Chapter 1
Employment Relationship And Practices

Part 1
Hiring Practices

50-1-101. Memorandum of understanding with the department of homeland security for enforcement of federal immigration laws.

  1. For purposes of enforcing federal immigration laws, including, if applicable, federal laws relating to the employment of illegal aliens, the legislative body of a municipality or county, or the chief law enforcement officer of the county upon approval by the governing legislative body, may enter into a written agreement, in accordance with federal law, between the municipality or county and the United States department of homeland security concerning the enforcement of federal immigration laws, detention and removals, and investigations in the municipality or county.
  2. If a memorandum of understanding with the United States department of homeland security is executed pursuant to subsection (a), municipal and county law enforcement officers shall be designated from local law enforcement agencies who, by written designation and recommendation of a commanding officer, shall be trained pursuant to the memorandum of understanding. Funding for the training shall be provided pursuant to the federal Homeland Security Appropriation Act of 2006, P. L. 109-90, or subsequent federal funding sources.

Acts 2007, ch. 529, § 2.

Compiler's Notes. Former § 50-1-101 (Acts 1875, ch. 93, §§ 1, 2; Shan., §§ 4337, 4338; Code 1932, §§ 8559, 8560; impl. am. Acts 1979, ch. 68, § 3; T.C.A. (orig. ed.), §§ 50-201, 50-202), concerning enticing away employees, was repealed by Acts 1992, ch. 599, § 1, effective July 1, 1992.

Acts 2007, ch. 529, § 3 provided that the commissioner is authorized to promulgate rules and regulations to effectuate the purposes of the act. The rules and regulations shall be promulgated in accordance with the provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Law Reviews.

An Empirical Analysis of Noncompetition Clauses and Other Restrictive Postemployment Covenants, 68 Vand. L. Rev. 1 (2015).

NOTES TO DECISIONS

1. County Sheriff.

Memorandum of Agreement (MOA) between the United States Immigration and Customs Enforcement and the Metropolitan Government of Nashville and Davidson County, Tennessee, by and through the Davidson County Sheriff's Office, did not violate the Charter of Nashville and Davidson County because the sheriff had authority under the Charter to perform the duties enumerated in the MOA; while Nashville and Davidson County, Tenn., City Charter § 16.05 made the police chief the principal conservator of the peace, it did not expressly prohibit the sheriff from engaging in all activities that could conceivably be considered law enforcement, and the language of the Charter clearly contemplated that the principal conservator of the peace was not the only conservator of the peace. Renteria-Villegas v. Metro. Gov't, 382 S.W.3d 318, 2012 Tenn. LEXIS 734 (Tenn. Oct. 4, 2012).

Memorandum of Agreement between the United States Immigration and Customs Enforcement and the Metropolitan Government of Nashville and Davidson County, Tennessee, by and through the Davidson County Sheriff's Office, did not violate T.C.A. § 50-1-101(b) because the Charter did not prohibit the sheriff from engaging in all law enforcement functions. Renteria-Villegas v. Metro. Gov't, 382 S.W.3d 318, 2012 Tenn. LEXIS 734 (Tenn. Oct. 4, 2012).

50-1-102. False or deceptive representations in procuring employees — Penalty — Hiring armed guards — Failure to have permit — Penalty.

    1. It is unlawful for any person to induce, influence, persuade or engage workers to change from one place to another in this state, or to bring workers of any class or calling into this state to work in any type of labor in this state through or by means of false or deceptive representations, false advertising or false pretenses, concerning the kind and character of the work to be done, or the amount and character of compensation to be paid for the work, or the sanitary or other conditions of the employment, or as to the existence or nonexistence of a strike or other trouble pending between employer and employees, at the time of or prior to the engagement.
    2. Failure to state in any advertisement, proposal or contract for the employment of workers that there is a strike, lockout or other labor trouble at the place of the proposed employment, when in fact the strike, lockout or other labor trouble then actually exists at the place of the proposed employment, is deemed false advertising and misrepresentation for the purposes of this section.
  1. A violation of subsection (a) is a Class B misdemeanor.
    1. Any worker who is influenced, induced or persuaded to engage with any persons mentioned in subsection (a), through or by means of any of the things prohibited in subsection (a), has a right of action for all damages that the worker has sustained in consequence of the false or deceptive representations, false advertising, and false pretenses used to induce the worker to change the worker's place of employment, against any person who, directly or indirectly, causes the damage.
    2. In addition to all actual damages the worker may have sustained, the worker is entitled to recover such reasonable attorney's fees as the court shall fix, to be taxed as costs.
    1. Any person who, in this or another state, hires, aids, abets, or assists in hiring, through agencies or otherwise, persons to guard with arms or deadly weapons of any kind for any such purpose, without a permit from the governor of this state, commits a Class E felony.
    2. Nothing contained in subdivision (d)(1) shall be construed to interfere with the right of any person, in guarding or protecting the person's private property or private interests, as is now provided by law.
  2. This section shall be construed only to apply in cases where workers are brought into this state, or induced to go from one place to another in this state by any false pretenses, false advertising or deceptive representations, or brought into this state under arms, or removed from one place to another in this state under arms.

Acts 1901, ch. 104, §§ 1-4; Shan., §§ 6886a1-6886a4; Code 1932, §§ 11363-11366; T.C.A. (orig. ed.), §§ 50-204 — 50-207; Acts 1989, ch. 591, §§ 45, 112.

Cross-References. Penalty for Class B misdemeanor, § 40-35-111.

Penalty for Class E felony, § 40-35-111.

Private protective services, title 62, ch. 35.

Law Reviews.

Employee Investigations: Representation Rights Expanded to Nonunion Employees (Mark H. Floyd), 36 No. 10 Tenn. B.J. 13 (2000).

No Harm, No Fraud: The Invalidity of State Fraud Claims Brought Against Employment Testers, 53 Vand. L. Rev. 1687 (2000).

Perceived Disabilities, Social Cognition, and “Innocent Mistakes,” 55 Vand. L. Rev. 481 (2002).

Proving an Employer's Intent: Disparate Treatment Discrimination and the Stray Remarks Doctrine After Reeves v. Sanderson Plumbing Products, 55 Vand. L. Rev. 219 (2002).

Collateral References.

Legality of peaceful labor picketing on private property. 10 A.L.R.3d 846.

Libel and slander: employer's privilege as to communications to news media concerning employees. 52 A.L.R.3d 739.

Validity and construction of statutes punishing commercial bribery. 58 A.L.R. Fed. 797.

50-1-103. Employment of illegal aliens.

  1. As used in this section, unless the context otherwise requires:
    1. “Commissioner” means the commissioner of labor and workforce development;
    2. “Department” means the department of labor and workforce development;
    3. “Employ” or “employment” means any work engaged in for compensation in money or other valuable consideration and for which a person paying the compensation for the work performed is required to file a W-2 wage and tax statement with the federal internal revenue service;
    4. “Illegal alien” means a person who is, at the time of employment, neither an alien who is lawfully admitted for permanent residence in the United States pursuant to the federal Immigration and Naturalization Act, compiled in 8 U.S.C. § 1101 et seq., nor authorized to be employed by the federal Immigration and Naturalization Act or the United States attorney general;
    5. “Knowingly” means having actual knowledge that a person is an illegal alien or having a duty imposed by law to determine the immigration status of an illegal alien and failing to perform that duty;
    6. “Lawful resident alien” means a person who is entitled to lawful residence in the United States pursuant to the federal Immigration and Naturalization Act;
    7. “Lawful resident verification information” means the documentation that is required by the United States department of homeland security when completing the employment eligibility verification form commonly referred to as Form I-9. Documentation that later proves to be falsified, but that at the time of employment satisfies the requirements of Form I-9, is lawful resident verification information;
    8. “License” means any certificate, approval, registration or similar form of permission required by law; and
    9. “Person” means individual, corporation, partnership, association or any other legal entity.
  2. A person shall not knowingly employ, recruit or refer for a fee for employment an illegal alien.
  3. A person has not violated subsection (b) with respect to a particular employee if the person requested from the employee, received, and documented in the employee record, after commencement of employment, lawful resident verification information consistent with employer requirements under the Immigration Reform and Control Act of 1986, compiled in 8 U.S.C. § 1101 et seq.
  4. A person has not violated subsection (b) with respect to a particular employee if the person verified the work authorization status of the employee by using the federal electronic work authorization verification service provided by the United States department of homeland security pursuant to the federal Basic Pilot Program Extension and Expansion Act of 2003, P.L. 108-156, or any successor program thereto, and the verification service returned a confirmation showing that:
    1. Such employee was eligible to work;
    2. Such employee was ineligible to work, but the employee has appealed such confirmation and the appeal has not been resolved; or
    3. Such employee was ineligible to work, the employee has not appealed such confirmation and the time for such employee to appeal pursuant to federal law has not expired.
    1. If any state or local governmental agency, officer, employee or entity has reason to believe that a violation of subsection (b) has occurred, the agency, officer, employee or entity shall file a complaint with the department. Upon receipt of a complaint by a federal, state or local governmental agency, officer, employee or entity, the commissioner shall conduct an investigation. If there is substantial evidence that a violation of subsection (b) has occurred, the commissioner shall conduct a contested case hearing pursuant to the Uniform Administrative Procedures Act, complied in title 4, chapter 5, on the question of whether the person has violated subsection (b). If the commissioner or the commissioner's designee determines that there is clear and convincing evidence that a person has violated subsection (b) and the violation occurred while the person was acting within the scope of practice of a license issued by the state or pursuant to title 67, chapter 4, the commissioner shall request an order consistent with § 4-5-320, requiring the appropriate regulatory board or local government with respect to business licensure pursuant to title 67, chapter 4, to revoke, suspend, or deny the person's license. The commissioner shall state in the commissioner's findings of fact and conclusions of law whether there have been previous violations of subsection (b).
      1. For the first violation of subsection (b), the commissioner shall order that the regulatory board or local government suspend the person's license until the person shows to the satisfaction of the commissioner that the person is no longer in violation of subsection (b). The showing may be made by the person filing a sworn statement with the commissioner stating that the person is no longer employing illegal aliens.
      2. For a second or subsequent violation of subsection (b) occurring within three (3) years from the issuance of the commissioner's first order, the commissioner shall order that the regulatory agency or local government suspend the license for one (1) year.
    2. Upon receiving a complaint pursuant to this section, consistent with this section, the commissioner or the commissioner's designee shall inform the person against whom the complaint is made that the person may request the name of the person filing the complaint, or if the complaint is filed by an agency or entity, the name of the person who caused the complaint to be filed. If the person requests the name, the commissioner or the commissioner's designee shall provide the name requested.
  5. The department shall notify the appropriate official making declarations pursuant to § 12-3-309 of a person's violation of this section.
  6. The department shall notify the department of homeland security of any person found in violation of this section.

