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Archive for April, 2018

Guns in Workplace: Primer for Employers in PA & NJ

Posted on: April 12th, 2018

By: John P. McAvoy

Presently and tentatively, Pennsylvania and New Jersey do not have guns-at-work laws. There are, however, gun laws in place in both states that similarly impede an employer’s ability to control the workplace; namely, the states’ right-to-carry laws.

New Jersey has some of the most restrictive right-to-carry laws in the country. For starters, the state does not allow individuals to open carry handguns. The state is also known as a “may issue” state, which means the chief police officer of a city or county, or the superintendent of the state police, has discretion in determining whether to issue a concealed weapons permit to an applicant. New Jersey law generally forbids any person to “ha[ve] in his possession any handgun …, without first obtaining a permit to carry the same.” N.J.S.A. § 2C:39-5(b). While state law provides certain exceptions to this general ban—including one for “keeping or carrying [a firearm] about [one’s] place of business, residence, premises or other land owned or possessed by him,” id. at § 2C:39-6(e), these exceptions do not allow the concealed carrying of a handgun in public without first obtaining a permit, and it is nearly impossible for an individual to obtain a handgun carry permit in New Jersey. See generally id. at §§ 2C: 58-3; 58-4; and N.J.A.C. 13:54-2.4(b) (outlining numerous screening and training requirements an applicant must satisfy in order to be eligible for a handgun carry permit, including a ‘justifiable need’ to carry a handgun). New Jersey’s right-to-carry laws are so restrictive that the state does not have or need separate laws governing firearms on private property, including parking lots, much less in the workplace. On their face, these laws make it unlawful for almost all employees to possess concealed firearms in the workplace.

Pennsylvania’s right-to-carry laws are far less exacting than their New Jersey counterparts. Unlike New Jersey, Pennsylvania law is silent on the legality of openly carrying a firearm, making it de facto to do so in all places except Philadelphia. It is also a “shall issue” state. This means that while a person needs to obtain a license to carry a handgun, the granting authority (i.e., the sheriff or police chief) has no discretion to deny an applicant provided he or she meets the necessary character and fitness requirements. See 18 Pa. C.S. § 6109. Unlike New Jersey, there is no requirement that an applicant demonstrate “good cause” for the weapon. Instead, law enforcement has 45 days to investigate an applicant’s background to determine eligibility. See id. Moreover, and with the limited exception of commonsense places designated by statute as off-limits, including schools, correctional facilities, and courts, id. at §§ 912-913, 5122; 50 P.S. § 4605; et al., any employee with a license to carry may come to work with a gun concealed on his or her person.

While Pennsylvania’s right-to-carry laws are relatively liberal, there are no state laws that force an employer or business to allow or prohibit guns on its property. While 20 states have laws that regulate whether employees have the right to transport and store licensed, concealed weapons in their locked vehicles in an employer’s parking lot, the majority of states – including Pennsylvania – do not.  Without an express statute on point, courts generally give employers the right to control the workplace. As such, employers are free to impose policies allowing or restricting the possession of weapons in vehicles parked on company property and/or in the workplace.

In 2015, the Superior Court of Pennsylvania addressed an employer’s efforts to control the workplace by enforcing its weapons restrictions policy. In Stewart v. FedEx Express, 114 A.3d 424 (Pa. Super. 2015), the Superior Court upheld the right of FedEx to terminate the plaintiff for carrying a handgun in the glove compartment of his personal vehicle while performing work for FedEx. Id. at 424. FedEx’s policy prohibits employees from having firearms or weapons on company property, in company vehicles or in company buildings, unless authorized by FedEx security. Id. at 426. In so holding, the Superior Court noted that Pennsylvania is an at-will state and rejected the plaintiff’s constitutional claim that he had an unrestricted “right to bear arms,” even at work, and reasoned that “neither the Second Amendment to the United States Constitution, nor the Pennsylvania Constitution, bestows on any person the right to carry a concealed firearm or transport a loaded firearm in a vehicle.” Id. at 428-29. Moreover, the Court noted that Pennsylvania has no right-to-carry law that restricts employers from prohibiting firearms on their property or while performing work duties. Id. at 429.

Pennsylvania and New Jersey are ‘employment at-will’ states; meaning, employers may generally terminate an employment relationship at any time and for any reason. Therefore, employers in both states are free to terminate an employee for any reason regardless of whether there is a specific policy on point. Nevertheless, it is a good idea for employers in Pennsylvania and New Jersey to follow FedEx’s example and take similar steps to control the workplace.

Pennsylvania employers in favor of guns in the workplace may impose policies relative to same. These policies should detail the type of weapons permitted in the workplace and in vehicles parked on company property, and state that the company policy is subject to the licensing requirements of state law. These policies should also set forth the employer’s expectations with respect to the handling and storage of weapons on company property and in the workplace. To limit any potential confusion with respect to the company’s expectations and what is and is not permissible, it is recommended that employers make their policies as detailed as possible.

