The Oklahoma law that requires employers to permit employees to keep guns locked in their vehicles at work has been given the “OK”. A three-judge panel of the 10th U.S. Circuit Court of Appeals , the federal appeals court which has jurisdiction over Colorado, unanimously rejected an Oklahoma district court’s ruling that the state law is pre-empted by the “general duty” clause of the federal Occupational Safety and Health Act (OSHA).
The Oklahoma Self-Defense Act, enacted in 2004, was the first parking lot firearm law of its kind. But in the past five years, at least 10 states have passed laws prohibiting employers from barring the locked storage of guns in workers’ vehicles.
Since enactment of the Oklahoma law, a number of companies have been plaintiffs in the pre-enforcement challenge just decided, the latest being ConocoPhillips Co. The state tapped Charles Cooper of Washington’s Cooper & Kirk to defend the law after naming him a special assistant attorney general. Cooper had filed an amicus brief on behalf of the National Rifle Association in support of Oklahoma. See ABA v. NRA .
ConocoPhillips’ pre-emption argument rested on Section 654(a)(1) of the federal Occupational Safety and Health Act, known as the “general duty” clause, which requires that each employer “shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” This clause has been viewed as encompassing any workplace hazard not covered by a specific Occupational Safety and Health Administration (OSHA) regulation.
But appellate panel said the district court’s pre-emption ruling interfered with “Oklahoma’s police powers and essentially promulgates a court-made safety standard — a standard that OSHA has explicitly refrained from implementing on its own. Such action is beyond the province of federal courts.” ConocoPhiilips v. Henry, No. 07-5166.
The appellate panel did agree with the district court’s holdings that the state law was not a violation of the due process clause or the Fifth Amendment’s takings clause. A ConocoPhillips spokesman said the company was disappointed by the ruling but had not decided yet on further action. If it is decided to take the matter to the US Supreme Court, the challenge will continue to be fought by the National Rifle Association – the primary backer of the original legislation.
The state law was enacted in response to a 2002 incident in which the Weyerhaeuser Co. fired seven workers for violating the company’s policy on prohibiting firearms in vehicles parked on company property. The workers challenged their terminations in federal court, arguing that the policy violated their right to bear arms under the state constitution. The 10th Circuit upheld the firings after finding the state law that authorized Weyerhaeuser’s policy to be a reasonable regulation under the state’s police power.