4.29.19

Tennessee Governor Bill Lee (R) signed legislation on April 23 that would provide immunity from workplace bullying lawsuits for private employers who adopt the state’s model anti-bullying policy.

This law, House Bill 856, adds private employers to those subject to the requirements of the Healthy Workplace Act under T.C.A. Section 50-1-502. The law is designed to “prevent abusive conduct in the workplace,” by creating a model policy that helps employers in “recognizing and responding to abusive conduct in the workplace” and preventing retaliation against employees who report such conduct.

Section 50-1-503(a) describes the model policy, as designed by the Tennessee Advisory Commission on Intergovernmental Relations. The model policy defines “abusive conduct,” discusses the purpose and history of the policy, and provides a detailed guideline for implementation of the policy, including recommended language, training, and a reporting and investigating structure. Employers may also design their own policies and be provided immunity, as long as the policies comply with the law’s requirements.

The law expressly provides that employers who adopt either the model policy under Section 50-1-503 or a policy that conforms to the requirements of the law, “shall be immune from suit for any employee’s abusive conduct that results in negligent or intentional infliction of mental anguish.”

The law does not provide immunity to the individual willful or malicious wrongdoer and does not provide immunity to employers for violations of federal law, including Title VII, or under other related state laws.

The Model Policy

The model policy contains eight main components that should be adopted by the employer:

  • Statement of commitment, values, and purpose: Employers should provide an overall statement of intent for workplace behavior, describe the processes for addressing complaints, and state explicitly that retaliation will not be tolerated.

  • Definition of “abusive conduct”: Employers should explain that abusive conduct can include, but is not limited to

    • Repeated verbal abuse in the workplace, including derogatory remarks, insults, and epithets

    • Verbal, nonverbal, or physical conduct of a threatening, intimidating, or humiliating nature in the workplace

    • The sabotage or undermining of an employee’s work performance in the workplace.

         

Employers should also describe what does not constitute abusive conduct, including

    • Disciplinary procedures in accordance with the employer’s adopted policies

    • Routine coaching and counseling (including feedback about and correction of work performance)

    • Reasonable work assignments

    • Individual differences in styles of personal expression

    • “Passionate or loud expression” with no intent to harm others, or differences of opinion about work-related concerns

    • The non-abusive exercise of managerial prerogative.

  • Employer responsibility: Employers should specify their own responsibilities, including that supervisors will

    • Provide a working environment as safe as possible by having preventive measures in place and by dealing immediately with threatening or potentially violent situations

    • Provide good examples by treating all with courtesy and respect

    • Ensure that all employees have access to and are aware of the abusive conduct prevention policy, and explain the procedures to be followed if a complaint of inappropriate behavior at work is made

    • Be vigilant for signs of inappropriate behaviors at work through observation and information-seeking, and take action to resolve the behavior before it escalates

    • Respond promptly, sensitively and confidentially to all situations where abusive behavior is observed or alleged to have occurred.

  • Employee responsibility: Employers should outline employee responsibilities (including the responsibilities of employees who witness unprofessional conduct) and inform them that they are expected to treat each other with dignity and respect, and to cooperate with preventive measures put in place by supervisors.

  • Retaliation: Employers should make clear that retaliation – defined as any act of reprisal, interference, restraint, penalty, discrimination, intimidation, or harassment against anyone exercising rights under the policy – is prohibited and will not be tolerated.

  • Training for supervisors and employees: This section of the policy encourages supervisors and employees to participate in training on the policy.

  • Complaint Process: Employers should create a comprehensive complaint process, describing (1) the actual process for reporting complaints by potential victims, witnesses, and supervisors; (2) the procedures for an effective investigation; (3) the resulting corrective actions for the various parties involved. To avoid confusion, the new law notes that this section needs to mirror existing disciplinary processes.

  • Confidentiality: The model policy notes that employers should maintain the confidentiality of each party involved in an abusive conduct investigation to the extent possible, provided it does not interfere with the employer’s ability to effectively investigate the matter or otherwise take corrective action.

Employer next steps

The law is effective immediately, so employers who want to take advantage of the benefits should act promptly. We recommend working with legal counsel to design and incorporate the policy and its procedures into existing training, handbooks, and procedures. If an employer does not already have these components in place, we recommend working with legal counsel to prepare them.

An anti-bullying policy can easily fit into many employers’ already established policies and training regarding harassment, retaliation, and resolution of grievances, but existing policies may have to be modified to comply with the law and get the benefit of immunity. The major benefit to employers is that their efforts to provide a harassment-free workplace are now being recognized and rewarded. Overall, the law provides a way for employers with operations in Tennessee to prevent abusive workplace behavior and increase employee satisfaction, while at least partially protecting themselves from lawsuits arising from employee misconduct.

For a printer-friendly copy, click here.

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