Providing Developments & Insight on Trending Topics in Employment Law

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<img class="alignright wp-image-2581 size-medium" src="https://employmentlawspotlight.bakerhostetlerblogs.com/wp-content/uploads/sites/18/2016/02/Texas-iStock_000003162960_XXXLarge-300x240.jpg" alt="Texas iStock_000003162960_XXXLarge" width="300" height="240" />According to the Texas Department of Public Safety, there are now nearly a million licensed gun holders in Texas – an 825 percent increase from just 20 years ago. As of January 1, 2016, concealed license holders can now legally carry their handguns visibly in hip or shoulder holsters. A lot of clients have been asking us how Texas’s new open carry law affects them. After reviewing some of the recent discussions and articles posted on the topic, we found that there appears to be conflicting information out there that is causing the confusion. We decided to set the record straight. Here is everything employers need to know about concealed-carry and open-carry under the new law, and how employers can disarm both their employees and the general public (such as vendors, visitors, customers, contractors, and other third parties) who enter their premises.

Pre-Existing Texas Law: In 1995, the 74th Texas Legislature passed the original concealed handgun law (SB 60), which gave concealed handgun license (CHL) holders the right to carry concealed handguns in most public and private places. Since then, Texas law generally recognized an employer’s right to prevent employees from bringing weapons to the workplace. In 2011, however, the 82nd Texas Legislature passed a parking lot law (SB 321), which generally prevented employers from restricting an employee’s right to store legally owned firearms or ammunition in a privately owned vehicle parked in the employer’s parking lot or parking garage. Of course, employers could still prevent employees with a CHL from bringing a firearm onto their “premises” (i.e., a building or structure) or from storing a firearm in a company-provided vehicle. Most Texas employers subsequently amended their weapons and violence-free workplace policies to comply with SB 321.

New Open Carry Law: In 2015, the 84th Texas Legislature passed the new open carry law (HB 910), which went into effect on January 1, 2016. Basically, HB 910 authorizes anyone with a CHL to carry a handgun openly in all locations where they could previously carry a concealed handgun.[1] Thus, license holders in Texas can now carry a handgun almost everywhere as long as it is secured in a hip or shoulder holster. But it is still illegal for CHL holders to carry a handgun (openly or in a concealed manner) in certain places, including, but not limited to:
<ul>
	<li>Public schools (excluding college campuses)</li>
	<li>Hospitals and nursing home</li>
	<li>Collegiate and professional sporting events</li>
	<li>Correctional facilities</li>
	<li>Churches and synagogues</li>
	<li>Amusement parks</li>
	<li>Airports</li>
	<li>Government buildings</li>
</ul>
Can Employers Still Prohibit Employees from Bringing Firearms to Work? Yes – Texas employers still have the right to prohibit their employees from carrying a weapon (openly or in a concealed manner) onto the employers’ premises. And employers can still prohibit employees from storing firearms or ammunition in company-provided vehicles. But employees also still have the right to store legally owned firearms and ammunition in a privately owned vehicle parked in their employer’s parking lot or parking garage.

Do Employers Need to Update Their Employee Policies? Probably not – as long as the employer’s current policies comply with the 2011 Parking Lot law (SB 321), and include language prohibiting employees from possessing a weapon on the employer’s premises. The next time the employer updates its policies, however, it may want to revise its weapons policy to expressly prohibit employees both from possessing and carrying (openly or concealed) any weapons on the company’s premises. Here is some sample language: “The Company prohibits all employees from possessing or carrying (either openly or in a concealed manner) any weapon while on the Company’s premises, while at a client work location, while in any Company vehicle, or while acting as a Company representative at any Company-related activity, event, meeting, or function. This prohibition extends to all Company buildings, facilities, structures, and all other Company property to the extent permitted by law. This prohibition applies regardless of whether the individual is legally entitled to possess or carry a firearm or other deadly weapon.” As with the 2011 parking lot law, companies are not required to inform employees of their right to store a firearm or ammunition in a privately owned vehicle.

How Do Employers Prevent the General Public from Carrying Firearms? This is where it gets a bit more technical. A company can give verbal notice to any person (including vendors, visitors, customers, or contractors) that carrying firearms on its premises is prohibited. But because it is difficult to prove that verbal notice was ever given, companies should give written notice of the prohibition to every nonemployee entering the premises. It could be as simple as giving a card to anyone entering the premises stating that weapons are prohibited.

Do Employers Need to Post a Sign Prohibiting Firearms on the Premises? No – but it is recommended that companies go ahead and post signs anyway to be absolutely sure that everyone who enters the premises receives actual or constructive notice that the company prohibits anyone from carrying or possessing a weapon on the premises to the fullest extent of the law. Similarly, although companies can discipline or fire employees who violate their weapons policy, there is little companies can do to enforce the weapons policy against non-employees unless there are criminal consequences. To make it a criminal violation to carry a firearm onto the premises, the company must provide written notice using the precise language stated in Sections 30.06 and 30.07 of the Texas Penal Code.

What Are the Requirements of Tex. Pen. Code §§ 30.06 and 30.07? If the company wants to be absolutely sure that everyone entering their premises is aware that handguns are banned, and for criminal liability to attach, the company should post signs with the following language “in a conspicuous manner clearly visible to the public at each entrance to the property.”
<ul>
	<li>Concealed Carry Notice: “Pursuant to Section 30.06, Penal Code (trespass by license holder with a concealed handgun), a person licensed under Subchapter H, Chapter 411, Government Code (handgun licensing law), may not enter this property with a concealed handgun.”</li>
	<li>Open Carry Notice: “Pursuant to Section 30.07, Penal Code (trespass by license holder with an openly carried handgun), a person licensed under Section H, Chapter 411, Government Code (handgun licensing law), may not enter this property with a handgun that is carried openly.”[2]</li>
</ul>
Bottom Line: The major change in the law is that licensed handgun holders can now openly carry wherever they previously could carry a concealed handgun. Employers can still prohibit the possession or carrying of weapons by their employees through company policies. But in order to create a criminal deterrent for visitors, vendors, customers, contractors, and other third parties from carrying a firearm on the premises, companies must provide written notice using the precise language stated in Sections 30.06 and 30.07 of the Texas Penal Code. Although giving individual cards to nonemployee visitors with the statutory notice would be sufficient for criminal liability to attach, best practice would be to post signs at each entrance to the property.

The notices must be in both English and Spanish (so a total of four notices must be posted). They must appear in contrasting colors with block letters at least one inch in height.[3] Employers can order these signs from whomever the company typically purchases its workplace posters.

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[1] Technically, under the new open carry law, all CHLs became LTCs (License to Carry). For simplicity, this article refers to both a CHL and an LTC as a “CHL.”

[2] While it may seem redundant, companies must post both the TPC 30.06 (to prohibit concealed carry) and TPC 30.07 (to prohibit open carry) signs for written notice to be effective. If companies wish to prohibit only open carry (but allow concealed carry), they will need to post only the TPC 30.07 sign. Companies that already have a TPC 30.06 sign posted will need to post a new TPC 30.06 sign because the requisite language has changed slightly.

[3] Businesses that derive at least 51 percent of their revenue from liquor sales still need to post the “51 percent” sign pursuant to the requirements of the Texas Alcohol and Beverage Commission for felony criminal liability to attach.

How do Employers Disarm Their Employees and the General Public Under Texas’s New Open Carry Law?