Does the Tennessee Healthy Workplace Act let employees sue government employers for workplace bullying, and what does the model-policy immunity cover?

Plain-English summary

In 2014 the Tennessee General Assembly passed the Healthy Workplace Act, codified at Tenn. Code Ann. §§ 50-1-501 to 50-1-504, to address "abusive conduct" at state and local government workplaces. State Senator Mark Norris asked the AG six related questions about how the Act actually worked, mostly aimed at whether it opened up new lawsuits and whether it altered governmental immunity.

The AG's answers were narrow. The Act did not create a new private cause of action against public employers or against individual public employees, because Tennessee's interpretive rule (§ 1-3-119) requires express statute language for any new private right of action, and the Act had none. What the Act did do was add a slim layer of immunity: if a public employer adopted either the TACIR model policy or a conforming policy under § 50-1-503(b), it became immune from suit for any employee's abusive conduct that resulted in negligent or intentional infliction of mental anguish. That immunity sat on top of the broader protections public employers already enjoyed under the Governmental Tort Liability Act and, for state agencies, the Tennessee Claims Commission Act.

The AG also told the legislator that "employer" was broad enough to include housing authorities, utility districts, and development districts, because Tennessee precedent treats those bodies as instrumentalities of the city or county that created them. On the question of who within a city or county had the authority to adopt the policy, the AG declined to answer, because that turns on local charters and ordinances and the AG's office does not interpret local law.

Currency note

This opinion was issued in 2015. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

The Healthy Workplace Act defines "abusive conduct" expansively: repeated verbal abuse, threatening or humiliating verbal or nonverbal conduct, or sabotage of an employee's work performance, judged by what a reasonable person would consider an abusive work environment given severity, nature, and frequency. "Employer" reaches any agency, county, metropolitan government, municipality, or other political subdivision. "Agency" sweeps in departments, commissions, boards, offices, and other agencies of the executive, legislative, or judicial branches of state government.

Section 50-1-503 required TACIR (the Tennessee Advisory Commission on Intergovernmental Relations) to develop, by March 1, 2015, a model policy designed to recognize and respond to abusive conduct and to prevent retaliation against employees who reported it. Adoption was voluntary: "Each employer may adopt the policy."

Section 50-1-504 is where the immunity clause sits. Notwithstanding § 29-20-205 (the GTLA provision that removes immunity for employee negligence), if an employer adopted the TACIR model or a conforming policy, "the employer shall be immune from suit for any employee's abusive conduct that results in negligent or intentional infliction of mental anguish." A second sentence preserved personal liability for the offending employee.

Two background statutes shaped how that immunity stacked. The GTLA (Tenn. Code Ann. § 29-20-101 et seq.) already shielded local governments from most negligence claims but stripped immunity for willful, malicious, criminal, or for-personal-gain conduct of employees. The Claims Commission Act (Tenn. Code Ann. § 9-8-307) did the parallel work for state agencies. Section 50-1-504 added a specific carveout, negligent infliction of mental anguish, that the prior framework had not addressed by name.

Common questions

Q: At the time of this opinion, did the Healthy Workplace Act let a bullied employee sue the state or a local government?
A: No. The opinion concluded the Act created no new private cause of action against either public employers or individual public employees. Tennessee's interpretive statute, § 1-3-119, required express statutory language to create a private right of action, and the Act had none.

Q: What did adopting the TACIR model policy actually buy the employer?
A: A targeted extra immunity from suit for an employee's abusive conduct that results in negligent or intentional infliction of mental anguish. That sat alongside, and supplemented, the broader immunities under the GTLA (for local governments) and the Claims Commission Act (for the state).

Q: What happened if a city or county did not adopt any policy?
A: The opinion said the Act did not require adoption, and that failure to adopt simply meant the employer did not get the supplemental immunity. The pre-existing GTLA and Claims Commission Act immunities continued unchanged.

Q: Did the Act apply to housing authorities and utility districts?
A: Yes. The opinion read the broad definitions of "employer" and "agency" to cover housing authorities (as instrumentalities of the creating city or county), utility districts (which are municipalities under § 7-82-301(a)(1)), and development districts (arms of the counties and municipalities they encompass).

Q: Who in a county or city had the power to adopt the policy?
A: The AG declined to answer. That was a question of local law, controlled by each local government's charter, ordinances, and rules, and the AG's office did not opine on local-law questions.

Citations and references

Statutes:

• Tenn. Code Ann. §§ 50-1-501 to 50-1-504 (Healthy Workplace Act)
• Tenn. Code Ann. § 29-20-101 et seq. (Governmental Tort Liability Act)
• Tenn. Code Ann. § 9-8-307 (Tennessee Claims Commission Act)
• Tenn. Code Ann. § 1-3-119 (express-language rule for private rights of action)
• Tenn. Code Ann. § 7-82-301(a)(1) (utility districts as municipalities)
• Tenn. Code Ann. §§ 13-20-402, 13-20-501, 13-20-502 (housing authorities)
• Tenn. Code Ann. §§ 13-14-101 et seq. (development districts)

Cases (rules of statutory construction):

• In re Akins, 87 S.W.3d 488 (Tenn. 2002)
• Shorts v. Bartholomew, 278 S.W.3d 268 (Tenn. 2009)
• Cronin v. Howe, 906 S.W.2d 910 (Tenn. 1995)
• Hayes v. Gibson County, 288 S.W.3d 334 (Tenn. 2009)
• Knoxville Housing Authority, Inc. v. City of Knoxville, 123 S.W.2d 1085 (1939)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2015/op15-01.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
January 6, 2015

Opinion No. 15-01

Healthy Workplace Act of 2014

QUESTIONS

1. Does the Healthy Workplace Act of 2014 create a new cause of action against state or local employers for abusive conduct in the workplace?

2. Does this Act create a new cause of action against state or local employees for abusive conduct in the workplace?

3. Would adoption of the model policy or policy conforming to Tenn. Code Ann. § 50-1-503(b) create immunity for the State or its local governments beyond that provided elsewhere, including that provided by the Governmental Tort Liability Act (GTLA), Tenn. Code Ann. § 29-20-101 et seq., and Tenn. Code Ann. § 9-8-307?

4. If a governmental entity does not adopt such a policy, under what conditions and to what extent would that entity be liable for an employee's abusive conduct? Would it be protected from liability by the GTLA or Tenn. Code Ann. § 9-8-307?

5. Does the Healthy Workplace Act extend to quasi-governmental entities such as housing authorities, utility districts, and development districts?

6. Who has the authority to adopt such a policy in a county government or city government?

OPINIONS

1. No.

2. No.

3. It appears that when a state or local government complies with the policy-adoption requirement of Tenn. Code Ann. § 50-1-503(b), that entity would, under certain circumstances, acquire a specific supplement to the immunity already applicable under the Governmental Tort Liability Act (GTLA), Tenn. Code Ann. § 29-20-102, et seq., and the Tennessee Claims Commission Act, Tenn. Code Ann. § 9-8-301 through 310.

4. The immunities and legal defenses available to governmental entities pursuant to the GTLA and the Claims Commission Act would remain available to those entities that did not adopt a policy as contemplated by Tenn. Code Ann. § 50-1-503(b).

5. Yes. "Employer" is defined in the Act as any agency, county, metropolitan government, municipality, or other political subdivision of the state. The definition of "agency" in the Act includes all boards, offices, and other agencies of the executive, legislative, or judicial branches of government.

6. Each "employer" may adopt such a policy. When the employer is a local governmental entity, such as a county or a municipality, the question of who has authority within that local governmental entity to adopt such a policy is a matter of local law and will depend in each case on the particular charter of the local government, its ordinances, rules, and regulations. This Office is not statutorily authorized to render an opinion on matters of local law on the interpretation of local charters, ordinances, rules, and regulations.

