Employment Discrimination

In Tennessee the relationship between an employer and an employee is described as an at-will relationship. That means that in Tennessee an employee may be discharged for good cause, bad cause, or no cause at all. Either the employer or the employee may terminate the relationship at will. Generally speaking, absent discrimination or wrongful discharge an employee has no legal recourse if terminated by their employer. However, over the years, the courts in Tennessee have made exceptions to the employment-at-will doctrine in certain areas.

In Tennessee our courts have recognized the cause of action to prevent an employer for utilizing retaliatory discharge as a device to defeat the rights of employees under the Workers’ Compensation Law. If an employee is discharged for pursuing or claiming entitlement to workers’ compensation benefits the employee has a cause of action for damages. To establish a cause of action for discharge or for retaliation for asserting a workers’ compensation claim an employee must show:

(1) that they were an employee of their employer at the time of injury;

(2) the employee made claim against its employer for workers’ compensation benefits;

(3) the employer terminated the employee’s employment; and

(4) the claim for workers’ compensation benefits was a substantial factor in the employer’s motivation to terminate the employee’s employment. The employee must prove all the elements of their cause of action, including a causal relationship between the claim for workers’ compensation benefits and termination of employment. Proof of discharge without evidence of a causal relationship between the claim for benefits and discharge is not enough to prevail.

Tennessee also has a Human Rights Act which prohibits discrimination in employment, public accommodations and housing. The Act prohibits discrimination on the basis of race, creed, color, religion, sex, age or national origin in connection with employment, public accommodations, and because of race, color, creed, religion, sex or national origin in connection with housing. If an employee is discharged in violation of the Tennessee Human Rights Act he or she may be awarded damages including reinstatement with back pay, compensatory damages and, if appropriate, front pay, punitive damages and attorney’s fees.

There are other employment statutes such as the Tennessee Occupational Safety and Health Act which contains provisions prohibiting an employer from firing an employee for availing himself/herself of the protective features of the statute including filing a charge or a complaint.

In 1990 the Tennessee legislature passed the Public Protection Act of 1990 which, among other things, helps insulate smokers from discharge for smoking. The Act provides that employees shall not be discharged or terminated solely for participating or engaging in the use of an agricultural product so long as the employee participates or engages in such use in a manner which complies with all applicable policies regarding such use during time at which such employee is working. What the Act provides is that it is unlawful for an employer to discharge an employee solely for participating or engaging in the use of an agricultural product. However, for an employee to be subject to the protection of this Act he or she must comply with any policy the employer has restricting or totally prohibiting the use of agricultural products including tobacco during times at which such employee is working. An employer is free under the Act to restrict the use of tobacco to certain areas of the workplace or to totally ban the use of tobacco at work. The employer may not terminate an employee solely for using agricultural products during times when an employee is not working.

If an employer and employee have entered into a contract governing the terms of the employment relationship the contract may provide for an employment relationship other than employment-at-will. Some contracts between employers and employees provide that an employee will only be discharged for cause. A "for cause" contract simply means that the termination of employment cannot be for any reason but rather must be one for cause. Cause may include any violation of work rules, dishonesty, refusal to perform the job or a host of other factors.

The general employment-at-will rule in Tennessee is also altered for employers and employees who work in an unionized facility. Most collective bargaining agreements between employers and their unions provide that discharge can only occur for "just cause." If an employee believes they have been discharged or disciplined unfairly the contract will also provide for a grievance and arbitration procedure the employee can use to seek assistance from the union. If the employee pursues an action through the grievance and arbitration procedure it will be held by a neutral arbitrator.

Another exception to an employment-at-will in Tennessee may be recognized based on language within an employer’s employee handbook. In Tennessee the general rule is that only when a personnel manual or handbook makes certain "guarantees" to employees will the manual be deemed part of the total employment contract. However, if the manual or handbook contains specific language to disclaim guarantees the manual will not be deemed a part of the employment contract. Although employee handbooks can afford employees certain guarantees, if specifically spelled out, employers may utilize language disclaimers or changing guarantees in the handbook.

Tennessee recognizes a public policy exception to the employment-at-will rule when an employee is discharged for his/her refusal to violate the law at the employer’s request, for his/her refusal to remain silent about a violation of the law, or for whistle-blowing. Generally, an employee must show an "implied" threat of discharge for refusing to remain quiet, and the "threat" must be more than the mere perception of the employee.

Employees may seek free advice on employment discrimination matters by contacting the Tennessee Human Rights Commission and/or the Equal Employment Opportunity Commission.

