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Abusive Conduct Policies Pay Off in Tennessee Under Expanded Law (April 25, 2019)

The time is ripe to revamp policies that relate to employee misconduct. A newly passed expansion of the Tennessee Healthy Workplaces Act can protect private employers from liability in certain claims linked to workplace "bullying" behavior.

The Tennessee Healthy Workplace Act, enacted in 2014, was the first legislation of its kind in the country. Until now, it applied only in the public employment context. On April 23, 2019 Governor Bill Lee signed a Healthy Workplace Act Expansion. The measure expands the reach of the Tennessee Healthy Workplace Act to private employers and passed with unanimous support from both houses of the Tennessee legislature.

In short, if an employer adopts the State's Model Policy or implements its own policy that complies with the statute's requirements to 1) recognize, 2) respond to and 3) prevent retaliation for reporting abusive conduct, the employer is immune from liability when one or more of its employees' actions allegedly result in the "infliction of mental anguish" to another employee. This law does not "roll back" existing protections under statutes including Title VII of the Civil Rights Act or the Tennessee Human Rights Act, but can be useful where a current or former employee alleges harm by a coworker or supervisor for reasons other than traditional "protected status."

There are good reasons to do more than simply publish the model policy. The model policy was not drafted for private employers and may contain language inappropriate to a particular organization, and any abusive conduct policy should dovetail with other misconduct policies against discrimination, harassment and workplace violence. Minimizing legal exposure is important. So is fostering workplace productivity in clear, concise language. Employers should think through these matters when drafting their policy, and consulting with labor and employment counsel before adopting a new policy is also advisable.


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