Employee Communications: Tennessee
Federal law and guidance on this subject should be reviewed together with this section.
Author: James L. Holt, Jr., Jackson, Shields, Yeiser & Holt
- Tennessee employers are required to post information about various state employment laws. See Postings Required by Tennessee Law.
- Tennessee employers are required to include in their employee handbook the provisions of the Tennessee Maternity Leave Law. See Maternity Leave Law.
- Under the Tennessee Human Rights Act, employers may require employees to speak only in English at certain times if the employer has a legitimate business necessity for such a policy. See English-Only Workplace Policy.
- In certain circumstances, Tennessee employers must provide layoff notices. See Plant Closings.
- Tennessee law provides employers qualified immunity for the disclosure of truthful, fair and unbiased information about employees. See Defamation.
- Tennessee law protects whistleblowers and others who have engaged in protected activities. See Whistleblowing and Anti-Retaliation Protections.
- Tennessee law protects an employer's trade secrets. See Trade Secrets.
- With certain exceptions, Tennessee law makes unlawful and void any contract that is either intended to or tends to lessen competition. See Noncompetition Covenants.
- Tennessee law imposes certain limitations on employer use of nondisclosure agreements. See Nondisclosure Agreements.
- Tennessee is a one party consent state. See Employee Use of Communications Systems.
- Tennessee law prohibits texting while driving. See Use of Mobile Devices.
Postings Required by Tennessee Law
Tennessee employers of two or more employees are required to post certain information about employment laws in a prominent place where employees have access, e.g., a break room or time clock area. Required postings address areas such as:
- Child labor;
- Workers' compensation; and
- Safety and health.
The following posters, in English and Spanish, can be downloaded from the Tennessee Department of Labor's website:
- Wage Regulation/Child Labor. +Tenn. Code Ann. § 50-2-103(d);
- Workers' Compensation, for employers with five or more employees, or one employee if involved in coal mining. +Tenn. Code Ann. § 50-6-407;
- Safety and Health, under the Department's Division of Occupational Safety and Health (TOSHA);
- Discrimination in Employment, for employers with eight or more employees; and
- Unemployment Insurance.
With respect to Tennessee's unemployment insurance law, amendments governing seasonal employment took effect on July 1, 2016, although actual implementation of the provisions takes effect on July 1, 2020. +2015 TN H.B. 1552; Unemployment Insurance: Tennessee.
As of July 1, 2020, a seasonal employer must conspicuously display the Tennessee Department of Labor and Workforce Development's seasonal determination on the employer's premises. In addition, a seasonal employer must provide each seasonal worker or prospective seasonal worker with a notice stating that the seasonal wages are potentially excludable from the base period. The notice should:
- Be provided prior to the beginning of each active seasonal period;
- Be provided prior to the performance of any work for the employer;
- Advise the seasonal worker of the beginning and ending dates of the active seasonal period; and
- Contain the Department's contact information for any inquiries by seasonal workers.
Drug-Free Workplace Programs. Tennessee employers may implement a drug-free workplace program. These programs have notice-posting requirements. Upon implementation of the program, general notice to all employees is required. In addition, a notice of the covered employer's drug and alcohol testing policy must be posted in an appropriate and conspicuous location on the covered employer's premises, and copies of the policy must be made available for inspection by the employees or job applicants of the covered employer during regular business hours in the covered employer's personnel office or other suitable locations. Notice of drug and alcohol testing must be included on vacancy announcements for positions for which drug or alcohol testing is required. +Tenn. Code Ann. § 50-9-105.
Firearms. Tennessee employers may prohibit or restrict employees and other persons in the workplace from possessing firearms on employer property. +Tenn. Code Ann. § 39-17-1359. Proper notice of the prohibition or restriction should be displayed in prominent locations, including all entrances to the property. +Tenn. Code Ann. § 39-17-1359.
The notice required must be in English, but duplicate notice may also be posted in any language used by patrons, customers or persons who frequent the place where weapon possession is prohibited.
An employer that prohibits weapons must post a sign that includes:
- The phrase "NO FIREARMS ALLOWED", and the phrase shall measure at least one inch (1") high and eight inches (8") wide;
- The phrase "As authorized by T.C.A. § 39-17-1359"; and
- A pictorial representation of the phrase "NO FIREARMS ALLOWED" that must include a circle with a diagonal line through the circle and an image of a firearm inside the circle under the diagonal line. The entire pictorial representation must be at least four inches (4") high and four inches (4") wide. The diagonal line shall be at a forty-five degree (45 degrees) angle from the upper left to the lower right side of the circle.
An employer that restricts weapons must post a sign that includes:
- The phrase "CONCEALED FIREARMS BY PERMIT ONLY", and the phrase must measure at least one inch (1") high and eight inches (8") wide.
- The phrase "As authorized by T.C.A. Sections 39-17-1351 and 39-17- 1359".
- A pictorial representation of the phrase "CONCEALED FIREARMS BY PERMIT ONLY" that must include a circle with a diagonal line through the circle and an image of a firearm inside the circle. The entire pictorial representation must be at least four inches (4") high and four inches (4") wide. The diagonal line must be at a 45 degree angle from the upper left to the lower right side of the circle.
Employers were required to replace noncompliant signs by January 1, 2019. +2017 Bill Text TN H.B. 2370.
For more information on employee rights relating to transporting or storing a firearm or ammunition, please see Employee Discipline: Tennessee.
Maternity Leave Law
Tennessee law requires that employers of 100 or more employees provide their employees who have worked for at least 12 months on a full-time basis up to four months unpaid leave of absence for the following:
- Childbirth; or
- Nursing an infant.