Your Health Care Rights - During And After Employment

Numerous federal and state laws extend specific health care rights to you and your dependents under your employer’s group health plan both during and after your employment. These laws include the Employee Income Retirement Security Act (ERISA), the Family and Medical Leave Act (FMLA), the Consolidated Omnibus Budget Reconciliation Act (COBRA), the Americans with Disabilities Act (ADA), the Older Workers Benefit Protection Act (OWBPA), civil rights laws and state insurance laws.

Health Care Rights During Employment - Under ERISA, employers must provide plan participants with copies of the latest summary plan description and summary annual report. The summary plan description describes the benefit provisions of your employer’s health plan, such as eligibility requirements, basic medical benefits, out-of-pocket maximums, co-payments, deductibles and plan limitations. Other documents, such as the plan itself or any collective bargaining agreement, contract or trust agreement governing the plan, must be made available upon your request. (A reasonable fee may be charged for copying). Actions for enforcement of benefits may be filed by plan participants and beneficiaries against the plan itself. For example, an employee who believes he was improperly denied a medical benefit may file suit against the plan in federal court. However, the employee should first exhaust the intra-company appeals process provided by the plan itself. Your employer must provide you with a written response, including the specific reasons for the denial and the specific plan sections upon which the denial is based.

FAMILY AND MEDICAL LEAVE ACT

The Family and Medical Leave Act of 1993 (FMLA) was enacted to give you up to 12 weeks of unpaid leave from work per year for any of the following reasons:

1.) The birth of a child,

2.) The placement of a child with you for the purpose of adoption or foster care,

3.) To care for your spouse, son, daughter, or parent when such persons have a serious health condition.

Normally, to qualify under the FMLA, you must have been employed at least 12 months by the employer from whom you request leave and you must have worked at least 1,250 hours for that employer in the preceding 12-month period.

Not all employers are mandated to comply with the FMLA. For an employer to be subject to the FMLA, generally it must employ at least 50 employees each work day for 20 or more workweeks in the current or preceding calendar year. Normally, small businesses are exempt from the FMLA.

A "serious health condition" includes physical or mental conditions that require impatient care in a medical facility or two or more treatments by a health care provider. "Serious health condition" also includes a period of absence from work to receive multiple treatments for a condition that would otherwise leave you incapacitated for more than three consecutive days absent medical treatment. Your employer may require you to obtain medical certification from a health care provider documenting the "serious health condition" that you, your spouse, son, daughter, or parent has endured.

During your leave period, your employer is required to maintain any pre-existing health benefits provided to you. After the leave period is over, the employer must normally restore you to the same or an equivalent position you occupied prior to the leave period with equivalent benefits, pay, and other terms of employment.

It is unlawful for an employer to interfere with, restrain, or deny the exercise of or the attempt to exercise any right provided for under the FMLA. It is also unlawful for an employer to discharge or otherwise discriminate against you for opposing any practice of the employer made illegal under the FMLA. Nor can the employer discharge or otherwise discriminate against you for participating in any inquiry or proceeding relating to any right under the FMLA.

Any employer included under the FMLA may be held liable to you for money damages in a civil action for violating rights established under the Act. The money damages to which you may be entitled equal the amount of any wages, salary, employment benefits, or other compensation lost because of a violation of the FMLA. Interest on this amount is added and the sum total may be doubled by the judge. Te employer may also be required to reinstate you to your job or give you a promotion. A winning plaintiff under the FMLA is also entitled to recover his or her attorney’s fees, expert witness fees, and other costs of the action from the employer.

It is important to realize that actions under the FMLA must be brought within two years of the date of the last alleged violation of the Act. This time is increased to three years after the date of the last alleged violation if such violation was intentional. Also, if it is foreseeable that you need to take leave provided for under the FMLA, you may be required to give your employer proper notice.

The Americans with Disabilities Act (ADA) provides health care protection to disabled employees. Employees with disabilities must be offered the same insurance as other employees and employers may not deny insurance coverage based on disability if the disability does not pose increased insurance risks. Furthermore, employers may not discriminate because an employee’s family member has a disability that may increase the employer’s insurance costs. At the same time, the ADA permits employers to maintain policies that exclude preexisting conditions. The ADA also allows employers to offer insurance policies that limit coverage for certain procedures or treatments to specified policy limits.

The OWBPA prevents your employer from discontinuing or reducing your level of health care coverage based on your attainment of a certain age while you are actively employed. Older workers must receive benefits under the group plan that have the same cost to the employer or the same benefit to employees as younger workers receive. This rule does not, however, apply to voluntary early retirement incentive plans.

