1. What legal protection does Tennessee provide employees in regard to whistleblowing and retaliation?
The general rule is that most employees may be fired at any time--for any reason or for no reason at all--under what is known as the at-will employment doctrine. However, in the past half-century, many exceptions to the general rule have emerged. Exceptions to this general rule can come from two sources: (1) courts, which modify and make "common law protections" or (2) the legislature, which enacts "statutory protections." Statutory protections tend to be specific, addressing certain subject areas (such as discrimination, workers' compensation, etc.). Yet, legislators often lack the foresight to address every possible situation of retaliation. Common law protections, on the other hand, tend to "fill the gaps" where no statute exists for a given situation.
Common Law Protections
Tennessee recognizes a public policy exception to the at-will employment doctrine. An employer may not discharge an employee in a manner that violates a clear public policy. An employee has a cause of action--in other words, the employee may sue--for retaliatory discharge when the motivation for the discharge violates public policy.
To determine what constitutes public policy, Tennessee courts will look to statutes, constitutional provisions, and regulations to determine if a given practice has been endorsed (e.g. the right to collect workers' compensation benefits) or prohibited (e.g. a criminal statute). So, for example, because a Tennessee statute endorses an employee's right to collect workers' compensation benefits, an employer who retaliates against an employee for invoking that right would be contravening public policy. On the other side of the same coin, because criminal statutes prohibit perjury, an employer who coerces an employee to commit perjury by threats of reprisal is also contravening Tennessee's public policy. In both situations, employees are protected from retaliatory discharge.
Statutory Protections
In addition, the Tennessee General Assembly has adopted statutory protections. Notably, Tennessee has a general whistleblower protection statute that protects employees who report illegal activity. Also, Tennessee has adopted narrow statutory protections for other activities. Employees who engage in protected activities under laws in the following subject areas are protected from retaliation: discrimination, equal pay (wage discrimination), hazardous chemicals, and occupational safety and health.
Whistleblowers can rely on both a common law retaliatory discharge theory and the general whistleblower protection statute.
Other Protections
In addition to the above state protections, federal law provides workers with additional protections. Furthermore, a private contract or collective bargaining agreement may also protect employees from certain forms of retaliation.
2. What activities does state law protect, and to whom does this protection apply?
Common Law Protections
An employee may not be discharged in a manner that violates a clear public policy.
Tennessee courts protect employees who attempt to exercise statutory or constitutional rights, refuse to perform illegal activities, or report illegal conduct (i.e. whistleblowing). To illustrate, Tennessee courts have protected--or have indicated that they would protect--the following employee activities under the public policy exception:
- Refusing to commit perjury
- Obeying a subpoena
- Testifying truthfully in litigation involving the employer
- Performing jury duty
- Exercising rights under workers' compensation laws
- Refuse to violate safety laws
- Exercising an employee's right to take a rest or meal break
Whistleblowers have received some protection from Tennessee courts under the public policy exception. An employee must show that his whistle-blowing activity was a "substantial factor" in the discharge. Unlike in other states where statutes generally overrule common law provisions, Tennessee courts have held that statutory protections supplement common law protections--that is, statutory protections do not override or lessen common law protections. Thus, an employee can use both the common law retaliatory discharge theory and Tennessee's general whistleblower protection statute simultaneously.
Statutory Protections
General Whistleblower Protection: Two categories of employee activities are protected under Tennessee's general whistleblower protection statute (the Public Protection Act). An employee may not be discharged solely for:
Refusing to participate in illegal activities, or
Disclosing illegal activities (i.e. whistleblowing)
Illegal activities means activities that violate the criminal or civil code of Tennessee or the United States or any regulation intended to protect the public health, safety, or welfare. Tenn. Code Ann. § 50-1-304.
- Refusing to participate in illegal activities, or
- Disclosing illegal activities (i.e. whistleblowing)
Illegal activities means activities that violate the criminal or civil code of Tennessee or the United States or any regulation intended to protect the public health, safety, or welfare. Tenn. Code Ann. § 50-1-304.
