Packin’ in the Parking Lot! Does the new Texas employee-gun law create employer liability under OSHA?

Beginning September 1, 2011, Texas law prohibits employers from banning firearms and ammunition from privately owned vehicles that are locked and parked in an employer provided parking lot or structure.  The new law provides six exceptions to this prohibition, allowing employers to continue ban firearms and ammunition under certain circumstances.  I’ll focus on just one, the exception allowing employers on “property owned or controlled by a person, other than the employer, that is subject to a valid, unexpired oil, gas, or other mineral lease that contains a provision prohibiting the possession of firearms on the property . . . .”

Because most small and independent business owners lease their office space, they may be exempt from the new law and may still be able to ban firearms and ammunition in parking lots IF the owner or person in control of the property (that is not the employer) has entered into a mineral lease (and here in Texas the odds are high that a mineral lease exists) AND that mineral lease prohibits firearms from being brought onto the premises.  While prohibition of firearms is not a standard mineral lease provision, it was at least common enough that an exception was built into the law.

The law also exempts an employer from civil liability for injuries caused by the actions of employees exercising their rights under the new law.

Don’t get too excited about the civil-liability exemption.

Department of Labor statistics show that workplace violence is one of the top leading cause of workplace related injury and death.    This year legislation to overhaul OSHA was introduced in both the House (H.R. 190) and the Senate (S. 1166).  Within that legislation are higher civil and criminal penalties for violations.  Recent comments by Secretary of Labor Hilda L. Solis indicate that not only has she beefed up her investigative-staff headcount, her department is going to aggressively pursue criminal charges for safety violations by “re-invigorating OSHA. We’re doing everything we can to ramp up enforcement.”

In addition, effective September 8, 2011, for the first time, OSHA has implemented Enforcement Procedures for Investigating or Inspecting Workplace Violence Incidents.  Page 8 of the procedures states that

[e]mployers may be found in violation of the general duty clause if they fail to reduce or eliminate serious recognized hazards. Under this directive, inspectors should therefore gather evidence to demonstrate whether an employer recognized, either individually or through its industry, the existence of a potential workplace violence hazard affecting his or her employees. Furthermore, investigations should focus on the availability to employers of feasible means of preventing or minimizing such hazards. [emphasis added.]

The general duty clause of the act states that “[e]ach employer . . . shall furnish to each of his employees . . . a place of employment [that is] free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”

Taking all of the above into consideration, the question becomes:  Regardless of the liability exemption in the state law, will an employer be either civilly or criminal liable for violations of OSHA if the employer occupies space on land meeting the mineral-lease exception but fails to either investigate the lease provisions or ban firearm possession when a workplace injury or death occurs in a parking lot or parking structure due to an employee’s possession of a firearm?

Only time will tell.  But why take the chance?  Give your landlord a call today.

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