Download open carry??

TAAO & ICTA ANNUAL CONFERENCE
August 28-31, 2016
Hand Gun Laws & HR Issues -Open & Conceal Carry
TODAY’S OBJECTIVE
• Where the holder of a license to carry a handgun
can/cannot carry a handgun in or around District
facilities
• Employee’s license to carry and the workplace
• Workplace security
• HR issues
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THE LICENSED CARRY LAWS
• H.B. 910: Open Carry
• S.B. 273: Prohibits Posting 30.06 Sign in Wrong Place
– Texas Attorney General Opinion No. KP-0049 (2015)
McClennan County Lawsuit
– Enforcement continues?
• S. B. 11:
Concealed Campus Carry
– Effective Beginning August 1, 2016 and August 1, 2017
– Texas Attorney General Opinion No. KP-0051 (2015)
– Yet another lawsuit . . .
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WHERE CAN A LICENSE HOLDER OPENLY
CARRY A HANDGUN?
The rules related to where and when a license holder
may openly carry are essentially identical to where and
when a concealed handgun license holder can carry
under current law.
There are some differences regarding places of higher
education which are addressed later in this
presentation.
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IS AN INDIVIDUAL REQUIRED TO HAVE A
LICENSE TO
OPEN CARRY??
CONCEAL CARRY??
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YES
Section 46.02 states that it is unlawful for a person to
carry a handgun. Section 46.15(b)(6) creates the
exception provided the person has a license to carry a
handgun and is carry the license, and it is either
concealed or in a *shoulder or *belt holster.
(*Effective Jan. 1, 2016).
Note: The language in 46.15(b)(6) states the person
“is carrying a license”.
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DOES AN OFFICER HAVE THE RIGHT TO DETAIN
SOMEONE CARRYING OPENLY SOLELY TO DETERMINE
IF THE PERSON HAS A LICENSE???
(Provided No Other Criminal Violation Has Been Observed)
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YES
Constitutional carry did not pass in Texas. The statute
language remains the same – the person carrying a
handgun concealed or open carry is required to carry
his or her license. It is the license holder’s
responsibility to prove he or she is not in violation of
46.02 (Unlawful Carrying of a Weapon) by presenting
their license to a peace officer.
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WHAT T YPE OF HOLSTER IS REQUIRED
FOR OPEN?
The law does not specify what is an acceptable holster.
• If the handgun is secured in a belt or shoulder holster it should
be assumed to be acceptable.
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WILL OPEN CARRY BE ALLOWED IN THE
LOBBY OF A GOVERNMENTAL BUILDING?
Yes.
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IS OPEN OR CONCEAL CARRY PERMITTED
AT A MEETING OF THE DISTRICT?
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IS OPEN OR CONCEAL CARRY PERMITTED
AT ARB HEARINGS?
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NO, IF PROPER NOTICE IS PROVIDED TO
LICENSE HOLDER
A license holder commits an offense if the license holder open
carries or conceal carries a handgun, regardless of whether the
handgun is concealed in a shoulder or belt holster in the room or
rooms where a meeting of a government entity is held and if the
meeting is an open meeting subject to Chapter 551, Government
Code. (A posted meeting and subject to the open meetings act)
and the entity provided notices as required by law.
Notice: *Posted, Verbal, Written
*If written or posted notice is provided, it must meet the
language specified in 30.06 & 30.07 of the Texas Penal Code.
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CAN BOARD MEMBERS CONCEAL CARRY BUT
STILL PROHIBIT THE GENERAL PUBLIC FROM
CONCEAL CARRY DURING MEETINGS?
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IS OPEN CARRY ALLOWED ON PUBLIC
TRANSPORTATION (E.G., DART)?
Yes.
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WHAT ARE THE SIGN AND/OR WRITTEN
NOTICE REQUIREMENTS?
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TO PROHIBIT THOSE LICENSED FROM CONCEAL
CARRY, THE SIGN AND WRITTEN NOTICE EFFECTIVE
JANUARY 1 , 2016, ARE AS FOLLOWS:
PURSUANT TO SECTION 30.06 PENAL CODE (TRESPASS BY
HOLDER WITH A CONCEALED HANDGUN), A PERSON
LICENSED UNDER SUBCHAPTER H, CHAPTER 411,
GOVERNMENT CODE (HANDGUN LICENSING LAW), MAY NOT
ENTER THIS PROPERT Y WITH A CONCEALED HANDGUN.
DE ACUERDO CON LA SECCIÓN 30.06 DEL CÓDIGO PENAL
(DEL ALLANAMIENTO POR PORTADOR DE LICENCIA CON UN
ARMA DE FUEGO OCULTA), UNA PERSONA CON LICENCIA
BAJO EL SUBCAPÍTULO H, CAPÍTULO 411, CÓDIGO DE
GOBIERNO (LEY DE ARMAS OCULTAS), NO PUEDE ENTRAR A
ESTA PROPIEDAD CON UN ARMA OCULTA.
