Can my Tennessee employer fire me for having a legally permitted gun locked in my car in the employee parking lot?

Subject

Opinion No. 13-41, Employee's Possession of Firearms and Firearm Ammunition on Employer Property, May 28, 2013

Plain-English summary

Tennessee's 2013 "guns-in-parking-lots" law (Chapter 16 of the Public Acts) lets a valid handgun carry permit holder transport and store a firearm or ammunition in the permit holder's privately-owned vehicle while parked in a public or private parking area, provided the gun is kept from ordinary observation (and locked in trunk/glove box/interior if the permit holder is out of the vehicle).

Rep. Judd Matheny asked four questions about how the new law interacts with employment and what counts as "privately-owned vehicle" and "ordinary observation."

1. Can an employer still fire an at-will employee who brings a gun onto the employer's property? Yes. Chapter 16 only decriminalizes specific carrying conduct. It doesn't touch the employer-employee relationship. Tennessee follows the at-will doctrine, under which both parties can end employment "at any time for good cause, bad cause, or no cause." Crews v. Buckman Labs, 78 S.W.3d 852, 857 (Tenn. 2002). Employers can adopt and enforce policies restricting otherwise lawful activities (anti-nepotism, smoking, dress codes). The legislature knows how to write employment protections when it wants to (Tenn. Code Ann. § 50-1-304 protects employees from being fired for off-duty agricultural product use), but chose not to write such language into Chapter 16. "When one statute contains a given provision, the omission of the same provision from a similar statute is significant to show that a different intention existed." State v. Lewis, 958 S.W.2d 736, 739 (Tenn. 1997).

2. Does Chapter 16 apply to a vehicle leased, rented, or borrowed by the permit holder? No. The statute says "permit holder's privately-owned motor vehicle." The possessive "permit holder's" combined with "privately-owned" excludes leased, rented, or borrowed vehicles. The legislature knew how to extend the rule to possessed-not-owned vehicles (compare § 12-2-209, "owned or possessed"); it didn't here. Two proposed amendments that would have broadened the bill to cover non-owned vehicles were tabled during House consideration.

3. If a parking lot security camera briefly captures the permit holder placing the gun in a nonobservable location, has the permit holder violated the "kept from ordinary observation" requirement? Yes. "Ordinary" means "occurring or encountered in the usual course of events: not uncommon or exceptional." Security cameras are common, not extraordinary. The statute has no exception for the transition period while a gun is being put away.

4. Can the permit holder transport and store both a firearm and ammunition? Yes. Although the statute uses "or" ("a firearm or firearm ammunition"), in context "or" is conjunctive ("and"). Bird v. State, 131 Tenn. 518, 175 S.W. 554, 556 (1915), held that "or" and "and" are "often convertible" depending on context. The bill's purpose is to allow safe storage of both the gun and the rounds.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The guns-in-parking-lots law has been amended since 2013, and Tennessee firearms statutes have been substantially revised. Anyone advising on a current question should pull the current Tenn. Code Ann. §§ 39-17-1309, -1311, -1359, and the current parking-lot provision (now codified separately). The at-will employment framework remains stable.

Background and statutory framework

Pre-Chapter 16 framework. Tenn. Code Ann. §§ 39-17-1309, -1311, and -1359 generally criminalize possession of firearms in: schools (§ 39-17-1309); public property used for recreation (§ 39-17-1311); and certain meetings (§ 39-17-1359). Various exceptions existed before Chapter 16 (e.g., law enforcement, permit holders in specific situations).

Chapter 16 (2013 Public Acts, ch. 16). Adds an exception "[n]otwithstanding §§ 39-17-1309, 39-17-1311, or § 39-17-1359." Lets a valid handgun carry permit holder transport and store a firearm or ammunition in the permit holder's privately-owned vehicle while parked in any public or private parking area, if:

• Vehicle is parked where parking is permitted.
• If permit holder is in the vehicle: gun kept from ordinary observation.
• If permit holder is not in the vehicle: gun kept from ordinary observation and locked within trunk/glove box/vehicle interior or a container securely affixed to the vehicle.

"Parking area" excludes single-family residences. Otherwise broad: any property a business or employer provides for parking by invitees/customers/employees.

