[Eugene Volokh, March 6, 2009 at 12:54pm] Trackbacks
Firing an Employee for Gun Possession in Car Parked on Company-Controlled Parking Lot
is just fine, holds the U.S. Court of Appeals for the Sixth Circuit in Plona v. UPS. This is the latest phase in a case I noted two years ago (though that post came before it became clear that the parking lot was indeed company-controlled). Here's the relevant discussion:
Ohio has traditionally adhered to the employment-at-will doctrine, which permits an employer to terminate an at-will employment relationship “for any cause, at any time whatsoever, even if done in gross or reckless disregard of [an] employee’s rights.” But ... the Ohio Supreme Court [has] carved out an exception to the employment-at-will doctrine for situations where the employee’s discharge contravenes public policy. To maintain [such a] claim, a plaintiff must establish: (1) the existence of a clear public policy manifested in a state or federal constitution, statute or administrative regulation, or in the common law (the “clarity element”); (2) that a dismissal under circumstances similar to the plaintiff’s dismissal would jeopardize the public policy (the “jeopardy element”); (3) that the plaintiff’s dismissal was motivated by conduct related to the public policy (the “causation element”); and (4) that the employer lacked an overriding legitimate business justification for the dismissal (the “overriding justification element”). The clarity and jeopardy elements are questions of law to be decided by the court.
Here, Plona asserts that the “clear public policy” at issue is manifested in the Ohio Constitution, Article I, § 4, which states that “[t]he people have the right to bear arms for their defense and security ....” He reasons that UPS violated this policy by terminating him for possessing an unloaded firearm in a parking lot that he characterizes as quasi-public property by virtue of its use by UPS customers and its ownership by a party other than UPS.
Plona’s argument is without merit. Although the Ohio Constitution provides a general right to bear arms, the state certainly does not have a “clear public policy” of allowing employees to possess firearms on the premises of their private employers. To the contrary, the Ohio legislature has specifically provided that employers may limit their employees’ rights to bear arms:
Nothing in this section shall negate or restrict a rule, policy, or practice of a private employer that is not a private college, university, or other institution of higher education concerning or prohibiting the presence of firearms on the private employer’s premises or property, including motor vehicles owned by the private employer.
Plona does not dispute that the parking lot in question is owned by UPS’s wholly owned subsidiary BT-OH, or that the lease between UPS and BT-OH affords UPS full control over the parking lot. UPS was thus plainly within its rights, as codified in § 2923.126(C)(1), to prohibit its employees from possessing firearms in the parking area. Because Plona cannot show that UPS violated a clear public policy of the state of Ohio, his wrongful-termination claim fails as a matter of law.
By the way, to anticipate the likely "of course no court would ever hold this as to other rights, such as free speech" arguments: In most states, nongovernmental employers are allowed to fire employees based on their speech, even speech that's entirely outside employer property. (For a list of the states that take a contrary view, see this post chain; I had hoped to blog about more of the statutes than I noted there, but didn't have a chance to.) There's certainly no constitutional constraint on firing employees for their off-the-job speech -- the Bill of Rights generally applies only to government entities, not private employers -- and there's no federal statutory constraint on it (except as to a few types of speech, such as union advocacy).
The matter varies as to other constitutional rights:
Free exercise of religion: Federal antidiscrimination statutes (and similar statutes in many states) generally does bar employers from firing employees based on the employees' religion, including the employees' religious practices, and even some on-the-job practices (though it depends on whether accommodating the practice would be unduly burdensome to the employer).
Right to get pregnant, and right to abortion: A federal antidiscrimination statute (and similar statutes in many states) also generally bans discrimination based on pregnancy, which some courts have interpreted as covering discrimination based on abortion. See, e.g., Doe v. C.A.R.S. Protection Plus, Inc., 527 F.3d 358 (8th Cir. 2008).
Right to marry, or not to marry: Quite a few states' statutes also bar employers from firing employees based on employees' marital status.
Right to sexual autonomy: Quite a few states' statutes bar employers from firing employees based on employees' sexual orientation, which would presumably cover firings based on at least certain kinds of exercises of the right to sexual autonomy. Some states also ban discrimination based on lawful off-premises recreational conduct, which might cover some firings for sexual activity.
Other rights: I know of no laws that bar employers from firing employees for the exercise of a right to self-incrimination, or a right to refuse to allow the police to search the employee's property, and the like.
So courts generally have not barred private employers from firing people based on the exercise of their constitutional rights (or, to be precise, their rights to do things free of government restriction). Congress has, as to a few rights (free exercise of religion, free speech as to labor matters in many contexts, reproductive rights). Some but by no means all state legislatures have, as to a few more rights (right to marry, right to sexual autonomy, and, in fewer states, freedom of speech). And a few states have done this as to the right to bear arms, even in some states on company parking lots. But the only general pattern here is that these rules are almost always created by legislatures and not by courts (with a few exceptions for things such as jury service and whistleblowing to government agencies, and even that not always).
http://volokh.com/posts/1236362082.shtml