Medicare Coverage - Whether during or after employment, you have the right to receive Medicare coverage upon attaining age 65 or becoming disabled (subject to a waiting period). While you are actively employed, your employer’s group health plan is considered primary coverage and Medicare is secondary, which means that your employer’s plan pays your medical bills first and Medicare pays amounts or portions thereof not covered by the plan. If, however, you are retired (and are sixty-five or older), then Medicare becomes primary. If you are actively employed and eligible for Medicare, your employer may encourage you to waive coverage under the employer’s group health care plan. Such a waiver is legally effective only if it is completely voluntary on your part and made without financial incentive from your employer.

Health Care Rights After Employment

COBRA continuation coverage allows you, your spouse, and your minor children to choose to temporarily remain covered under an employer’s group health insurance plan if one or more of the following qualifying events occur that would otherwise end coverage under such an insurance plan:

1.) The death of a covered employee;

2.) The termination (other than by reason of such employee’s gross misconduct) or reduction of hours of a covered employee’s employment;

3.) The divorce of legal separation of a covered employee from his or her spouse;

4.) The covered employee becomes entitled to Medicare benefits;

5.) A dependent child ceases to be a dependent child;

6.) For retired employees, the commencement of a Title 11 bankruptcy proceeding involving the employer.

COBRA continuation coverage does not apply to employers who employ fewer than 20 employees on a typical business day during the preceding calendar year.

A 60-day election period is provided from the date on which coverage is lost, or from the date of receiving notice from the plan’’s administrator that coverage is lost, for you to choose COBRA continuation coverage under the employer’’s group health insurance plan.

The continuing coverage available to you must be identical to that provided to those employees to whom a qualifying event has not occurred and coverage cannot be conditioned upon your ability to be insured. . A premium may have to be paid for the coverage, but, generally, the amount of the premium cannot exceed 102 percent of the premium paid by those employees to whom a qualifying event has not occurred.

COBRA establishes elaborate notice requirements important to a potential beneficiary. At the time a covered employee begins coverage under a group health insurance plan, the plan administrator is required to give the employee written notice of his or her rights under COBRA. A covered employee, spouse, or dependent child ceasing to be a dependent child must notify the plan administrator of a divorce or legal separation or of a dependent child ceasing to be a dependent child within 60 days of such an event. Most important, after receiving any notice of a qualifying event, either from the employer or employee, spouse, or dependent child, the plan administrator is required to notify the employee, spouse, or dependent child of his or her rights under COBRA within 14 days.

COBRA continuation coverage ends when one of the following events takes place:

1.) The applicable continuation coverage period ends, generally a period of 18 to 36 months;

2.) The employer ceases to provide a group health plan to its employees;

3.) The premium for the coverage is not paid;

4.) The employee, spouse, or dependent child achieves coverage under another group health insurance plan;

5.) The employee, spouse, or dependent child becomes entitled to Medicare benefits; or

6.) A spouse remarries and, as a result, becomes covered under another group health plan.

It is unlawful for an employer to discharge, fine, suspend, expel, discipline, or discriminate against you because you exercised your rights under COBRA or because you participated in any inquiry or proceeding under COBRA. It is also unlawful for an employer through the use of fraud, force, violence, or threat of the use of force or violence, to restrain, coerce, intimidate, or attempt to restrain, coerce, or intimidate you to prevent you from exercising your rights under COBRA.

As a prerequisite to bringing a civil action under COBRA, you are required to first follow the proper appeals procedure outlined in the group health insurance plan you wish to obtain COBRA continuation coverage from, so long as the requirements are reasonable. As an employee, spouse or dependent child, you may bring a civil action under COBRA to recover benefits that may be due you under a group health insurance plan, to enforce your rights under a plan, or to clarify your rights to future benefits under a plan. A civil action may also be brought to prohibit any practice which violates any rights established under COBRA or the employer’s group health insurance plan. A prevailing plaintiff in a COBRA action may be able to recover his or her attorney’s fees and costs of the action. Civil actions under COBRA generally must be brought within 6 years of the alleged violations.

COBRA effectively supersedes Tennessee law with respect to group health insurance plans. There are, however, two situations in which Tennessee law is applicable. First, COBRA does not apply to employers with less than twenty employees, but Tennessee law is applicable to all employees. Second, under COBRA, if an employee is terminated for gross misconduct, he loses the right to continuation of coverage, but, under Tennessee law, an employee terminated for any reason is permitted to continue coverage.

For More Information - If you have any questions or would like more detailed information concerning the Family and Medical Leave Act, contact the local office of the U.S. Department of Labor at 545-4619. For Americans with Disabilities Act information, contact the Hamilton County ADA Office at 595-2952. The Tennessee Department of Commerce and Insurance can answer questions concerning state insurance laws at (865) 741-2218. If you have questions concerning Medicare, you may call the Social Security Administration at (800) 772-1213 or 545-4354.