ANALYSIS

The Healthy Workplace Act ("the Act"), Chapter 997 of the Public Acts of 2014, codified at Tenn. Code Ann. §§ 50-1-501 through 50-1-504, is intended to help prevent "abusive conduct" in the workplace in the state and local governments in Tennessee. In furtherance of this goal, the Act provides certain limited immunity from suit for public "employers" who adopt a prescribed form of a policy designed to prevent abusive conduct in the workplace.

"Abusive conduct," "Agency," and "Employer" are defined as follows for purposes of the Act:

(1) "Abusive conduct" means 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, such as:
(A) Repeated verbal abuse in the workplace, including derogatory remarks, insults, and epithets;
(B) Verbal, nonverbal, or physical conduct of a threatening, intimidating, or humiliating nature in the workplace; or
(C) The sabotage or undermining of an employee's work performance in the workplace.

(2) "Agency" means any department, commission, board, office or other agency of the executive, legislative or judicial branch of state government; and

(3) "Employer" means any agency, county, metropolitan government, municipality, or other political subdivision of this state.

Tenn. Code Ann. § 50-1-502.

The Act requires the creation of a model policy for the use of public employers:

(a) No later than March 1, 2015, the Tennessee advisory commission on intergovernmental relations (TACIR) shall create a model policy for employers to prevent abusive conduct in the workplace. The model policy shall be developed in consultation with the department of human resources and interested municipal and county organizations including, but not limited to, the Tennessee municipal league, the Tennessee county services association, the municipal technical advisory service (MTAS), and the county technical assistance service (CTAS).

(b) The model policy created pursuant to subsection (a) shall:
(1) Assist employers in recognizing and responding to abusive conduct in the workplace; and
(2) Prevent retaliation against any employee who has reported abusive conduct in the workplace.

(c) Each employer may adopt the policy created pursuant to subsection (a) as a policy to address abusive conduct in the workplace.

Tenn. Code Ann. § 50-1-503.

Notwithstanding § 29-20-205,[1] if an employer adopts the model policy created by TACIR pursuant to subsection (a) or adopts a policy that conforms to the requirements set out in subsection (b), then the employer shall be immune from suit for any employee's abusive conduct that results in negligent or intentional infliction of mental anguish.

Nothing in this section shall be construed to limit the personal liability of an employee for any abusive conduct in the workplace.

Tenn. Code Ann. § 50-1-504.

1 and 2. You have asked (1) whether the Act creates a new cause of action against state or local employers for abusive conduct in the workplace, and (2) whether the Act creates a new cause of action against state or local employees for abusive conduct in the workplace. The Act does not create any such new cause of action against either employers or employees.

Tennessee Code Annotated § 1-3-119 addresses this issue. It provides, in pertinent part, that "for legislation enacted by the general assembly to create or confer a private right of action, the legislation must contain express language creating or conferring the right." Absent such express language,[2] "no court of this state, licensing board, or administrative agency shall construe or interpret a statute to impliedly create or confer a private right of action except as otherwise provided in this section." Tenn. Code Ann. § 1-3-119(a) and (b).

No provision of the Healthy Workplace Act expressly creates or confers (or even indirectly refers to) a new private cause of action for abusive conduct. Accordingly, the Act creates no new cause of action for abusive conduct against either state or local employers or state or local employees.

3. You have also asked whether adoption of the model policy or a policy conforming to Tenn. Code Ann. § 50-1-503(b) creates immunity for state or local governments beyond that provided elsewhere, including immunity for local governments under the Governmental Tort Liability Act (GTLA) and for the State pursuant to Tenn. Code Ann. § 9-8-307, which defines the jurisdiction of the Tennessee Claims Commission.

