1. TAAO & ICTA ANNUAL CONFERENCE August 28-31, 2016
Hand Gun Laws & HR Issues --
Open & Conceal Carry

2. 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

3. The licensed carry laws
H.B. 910: Open Carry
S.B. 273: Prohibits Posting 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 . . .

4. 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.

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

6. yes
Section 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”.

7. (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)

8. 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 (Unlawful Carrying of a Weapon) by presenting their license to a peace officer.

9. 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.

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

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

12. IS OPEN OR CONCEAL CARRY PERMITTED AT ARB HEARINGS?

13. 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 & of the Texas Penal Code.

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

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

16. What are the sign and/or written notice requirements?

17. To prohibit those licensed from conceal carry, the sign and written notice effective January 1, 2016, are AS FOLLOWS:
PURSUANT TO SECTION 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 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.

18. To prohibit those licensed from conceal carry, the sign and written notice effective January 1, 2016, are AS FOLLOWS:
PURSUANT TO SECTION 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 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.

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

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

21. RIGHT OF DISTRICT AS EMPLOYER
Tex. Gov’t Code § ; Tex. Labor Code § 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”

22. 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

23. If lawfully detained, can an officer disarm someone who is carrying openly for any offense?
Yes. See § 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.

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

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

26. OTHER HR ISSUES YOU
MUST KNOW ABOUT

27. 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

28. 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)

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

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

31. 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

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

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

34. 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

35. SPECIAL NEED = SAFETY-SENSITIVE OR HIGH SECURITY POSITIONS

36. 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.

37. 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

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

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Joseph J. Gorfida, Jr., Partner direct