What If I Am Injured At Work?

Work-related injuries are covered in Tennessee under the "Workers' Compensation Law."

With the exception of a limited number of exempt employers, every employer using the services of five or more persons must provide workers' compensation to its employees. Injuries arising out of the employment and suffered during the course of employment are covered unless they result from the following: (1) willful misconduct, (2) intentional self-inflicted injury, (3) intoxication or illegal drugs, and (4) willful failure or refusal to use safety devices or perform a duty required by law.

If you are injured, you are required to provide written notice of the injury to your employer within 30 days of injury. Failure to give the notice required by statute may result in loss of the right to benefits.

Upon receiving notice of injury, the employer is required to file a report with the State of Tennessee, Department of Labor, and further to provide you with benefits either through the employer's workers' compensation insurance carrier or directly from the employer, if the employer is self insured. The Workers' Compensation Law provides benefits for work-related injury or death. The principal types of benefits which apply in ordinary cases include medical treatment and, if applicable, temporary total disability payments and permanent disability payments.

The employer must give an employee a choice of three physicians, not practicing together, from which the employee can choose his or her treating physician. Failure of the employee to accept medical treatment from authorized physicians may result in the employee bearing the cost of the medical treatment, and failure to comply with employer's reasonable request for examination or required medical services may result in suspension of benefits.

Medical benefits include medical and surgical treatment, medicine, medical and surgical supplies, nursing services, and dental work.

Temporary benefits are designed to help the injured employee during his recovery. They serve as a substitute for wages until the employee is able to return to work or until a point is reached where further improvement is not expected. If such a point is reached and the employee is still not able to work, the temporary disability payments will stop and the employee may be entitled to permanent disability benefits, depending on the facts of the case.

If the injury results in permanent impairment according to a qualified physician, the Court can award permanent disability based on the vocational effect of the injury. If the injury results in permanent disability, the injured employee is entitled to compensation for the percentage of loss to the part of the body injured (as set forth in the schedule below) in addition to temporary disability. If the injury is not to a scheduled member, it will be assigned disability to the body as a whole.

If the employee sustains an injury or occupational disease which renders the employee totally unable to perform any type of work which would allow him an income, the Court may find him permanently and totally disabled.

Benefits for temporary and permanent disability are generally payable based upon 66 2/3 percent of the employee's average weekly wage, not to exceed the maximum set forth in the schedule for scheduled members and not to exceed 400 weeks for unscheduled injuries to the body as a whole.

A permanent injury to the following anatomical members will result in a percentage of disability based upon the following number of weeks:

Thumb 60 weeks

First or index finger 35 weeks

Second or middle finger 30 weeks

Third or ring finger 20 weeks

Fourth or little finger 15 weeks

Great toe 30 weeks

Any other toe 10 weeks

Hand 150 weeks

Arm 200 weeks

Foot 125 weeks

Leg 200 weeks

Eye 100 weeks

Hearing (one ear) 75 weeks

Hearing (both ears) 150 weeks

Body as a whole 400 weeks

These are maximum numbers for each member. The Court may award a percentage of the number.

For additional information on the schedules, contact the Tennessee Department of Labor, Workers' Compensation Division.

In Tennessee the workers' compensation system is administered by the court system, with the aid of the Workers' Compensation Specialist Program. Workers' Compensation Specialists can, at the request of the employer or employee, or at the request of the Court, assist injured or disabled employees in protecting their rights and obtaining information concerning the Workers' Compensation Law. The Workers' Compensation Specialist can, among other things, conduct benefit review conferences and mediate disputes but cannot determine the issue of permanent disability.

The Workers' Compensation Specialist has the power to compile information and make a decision concerning commencement of temporary total disability benefits and/or medical benefits. However, the Judge makes the ultimate decision as to whether benefits are properly payable and the extent of benefits. When a work-related injury results in death, benefits are paid to the estate of the decedent or to dependents. In addition, the employer is to pay burial expenses subject to a statutory maximum.

Workers' Compensation benefits are not subject to income tax.

Attorneys typically charge a percentage of the recovery or settlement. Attorney fees are limited to a maximum of 20 percent and are paid by the party employing the attorney.

There are certain penalty provisions in the Workers' Compensation Law. If benefits are unreasonably delayed or refused, the penalty provisions may apply. Parties to a disputed claim may have their claim tried by the Court, or they may agree to settle their claim. To be binding on the employer and employee, any such settlement must be approved by the Court.

