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State’s at-will employment doctrine vulnerable in gun lawsuit

By TED CARTER

A federal lawsuit over the firing of an Aurora Flight Sciences worker for having a gun in his car at work could soon punch a large hole in Mississippi’s  150-year-old “at-will employment” doctrine.

While Robert Swindol’s suit against drone aircraft maker Aurora Flight Sciences is still under review by the U.S. Fifth Circuit Court of Appeals in New Orleans, the Mississippi Supreme Court’s answer to a key question in the suit seems to tilt the case in Swindol’s favor.

The Fifth Circuit Court of Appeals asked Mississippi’s highest court to answer whether a 2006 statute that expanded gun rights allows workers to keep firearms in their locked vehicles on company property.

» READ MORE: MEC, Manufacturers Association, Municipal League fear breach of fire-at-will doctrine

Yes, in most instances, the state Supreme Court said in an answer from the full court.

“While Mississippi is an at-will employment state, that doctrine is not absolute,” the court said in its March 23 reply.

“This court repeatedly has stated that the doctrine must yield to express legislative action and/or prohibition found in federal or state law.

We find that such ‘express legislative action’ and ‘state law prohibitions’ exist here.”

The Supreme Court also found the fire-at-will doctrine does not protect Aurora in this instance.

This is because in 2006 either knowingly or unknowingly diminished the employment-at-will doctrine that lets employers fire workers for a reason or no reason.

A victory for Swindol would mark the first breaches of the at-will employment doctrine in 22 years.  Those exceptions established in 1993 specify that employers can’t discharge employees who refuse to participate in an illegal act, and can’t discharge employees who report illegal acts to the employer or to anyone else.

The state high court’s creation of a new exception to the fire-at-will doctrine marked a reversal of fortunes for Swindol and his Tupelo lawyer, David O. Butts Jr. Chief Judge Sharion Aycock of the Northern District of Mississippi in 2014 dismissed both the employment suit and a defamation suit. Swindol had sued Aurora on a slander claim after the company had called workers together to warn that Swindol had been fired for a firearms violation and could be a security risk.

Swindol appealed to the Fifth Circuit. His suit would have been heard in Mississippi courts had Aurora not been headquartered out of state in Manassas, Va. Swindol worked at the aerospace company’s Columbus plant.

Gulfport labor attorney Steven Cupp specializes in defending companies in employment suits. He said he thinks Swindol has the edge, especially with the Mississippi Supreme Court ruling his right under Mississippi law to possess a firearm in a locked vehicle trumps the at-will employment doctrine. Cupp said he expects the U.S. 5th Circuit will return the case to Aycock for a rehearing in which the conclusions the state Supreme Court made must guide her treatment of the case.

“If I was a betting man I would say that is how this will be resolved,” said Cupp of Fisher & Phillips, referring to the likelihood that Swindol will prevail.

“From the defense side, as an attorney I would be looking at this and saying, ‘Let’s settle this thing. Let’s try to get rid of this and regroup,’” he added.

Aurora Flight Sciences may have relied too much on an immunity clause included in the 2006 Mississippi firearms statute that freed employees from liability for shootings that occur on company property. “The statute says no liability should accrue to the employer for an employee’s transportation, storage or use” of a firearm on company property, Cupp said.

“The employer said this gave it protection from you suing me,” he said.

Aurora’s defense, however, ran up against a provision of the 2006 state law that authorized employers to prohibit workers from having guns in their vehicles when entering a company parking lot that has a guard gate, guard house, fence or other protections for workers.

Had Aurora secured its parking lot, the defense would not have been immunity, said Cupp’s Fisher & Phillips colleague Jaklyn Wrigley, who also specializes in employment law.

“Since Aurora’s parking lacked the protections articulated by the statutes, Swindol was lawfully permitted to keep a firearm in a locked vehicle in the company parking lot,” Wrigley said.

Swindol’s case and the exception to the at-will employment doctrine it has brought created new questions for employers to address. Here are several of them compiled by Cupp and Wrigley:

» What happens if your general liability insurance carrier or workers’ compensation carrier mandates that you have a “no firearms” policy? The Hobson’s Choice here, Cupp said, is whether you are going to have a firearms prohibition in place just to satisfy the insurance carrier but not enforce it.

» Does the statute allow an employee to store in a locked vehicle just one firearm or can it be multiple firearms?

“It doesn’t address if it is one firearm or multiple firearms,” Wrigley said.

» Does the firearm have to be a legal firearm?

» Does the statute really protect you from liability if an employee injures or kills other employees or third-parties with the firearm that is stored in the vehicle?

“We’re not exactly sure what will be the case,” Cupp said.

» Just what is an “occurrence” that is shielded from liability?

Aurora Flight Sciences argued Swindol’s action and subsequent firing was an occurrence. “We are not going to read that as an occurrence protecting from liability,” Wrigley said.

» Can you require employees to self-identify if they have a firearm in their locked vehicle in the parking lot? Would you want to?

Trouble could be ahead if you have an employee who is quick to anger and keeps a gun in his car and you declined to implement protective measures, Wrigley said. “On the flip side, a plaintiff could sue and say you should have required them to self identify” as a way to protect employees.

Cupp noted that he has never had an employer client say the business requires employees to reveal whether they have a firearm in their vehicle.

» What happens if an employee references his or her firearm in a general workplace discussion as a means to intimidate other employees?  Both of the Fisher & Phillips lawyers say the employer would be free to fire this worker.

You still have the ability to terminate employees who intimidate other employees, especially with threats of violence, Cupp and Wrigley say. As to the other questions, you will have to weigh the risks against the benefits of prohibiting firearms in the workplace in this new frontier, they added.

Cupp said his advice to his employer clients has been to keep the no-guns-in-the-workplace policy in place. “But before discharging someone” for violating the policy talk to a lawyer, he advised.

“Let’s see how it shakes out,” he said. “It’s a little early for employers to ask should we scrap” a firearms ban.

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