The Texas House of Representatives recently passed legislation (H.B. 910) that will allow holders of a concealed handgun license to carry holstered handguns in plain view. The Texas Senate passed its version of the “open carry” law (S.B. 17) in April 2015. The bills will proceed to conference committee where they will be reconciled. While Texas Governor Greg Abbott has yet to sign a final version of the open carry law, he has promised to do so via Twitter, stating “Open Carry just passed in both the Texas House & Senate. Next destination: My Pen.” The open carry law, once signed by Governor Abbott and unless altered by any subsequent revision in committee, is set to go into effect on September 1, 2015, at which point Texas will become the 45th state to permit open carry. So, what does this mean for employers?
In 2011, Texas passed legislation that restricted employers from prohibiting employees from storing lawfully possessed firearms and ammunition in vehicles parked in the employer’s parking lot (or garage or other lot provided by the employer). Specifically, the 2011 law permits the possessor of a firearm or ammunition to store those items in a locked, privately owned car, and required that the possessor hold a concealed handgun license.
The open carry law, while permitting concealed handgun licensees to carry a holstered firearm, also allows public and private employers to prohibit licensees from carrying their firearms onto the “premises” of the business. Under the definition set forth in the Texas Penal Code, “premises” includes “the building or a portion of the building.” The term, however, “does not include any public or private driveway, street, sidewalk or walkway, parking lot, parking garage, or other parking area.”
One item not present in the open carry law—that was present in the 2011 legislation pertaining to firearm and ammunition storage—is a provision granting employers immunity from civil actions resulting from an occurrence involving the employee and his or her openly carried firearm. The 2011 law expressly includes a provision that provides employers with such immunity, except in cases of gross negligence. That immunity, however, applies only to firearms and ammunition stored or transported in an employee’s vehicle and does not address an occurrence involving an employee who is openly carrying a firearm. This absence of immunity in the open carry legislation should be a key consideration for employers contemplating whether they will allow employees to openly carry firearms on their premises.
The open carry legislation, similar to the 2011 law, does not create a private cause of action for employees against their employer if the employee contends that his or her right to openly carry has been infringed. Thus, it seems that an employee’s only remedy would be to report the employer’s alleged violation (e.g., a policy banning firearms from being openly carried or stored in the employer’s parking lot) to the Attorney General’s office.
Given these considerations and Governor Abbott’s promise to sign the legislation, employers should be prepared to handle the law’s requirements in the workplace by first deciding whether they will permit licensed employees to openly carry firearms on their premises. Once an employer makes this decision, it should then draft and distribute to its employees a policy that clearly sets forth the employer’s rules with regard to openly carried firearms. As a best practice, the policy should include an employee acknowledgment so that the employer has record that the employee received it.
The open carry law does not apply only to employees; employers may also prohibit “persons who are licensed” (including visitors) from openly carrying firearms on their premises. Thus, employers must decide whether they will allow visitors to their premises to openly carry firearms and how such policy will be communicated (e.g., orally or by a sign posted at the entrance of the premises). Please note that the open carry law passed by the Texas House of Representatives and the Texas Senate is being reconciled in committee and a final version of the legislation has not yet been signed into law.