Close attention should be paid to the claims procedure, even if you have been through the process before, as the hearing process is complex and there are deadlines that, if missed, may be fatal to a worker's claim. Failure to give proper notice can be fatal, and failure to file a lawsuit within one year after the injury occurred or one year from the last voluntary payment of benefits may result in dismissal because of the statute of limitations. It should be noted that employers will almost always have either an attorney, an insurance adjuster, or a service company specializing in workers' compensation representing its interests. Therefore, an employee should carefully consider whether to retain an attorney to be fully apprized of his or her rights.

Unemployment Compensation

Your employer carries insurance to help you when you become unemployed through no fault of your own. In Tennessee, employers pay the full cost of unemployment insurance for their employees so that nothing is deducted from an employee’s pay to cover the cost of this insurance. The State of Tennessee does not contribute money to pay the cost of unemployment insurance for employees in this state. The State only administers the program. Tennessee’s unemployment insurance program is governed by the Tennessee Employment Security Law and regulations, and is administered through the Tennessee Department of Labor & Workforce Development .

An employer must pay unemployment insurance premiums, and consequently is subject to the Unemployment Law, if it paid $1,500 or more for service in employment wages in any calendar quarter either in the current or preceding year or if it employed at least one individual in Tennessee for some portion of a day in each of 20 different calendar weeks in either the current or preceding calendar year. The 20 different calendar weeks do not have to be consecutive.

Generally, you are considered unemployed for the purposes of unemployment compensation in any week during which you performed no services and received no wages and in certain instances during weeks of less than full time work.

Eligibility for unemployment compensation is based primarily on two factors:

1.) monetary eligibility requirements; and

2.) non-monetary eligibility requirements.

The monetary eligibility requirements are important but they are also complex. As such, consult with the Tennessee Department of Labor & Workforce Development office to determine if you meet the monetary requirements.

The non-monetary eligibility requirements include:

1.) You have made a claim for unemployment benefits in accordance with the proper rules and regulations;

2.) You have provided to the Department of Labor & Workforce Development your social security account number;

3.) You have registered for work, and continue to report, to an employment office;

4.) You are able and available to work and are making a reasonable effort to secure work.

You become eligible to start receiving unemployment compensation after you have been unemployed for a period of one week. Generally, you are entitled to receive weekly unemployment benefits for a maximum period of one year.

You may be disqualified from receiving unemployment compensation if you are unemployed due to your won fault. These circumstances include:

1.) You left work voluntarily without good cause;

2.) You are unemployed because of misconduct connected with work;

3.) Generally, you have failed without good cause to apply for available, suitable work or to accept suitable work when offered;

4.) You are unemployed because of a labor dispute such as a strike, unless you did not participate in such labor dispute;

5.) You are receiving Workers’ Compensation;

6.) You are receiving unemployment compensation from another state or the United States;

7.) You made any false or fraudulent representation or intentionally withheld material information to obtain unemployment benefits;

8.) You are receiving benefits from a pension.

If a claimant for unemployment compensation is found ineligible by the local Unemployment Office based on a monetary determination, you have 90 days within which to protest such a determination. If benefits are denied on a non-monetary bases, you have 15 days to appeal that determination. All appeals from the local Unemployment Office go to an appeals referee appointed by the Commissioner. Further appeal from the decision of the appeals referee must be made within 15 days to the Board of Review. The Board of Review’s determination becomes a final decision in 10 days. After the Board of Review’s decision becomes final, judicial review may be brought in chancery court if such an appeal is made within 30 days. All administrative remedies must first be exhausted before seeking judicial review. The decision of the chancery court is appeasable to the court of appeals of Tennessee.

There are no fees charged to you for pursuing a claim of unemployment compensation, excluding attorney’s fees. Those costs are born by the State as part of administering the unemployment compensation law. Also, the amount of attorney’s fees you have to pay for being represented in the administrative proceedings will be determined by the Board of Review. The amount of attorney’s fees you have to pay for being represented in court will be determined by the court.

Your rights under the unemployment compensation law cannot be waived or otherwise released by you and any agreement doing so is invalid. Nor can an employer escape its duty to pay employment security premiums by deducting an amount from your wages and any agreement to do so is invalid.

The Tennessee unemployment insurance laws provide severe penalties against claimants making false or fraudulent statements, or willful withholding of material information, for the purposes of obtaining or increasing benefits. Such an offense is punishable as a felony in addition to a substantial fine or imprisonment of 1 to 3 years. Employers or citizens having evidence of unemployment insurance fraud may call the agency’s toll free number 1-800-344-8337 to report such cases. Reports will generally generate an investigation.