If Tennessee's Healthy Workplace Act is extended to private employers, what immunity, burdens, and definitions would apply to workplace-bullying claims?

Plain-English summary

Tennessee enacted the Healthy Workplace Act in 2014 to address workplace bullying. As originally written, the Act covered only state and local public employers. If a public employer adopted the model anti-bullying policy created by the Tennessee Advisory Commission on Intergovernmental Relations (TACIR) or a policy meeting the standards in Tenn. Code Ann. § 50-1-503(b), the employer was immune from suit for negligent or intentional infliction of mental anguish caused by employee abusive conduct.

In 2019 the General Assembly considered HB 856/SB 815, which would extend the Act to private employers by adding "private employer" to the definition of "employer" in § 50-1-502(3). Rep. Boyd asked five questions about how the bill would operate.

AG Slatery's answers, summarized:

1. Private employers adopting a qualifying policy would get the same immunity public employers already had under § 50-1-504. The bill simply added private employers to the existing definition; it did not change the substance of the immunity.

2. A private employer with no qualifying anti-bullying policy would not be immune. To qualify, the employer must adopt either the TACIR model policy or a policy that satisfies the substantive requirements in § 50-1-503(b).

3. The bill would not shift the burden of proof in private suits. A plaintiff suing for negligent or intentional infliction of emotional distress already bears the burden under cases like Camper v. Minor, 915 S.W.2d 437 (Tenn. 1996). The Act and the proposed bill leave that burden allocation in place.

4. "Mental anguish" in the Act means "serious or severe mental injury," using the six factors from Rogers v. Louisville Land Co., 367 S.W.3d 196 (Tenn. 2012): physiological manifestations; psychological manifestations; medical treatment; duration and intensity; significant impairment in daily functioning; and the extreme and outrageous character of the defendant's conduct. Sallee v. Barrett, 171 S.W.3d 822 (Tenn. 2005) treats "mental anguish" as synonymous with "emotional distress."

5. Proposed Amendment No. 1 would add a new subsection (b) to § 50-1-504 stating that nothing in the section creates a cause of action against a non-conforming employer. This clarification reinforces Tenn. Code Ann. § 1-3-119, which requires express language to create a private right of action; it does not expand employer immunity beyond what subsection (a) already provides.

The opinion is essentially a legislative-mechanics analysis: the bill works as drafted to extend immunity to private employers symmetrically with public employers, and Amendment No. 1 just confirms (does not enlarge) the absence of an implied private right of action.

Currency note

This opinion was issued in 2019. 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.

The status of the underlying 2019 bill (whether it was enacted, amended, or rejected) and any later legislative changes are not addressed in this opinion. Anyone advising on current Healthy Workplace Act compliance should pull the current versions of Tenn. Code Ann. §§ 50-1-501 to -504 and any TACIR model policy then in effect.

Common questions

Q: What is the Healthy Workplace Act?
A: It is Tennessee's 2014 statute (Tenn. Code Ann. §§ 50-1-501 to -504) addressing workplace bullying, which the Act calls "abusive conduct." The original version applied to state and local public employers. It works through an immunity incentive: if the employer adopts the model TACIR anti-bullying policy or a policy meeting § 50-1-503(b)'s standards, the employer is immune from suit for negligent or intentional infliction of mental anguish based on employee abusive conduct.

Q: What does the TACIR model policy require?
A: TACIR's Model Abusive Conduct Prevention Policy (January 2015) sets out a structure for recognizing and responding to abusive conduct and protecting reporters from retaliation. Section 50-1-503(b) sets the floor: any policy must (1) help employers recognize and respond to abusive conduct, and (2) prevent retaliation against employees who report it. An employer using either the TACIR model or a policy meeting those substantive requirements qualifies for the immunity.

Q: What does "abusive conduct" mean?
A: The Act defines it generally as workplace conduct that a reasonable person would find abusive based on its severity, nature, and frequency. The detailed definition is in § 50-1-502; the AG opinion does not parse it because the question turned on the immunity structure, not the underlying definition.

