Labor: Illinois employers face firearms obligations and choices

Concealed Carry Law requires knowledge of rights and posting obligations

A recent piece in The New York Times highlights the choices and obligations facing employers in Illinois as the result of the passage of Firearm Concealed Carry Act.  In the article, Starbucks CEO Howard Schultz explained the company’s new position on the emotionally charged issue of gun rights: Starbucks is asking the public and its employees not bring guns to its stores and store grounds, unless they are licensed peace officers. Explaining that Starbucks is not a policy maker, and is neither pro- nor anti-gun, Schultz explained that guns should not be part of the Starbucks experience.

According to the Times, Starbucks had long followed local laws regarding open carry of firearms. In those states that allowed open carry, customers were allowed to open carry in its stores. Those in other states, notably Illinois, where firearms were not permitted to be carried, local law was observed and customers were not allowed to carry guns in the stores. Now the company is asking individuals to not bring guns into its stores — although it is only a request — they will not be denied service.

A couple of months before Starbucks changed its policy, the people of the state of Illinois changed their laws. On July 9, 2013, the Illinois General Assembly enacted the Illinois Firearm Concealed Carry Act, becoming the last state in the union to adopt a concealed carry firearms law. The law does not allow open carry; it permits concealed or partially concealed carry of firearms. The law requires an Illinois Concealed Carry License for a citizen to carry a concealed weapon in Illinois, excluding current peace officer and retired police officers under a federally approved program. The law becomes effective immediately, but the legislation gives the Illinois State Police, charged with enforcing the law, 180 days after the Act’s effective date to issue rules and regulations. The State Police will make applications available to the public on Jan. 5, 2014.

The law has a litigious history, borne out of the lawsuit known as Moore v. Madigan, in which the 7th Circuit found that the state’s ban on carrying firearms was unconstitutional and in violation of the Second Amendment. As a result of the lawsuit, the Illinois legislature was ordered by the court to, within 180 days, draft a law to allowing the carrying of a concealed firearm.

The law places restrictions on where firearms can be lawfully carried concealed. Conceptually, the law generally places restrictions on and makes distinctions between carrying a concealed weapon in public and private buildings and their parking areas. Specifically, the law prohibits concealed carry in private and public pre-school and daycare centers, and elementary and secondary educational establishments, and in their parking lots. The law also prohibits concealed carry in hospitals, mental institutions, and non-acute health centers, and their parking lots, and in establishments where more than 50 percent of the revenue is derived from the sale of alcoholic beverages, and their parking lots.

The law prohibits the concealed carry of firearms in any building or parking area of any area under the control of the executive or legislative branches of state government, except for areas under the control of the Department of Natural Resources where firearm possession is permitted. The law also prohibits concealed carry in any court building, or building under the control of local government, or any area where firearms are prohibited under federal law. The prohibition also extends to any building or parking area of any adult or juvenile detention or correctional institution, prison or jail.

Additionally, the law prohibits concealed carry in public parks, playgrounds, and athletic facilities, licensed gaming establishments, sports stadiums/arenas, airports, and amusement parks, museums, and zoos, and their respective parking areas. Public and private colleges and universities are free to develop policies regulating the carrying of concealed firearms, including parking areas. Cryptically, the law states that the owner of real property of any type may prohibit the carrying of concealed weapons on the property under his or her control, but the owner must post a sign noting that firearms are prohibited on the property.

The law contains important rights for retailers and employers like Starbucks. It provides that an employer may prohibit firearms or weapons on its property. Specifically, the law states that signs prohibiting the concealed carry of guns shall be posted at the entrance of any building, premises, or real property specified as a prohibited area, unless the building or premises is a private residence. The law also provides that the owner of private real property of any type may prohibit the carrying of concealed firearms on the property under his or her control. This would mean inside stores, in outdoor areas, and in parking areas which the store owner or employer owns. To invoke this prohibition, a sign measuring 4” x 6” inches must be conspicuously posted. The state police are mandated with adopting rules for the standardization of signs. As noted, employers who are in control of statutorily prohibited zones must also post this approved sign. The law provides an express presumption that concealed firearms are allowed to be carried on the property if no approved sign is posted. The state approved sign will be available on the web site of the Illinois State Police. The law also acts as a denial and limitation on home rule powers under the Illinois Constitution.

The law provides an important exception which applies to all employers and all statutorily prohibited areas. This exception provides that a person may lawfully carry a concealed weapon in a vehicle in a parking lot and may carry and store the firearm in a locked case, in a locked, parked vehicle in the parking lot. When stored in the vehicle, it must be in a secured container out of plain view. The law also provides that a person may carry the concealed weapon in the immediate area around the vehicle in the prohibited parking area, for the limited purpose of storing and retrieving the weapon from the vehicle’s trunk, provided the person ensures the firearm is unloaded before exiting the vehicle.

Because of the language concerning prohibited areas and a failure to adequately address a private employer’s property rights, it can be expected that there will be litigation over the extent to which an employer may prohibit firearms in areas adjacent to the physical establishment where it conducts business, such as parking lots. Given the tension between the presumption of lawful carry when no sign prohibiting carry is posted, and given the statutory language allowing concealed carry in parking lots, future litigation will focus on the extent to which businesses may prohibit employees and customers from carrying concealed firearms in outdoor and parking areas, and whether there has been adequate posting.

A prudent employer will have a written policy, either stand alone or in an employee handbook, which applies to visitors and employees, stating its policy with regard to weapons on its property, including its parking lot, and other areas that it controls. For those employers who wish to prohibit concealed weapons on its property, it should clearly specify where concealed carry is prohibited, and post conspicuously in those areas where the prohibition applies, including parking areas. Other employers may be more gun friendly, allowing concealed carry in its physical buildings, and/or in the parking lots.  Regardless of the employer’s gun stance, a clear, well drafted policy and conspicuous posting should go far in protecting an employer’s rights, and fulfilling its legal obligations.

Contributing Author

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Mark Spognardi

Mark Spognardi is a partner at Arnstein & Lehr. He focuses on representing management in traditional and non-traditional labor and employment law matters, including counseling,...

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