Employers must include the law's provisions in any employer handbook published after May 27, 2005. +Tenn. Code Ann. § 4-21-408.
See FMLA: Tennessee.
English-Only Workplace Policy
Under the Tennessee Human Rights Act, employers may require employees to speak only in English at certain times if the employer has a legitimate business necessity for such a policy. +Tenn. Code Ann. § 4-21-401(c).
The employer must provide notice of the English-Only policy, as well as the consequences for violating the policy.
Tennessee law requires that employers with between 50 and 99 full time employees must notify affected employees and the State Commissioner of Labor of a reduction in the workforce of 50 or more employees during any three month period. +Tenn. Code Ann. § 50-1-601; +Tenn. Code Ann. § 50-1-602.
Tennessee courts recognize defamation claims, which may be based on an employer's discussion of an employee's job performance with a third party. In order to state a defamation claim, an employee must show:
- The employer published a statement;
- That the employer knew was false; or
- With reckless disregard for the truth; or
- With negligence in determining the truth of the statement.
Sullivan v. Baptist Mem. Hosp., +995 S.W.2d 569 (Tenn. 1999).
Tennessee courts have not accepted the compelled self-publication doctrine, in which the employer's statement is determined to be published to a third party when an employee, and not the employer, discloses negative information in the context of a job application or similar circumstance. See Sullivan v. Baptist Mem. Hosp., +995 S.W.2d 569 (Tenn. 1999).
Furthermore, Tennessee law provides that any employer responding to a request from a prospective employer who provides truthful, fair and unbiased information about a current or former employee's job performance is:
- Presumed to be acting in good faith; and
- Granted qualified immunity for the disclosure and its consequences.
An employee may rebut the presumption of good faith by showing, by the greater weight of the evidence, that the disclosed information was:
- Knowingly false;
- Deliberately misleading;
- Disclosed for a malicious purpose;
- Disclosed in reckless disregard for its falsity or defamatory nature; or
- Violating of the employee's civil rights under employment discrimination laws.
Whistleblowing and Anti-Retaliation Protections
Tennessee law provides that employees may not be discharged solely because they refused to participate in or to remain silent about illegal activities. +Tenn. Code Ann. § 50-1-304.
Employees fired in violation of this provision may bring a lawsuit for retaliatory discharge for the following remedies:
- Reasonable attorney fees; and
However, any employee who files such a retaliatory discharge suit for an improper purpose, such as to harass or cause the employer needless expense, may be subject to sanctions, including the employer's reasonable attorney fees.
Tennessee law contains additional anti-retaliation protections. See Employee Discipline: Tennessee.
Tennessee law adopted the Uniform Trade Secrets Act, which provides remedies for the protection of an employer's trade secrets. +Tenn. Code Ann. 47-25-1701 et seq. (§§ 47-25-1701 to 47-25-1709).
An action for misappropriation of a trade secret may be brought within three years of discovery of the misappropriation. Remedies provided include the following:
- Injunctive relief;
- Unjust enrichment;
- Reasonable attorney fees to the prevailing party; and
- In case of willful and malicious misappropriation, exemplary damages in an amount not exceeding twice the damages amount.
Tennessee law makes unlawful and void any contract that is either intended to or tends to lessen competition. +Tenn. Code Ann. § 47-25-101. Courts generally do not favor noncompetition covenants or agreements because they are viewed as restraints on trade. However, noncompetition covenants are not automatically invalid, and may be enforced if they are reasonable under the circumstances. Hasty v. Rent-A-Driver, Inc., +671 S.W.2d 471 (Tenn. 1984).
Generally, courts will enforce noncompetition covenants if:
- The agreement contains reasonable time and geographic restrictions;
- The agreement is supported by adequate consideration; and
- The threatened danger to the employer is not outweighed by the economic hardship imposed on the employee.
Central Adjustment Bureau, Inc. v. Ingram, +678 S.W.2d 28 (Tenn. 1984).
Noncompetition covenants involving physicians are specifically governed by Tennessee statutory law. +Tenn. Code Ann. § 63-1-148.
Effective May 15, 2018, a public or private employer is prohibited from requiring an employee or prospective employee to execute or renew a nondisclosure agreement with respect to sexual harassment in the workplace as a condition of employment. +2017 Bill Text TN H.B. 2613, amending Tennessee Code Annotated, Title 50, Chapter 1, Part 1.
Employee Use of Communications Systems
Tennessee is a one party consent state with respect to recording employee communications. Tennessee employers may not lawfully intercept wire, oral or electronic communications unless:
- The employer is a party to the communication; or
- One of the parties to the communication has given prior consent to the interception.
Use of Mobile Devices
Tennessee law prohibits texting while driving a motor vehicle. Reading, selecting or entering a phone number for the purpose of making or receiving a phone call is not prohibited. +Tenn. Code Ann. § 55-8-199; see Future Developments.
School bus drivers may not use handheld mobile telephones. +Tenn. Code Ann. § 55-8-192. In addition, minor drivers and those with a learner's permit or intermediate license are prohibited from any handheld mobile device use.
Effective January 1, 2020, Tennessee distracted driving laws are amended to prohibit using a handheld mobile telephone while driving. Drivers 18 years of age or older may use a hands-free device to speak on a mobile telephone while driving.
For drivers under 18 years of age, any use of a mobile telephone is prohibited, whether a handheld or hands-free device is used.
There are no other developments to report at this time. Continue to check XpertHR regularly for the latest information on this and other topics.