Was Tennessee's 2014 Healthy Workplace Act unconstitutional because it told a state commission to draft an anti-workplace-bullying model policy?

Subject

Opinion No. 15-39, Constitutionality of the Healthy Workplace Act of 2014, April 22, 2015

Plain-English summary

In 2014 the Tennessee General Assembly passed the Healthy Workplace Act, which told the Tennessee Advisory Commission on Intergovernmental Relations (TACIR) to write a model anti-bullying policy that public employers could adopt. Public employers who adopted the model policy (or something substantially similar) got immunity from negligent or intentional infliction of emotional distress lawsuits based on an employee's abusive conduct. The Act did not force any employer to adopt the policy. It did not bind any private employer. It just produced a template plus a litigation shield for adopting public employers.

A legislator asked whether handing the drafting job to TACIR amounted to an unconstitutional delegation of legislative power. The AG said no. The Tennessee Supreme Court had long held that the General Assembly can delegate work to administrative bodies as long as the statute provides enough guidance to let the agency and the courts tell whether the agency is carrying out legislative intent. When the subject matter is public health, safety, or welfare, that guidance can be relatively loose. The Act was explicit about its purpose (recognizing and responding to workplace abuse; preventing retaliation against reporters) and gave TACIR a defined task. Plus, because nothing TACIR produced had binding legal effect on anyone, what TACIR was doing was even less than the typical delegated rulemaking that the courts had already approved.

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.

Common questions

What was the Healthy Workplace Act trying to do?

It addressed "abusive conduct" in public workplaces by creating a voluntary path. Adopting the TACIR model policy (or a substantially similar one) gave a public employer immunity from suits for employee-caused negligent or intentional infliction of mental anguish. The carrot was the immunity shield; the stick was the political pressure to adopt anti-bullying measures. Private employers were not covered.

Why did anyone think this might be unconstitutional?

Article II, Section 3 of the Tennessee Constitution vests legislative power in the General Assembly, and Tennessee courts have said the legislature cannot delegate "purely legislative" power to anyone else. The question was whether having TACIR write the model policy was an attempt to outsource that core legislative judgment. The AG said no, because the legislature itself laid down the policy's purpose, told TACIR who to consult with, set a deadline, and made the resulting policy voluntary.

What test did the AG apply?

The Tennessee Supreme Court's Bean test: a delegation is valid if the statute contains "sufficient standards or guidelines" to let the agency and the courts determine whether the agency is carrying out the legislature's intent. When the subject is public health, safety, or welfare, the standards can be looser. Drafting a workplace anti-bullying model policy falls comfortably within that flexible standard.

Did the AG flag any other limits on the law?

The AG noted explicitly that the model policy is not mandatory. Public employers can adopt it, modify it, or ignore it. That voluntary character was a major part of why the delegation worked.

Background and statutory framework

Tenn. Code Ann. § 50-1-503 told TACIR to develop, by March 1, 2015, a model policy for employers to prevent abusive conduct in the workplace, in consultation with the Department of Human Resources and named municipal and county organizations (the Tennessee Municipal League, the Tennessee County Services Association, the Municipal Technical Advisory Service, and the County Technical Assistance Service). The model policy had to assist employers in recognizing and responding to abusive conduct and prevent retaliation against employees who reported it. Tenn. Code Ann. § 50-1-504 supplied the immunity benefit for public employers who actually adopted the model or a substantially similar policy.

Tennessee's nondelegation doctrine, drawn from Article II, Section 3 of the state Constitution, permits legislative delegation of administrative discretion but forbids delegation of "purely legislative" power. The leading case, Bean v. McWherter, 953 S.W.2d 197 (Tenn. 1977), upheld a delegation to the Wildlife Resources Commission of authority to add or remove protected species, holding that when a statute regulates for the protection of public health, safety, or welfare, "minutely detailed standards" are not required. Earlier cases like Tasco Developing & Bldg. Corp. v. Long, 368 S.W.2d 65 (1963), had explained that enforcement and rule-making are typically administrative rather than legislative functions.

