Tennessee Law on Whistleblowers - Update on Changes
Most TN workers are at-will and can be fired for any reason (other than an illegal one) at any time. One exception is where the worker is a whistleblower.
Protection Narrowed for Whistleblowers/No Individual Liability for Supervisors AnymoreTennessee recognizes some public policy exceptions to the at-will employment document. For example, an employer cannot fire an employee in a manner than violates a "clear" public policy. If the employer's motivation for the firing violates public policy, then the employee may have a cause of action.
The Tennessee General Assembly enacted laws that provide protection for whistleblowers. Under those laws, a worker cannot be fired solely for (1) refusing to participate in illegal activities, or (2) refusing to remain silent about illegal activities (i.e., whistleblowing). Tennessee courts opine that "illegal activities" means conduct that violates the criminal or civil code of the state or United States. Teachers are shielded from being fired in retaliation for whistleblowing under the Education Truth in Reporting and Employee Protection Act of 1989.
Workers cannot be fired or discriminated against for opposing an unlawful practice, for making a charge of discrimination, filing a complaint, testifying, assisting or participating in an investigation of unlawful discrimination, assisting in the enforcement of equal pay laws or making a good faith allegation that another has provided false information about government spending to a government agency. This list is not exhaustive.
Recently, the legislature changed the Tennessee Human Rights Act to essentially ban claims against individual supervisors in cases of retaliation and aiding and abetting discrimination under the THRA. TCA ? 4-21-301(b) now provides, "No individual employee or agent of an employer shall be liable for any violation of part 4 of this chapter than any employer shall be found to have committed." This brings Tennessee in line with federal Title VII rules, but keep in mind that supervisors may be subject to individual liability under the Family Medical Leave Act of 1993 and the Fair Labor Standards Act (dealing with wages).
No More TN Common Law Claim for WhistleblowersThe Legislature also recently abolished common law claims for whistleblower retaliation. Before, a worker could file both a statutory and a common law claim for whistleblower retaliation (and would do so because different levels of proof were required under each claim). Now, a whistleblower plaintiff can only win if she shows that her protected activity was the sole reason for the firing. This is a higher burden of proof than is required in federal retaliation cases, which uses the "but for" standard; but for Sally reporting to the EPA, she wouldn't have been fired." Further, damage caps for retaliation and other employment related claims for violations of the Tennessee Disability Act were added. The caps are dependent on the number of employees under the employer's control and range from $25,000 (for 8-15 employees) up to $300,000 (for 500 plus employees).