By Jeff Jones
Special to the UCBJ
In 2014, Tennessee was the first state to pass the Healthy Workplace Act. This Act addresses abusive conduct in state, county and city government workplaces and encourages safe and civil public workplaces for employees. In its Model Abusive Conduct Prevention Policy, the Tennessee Advisory Commission on Intergovernmental Relations (TACIR) details the progression of workplace bullying and the corresponding movements to combat work place bullying in the United States beginning in the early 1990’s.
According to the Healthy Workplace Bill’s website, the Bill aims to provide an avenue for employees for legal redress for health harming cruelty at work, compels employers to prevent and correct future instances, allows employees to sue the bully as an individual, hold the employer accountable and seeks restoration of lost wages and benefits. For employers, the Bill protects conscientious employers from vicarious liability risk when internal correction and prevention mechanisms are in effect, gives employers a reason to terminate or sanction offenders, requires plaintiffs to use private attorneys, requires proof of health harm by licensed health or mental health professionals, plugs the gaps in current state and federal civil rights protections and precisely defines an “abusive work environment.” (See www. Healthworkplacebill.org for more information.)
Within its model policy, TACIR quotes The Centers for Disease Control and Prevention National Institute for Occupational Safety and Health as it pertains to the interplay between abusive conduct and reporting of such conduct, noting:
… it is widely agreed that violence at work is underreported, particularly since most violent or threatening behavior—including verbal violence (e.g., threats, verbal abuse, hostility, harassment) and other forms such as stalking—may not be reported until it reaches the point of actual physical assault or other disruptive workplace behavior.
Department of Health and Human Services, 2004.5.
As a legal incentive for public employers to adopt a policy similar to or identical as the policy set forth in the Model Abusive Conduct Prevention Policy, the Healthy Workplaces Act provides that any government entity adopting the policy or conforms to the requirements set out in Tennessee Code Annotated, Section 50-1-503(b), is immune from suit for any employee’s abusive conduct that results in negligent or intentional infliction of mental anguish.
To obtain immunity under the Act, the policy must do two things. First, the policy must assist employers in recognizing and responding to abusive conduct in the workplace; and second, it must prevent retaliation against any employee who has reported abusive conduct in the workplace. The Act defines “abusive conduct” as “acts or omissions that would cause a reasonable person, based on the severity, nature, and frequency of the conduct, to believe that an employee was subject to an abusive work environment, which can include but is not limited to: repeated verbal abuse in the workplace, including derogatory remarks, insults, and epithets; verbal, nonverbal, or physical conduct of a threatening, intimidating, or humiliating nature in the workplace; or the sabotage or undermining of an employee’s work performance in the workplace.” The language of the statute makes clear the Act focuses primarily on the conduct itself versus the motivation and/or reasoning for the conduct.
Until recently, the Tennessee Healthy Workplaces Act only applied to public employers. In April 2019, Gov. Bill Lee signed into law a bill which expands the definition of “employer” to include private employers. While the amendment does not create a new cause of action for private employers, private employers who adopt an anti-abusive policy and procedure that meets with the statute’s requirements will have immunity from suit for negligent and intentional infliction of emotional distress claims.
It is important to mention; the adoption of this amendment does not mandate private employers to adopt to such a policy nor does it prevent private employers from exposure to harassments claims at the federal level or under Tennessee statutes pertaining to protected classes. Further, the amendment is unclear as to whether immunity is granted for employers who adopt the policy verses employer who adopt and enforce such a policy. Based upon the TACIR’s model policy, it appears a written policy alone may not be enough to invoke the immunity defense.
An even grayer area of law for private employers with the expansion of this Act seemingly lies within the Tennessee Workers’ Compensation laws and how to deal with harassment in the context of a workers’ compensation claim brought by an employee. While Tennessee’s workers’ compensation laws recognize that where the employee suffers from a nervous, emotional, or psychiatric injury, it may qualify as an occupational disease or an injury by accident (See Mays v. United States Fidelity & Guaranty Co., 672 S.W.2d (Tenn. 1982.); Jose v. Equifax, Inc. 556 S.W. 2d 82 (Tenn. 1977)), Tennessee courts have unswervingly held workers’ compensation claims pertaining to claims of negligent inflection of emotional distress based on conduct in the workplace are barred under its exclusive remedy provision. Based upon the language of the amendment as written it does not appear the exclusive remedy provision is affected. However, only time will tell as to whether the Act influences an amendment to the exclusive remedy provisions in the workers’ compensation realm.
Employers should weight the pros and cons of adopting an anti-bullying policy or altering an existing policy to meet the TACIR standards. From a cost perspective, the adoption of an anti-bullying policy in conjunction with the notion that the TACIR model policy suggests some form of enforcement rather than a policy alone, requires employers to conduct internal investigations to deal with bullying complaints. Some private employers may not have the capacity or capital to embark on such investigations.
Should employers opt to have a policy in place that holds abusers accountable for their actions they may deter misconduct and in turn, employers have a mechanism for corrective action and appropriate discipline for workplace abusers. In addition, without an anti-bullying policy, victims of abuse and harassment in the workplace remain unprotected and will not feel compelled to report such conduct.