Articles Discussing General Topics Under Tennessee Labor & Employment Law.

Tennessee Governor Bill Haslam has signed into law a bill removing individual liability for employment discrimination under the Tennessee Human Rights Act from supervisors or employer agents, and capping discriminatees’ “non-pecuniary” damages, among other things. The new law will apply to all causes of action accruing on or after July 1, 2014.

Executive Summary: Tennessee has drastically changed the legal landscape of employment discrimination litigation under state law. For claims arising after July 1, 2014, plaintiffs will no longer have the ability to seek unlimited compensatory damages in discrimination lawsuits; the common law claim of retaliatory discharge has been eliminated; and restrictions have been adopted on whistleblower claims. In addition, no longer will a supervisor or agent of the employer be subject to individual liability. These changes were designed to make the state employment discrimination laws mirror the federal discrimination laws.

Tennessee has joined the growing number of states that prohibits employers, including government entities, from requesting or requiring access to the private social networking or online accounts of employees and job applicants. The Employee Online Privacy Act of 2014, signed by Governor Bill Haslam on April 29, 2014, will take effect January 1, 2015, but the new law will not apply to a contract entered into prior to that date that permits an employer action prohibited by the Act unless or until the contract is renewed on or after that date.

Legislation to restrict employers’ access to applicants’ and employees’ personal online content continues its rapid expansion in 2014.1 Three weeks after Wisconsin became the 13th state to adopt its own social media password protection law, on April 29, 2014, Tennessee Governor Bill Haslam signed his own state’s password protection law. This new law goes into effect on January 1, 2015.

Business-friendly Tennessee, known for its low business taxes and minimal red tape, is on track to be even friendlier if Governor Bill Haslam signs a bill removing liability for employment discrimination from individual supervisors or agents under the Tennessee Human Rights Act and limiting discriminatees’ “non-pecuniary” damages, among other things. Once signed, the new law will become effective July 1, 2014.

The Tennessee Wage Regulation Act provides no private right of action to aggrieved employees, a federal district court in Nashville has ruled in a collective action for alleged unpaid wages. Abadeer v. Tyson Foods, Inc., No. 3:09-cv-00125 (M.D. Tenn. Oct. 3, 2013). However, the U.S. District Court for the Middle District of Tennessee also ruled the employer violated the Fair Labor Standards Act and breached its employment agreement with the employees by failing to pay them for all hours worked, including pre- and post-shift activities. But the court denied summary judgment to the employees on their claim for uncompensated meal periods.

In an action for negligent infliction of emotional distress and retaliatory discharge under Tennessee law, an employee is not required to offer expert testimony to prove the negligent infliction claim because it was “parasitic” to her retaliatory discharge claim, rather than a “stand-alone” claim, the Court of Appeals of Tennessee has ruled.

Executive summary: On February 5, 2014, members of the Tennessee Senate voted down an amendment that would have created a specific employment protection for gun owners. The amendment sought to add a provision to the controversial “guns in trunks” law passed last year by the General Assembly, which would have prohibited Tennessee employers from terminating gun owners based on their exercise of the rights protected by the guns in trunks law.

A licensed time-share salesperson was not entitled to unemployment benefits following the termination of her service agreement with a time-share company because she was a “licensed real estate agent” excluded from the Tennessee Employment Security Law, the Tennessee Supreme Court has ruled. Westgate Smoky Mountains at Gatlinburg v. Phillips, et al., No. E2011-02538-SC-R11-CV (Tenn. Dec. 23, 2013). Declining to impose unemployment tax liability on the time-share company, the Court reinstated the judgment in favor of the company.

An employee “whistleblower” suing for retaliatory discharge under Tennessee law must have reported the alleged misconduct to someone other than the person engaging in the alleged misconduct, the Tennessee Court of Appeals has ruled. Haynes v. Formac Stables, Inc., No. W2013-00535-COA-R3-CV (Tenn. Ct. App. Dec. 4, 2013). Where the plaintiff-employee’s complaint was to the owner of the company, who was a participant in the allegedly illegal activity, the Court found the employee failed to establish a claim and affirmed dismissal. Further, the intermediate appellate court declined to recognize an exception to the reporting requirement where the person engaged in the misconduct is the owner or manager of the employer.

“In an employment setting, if there is too much work required of too few employees, either the work will not get done or the quality of the work will be diminished,” a unanimous Tennessee Supreme Court stated, upholding a jury verdict against a nursing home’s corporate manager for the wrongful death of one of the home’s residents. Wilson v. Americare Sys. et al., 397 S.W.3d 552 (Tenn. 2013). Reversing the Tennessee Court of Appeals, the Court ruled the jury verdict was supported by sufficient evidence showing that the insufficient staffing levels led to deviations in the standards of care and ultimately caused the resident’s death. The Court returned the case to the Court of Appeals to review the $5 million punitive damages award against the management company.

Executive Summary: Banks and other financial institutions in Tennessee should take note of a recent string of lawsuits filed in Tennessee challenging the accessibility of automatic teller machines (ATMs). The lawsuits, which seek class certification, have been brought by a visually impaired plaintiff claiming the defendant institution’s ATM lacks features required by recent changes to the Americans with Disabilities Act’s (ADA) guidelines for visually impaired individuals.

Executive Summary: The Nashville Post recently reported that Tennessee Governor Bill Haslam may be open to legislative efforts to include additional protections for employee gun owners in 2014.

Tennessee law previously required that a disabled person operating a guide dog first present for inspection credentials issued by an accredited school for training dog guides before admittance to a place of public accommodation and that a guide dog wear a harness and be held on a leash. The Tennessee General Assembly has eliminated these requirements, effective July 1, 2013, to make the law more consistent with the Americans with Disabilities Act’s directive on how a place of public accommodation must address the use of service animals by an individual with a disability. Tennessee Attorney General Robert E. Cooper, Jr., on July 26, 2013, confirmed that Tenn. Code Ann. § 62-7-112 does not conflict with the ADA. Opinion No. 13-59, “Admission of Service Dogs in Places of Public Accommodation.”

A revision to the Tennessee Workplace Violence Act has seen an unexpected use — to seek a temporary restraining order to prohibit a co-employee’s access to the workplace. The Tennessee Workplace Violence Act (Tenn. Code Ann. § 20-14-101) was amended in 2011 to allow any employer or employee who has suffered unlawful violence, or a credible threat of violence, which can reasonably be construed to have been carried out at the workplace, to seek a temporary restraining order or injunction prohibiting further unlawful violence, or threats of violence, by that individual, or the organization that individual is affiliated with, at the workplace.