THIS ARTICLE FIRST APPEARED IN HRLAWS.COM’S TENNESSEE EMPLOYMENT LAW LETTER BY BUTLER SNOW’S KARA E. SHEA.
Private employers in Tennessee will want to take note of a recent expansion of existing law, promising legal immunity for employers that adopt antibullying policies.
Background
Looking back at the history of employment law trends, before the current #MeToo era, there was the antibullying era. Some readers may recall in 2014, various forms of antibullying legislation were introduced in state legislatures around the country. And in fact, Tennessee was the first state to actually enact workplace antibullying legislation.
The Healthy Workplace Act (HWA), which was passed in 2014 and went into effect in 2015, did not actually create a legal claim based on workplace bullying. Rather, it encouraged employers to prevent abusive workplace conduct by adopting a model policy to be created by the Tennessee Advisory Commission on Intergovernmental Relations (TACIR).
According to the Act, an employer that adopts a compliant antibullying policy would be legally immune to lawsuits alleging “infliction of mental anguish based on its employees’ abusive conduct.” However, the 2015 version of the HWA applied only to public employers. Private employers were not affected by the law and so generally paid it little attention.
Recently, however, the HWA was expanded to cover private employers. House Bill (HB) 856, which was signed into law by Governor Bill Lee on April 23, 2019, goes into effect immediately. Rather than enact any substantive changes to the HWA, it merely expands the law to cover private employers. There’s no workforce size requirement, so it appears all Tennessee employers—large and small, public and private—are covered by the Act.
Policy requirements
For an antibullying policy to pass muster under the HWA, it must prohibit “abusive conduct” in the workplace, such as:
- Repeated verbal abuse, including derogatory remarks, insults, and epithets;
- Verbal, nonverbal, or physical conduct of a threatening, intimidating, or humiliating nature; or
- The sabotage or undermining of an employee’s work performance.
The HWA further provides that a compliant policy should (1) assist employers in recognizing and responding to abusive conduct and (2) prevent retaliation against any employee who has reported abusive conduct. An example of a model antibullying policy approved by TACIR may be found at https://www.tn.gov/content/dam/tn/tacir/commission-meetings/2015-january/2015Tab%204HealthyWorkplace.pdf.
It should be noted that the TACIR model policy stresses the importance of promptly investigating employee claims and training supervisors regarding this issue. Therefore, employers wishing to reap the benefits of the HWA should take steps not just to enact a written antibullying policy but also to actively educate their workforce on—and consistently enforce—its antibullying rules.
Employers contemplating enacting an HWA-compliant antibullying policy should remember the nature of the “immunity” offered is a bit unclear. Currently, there’s no statutory claim for bullying in Tennessee or at the federal level.
You should also bear in mind that some “abusive” behavior the Act says should be covered by an antibullying policy may implicate state and federal laws prohibiting harassment based on membership in a protected category such as race or gender. It seems unlikely that enacting an HWA-compliant antibullying policy would provide immunity against discrimination and harassment lawsuits filed under existing civil and human rights laws, although such lawsuits typically do allege “infliction of mental anguish based on . . . abusive conduct.” The HWA makes clear, however, that neither the law itself nor the adoption of an antibullying policy under the law creates a claim for bullying, so there’s no concern about potential increased exposure resulting from adopting such a policy.
Bottom line
While enacting an HWA-compliant policy may not end up providing full immunity covering all “abusive” conduct directed to your employees, it would certainly be a positive factor in defending any such claim, particularly with respect to abusive conduct that doesn’t constitute harassment or discrimination based on categories currently protected by law. Tennessee private employers that don’t already have antibullying policies may want to get busy drafting them for upcoming editions of their handbooks. As always, when in doubt about enacting new workplace policies, it’s best to seek the advice of an experienced employment attorney.
