United States: Tennessee Enacts Trio Of Employment Laws

Tennessee's governor recently signed three new employment laws. The first, a social media law, takes effect on January 1, 2015,1 and provides applicants and employees with social media protections similar to those in fifteen other states2 The second, a negligent hiring and retention law, designed to provide a measure of protection to employers that hire and retain certain employees with convictions, goes into effect on July 1, 2014. The third limits liability and the damages available under the state's statutory employment discrimination laws and applies to actions accruing on or after July 1, 2014. This alert highlights key provisions of these new laws and examines the implications for Tennessee employers.

Social Media Law

Tennessee's new social media law applies to employers with one or more employees (including the state and its political subdivisions), as well as any agent, representative, or designee of an employer. Under the new law, an employer may not:

  • request or require an employee or applicant to disclose a password that allows access to his or her "personal Internet account";3
  • compel an employee or applicant to add the employer or an employment agency to his or her list of contacts associated with a personal Internet account;
  • force an employee or applicant to access a personal Internet account in the presence of the employer (so as to permit the employer to observe the contents of the account); or
  • take an adverse action, fail to hire, or otherwise penalize an employee or applicant for failing to disclose information or for refusing to comply with a prohibited directive involving his or her personal Internet account.

Despite these prohibitions, the social media law expressly permits employers to:

  • request or require employee disclosure of usernames and passwords for purposes of gaining access to (i) an electronic communications device supplied or paid for by the employer, or (ii) an account or service provided by the employer that is obtained by virtue of the employee's employment relationship, or used for the employer's business purposes;
  • discipline or discharge an employee for transferring the employer's proprietary, confidential, or financial information to his or her personal Internet account without the employer's authorization;
  • conduct an investigation or require an employee to cooperate in an investigation if (i) there is specific information contained on the employee's personal Internet account regarding compliance with applicable laws, regulatory requirements, or prohibitions against work-related employee misconduct, or (ii) the employer has specific information about an unauthorized transfer of the employer's proprietary, confidential, or financial information;4
  • restrict or prohibit access to certain web sites while using an electronic communications device supplied by or paid for by the employer or while using the employer's network or resources, in accordance with state and federal law;
  • monitor, review, access, or block electronic data stored on an electronic communications device supplied by or paid for by the employer, or stored on an employer's network, in accordance with state and federal law;
  • screen employees or applicants prior to hiring, or to monitor or retain employee communications (i) pursuant to a duty imposed under federal law or by a self-regulatory organization (as defined by federal law), or (ii) for purposes of employment in law enforcement or an investigation into a law enforcement officer's conduct performed by a law enforcement agency; or
  • view, access, or use information about an employee or applicant that can be obtained without violating the social media law, or that is available in the public domain.

The social media law also makes clear that an employer is under no duty to search or monitor activity on a personal Internet account, nor is it liable for failing to request or require that an employee or applicant grant access to or allow observation of his or her personal Internet account.

To ensure compliance with Tennessee's new social media law, employers should review their hiring, monitoring, and investigatory procedures regarding the use of social media, and make any necessary changes. Although the social media law is silent as to remedies, employers should be aware that, by engaging in the type of conduct the law prohibits, they may violate other laws that allow for substantial damages (such as the federal Stored Communications Act or common law privacy rights). Furthermore, although the social media law permits employers to view publicly accessible profiles, employers should recognize that such conduct may give rise to a discrimination claim under Title VII of the Civil Rights Act of 1964 or a state equivalent if the employer takes adverse action based on information that reveals a protected characteristic such as race or religion. Given these risks, Tennessee employers should adopt a clear and compliant workplace policy governing the use of social media.

Negligent Hiring and Retention Law

Tennessee's new negligent hiring and retention law encourages the employment of ex-convicts by shielding employers from negligence claims for hiring, retaining or licensing an ex-offender who has received a "certificate of employability" ("Certificate"),5 provided that the employer knew of the Certificate at the time of the alleged negligence. An employer still may be liable, however, for retaining an ex-offender who has received a Certificate if, after hire, the employee "demonstrates danger" or is convicted of a felony and the employer willfully retains the employee despite having actual knowledge of this information.

Tennessee joins other states that have tried to protect employers from negligent hiring and retention claims, such as Georgia, Texas, Minnesota, Florida, and New York. Nevertheless, with more states and cities limiting employers from running criminal background checks on current or prospective employees, or from using criminal records in hiring and personnel decisions, there is concern that an increasing number of jurisdictions have not accorded enough protection from negligent hiring and retention claims stemming from the criminal conduct of repeat offenders. Employers, therefore, should continue to vet applicants and employees carefully, consistent with the law in their jurisdictions.

Amendments to Limit Liability and Damages Under Tennessee Employment Discrimination Laws

Another recent Tennessee law amends various Tennessee discrimination laws to impose caps on damages available in employment-related litigation and to limit liability in certain circumstances.

Specifically, the amendments impose caps on compensatory damages available under Tennessee's Human Rights Act, its Disability Act and its retaliatory discharge statute, for future pecuniary losses as well as non-pecuniary losses (including emotional pain and suffering).6 The caps operate based on the number of employees employed on the date the alleged adverse employment action occurred:

  • 8 to 14 employees, $25,000;
  • 15 to 100 employees, $50,000;
  • 101 to 200 employees, $100,000;
  • 201 to 500 employees, $200,000; and
  • more than 500 employees, $300,000.

The amendments also:

  • eliminate aider-abettor and individual liability under the Tennessee Human Rights Act;
  • limit coverage under the Tennessee Disability Act to employers with eight or more employees, including the state and its subdivisions;
  • preclude common law claims for retaliatory discharge that could have been brought pursuant to the Tennessee retaliatory discharge act; and
  • forbid bringing a lawsuit in state court under Tennessee's Human Rights Act, Disability Act and/or retaliatory discharge statute while concurrently asserting a federal action premised on a common nucleus of operative facts.

Footnotes

1 The social media law does not apply to contracts entered into prior to January 1, 2015, that permit an employer to engage in conduct prohibited by the statute, unless or until the contract is renewed on or after that date.

2 The social media law is similar to statutes in Louisiana, Oklahoma, Wisconsin, New Jersey, Maryland, Illinois, California, Michigan, Utah, New Mexico, Arkansas, Colorado, Washington, Oregon and Nevada. A number of other states and the U.S. Congress are considering similar legislation.

3 The social media law defines "personal Internet account" as an online account used exclusively for personal communications unrelated to any business purpose of the employer, and includes emails, messages, instant messages, text messages, blogs, podcasts, photographs, videos, or user-created profiles.

4 As part of the permitted investigation, the employer may require the employee to share the reported content or information to make a factual determination.

5 The Tennessee negligent hiring and retention law authorizes a court to issue a Certificate in its discretion only if the ex-offender establishes that: (i) the ex-offender has sustained the character of a person of honesty, respectability, and veracity and is generally esteemed as such by his or her neighbors; (ii) granting the petition will materially assist the ex-offender in obtaining employment or occupational licensing; (iii) there is a substantial need for the relief requested in order to live a law-abiding life; and (iv) granting the petition would not pose an unreasonable risk to the safety of the public or any individual. The Certificate is presumptively revoked if the person is convicted of or pleads guilty to a felony offense committed after the Certificate was issued. 

6 The caps do not apply to back pay, interest on back pay, front pay, or equitable relief.

Tennessee Enacts Trio of Employment Laws

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions