Tennessee | Tennessee Employment Law

August 2014

Does An Illegal Alien Have Standing To Bring A Retaliatory Discharge Claim In Tennessee?

In Torres v. Precision Industries, P.I., Inc., et al. the Tennessee Court of Appeals recently answered the question of whether an illegal alien in Tennessee has standing to bring a retaliatory discharge claim. Mr. Torres worked for Precision Industries as a convertor builder at its automotive manufacturing plant in Whiteville, Tennessee. Torres was injured on the job and eventually retained a lawyer to represent him in connection with his workers’ compensation claim. Torres’ lawyer called the defendants seeking the company’s fax number. After this phone call Precision Industries Safety Manager and General Manager confronted Torres about his workers’ compensation claim and his decision to hire an attorney. Later that day Torres was terminated for an alleged “lack of work”. Torres then filed suit alleging he was discharged in retaliation for asserting a workers’ compensation claim. It is undisputed that during the time he was employed by defendants Torres was an illegal alien.

The trial court granted defendants Motion for Summary Judgment and held that Torres could not assert a retaliatory discharge claim because he was not capable of employment due to his undisputed status as an illegal alien. Torres appealed this decision to the Tennessee Court of Appeals and the Court of Appeals reversed.

The Court of Appeals first reviewed whether Torres’ immigration status would prevent him from filing a claim for workers’ compensation benefits. The Court held that for workers’ compensation purposes an employee is anyone employed by another who works for wages or a salary, without regard to whether the employment is legal or illegal. The Court also relied on a previous decision by the Tennessee Workers’ Compensation Panel, Silva v. Martin Lumber Co., which held that an illegal alien is entitled to workers’ compensation benefits.

After making these finding the Court of Appeals considered defendants’ argument that Torres was incapable of performing the job. The Court of Appeals reviewed the case relied on by defendants, Leatherwood v. UPS, and held that it stood for the proposition that an employee can be legally fired because he is physically incapable of performing a job, not that an illegal alien lacks standing to bring a retaliatory discharge claim. As a result, the decision granting summary judgment was reversed and the case was remanded to the trial court for further proceedings.

This case does not mean that employers should ignore the immigration status of their employees. To the contrary, it is illegal to knowingly employee an illegal alien and doing so can result in significant monetary penalties. Additionally, terminating an employee because he or she is an illegal alien is a legitimate, non-discriminatory and non-retaliatory reason for the termination. But an illegal alien who is fired for filing a workers’ compensation claim, or in retaliation for exercising other rights, can bring a retaliatory discharge claim and recover damages regardless of his immigration status.

Tagged illegal alien, immigration, retaliation, retaliatory discharge, Tennessee, worker's compensation

May 2014

Tennessee Passes The Employee Online Privacy Act of 2014

Several states have laws which prohibit employers from requiring an employee or applicant to give the employer access to the employee or applicant’s personal social media account. Tennessee has joined that list with the recent passage of the Employee Online Privacy Act of 2014 (Online Privacy Act).

The Online Privacy Act, which will take effect on January 1, 2015, applies to any person or entity that employs one or more employees and includes the state and its political subdivisions as well as an agent, representative or designee of the employer. The Online Privacy Act prohibits an employer from:

Requesting or requiring an employee or applicant to disclose a password that allows access to a personal internet account;
Compelling an employee or applicant to add the employer or an employment agency to his or her list of contacts associated with a personal internet account;
Compelling an employee or applicant to access a personal internet account in the presence of the employer in a manner that enables the employer to observe the contents of the personal internet account; or
Discharging, failing to hire, or taking adverse action or penalizing an employee or applicant because of a refusal to disclose the password or comply with a request for one of the above prohibited actions.

