10th Cir. Occupational Heath & Safety Act does not preempt Okla. gun law

The Tenth Circuit held that the Occupational Health and Safety (OSH) Act does not preempt an Oklahoma law that prevents employers from banning firearms in vehicles on company property.

An Oklahoma law makes it a crime for employers to prohibit their employees from storing firearms in locked vehicles on company property.  In Ramsey Winch, Inc. v. Henry --- F.3d ----, 2009 WL 388050 (10th Cir. Feb. 10, 2009), the Tenth Circuit refused to enjoin this unusual law despite several employers’ claim that the law is preempted by the Occupational Health and Safety Act (OSH Act).

 

The Supreme Court’s recent decision in Altria Group v. Good, 129 S.Ct. 538 (2008) (summary)—which reaffirms “the assumption that the historic police powers of the States [are] not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress,” id. at 543—figured heavily in the Tenth Circuit’s decision.  As the Tenth Circuit notes, this presumption against preemption is strongest when “the alleged conflict is in an area traditionally occupied by the States.”   The Tenth Circuit concluded that the ultimate purpose of the Oklahoma gun rights law is to “deter crime”—apparently by increasing the likelihood that a potential victim would be armed—and that the state law accordingly fell within the state’s traditional police powers.

 

Having determined that it must apply a strong presumption against preemption, the court held that the Oklahoma law was not preempted by the OSH Act.  Noting that the Occupational Safety and Health Administration (OSHA), which has authority to promulgate workplace standards under the OSH Act, has expressly declined to promulgate standards on workplace violence, the court concluded that the Oklahoma law is preempted only if it conflicted with employer’s general duty under the Act to keep the workplace “free from recognized hazards that are causing or likely to cause death or serious physical harm.”  29 U.S.C. § 654(a)(1).

 

In considering whether an employer’s general duty encompasses the duty to protect workers from firearms in the workplace, however, the court again relied on OSHA’s refusal to take action against employers who fail to prevent violence in the workplace.  Relying heavily on an ALJ’s decision that the “hazard of physical assault [in the workplace] arises not from the processes or material of the workplace, but from the anger and frustration of people (Megawest Fin., Inc., 1995 OSAHRC Lexis 80 (May 8, 1995)), the court concluded that any potential harms which could arise from the presence of guns near a workplace are “simply too speculative and unsupported” to permit the court to hold that banning such firearms was a “clear and manifest purpose of Congress.”  

 

The court places a great deal of emphasis on the “assumption that the historic police powers of the States [are] not to be superseded” by federal law, noting that “[o]ur task . . . is not to second-guess the Oklahoma legislature, but rather to interpret the Congressional intent behind the OSH Act and its general duty clause.” Ramsey Winch can be understood as the Tenth Circuit’s indication that it takes Altria seriously, and will vigorously apply the presumption against preemption.

 

The Tenth Circuit also rejected claims that the Oklahoma law is unconstitutionally vague and that it violates the Takings Clause.