Tennessee’s Anti-Bullying Law Now Applies to Private Employers
Miller & Martin PLLC Alerts | June 24, 2019
Author: Stacie Caraway
The Tennessee General Assembly has recently passed two laws which will impact Tennessee employers. The first involves a model anti-bullying policy addressed below. The second uses the 20-factor IRS test to identify independent contractors vs. employees (click here to read more).
The Tennessee General Assembly passed the Healthy Workplace Act back in 2014, which provided immunity to public employers for employee claims relating to workplace bullying if they adopted the model anti-bullying policy which was issued by the Tennessee Advisory Commission on Intergovernmental Relations (TACIR) back in 2015.
The expansion of this law to private employers was signed by Governor Lee on April 23, 2019 and went into effect immediately.
The TACIR model policy is available on the tn.gov website. (Note there is no separate model policy for private employers. The one developed in 2015 for public employers can be used by private employers with just a few modifications. Please let us know if you need assistance in making these modifications.)
Employers wishing to receive the immunity offered by implementing this model policy also are encouraged in the Healthy Workplace Act to provide training to their supervisors and managers regarding this policy. “Training should identify factors that contribute to a respectful workplace, familiarize participants with responsibilities under this policy, and provide steps to address an abusive conduct incident.”
A few words on what implementing this model policy will NOT mean.
Employers who choose not to adopt this model policy are not creating any new liability for themselves. Employees cannot sue based on an employer deciding not to implement this policy. Employees also will still have to prove all of the elements of a negligent or intentional infliction of emotional distress claim, which include providing evidence of “a serious mental injury” through either physiological manifestations such as nausea, severe weight gain or loss, headaches, insomnia, etc. or psychological manifestations such as depression, anxiety, nightmares, drug or alcohol abuse or other significant impacts on the employee’s daily life for which he/she seeks professional treatment and the duration and intensity of which are severe, if their employer does not adopt this model policy. There are also certain instances in which the conduct itself may be deemed to be so “extreme and outrageous” so as to provide evidence of “a serious mental injury” on its face.
Employers who choose to adopt the TACIR model policy will just be able to plead it as a defense to such claims IF the claims also are related to workplace bullying. In other words, the model policy is not a defense to all claims of negligent or intentional infliction of emotional distress claims, only to those relating to workplace bullying.
On this same point, adopting this model policy also will not allow employers to escape liability for violations of state and federal anti-harassment and discrimination laws merely by calling the behavior “bullying.” An employee thus may make a complaint involving both “bullying” and race, gender, religious, etc. harassment or discrimination, and, if so, they may still be able to file a charge with the EEOC or THRC and/or a lawsuit for harassment and/or discrimination despite their employer adopting the TACIR model policy regarding workplace bullying.
Employees also will still be free to sue their supervisors and managers or whomever engaged in the bullying conduct against them personally. The fact that their employer adopted the TACIR model policy will provide no immunity against individual liability. (But see the above discussion regarding the elements an employee has to prove in order to establish such liability. “Hurt feelings” or “someone being mean to them” will not be enough, “model policy” or not.)
As always, should you have any questions regarding either of these developments, please contact Stacie Caraway or any other member of our Labor & Employment Law Practice Group.