New Tennessee Law Harms Employees

Characterized by the bill sponsors as "streamlining" and "clarifying" employment law, this new bill amends the Tennessee Public Protection Act (TPPA), Tenn. Code Ann. 50-1-304, to bar any common-law retaliatory discharge claim that stems from the same operative facts that support a TPPA claim. Effective July 1, 2014, when this new law takes effect, employees who have been fired can no longer bring both a common law retaliatory discharge claim and a statutory TPPA claim against their employers. Only a statutory claim may be asserted, thus forcing employees to be successful only if they can show that their whistleblowing or other protected activity was the "sole cause" of their termination. Under the common law, to be successful, an employee only had to show that his or her protected activity was "a substantial motivating factor."

In addition to stripping remedies from whistleblowers, the bill also places caps on non-monetary damages (such as emotional distress, anxiety, humiliation and embarassment) for claims brought under the TPPA, the Tennessee Human Rights Act (THRA) and the Tennessee Disability Act (TDA). Largely mirroring the caps under Title VII of the federal Civil Rights Act of 1964, the caps in this new law are tiered based upon the number of persons employed by the defendant at the time of the adverse employment action. For employers who employ between 8 and 14 employees, the damages cap is $25,000. For employers who employ between 15 and 100 employees, the damages cap is $50,000. For employers who employ between 101 and 200 employees, the damages cap is $100,000. For employers who employ between 201 and 500 employees, the damages cap is $200,000. And for employers who employ over 500 employees, the damages cap is $300,000. These caps do not apply to back pay, front pay, or any other equitable relief.

This new law creates new problems. Will there still be situations where a common law retaliatory discharge claim may still be brought? One example that springs to mind is a retaliatory discharge for asserting workers' compensation rights. Normally, these claims are not brought in conjunction with a TPPA claim. What is the fate of the common law retaliatory discharge claim after July 1, 2014? Time will tell.