Wednesday, January 28, 2009

OSHA: Oklahoma pro-gun law not preempted

From the Oklahoma City Journal Record:
OKLAHOMA CITY – The federal agency in charge of workplace safety does not believe the Occupational Safety and Health Act pre-empts an Oklahoma law prohibiting employers from forbidding the storing of firearms in workers’ cars, according to a letter filed in an appeal with the 10th U.S. Circuit Court of Appeals.

Oklahoma has appealed an October 2007 federal judge’s ruling, which said the 2004 state law conflicts with federal worker-protection laws, including the OSH Act.
The letter stating the Occupational Safety and Health Administration’s position, from Thomas Stohler, acting assistant secretary of labor for OSHA, to state Rep. Jerry Ellis, principal author of the Oklahoma law, was filed on the state’s behalf by Washington, D.C., attorney Charles J. Cooper.

Cooper said Stohler’s letter makes clear that the federal law does not pre-empt the Oklahoma statute.

“The district court’s judgment thus no longer has any legal support and should be reversed,” Cooper said in a letter to 10th Circuit Court Clerk Elisabeth A. Shumaker.
In the OSHA statement-of-position letter, Stohler said, “[W]e do not believe that, as a general matter, the general duty clause of the OSH Act pre-empts your state’s law.”

The clause requires employers to maintain workplaces free of “recognized hazards.”
Stohler said the OSHA law specifically preserves states’ authority to regulate occupational safety and health issues on which no OSHA standard is in effect.

“Since no OSHA standard specifically governs the issue of the presence of firearms in vehicles in company parking lots, states generally retain broad authority regarding individual rights under the Second Amendment to the U.S. Constitution, or state equivalent constitutional provisions, as they affect employers within federal OSHA’s jurisdiction,” Stohler stated.

“Gun-related violence is not a recognized occupational hazard in industry as a whole, under normal working conditions,” he wrote. “Therefore, state laws protecting an employee’s right to transport and store firearms in a locked car on employer premises would not on their face impede the employer’s ability to comply with the general duty clause.”

Stohler said employers are not required to implement policies to protect against random, unforeseeable acts of violence.

Article here. Hopefully, the Tenth Circuit will reverse the District Court's ruling, which held that the federal Occupational Safety and Health law preempted the state statute now under appeal. That statute prohibited employers from prohibiting employees from keeping firearms in their locked vehicles parked on company parking lots.

Update 20-Feb-2009: The original article on the Journal Record site has been archived in their subscription-only archive. A copy of the original article, however, is available here.

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