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

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 . . .

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.

IS AN INDIVIDUAL REQUIRED TO HAVE A LICENSE TO OPEN CARRY?? CONCEAL CARRY??

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”.

(Provided No Other Criminal Violation Has Been Observed) 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)

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.

What type 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.

WILL open carry be allowed in the lobby of a governmental building? Yes.

Is open or conceal carry permitted at a meeting of the district?

IS OPEN OR CONCEAL CARRY PERMITTED AT ARB HEARINGS?

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.

Can board members conceal carry but still prohibit the general pubLic from conceal carry during meetings?

IS OPEN CARRY ALLOWED ON PUBLIC TRANSPORTATION (e.g., dart)? Yes.

What are the sign and/or written notice requirements?

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 PROPERTY 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.

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 PROPERTY 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.

Is open carry or conceal carry permitted in areas not accessible by the general public?

Should the district keep the 30.06 & 30.07 signs posted at all times?

RIGHT OF DISTRICT AS EMPLOYER Tex. Gov’t Code § 411.203; Tex. Labor Code § 52.061 et seq. District can prohibit its employees from carry 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 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”

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

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.

Discussion Should District employees be permitted to open or conceal carry while in the course and scope of their employment?

POLICY considerations Workplace safety training course Course authorized by HR A written policy signed by the employee

OTHER HR ISSUES YOU MUST KNOW ABOUT

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

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)

HOURLY EMPLOYEES What constitutes hours worked? “Employee” is “suffered or permitted” to work.

Hourly employees Working at desk through lunch? Checking emails from iPhone while at home? Attending holiday party? Attending board meeting voluntarily?

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

How to avoid discrimination lawsuits Formal training for those in management positions Grievance process, training for non-management Conduct investigations Document

DRUG TESTING EMPLOYEES – CHECK YOUR POLICY May the District Conduct Random Drug Tests of Employees? No.

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: Special need Reasonable suspicion

SPECIAL NEED = SAFETY-SENSITIVE OR HIGH SECURITY POSITIONS

Testing job applicants? 11th Circuit Court of Appeals says “no” to across-the-board testing. “Too broad”. 9th Circuit says desire for drug free workplace not enough. No US Supreme Court case decision – declined to hear.

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

Post accident drug testing Vehicle accidents On-the-job injury

500 N. Akard, 1800 Ross Tower, Dallas, Texas 75201 Contact us 500 N. Akard, 1800 Ross Tower, Dallas, Texas 75201 214.965.9900 Main ● 214.965.0010 Fax Joseph J. Gorfida, Jr., Partner jgorfida@njdhs.com email 214-665-3323 direct www.njdhs.com