Q: Why doesn't the Act create a private cause of action?
A: Tennessee follows § 1-3-119, which requires express language to create or confer a private right of action. The Act's statutes do not contain that express language. The AG had already reached this conclusion in Op. 15-01 (Jan. 6, 2015). Amendment No. 1 to the 2019 bill would have added a clarifying sentence saying so.

Q: How does Rogers v. Louisville Land Co. fit in?
A: Rogers is the Tennessee Supreme Court decision that defines what counts as "serious or severe mental injury" for emotional-distress claims. Because the Act uses "mental anguish" and Sallee equates "mental anguish" with "emotional distress," Rogers' six-factor test imports into the Act. The factors are: physiological manifestations, psychological manifestations, medical treatment, duration and intensity, significant impairment in daily functioning, and the outrageous character of the defendant's conduct.

Q: If a private employer is sued for emotional distress, does the new bill change who has to prove what?
A: No. The plaintiff continues to carry the burden of proof. The Act and the bill operate only to confer immunity on qualifying employers; they do not reallocate burdens for the underlying tort claims.

Q: What if a private employer adopts only a partial anti-bullying policy?
A: The immunity is binary: either the policy meets the TACIR or § 50-1-503(b) standard, or it doesn't. A partial or weakened policy would not qualify and would leave the employer exposed to ordinary common-law liability for negligent or intentional infliction of mental anguish.

Background and statutory framework

Tennessee enacted the Healthy Workplace Act in 2014 (2014 Tenn. Pub. Acts, ch. 997). The Act was structurally novel: rather than create a new bullying tort, it incentivized employers to adopt anti-bullying policies by offering immunity from emotional-distress claims arising from abusive conduct. As originally written, the Act applied only to public employers. § 50-1-502(3) defined "employer" to mean "any agency, county, metropolitan government, municipality, or other political subdivision of th[e] state."

The 2019 bill (HB 856/SB 815) would have changed § 50-1-502(3) to read: "'Employer' means a private employer and a state or local governmental entity." That single definitional swap is what would carry the substantive change. The rest of the Act would continue to operate without modification, automatically extending the immunity to private employers who adopt qualifying policies.

The AG's reading of the bill walks through how each existing provision would apply to private employers. Section 50-1-503(a) already directs TACIR to create a model policy (which TACIR did in January 2015). Section 50-1-503(b) sets the substantive minimums. Section 50-1-504 grants the immunity. None of those would need separate amendment to operate against private employers; the definitional change does the work.

The "mental anguish" definition is supplied by Tennessee tort doctrine. Sallee v. Barrett (171 S.W.3d 822 (Tenn. 2005)) treats "mental anguish" and "emotional distress" as synonymous. Rogers v. Louisville Land Co. (367 S.W.3d 196 (Tenn. 2012)) sets the "serious or severe mental injury" threshold and the six-factor analysis. Camper v. Minor (915 S.W.2d 437 (Tenn. 1996)) places the burden of proof on plaintiffs in negligent infliction cases.

The implied-cause-of-action analysis flows from Tenn. Code Ann. § 1-3-119, which prevents Tennessee courts from reading private rights of action into statutes lacking express language. Op. 15-01 had already applied that rule to the original 2014 Act. Amendment No. 1 of the 2019 bill would have made the conclusion textually explicit by adding a new § 50-1-504(b).

Citations

• Tenn. Code Ann. §§ 50-1-501 to -504 (Healthy Workplace Act)
• Tenn. Code Ann. §§ 50-1-502(3); 50-1-503(a); 50-1-503(b); 50-1-504
• Tenn. Code Ann. § 1-3-119 (no implied private rights of action)
• 2014 Tenn. Pub. Acts, ch. 997
• Rogers v. Louisville Land Co., 367 S.W.3d 196 (Tenn. 2012)
• Sallee v. Barrett, 171 S.W.3d 822 (Tenn. 2005)
• Camper v. Minor, 915 S.W.2d 437 (Tenn. 1996)
• Ramsey v. Beavers, 931 S.W.2d 527 (Tenn. 1996)
• Tenn. Att'y Gen. Op. 15-01 (Jan. 6, 2015); Op. 15-39 (Apr. 22, 2015)

Subject

Healthy Workplace Act

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2019/op19-04.pdf

Original opinion text

April 3, 2019
Opinion No. 19-04

Healthy Workplace Act

Question 1
Proposed legislation, HB 856/SB 815, 111th Tenn. Gen. Assem. (2019), would add private employers to the entities covered by the Healthy Workplace Act, Tenn. Code Ann. § 50-1-501 et seq. If the legislation becomes law, would private employers who adopted the statutorily required anti-bullying policies receive the same immunity under the Healthy Workplace Act as do public employers who adopt such policies?

