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What state-specific laws govern the employment relationship?
(a) Tennessee Human Rights Act
This anti-discrimination statute (i.e., race, creed, color, sex, age, religion, national origin) is applicable to employers with eight or more employees. The interpretation and enforcement of the Tennessee Human Rights Act follows closely those of Title VII and the Age Discrimination in Employment Act (T.C.A. § 4-21-401).
(b) Tennessee Disability Act
This is an anti-discrimination statute (i.e., disability) applicable to employers with eight or more employees. The interpretation and enforcement of this statute follow closely those of the Americans with Disabilities Act (ADA). Although the state statute does not include a “reasonable accommodation” requirement, some Tennessee case authority implies such a requirement (T.C.A. § 8-50-103).
(c) Tennessee Occupational Safety and Health Act
This generally follows federal Occupational Safety and Health Act (T.C.A. § 50-3-101, et seq.).
(d) Tennessee Family and Medical Leave Act
This is a leave statute for the birth or adoption of a child (available to males and females). It provides for unpaid leave of up to four months and is applicable to employers with 100 or more employees at one worksite (T.C.A. § 4-21-408).
(e) Mandatory Break Law
This state law requires that each employee scheduled to work six consecutive hours must have a 30-minute meal or rest period, except in workplace environments that by their nature of business provide for ample opportunity to rest or take an appropriate break. Tipped employees who are principally engaged in serving food or beverages to customers may waive their right to a 30-minute, unpaid meal break by providing to their employers a waiver request that complies with statutory requirements (T.C.A. § 50-2-103 (h)).
(f) Break time to express milk
Employees must be given reasonable unpaid break time each day to express breast milk for their infant children, unless providing a break would unduly disrupt the employee’s operations. The break may run concurrently with any other break time provided and the employer must make a reasonable effort to provide a private location other than a toilet stall (T.C.A. § 50-1-305).
(g) Guns in Trunks Law
Tennessee’s Guns in Trunks Law (T.C.A. § 39-17-1313) permits handgun carry permit holders to lawfully store firearms and ammunition in their personal vehicles parked on public or private property, including while parked at work, so long as the firearms are “kept from ordinary observation and locked within the trunk, glove box, or interior of the person’s vehicle or a container securely affixed to the vehicle if the person is not in the vehicle.” The law applies to carry permit holders and to all “firearms” owned by the carry permit holder, whether or not the permit covers them. The law does not apply to guns carried or stored anywhere except in the employee’s private vehicle; for instance, the law does not impact an employer’s ability to ban weapons from company-owned vehicles or from any other part of the property other than the employee’s personal vehicle. In addition, the law does not allow carry permit holders to carry firearms on their persons while at work. The law contains no exemptions for specific kinds of businesses, but does maintain that the law will not control areas where firearms possession is expressly prohibited by federal law.
(h) Law prohibiting misrepresentation of wages.
With limited exceptions, employees must be informed of the amount of wages to be paid for their labor before beginning to work (T.C.A. § 50-2-101 (b)). This statute creates no private cause of action. The Tennessee Department of Labor and Workforce Development enforces violations (T.C.A. § 50-2-101 (d)).
(i) Law on final payment of wages
Any employee who leaves or is discharged from employment must be paid in full all wages or salary earned no later than the next regular payday following the date of dismissal or voluntary leaving, or 21 days following the date of discharge or voluntary leaving, whichever occurs last (T.C.A. § 50-2-103 (g)).
(j) Smoker Protection Law
This law prohibits employers from refusing to hire an applicant solely because the applicant uses tobacco products (T.C.A. § 50-1-304(e)). No employee can be discharged or terminated solely for participating or engaging in the use of a tobacco product.
(k) Tennessee Non-Smoker Protection Act
This law prohibits smoking in all enclosed areas not specifically exempted by statute, including restaurants, banks, laundromats, manufacturing facilities, professional offices, and other places of work. The statute provides several exemptions, including age-restricted venues, hotel rooms designated as smoking rooms, and the premises of a manufacturer, importer or wholesaler of tobacco (T.C.A. 39-17-1801, et seq.).
(l) Child Labor Act
This act includes some child labor laws, which are in addition to federal child labor protections, and eligibility for work requirements (T.C.A. § 50-5-101, et seq., 50-6-418).
(m) Restrictions vary by age
Minors are not required to present a work permit, but must provide employers with a copy of their birth certificate, passport, drivers’ license, or state-issued identification. Minors in some employment, including musicians and entertainers, are exempt from child labor laws.
(n) Tennessee Drug-Free Workplace Program
Employers that comply with the Tennessee Drug-Free Workplace Program are eligible for several workers’ compensation-related benefits. Private employers that wish to participate in the program must conduct:
- job applicant testing for drugs following a conditional offer of employment;
- reasonable suspicion testing of employees whose behavior indicates that they are using or have used drugs or alcohol in violation of the employer's policy;
- post-accident testing;
- follow-up drug testing after treatment for drug or alcohol-related problems; and
- routine fitness for duty testing of employees, if such testing is required by the employer’s written policy.
Testing of public employees is subject to state and federal constitutional limitations. Positive tests must be verified by a confirmation test and by a medical review officer before an employer may discharge, discipline, refuse to hire, discriminate against, or request or require rehabilitation of an applicant or employee (T.C.A. § 50-9-101, et seq.).
Employers must notify all employees that it is a condition of employment for an employee to refrain from reporting to work or working with the presence of drugs or alcohol in the employee’s body and that if an injured employee refuses to submit to a test for drugs, the employee forfeits eligibility for workers' compensation benefits.