At-will doctrine. Crews v. Buckman Labs, 78 S.W.3d 852 (Tenn. 2002), and Sullivan v. Baptist Memorial Hosp., 995 S.W.2d 569 (Tenn. 1999), confirm Tennessee's strong adherence. Without a contract for a definite term, either party may end the relationship "at any time for good cause, bad cause, or no cause." Employers can establish policies restricting otherwise lawful activities (anti-nepotism in Sloan; smoking policies; dress codes).

The legislative-silence argument. The legislature has demonstrated, in Tenn. Code Ann. § 50-1-304(e)(2), that it knows how to protect employees from firing for off-duty conduct. That statute protects use of agricultural products not regulated by the alcoholic beverage commission. Chapter 16 contains no parallel provision for off-duty firearm conduct. The AG drew the inference: legislative silence on the employment angle was intentional. State v. Lewis; Amos v. Metropolitan Government, 259 S.W.3d 705 (Tenn. 2008).

Statutory construction principles. Eastman Chem. Co. v. Johnson, 151 S.W.3d 503 (Tenn. 2004): apply the plain meaning without forced interpretations. Brundage v. Cumberland County; State v. McNack (when statute is unambiguous, no need for legislative history). Where applicable, "or" can be read as "and" if context demands. Bird v. State (1915).

"Permit holder's privately-owned" excludes leased, rented, borrowed. The General Assembly knows how to extend statutes to possessed-not-owned vehicles. Tenn. Code Ann. § 12-2-209 covers "owned or possessed" intoxicating beverages. Chapter 16 uses only the possessive plus "privately-owned." Two House amendments to broaden the bill's reach were tabled, providing legislative history support for the narrower reading.

"Ordinary observation" includes security cameras. Webster's Third New International Dictionary defines "ordinary" as "occurring or encountered in the usual course of events: not uncommon or exceptional: not remarkable: routine, normal." Security cameras are routine in 2013. The "kept from ordinary observation" requirement applies at all times, including transitions while the permit holder places the gun in its concealed location.

Common questions

Does the guns-in-parking-lots law override my employer's no-firearms policy?

No. The law decriminalizes carrying for the permit holder; it doesn't take away the employer's right to set workplace rules. If your employer has a no-firearms policy and you bring a gun to work, your employer can fire you (assuming you're at-will). Chapter 16 means the police won't arrest you for the gun being in your locked car, but your employer is a separate decisionmaker.

Can I sue if I get fired?

Probably not, unless you have a contract for a definite term or your employer's policy is itself unlawful for some other reason. Tennessee is an at-will state. Crews v. Buckman Labs. Some narrow public-policy exceptions exist (anti-retaliation for whistleblowing, etc.), but firing for breach of a no-firearms policy generally doesn't fit those exceptions.

What about a rental car or a car I borrowed from a friend?

Chapter 16 doesn't cover non-owned vehicles. If you're using a rental, borrowed, or leased car, the law's exception doesn't apply, and the underlying prohibitions in §§ 39-17-1309, -1311, -1359 may still criminalize the conduct (depending on where you are).

What about my company car?

The opinion didn't address this directly. A company car is owned by the company, not by the permit holder. The "permit holder's privately-owned" language would seem to exclude it. So Chapter 16's parking lot exception probably doesn't apply.

What if a security camera catches me putting the gun away?

The AG said this violates the "kept from ordinary observation" requirement. Security cameras are common; the law has no transition-period exception. To stay within the statute, the permit holder needs to ensure that no security camera (and no other ordinary observer) can see the gun at any point.

Can I keep ammunition in the same car as the gun?

Yes. The statute reads "firearm or firearm ammunition," but in context "or" means "and." Per Bird v. State, these words are often convertible based on context.

