• The Effects of Changes in Georgia Gun Laws on Georgia Businesses
  • June 30, 2010 | Authors: Chad C. Almy; DeWitt R. Rogers; Michael Drew Wooldridge
  • Law Firm: Troutman Sanders LLP - Atlanta Office
  • On June 4, 2010, Georgia Governor Sonny Perdue signed Senate Bill 308 (SB 308) into law, greatly expanding the areas in Georgia in which individuals may lawfully carry weapons(1) by revising O.C.G.A. §§ 16-11-125-135.  SB 308 represents a growing trend amongst state legislatures to increase individuals’ rights to carry guns and other weapons.  Specifically, in revised Code Section 16-11-126(a), SB 308 grants individuals who are “not prohibited by law to possess a handgun or long gun” the right to carry such weapons “inside his or her place of business.”  Additionally, revised Code Section 16-11-127(c) allows all license holders to carry weapons in “every location in this state” that is not a government building, courthouse, jail or prison, place of worship, mental health facility, bar, nuclear power facility, or polling place.  These rights are greatly limited, however, by revised Code Sections 16-11-126(d) & 16-11-127(c) which provide that “private property owners or persons in legal control of property through a lease, rental agreement, licensing agreement, contract, or any other agreement to control access to such property shall have the right to forbid possession of a weapon or long gun on their property, except as provided in Code Section 16-11-135.”  As far as businesses are concerned, this means that SB 308 does not create any new obligation to allow employees or customers to bring guns or other weapons onto their property.  In fact, with the exception of employees and invited guests, businesses have no obligation to allow anyone to bring any weapons onto their property at all.  Businesses’ obligations to their employees and invited guests under 16-11-135, the so called “Bring Your Gun to Work Law,” remain intact and were not altered by SB 308.  The following section will summarize Code Section 16-11-135 and serve as a reminder to employers of their obligations under that statute.

    O.C.G.A. § 16-11-135

    The statute grants employees and invited guests the right to carry licensed firearms onto an employer’s property, so long as the firearm is locked out of sight in the individual’s privately owned vehicle.  Employers are similarly prevented from conducting searches of employees’ automobiles, and from discriminating against employees for exercising their rights under the statute.  The statute also contains exemptions for similar classes of employers such as schools, correctional institutions, defense contractors, etc.  The statute does not define which weapons constitute firearms.  In other statutes, however, Georgia law defines “firearm” as “any rifle, shotgun, pistol, or similar device which propels a projectile or projectiles through the energy of an explosive.”  O.C.G.A. § 16-8-12(a)(6)(A)(iii).

    There are, however, broad exceptions to Code Section 16-11-135.  Employers that provide employees with (1) a secure parking area that restricts general public access or (2) with a parking area to which general access is conditioned upon uniform and frequent stops and searches of vehicles are exempt from the prohibitions of the act.  Additionally, and most significantly, the statute esoterically mentions in its last provision that it does not limit the ability of anyone (including employers) to restrict access to property over which they are legally in control through ownership, lease, rental or contract.  Many commentators believe this latter exception swallows the rule entirely, and that in its wake, virtually no employers are subject to the law.  It is unclear that this is the case, and judges do prefer to give meaning to all sections of a statute when interpreting it.  As a practical matter, however, it is uncertain what liability a Georgia employer might face even if it were found to have violated the statute.  First, the statute does not grant individual employees a private right of action to sue the employer on their own behalf (as similarly-worded statutes in other states do).  Also, even though the Attorney General is proscribed with the exclusive ability to bring claims to protect employees’ rights under the statute, no specific actions or damages are mentioned in the statute.  In the nearly two years since the statute has been law, no court has addressed these ambiguities.  Until these issues are resolved by a court, employers would be wise to take certain precautions in order to be in compliance with those portions of the statute likely to apply to them.

    Tips for Employer Compliance Under O.C.G.A. § 16-11-135

    1. Revise your existing weapons policy to state that “firearms and other weapons are prohibited on company premises except as authorized by law.”
    2. Consider posting your weapons policy at all public entrances in order to provide notice to customers and other individuals that weapons are not permitted on the property.
    3. Consistently enforce your weapons policy by immediately requesting that individuals carrying weapons vacate your premises until they no longer are in possession of the weapon.  Do not hesitate to call security or law enforcement if the individual does not cooperate immediately.
    4. Revise any policy giving the company a right to search an employee’s vehicle.  Remember, only law enforcement officers may search vehicles on an employer’s property to ascertain the presence of a firearm, and only then with a warrant or probable cause.  Under the statute, an employer may have the right to search an employee’s vehicle under the property owner’s exception (as well as other exceptions).  However, just as with many other aspects of that statute, the application of the property owner exception is unclear, and an employer would be wise to comply until further guidance is given by the courts.
    5. Don’t inquire into whether an employee is exercising their rights under this law.  Just as with the above note, an employer may have the right to do this under the property owner’s exception.  The prudent approach is to refrain from making such inquiries until the law is clarified in the courts.
    6. Reinforce existing “zero tolerance” policies regarding workplace violence.
    7. Take disciplinary action whenever an employee takes a firearm or other weapon out of his car.  Remember, the law only allows an employee to have the firearm or other weapon locked in his vehicle.  You can and should restrict firearms and other weapons from all other company property.
            (1) Weapon is defined by the statute as a “knife or handgun.”