Every summer a host of new Tennessee laws take effect. In the 2021 session of the 112th General Assembly, the state legislature passed a multitude of laws, including:

• Constitutional carry — which we’re told has nothing to do with pocket-sized constitutions (Pub. Ch. 108);
• Stiffer sentences for porch pirates — criminals who steal packages left in mailboxes or on doorsteps) (Pub. Ch. 364); and
• Tractor lemon law — which interestingly applies to more than just lemon farmers (Pub. Ch. 411).

In addition to these noteworthy legislative developments, the General Assembly also passed several laws that will impact those of us who deal in the labor and employment law arena. Although they may not garner as much attention as permit-less access to firearms, protect your Amazon packages from bold burglars, or get your faulty John Deere replaced, we highlight below some important employment law changes coming out of Nashville.

Tennessee Public Protection Act Clarified

The Tennessee Public Protection Act (TPPA) states that “no employee shall be discharged or terminated solely for refusing to participate in, or for refusing to remain silent about, illegal activities.”¹  What if an employee refuses to remain silent about sexual harassment? Clearly, the Tennessee Human Rights Act makes sexual harassment illegal.² It also makes retaliation for opposing sexual harassment illegal. So is the employee’s remedy under the TPPA, the THRA, or both?

A 2019 decision from the Tennessee Court of Appeals, Weinert v. City of Sevierville, indicates that the answer may have been both, at least prior to this recent amendment.³ In Weinert, the employee brought a TPPA claim after she was terminated, alleging her termination was because she complained about being sexually harassed by two other officers. Although the claim ultimately failed, the Court of Appeals held that the employee’s complaint about being sexually harassed was considered “illegal activity” within the meaning of the TPPA.

Public Chapter 556 (effective May 26, 2021) amends the TPPA to clarify that an employee cannot, under the TPPA, bring an employment retaliation claim for complaining about discrimination or harassment. This amendment clarifies that retaliation claims based on unlawful discrimination or harassment must brought under the THRA, not the TPPA.

The amendment is also important for punitive damages purposes. Whether punitive damages are available under the TPPA is an unsettled question.⁴ But under the THRA, punitive damages are not available except for claims for discriminatory housing and malicious harassment.⁵ As a result of the amendment, punitive damages are not available for retaliation claims based on complaints of harassment and discrimination because such claims are the exclusive province of the THRA and may not be brought under the TPPA.

Employment Protections for Tennessee National Guard Members

Tennessee’s National Guard servicemen and women were instrumental in the state’s response to COVID-19. Public Chapter 284, commonly known as the Reemployment Act, went into effect on July 1, 2021. It revises the current law to specify that the existing unpaid leave protections for service members apply to employees who are on active state duty as members of the Tennessee National Guard, Tennessee State Guard, or civil air patrol, pursuant to active state duty provisions. Under this bill, these individuals will also be entitled to equivalent protections regarding the right to reemployment to those protections afforded under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) to service members called to federal active service.

To be eligible for the unpaid leave and reemployment protection, employees are subject to certain rules depending on the length of their active-duty service. For active-duty service that was 30 days or less, employees must return to work the next regularly scheduled workday (after an eight-hour rest period from their return). For active-duty service that lasted between 30 and 180 days, the employee must apply for reemployment within 14 days after active-duty ends. For active-duty service that was greater than 180 days, employees must apply for reemployment within 90 days after active-duty ends. There are certain exceptions to these requirements when they become unreasonable under the circumstances.

The new law requires a person protected by these unpaid leave and reemployment provisions to provide advance notice to the individual’s employer of the competent call to active state duty, unless impossible or unreasonable. Also, the Reemployment Act provides that the chancery court in the jurisdiction where the protected individual is employed has jurisdiction and authority to enforce these provisions, including ordering an employer to comply with the provisions.

Disabled Veteran State Employees

State employees, who are disabled veterans (with a service-connected disability of 30% or more), are now eligible to receive 36 hours of sick leave each year to attend appointments related to their disability. This new law (Pub. Ch. 427) went into effect on July 1, 2021. Its purpose is to prevent disabled veterans from using their sick or vacation time to attend Veterans Administration (VA) appointments.

The Reentry Success Act of 2021

As part of a criminal justice reform initiative, the Reentry Success Act of 2021 (Pub. Ch. 410) seeks to alleviate barriers for those leaving incarceration and returning to society. In order to assist those leaving incarceration in obtaining employment, this new law provides certain liability protections for employers who hire individuals previously convicted of a criminal offense.

The law prohibits causes of action for negligent hiring, training, retention or supervision of an employee based solely on the fact that the employee was previously convicted of a criminal offense. Obviously, if the cause of action is based on more than just a prior conviction, then the liability protection would not apply. Additionally, the law makes any evidence of a prior conviction inadmissible in a suit for negligent hiring, training, retention or supervision.

The employment provisions of the Reentry Success Act of 2021 became effective on May 11, 2021.

Legislative Wrap-up

The amendments to the TPPA were an attempt to clarify an unsettled area of retaliation law in Tennessee. The General Assembly also sought to provide employment protections to active-duty service members and veterans in its recent session. Finally, the Reentry Success Act is an attempt to encourage employers (through a liability shield) to hire individuals with criminal records. While there were a lot of important developments out of Nashville last session, the amendments discussed above will truly affect The Law at Work. 

EDWARD G. PHILLIPS is a lawyer with Kramer Rayson LLP in Knoxville, where his primary areas of practice are labor and employment law. He graduated with honors from East Tennessee State University and received his law degree from the University of Tennessee College of Law in 1978 with honors, and as a member of The Order of the Coif. He is a former chair of the Tennessee Bar Association’s Labor and Employment Law Section.

BRANDON L. MORROW is a lawyer with Kramer Rayson LLP in Knoxville. He represents businesses, educational institutions and religious institutions in employment and civil rights related matters. He holds a bachelor’s degree from the University of Tennessee and a law from the University of Tennessee College of Law
 

NOTES

1. Tenn. Code Ann. § 50-1-304(b).
2. Tenn. Code Ann. § 4-21-301.
3. No. E201800479COAR3CV, 2019 WL 319892 (Tenn. Ct. App. Jan. 23, 2019).
4. Coffey v. City of Oak Ridge, No. E2013-02200-COA-R3CV, 2014 WL 4536364, at *7 (Tenn. Ct. App. Sept. 12, 2014); Crumpley v. Anderson Cty., Tennessee, No. 3:14-CV-559-PLR-CCS, 2016 WL 614693, at *3 (E.D. Tenn. Feb. 16, 2016) (“…punitive damages under the TPPA have not been foreclosed by the Tennessee courts…”).
5. Carver v. Citizen Utilities Co., 954 S.W.2d 34, 36 (Tenn. 1997).