Acts 1985, ch. 247, § 1; 1986, ch. 847, §§ 1-3; 1989, ch. 591, § 112; 1999, ch. 520, § 41; 2007, ch. 529, § 1; 2008, ch. 820, § 1; 2011, ch. 436, §§ 1-4.

Compiler's Notes. Acts 2007, ch. 529, § 3 provided that the commissioner is authorized to promulgate rules and regulations to effectuate the purposes of the act. The rules and regulations shall be promulgated in accordance with the provisions of the Uniform Administrative Procedures Act, title 4, chapter 5.

The Basic Pilot Program Extension and Expansion Act of 2003, P.L. 108-156, referred to in this section, amended 8 U.S.C. §§ 1153 note, 1324a note, 1360 note, and appears in part as 8 U.S.C. § 1153 note.

Law Reviews.

Business License Revocation: Is This What Tennessee Needs? (Linda Rose and Rose Paxtor), 44 Tenn. B.J. 23 (2008).

Outrage in the Workplace: Using the Tort of Intentional Infliction of Emotional Distress to Combat Employer Abuse of Immigrant Workers (Stewart, Meredith), 41 U. Mem. L. Rev. 187 (2010).

The United States Guestworker Program: The Need for Reform (Elizabeth Johnston), 43 Vand. J. Transnat'l L. 1121 (2010).

Attorney General Opinions. Preemption of penalties set forth in T.C.A. by 8 U.S.C. § 1324a(h)(2), OAG 07-079 (5/23/07).

50-1-104. State officials notified of plant closings or mass layoffs.

Upon being served with advance written notification of a plant closing or mass layoff pursuant to § 3(a)(2) of the Worker Adjustment and Retraining Notification Act, codified in 29 U.S.C. § 2102, the commissioner of labor and workforce development shall immediately advise the commissioners of economic and community development, education, health, human services, and mental health and substance abuse services, the executive director of the state board of education, and the chancellor of the state university and community college system concerning the circumstances of the plant closing or mass layoff, including the number of employees affected.

Acts 1989, ch. 399, § 2; 1999, ch. 520, § 41; 2010, ch. 1100, § 84; 2012, ch. 575, § 2.

Compiler's Notes. Acts 2010, ch. 1100, § 153 provided that the commissioner of mental health and developmental disabilities, the commissioner of mental health, the commissioner of intellectual and developmental disabilities, and the commissioner of finance and administration are authorized to promulgate rules and regulations to effectuate the purposes of the act. All such rules and regulations shall be promulgated in accordance with the provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Cross-References. Plant closings and reduction in operations, title 50, ch. 1, part 6.

Plant closings or mass layoffs, notification to employees and state, § 50-1-602.

50-1-105. Providing employee information to prospective employers — Good faith.

Any employer that, upon request by a prospective employer or a current or former employee, provides truthful, fair and unbiased information about a current or former employee's job performance is presumed to be acting in good faith and is granted a qualified immunity for the disclosure and the consequences of the disclosure. The presumption of good faith is rebuttable upon a showing by a preponderance of the evidence that the information disclosed was:

  1. Knowingly false;
  2. Deliberately misleading;
  3. Disclosed for a malicious purpose;
  4. Disclosed in reckless disregard for its falsity or defamatory nature; or
  5. Violative of the current or former employee's civil rights pursuant to current employment discrimination laws.

Acts 1995, ch. 422, § 1.

Law Reviews.

The Faragher and Ellerth Problem: Lower Courts' Confusion Regarding the Definition of “Supervisor,” 54 Vand. L. Rev. 123 (2001).

Torts — Defamation — Compelled Self-Publication, 68 Tenn. L. Rev. 395 (2001).

50-1-106. Immigration status.

  1. As used in this section, unless the context otherwise requires:
    1. “Individual taxpayer identification number” means a tax processing number issued by the federal internal revenue service for the purpose of facilitating federal tax reporting by those individuals who are not eligible to obtain a federal social security number. An individual taxpayer identification number is a nine-digit number that has the appearance of a federal social security number (xxx-xx-xxxx), but that always begins with the number nine (9) and includes the number seven (7) or eight (8) as the fourth digit (9xx-7x-xxxx). An individual taxpayer identification number is issued regardless of immigration status and is not a valid form of identification for any purpose other than federal tax processing;
    2. “Lawful resident verification information” means the documentation that is required by the United States department of homeland security when completing the employment eligibility verification form commonly referred to as Form I-9; and
    3. “Person” includes any individual, partnership, association, company, business or corporation of any size regulated by, doing business in or using the services of employees in this state, including entering into a contract for the provision of the services.
  2. For purposes of an application or offer of employment, no person in this state shall accept an individual taxpayer identification number as a form of identification. Any person, including any contractor, in this state who is presented with an individual taxpayer identification number by a potential employee or subcontractor as a form of identification or to prove immigration status shall reject the number and shall request the lawful resident verification information that the person is required to obtain pursuant to federal law.
  3. The commissioner of labor and workforce development is authorized to promulgate rules and regulations to effectuate the purposes of this section. The rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Acts 2007, ch. 220, §§ 1, 2.

50-1-107. Veterans preference.

  1. A private employer may adopt an employment policy that gives preference in hiring to:
    1. An honorably discharged veteran;
    2. The spouse of a veteran with a service-connected disability;
    3. The unremarried widow or widower of a veteran who died of a service-connected disability; or
    4. The unremarried widow or widower of a member of the United States armed forces who died in the line of duty.
  2. A private employer adopting a veterans preference shall have the policy in writing and may require submission of a certificate of release or discharge from active duty, department of defense form 214 (DD 214), as proof of eligibility for the veterans preference employment policy.
  3. A policy adopted pursuant to subsection (a) must be applied uniformly to employment decisions regarding hiring and promotion.
  4. The preferences authorized by this section are not considered violations of any state or local equal employment opportunity law.
  5. Nothing in this section requires a private employer to provide a preference in hiring to any of the persons listed in subsection (a).

Acts 2017, ch. 9, § 1.

Effective Dates. Acts 2017, ch. 9, § 2. March 22, 2017.

50-1-108. Non-disclosure agreement with respect to sexual harassment in workplace as condition of employment prohibited.

  1. An employer, as defined in § 50-1-304, shall not require an employee, as defined in § 50-1-304, or a prospective employee to execute or renew a non-disclosure agreement with respect to sexual harassment in the workplace as a condition of employment.
  2. Any employee injured as a result of a violation of subsection (a) has the same rights and remedies available to employees under § 50-1-304.

Acts 2018, ch. 965, § 1.

Compiler's Notes. Acts 2018, ch. 965, § 2 provided that the act, which enacted this section, shall apply to agreements executed or renewed on or after May 15, 2018.

Effective Dates. Acts 2018, ch. 965, § 2. May 15, 2018.

Part 2
Right to Work

50-1-201. Denial of employment because of affiliation or nonaffiliation with labor union or employee organization.

It is unlawful for any person, firm, corporation or association of any kind to deny or attempt to deny employment to any person by reason of the person's membership in, affiliation with, resignation from, or refusal to join or affiliate with any labor union or employee organization of any kind.

Acts 1947, ch. 36, § 1; C. Supp. 1950, § 11366.2 (Williams, § 11412.8); T.C.A. (orig. ed.), § 50-208.

Cross-References. Discharge for refusal to engage in or remain silent about illegal activities, or for legal use of agricultural product, § 50-1-304.

Textbooks. Tennessee Jurisprudence, 17 Tenn. Juris., Labor, § 4.

Law Reviews.

Employee Investigations: Representation Rights Expanded to Nonunion Employees (Mark H. Floyd), 36 No. 10 Tenn. B.J. 13 (2000).

UAW-GM Saturn Contract: “Sweetheart Deal” or Novel Labor-Management Agreement? (Jeffrey L. Hall), 17 Mem. St. U.L. Rev. 69 (1986).

