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State snapshot

Key considerations
Which issues would you most highlight to someone new to your state?

(a) Gun laws

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 state that the law will not control areas where firearms possession is expressly prohibited by federal law.

Effective from July 1 2015, the law also prohibits employers from discharging or taking any adverse employment action against a Tennessee employee solely for complying with the Guns in Trunks law. An employee whose rights are violated is entitled to seek damages, attorneys’ fees, and court costs, as well as a court order prohibiting the employer from violating the law.

(b) Maternity Act

The Tennessee Family Leave Act (T.C.A. § 4-21-408) applies to employers with 100 or more full-time employees at one jobsite, and requires such employers to allow up to four months' maternity leave for pregnancy, childbirth, adoptions, and nursing. The law applies to both male and female employees. To qualify, an employee must have been employed for at least 12 consecutive months as a full-time employee. Maternity leave may be with or without pay, at the discretion of the employer. An employee who gives at least three months' advance notice of his or her leave and an intention to return to full-time employment after maternity leave must be restored to his or her previous or  similar position. Employees who are unable to give three months' notice because of a medical emergency do not lose their right to reinstatement. Leave will not affect the employee's right to seniority, promotion, vacation time, sick leave, or other benefits and bonuses for which he or she was eligible on the date of leave.

(c) Tobacco use

Tennessee’s Non-Smoker Protection Act (T.C.A. § 39-17-1801, et seq.) prohibits smoking in all public buildings and enclosures (with few exceptions), including:

  • restaurants;
  • schools;
  • healthcare facilities;
  • hotels;
  • shopping centers;
  • sports arenas;
  • restrooms;
  • elevators; and
  • childcare facilities.

The law applies to “employers in Tennessee,” which is broadly defined as any entity that employs four or more individuals. It specifically bans smoking in any:

“enclosed area under the control of a public or private employer that employees normally frequent during the course of employment, including, but not limited to, work areas, private offices, employee lounges, restrooms, conference rooms, meeting rooms, classrooms, employee cafeterias, hallways, and vehicles.”

This list of designations is not specifically limited to areas where the public is actually invited but is broader in scope and applies to any general enclosed area at the worksite. Employers and businesses must communicate the law’s protections to all employees and prospective employees. Moreover, at every entrance of every public place and place of employment where smoking is prohibited, employers must place a “No Smoking” sign.

This law presumably also covers vapor products, such as e-cigarettes, in the definition of tobacco products, as there was an attempt to clarify the law to specifically exclude vapor products. However, the bill did not pass.

Tennessee also has a law that prohibits employers from discharging or terminating an employee solely for participating or engaging in the use of tobacco products during times when the employee is not working. The law also prohibits termination if the employee participates or engages in the use of tobacco products in a manner that complies with all applicable employer policies regarding use during times at which the employee is working (T.C.A. § 50-1-304(3)). The law does not prohibit an employer from refusing to hire a new employee for tobacco use.

(d) Mandatory breaks/wage payment

There are no state minimum wage or overtime rules. An employer is required to pay an employee all pay accrued by the first of the month no later than the 20th of the month following that in which the wages were earned, and all pay accrued by the 16th day of the month no later than the fifth day of the succeeding month (T.C.A. § 50-2-103). Every employer must maintain regular paydays and post a notice in at least two conspicuous places. Tennessee law also requires a 30-minute unpaid rest or meal period for an employee scheduled to work six consecutive hours, unless the employee’s job and the work environment are such as to provide ample opportunity to rest or take an appropriate break.

(e) Password protections

Tennessee’s Employee Online Privacy Act of 2014 entered into effect on January 1, 2015 and prohibits an employer from requesting or requiring that applicants or employees disclose their passwords for personal internet accounts. This law also prohibits employers from requiring that applicants or employees:

  • add the employer to their list of contacts associated with personal internet accounts; or
  • permit the employer to observe their restricted online content after they have accessed an online account.

However, this law provides exceptions pertaining to the use of any electronic communication device, account, or service provided or paid for by the employer, or a personal account used for the employer’s business purposes. In addition, employers may discipline or discharge an employee for transferring the employer’s proprietary or confidential information or financial data to the employee’s personal internet account.

Further, the law does not limit the viewing, access, or use of information that is available in the public domain, though use of this information may be limited by other laws, such as the National Labor Relations Act, anti-discrimination laws, and laws prohibiting adverse employment actions based on lawful off-duty conduct.