Both the GTLA (with regard to local governmental bodies that come within its ambit)[3] and the Claims Commission Act (with regard to claims against the State),[4] provide immunity for employees of governmental entities when those employees have acted negligently, and simultaneously remove the immunity belonging to governmental entities arising from such claims. Both the Claims Commission Act and the GTLA, however, specifically provide that there is no immunity for employees acting willfully, maliciously, criminally, or for personal gain,[5] and both preserve the immunity of governmental entities in such instances of intentional wrongdoing by employees.

The Healthy Workplace Act, Tenn. Code Ann. § 50-1-504, states that upon adoption of either the model policy or a policy that conforms to the requirements set forth in Tenn. Code Ann. § 50-1-503(b), ". . . the employer shall be immune from suit for any employee's abusive conduct that results in negligent or intentional infliction of mental anguish." While the GTLA and the Claims Commission Act already provide immunity to governmental entities from claims arising from their employees' intentional acts, § 50-1-504 appears to supplement that immunity by adding a specific immunity for negligent infliction of mental anguish. That is, whereas the GTLA and the Claims Commission Act permit plaintiffs to sue state and local governments for most negligent acts of their employees, the Healthy Workplace Act carves out a specific type of negligence, negligent infliction of emotional anguish, for which plaintiffs cannot bring suit against governmental entities, provided those entities have adopted a policy conforming to the requirements of Tenn. Code Ann. § 50-1-504.

4. Your fourth question concerns the legal ramifications of a governmental entity's failure to adopt a policy under Tenn. Code Ann. § 50-1-504.

To begin with, the Act does not require an employer to adopt either the model policy or a policy that conforms to the model policy requirements or, for that matter, any policy. The Act simply provides that if an employer adopts the model policy or a policy that conforms to the model policy requirements, "then the employer shall be immune from suit for any employee's abusive conduct that results in negligent or intentional infliction of mental anguish." Thus, the clearest consequence of the employer's failure to adopt such a policy is lack of immunity from suit for an employee's abusive conduct resulting in negligent or intention infliction of mental anguish.

Second, the Act contains no language expressly repealing or modifying any governmental immunity that pre-existed the Act. Nor is there anything in the Act that could be construed to repeal or modify existing governmental immunity by implication.

As we stated in a previous opinion, "Courts require as a rule of statutory construction that statutes on the same subject should be construed together so they do not conflict. In re Akins, 87 S.W.3d 488, 493 (Tenn. 2002). The General Assembly is presumed to be aware of other statutes relating to the same subject matter. Shorts v. Bartholomew, 278 S.W.3d 268, 277 (Tenn. 2009). Thus, unless a more recent statute expressly repeals or amends an older one, 'the new provision is presumed to be in accord with the same policy embodied in the prior statute.' Id. Repeals by implication are not favored in Tennessee and will be recognized 'only when no fair and reasonable construction will permit the statutes to stand together.' Cronin v. Howe, 906 S.W.2d 910, 912 (Tenn. 1995). A court will hold a later statute to have repealed an earlier statute by implication only when the conflict between the statutes is irreconcilable. Id. See also Hayes v. Gibson County, 288 S.W.3d 334, 337-38 (Tenn. 2009)." Op. Tenn. Att'y Gen. No. 13-40 (May 23, 2013).

We find no provision in the Healthy Workplace Act that conflicts with earlier statutory language regarding governmental immunity, except perhaps to the extent that the Act slightly expands governmental immunity to cover claims for negligent infliction of emotional anguish. But that does not create a conflict, since the new provision may be read in harmony with pre-existing Tennessee law and in accord with the same policies embodied in the prior statutes. It therefore appears that the immunities and legal defenses available to governmental entities pursuant to the GTLA and the Claims Commission Act remain available to those entities that do not adopt a policy as contemplated by Tenn. Code Ann. § 50-1-503(b).

5. You have asked whether the Act extends to quasi-governmental entities such as housing authorities, utility districts, and development districts. The Act applies to "employers" and defines "employer" as "any agency, county, metropolitan government, municipality, or other subdivision of this state." "Agency" is defined broadly to include "any department, commission, board, office or other agency of the executive, legislative or judicial branch of state government." Tenn. Code Ann. § 50-1-502(2) and (3).