Union Organizing of Temporary Employees Subject to New Standards (Mark H. Floyd), 37 No. 1 Tenn. B.J. 23 (2001).

Attorney General Opinions. Applicability, OAG 94-043 (4/4/94).

Proposed Electricians' Licensing Act of 1998 does not require union membership, OAG 98-050 (2/23/98).

Right to work law, union rules and fines, conflicts of interest, remedies, OAG 99-231 (12/15/99).

NOTES TO DECISIONS

1. Constitutionality.

This part, known as the Tennessee Open Shop Law, does not offend any of the provisions of either the state or federal constitution. Mascari v. International Brotherhood of Teamsters, etc., 187 Tenn. 345, 215 S.W.2d 779, 1948 Tenn. LEXIS 434 (1948).

This part does not discriminate against either nonunion or union members but protects the right to work of both union and nonunion members. Mascari v. International Brotherhood of Teamsters, etc., 187 Tenn. 345, 215 S.W.2d 779, 1948 Tenn. LEXIS 434 (1948).

2. Application.

This part is not applicable to suit against a local union, its various officers and other individuals, who are sued as officers and members of the local union. Dukes v. Brotherhood of Painters, etc., 191 Tenn. 495, 235 S.W.2d 7, 1950 Tenn. LEXIS 463, 26 A.L.R.2d 1223 (1950).

This section and § 50-1-202 are directed to employers and do not apply to a suit against the union or its members. Bryan v. International Alliance, 43 Tenn. App. 180, 306 S.W.2d 64, 1957 Tenn. App. LEXIS 109 (Tenn. Ct. App. 1957).

This section has no application to a state or political subdivision since such entities are not specifically mentioned therein. Keeble v. Alcoa, 204 Tenn. 286, 319 S.W.2d 249, 1958 Tenn. LEXIS 269 (1958).

3. Common-Law Rights.

In states where the all-union or closed shop is illegal, a labor union and its agents are not privileged or justified in exerting their combined coercive power to procure the discharge of a nonunion man, and an employee has a common-law right to secure his employment against wrongful interference by the union or its agents. Large v. Dick, 207 Tenn. 664, 343 S.W.2d 693, 1960 Tenn. LEXIS 507 (1960).

4. Injunction against Picketing.

Where three contractors were furnishing labor on a construction job and two of these, the electrical contractor and plumbing contractor, employed nonunion labor, and the electricians' union and the plumbers' union picketed the only two entrances to the job, one union picketing each entrance, the court properly granted a temporary injunction against picketing on application of the other contractor who used union labor and whose employees would not cross the picket line. International Brotherhood of Electrical Workers v. O'Brien, 202 Tenn. 38, 302 S.W.2d 60, 1957 Tenn. LEXIS 361 (1957).

Union was properly enjoined from picketing barber shop where answer of union admitted picketing was for purpose of forcing complainant to raise prices and had prevailed upon linen supply company to stop deliveries thereby making it unprofitable for complainant to continue in business, since, while defendants are privileged to patronize whomsoever they please, they cannot by force and intimidation deny to others a free choice. Flatt v. Barbers' Union, 202 Tenn. 345, 304 S.W.2d 329, 1957 Tenn. LEXIS 397 (1957), cert. denied, Barbers Union of Memphis v. Flatt, 355 U.S. 904, 78 S. Ct. 329, 2 L. Ed. 2d 259, 1957 U.S. LEXIS 1653 (1957).

5. Evidence.

In suit brought by nonresidents from sister unions who had obtained jobs through local, to compel full membership in local, holding of chancellor that local was operating in violation of this law was not sustained by the evidence. Bryan v. International Alliance, 43 Tenn. App. 180, 306 S.W.2d 64, 1957 Tenn. App. LEXIS 109 (Tenn. Ct. App. 1957).

6. Appeal.

In suit under Declaratory Judgment Law by labor union for declaration that this part was unconstitutional, where chancellor held these sections to be a valid enactment, the motion of the labor union to dismiss an appeal was granted and the judgment of the lower court would stand as though no appeal had been prosecuted therefrom. Federal Firefighters of Oak Ridge v. Roane-Anderson Co., 185 Tenn. 320, 206 S.W.2d 369, 1947 Tenn. LEXIS 335 (1947).

Collateral References.

Termination of employment as a result of union action or pursuant to union contract as “voluntary” for purposes of unemployment compensation benefits. 90 A.L.R.2d 835.

Validity, construction, and application of state right-to-work provisions. 105 A.L.R.5th 243.

Wrongful discharge based on public policy derived from professional ethics codes. 52 A.L.R.5th 405.

50-1-202. Contracting for exclusion from employment because of affiliation or nonaffiliation with labor union or employee organization.

It is unlawful for any person, firm, corporation or association of any kind to enter into any contract, combination or agreement, written or oral, providing for exclusion from employment of any person because of membership in, affiliation with, resignation from, or refusal to join or affiliate with any labor union or employee organization of any kind.

Acts 1947, ch. 36, § 2; C. Supp. 1950, § 11366.3 (Williams, § 11412.9); T.C.A. (orig. ed.), § 50-209.

Law Reviews.

Procuring Breach of Contract — The Tennessee Treble Damage Statute (Telford E. Forgety), 5 Mem. St. U.L. Rev. 599 (1975).

NOTES TO DECISIONS

1. Injunctions.

Contract that union attempted to induce grocer to enter into which would have required grocer to recognize the union as exclusive bargaining agent for grocer's meat cutters, apprentices and wrappers, which provided that a journeyman union meat cutter was to be on hand at all times when meats were sold and which provided that the head meat cutter was to be a union member violated the spirit if not the letter of the right-to-work statute, and picketing to induce the signing of such contract could be enjoined. Pruitt v. Lambert, 201 Tenn. 291, 298 S.W.2d 795, 1957 Tenn. LEXIS 425 (1957).

2. Contracts Violating Section.

Contract between general contractor and corporation contracting to erect structural steel that such corporation would employ only union labor is in violation of this law and void. Finchum Steel Erection Corp. v. International Ass'n of Bridge, etc., 202 Tenn. 580, 308 S.W.2d 381, 1957 Tenn. LEXIS 443 (1957).

Rider to national collective bargaining contract that excluded nonunion employees from employment in Tennessee on shipments out of Kentucky passing through Tennessee was unenforceable under Tennessee Open Shop Law, compiled in this part, even though rider was legal and enforceable in Kentucky where it was made. Martin v. Dealers Transport Co., 48 Tenn. App. 1, 342 S.W.2d 245, 1960 Tenn. App. LEXIS 104 (Tenn. Ct. App. 1960).

3. Agreement Recognizing Union as Bargaining Agency.

Where agreement between union and coal operators association recognized union as bargaining agency of employees of association members, fact that in amendments to the agreement the union was defined or referred to as acting on the behalf of its members did not indicate that the parties themselves construed the agreement as one requiring all employees to be members of the union. Lewis v. Fentress Coal & Coke Co., 160 F. Supp. 221, 1958 U.S. Dist. LEXIS 2475 (D. Tenn. 1958), aff'd, 264 F.2d 134, 1959 U.S. App. LEXIS 4920 (6th Cir. Tenn. 1959).

4. Contracts for Royalty Payments.

Agreement with respect to royalty payments by employer to union welfare funds was valid despite provisions requiring union shop “to the extent and in the manner permitted by law” since it would be assumed that parties intended to enter into contract legally enforceable at place of performance and that it was not intended that union shop provisions should be applicable in states having right-to-work statutes. Lewis v. Fentress Coal & Coke Co., 160 F. Supp. 221, 1958 U.S. Dist. LEXIS 2475 (D. Tenn. 1958), aff'd, 264 F.2d 134, 1959 U.S. App. LEXIS 4920 (6th Cir. Tenn. 1959).

Alleged practice between union and employer in requiring union membership and in checking membership dues off wages of all employees in the state was immaterial on issue of validity of contract for royalty payments to union welfare fund where contract was not ambiguous and did not require union membership as a condition to employment in states where such provision was unlawful. Lewis v. Fentress Coal & Coke Co., 160 F. Supp. 221, 1958 U.S. Dist. LEXIS 2475 (D. Tenn. 1958), aff'd, 264 F.2d 134, 1959 U.S. App. LEXIS 4920 (6th Cir. Tenn. 1959).

5. Arbitration of Disputes.

Where employer refused to arbitrate as to a union shop under a collective bargaining agreement on the grounds that Tennessee had made closed shops unlawful, it is incumbent upon arbitration committee and not the courts to determine whether there can be negotiations for a union shop under that agreement. Air Engineering Metal Trades Council v. Aro, Inc., 306 F. Supp. 7, 1969 U.S. Dist. LEXIS 9637 (E.D. Tenn. 1969).

Collateral References.

Labor relations acts: discharge of employee as reprisal or retaliation for union organizational activities. 83 A.L.R.2d 532.

Validity, construction, and application of state right-to-work provisions. 105 A.L.R.5th 243.

50-1-203. Exclusion from employment for payment of or failure to pay union or employee organization dues.

It is unlawful for any person, firm, corporation or association of any kind to exclude from employment any person by reason of the person's payment of or failure to pay dues, fees, assessments or other charges to any labor union or employee organization of any kind.