Employers may also require an employee to cooperate in an investigation into prohibited work-related employee misconduct.

What do you consider unique to those doing business in your state?

Doing business in Tennessee is unique due to the state’s gun laws, maternity policies, regulations on tobacco use, mandatory break laws, and its password protection law.  

Furthermore, Tennessee has enacted a number of unique employment laws that went into effect on July 1, 2014.  These laws have significant implications for Tennessee employers.  Specifically:

  • There is no individual liability for supervisors or managers in discrimination claims; only the “employer” can be sued for discrimination.
  • There are caps on non-monetary damages (e.g., pain, suffering, humiliation, or embarrassment) in discrimination claims; however, there are no caps on back-pay or front-pay.
  • Common law “whistleblower” claims are preempted; such retaliation claims can be brought only under the Tennessee Public Protection Act pursuant to its “sole cause” standard.
  • An employee cannot maintain a state claim under the Tennessee Human Rights Act, Tennessee Disability Act, or Tennessee Public Protection Act while at the same time pursuing an action in federal court based on the same operative facts.  Upon motion of the employer, the state court must dismiss the action brought under state law.

Tennessee has also passed recent changes to its worker’s compensation laws.  Specifically:

  • Tennessee has moved from a hybrid administrative/trial court system to a fully administrative system for workers’ compensation claims.  In other words, state courts no longer decide disputed workers’ compensation claims.  Administrative courts devoted exclusively to workers’ compensation claims now make these decisions.
  • Calculation of permanent indemnity benefits has been significantly revised. All injuries are examined as whole person injuries, and the maximum value has been increased to 450 weeks, regardless of whether the employee returns to work. Subsequent conditions can also result in additional benefits.
  • The causation analysis has been changed. “Primarily” is defined to mean that an employment contributed more than 50% toward the injury, as established by a preponderance of the evidence. In addition, the opinion of the treating physician is presumed correct on the issue of causation (rebuttable, preponderance of the evidence standard).

Is there any general advice you would give in the labor/employment area?

Tennessee generally is considered a “pro-business” state, and its regulation of the employment relationship is not considered aggressive. However, Tennessee does have some “quirks” in its laws; Tennessee is a “right to work” state and a “deferral” state under Title VII administration (Tennessee’s state agency is the Tennessee Human Rights Commission). The state also administers its own Occupational Safety and Health Administration program (ie, Tennessee Occupational Safety and Health Act). 

Proposals for reform
Are there any noteworthy proposals for reform in your state?

Like many other states, lawmakers in Tennessee have proposed legislation that would require mandatory leave benefits in addition to those required by federal law.  For instance:

In February 2015, Tennessee Representative Craig Fitzhugh proposed a bill that would have required employers to provide at least four (4) hours of leave, paid or unpaid, each year for parental involvement in schools.  This measure passed on second consideration in the Senate but failed in the House in March.

While, to date, such reform efforts have failed, employers should be aware that Tennessee may face continued pressure to reform its leave laws, as several states have passed laws mandating that employers provide paid or unpaid sick leave.  Note, however, that, unlike some states, local county and city governments in Tennessee cannot pass their own leave laws.  Tennessee has banned any city or county within the state from establishing its own rights to leave.

Tennessee has also faced pressure to reform its minimum wage laws, and though lawmakers have generally opposed such legislation, this pressure is likely to continue.  Tennessee has one of the highest rates in the country of workers currently receiving minimum wage.  In March 2015, lawmakers proposed two bills that would have established a state minimum wage.  However, both bills quickly failed.  Note that Tennessee has also banned any city or county within the state from establishing its own minimum wage requirements.

Emerging issues
What are the emerging trends in employment law in your state, including the interplay with other areas of law, such as firearms legislation, legalization of marijuana and privacy?

Tennessee lawmakers have proposed the following legislation that will be considered in 2016:

  • Legislation that would establish an administrative system to review medical malpractice claims. 
  • The “Tennessee Pregnant Workers Fairness Act.”  This act would declare it to be a discriminatory act based on sex if:
    • an employer fails to reasonably accommodate an applicant or employee who has a disability related to pregnancy, childbirth, or a related condition where the employee has requested an accommodation that would not impose an undue hardship on the employer’s program, enterprise, or business;
    • the employer takes an adverse employment action against an employee who requests an accommodation or fails to reinstate the employee to her original job or an equivalent position once the need for accommodation ceases;
    • the employer denies employment opportunities to an applicant or employee if based on the need for accommodations;
    • the employer requires the applicant or employee to accept an accommodation she does not want to accept; or
    • the employer requires an employee to take leave if another accommodation can be provided.

