Littler

Tennessee recently amended its Healthy Workplace Act (Act), which seeks to prevent abusive conduct at work, to cover private employers. Enacted in 2014, the Act previously applied only to public employers. The amendment, which extends the Act’s provisions to the private sector, took effect immediately when Governor Bill Lee signed the bill into law on April 23, 2019.

Under the Act, abusive conduct is classified as any act or omission that a reasonable person would find abusive, based on the severity, nature, and frequency of the conduct. The Act provides some examples of such conduct, including derogatory remarks or epithets; threatening, intimidating or humiliating conduct; or behavior undermining an employee’s performance at work.

While the law encourages employers to recognize and address abusive behavior, the Tennessee Attorney General has clarified that the Act does not create a new cause of action against employers.1 Rather, the Act immunizes employers from liability in lawsuits alleging negligent or intentional infliction of mental anguish if they adopt an abusive conduct prevention policy that meets certain standards. To be eligible for this immunity, the employer’s prevention policy must (1) help employers recognize and respond to abusive conduct at work, and (2) prevent retaliation against employees who report any abusive conduct.

The Tennessee Advisory Commission on Intergovernmental Relations (TACIR) has created a 23-page Recommended Workplace Civility Policy with a model policy that employers can adopt to meet these requirements, or they can create their own policies that comply with the statutory requirements. The model policy defines the types of conduct that constitute abusive behavior, and suggests various responsibilities for both employers and employees with respect to preventing and addressing abusive conduct.  This includes suggested protocol for training employees and supervisors about prevention of abusive behavior, as well as suggested requirements for reporting and investigating complaints of abusive conduct.

Because the law is now in effect for private employers as well as public entities, we recommend that Tennessee employers re-evaluate their policies and consider incorporating language that satisfies the immunity requirements of the statute.


Footnotes

1 Tenn. Office of the Att’y. Gen., Op. No. 15-01 (Jan. 6, 2015).

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