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Legal Report June 2009


CONCEALED WEAPONS. Two recent appellate decisions address the right of employers to prevent workers from bringing firearms onto company property. In one, a court upheld an Oklahoma law giving employees the right to have firearms in their cars at work. In the other, however, a court determined that Ohio state law does not protect an employee who was fired for keeping a gun in his car in a company parking lot.

The first case concerns a law enacted in Oklahoma in 2004. The law made it illegal for companies to prohibit workers from transporting and storing legally obtained and registered firearms in a locked vehicle in a company parking lot.

Several companies that operate facilities in Oklahoma joined together to file a lawsuit in which they charged that the law violated a company’s private property rights. The companies also claimed that the law contradicted the “general duty” clause of the Occupational Safety and Health Act of 1970 (the OSH Act).

The U.S. District Court for the Northern District of Oklahoma ruled that the law did not violate the property rights of the plaintiffs, because the companies did not present proof that they had been economically harmed by the law. However, the court ruled that the law does prevent a company from complying with the OSH Act. The act requires that companies mitigate possible hazards in an effort to prevent workplace violence.

In the written opinion of the decision, the court said that it could “imagine no other condition on company property that more significantly increases the risk of death or serious bodily harm to employees in a situation involving workplace violence.” In issuing a permanent injunction invalidating the state law, the court noted that the measure “criminally prohibits an effective method of reducing gun-related workplace injuries and cannot coexist with federal obligations and objectives.”

The state appealed the decision. The U.S. Court of Appeals for the Tenth Circuit overturned the lower court’s ruling and rescinded the permanent injunction. The appellate court ruled that the lower court had erred in assuming that the OSH Act prevented the storage of firearms in company parking lots.

The Occupational Safety and Health Administration (OSHA), which was established under the OSH Act, has not specifically issued guidelines on the topic, noted the court. The court also pointed out that OSHA refused to give such guidance when asked about the issue. Instead, the agency stressed that voluntary measures be taken in cooperation with law enforcement agencies. In the written opinion of the decision, the court noted that “OSHA is aware of the controversy surrounding firearms in the workplace and has consciously decided not to adopt a standard.” (Ramsey Winch Inc. v. Henry, U.S. Court of Appeals for the Tenth Circuit, No. 07-5166, 2009)

The second case involved Gary Plona, who worked at a United Parcel Service (UPS) facility in Cleveland, Ohio. UPS had a written policy prohibiting its employees from possessing firearms on its property, specifically in company parking lots. Plona signed a form acknowledging that he was aware of this policy.

In April 2006, local sheriff’s deputies conducted a search of cars in the parking lot using a K-9 unit. The dogs identified Plona’s car as one that might contain contraband. The deputies found an unloaded pistol in the car. Plona had not registered the gun and did not have a permit to carry a concealed weapon.

UPS representatives met with Plona regarding the weapon. Plona admitted that he was aware of the UPS policy regarding weapons and had knowingly left the gun in his car. UPS fired Plona.

Plona filed a lawsuit for wrongful discharge, claiming that the UPS weapons policy was in violation of the Ohio state constitution. Plona argued that the constitution provides state citizens with the right to bear arms. Because the UPS policy impinges on this right, according to Plona, the company had violated public policy when it fired him.

UPS requested summary judgment—a hearing based on the facts of a case without a trial. The U.S. District Court for the Northern District of Ohio granted the summary judgment, ruling that Plona could not demonstrate that a clear public policy had been violated by his termination. Plona appealed.

The U.S. Court of Appeals for the Sixth Circuit upheld the lower court’s ruling. The appeals court found that while Ohio does provide a general right to bear arms, it does not allow “employees to possess firearms on the premises of their private employers.” The court also noted that state law specifically allowed employers to limit firearms on their property. (Plona v. United Parcel Service, U.S. Court of Appeals for the Sixth Circuit, No. 08-3512, 2009)


PRIVACY OFFICER. A bill (H.R. 1617) introduced by Rep. Christopher Carney (D-PA) that would create positions for privacy officials within the Department of Homeland Security (DHS) has been approved by the House of Representatives. The Senate has not announced whether it will consider the bill.

Under the measure, the government would establish positions for full-time privacy officials for each of the agencies within DHS. The privacy officials would advise the agencies on the privacy implications of any laws, regulations, and guidelines they implement or enforce. The officials would also monitor the use of technologies within the agencies to ensure that data is secure.