There are, of course, some exceptions. An employer is not prohibited from:

Requesting or requiring an employee to disclose a user name or password required to gain access to an electronic communications device supplied by or paid for wholly or in part by the employer, or to gain access to an account or service provided by the employer that is obtained by virtue of the employment relationship or that is used for the employer’s business purposes.
Disciplining or discharging an employee for transferring the employer’s proprietary or confidential information or financial data to the employee’s personal internet account.
Conducting an investigation or requiring an employee to cooperate in an investigation if there is specific information on the employee’s personal internet account regarding compliance with applicable laws or prohibitions against work related employee misconduct, or the employer has specific information about an unauthorized transfer of the employer’s proprietary information, confidential information or financial data to the employee’s personal internet account.
Restricting or prohibiting an employee’s access to certain websites while using an electronic communications device supplied by or paid for wholly or in part by the employer, or while using an employer’s network or resources.
Monitoring, reviewing, accessing or blocking electronic data stored on an electronic communications device that is supplied by or paid for wholly or in part by the employer, or stored on the employer’s network.
Complying with the duty to screen employees or applicants before hiring, or to monitor or retain employee communications, in accordance with applicable law.
Viewing, accessing or using information about an employee or applicant that is available in the public domain.
Conducting an investigation or requiring an employee to cooperate in an investigation regarding compliance with applicable law or prohibitions against work related employee misconduct, or an investigation about the unauthorized transfer of the employer’s proprietary information, confidential information or financial data to the employee’s personal internet account.

Individuals whose rights are violated under this law may sue the employer and recover not more than $1,000.00 in damages for each violation, plus reasonable attorney’s fees and court costs.

I have advised for several years that employers should not require employees to disclose passwords for personal social media accounts or grant them access to those accounts. Now, Tennessee has a law which will penalize those employers who do so.

Tagged Online Privacy Act, personal internet account, Tennessee

May 2013

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Employment Law

Tennessee Eliminates Private Suits For State Wage-Hour Law Violations

On April 23, 2013 Governor Haslam signed an amendment to Tennessee’s Wage Regulations Act (Act) which eliminates private suits for state wage and hour law violations. The amendment gives the Tennessee Department of Labor the exclusive power to enforce state wage and hour law. The amendment also provides for an award of reasonable expenses, including attorneys’ fees and disbursements for claims brought under the Act.

Tagged Department of Labor, DOL, Governor Haslam, Tennessee, wage-hour law

April 2013

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Employment Law

Tennessee Tells Local Governments to Stay Out of The Wage and Benefit Arena

On April 11, Governor Haslam signed into law a bill prohibiting local governments from mandating health insurance benefits, leave policies, hourly wage standards, or prevailing wage standards that deviate from existing requirements of state and federal law as a condition of doing business with or within the jurisdiction of the local government.

The new law means that cities and towns in Tennessee may not establish prevailing wages higher than the federal minimum wage and/or state or federal prevailing wages. Any such local laws already on the books are no longer enforceable.

The new law also includes a prohibition against local governments enacting so-called wage theft laws, stating that enforcement of existing wage statutes is the right of the state and federal governments.

This is definitely a win for employers.

Tagged benefits, Governor Haslam, Tennessee, wage theft, wages

February 2013

Tennessee Supreme Court holds temporary employee must be treated the same as a permanent employee for workers’ compensation benefits

Recently the Tennessee Supreme Court held that an employee of a temporary agency who is injured on the job but not returned to work by the agency at a wage equal to or in excess of the pre-injury wage is entitled to benefits up to six times the medical impairment rating. This is the same rate that a permanent employee could receive in the same circumstances.

In deciding Timmy Dale Britt v. Dyer’s Employment Agency the Supreme Court reversed the trial court which held that Mr. Britt was limited to one and one-half times the medical impairment rating, which is the rate that applies if the injured employee is returned to work at a wage equal to or in excess of the pre-injury wage. The trial court based its holding on the fact that Mr. Britt was a temporary employee. The Supreme Court held that the Tennessee workers’ compensation statutes do not distinguish between permanent and temporary employees. Since Mr. Britt was never offered the opportunity to return to work the Court held the lower rate did not apply.

Governor Haslam has announced a plan to review and possibly overhaul Tennessee’s workers’ compensation system. It will be interesting to see if this temporary employee issue will be addressed as part of that process.

Tagged impairment rating, temporary employee, Tennessee, Tennessee Supreme Court, tennessee workers, worker's compensation

Tennessee Employment Law

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