(o) Tennessee New Hire Reporting
Employers must provide the Tennessee Department of Human Services with a report that contains the name, address, hire date and social security number of each newly hired employee. In addition, the report must contain the name, address and identifying number of the employer (assigned under Section 6109 of the Internal Revenue Code) (T.C.A. § 36-5-1101 et seq.).
(p) Employers required to request criminal background checks
Criminal background checks must be performed for each employee of a service or facility that provides the following services and whose responsibilities include direct contact with or direct responsibility for service recipients (T.C.A. § 33-2-1202):
- mental health services;
- alcohol and drug abuse prevention and treatment;
- intellectual and developmental disabilities services; and
- personal support services.
Background checks must also be performed for certain individuals who work with children (T.C.A. § 71-3-507 and Tenn. Comp. R. & Regs.0520-12-1-.07).
(q) Jury duty leave
Employers are required to excuse the absence of both full-time and part-time employees summoned to jury duty. For the absence to be excused, the employee must present the summons to the employer on the next day the employee is scheduled to work. For such excused absences, employers with five or more employees must pay the summoned employee his or her usual compensation, though they may deduct the jury service fee, for such time spent on jury duty. The employer is not required to compensate an employee for more time than was actually spent serving and traveling to and from jury duty. Employees who work the night shift should be excused from working the shift preceding their first day of jury duty as well as shifts occurring within 24 hours after a day of jury duty lasting more than three hours (T.C.A. § 22-4-106).
(r) Time off to vote
Employers are required to allow employees to be absent from work for voting for a reasonable period, not to exceed three hours. However, if the employee’s workday begins three or more hours after the opening of the polls or ends three or more hours before the closing of the polls in the county where the employee is a resident, the employer is not required to provide time off for voting (T.C.A. § 2-1-106).
(s) Tennessee Public Protection Act and Whistleblower Law
An employee may not be discharged solely for refusing to participate in illegal activities or disclosing illegal activities (T.C.A. § 50-1-304). There are various statutes with whistleblower and retaliation protections, including the following:
- Public Education Whistleblowers (T.C.A. § 49-50-1409)—prohibits an education employee from being discharged (or discriminated against) in retaliation for whistleblowing under the Education Truth in Reporting and Employee Protection Act of 1989.
- T.C.A. § 4-21-301(1)—prohibits an employee from being discharged (or discriminated against) in retaliation for opposing an unlawful discriminatory practice. In addition, an employee may not be discharged (or discriminated against) in retaliation for making a charge, filing a complaint, testifying, assisting, or participating in an investigation of unlawful discrimination.
- T.C.A. § 50-2-202(c)—prohibits an employee from being discharged (or discriminated against) in retaliation for assisting in the enforcement of Tennessee’s equal pay laws, which prohibit wage discrimination on the basis of sex.
- T.C.A. § 50-3-409—prohibits an employee from being discharged or otherwise discriminated against for exercising, on behalf of the employee or others, rights afforded by the Tennessee Occupational Safety and Health Act.
(t) Restrictive covenants
Restrictive covenants must be reasonable in scope and reasonably tailored to protect legitimate interests. Tennessee has adopted the Uniform Trade Secrets Act.
When determining whether a restrictive covenant is reasonable and thus enforceable, courts review:
- the consideration supporting the agreement;
- the threatened danger to the employer in the absence of such an agreement;
- the economic hardship imposed on the employee by the agreement; and
- whether the agreement is inimical to public interest.
An employer attempting to enforce a restrictive covenant must be seeking to protect a legitimate business interest, such as the retention of existing customers, the protection of trade secrets or confidential information, or the investment in training or enhancing the employee’s skill and experience.
(u) Worker Adjustment and Retraining Notification (WARN) Act (T.C.A. § 50-1-601, et seq.)
Tennessee has a mini-WARN Act statute that requires employers that employ at least 50, but not more than 99 full-time employees at a workplace within the state to notify employees and the state if, when the employer closes, modernizes or relocates a workplace (or portion thereof), or implements a new management policy, the result is a reduction in force of 50 or more employees in any three-month period.
Who do these cover, including categories of workers?
- The Tennessee Human Rights Act (T.C.A. § 4-21-102)—applicable to employers with eight or more employees.
- Tennessee Disability Act (T.C.A. §8-50-103)—applicable to employers with eight or more employees.
- Workers’ compensation (T.C.A. § 50-6-102, 50-6-902)—applicable to employers with five or more paid employees; in construction, or in mining and production of coal, it is applicable to employers with one or more employee.
- Worker Adjustment and Retraining Notification Act (T.C.A. §50-1-601)—applicable to employers with 50 to 99 full-time employees at a workplace located within the state.
- Parental Leave (T.C.A. § 4-21-408)—applicable to employers with 100 or more full-time employees on a permanent basis at the job site or location.
- Jury Duty Pay (T.C.A. § 22-4-106)—applicable to employers with five or more employees employed on a regular basis; applies to full-time and part-time employees, as well as temporary employees employed for six months or more.
Are there state-specific rules regarding employee/contractor misclassification?
Must an employment contract be in writing?
No, a contract capable of performance within one year need not be in writing, but this is advisable. Employment contracts for a term longer than one year generally must be in writing, subject to some exceptions.
Are any terms implied into employment contracts?
No, but there is an implied covenant of good faith and fair dealing. The Tennessee Supreme Court has held that every contract has an implied covenant of good faith and fair dealing in its performance and enforcement. Further, if the contract fails to state the term of the contract, Tennessee courts will generally presume that the contract was at-will.
Are mandatory arbitration agreements enforceable?
How can employers make changes to existing employment agreements?
If the employment agreement is in a written contract, the employer may make changes by revising the contract. If the employment agreement is in a policy or practice, the employer may announce a revision before its applicable date.
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