Opinion 1
Yes.

Question 2
Would a private employer be immune from suit if it had not adopted the model anti-bullying policy established by the Healthy Workplace Act?

Opinion 2
A private employer who had not adopted the model anti-bullying policy would not be immune from suit unless the employer had adopted an anti-bullying policy that satisfied the requirements of Tenn. Code Ann. § 50-1-503(b).

Question 3
Would a court put the burden of proof on a private employer who does not qualify for immunity and who is sued by an employee for infliction of mental anguish by the abusive conduct of another employee?

Opinion 3
As a general matter, a plaintiff who sues a private employer for infliction of mental anguish based on the abusive conduct of one of its employees bears the burden of proof. Neither the Healthy Workplace Act nor the proposed legislation should be a basis for shifting that burden of proof in a civil lawsuit against a private employer.

Question 4
What constitutes "mental anguish" within the meaning of the Healthy Workplace Act?

Opinion 4
"Mental anguish" means a "serious or severe mental injury," as described in Rogers v. Louisville Land Co., 367 S.W.3d 196 (Tenn. 2012).

Question 5
Would proposed Amendment No. 1 provide additional immunity to private employers?

Opinion 5
No.

ANALYSIS

The Healthy Workplace Act, 2014 Tenn. Pub. Acts, ch. 997, codified at Tenn. Code Ann. §§ 50-1-501 through 50-1-504 ("the Act"), was enacted to help prevent "abusive conduct" in the workplace in state and local government in Tennessee. See Tenn. Att'y Gen. Op. 15-01 (Jan. 6, 2015). If a state or local public employer adopts either the model anti-bullying policy created by the Tennessee Advisory Commission on Intergovernmental Relations (TACIR) pursuant to Tenn. Code Ann. § 50-1-503(a), or adopts an anti-bullying policy that satisfies the requirements of Tenn. Code Ann. § 50-1-503(b), the Act immunizes that employer from liability for any negligent or intentional infliction of mental anguish caused by the abusive conduct of its employees. Id.; see Tenn. Code Ann. § 50-1-504; see also Tenn. Att'y Gen. Op. 15-39 (Apr. 22, 2015).

Proposed legislation, HB 856/SB 815, 111th Tenn. Gen. Assem. (2019), would extend the Act to include private employers. Currently, the Act defines "employer" to include only "any agency, county, metropolitan government, municipality, or other political subdivision of th[e] state." Tenn. Code Ann. § 50-1-502(3). The proposed legislation would change the definition of "employer" in the Act to mean both "a private employer and a state or local governmental entity."

1. Under the proposed legislation, private employers would receive the same immunity that public employers currently enjoy under the Act. Currently, the Act immunizes a public employer from suit for negligent or intentional infliction of mental anguish based on its employees' abusive conduct "if an employer adopts the model policy created by TACIR pursuant to § 50-1-503(a) or adopts a policy that conforms to the requirements set out in § 50-1-503(b)." Tenn. Code Ann. § 50-1-504. By including private employers within the statutory definition of "employers," the proposed legislation would extend that immunity to private employers. The proposed legislation would not otherwise alter § 50-1-504 or the Act. Accordingly, private employers who had adopted the model policy or a policy meeting the requirements of § 50-1-503(b) would be immune from suit alleging the negligent or intentional infliction of mental anguish based on employees' abusive conduct to the same extent public employers are immune under the Act.

2. Under the proposed legislation, a private employer will be immune from suit under the Act only if it complies with § 50-1-504, by adopting either (1) the model anti-bullying policy promulgated by TACIR pursuant to the requirement of Tenn. Code Ann. § 50-1-503(a), or (2) a policy that "conforms to the requirements set out in § 50-1-503(b)." Thus, a private employer that had not adopted the model policy would not be immune from suit under the Act unless the employer had adopted a policy that conformed to the requirements of § 50-1-503(b).