New Jersey’s right-to-carry laws are so restrictive that is almost always unlawful for an employee to possess a firearm in the workplace. As such, most New Jersey employers cannot authorize their employees to possess a firearm in the workplace without violating state law. However, to avoid any ambiguity and as an added layer of protection from liability, New Jersey employers may also adopt policies to better control the workplace.

It is important for Pennsylvania employers opposed to the idea of guns and other weapons in the workplace take steps to further their interests. To that end, Pennsylvania employers may implement policies that prohibit employees from having firearms or weapons on company property, in company vehicles or in company buildings. Absent such policies, there is nothing prohibiting a properly licensed Pennsylvania employee from bringing his or her concealed gun to the workplace.

It is recommended that the policies adopted and implemented by employers opposed to guns and weapons in the workplace in both states clearly explain that all employees, including those with licenses to carry, are forbidden from having firearms or weapons on company property, in company vehicles, or in company buildings, unless expressly authorized by the employer. It is also a good idea for these policies to provide that violation of the company’s weapons policies is grounds for immediate termination, as it would make the process of terminating an employee for-cause much cleaner and could allow the employer to save on future litigation and unemployment benefits costs associated with the termination. This is because employees that are terminated for-cause are generally ineligible to receive unemployment benefits and will have a harder time asserting a meritorious wrongful termination lawsuit against their former employers.

Given this is a rapidly changing and developing area of the law, it is also suggested that employers charge someone in their human resources and/or compliance departments with staying current on the gun control regulations. Absent immunity, complying with a law that allows employees to bring concealed firearms to the employer’s property can increase legal risk. In contrast, noncompliance with a gun law can lead to civil liability or criminal penalties in some states. Therefore, it is important that employers stay apprised of the rapidly changing gun laws of each state in which they conduct business. The person charged with this responsibility should understand the impact the new gun control law might have on the business and recognize what, if any, changes in the law require an amendment to company policies.

If you have any questions or would like more information, please contact John McAvoy at [email protected].

Court Ruling Highlights Importance of Policy Language

Posted on: April 11th, 2018

By: America Vidana

In Mt. Hawley Insurance Co. v. Tactic Security Enforcement, Inc., No. 6:16-cv-01425 (M.D. FL. 2018), U.S. District Judge Paul Byron of the Middle District of Florida recently denied an insurance company’s motion for summary judgment, in which it relied on an exclusion to deny coverage to its policyholder. The policyholder and restaurant establishment, Que Rico La Casa Del Mofongo, had two negligence lawsuits filed against it for allegedly failing to prevent violent incidences from occurring on its premises.

The insurer denied coverage per an exclusion included in the policy prohibiting “operations involving bars, taverns, lounges, gentlemen’s clubs and nightclubs.” The Court, however, found that the insurer failed to clearly define the terms cited in the exclusion. It noted that the policyholder’s establishment was interchangeably referred to as a “restaurant,” and at other times as a “lounge.” Consequently, because the terms “bars, “taverns,” “lounges,” and “gentlemen’s clubs” were undefined, it deemed the entire exclusion as imprecise and inapplicable—unilaterally denying the insurer’s summary judgment.

The Court’s decision in Mt. Hawley significantly reinforces the principle that precise policy language is required before an insurer can deny coverage based on an exclusion. It also highlights the importance for a policyholder to read the entire policy to ensure there are no broad exclusions that could potentially bar coverage.

If you have any questions or would like more information, please contact America Vidana at [email protected].

Attorney-Client Privilege? FBI’s Raid of President Trump’s Personal Lawyer’s Office

Posted on: April 10th, 2018

By: Gregory T. Fayard

On April 9, 2018, federal agents raided the law office of Michael Cohen, President Trump’s personal attorney. The purpose of the raid purportedly concerned a payment made to porn actress Stormy Daniels related to an alleged 2006 affair she had with Donald Trump in exchange for her silence. The FBI’s aggressive move certainly raised eyebrows among legal ethicists. Wouldn’t the FBI be prevented from reviewing a lawyer’s files based on the sacrosanct attorney-client privilege? After all, the attorney-client privilege is intended to allow lawyers to give honest legal advice without worrying about incriminating a client.

Not necessarily. To obtain a federal search warrant of an attorney’s office, high-level approval within the Justice Department must be obtained and special DOJ guidelines must be followed when the search target is an attorney. The warrant was also reviewed and approved by a federal judge.  Further, attorney client communications may be discovered under the rarely used and hard to meet “crime-fraud” exception to the privilege. That is, a client cannot hide evidence of a crime by relying on the attorney-client shield.  The concern for the Justice Department is whether any evidence from the raid will be admissible if “tainted” by the “fruit of the poisonous tree.” To deal with spoliation through “tainted” evidence, the Justice Department has used  “taint teams”—government attorneys who are segregated from FBI agents and prosecutors involved in the investigation. (“Taint Teams and the Attorney-Client Privilege,” Loren E. Weiss, Gregory S. Osborne, December 2015) Taint teams are charged with sifting through seized files and determining what prosecutors can and can’t use. (Id.)

