Take Your Gun To Work and Leave it in the Parking Lot: Why the OSH Act does not Preempt State Guns-at-Work Laws

Dayna B. Royal, Samford University, Cumberland School of Law

Abstract

TAKE YOUR GUN TO WORK AND LEAVE IT IN THE PARKING LOT: WHY THE OSH ACT DOES NOT PREEMPT STATE GUNS-AT-WORK LAWS

Dayna B. Harmelin

Abstract

As the gun-control debate rages on, many states have begun enacting laws to protect individuals’ rights to store their guns in their vehicles while at work. These “guns-at-work” laws limit employers’ ability to prevent employees from storing their guns in their vehicles on employer property.

At least two courts have considered the legitimacy of these laws. One found the laws preempted by the Occupational Safety and Health Act of 1970 (“Act”), which was enacted to promote worker safety. The Northern District of Oklahoma held the laws create an obstacle to and conflict with the Act and cannot stand. The Northern District of Florida disagreed, finding an express provision in the Act permits states to regulate in this area.

In the face of numerous states enacting these laws, this article explores whether they are preempted by the Act and concludes they are not. Part I provides a preemption overview. Part II analyzes the Act including the specific relevant provisions. Part III surveys the various guns-at-work laws and provides a chart revealing noteworthy patterns. Part IV argues these laws do not conflict with the Act. Finally, Part V contends preemption requires promulgation of standards in accordance with the Act and maintains clear standards should be promulgated to address the issue.

The Occupational Safety and Health Administration may not continue to sit on the sidelines refusing to solidify its position on this contentious clash of workers’ safety and gun-owners’ rights. This dispute should be resolved by OSHA in accordance with the Act and not by the courts through preemption.