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TO PROHIBIT THOSE LICENSED FROM CONCEAL
CARRY, THE SIGN AND WRITTEN NOTICE EFFECTIVE
JANUARY 1 , 2016, ARE AS FOLLOWS:
PURSUANT TO SECTION 30.07 PENAL CODE (TRESPASS BY
HOLDER WITH A CONCEALED HANDGUN), A PERSON
LICENSED UNDER SUBCHAPTER H, CHAPTER 411,
GOVERNMENT CODE (HANDGUN LICENSING LAW), MAY NOT
ENTER THIS PROPERT Y WITH A HANDGUN THAT IS CARRIED
OPENLY.
DE ACUERDO CON LA SECCIÓN 30.07 DEL CÓDIGO PENAL
(DEL ALLANAMIENTO POR PORTADOR DE LICENCIA CON UN
ARMA DE FUEGO OCULTA), UNA PERSONA CON LICENCIA
BAJO EL SUBCAPÍTULO H, CAPÍTULO 411, CÓDIGO DE
GOBIERNO (LEY DE ARMAS OCULTAS), NO PUEDE ENTRAR A
ESTA PROPIEDAD CON UN ARMA DE FUEGO CLARAMENTE
PORTADA.
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IS OPEN CARRY OR CONCEAL CARRY
PERMITTED IN AREAS NOT ACCESSIBLE BY
THE GENERAL PUBLIC?
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SHOULD THE DISTRICT KEEP THE 30.06
& 30.07 SIGNS POSTED AT ALL TIMES?
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RIGHT OF DISTRICT AS EMPLOYER
Tex. Gov’t Code § 411.203; Tex. Labor Code § 52.061 et seq.
• District can prohibit its employees from carr y on the premises
of employment and District vehicles;
• An employee may generally leave a handgun in a private,
locked car in parking lot
• Liability of District
o
o
o
State law (Tort Claims Act) – generally no immunity waiver for intentional tort by
an employee
Federal law (§ 1983) – “Official policy” that deprives a person of Constitutional
rights
Coverage: “Course and scope”
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GUNS IN DISTRICT FACILITIES
HOW TO REACT??
• District employees should follow the same rules as
•
•
•
police officers
Employee safety should be paramount
For example, if a person enters a District facility with
a holstered handgun, the employees should do
nothing unless the person creates a disturbance
If that happens, summoning law enforecement is the
best court of action
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IF LAWFULLY DETAINED, CAN AN OFFICER
DISARM SOMEONE WHO IS CARRYING OPENLY
FOR ANY OFFENSE?
Yes. See § 411.207 of the Texas Government Code.
• Additionally, the officer must be able to reasonably
articulate that the person they disarmed was a threat
to their safety or the safety of others.
• Firearm shall be returned upon officer determining
there is no threat to their safety or the safety of
others.
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DISCUSSION
Should District employees be permitted to open or
conceal carry while in the course and scope of their
employment?
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POLICY CONSIDERATIONS
• Workplace safety training course
• Course authorized by HR
• A written policy signed by the employee
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OTHER HR ISSUES YOU
MUST KNOW ABOUT
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IS YOUR DISTRICT READY FOR THE NEW
OVERTIME RULES?
• Effective December 1, 2016
• Increases salary threshold for the FLSA’s overtime
•
exemption to $913 per week, $47,476 annually
Current threshold is $23,660 annually
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OPTIONS
• Raise salaries to maintain exempt status
• Re-classify employees to non-exempt (hourly rate of
•
pay)
DO NOT wait to re-classify until December 1
(Thursday)
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HOURLY EMPLOYEES
What constitutes hours worked?
“Employee” is “suffered or permitted” to work.
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HOURLY EMPLOYEES
Working at desk through lunch?
Checking emails from iPhone while at home?
Attending holiday party?
Attending board meeting voluntarily?
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IS YOUR LEAVE POLICY UP-TO-DATE?
FMLA & Extending Leave as a Reasonable
Accommodation
• FMLA allows employees up to 12 weeks of protective
leave
• Additional leave is considered a reasonable
accommodation
• Undue hardship
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HOW TO AVOID DISCRIMINATION
LAWSUITS
• Formal training for those in management positions
• Grievance process, training for non-management
• Conduct investigations
• Document
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DRUG TESTING EMPLOYEES –
CHECK YOUR POLICY
May the District Conduct Random Drug Tests of
Employees?
No.
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THE FOURTH AMENDMENT CONTROLS
• Governmental entity’s collection of blood, breath, hair
•
or urine is considered a search under the Fourth
Amendment
Can only test where there is shown a:
o Special need
o Reasonable suspicion
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SPECIAL NEED
SPECIAL NEED = SAFETY-SENSITIVE OR HIGH SECURITY
POSITIONS
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TESTING JOB APPLICANTS?
• 11 th Circuit Court of Appeals says “no” to across -the•
•
board testing. “Too broad”.
9 th Circuit says desire for drug free workplace not
enough.
No US Supreme Court case decision – declined to
hear.
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REASONABLE SUSPICION DRUG TESTING
• A gut feeling or rumors will not be enough
• Based on “observable phenomena”, such as direct
observation of drug use or possession and/or
physical symptoms of being under the influence of
drugs
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POST ACCIDENT DRUG TESTING
• Vehicle accidents
• On-the-job injury
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CONTACT US
500 N. Akard, 1800 Ross Tower, Dallas, Texas 75201
214.965.9900 Main ● 214.965.0010 Fax
Joseph J. Gorfida, Jr., Partner
[email protected] email
214-665-3323 direct
www.njdhs.com
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