BORDER SECURITY. A bill (H.R. 1148) introduced by Rep. Gus Bilirakis (R-FL) that concerns a maritime biometrics program to be used for border security has been approved by the House of Representatives. The measure is now pending in the Senate Commerce, Science, and Transportation Committee.

H.R. 1148 would require that the Department of Homeland Security evaluate whether to expand a successful pilot program established by the Coast Guard. In the program, the Coast Guard obtained the fingerprints of illegal aliens attempting to enter Puerto Rico from the Dominican Republic. Using a handheld fingerprint scanner, the Coast Guard uploaded the data via a satellite link and compared it to the government terrorist database. Over the course of the project—from November 2006 to March 2009—the Coast Guard scanned the fingerprints of 2,455 people. Of those, 600 were found to have outstanding warrants in the United States. Forty-five percent of these, approximately 270 people, were brought to the United States and successfully prosecuted.

Under H.R. 1148, the government would provide a report to Congress on the feasibility of expanding the project to other Coast Guard vessels.

RETAIL THEFT. Three bills currently under consideration in Congress would establish programs to combat organized retail theft.

One bill (S. 470) introduced by Sen. Richard Durbin (D-IL) would make organized retail theft a federal crime. The bill would also require that owners of retail marketplaces or online sales outlets review suspicious vendors. If they find evidence that the vendor is selling stolen goods, owners must notify the attorney general within five days. Marketplace owners must also prevent those vendors from selling the goods or request documentation from the vendor that the items were legitimately obtained.

S. 470 has one cosponsor and has been referred to the Senate Judiciary Committee.

Another bill (H.R. 1173) introduced by Rep. Brad Ellsworth (D-IN) would also make organized retail theft a federal crime. In addition, it would expand the crime of fraud to include the use of gift cards, UPC codes, and RFID technology to illegally obtain goods or services.

The bill would require that operators of online marketplaces and retailers who sell high-volume goods report their sales activities to the government. (High-volume sellers would be defined as those who sell more than $12,000 in goods a year.) In addition, the measure would provide for civil forfeiture of any property used to commit or facilitate organized retail theft. Businesses whose goods or services were illegally sold online as a result of an organized retail theft operation would be allowed to seek compensatory damages.

H.R. 1173 has five cosponsors and has been referred to the House Judiciary Committee’s Subcommittee on Crime, Terrorism, and Homeland Security.

A third bill (H.R. 1166) introduced by Rep. Robert C. Scott (D-VA) would require that owners of online marketplaces disclose contact information for all high-volume sellers. High-volume sellers are defined as those who sell more than $12,000 in goods a year or single items worth more than $5,000 each. If marketplace owners suspect that a seller acquired goods illegally, the owner would be required to block that seller from the site.

H.R. 1166 has two cosponsors and has been referred to the House Judiciary Committee’s Subcommittee on Crime, Terrorism, and Homeland Security.

FEMA. A bill (H.R. 1174) introduced by Rep. James Oberstar (D-MN) would reestablish the Federal Emergency Management Agency (FEMA) as an independent agency within the Executive Branch. (FEMA was placed under the Department of Homeland Security after the 9-11 attacks.) The bill would also restate FEMA’s mission to reduce the loss of life and property and protect the nation from all hazards both natural and man-made.

H.R. 1174 has 26 cosponsors and has been referred to the House Transportation and Infrastructure Committee and the House Homeland Security Committee. A companion bill (S. 412) introduced by Sen. James Inhofe (R-OK) has no cosponsors and has been referred to the Senate Homeland Security and Governmental Affairs Committee.



IDENTITY THEFT. New regulations implemented in Massachusetts require that companies encrypt documents sent over the Internet or saved on laptops or flash drives. Data transmitted wirelessly must also be protected and firewalls must be up-to-date.

Companies were required to meet most of the regulations by May of this year, but the deadline for some items has been extended. For example, all data stored on laptops must be encrypted now, but the requirement to encrypt data on other portable devices has been delayed until January 1, 2010.

North Dakota

CONTRABAND. A new bill (S.B. 2114) introduced in North Dakota would make it illegal for an inmate in a correctional facility to manufacture, possess, or use any type of wireless communication device. The measure would also make it illegal for anyone to deliver or attempt to deliver such a device to an inmate.

This column should not be construed as legal or legislative advice.