The “Tennessee Employee Injury Benefit Alternative.”  This act would provide a financial security safe harbor for an employer that insures or obtains coverage to reimburse the employer for payments made under the employer’s worker’s compensation benefit plan.

Employment relationship

State-specific laws
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 state 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 worker’s 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 (3) or more hours after the opening of the polls or ends three (3) 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.

Misclassification
Are there state-specific rules regarding employee/contractor misclassification?

No.   

Contracts
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?

Yes.  

How can employers make changes to existing employment agreements?

If the employee agreement is in a written contract, the employer may make changes by revising the contract. If the employee agreement is in a policy or practice, the employer may announce a revision before its applicable date.

Hiring

Advertising
What are the requirements relating to advertising open positions?

None—other than to ensure equal opportunity employer designation.

Background checks
What can employers do with regard to background checks and inquiries?

(a) Criminal records and arrests

Tennessee has not passed any legislation regulating background checks and inquiries but does require that some employers check criminal conviction records (though not arrest records).  Employers should be mindful of federal laws limiting the use of criminal and arrest records in employment decisions, however.

(b) Medical history

Although no specific prohibition exists in the Tennessee Disability Act, employers are likely prohibited from checking medical history before employment, as with the Americans with Disabilities Act.

(c) Drug screening

Yes. 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.).

(d) Credit checks

Tennessee follows the legal rules set out in the Fair Credit Reporting Act and has not passed legislation prohibiting employers from pulling credit reports or from using such reports when making a hiring decision.    

(e) Immigration status

Yes—it is required under the Tennessee Lawful Employment Act, effective January 1, 2012. The act requires all employers in Tennessee to demonstrate that they are hiring and maintaining a legal workforce.  T.C.A. §50-1-103(c) and § 50-1-701, et seq.

(f) Social media

Tennessee’s Employee Online Privacy Act of 2014 prohibits employers from:

  • requiring or requesting employees or applicants to disclose passwords to personal online accounts;
  • compelling employees or applicants to add them to their personal online account contact lists;
  • compelling employees or applicants to access personal online accounts in their present so that the employer can view the contents; and
  • taking adverse action, failing to hire, or otherwise penalizing employees or applicants because of a failure to disclose such information or to take such actions (Tenn. Code Ann. § 50-1-1001, et seq).

(g) Other

Eligibility to work verification requirements. 

Wage and hour

Pay
What are the main sources of wage and hour laws in your state?

Federal law with some additional Tennessee requirements.  

What is the minimum hourly wage?

Same as federal law. No separate state law exists.

What are the rules applicable to final pay and deductions from wages?

Final paycheck must be paid within 21 days after termination or by the next payroll date after termination, whichever is later (Tenn. Code Ann. § 50-2-103(g)).

Deductions from wages 
Employers may offset an employee's wages for an amount owed by the employee if: the employer enters into an agreement with the employee to advance his or her wages before the wages are due, agrees to otherwise lend him or her money, or permits him or her to charge personal items on a business or corporate credit card; the employee signs a written agreement before the employer offsets his or her wages for any amount owed to it. The employer must have a copy of the signed agreement in its possession before any wages are offset; the employer notifies the employee of the following in writing 14 days before the payment of wages is due: the amount that the employee owes the employer; that the employee's wages may be offset if the amount owed is not paid before the payment of wages is due; and that the employee may submit an affidavit as described below; and the employee has not paid the amount described in the notice sent by the employer. Employers cannot offset wages that are due to an employee if he or she sends a sworn affidavit to the employer, and a copy of the affidavit to the Department of Labor and Workforce Development, no later than seven days after receiving notification from the employer, contesting the amount owed. If an employee contests an amount owed, the employer may commence an appropriate civil action to recover the amount it alleges that the employee owes (Tenn. Code Ann. § 50-2-110).    

Hours and overtime
What are the requirements for meal and rest breaks?

A mandatory unpaid break of at least 30 minutes is required if the employee is scheduled for six consecutive hours, but only if the job does not allow the employee to take an appropriate meal break on his or her own. 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)). Breaks are required for females to express breast milk.