Public Education Whistleblowers: A public education employee may not be discharged (or discriminated against) in retaliation for whistleblowing under the "Education Truth in Reporting and Employee Protection Act of 1989." Tenn. Code Ann. § 49-50-1409.
Discrimination: An employee may not be discharged (or discriminated against) in retaliation for opposing an unlawful discriminatory practice. Nor may an employee may be discharged (or discriminated against) in retaliation for making a charge, filing a complaint, testifying, assisting or participating in an investigation of unlawful discrimination. Tennessee law prohibits discrimination on the basis of race, creed, color, religion, sex, age, and national origin. Tenn. Code Ann. § 4-21-301(1).
Equal Pay / Wage Discrimination: An employee may not be discharged (or discriminated against) in retaliation for assisting in the enforcement of Tennessee's equal pay laws, which prohibit wage discrimination on the basis of sex. Tenn. Code Ann. § 50-2-202(c).
False Information: A public employee may not be discharged (or discriminated against) for making a good faith allegation that another has provided false information about government spending to a government agency. Tenn. Code Ann. § 8-4-409.
Hazardous Chemicals: An employee may not be discharged (or discriminated against) in retaliation for filing a complaint, assisting an inspector, instituting a proceeding, testifying in a proceeding, or exercising a right under Tennessee's Hazardous Chemical Right to Know Law. Under that law, employees have the right to know about hazardous chemicals in the workplace. Tenn. Code Ann. § 50-3-2012(b).
Labor: An employee may not be discharged (or discriminated against) in retaliation for refusing to join a labor union. Tenn. Code Ann. § 50-1-202.
Lawful Employment Act: An employee may not be discharged (or discriminated against) in retaliation for reporting a violation of the Tennessee Lawful Employment Act. Such violations include but are not limited to the hiring of illegal migrant workers who have not been approved through the state E-Verify program. Tenn. Code Ann. § 50-1-706.
Nursing Homes: An employee may not be discharged (or discriminated against) in retaliation for reporting a violation of the rights of nursing home residents. Tenn. Code Ann. § 68-11-903.
Occupational Safety and Health: An employee may not be discharged (or discriminated against) in retaliation for filing a complaint, instituting a proceeding, testifying in a proceeding, or exercising rights under Tennessee laws concerning occupational safety and health. Tenn. Code Ann. §§ 50-3-106(7), 50-3-409(a).
3. How do I file a whistleblower or retaliation claim in Tennessee?
Generally: An employee may file a retaliatory discharge lawsuit in an appropriate court. The lawsuit must be filed within 1 year 
of the retaliatory action, unless otherwise specified by statute. If you believe you have a claim, you should contact a lawyer immediately.
General Whistleblower Protection: An employee may file a lawsuit in an appropriate court. Tenn Code Ann. § 50-1-304. The lawsuit must be filed within 1 year of the retaliatory action. A wrongfully discharged employee may be entitled to recover reasonable attorney fees and court costs. If you believe you have a claim, you should contact a lawyer immediately.
Public Education Whistleblowers: An employee may file a lawsuit in an appropriate court. An employee may be entitled to reinstatement, payment of back wages, reinstatement of fringe benefits, actual damages, and reasonable attorney fees. If you believe you have a claim, you should contact a lawyer immediately.
Discrimination: An employee may file a complaint with the Tennessee Human Rights Commission (THRC). The complaint must be filed within 180 days of the retaliatory action. The THRC has made a complaint form available on their web site in PDF format. The THRC also has an informative FAQ on their web site. If you believe you have a claim, you should contact the THRC immediately.
Alternatively, an employee may file a lawsuit in an appropriate court. The lawsuit must be filed within 1 year of the retaliatory action. If you choose to pursue this route, you should contact a lawyer immediately.
Occupational Safety and Health: An employee may file a complaint with the Tennessee Department of Labor & Workforce Development. The complaint must be filed within 30 days of the retaliatory action. If you believe you have a claim, you should contact the department immediately at:
Department of Labor & Workforce Development
220 French Landing Drive
Nashville, TN 37243
Phone: (615) 741-2793