Parking Lot Laws: Their Content and Applicability

Last week’s blog on parking lot laws, state laws that prevent property owners or employers from banning firearms in parked vehicles in company parking lots, provided an overview of the history of these laws. Since Oklahoma enacted the first parking lot law in 2004, such laws have become widespread; nearly half the states have passed similar legislation, but the specifics of the laws vary from state to state. This post will describe the current landscape of these laws in the United States today: what they say, who they apply to, and what exceptions these various statutes provide.

Twenty-four states currently have some form of parking lot law in effect. One additional state, Idaho, does not have a parking lot law, but does explicitly grant immunity to employers who allow employees to store firearms in motor vehicles in the employers’ parking lots. The most recent state to enact a parking lot law was West Virginia in 2018, while the Wyoming and Iowa legislatures both recently considered parking lot laws.

Of the twenty-four states with parking lot laws currently in effect, ten states regulate only the conduct of employers; one state, Virginia, regulates only “localities” (cities, counties, etc.) who act as employers; and thirteen states broadly regulate the conduct of groups such as property owners, business entities, operators of private establishments, or all individuals. Fourteen states’ parking lot laws prohibit bans that apply to all individuals (or all individuals who can legally possess and carry firearms), while eight protect only employees. Florida’s parking lot law protects customers, employees, and invitees, while Georgia’s protects employees and invited guests.

 

Ten states’ parking lot laws require that a firearm stored in a vehicle in a company parking lot be stored out of sight, while one more (Louisiana) states that an employer can implement a policy that the firearm be stored out of sight. Nineteen states require that the vehicle be locked or that the firearm be stored in a locked compartment.

Eighteen states grant employers or property owners immunity from liability for any injuries resulting from the storage of a firearm in a vehicle in a parking lot.

In addition to banning policies that prevent employees from storing guns in vehicles in parking lots, three states, Florida, North Dakota, and West Virginia, also prohibit inquiries about firearms that may be stored in vehicles. These states also prevent employers from searching employees’ vehicles for firearms; searches must be conducted by law enforcement officers. Additionally, instead of preventing employers from implementing policies that ban firearms in parking lots, Georgia’s parking lot law bans employers from searching employees’ vehicles, accomplishing a similar goal by removing the only reasonable means by which to enforce such a policy.

Seventeen states with parking lot laws, all but Arkansas, Illinois, Kansas, Minnesota, Ohio, Oklahoma, West Virginia, and Wisconsin, provide at least one exception under which an employer or property owner can prohibit the storage of firearms in a vehicle in a parking lot. The most common exceptions allow employers or property owners to ban the storage of firearms in vehicles owned or leased by an employer, or in areas where firearms are prohibited by federal law. Certain types of employers who “require[] a certain level of safety,” such as schools and child care centers, detention and correctional facilities, nuclear generating stations, employers who work with explosive or combustibles, employers who work in national defense, aerospace, or homeland security, and employers who work out of their homes, are often allowed to ban firearms from parking lots. Finally, three states, Arizona, Louisiana, and Utah, allow employers to ban firearms in a parking lot if they provide an alternative parking lot or storage area specifically for firearm storage.

While there is little litigation surrounding parking lot laws, in McIntyre v. Nissan North America, Inc., a case decided just a few weeks ago, an employee filed a wrongful discharge claim against his Mississippi employer after he was fired for keeping a gun in his vehicle in the company parking lot, which was surrounded by barbed wire, monitored by security cameras, and “secured with retractable drop arms.” The employee alleged a violation of Mississippi’s parking lot law, which states that employers “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.” However, the law also contains an exception allowing employers to “prohibit an employee from transporting or storing a firearm in a vehicle in a parking lot . . . to which access is restricted or limited.” On appeal, the Fifth Circuit affirmed the district court’s grant of summary judgment for the employer, holding that the exception applied and the employee was not protected by the parking lot law because the employer’s parking lot was secured.

While parking lot laws are prevalent throughout the United States, McIntyre provides one example of the many ways in which these statutes vary from state to state. The simple idea behind parking lot laws—that employers cannot prevent employees from storing firearms in their vehicles—leaves plenty of room for nuance in practice.




Parking Lot Laws: A History

Parking lot laws, also called “bring your gun to work” or “guns-at-work” laws, are state laws that prohibit property owners or employers from preventing individuals from storing firearms in their parked vehicles in the property owner or employer’s parking area. These laws subordinate employers and property owners’ right to regulate their own property to the right to bear arms. This blog post is the first of two describing the history of parking lot laws and the current landscape of such laws in the United States today.

