Jackson Kelly PLLC

Labor & Employment News Alert

A recent legal challenge may determine the enforceability of West Virginia’s parking lot bill

July 19, 2019

By: Justin M. Harrison

A federal lawsuit may determine whether employees have the right to keep firearms in their cars while at work. On March 10, 2018, the West Virginia Legislature passed The Business Liability Protection Act (“the Act”), which has become commonly known as the “The Gun Bill” or “The Parking Lot Bill.”  This legislation imposes liability and significant restrictions on an employer’s ability to manage its workforce and its property.  The Act allows employees, customers and visitors to maintain a firearm in their vehicle so long as the firearm is: (1) lawfully possessed; (2) out of view and not in plain site; (3) locked away in a motor vehicle in a parking lot; and (4) possessed by an employee, customer or visitor who is lawfully on site.  The Act also imposes several restrictions on employers.  Specifically, the Act prohibits employers from:  (1) preventing employees from entering a parking lot with a legal firearm in their vehicle;  (2) searching motor vehicles to ascertain the presence of a firearm within their vehicle; (3) questioning employees regarding the presence of a firearm locked inside their vehicle in a parking lot;  (4) taking any action against an employee based upon statements of any party regarding possession of a firearm inside a motor vehicle (unless the statement involves an unlawful purpose or a terrorist act); and (5) conditioning employment upon having a concealed weapon permit or agreeing not to keep a legal firearm locked inside a motor vehicle.

The Act applies to nearly all employers regardless of whether they operate hospitals, daycare centers, or safety-sensitive manufacturing facilities.  The only exception regarding the Act’s coverage involves primary or secondary educational facilities.

Understandably, many employers and private businesses are concerned about the Parking Lot Bill.  Although some of the provisions are relatively benign, many observers - including human resource managers and employment lawyers - anticipate that some of these provisions will serve as the foundation for future employment litigation in West Virginia.  For example, most West Virginia courts will allow a former employee to bring a common law claim for wrongful discharge if the discharge violates “public policy.”  The Parking Lot Bill provides the public policy that will be relied upon by future plaintiffs in wrongful discharge suits, and employers will have another decision point that will be challenged in court.  In short, the West Virginia Legislature has effectively created a new class of protected persons - employees who possess firearms.

On June 6, 2019, the West Virginia Coalition Against Domestic Violence, Inc., filed a lawsuit in federal court challenging the enforceability of the Act.  The Coalition consists of domestic violence shelters that provide safe havens for victims.  Domestic violence shelters face unique security risks.  Victims, employees, and volunteers are often subjected to threats of violence.  Unsurprisingly, domestic violence shelters typically require firearms to be kept off their property. 

The Coalition has challenged several aspects of the Act.  For example, and as noted above, the Act prohibits private property owners from making “verbal or written inquiry” regarding the presence of firearms in motor vehicles.  The Coalition claims that this provision constitutes a content-based restriction on speech that violates the First Amendment of the United States Constitution.  Likewise, the Coalition also claims that the Act constitutes a substantive due process violation under the Fourteenth Amendment based on the deprivation of “property.”  Specifically, the Coalition claims that domestic violence shelters, as owners and lessees of private property, are entitled to fundamental property rights, which includes the right to deny access to their property by persons with firearms.  Based on these constitutional challenges, the Coalition seeks to enjoin enforcement of the Act. 

The lawsuit was filed against the West Virginia Attorney General because the Act authorizes the Attorney General to enforce it.  In challenging the constitutionality of the Act, the Coalition has requested the U.S. District Court for the Southern District of West Virginia to enjoin the Attorney General from enforcing it.  The Attorney General is expected to file a response to the Complaint by August 5, 2019.  It will be interesting to see how the Attorney General responds to the Complaint and how the Court addresses the constitutional challenges West Virginia employers - and other private property owners - will want to follow this case and see how it plays out.  We intend to provide updates in this space as the case progresses.


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