Tennessee has two new business friendly employment laws regarding private Internet account information and limiting remedies available to employees under the Tennessee Human Rights Act and related employment statutes.

Employee Online Privacy Act 2014

The Employee Online Privacy Act 2014 protects the employee's private Internet account from employer interference, unless the employee uses that personal account for the employer's business purposes.

Under the new law, the employer cannot request or require the employee or applicant to disclose a password that allows access to his/her personal internet account. Further, the employer cannot fire an employee who refuses to give the password information.

However, the employer can require the employee to disclose a username or password if it is required to gain access to an electronic communications device supplied by or paid for by the employer. The employer can also ask the employee to provide access for the account or service the employer provides or is used for the employer's business purposes.

Further, the employee can be disciplined or fired if the employee transfers the employer's proprietary or confidential information or financial data to the personal Internet account without the employer's authorization.

The law allows the employer to conduct an investigation if there is specific information on the employee's personal Internet account regarding compliance with applicable laws, regulatory requirements, or prohibitions against work-related employee misconduct. The employer can also do an investigation if there is specific information about the employee making an unauthorized transfer of the employer's proprietary information, confidential information, or financial data to a personal Internet account.

Additionally, the employer can restrict or prohibit 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.

If the Employee Online Privacy act is violated, the employee can bring a civil action against the employer and may recover damages not to exceed $1,000 for each violation, plus reasonable attorney fees and court costs.

The Employee Online Privacy Act 2014 becomes effective Jan. 1, 2015.

Damage Limits Placed on Human Rights Act Claims

Tennessee Senate Bill 2126 is an important employment litigation law that became effective July 14, 2014. It limits damages that can be awarded for violations of the Tennessee Human Rights Act and it brings the Tennessee law more in line with the Federal law. Under the new law, employers cannot be subjected to both federal and state court lawsuits by the same employee with the same set of facts.

Damage Limits

Following the lead of the Civil Justice Reform Act of 2011, the new state law places limits on the non-monetary damages (pain, suffering, humiliation, embarrassment) that can be awarded in discrimination cases.

The caps do not limit back-pay or front-pay and are based on company size as follows:

  • $25,000 for employers with 8-14 employees;
  • $50,000 for employers with 15-100 employees;
  • $100,000 for employers with 101-200 employees;
  • $200,000 for employers with 201-500 employees, and
  • $300,000 for employers with more than 500 employees.

Employers with fewer than eight employees are not subject to the Tennessee Human Rights Act and the new law defines employers the same under the Disability Act.

Anti-Retaliation Rights Clarified and Streamlined

This law confirms that an employer cannot retaliate or discriminate against someone who opposed an illegal discriminatory practice or made a charge, filed a complaint, testified, assisted or participated in any manner in any investigation. The purpose of this language is to make the law the same as the Human Rights Act (Tenn. Code Ann. § 4-21-301), the Disability Act (Tenn. Code Ann. § 8-50-103), and the general Whistleblower protection law (Tenn. Code Ann. § 50-1-304). However, the new law clearly states that the law governing retaliation and whistleblowing is purely statutory, that there is no common law. This will limit a court's ability to create new types of retaliation claims.

Supervisor Liability Greatly Limited

Finally, the new law makes it less likely for supervisors to be held personally responsible under the Tennessee Human Rights Act. The new law deletes the "aiding and abetting" provision under which Tennessee courts found it possible for individual supervisors to be subject to liability. The deletion of "accomplice liability for supervisors" should make it more difficult for individual supervisors to be liable under the Human Rights Act.

This article is reprinted in its entirety with the permission of the Nashville Area Chamber of Commerce, HR Notes©2014.

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