Citations

• Tenn. Code Ann. § 50-1-503 (Healthy Workplace Act, model policy provision)
• Tenn. Code Ann. § 50-1-504 (immunity for adopting public employers)
• Tenn. Const. art. II, § 3 (vesting of legislative power)
• Gallaher v. Elam, 104 S.W.3d 455 (Tenn. 2003)
• Bean v. McWherter, 953 S.W.2d 197 (Tenn. 1977)
• Lobelville Special Sch. Dist. v. McCanless, 381 S.W.2d 273 (1964)
• Tasco Developing & Bldg. Corp. v. Long, 368 S.W.2d 65 (1963)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2015/op15-39.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
April 22, 2015
Opinion No. 15-39
Constitutionality of the Healthy Workplace Act of 2014

Question

Does the Healthy Workplace Act of 2014 constitute an unlawful delegation of legislative authority in violation of the Tennessee Constitution?

Opinion

No.

ANALYSIS

The Healthy Workplace Act ("the Act"), enacted in 2014, directs the Tennessee Advisory Commission on Intergovernmental Relations ("TACIR") to create 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.

The legislative power of the State of Tennessee is vested exclusively in the General Assembly. Tenn. Const. art. II, § 3. Under Article II, Section 3, the General Assembly may not delegate powers that are "purely legislative." Gallaher v. Elam, 104 S.W.3d 455, 459 (Tenn. 2003). The General Assembly may, consistent with Article II, Section 3, delegate discretion to administrative agencies or local governments to promulgate rules and enforce laws. Bean v. McWherter, 953 S.W.2d 197, 199 (Tenn. 1977); Lobelville Special Sch. Dist. v. McCanless, 381 S.W.2d 273, 274 (1964) (holding that the legislature may constitutionally delegate to officials or agencies powers of administration to be exercised upon discretion); Tasco Developing & Bldg. Corp. v. Long, 368 S.W.2d 65, 68-69 (1963) ("the enactment of reasonable rules and regulations, and their enforcement, is more or less an administrative function and not the exercise of a legislative power or function").

The Tennessee Supreme Court has held that the test for determining whether a legislative delegation of power is constitutional is "whether the statute contains sufficient standards or guidelines to enable both the agency and the courts to determine if the agency is carrying out the legislature's intent." Bean, 953 S.W.2d at 199. The Supreme Court also explained that "the requirement of expressed standards may be relaxed when the discretion to be exercised relates to or regulates for the protection of the public's health, safety, and welfare" in which case "minutely detailed standards" are not necessary. Id. at 199-200 (citing Tasco, 368 S.W.2d 65). Bean involved a challenge to the constitutionality of a statute that delegated to the Tennessee Wildlife Resources Commission rule-making authority to add or delete species from the statutory list of protected wildlife. Because the statute concerned issues of public safety and welfare the court applied the more relaxed test for constitutionality of the delegation of legislative power and found that, even though the statute did not provide specific details, it provided sufficient guidance to enable the agency to carry out the legislature's intent. Therefore, the delegation of power was constitutional.

As in Bean, here the General Assembly has authorized TACIR to draft a policy that relates to public safety and welfare—specifically, the safety and welfare of public employees. Therefore, the more relaxed standard of review applies: the statute need not contain minute details in order to provide sufficient guidance to enable TACIR to determine if it is carrying out the legislature's intent when it creates the model policy. The Act does not contain "minutely detailed standards," but it does expressly and clearly articulate the purpose and required objectives of the model policy, Tenn. Code Ann. § 50-1-503(a) and (b), so that TACIR knows and can further the legislature's intent in drafting the model policy. It is especially worth noting that the Act does not delegate to TACIR authority to create a policy that employers are then required to adopt. Rather, it merely calls for the development of a model policy that employers may adopt, modify, or even ignore. In this respect, the delegation to TACIR is not a delegation of power to make rules or regulations that have mandatory or binding effect.

Accordingly, The Healthy Workplace Act of 2014 does not amount to an unconstitutional delegation of legislative power. Like the statute in Bean, the Act implies a standard of reasonableness and is sufficiently specific to allow TACIR—and the courts—to determine whether the legislature's intent is being furthered by whatever model policy TACIR develops.

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

KETA J. BARNES
Assistant Attorney General

Requested by:
The Honorable Mike Carter
State Representative
G-3 War Memorial Building
Nashville, TN 37243

Footnote: Employers are not required to adopt the model policy, but employers who do adopt the model policy or a substantially similar policy are immune from suit for an employee's abusive conduct resulting in negligent or intentional infliction of mental anguish. Tenn. Code Ann. § 50-1-504.