Acts 1947, ch. 36, § 3; C. Supp. 1950, § 11366.4 (Williams, § 11412.10); T.C.A. (orig. ed.), § 50-210.

Cross-References. Discharge for refusal to engage in or remain silent about illegal activities, or for legal use of agricultural product, § 50-1-304.

Law Reviews.

Rights and Remedies of Members in Internal Union Controversies in the Southern Jurisdictions, 12 Vand. L. Rev. 888 (1959).

Attorney General Opinions. Fair share legislation and the right to work law, OAG 93-36 (4/14/93).

NOTES TO DECISIONS

1. Employees Discharged Prior to Enactment of Statute.

Employer who discharged employees for failure to pay union dues pursuant to contract between union and employer prior to enactment of this part providing for open shop was not entitled to declaratory judgment as to rights under old contract where new contract had been entered into between employer and union providing for open shop, since only issue was as to seniority of discharged employees if and when employees were rehired. Combustion Engineering Co. v. Thompson, 191 Tenn. 98, 231 S.W.2d 580, 1950 Tenn. LEXIS 550 (1950).

2. Contracts Covering Several States.

Contract executed in District of Columbia, containing union membership clause, to cover operations in several states in addition to Tennessee, was not in violation of this law since it would be assumed that it was not the intention that the provision requiring union membership be operative in Tennessee. Lewis v. Fentress Coal & Coke Co., 160 F. Supp. 221, 1958 U.S. Dist. LEXIS 2475 (D. Tenn. 1958), aff'd, 264 F.2d 134, 1959 U.S. App. LEXIS 4920 (6th Cir. Tenn. 1959).

50-1-204. Prohibition against execution of an agreement with union or employee organization that includes maintenance of membership clause.

It is unlawful for any person, firm, corporation or association of any kind operating in this state to execute an agreement with a union or employee organization of any kind that includes a maintenance of membership clause prohibiting employees from withdrawing from a union or employee organization prior to the agreement's expiration. This section shall not apply to a city, town, municipality or county, including a county having a metropolitan form of government.

Acts 2011, ch. 178, § 2.

Compiler's Notes. Former § 50-1-204 (Acts 1947, ch. 36, § 5; C. Supp. 1950, § 11366.6 (Williams, § 11412.12); T.C.A. (orig. ed.), § 50-212; Acts 1989, ch. 591, § 111), concerning penalties for violations of this part, was transferred to § 50-1-205 by Acts 2011, ch. 178, § 1, effective May 5, 2011.

Acts 2011, ch. 178, § 3, provided that the act, which enacted this section, shall apply to agreements entered into on or after May 5, 2011.

For the preamble to the act concerning the state of Tennessee being a right to work state, please refer to Acts 2011, ch. 178.

50-1-205. Penalty.

  1. Any person, firm, corporation or association of any kind violating any of the provisions of this part commits a Class A misdemeanor.
  2. Each day that any person, firm, corporation or association of any kind remains in violation of this part is deemed to be a separate and distinct offense, punishable in accordance with this section.

Acts 1947, ch. 36, § 5; C. Supp. 1950, § 11366.6 (Williams, § 11412.12); T.C.A. (orig. ed.), § 50-212; Acts 1989, ch. 591, § 111; T.C.A. § 50-1-204; Acts 2011, ch. 178, §§ 1, 2.

Compiler's Notes. Former § 50-1-204 was transferred to this section by Acts 2011, ch. 178, § 1, effective May 5, 2011.

Acts 2011, ch. 178, § 3, provided that the act, which transferred former § 50-1-204 to this section, shall apply to agreements entered into on or after May 5, 2011.

For the preamble to the act concerning the state of Tennessee being a right to work state, please refer to Acts 2011, ch. 178.

Cross-References. Penalty for a Class A misdemeanor, § 40-35-111.

Law Reviews.

Labor Law — 1961 Tennessee Survey (Paul H. Sanders), 14 Vand. L. Rev. 1317 (1961).

50-1-206. Right to work.

  1. It is the public policy of this state that employees of this state have the right to:
    1. Employment without regard to any person’s refusal to join or affiliate with, or decision to withdraw from or cease membership in, any labor union or employee organization of any kind;
    2. Be employed free from the restraints of any contract, combination or agreement, written or oral, that provides for exclusion from employment of any person due to their refusal to join or affiliate with, or decision to withdraw from or cease membership in, any labor union or employee organization of any kind;
    3. Be employed without regard to any person’s refusal to pay dues, fees, assessments or other charges to any labor union or employee organization of any kind; and
    4. Decertify a union or other bargaining representative upon compliance with the applicable federal law.
  2. Private employers may physically post notice of the rights described in this section, at locations where notices are normally posted, informing employees about their rights under this section, or may physically disseminate such notice to employees if no such normal location for posting exists.
  3. To assist private employers in informing workers of their rights as described in this section, the commissioner of labor and workforce development shall create model notice language reiterating the public policies of this state espoused in this part, which may be used by private employers accordingly.
  4. The commissioner shall designate those persons in the department responsible for carrying out the commissioner’s power, duties and responsibilities under this part.

Acts 2012, ch. 826, § 1.

Compiler's Notes. For the Preamble to the act concerning an employee’s right to forfeit a union or employee membership, please refer to Acts 2012, ch. 826.

50-1-207. Prohibition against requiring any employer or employee to waive their rights under the National Labor Relations Act or requiring acceptance or agreement to any provisions that are mandatory or non-mandatory subjects of collective bargaining under federal labor laws.

  1. For purposes of this section:
    1. “Employee” means a natural person who performs services for an employer for valuable consideration, and does not include a self-employed independent contractor;
    2. “Employer” means a person, association, or legal or commercial entity receiving services from an employee and, in return, giving compensation of any kind to such employee;
    3. “Federal labor laws” means the National Labor Relations Act, compiled in 29 U.S.C. § 151 et seq., and the Labor Management Relations Act, compiled in 29 U.S.C. § 141 et seq., as amended, presidential executive orders, and federal administrative regulations relating to labor and management or employee and employer issues, and the United States Constitution as amended;
    4. “Multi-employer association” means a bargaining unit composed of independent employers who associate together to negotiate jointly with one (1) or more labor organizations representing the employees of the independent employers within the bargaining unit;
    5. “Political subdivision” means any local governmental entity, including, but not limited to, any municipality, metropolitan government, county, utility district, school district, public building authority, and development district created and existing pursuant to the laws of this state, or any instrumentality of government created by any one (1) or more of the named local governmental entities; and
    6. “State” means the state of Tennessee and its political subdivisions, agencies and instrumentalities.
  2. No law, ordinance, or regulation shall impose any contractual, zoning, permitting, licensing, or other condition that requires any employer or employee to waive their rights under the National Labor Relations Act.
  3. No law, regulation, or ordinance shall require, in whole or in part, an employer or multi-employer association to accept or otherwise agree to any provisions that are mandatory or non-mandatory subjects of collective bargaining under federal labor laws, including but not limited to, any limitations on an employer or multi-employer association's rights to engage in collective bargaining with a labor organization, to lock out employees, or to operate during a work stoppage; provided, that this subsection (c) shall not invalidate or otherwise restrict the state from requiring the use of project labor agreements to the extent permissible under federal labor laws.
  4. This section shall be interpreted and enforced consistent with the National Labor Relations Act.
    1. Any agreement, contract, understanding, or practice, written or oral, implied or expressed, between any employer and any labor organization required in violation of this section is declared to be unlawful, null, and void, and of no legal effect.
    2. An employer or employee may seek injunctive relief in the chancery court of Davidson county to prevent the state from violating this section.

Acts 2013, ch. 277, § 1.

Compiler's Notes. For the Preamble to the act concerning the regulation of labor neutrality agreements, please refer to Acts 2013, ch. 277.

Law Reviews.

Does “Why” or “What” Matter: Should Section 302 Apply to Card Check Neutrality Agreements? 45 U. Mem. L. Rev. 249 (2014).

50-1-208. Relationship between franchisee and franchisor.

  1. Notwithstanding any voluntary agreement entered into between the United States department of labor and a franchisee, neither a franchisee nor a franchisee's employee shall be deemed to be an employee of the franchisor for any purpose.
  2. For purposes of this section “franchisee” and “franchisor” have the same definitions as set out in 16 CFR 436.1.

Acts 2015, ch. 114, § 1.

Effective Dates. Acts 2015, ch. 114, § 2. April 10, 2015.

Part 3
Working Conditions Generally

50-1-301. Toilet facilities for female employees.

  1. All persons employing female employees in any manufacturing or mercantile establishment shall provide separate privies or water closets for the female employees.
  2. No male person shall enter the separate privies or water closets except for the purpose of repairing or cleaning the privies or water closets.
  3. A violation of this section is a Class C misdemeanor.

Acts 1897, ch. 98, §§ 1-3; Shan., §§ 3079a27-3079a29; Code 1932, §§ 5309-5311; T.C.A. (orig. ed.), §§ 50-401 — 50-403, 50-609 — 50-611; Acts 1989, ch. 591, § 113.

Cross-References. Penalty for Class C misdemeanor, § 40-35-111.

50-1-302. Interference with choice of physician — Company doctors.

  1. It is unlawful for any employer, or agent, clerk or superintendent of the employer, to dictate or in any manner interfere with any employee or laborer in the employee's or laborer's rights to select the employee's or laborer's own family physician.
  2. It is unlawful for any employer, or agent, clerk or superintendent of the employer, to retain or withhold any part or portion of the wages due to the employee or laborer for the avowed purpose of paying the salary of any person claiming to be the company doctor without the full consent of the employee or laborer. The whole amount of any wages so retained by consent shall be paid to the company doctor or other physician employed by the employee.
  3. Any employer, or agent, clerk or superintendent of the employer, violating this section commits a Class C misdemeanor.

Acts 1889, ch. 259, §§ 1-3; Shan., §§ 6879-6881; mod. Code 1932, §§ 11355-11357; T.C.A. (orig. ed.), §§ 50-203, 50-318, 50-319; Acts 1989, ch. 591, § 113.

Cross-References. Penalty for Class C misdemeanor, § 40-35-111.

NOTES TO DECISIONS

1. Evidence.

Evidence was insufficient to authorize a recovery by the “company doctor,” as failing to show that a fund was collected and existed as a fund held in trust for complainant, the “company doctor”; but the evidence showed that a fund was collected for the joint purpose of paying the “company doctor,” and for maintaining hospitals and nurses; and the evidence failed to show that there was any money left in the fund. The evidence further showed that the complainant had no contractual relation that would entitle him to recover anything, and that he must recover, if at all, under this section. No recovery was allowed. Wagner v. Bardy, 130 Tenn. 554, 171 S.W. 1179, 1914 Tenn. LEXIS 58 (1914).

Collateral References.

Law governing assignment of wages or salary. 1 A.L.R.3d 927.

50-1-303. Employees required to leave premises upon ceasing work — Penalty.

In all cases where an employee or employees ceases work for any employer, whether the severance is voluntary on the part of the employee or whether the employee is lawfully discharged, the employee or employees shall within a reasonable time thereafter withdraw from the premises of the employer in which they were employed. In the absence of other circumstances, twelve (12) hours from the date of the cessation of employment shall be a reasonable time. Any employee or employees failing and refusing to withdraw from the premises of the employer after the termination of employment commits a Class C misdemeanor.

Acts 1937, ch. 160, § 1; C. Supp. 1950, § 11366.1; T.C.A. (orig. ed.), § 50-213; Acts 1989, ch. 591, § 113.

Cross-References. Penalty for Class C misdemeanor, § 40-35-111.

Law Reviews.

Labor Law — Wildcat Strikes in Violation of the Wartime No-Strike Pledge, 18 Tenn. L. Rev. 630 (1944).

50-1-304. Discharge for refusal to participate in or remain silent about illegal activities, or for legal use of agricultural product — Damages — Frivolous lawsuits.

  1. As used in this section:
    1. “Employee” includes, but is not limited to:
      1. A person employed by the state or any municipality, county, department, board, commission, agency, instrumentality, political subdivision or any other entity of the state;
      2. A person employed by a private employer; or
      3. A person who receives compensation from the federal government for services performed for the federal government, notwithstanding that the person is not a full-time employee of the federal government;
    2. “Employer” includes, but is not limited to:
      1. The state or any municipality, county, department, board, commission, agency, instrumentality, political subdivision or any other entity of the state;
      2. A private employer; or
      3. The federal government as to an employee who receives compensation from the federal government for services performed for the federal government, notwithstanding that the person is not a full-time federal employee; and
    3. “Illegal activities” means activities that are in violation of the criminal or civil code of this state or the United States or any regulation intended to protect the public health, safety or welfare.
  2. No employee shall be discharged or terminated solely for refusing to participate in, or for refusing to remain silent about, illegal activities.
    1. Any employee terminated in violation of subsection (b) shall have a cause of action against the employer for retaliatory discharge and any other damages to which the employee may be entitled, subject to the limitations set out in § 4-21-313.
    2. Any employee terminated in violation of subsection (b) solely for refusing to participate in, or for refusing to remain silent about, illegal activities who prevails in a cause of action against an employer for retaliatory discharge for the actions shall be entitled to recover reasonable attorney fees and costs.
    1. No employee shall be discharged or terminated solely for participating or engaging in the use of an agricultural product not regulated by the alcoholic beverage commission that is not otherwise proscribed by law, if the employee participates or engages in the use in a manner that complies with all applicable employer policies regarding the use during times at which the employee is working.
    2. No employee shall be discharged or terminated solely for participating or engaging in the use of the product not regulated by the alcoholic beverage commission that is not otherwise proscribed by law if the employee participates or engages in the activity during times when the employee is not working.
    1. This section shall not be used for frivolous lawsuits, and anyone trying to do so is subject to sanction as provided in subdivision (e)(2).
    2. If any employee files a cause of action for retaliatory discharge for any improper purpose, such as to harass or to cause needless increase in costs to the employer, the court, upon motion or upon its own initiative, shall impose upon the employee an appropriate sanction, which may include an order to pay the other party or parties the amount of reasonable expenses incurred, including reasonable attorney's fees.
  3. In any civil cause of action for retaliatory discharge brought pursuant to this section, or in any civil cause of action alleging retaliation for refusing to participate in or remain silent about illegal activities, the plaintiff shall have the burden of establishing a prima facie case of retaliatory discharge. If the plaintiff satisfies this burden, the burden shall then be on the defendant to produce evidence that one (1) or more legitimate, nondiscriminatory reasons existed for the plaintiff's discharge. The burden on the defendant is one of production and not persuasion. If the defendant produces such evidence, the presumption of discrimination raised by the plaintiff's prima facie case is rebutted, and the burden shifts to the plaintiff to demonstrate that the reason given by the defendant was not the true reason for the plaintiff's discharge and that the stated reason was a pretext for unlawful retaliation. The foregoing allocations of burdens of proof shall apply at all stages of the proceedings, including motions for summary judgment. The plaintiff at all times retains the burden of persuading the trier of fact that the plaintiff has been the victim of unlawful retaliation.
  4. This section abrogates and supersedes the common law with respect to any claim that could have been brought under this section.

Acts 1990, ch. 771, §§ 1, 2; 1997, ch. 511, §§ 1, 2; 2000, ch. 688, § 1; 2009, ch. 161, § 1; 2011, ch. 461, § 2; 2014, ch. 995, §§ 4-6.

Compiler's Notes. Acts 2011, ch. 461, § 4 provided that the act, which added subsection (g) (now subsection (f)), shall apply to all causes of action accruing on or after June 10, 2011.

For the Preamble to the act concerning employment litigation in Tennessee, please refer to Acts 2014, ch. 995.

Acts 2014, ch. 995, § 7 provided that nothing in the act, which amended subdivision (c)(1) and subsection (f) and added subsection (g), shall require the Tennessee human rights commission, created pursuant to § 4-21-201, to provide training or education in addition to its current operations.

Acts 2014, ch. 995, § 8 provided that the act shall apply to all actions accruing on or after July 1, 2014.

Amendments. The 2014 amendment added “, subject to the limitations set out in § 4-21-313” at the end of present (c)(1); deleted “under Tennessee common law” following “remain silent about illegal activities,” in the first sentence of present (f); and added (g).

Effective Dates. Acts 2014, ch. 995, § 8. July 1, 2014.

Cross-References. Disciplinary action against school employee reporting statute violation, civil action, § 49-50-1409.

Non-Smoker Protection Act, title 39, ch. 17, part 18.

Law Reviews.

Predicting the Success of Wrongful Discharge-Public Policy Actions: In Tennessee and Beyond, 58 Tenn. L. Rev. 393 (1991).

Reefer Madness: How Tennessee Can Provide Cannabis Oil Patients Protection from Workplace Discrimination, 47 U. Mem. L. Rev. 935 (2017).

Retaliatory Discharge and Public Policy (Charles H. Anderson), 26 No. 6 Tenn. B.J. 30 (1990).

The Law at Work: Variation in State and Federal Pleading Standards: Webb and Veasy (Edward G. Phillips with Brandon L. Morrow), 49 Tenn. B.J. 26 (2013).

When Telling the Truth Costs You Your Job: Tennessee's Employment-at-Will Doctrine and the Need for Change (Chad E. Wallace), 39 No. 4 Tenn. B.J. 18 (2003).

Workers' Compensation — Anderson v. Standard Register Co.: Tennessee Supreme Court Specifies Elements Required to Establish a Cause of Action for Retaliatory Discharge in Workers' Compensation Cases, 24 Mem. St. U.L. Rev. 825 (1994).

NOTES TO DECISIONS

1. Constitutionality.

Amendment to T.C.A. § 50-1-304(f) was procedural in nature, in that the amendment clarifies and outlines the procedural burden-shifting applicable to Tennessee Public Protection Act cases; however, the amendment did not disturb any vested right or contractual obligation that former employees might have, in violation of Tenn. Const. art. 1, § 20, as the issues in the case were decided well after the effective date of the statute. Todd v. Shelby County, 407 S.W.3d 212, 2012 Tenn. App. LEXIS 910 (Tenn. Ct. App. Dec. 27, 2012), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 591 (Tenn. June 13, 2013).

2. Applicability.

Recent amendments to the Tennessee Public Protection Act, or the Whistleblower Act, T.C.A. § 50-1-304, at T.C.A. §§ 50-1-304(f) and 50-1-701, were inapplicable to a case where the cause of action accrued before June 10, 2011. Williams v. City of Burns, — S.W.3d —, 2012 Tenn. App. LEXIS 104 (Tenn. Ct. App. Feb. 15, 2012), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 353 (Tenn. May 21, 2012).

When a passenger on a transit authority bus brought claims for slander and libel, after being arrested as a result of an altercation with the driver, denial of the passenger's claim under the Tennessee Public Protection Act, T.C.A. § 50-1-304, was appropriate because the passenger did not allege that the passenger was an employee of the transit authority. Poe v. Gist, — S.W.3d —, 2017 Tenn. App. LEXIS 850 (Tenn. Ct. App. Sept. 1, 2017).

3. Elements.

Four elements necessary for the existence of a cause of action under the Tennessee Public Protection Act, compiled in T.C.A. § 50-1-304, are: (1) the plaintiff's status as an employee of the defendant; (2) the plaintiff's refusal to participate in, or to remain silent about, illegal activities; (3) the employer's discharge of the employee; and (4) an exclusive causal relationship between the plaintiff's refusal to participate in or remain silent about illegal activities and the employer's termination of the employee. Griggs v. Coca-Cola Employees' Credit Union, 909 F. Supp. 1059, 1995 U.S. Dist. LEXIS 19752 (E.D. Tenn. 1995).

In order to meet the requirements of an action under T.C.A. § 50-1-304, there must be a fear of dismissal contemporaneous with the plaintiff's decision whether to report the illegal activities. Griggs v. Coca-Cola Employees' Credit Union, 909 F. Supp. 1059, 1995 U.S. Dist. LEXIS 19752 (E.D. Tenn. 1995).

T.C.A. § 50-1-304 requires the plaintiff to show that the employer discharged her solely for refusing to participate in, or for refusing to remain silent about, illegal activities. Griggs v. Coca-Cola Employees' Credit Union, 909 F. Supp. 1059, 1995 U.S. Dist. LEXIS 19752 (E.D. Tenn. 1995).

T.C.A. § 50-1-304 does not require a showing that the employer instructed the employee to refrain from reporting the illegal activity. Mason v. Seaton, 942 S.W.2d 470, 1997 Tenn. LEXIS 173 (Tenn. 1997).

Because an employee's claims under Tennessee's whistle blower statute depended upon the existence of the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1001 et seq., plans and alleged violations of fiduciary duties imposed by ERISA, the claims “related to” ERISA plans within the meaning of 29 U.S.C. § 1144(a), and were preempted. McSharry v. UNUMProvident Corp., 237 F. Supp. 2d 875, 2002 U.S. Dist. LEXIS 24519 (E.D. Tenn. 2002).

Employee was terminated on March 23, 2006, but did not file suit until June 25, 2008, more than two years later; hence, the Tennessee Public Protection Act (TPPA), T.C.A. § 50-1-304 et seq., claim was time-barred. Gibson-Holmes v. Fifth Third Bank, 661 F. Supp. 2d 905, 2009 U.S. Dist. LEXIS 92155 (M.D. Tenn. Oct. 2, 2009).

Sergeant could not establish that he faced the requisite contemporaneous fear of dismissal under the Tennessee Public Protection Act because at the time the sergeant filed his complaint against a lieutenant, he was not in fear of dismissal. Coffey v. City of Oak Ridge, — S.W.3d —, 2014 Tenn. App. LEXIS 564 (Tenn. Ct. App. Sept. 12, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 60 (Tenn. Jan. 16, 2015).

Sergeant did not establish a prima facie showing of constructive discharge because demotions did not qualify as intolerable working conditions; although there was a pending investigation lead by the lieutenant regarding the damage the sergeant allegedly caused to a firearm, the investigation had begun before the sergeant filed his complaint against the lieutenant. Coffey v. City of Oak Ridge, — S.W.3d —, 2014 Tenn. App. LEXIS 564 (Tenn. Ct. App. Sept. 12, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 60 (Tenn. Jan. 16, 2015).

Sergeant's complaint against a lieutenant did not regard an illegal activity as required by the Tennessee Public Protection Act because the lieutenant's actions did not satisfy the elements of “reckless endangerment; the lieutenant did not cause an imminent threat of any danger to the participants by placing them in a reasonable probability of danger. Coffey v. City of Oak Ridge, — S.W.3d —, 2014 Tenn. App. LEXIS 564 (Tenn. Ct. App. Sept. 12, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 60 (Tenn. Jan. 16, 2015).

In a retaliatory discharge claim by plaintiff police officer, the court of appeals properly reversed the trial court's decision that the city did not discharge plaintiff solely in retaliation for conduct protected under the Tennessee Public Protection Act (TPPA) because plaintiff made out a prima facie case under the TPPA by showing that he refused to participate in the police chief's illegal ticket fixing, and that the requisite causal connection existed between his discharge and his refusal to participate; the city's reason for discharging plaintiff was pretextual; and the sole reason for plaintiff's discharge was retaliation for his refusal to participate in and remain silent about the police chief's illegal activities. Williams v. City of Burns, 465 S.W.3d 96, 2015 Tenn. LEXIS 367 (Tenn. May 4, 2015).

Circuit court erred in granting summary judgment dismissing an employee's claims under the Tennessee Human Rights Act and the Tennessee Public Protection Act against two separate corporate entities (the employers) because genuine issues of disputed material fact existed as to whether one employer exercised sufficient control over the other to constitute an employer-employee relationship with the employee, as to whether the discriminatory conduct alleged by the employee was sufficiently severe or pervasive to create a hostile working environment, and as to whether the first employer's reliance on an independent consultant's report for the employee's termination was pretextual. Whitney v. First Call Ambulance Serv., — S.W.3d —, 2019 Tenn. App. LEXIS 183 (Tenn. Ct. App. Apr. 15, 2019), vacated, — S.W.3d —, 2019 Tenn. App. LEXIS 216 (Tenn. Ct. App. May 6, 2019), substituted opinion, — S.W.3d —, 2019 Tenn. App. LEXIS 224 (Tenn. Ct. App. Mar. 8, 2019).

Employer was not entitled to summary judgment as to an employee's Tennessee Public Protection Act claim because the employee proffered evidence showing a reasonable person could conclude a report the employer used to terminate the employee had no basis in fact or was insufficient to motivate the termination. Whitney v. First Call Ambulance Serv., — S.W.3d —, 2019 Tenn. App. LEXIS 224 (Tenn. Ct. App. Mar. 8, 2019).

4. Sufficient Evidence.

Allegations of discharged employees that officials of county hospital authority participated in the decision to terminate their employment and to otherwise retaliate and harass them for making complaints about illegal activities and safety violations stated a cause of action under T.C.A. § 50-1-304. Ketron v. Chattanooga-Hamilton County Hosp. Auth., 919 F. Supp. 280, 1996 U.S. Dist. LEXIS 3469 (E.D. Tenn. 1996).

Plaintiff employee, who was terminated after voicing a complaint about the employer's violation of paid leave policy, raised issues that could be matters of public concern, and stated a prima facie claim for retaliatory discharge against defendant county. Wooley v. Madison County, 209 F. Supp. 2d 836, 2002 U.S. Dist. LEXIS 12297 (W.D. Tenn. 2002).

Where a fifty-eight-year-old manager, who was terminated as part of a reduction in force, claimed that the employer failed to rehire him for open manager positions in retaliation for filing an EEOC charge of age discrimination and a lawsuit against the employer, summary judgment for the employer was denied, because the employee presented more than a scintilla of evidence to support his claim that retaliation may have motivated the employer's decision not to consider him for the manager positions, including the fact that the decision-maker admitted that he may have been aware of the employee's lawsuit at the time he considered applicants. Southmayd v. Apria Healthcare, Inc., 412 F. Supp. 2d 848, 2006 U.S. Dist. LEXIS 6145 (E.D. Tenn. 2006).

Summary judgment was erroneously granted to a city in a former employee's action under Tennessee Public Protection Act, or the Whistleblower Act, T.C.A. § 50-1-304, as issues of material fact existed as to whether termination was justified based on the employee's disregard of the chain of command, criticism of a supervisor, and failure to attend a meeting. Williams v. City of Burns, — S.W.3d —, 2012 Tenn. App. LEXIS 104 (Tenn. Ct. App. Feb. 15, 2012), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 353 (Tenn. May 21, 2012).

Summary judgment standard embodied in T.C.A. § 20-16-101, which was intended to replace a summary judgment standard that arose from caselaw, was inapplicable to a claim under the Tennessee Public Protection Act, or the Whistleblower Act, T.C.A. § 50-1-304, where the cause of action accrued before June 10, 2011. Williams v. City of Burns, — S.W.3d —, 2012 Tenn. App. LEXIS 104 (Tenn. Ct. App. Feb. 15, 2012), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 353 (Tenn. May 21, 2012).

Evidence did not support a finding that a police officer's termination from employment was due to his violation of the chain of command when he reported illegal activities of the police chief to the mayor, as it was the police chief's activities that were called into question, such that the chain of command could not adequately function and could not support the officer's termination for purposes of the officer's retaliatory discharge claim. Williams v. City of Burns, — S.W.3d —, 2013 Tenn. App. LEXIS 525 (Tenn. Ct. App. Aug. 12, 2013), aff'd, 465 S.W.3d 96, 2015 Tenn. LEXIS 367 (Tenn. May 4, 2015).

Evidence did not support a finding that a police officer's termination from employment was due to his insubordination, as there was no basis in fact to support that assertion, and the evidence instead showed that the insubordination claim was a pretext for unlawful retaliation. Williams v. City of Burns, — S.W.3d —, 2013 Tenn. App. LEXIS 525 (Tenn. Ct. App. Aug. 12, 2013), aff'd, 465 S.W.3d 96, 2015 Tenn. LEXIS 367 (Tenn. May 4, 2015).

City was entitled to summary judgment on a police officer's retaliatory discharge claim under the Whistleblower Act because the officer's evidence was insufficient to establish that she refused to participate in illegal activity under the statute involving traffic offense citation quotas, which was a limitation on the city's action and not the officer's individual actions. Bige v. City of Etowah, — S.W.3d —, 2014 Tenn. App. LEXIS 789 (Tenn. Ct. App. Dec. 1, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 297 (Tenn. Apr. 10, 2015).

City was entitled to summary judgment on a police officer's retaliatory discharge claim under the Whistleblower Act because the officer did not establish the city fired her solely due to her refusal to participate in an illegal activity; the city's valid and legitimate reasons for the officer's termination included her “poor attitude and demeanor” at work and the fact she was not writing many tickets, which was interpreted by the officer's supervisor as not doing her job. Bige v. City of Etowah, — S.W.3d —, 2014 Tenn. App. LEXIS 789 (Tenn. Ct. App. Dec. 1, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 297 (Tenn. Apr. 10, 2015).

5. Insufficient Evidence.

There was no proof that the manager knew of the employee's report to upper management regarding the alleged insurance fraud and it was undisputed that the manager had a legitimate reason to discharge the employee later. Mere coincidence of time was insufficient to prove causation, especially in light of the fact that the plaintiff had no evidence that the manager was aware of the employee's whistleblowing activity. Pannell v. Future Now, 895 F. Supp. 196, 1995 U.S. Dist. LEXIS 15743 (W.D. Tenn. 1995).

An employee's claim that his discharge resulted from his dissemination of a newsletter and his opinions expressed therein did not establish a violation of T.C.A. § 50-1-304, since he did not face the choice between reporting illegalities and keeping his job, and since there was not the required fear of dismissal contemporaneous with plaintiff's decision to report illegal activities. Henderson v. Corrections Corp. of Am., 918 F. Supp. 204, 1996 U.S. Dist. LEXIS 3471 (E.D. Tenn. 1996).

Where an airline employee failed to offer proof that he was fired because he was about to go public with information that his employer falsified maintenance records concerning its airplanes, summary judgment against him was proper. Robins v. Flagship Airlines, 956 S.W.2d 4, 1997 Tenn. App. LEXIS 434 (Tenn. Ct. App. 1997).

Where the activities that were reported by the employee were not “illegal activities” within the meaning of T.C.A. § 50-1-304, he failed to establish a prima facie case of retaliatory discharge. Voss v. Shelter Mut. Ins. Co., 958 S.W.2d 342, 1997 Tenn. App. LEXIS 358 (Tenn. Ct. App. 1997).

Where a hospital employee was terminated for insubordination and the employee alleged that the termination was for complaining about medical mistreatment of patients, the employee's retaliatory discharge claims failed to survive summary judgment because the employee failed to show an exclusive causal relationship between the alleged whistle blowing and the termination. Caruso v. St. Jude Children's Research Hosp., Inc., 215 F. Supp. 2d 930, 2002 U.S. Dist. LEXIS 18989 (W.D. Tenn. 2002), dismissed, Caruso v. St. Jude Children's Research Hosp., — F. Supp. 2d —, 2002 U.S. Dist. LEXIS 18988 (W.D. Tenn. Sept. 19, 2002).

Employee's retaliatory discharge claim was dismissed where, under T.C.A. § 50-1-304 and common law, the regulatory infraction by the company on which the employee relied did not implicate fundamental policy concerns and the employee's refusal to drive the truck with a photocopy of the cab card did not further an important public policy interest embodied in the law. Franklin v. Swift Transp. Co., 210 S.W.3d 521, 2006 Tenn. App. LEXIS 467 (Tenn. Ct. App. 2006), appeal denied, — S.W.3d —, 2006 Tenn. LEXIS 1126 (Tenn. 2006).

Bank teller did not establish retaliatory discharge claims against her former employer, a bank, under the common-law and the Whistleblower Act, T.C.A. § 50-1-304, because she did not show that her supervisor's request regarding how cash would be made available to a substitute teller was illegal or that it violated bank policy; additionally, the teller did not present proof that she reported or attempted to report the supervisor's request to other bank officials, law enforcement, or the bank itself through a toll free number established for that purpose. Collins v. AmSouth Bank, 241 S.W.3d 879, 2007 Tenn. App. LEXIS 479 (Tenn. Ct. App. July 26, 2007).

Employee showed nothing of which was illegal or against public policy; nor did the employee show that she was dismissed solely because of complaints about illegal activities as she readily admitted in her deposition that part of the reason for the closing of the Nashville office was simple greed on the part of other traders. Gibson-Holmes v. Fifth Third Bank, 661 F. Supp. 2d 905, 2009 U.S. Dist. LEXIS 92155 (M.D. Tenn. Oct. 2, 2009).

In an employee's suit against her former employer alleging common law and statutory claims of retaliatory discharge after she complained of an activity by a co-worker that she found personally offensive in that it created a foul smell and dust, the employee's claim of common law retaliatory discharge was not applicable because the Tennessee Occupational Safety and Health Act, T.C.A. § 50-3-409, provided the exclusive remedy. And as the employee but did not cite any specific threat either to her own health or safety or that of the public, and failed to show that the employer's activities implicated fundamental public policy concerns, the trial court properly dismissed the employee's claim under the Tennessee Public Protection Act, T.C.A. § 50-1-304 as well. Boyd v. Edwards & Assocs., 309 S.W.3d 470, 2009 Tenn. App. LEXIS 165 (Tenn. Ct. App. Apr. 30, 2009), appeal denied, — S.W.3d —, 2009 Tenn. LEXIS 867 (Tenn. Dec. 21, 2009).

Employer was granted summary judgment on the employee's statutory and common law retaliatory discharge claims where the employee had not met his burden of demonstrating that the regulatory infraction allegedly committed by the employer implicated fundamental public policy concerns. Clark v. Hoops, LP, 709 F. Supp. 2d 657, 2010 U.S. Dist. LEXIS 32422 (W.D. Tenn. Apr. 1, 2010).

Employer was granted summary judgment as to a former employee's claim under the Tennessee Public Protective Act (TPPA), T.C.A. § 50-1-304, because she did not establish that she refused to participate or remain silent about an illegal activity or an activity that violated a clear public policy evidenced by an unambiguous constitutional statutory or regulatory provision based on the record that demonstrated that the majority of her complaints to the employer did not involve sex but were in regard to what she perceived as harsh, condescending, or unfair treatment and she provided no law under which her complaints about those matters were protected by the TPPA and the common law; in addition, the former employee's confirmation of the incidents referenced in an anonymous email and her discussion with the employer about those incidents constituted the type of conduct protected by the TPPA and the common law but it was not clear that she herself ever actually reported the incidents referenced in the anonymous email and the contents of that email did not constitute a report or complaint that the employer was engaging in discrimination on the basis of sex, thus, she failed to establish a prima facie case for retaliation under the TPPA or the common law. Manstra v. Norfolk S. Corp., — F. Supp. 2d —, 2012 U.S. Dist. LEXIS 42830 (E.D. Tenn. Mar. 28, 2012).

Plaintiff's Tennessee Public Protection Act (TPPA), T.C.A. § 50-1-304 claim could not stand because aside from her termination, the plaintiff had not alleged that the defendant engaged in any other illegal activity. The TPPA, as evidenced by its express terms, protected whistleblowers, that was, those individuals who refused to participate in or remain silent about an illegal activity; therefore, because the complaint lacked any allegation of whistleblowing activity, the plaintiff's TPPA claim was dismissed. McAllister v. Quality Mobile X-Ray Servs., — F. Supp. 2d —, 2012 U.S. Dist. LEXIS 103563 (M.D. Tenn. July 25, 2012).

Employer was entitled to summary judgment on former employees'  Tennessee Public Protection Act claims, as the employees had not established the element of sole causation. The employees'  termination appeared to be the culmination of several months of planning and actions consistent with the mayor's ultimate goal of a complete overhaul of the department in which they worked; the evidence indicated that the mayor's office did not know about the whistleblowing activities until after the decision to terminate the employees was made; and the employees had not produced evidence to rebut the legitimate reason for the termination of their employment, problems within their department, and to show that it was pretext. Todd v. Shelby County, 407 S.W.3d 212, 2012 Tenn. App. LEXIS 910 (Tenn. Ct. App. Dec. 27, 2012), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 591 (Tenn. June 13, 2013).

Teacher failed to establish that he was terminated because of his reporting of illegal activities; that he allegedly reported illegal activities before he received negative evaluations and was disciplined was insufficient to establish an exclusive causal relationship, and unrefuted evidence showed that the negative evaluations were based at least in part on the teacher's ability and performance. Brown v. Bd. of Educ., — F. Supp. 2d —, 2014 U.S. Dist. LEXIS 128645 (W.D. Tenn. Sept. 15, 2014), aff'd, Brown v. Shelby Cty. Bd. of Educ., — F.3d —, — FED App. —, 2016 U.S. App. LEXIS 23870 (6th Cir. Tenn. Apr. 26, 2016).

