Tuesday, October 30, 2007

OSHA General Duty Clause and State Gun Laws

Gun You know, I teach the General Duty Clause of OSHA every year in Employment Law class and not once did I consider that this amorphous provision may preempts state laws which prevent employers from banning guns from work.

But I'm glad someone thought about it.  From Society of Human Resources Management (SHRM):

In a long-awaited decision, a federal judge of the U.S. District Court in Oklahoma sided with SHRM in finding that a workplace weapons bill passed by the Oklahoma legislature in 2004 (and amended in 2005), which prohibits employers from establishing policies banning employees from bringing weapons onto company property, is pre-empted by the federal Occupational Safety and Health Act's (OSHA) 'general duty' clause.

More specifically, the judge held:

[T]he Amendments [the Oklahoma weapons laws] conflict with and are preempted by the OSH Act, which requires employers to abate hazards in their workplaces that could lead to death or serious bodily harm and which encourages employers to prevent gun-related workplace injuries. The Amendments criminally prohibit an effective method of reducing gun-related workplace injuries and cannot coexist with federal obligations and objectives.

The case is ConocoPhillips v. Henry, 2007 WL 2908879 (N.D. Okla. 2007) (Westlaw Subscription required).  

PS

http://lawprofessors.typepad.com/laborprof_blog/2007/10/osha-general-du.html

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Comments

It is a little jarring to see a "substantive" preemption case of the type that introduced me to the concept - one in which a "non-empty" federal law is operating to supersede an obviously ill-advised state law. I'd like to think the decision will survive for a year, but I have my doubts.

Posted by: Michael Duff | Nov 1, 2007 4:51:24 AM

A District Court in Florida found that sec. 667(a) of OSHA authorizes states to act on worker safety where no specific standard exists. So in Florida, the guns-at-work statute is not preempted by the general duty clause. Whether right or wrong, Florida's Legislature has the constitutional authority to enact such a statute.

See Florida Retail Federation v. Attorney General of Florida, 2008 U.S. Dist. LEXIS 59182 (N.D. Fla. July 28, 2008).

Posted by: eric | Oct 28, 2008 3:43:04 PM

Does this OSHA regulation then require active police officers from carrying their weapon into a Wallgreens Store? If not, then the regulation is discrimatory.

Posted by: Doug Robinson | May 26, 2011 3:29:21 PM

I wonder how an OSHA Regulation can pre-empt the 2nd Amendment of the Constitution. Wouldn't the OSHA law be in violation of the Constitution?

Posted by: Doug Robinson | May 26, 2011 3:31:18 PM

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