Workplace violence, defined as “the act or threat of violence, ranging from verbal abuse to physical assaults directed toward persons at work or on duty,” is a significant threat to worker safety in the United States. In 2018, there were 453 workplace homicides in the United States, 351, or 77%, of which were intentional shootings. A study from 2005 found that “workplaces where guns were specifically permitted were 5 to 7 times more likely to be the site of a worker homicide [than] those where all weapons were prohibited.”

Employers have a significant interest in preventing workplace violence. In addition to causing employees physical and psychological harm, workplace violence can cause property damage, affect worker productivity and morale, and increase business costs associated with security and litigation. As of 2012, workplace violence in the United States is estimated to cost American employers more than $120 billion a year.

After a series of workplace shootings in the 1980s and 1990s, employers began to institute policies banning firearms from the workplace as part of a broader effort to prevent workplace violence. (In one of the most publicized incidents, a post office employee killed himself and fourteen others at his place of work in 1986, inspiring the phrase “going postal.”) For example, AOL’s Workplace Violence Prevention Policy stated that “[n]o weapons of any type are allowed in the [AOL] Call Center, or in the AOL parking lots, or while conducting AOL business,” and applied to “firearms of any kind.” Employees who violated these bans were often subject to termination.

In the 2006 case of Bastible v. Weyerhaeuser Co., for example, an Oklahoma employer terminated several employees after finding firearms in their vehicles in the employee parking lot in violation of a company policy prohibiting firearms on company property. The employees filed a complaint alleging that “their termination violated Oklahoma constitutional and statutory authority establishing their right to carry firearms,” but the district court granted summary judgment for the employer. On appeal, the Tenth Circuit affirmed the judgment, stating that “both the Oklahoma Constitution and the Oklahoma courts recognize that the right to bear arms is not unlimited, and, indeed, may be regulated.” (Although Oklahoma enacted laws allowing firearms in company parking lots prior to the appeal, the Tenth Circuit found that the laws did not retroactively protect the plaintiffs in this case.)

Terminations such as those in Bastible led to a push for protection for employees who wished to store firearms in their vehicles while at work. In fact, the attorney representing the Bastible plaintiffs submitted a provision to the Oklahoma Legislature to protect the right of “lawabiding gun owners . . . to transport firearms to and from work and park in the employer’s parking lot.” That proposal became the basis for the country’s first parking lot laws when the Oklahoma legislature in 2004 amended the Oklahoma Self-Defense Act, the statute that generally governs handgun possession in the state. The Act’s new provision provided that “[n]o person, property owner, tenant, employer, or business entity shall be permitted to establish any policy or rule that has the effect of prohibiting any person, except a convicted felon, from transporting and storing firearms in a locked vehicle on any property set aside for any vehicle.” The legislature also amended the Oklahoma Firearms Act of 1971 to include similar language.

Although several companies challenged the laws on the grounds that they violated fundamental property rights and were preempted by the federal Occupational Safety and Health Act,  the Tenth Circuit ultimately held in 2009 that Oklahoma’s parking lot laws were constitutional and were not preempted by federal law. Ever since Oklahoma passed the first parking lot laws, such laws have become widespread; twenty-three other states have enacted some form of parking lot law, while one additional state, Idaho, does not have a parking lot law but does grant immunity to employers who allow employees to store firearms in motor vehicles in parking lots.

The main debate over parking lot laws is between those who want to support workers exercising the right to “keep and bear arms during their daily routine throughout the day” and those who believe that such laws “infringe[] upon an employer’s private property rights.” In this context, the language surrounding the right to bear arms is largely focused on self-defense as “an individual right that [a] person should have,” while property owners are concerned about employee safety, liability and, perhaps, increased business costs. These concerns have remained largely the same over the last sixteen years, as proponents and opponents of parking lot laws have continued to debate whether such laws cause or prevent workplace violence, and whether the right to bear arms trumps the right to regulate one’s property.

Interestingly, parking lot laws have put businesses at odds with the National Rifle Association (NRA), which has blamed business owners’ fear of liability as the primary motivator behind opposition to parking lot laws. The NRA has actively campaigned against businesses who oppose parking lot laws, such as organizing boycotts against a group of companies that sought an injunction against Oklahoma’s parking lot laws and sending a mass mailing to its Oklahoma members asking them to “stop corporations from firing hunters and gun owners.” Similarly, the NRA has campaigned against at least one Republican politician who has advocated against a parking lot law, while allying with “pro-gun Democrats” in some states.

Next week, the second blog post will provide an overview of what parking lot laws look like from state to state, including who they apply to, what kind of behavior they regulate, and the various exceptions that allow employers to ban firearms from company parking lots in some circumstances.