Recent Court Decision Clarifies Public Employers’ Ability to Regulate Firearms
New Hampshire private sector employers may take for granted their right to prohibit employees from bringing guns to work, but it is not so simple for New Hampshire’s public employers (towns, cities, public schools, etc.). RSA 159:26, enacted in 2011, stripped “political subdivisions” of their ability to regulate firearms, and gave exclusive regulatory authority to the State Legislature. RSA 159:26 provides that, “[N]o ordinance or regulation of a political subdivision may regulate the sale, purchase, ownership, use, possession, transportation…, or other matter pertaining to firearms…in the state.” (Emphasis added.)
Public employers have the same interest in protecting the safety of their employees as their private sector counterparts. But since the adoption of RSA 159:26, public employers have questioned whether they can adopt workplace policies prohibiting employees from possessing firearms at work. A June 17, 2019 Superior Court decision strongly suggests that the statute was not intended to interfere with the ability of local governments to regulate employee conduct.
In O’Connor v. Manchester Housing and Redevelopment Authority (MHRA), the plaintiff was fired after he brought handguns and ammunition to work, in violation of a collective bargaining agreement (CBA) provision which states:
No employee of the MHRA is authorized to carry or otherwise possess on his or her person, MHRA premises or vehicles, a firearm, or other deadly weapon while the employee is employed during regular working hours of the MHRA….
The plaintiff claimed that the CBA was an illegal governmental regulation of firearms. The Superior Court disagreed, ruling that RSA 159:26 did not nullify the CBA’s prohibition of employee firearm possession because the CBA is a form of employment contract, not “an ordinance or regulation” within the meaning of RSA 159:26.
This court decision is extremely helpful to those public employers who have incorporated firearms rules and policies into their CBAs. The reasoning behind this decision should also be of benefit to public employers who do not have firearms policies in their CBAs or any formal contracts with their employees. Those employers typically rely on personnel manuals, departmental operating procedures or administrative codes to establish permissible workplace behaviors.
In its 1988 decision in Panto v. Moore Business Forms, the New Hampshire Supreme Court held that employee personnel handbooks and manuals are forms of unilateral contracts, even for employees who are otherwise “at will.” The Court reasoned that each day an at-will employee reports to work, he or she does so subject to the policies and promises set forth in the employer’s manual or handbook, which form the basis of a contractual relationship between employer and employee for that work day.
If, under Panto, codes of conduct are part of a unilateral employment contract, then the O’Connor decision should give public employers some confidence that their restrictions on firearms set out in handbooks, manuals or other codes of conduct do not run afoul of RSA 159:26. This analysis would give public sector employers the same options as their private sector counterparts in terms of their ability to adopt workplace firearms policies.
Mark Broth is a member of Drummond Woodsum’s Labor and Employment Group. His practice focuses on the representation of private and public employers in all aspects of the employer-employee relationship. Matthew Decker is a member of the firm’s Municipal Law Group representing clients in a wide range of municipal law matters.