This Office has previously opined that housing authorities may be established by either a municipality, or a county, or two or more contiguous counties may form a regional housing authority. Tenn. Code Ann. §§ 13-20-402, 13-20-501, and 13-20-502. The Tennessee Supreme Court held, under the predecessor statute to the current Housing Authorities Act, that a housing authority created by a municipality is to be treated as an instrumentality of the municipality. Knoxville Housing Authority, Inc. v. City of Knoxville, 123 S.W.2d 1085 (1939). Since many of the factors relied upon by the court still exist under the current act, this Office has consistently opined that a city housing authority is an instrumentality of the creating municipality and that a county or regional housing authority is an instrumentality of the creating county or counties. See Op. Tenn. Att'y Gen. 99-013 (January 25, 1999); Op. Tenn. Att'y Gen. 89-102 (August 16, 1989); Op. Tenn. Att'y Gen. 89-62 (April 24, 1989). Op. Tenn. Att'y Gen. No. 05-170 (Nov. 21, 2005). Consequently, a housing authority would appear to be an "employer" under Tenn. Code Ann. § 50-1-502(3).

This Office opined in Op. Tenn. Att'y Gen. 03-17 (Feb. 19, 2003) that, pursuant to Tenn. Code Ann. § 7-82-301(a)(1), a utility district, once incorporated, is a municipality or public corporation. See also, Op. Tenn. Att'y Gen. 14-65 (June 25, 2014). A utility district would therefore also fall within the Act's definition of "employer."

This Office has also opined that development districts created pursuant to Tenn. Code Ann. §§ 13-14-101, et seq., are public bodies and arms or instrumentalities of the counties and municipalities that such districts encompass. See Op. Tenn. Att'y Gen. 09-126 (July 22, 2009); Op. Tenn. Att'y Gen. 80-95 (Feb. 14, 1980); Op. Tenn. Att'y Gen. 77-135A (Apr. 27, 1977); Op. Tenn. Att'y Gen. 77-102 (Apr. 5, 1977). Development districts are encompassed within the terms "county," "municipality," and "other subdivision," that appear in the Act's definition of "employer."

6. Finally, you have asked who in a county or city government has the authority to adopt such a policy. This is a question of local law, the answer to which would involve an interpretation of the particular charter provisions, ordinances and other laws, rules, and regulations of any local government to which the Act applies. Since this Office is not authorized to opine on matters of local law, we decline to respond to this question.

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

KEVIN STEILING
Deputy Attorney General

Requested by:
The Honorable Mark Norris
State Senator
226 Capitol Boulevard Bldg., Suite 508
Nashville, TN 37243-0760

[1] Tennessee Code Annotated § 29-20-205 is the portion of the Governmental Tort Liability Act dealing with removal of governmental immunity for injury caused by the negligence of public-sector employees.

[2] Examples of the required "express" language can be found in Tenn. Code Ann. § 54-7-207(a)(5) ("In addition to any criminal penalty provided by law for a violation of subdivision (a)(2) or (a)(3), there is created a separate civil cause of action for the cost of any damage resulting from such prohibited action.") (emphasis added), in Tenn. Code Ann. § 4-21-701(a) ("There is hereby created a civil cause of action for malicious harassment.") (emphasis added), and in Tenn. Code Ann. § 49-6-4006(a) ("In addition to criminal penalties provided by law, there is created a civil cause of action for an intentional assault, personal injury or injury to the personal property of students or school employees when the assault appears during school hours, on school property or during school functions, including travel to and from school on school buses.") (emphasis added).

[3] See Tenn. Code Ann. § 29-20-102(3).

[4] See Tenn. Code Ann. § 9-8-307(h).

[5] See Tenn. Code Ann. §§ 29-20-310(c) (GTLA) and 9-8-307(d) and (h) (Claims Commission).