Citations

Tennessee statutes: 2013 Tenn. Pub. Acts, ch. 16; Tenn. Code Ann. § 39-17-1309 (schools); § 39-17-1311 (recreational public property); § 39-17-1359 (meetings); § 55-1-103 (motor vehicle definition); § 50-1-304 (employment protections); § 12-2-209 (intoxicants seizure). Cases: Crews v. Buckman Labs. International, Inc., 78 S.W.3d 852 (Tenn. 2002); Sullivan v. Baptist Memorial Hosp., 995 S.W.2d 569 (Tenn. 1999); Sloan v. Tri-County Electric Membership Corp., 2002 WL 192571 (Tenn. Ct. App. 2002); Eastman Chem. Co. v. Johnson, 151 S.W.3d 503 (Tenn. 2004); Bird v. State, 131 Tenn. 518, 175 S.W. 554 (1915); State v. Lewis, 958 S.W.2d 736 (Tenn. 1997); Amos v. Metropolitan Government of Nashville and Davidson County, 259 S.W.3d 705 (Tenn. 2008); Brundage v. Cumberland County, 357 S.W.3d 361 (Tenn. 2011); State v. McNack, 356 S.W.3d 906 (Tenn. 2011). Prior AG opinion: Op. 13-15 (Feb. 22, 2013).

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2013/op13-041.pdf

Original opinion text

S T A T E O F T E N N E S S E E
OFFICE OF THE
ATTORNEY GENERAL
PO BOX 20207
NASHVILLE, TENNESSEE 37202

May 28, 2013

Opinion No. 13-41

Employee's Possession of Firearms and Firearm Ammunition on Employer Property

QUESTIONS

1. Does 2013 Tenn. Pub. Acts, ch. 16 ("Chapter 16") prohibit an employer from terminating an at-will employee who brings a firearm or firearm ammunition onto the employer's property?

2. Does Chapter 16 apply to a handgun carry permit holder operating a privately-owned motor vehicle that has been leased, rented, or borrowed by the permit holder?

3. Under the provisions of Chapter 16, does the permit holder violate the requirement that the firearm or firearm ammunition be "kept from ordinary observation" when a parking lot security camera records him or her placing the firearm or firearm ammunition into a nonobservable location in the vehicle?

4. Would Chapter 16 authorize a handgun carry permit holder to transport and store both a firearm and firearm ammunition in the permit holder's vehicle?

OPINIONS

1. No. Chapter 16 does not impact the employer/employee relationship.

2. No.

3. Yes.

4. Yes.

ANALYSIS

1. Chapter 16 amends Title 39 of the Tennessee Code governing criminal offenses. 2013 Tenn. Pub. Acts, ch. 16. Chapter 16 applies "[n]otwithstanding [Tenn. Code Ann.] §§ 39-17-1309, 39-17-1311, or § 39-17-1359," which regulate and, subject to certain exceptions, criminalize the possession of firearms respectively (1) on school property, (2) on public property used for recreational purposes, and (3) at certain meetings. Chapter 16 specifically allows—without criminal penalty—"the holder of a valid handgun carry permit recognized in Tennessee" to "transport and store a firearm or firearm ammunition in the permit holder's privately-owned motor vehicle, as defined in § 55-1-103, while on or utilizing any public or private parking area," if:

(1) The permit holder's vehicle is parked in a location where it is permitted to be; and
(2) The firearm or ammunition being transported or stored in the vehicle:
(A) Is kept from ordinary observation if the permit holder is in the motor vehicle;
(B) Is kept from ordinary observation and locked within the trunk, glove box or interior of the person's privately owned motor vehicle or a container securely affixed to such vehicle if the permit holder is not in the vehicle.

Chapter 16, § 1. A "parking area" is defined as "any property provided by a business entity, public or private employer, or the owner, manager, or legal possessor of the property for the purpose of permitting its invitees, customers, clients or employees to park privately-owned motor vehicles." A "parking area" would not include "the grounds or property of an owner-occupied, single-family detached residence, or a tenant-occupied single-family detached residence."

In Tenn. Att'y Gen. Op. 13-15 (Feb. 22, 2013), this Office considered the impact of SB142 (which was ultimately enacted as Chapter 16) on the possession of firearms on school property. That opinion recognized that SB142 "carves out an additional exception to the present prohibition of firearms and firearm ammunition on school property set forth in Tenn. Code Ann. § 39-17-1309" and that the new exception does not repeal current exceptions.