What are the maximum hour rules?

None, other than federal.  

How should overtime be calculated?

Same as federal.   

What exemptions are there from overtime?

Same as federal.  

Record keeping
What payroll and payment records must be maintained?

Same as federal.

Discrimination, harassment and family leave

What is the state law in relation to:
Protected categories

(a) Age?

Yes. Under Tennessee law, it is a discriminatory practice for an employer to fail or refuse to hire or discharge any person or otherwise to discriminate against an individual with respect to compensation, terms, conditions, or privileges of employment because of such individual’s age (T.C.A. § 4-21-401).   

(b) Race?

Yes. Under Tennessee law, it is a discriminatory practice for an employer to fail or refuse to hire or discharge any person or otherwise to discriminate against an individual with respect to compensation, terms, conditions, or privileges of employment because of such individual’s race (T.C.A. § 4-21-401). 

(c) Disability?

Yes. Under Tennessee law, it is a discriminatory practice for an employer to fail or refuse to hire or discharge any person or otherwise to discriminate against such individual with respect to compensation, terms, conditions, or privileges of employment because of disability (T.C.A. § 4-21-401).   

(d) Gender?

Yes. Under Tennessee law, it is a discriminatory practice for an employer to fail or refuse to hire or discharge any person or otherwise to discriminate against an individual with respect to compensation, terms, conditions, or privileges of employment because of such individual’s sex (T.C.A. § 4-21-401).  

(e) Sexual orientation?

No; however, there are ordinances prohibiting discrimination on the basis of sexual orientation and gender identity in Metro-Nashville, Knoxville, and Memphis.   

(f) Religion?

Yes. Under Tennessee law, it is a discriminatory practice for an employer to fail or refuse to hire or discharge any person or otherwise to discriminate against an individual with respect to compensation, terms, conditions, or privileges of employment because of such individual’s religion (T.C.A. § 4-21-401).  

(g) Medical?

Not separate from disability.  

(h) Other?

Protection from discrimination based on creed, color, and national origin.  

Harassment
What is the state law in relation to harassment?

Follows federal case law.

Family and medical leave
What is the state law in relation to family and medical leave?

Up to four months to mothers and fathers for the birth or adoption of a child. This applies to employers with 100 or more employees at the worksite (T.C.A. § 4-21-408).

Privacy in the workplace

Privacy and monitoring
What are employees’ rights with regard to privacy and monitoring?

Under Tennessee’s Employee Online Privacy Act of 2014, employers are prohibited from requesting or requiring that applicants or employees disclose their passwords for personal internet accounts. This law also prohibits employers from requiring that applicants or employees:

  • add the employer to their list of contacts associated with personal internet accounts; or
  • permit the employer to observe their restricted online content after they have accessed an online account. 

However, this law provides exceptions pertaining to the use of any electronic communication device, account, or service provided or paid for by the employer, or a personal account used for the employer’s business purposes.

Employees are also protected under the Wiretapping and Electronic Surveillance Act, unless the person is party to the communication.

Are there state rules protecting social media passwords in the employment context and/or on employer monitoring of employee social media accounts?

Yes. Tennessee’s Employee Online Privacy Act of 2014 prohibits an employer from requesting or requiring that applicants or employees disclose their passwords for personal internet accounts. This law also prohibits employers from requiring that applicants or employees:

  • add the employer to their list of contacts associated with personal internet accounts; or
  • permit the employer to observe their restricted online content after they have accessed an online account. 

However, this law provides exceptions pertaining to the use of any electronic communication device, account, or service provided or paid for by the employer, or a personal account used for the employer’s business purposes.

Apart from Tennessee’s Employee Online Privacy Act of 2014, no state rules governing an employer’s ability to monitor an employee’s social media account exist.

Bring your own device
What is the latest position in relation to bring your own device?

Tennessee has not taken a position in relation to an employee bringing his or her own device to work. However, Tennessee has instituted the Employee Online Privacy Act of 2014, which prohibits an employer from requesting or requiring that applicants or employees disclose their passwords for personal internet accounts. This law also prohibits employers from requiring that applicants or employees:

  • add the employer to their list of contacts associated with personal internet accounts; or
  • permit the employer to observe their restricted online content after they have accessed an online account. 

However, this law provides exceptions pertaining to the use of any electronic communication device, account, or service provided or paid for by the employer, or a personal account used for the employer’s business purposes.

