Open carry is the right of a licensed gun owner to carry a gun in plain sight. Recently some gun advocates have sought to stretch that legal right. Take the two men that walked into a Dearborn police station last month with body armor on and rifles in hand to allegedly demonstrate their right to do so. And ASE recently took a call from a business that serves the public and had a man come into their store with a gun holstered to their waist. Another customer complained that they were uncomfortable with the weapon being near them. When the manager asked the customer carrying the gun to please put it somewhere that was not visible to other customers, the gun owner stated that he had a right to carry his weapon openly because Michigan state law allowed him to do so. Both parties were correct to some extent; however, the person carrying the weapon onto the particular property assumed they were in a public place where his right to carry followed him in – not so correct under Michigan law.

Employers need to be cognizant of state law regarding carrying weapons “in public.” State laws vary on what rights property owners have (substitute employer for property owner) and what rights the gun owner has to carry his/her weapon onto another’s property. In a case handed down last week from the Sixth Circuit Court of Appeals, a decision was handed down that protects an employer’s right to control its property.

In Kentucky, pursuant to state law, an employee has the right to carry their weapon legally onto private property as long as they lock the weapon in their car and do not remove it while on the property. An employer cannot discipline or discharge an employee for doing so. However, on one particular day, the employee with the gun in their car removed it while in the parking lot and had a friend lock it in their car. The proffered reason for this transfer was the gun-owning employee was going out on service calls to customers and did not want to breach the customer’s policies on carrying of firearms. The employer found out about this transfer of the gun and suspended the employee.  After further investigation they terminated his employment.  The documented reasons for the termination by the employer was his poor performance and the fact he had asked a subordinate for a personal favor on company time.  They did not state that it was due to the employee removing the the gun from his car.

The employee sued for breach of the state’s public policy exception that protects employees from its at-will employment rules. The employee argued that the real reason for his termination was for bringing a firearm onto company premises, although it was legal. The Sixth Circuit Court of Appeals held that because he removed the gun from his vehicle while on company property, contrary to company rules, the employee lost his statutory protection from being discharged. Kentucky law has four exceptions to the right of property owners to control how a gun is situated on its property other than a car. The gun may be removed for use in self-defense, defense of someone else, in defense of property, or as authorized by the property owner. None of these circumstances applied in the plaintiff’s case, and therefore the employer could exercise its disciplinary policy and terminate the employee.

Employers in Michigan should be aware of the fact that Michigan is an open carry state. But similar to Kentucky, property owners rights supersede the gun owner’s right to carry on private property.  What can private employers do under Michigan law?  Michigan Open Carry, Inc. a pro open carry organization offers the following advisory information:

 Do "No Guns" signs on private property have the force of law in Michigan?

No (but it's complicated, read on). In Michigan law there is no special penalty or talk of "No Guns/Firearm" signs. That being said, there are a few reasons you shouldn't carry at a privately owned place where you see a "No Guns" sign:

1. There is the legal reason: if it can be proven beyond all reasonable doubt that you knew you couldn't carry there and you carry there anyhow (open or concealed), you could be charged with criminal trespass. See 750.552 Trespass upon lands or premises of another; violation; penalty.

   (1) A person shall not do any of the following:

(a) Enter the lands or premises of another without lawful authority after having     been forbidden so to do by the owner or occupant or the agent of the owner or occupant.
(b) Remain without lawful authority on the land or premises of another after being notified to depart by the owner or occupant or the agent of the owner or occupant.

(2) A person who violates subsection (1) is guilty of a misdemeanor punishable by imprisonment in the county jail for not more than 30 days or by a fine of not more than $250.00, or both.

The "No Guns" sign/policy establishes a condition on your "license" to use that private property. If you knowingly violate the terms of that license, you are now on private property without permission -- AKA trespass.

2. You're asked to leave by the owner/agent of the owner and you choose to not leave immediately. The police can then be called and you can be arrested for trespass. Typically when the police arrive they will ask you to leave before arresting you for trespass -- but this certainly does not have to be the case (it would just make the prosecution's case against you even better).

Employers should consider their weapons policy carefully. Will the employer respect a “hunting culture” that may exist in the area they do business in? Will having a no guns policy drive away business for a retail and a hospitality business?

ASE has sample employer policies that its members may consider for use. If you need a sample Weapons Policy please contact Kris Cifolleli or Michael Burns at ASE.

Sources: UPS Worker’s Conceal Carry Appeal Shot Down By 6th Circ. By Cara Bayles  Law360, New York (March 2, 2017); Michigan Open Carry, Inc website FAQ’s