Chapter 16 by its terms only decriminalizes the carrying and storage of firearms and firearm ammunition in a permit holder's privately owned motor vehicles in public and private parking areas under defined circumstances. Chapter 16 does not address and thus has no impact on the employment relationship between an employer and an employee. The State of Tennessee "has long adhered to the employment-at-will doctrine in employment relationships not established or formalized by a contract for a definite term," under which "both the employer and the employee are generally permitted, with certain exceptions, to terminate the employment relationship 'at any time for good cause, bad cause, or no cause.'" Crews v. Buckman Labs. International, Inc., 78 S.W.3d 852, 857 (Tenn. 2002) (quoting Sullivan v. Baptist Memorial Hosp., 995 S.W.2d 569, 574 (Tenn. 1999)). Furthermore, an employer may establish employment policies that an employee must follow in the workplace, and such policies may restrict otherwise lawful activities. See Sloan v. Tri-County Electric Membership Corp., 2002 WL 192571 (Tenn. Ct. App. Feb. 7, 2002) (anti-nepotism policy). The plain and unambiguous language of Chapter 16 does not address or alter the employer/employee relationship or prohibit an employer from terminating an employee for possessing a firearm or firearm ammunition on the employer's property. See Eastman Chem. Co. v. Johnson, 151 S.W.3d 503, 507 (Tenn. 2004).

Further evidence that Chapter 16 does not address the employer/employee relationship is the fact that the General Assembly has directly addressed similar issues elsewhere in the Tennessee Code but chose not to do so in Chapter 16. Specifically, in Title 50 of the Tennessee Code, Tenn. Code Ann. § 50-1-304(e)(2) states that "[n]o employee shall be discharged or terminated solely for participating or engaging in the use of [an agricultural] product not regulated by the alcoholic beverage commission that is not otherwise proscribed by law if the employee participates or engages in the activity during times when employee is not working." Tennessee courts have observed that "[w]hen one statute contains a given provision, the omission of the same provision from a similar statute is significant to show that a different intention existed." State v. Lewis, 958 S.W.2d 736, 739 (Tenn. 1997). See also Amos v. Metropolitan Government of Nashville and Davidson County, 259 S.W.3d 705, 715 (Tenn. 2008).

2. Chapter 16 authorizes a handgun carry permit holder to "transport and store a firearm or firearm ammunition in the permit holder's privately-owned motor vehicle." Chapter 16, § 1. The phrase "permit holder's privately-owned motor vehicle" does not include a vehicle leased, rented, or borrowed by the permit holder. The General Assembly chose to use the possessive adjectival phrase—"permit holder's"—to describe the privately owned motor vehicles to which the bill applies. Had the General Assembly intended the bill to reach to leased, borrowed, or rented cars, it could easily have used different language, such as referring to vehicles in the lawful possession of the permit holder. Indeed, the General Assembly knows how to make a statutory provision applicable to both owners and possessors but did not do so in Chapter 16. See, e.g., Tenn. Code Ann. § 12-2-209 (providing for seizure and confiscation of intoxicating beverages "owned or possessed" in violation of liquor laws). When the Tennessee House of Representatives considered the bill on February 28, 2013, two proposed amendments that would have amended the bill to broaden its applicability beyond a motor vehicle owned by the permit holder were tabled.

3. Chapter 16 requires that the firearm or firearm ammunition must at all times be "kept from ordinary observation." Chapter 16, § 1. A permit holder would fail to meet these requirements if the firearm or firearm ammunition is briefly observable by a security camera while the permit holder places the firearm or firearm ammunition into a nonobservable location inside the vehicle. The word "ordinary" means "occurring or encountered in the usual course of events: not uncommon or exceptional: not remarkable: routine, normal." Webster's Third New International Dictionary 1589 (1986). A security camera is not such an uncommon instrument as to be extraordinary. The "kept from ordinary observation" requirement contains no exception for the transition period during which a firearm or firearm ammunition is being placed into a nonobservable location inside the vehicle.

4. Chapter 16 permits the transportation and storage of "a firearm or firearm ammunition." Taken in context, it is clear that the word "or" between "firearm" and "firearm ammunition" is being used throughout Chapter 16 conjunctively in the sense of "and," not disjunctively. See, e.g., Bird v. State, 131 Tenn. 518, 175 S.W. 554, 556 (1915). Therefore, the more persuasive construction is that Chapter 16 would authorize a handgun-carry-permit holder to keep both a firearm and firearm ammunition inside the permit holder's vehicle.

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

JOHN H. BLEDSOE
Senior Counsel

Requested by:
The Honorable Judd Matheny
State Representative, 47th District
215 War Memorial Building
Nashville, Tennessee 37243