3. As a general matter, a plaintiff suing a private employer for negligent or intentional infliction of mental anguish based on the abusive conduct of an employee bears the burden of proof. See, e.g., Camper v. Minor, 915 S.W.2d 437, 446 (Tenn. 1996). Neither the Act nor the proposed legislation affect such actions in any way except to provide immunity for employers that have satisfied the requirements of § 50-1-504. Thus, the proposed legislation itself does not alter the burden of proof in a civil lawsuit against a private employer.

4. The Act immunizes public employers from liability for the "negligent or intentional infliction of mental anguish." Tenn. Code Ann. § 50-1-504. The Tennessee Supreme Court has construed "mental anguish" to be synonymous with "emotional distress," see Sallee v. Barrett, 171 S.W.3d 822, 824 n.1 (Tenn. 2005), and concluded that proof of "emotional distress" requires a showing of "serious or severe mental injury," Rogers v. Louisville Land Co., 367 S.W.3d 196 (Tenn. 2012). "Mental anguish" thus does not include "every minor disturbance to a person's mental tranquility," but only "serious or severe emotional injuries." Rogers, 367 S.W.3d at 208 (quoting Ramsey v. Beavers, 931 S.W.2d 527, 532 (Tenn. 1996)).

Rogers provides six "nonexclusive factors" to "inform the analysis" of whether a plaintiff has "suffered a serious mental injury":

(1) Evidence of physiological manifestations of emotional distress, including but not limited to nausea, vomiting, headaches, severe weight loss or gain, and the like;
(2) Evidence of psychological manifestations of emotional distress, including but not limited to sleeplessness, depression, anxiety, crying spells or emotional outbursts, nightmares, drug and/or alcohol abuse, and unpleasant mental reactions such as fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, and worry;
(3) Evidence that the plaintiff sought medical treatment, was diagnosed with a medical or psychiatric disorder such as post-traumatic stress disorder, clinical depression, traumatically induced neurosis or psychosis, or phobia, and/or was prescribed medication;
(4) Evidence regarding the duration and intensity of the claimant's physiological symptoms, psychological symptoms, and medical treatment;
(5) Other evidence that the defendant's conduct caused the plaintiff to suffer significant impairment in his or her daily functioning; and
(6) In certain instances, the extreme and outrageous character of the defendant's conduct is itself important evidence of serious mental injury.

Id. at 209-10.

In short, whether alleged injuries constitute "mental anguish" within the scope of the Act would depend on the particular facts and circumstances involved as analyzed according to the six Rogers factors, among any other factors that may be relevant in any given case.

5. Proposed Amendment No. 1 to the proposed legislation would keep the existing immunity language of Tenn. Code Ann. § 50-1-504 as subsection (a) and would add, as a new subsection (b), the following:

Nothing in this section creates a cause of action against an employer who does not adopt the model policy created by TACIR pursuant to § 50-1-503(a) or adopt a policy conforming to the requirements set out in § 50-1-503(b).

This new language confirms that neither the Act nor the proposed legislation creates or confers a private right of action. But the new language would not provide any additional immunity for private or public employers; it would not alter the immunity of public or private employers under the Act.

"[F]or 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," and, absent such language, "no court . . . shall construe or interpret a statute to impliedly create or confer a private right of action." Tenn. Att'y Gen. Op. 15-01 (quoting Tenn. Code Ann. § 1-3-119). As our previous opinion concluded, because no provision of the Act expressly creates a new private cause of action for abusive conduct, the Act does not create a private right of action against either employers or employees. Id. The new language in Amendment No. 1 would affirmatively reinforce that conclusion with regard to private causes of action against both public and private employers.

In sum, Amendment No. 1 makes clear that neither the Act nor the proposed legislation creates a cause of action against employers, public or private, who fail to adopt the model policy or a policy that satisfies the requirements of § 50-1-503(b).

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

JONATHAN DAVID SHAUB
Assistant Solicitor General

Requested by:
The Honorable Clark Boyd
425 5th Avenue North
Cordell Hull Bldg., Suite 528
Nashville, TN 37243