In rare cases, a judge could appoint an independent special master to review the files or examine seized documents him or herself.  (United States v. Taylor (D. Me. 2011) 764 F.Supp.2d 230.)  Further, prosecutors can seize evidence of criminal activity that lies beyond the scope of a warrant if it is in plain view, like drugs, guns or other contraband—not likely at issue here.

In any event, Mr. Cohen will certainly contest the FBI raid as an overreach, including why the Justice Department did not issue a subpoena instead of a search warrant. A subpoena would give Mr. Cohen time to protect client confidences and seek court guidance on the attorney-client issues. While the FBI seems to be pushing the envelope as to the bounds of the attorney-client privilege, others have critiqued the raid as going beyond the scope of Robert Mueller’s Special Counsel investigation into collusion between Russia and the Trump Campaign.

If you have any questions or would like more information, please contact Greg Fayard at [email protected].

Salary History And Wage Gaps

Posted on: April 10th, 2018

By: Rebecca J. Smith

The U.S. Court of Appeals for the 9th Circuit, which heard the case of Rizo v. Fresno County Office of Education en banc last year, has changed the 9th Circuit’s position and found that an employee’s prior salary – either alone or in a combination of factors – cannot be used to justify paying women less than men in comparable jobs.

“The Equal Pay Act stands for a principle as simple as it is just:  men and women should receive equal pay for equal work regardless of sex” Judge Stephen Reinhardt wrote in the opinion.   The opinion clearly establishes that an employer cannot justify a wage differential between male and female employees by relying on prior salary.

In the ruling made on Monday, April 09, 2018, the en banc panel overturned the earlier panel’s decision looking at the history of the act and indicating that Congress simply could not have intended to allow employers to rely on past discriminatory wages to justify continuing wage differentials.  One of the biggest issues, going forward after this decision will be whether negotiated salaries are included within the equal pay statutes.  Judge M. Margaret McKeown indicated in her concurring opinion that she was concerned about chilling voluntary discussions between employees or potential employees and employers when an employee is attempting to use prior salaries as a bargaining chip.

If you have any questions or would like more information, please contact Rebecca Smith at [email protected].

Homeowners’ Associations: Banning Short Term Rentals May Violate California Coastal Act

Posted on: April 9th, 2018

By: Jeffrey R. Cluett

The California Court of Appeal overturned a denial of a preliminary injunction of a homeowners’ association resolution banning short term rentals (“STR”).  It found that appellants made a prima facie case that the ban violated the California Coastal Act, which requires a permit for any “development” that changes “the intensity of use or access to land in a coastal area.”  Greenfield v. Mandalay Shores Cmty. Ass’n (2018) 2018 Cal.App.LEXIS 258, **1-2.

Mandalay Shores is a development in the Oxnard Coastal Zone.  Id., *2.  For decades, non-residents have rented homes there on a short-term basis.  Id.  In June 2016, Mandalay Shores Community Association (“Association”) adopted a resolution banning STRs for less than 30 days.  Id. at *3.  In August 2016, the Coastal Commission advised the Association that the ban was a “development” under the Coastal Act requiring a coastal development permit.  Thereafter, the Greenfields, who own a residence at Mandalay Shores, sued for declaratory and injunctive relief.  Id. at *4.  The trial court denied the Greenfields’ ex parte application for a temporary restraining order and motion for preliminary injunction, finding that the STR ban was not a “development” within the California Coastal Act.   Id. at *5.

The Court of Appeal disagreed.  It noted that the California Coastal Act intends to “[m]aximize public access to and along the coast and maximize public recreational opportunities to the coastal zone consistent with sound resources conservation principles and constitutionally protected right of property owners.”  Id. (citation omitted).  “Development” includes any change in the density or intensity of use of the land.  Id.  The courts interpret “development” expansively to respect the Coastal Act’s mandate that it be liberally construed.  Id. at **5-6.  Accordingly, courts have held that closing and locking a gate that is usually open to the public is a “development,” as is posting “no trespassing” signs on a parcel used to access the beach.  Id. at 6.

The court found that the Greenfields made a prima facie showing to issue a preliminary injunction staying enforcement of the STR ban until trial.  Id. at *8.  The court therefore ordered the trial court to enter a new order granting appellant’s motion for a preliminary injunction.  Id.  The key takeaway for Associations with homes with beach access, therefore, is that changing regulations concerning who can rent those homes may fall afoul of the California Coastal Act.

This case is set for a Status Conference on May 21, 2018, where it will presumably be set for trial; the November 6, 2017 trial had been vacated pending appeal.  At trial, the case will turn on whether the STR ban is a “development” that would result in “a change in intensity of use or access.”

Despite the Court of Appeals ruling, the Association could yet prevail.  With the ban, residents and long-term renters would have beach access.  Therefore, that precluding short-term renters from renting may not be a “development” that “results in a change in the intensity of use or access to land in a coastal area” because residents and long-term renters would have beach access.  The question, therefore, is whether the California Coastal Act allows an Association to determine which people may have beach access.  Because this is a different situation from posting “no trespassing” signs or closing and locking a gate, which seeks to bar all beach access, the court may come to a different conclusion.

If you have any questions or would like more information, please contact Jeff Cluett at [email protected].