Conceal and Carry Rules for Minnesota Businesses
By Linda L. Holstein and Anh T. Le

On May 28, 2003, the Minnesota Citizen's Personal Protection Act of 2003, more commonly known as the "conceal and carry" law, went into effect in Minnesota. While Minnesota has had a conceal and carry statute in place since 1975 (giving local police authority the discretion to issue concealed gun permits to individuals based on occupational and safety need), the 2003 amendment significantly changes the permit process in this state by mandating that concealed handgun permits be issued to all applicants not otherwise specifically excluded by law. The act also imposes new restrictions and notice requirements with which business owners and employers must comply before they may ban concealed handguns on their premises. Not only has this new legislation sparked statewide controversy, but many employers and business owners are left wondering how to deal with certain vague and seemingly impractical provisions of the law, and more importantly, what they can do to prevent or minimize the risk of gun-related incidents in the workplace.

Overview of the Law

The "shall issue" conceal and carry legislation was not a new item on this year's legislative agenda. The House passed a "shall issue" handgun bill during the 2001 Minnesota legislative session, but a companion bill failed in the Senate; a subsequent effort to revive the bill in the Senate in 2002 also failed.1 In 2003, several conceal and carry bills were introduced in the Legislature. The present version of the new conceal and carry bill passed both the House and Senate after the "shall issue" language from the House file was attached to a Department of Natural Resources technical bill.2

The new law allows any person who has a concealed-handgun permit to lawfully carry a pistol in any public place where that is not prohibited by statute. A permit will be issued to any person who:

1) Completes an application for a permit (and submits the requisite application fee, which is not to exceed $100);

2) Presents evidence that he or she has had gun safety training within a year of his or her application for a permit;

3) Is at least 21 years old and a U.S. citizen or permanent U.S. resident;

4) Is not prohibited from possessing a firearm under other laws; and

5) Is not listed in the criminal gang investigative data system.

Under the law, an individual with a concealed-handgun permit may then "carry, hold or possess a pistol in a motor vehicle, snowmobile, or boat, or on or about the person's clothes or the person's [body]" in any "public place" -- i.e., any governmental property or "private property that is regularly and frequently open to or made available for use by the public in sufficient numbers."3 For employers and business owners, this may potentially result in countless employees, customers, and visitors -- and in law firms this inevitably includes opposing counsel, parties, expert witnesses, and couriers to name a few "outsiders" -- carrying guns in their purses, briefcases, or on their bodies.

Effects on Businesses

Employers and private business owners (building owners, operators and tenants but not landlords) may ban guns on their premises if they comply with certain notice requirements. The act states that, "An employer, whether public or private, may establish policies that restrict the carry[ing] or possession of firearms by its employees while acting in the course and scope of employment."4 However, an employer may not prohibit guns in "a parking facility or parking area."5

The act does not define the term "course and scope of employment." Nonetheless, under common law, the phrase "course and scope of employment" loosely means acts by an employee relating to his or her duties as an employee and "within the work-related limits of time and place."5 An employer is presumably able to ban guns not just on its work premises (excluding parking lots), but also in a vehicle or on the employee's person if the employee is "off-site" performing duties on behalf of the employer and that relate to actual job directions or assignments. The difficult question then becomes, "what about an employee who uses a vehicle to perform his or her duties some of the time but parks the vehicle in the parking lot while on-site?" The employer should at least be able to require the worker to store any permitted handgun in the trunk of the worker's car and can probably ban handguns (under an employee policy) from any company-owned vehicle.

The act allows "employers" to regulate possession of guns only by "employees." Until the courts or Legislature clarify this provision, this may mean that businesses are not allowed to implement workplace policies banning independent contractors, temporary employees and job applicants from carrying a gun on premises, unless of course, they have an overall "premises" ban in place as described below.

Like employers, business owners may also restrict individuals from carrying guns on-site if the operator of the establishment makes a "reasonable request that firearms not be brought into the establishment." To satisfy the "reasonable request" requirement, the private establishment must:

1) have a conspicuous sign posted at every entrance to the establishment that states, "[name of the company] bans guns in these premises." The sign(s) must be in black Arial typeface at lease 11/2 inches in height against a bright contrasting background that is at least 187 square inches in area (which translates to an 11x17 sign). The sign(s) must be readily visible and within four feet laterally of each entrance with the bottom of each sign at a height of four to six feet above the floor;

and

2) personally inform the person of the posted request and demand his or her compliance.

Proper notice is given only if the operator of the establishment does both -- posts the requisite sign and personally informs the person of the posted request and demands his or her compliance.7

Minimizing Risk

Concerned employers and business establishments can help reduce risk by taking a few simple steps:

• Amend employee handbooks to include a policy banning employees from carrying guns on work premises (excluding parking lots) and off-site while performing tasks on behalf of the employer relating to the employee's job duties. The policy should specifically reserve the employer's right to inspect employee workstations, purses, and briefcases on premises, and state that an employee's failure to comply with such policy may result in disciplinary action, up to and including termination of employment. Employees should be required to sign an acknowledgment stating that they received a copy of the employer's policy, understand it, and agree to abide by such policy.
• While it appears that an employee policy banning guns on work premises may not cover temporary employees and independent contractors, employers should be able to modify their contracts with temporary placement agencies and independent contractors to add language restricting guns on work premises.
• Institute a "premises ban" by posting signs at each entrance to notify the public of the gun ban on their premises. In addition, the operator of the business establishment will need to personally inform each person of the gun ban either verbally or in writing (for example, by giving each visitor a post-card notifying him or her of the gun ban, or providing a "guest book" for visitors to sign containing the gun ban notice).

While taking all of the above measures does not eradicate all risks associated with guns in the workplace and on business premises, it minimizes an employer or business owner's exposure to gun-related incidents and thereby reduces at lease some of the risk of gun-related liability for Minnesota businesses.

NOTES
1. Minnesota Legislative Reference Library, Resources on Minnesota Issues: Firearm Carry Laws (September 2001, updated April 2003).

2. An earlier version of the law would have required business owners to have a personalized "secure storage facility" on premises for visitors to store their handguns. Incredibly, it would have imposed strict liability on the business establishment for "the item secured in the storage provided and for the personal safety and protection of the person and party while the person is within the establishment or attending the event." See H.F. 261, 2nd Engrossment: 83rd Legislative Session (2003-2004) (emphasis added).

3. Minn. Stat. §§624.714, Subd. 1(a), 624.7181, subd. 1(c) (2003).

4. Minn. Stat. §624.714, subd.18 (2003) (emphasis added).

5. Id.

6. See Fehrendorff v. North Holmes, Inc. d/b/a I.T.A.S.K.I.N House, 597 N.W.2d 905, 910 (Minn. 1999).

7. Several members of the Legislature, along with Governor Pawlenty, proposed a last-minute amendment that would have eliminated the dual notice requirement. They proposed changing the "reasonable request" definition to allow private establishments to choose either to post a sign banning guns on premises or personally to inform visitors of the gun ban. However, the proposed amendment did not pass. See Conrad deFiebre, "Conceal-Carry Gun Law Takes Effect Today," Star Tribune, May 28, 2003.

LINDA L. HOLSTEIN is the head of the litigation department at Parsinen Kaplan Rosberg & Gotlieb, P.A., concentrating her trial practice in employment and commercial law. She is a frequent media commentator on employment, business, and political issues.

ANH T. LE is an attorney at Parsinen Kaplan Rosberg & Gotlieb, P.A. practicing in the areas of employment law and commercial litigation. She is a cum laude graduate of William Mitchell College of Law, where she was a member of the Law Review.