, punishing employees for exercising constitutional rights while outside the workplace jeopardizes public policy to a much greater degree. (emphasis in original)

The reason this is an exciting development for gun owners is that the carrying of a firearm is not one that can be magically resumed after work. In the Petrovski case, which dealt with free speech, we were dealing with a right that could be suspended while at work and immediately resumed after work. That is not possible with firearms. If an employer bans you from having a firearm while at work, they have necessarily banned you from having a firearm coming to and from work.

Judge Aldrich already said, in the Plona case, that the employer policy would be invalid if it prohibited firearm possession while at home. Parking lot bans are just one slight degree of separation from that – they ban you from exercising your rights from the time you leave for work in the morning until the time you arrive home from work in the morning. In our minds, that is a distinction without a difference. What would the Petrovski case have been like if the employee policy banned free speech from the time the employee left in the morning until the time they arrived back home, versus from the time they were on employer property to the time they were off employer property?

This also poses tantalizing possibilities for landlords who ban firearms. It is already illegal to refuse to rent to someone because of their race or religion, why is it legal to discriminate against those who are exercising rights?

Related story: What Business Owners Need to Know About CCW

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