Off-duty
To what extent can employers regulate off-duty conduct?

There is no separate guidance in Tennessee.  

Gun rights
Are there state rules protecting gun rights in the employment context?

 Yes. The Guns in Trunks Law allows permit holders to bring a gun onto the parking lots of employers, so long as it is kept in the car and out of view (e.g., in trunk or glove box).   

Trade secrets and restrictive covenants

Intellectual Property
Who owns IP rights created by employees during the course of their employment?

The United States Copyright Act (17 U.S.C. § 101, et seq.) contains a “work-for-hire” doctrine, which states that in the absence of a written agreement to the contrary, copyrightable works created by a U.S. employee within the scope of his or her employment will be owned by the employer in most circumstances. However, this doctrine applies only to copyrightable works (e.g., literary works and audiovisual materials), and does not include patentable rights or technology or other types of intellectual property that an employee may create. The work-for-hire doctrine also does not apply to independent contractors, except in very limited circumstances. To ensure that an employer owns all IP rights created by its employees and independent contractors, the recommended best practice is to enter into valid and enforceable confidentiality and IP assignment agreements with all employees and independent contractors.  

Restrictive covenants
What types of restrictive covenants are recognized and enforceable?

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. 

Tennessee has adopted the Uniform Trade Secrets Act (T.C.A. § 47-25-1701, et seq.).  

Non-compete
Are there any special rules on non-competes for particular classes of employee?

Attorneys and healthcare providers are subject to particular rules with respect to restrictive covenants. Tennessee’s Code of Professional Responsibility prohibits lawyers from being parties to or participating in partnership or employment agreements with other lawyers that restrict the right of a lawyer to practice law after the termination of a relationship created by the agreement, except as a condition to payment of retirement benefits (Supreme Court Rule 8, Rules of Professional Conduct, Rule 5.6). 

Healthcare providers—with the exception of physicians specializing in emergency medicine—may enter into covenants not to compete upon termination or conclusion of the employment or contractual relationship if:

  • the restriction is set forth in an employment agreement or other written document signed by both the healthcare provider and the employer or contracting entity;
  • the restriction is for two years or less; and
  • either:

the maximum geographic restriction is the greater of a 10-mile radius from the primary practice site of the healthcare provider while employed or contracted or the county in which the provider primarily practiced; or
the healthcare provider is restricted from practicing at any facility at which the employing or contracting entity provided services while the healthcare provider was employed or contracted. 

Employing and contracting entities may not enter into covenants not to compete with physicians specializing in emergency medicine. 

If entered into in a sale of business context in which the healthcare provider is selling all or substantially all of the assets of the provider’s practice, the restriction need only be reasonable under the circumstances; there is a rebuttable presumption for the duration and area of the restriction agreed on by the parties is reasonable (T.C.A. § 63-1-148). 

Labor relations

Right to work
Is the state a “right to work” state?

Yes.

Unions and layoffs
Is the state (or a particular area) known to be heavily unionized?

No.

What rules apply to layoffs? Are there particular rules for plant closures/mass layoffs?

Tennessee’s Worker Adjustment and Retraining Notification (WARN) statute (Plant Closing and Reduction in Operations Act (T.C.A. § 50-1-601 et seq.)) expands the scope of the federal WARN Act by requiring employers with 50 to 99 employees to provide notice to employees before a reduction in operations. Informal guidance published by the Tennessee Department of Labor and Workforce Development regarding Tennessee’s mini-WARN Act states employers must provide 60 days’ notice to employees of a reduction in operations, but the statute does not provide for a specific notice period. 

Under Tennessee’s act, a reduction in operations occurs when the closure, modernization, or relocation of a workplace results in a reduction of 50 or more employees in a three-month period. 

Discipline and termination

State procedures
Are there state-specific laws on the procedures employers must follow with regard to discipline and grievance procedures?

No.  

At-will or notice
At-will status and/or notice period?

At will.  

What restrictions apply to the above?

  • The Public Protection Act;
  • Common law development (e.g., workers’ compensation, stated law, or policy);
  • Jury duty;
  • Tennessee Occupational Safety and Health Act complaints;
  • Protected activity under discrimination laws; and
  • Statute on garnishments.


Final paychecks
Are there state-specific rules on when final paychecks are due after termination?

Yes. Employees must receive final wages within 21 days or the next payroll date, whichever is later.