When an employee was fired for refusing to reimburse child support payments the employee had misdirected, the employee's claim under T.C.A. § 50-1-304 failed because: (1) the employee did not identify an illegal activity an employer allegedly engaged in; and (2) the employee's alleged immunity under T.C.A. § 29-20-310(b) from any claim for misdirecting the payments was irrelevant, since no such claim was made. Palmore v. Neal, — S.W.3d —, 2014 Tenn. App. LEXIS 341 (Tenn. Ct. App. June 12, 2014), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 907 (Tenn. Oct. 22, 2014).

Employee firing did not violate T.C.A. § 50-1-304 when the employee did not go on test drives without dealer license plates and proof of insurance, because the employee did not show this was the sole reason, since the person who fired the employee did not know the employee refused to go on test drives and fired the employee for the legitimate reason of damaging company property, and the employee did not show this was not the true reason. McMillin v. Ted Russell Ford, Inc., — S.W.3d —, 2014 Tenn. App. LEXIS 450 (Tenn. Ct. App. July 31, 2014).

In a retaliatory discharge action by a former police officer against the city under the Tennessee Public Protection Act, the trial court did not err in granting summary judgment in favor of the city because the former police officer's evidence was insufficient to establish a genuine issue of material fact as to two essential elements of her claim - that she refused to participate in an illegal activity as she presented no evidence that anyone employed by the city ever suggested or required her to write an unwarranted ticket; and that the city fired her solely because of her refusal to participate in an illegal activity as there were valid and legitimate reasons for her termination, including her poor attitude and demeanor at work. Bige v. City of Etowah, — S.W.3d —, 2014 Tenn. App. LEXIS 789 (Tenn. Ct. App. Dec. 1, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 297 (Tenn. Apr. 10, 2015).

Former employee, African-American female, who worked as front office medical assistant for provider of health care and laboratory service, failed to establish that she was terminated in violation of the Tennessee Public Protection Act because she did not present evidence suggesting she was asked or instructed by anyone to remain silent about the alleged illegal activities. Swanson v. Summit Med. Grp., PLLC, — F. Supp. 2d —, 2015 U.S. Dist. LEXIS 118370 (E.D. Tenn. Sept. 3, 2015).

Former employee, African-American female, who worked as front office medical assistant for provider of health care and laboratory service, failed to establish that she was terminated in violation of the Tennessee Public Protection Act because she did not present evidence sufficient for a reasonable juror to conclude that her participation in protected activity or refusal to report illegalities was the sole reason for her inclusion in a reduction-in-force. Swanson v. Summit Med. Grp., PLLC, — F. Supp. 2d —, 2015 U.S. Dist. LEXIS 118370 (E.D. Tenn. Sept. 3, 2015).

Employer entitled to summary judgment on Tennessee Public Protection Act claim because employer offered evidence that it had the authority to terminate the employee based on (1) his inability to perform the essential functions of the position and (2) its discretion to not extend any further general unpaid leave under company policy. Wheeler v. Jackson Nat'l Life Ins. Co., — F. Supp. 2d —, 2016 U.S. Dist. LEXIS 13596 (M.D. Tenn. Feb. 4, 2016), aff'd, — F.3d —, 2016 FED App. 0676N (6th Cir.), 666 Fed. Appx. 453, 2016 U.S. App. LEXIS 22423 (6th Cir. Tenn. Dec. 15, 2016).

Employer was entitled to summary judgment as to an employee's Tennessee Public Protection Act constructive discharge claim because the employee did not show the employee knew of illegal activity. Hardy v. Tenn. State Univ., — S.W.3d —, 2016 Tenn. App. LEXIS 215 (Tenn. Ct. App. Mar. 24, 2016).

City was entitled to summary judgment as to a former firefighter's retaliatory discharge claim under the Tennessee Public Protection Act (TPPA) because (1) the firefighter did not show the firefighter was fired only for activity protected under the TPPA, as the firefighter engaged in non-protected work-related conduct of repeatedly going outside of the chain of command, unprofessional conduct in public, and adversely affecting employee morale and did not show other firefighters engaging in similar work-related misconduct were not terminated, and (2) the city fired both the firefighter and the firefighter's supervisor, showing the termination was not retaliatory but an effort to improve fire department morale and functioning. Sweat v. City of McMinnville, — S.W.3d —, 2018 Tenn. App. LEXIS 158 (Tenn. Ct. App. Mar. 23, 2018).

Employer was entitled to summary judgment as to the employee's claim for retaliatory discharge under the common law and the Tennessee Public Protection Act because the employee failed to identify a specific statutory or regulatory provision that he believed had been violated or would be violated, and allegations involving questionable business practices, breaches of contracts, or failure to comply with industry standards established by private organizations did not implicate public policy of violate the Act. Konvalinka v. Fuller, — S.W.3d —, 2019 Tenn. App. LEXIS 275 (Tenn. Ct. App. May 31, 2019).

Former employee did not establish a retaliatory discharge because the employee of the State of Tennessee, Department of Correction, did not provide any evidence establishing that the employee reported alleged illegal activity to outside officials or regulators. Furthermore, the employee's refusal to violate internal policies was too remote in time to establish the requisite causal connection to the employee's termination as a result of a reduction in force. Thompson v. State, — S.W.3d —, 2020 Tenn. App. LEXIS 135 (Tenn. Ct. App. Mar. 31, 2020).

Worker was not an employee of the independent auditor and the allegations in support of the worker's Tennessee Public Protection Act claim were broad, conclusory, and failed to identify any sections of the Tennessee or United States Code intended to protect the public health, safety, or welfare, and this alone caused the worker's claim to fail as matter of law. Tidwell v. Holston Methodist Fed. Credit Union, — S.W.3d —, 2020 Tenn. App. LEXIS 291 (Tenn. Ct. App. June 25, 2020).

Because the worker did not allege that she reported her employer's alleged wrongdoing to anyone besides the board and committee chairpersons, she had not stated a viable claim. Tidwell v. Holston Methodist Fed. Credit Union, — S.W.3d —, 2020 Tenn. App. LEXIS 291 (Tenn. Ct. App. June 25, 2020).

6. Worker's Compensation Retaliation Claim.

An employee's action for retaliatory discharge was not allowed where he was discharged before he filed his worker's compensation claim and the retaliation was the withholding of severance benefits. Medley v. A. W. Chesterton Co., 912 S.W.2d 748, 1995 Tenn. App. LEXIS 584 (Tenn. Ct. App. 1995).

7. Immunity of Governmental Entity.

A county hospital authority, as a political subdivision of the state, was immune to a claim against it for retaliatory discharge under the provisions of the Governmental Tort Liability Act, T.C.A. title 29, chapter 20. Ketron v. Chattanooga-Hamilton County Hosp. Auth., 919 F. Supp. 280, 1996 U.S. Dist. LEXIS 3469 (E.D. Tenn. 1996); Coffey v. Chattanooga-Hamilton County Hosp. Auth., 932 F. Supp. 1023, 1996 U.S. Dist. LEXIS 10508 (E.D. Tenn. 1996), aff'd, Coffey v. Chattanooga Hamilton County Hosp. Auth., 1998 U.S. Dist. LEXIS 22509 (E.D. Tenn. Aug. 17, 1998).

The termination of plaintiff by defendant general manager was not an action in the general manager's individual capacity, but rather an action taken on behalf of the employer; therefore, because the general manager was acting within the scope of employment duties for the immune entities, the general manager was also shielded by the same immunity from suit under T.C.A. § 50-1-304. Smith v. Harriman Util. Bd., 26 S.W.3d 879, 2000 Tenn. App. LEXIS 78 (Tenn. Ct. App. 2000).

8. Common Law Cause of Action.

Concurrent common law cause of action did not exist in case where plaintiff could not show that she was discharged solely because of the plaintiff's refusal to participate in, or to remain silent about, illegal activities as clearly defined by public policy. Griggs v. Coca-Cola Employees' Credit Union, 909 F. Supp. 1066, 1995 U.S. Dist. LEXIS 19754 (E.D. Tenn. 1995).

Tennessee whistleblower statute, T.C.A. § 50-1-304, is cumulative, and does not preempt a plaintiff's common law cause of action for retaliatory discharge where the employee was discharged for reporting illegal or unethical conduct. Guy v. Mut. of Omaha Ins. Co., 79 S.W.3d 528, 2002 Tenn. LEXIS 326 (Tenn. 2002).

Terminated over-the-road truck driver presented sufficient evidence of a prima facie case under T.C.A. § 50-1-304; however, his common law claim of retaliatory discharge in violation of public policy was dismissed because he was not an at-will employee, but worked under a union contract. Conley v. Yellow Freight Sys., 521 F. Supp. 2d 713, 2007 U.S. Dist. LEXIS 75114 (E.D. Tenn. Oct. 9, 2007).

9. Protected Activity.

For purposes of a city employee's claim under the Tennessee Public Protection Act, or the Whistleblower Act, T.C.A. § 50-1-304, ticket-fixing activities constituted an illegal activity pursuant to T.C.A. §§ 55-10-204(a) and 39-16-402(a)(1) and (d) (now (e)), such that it was within the meaning of § 50-1-304(a)(3). Williams v. City of Burns, — S.W.3d —, 2012 Tenn. App. LEXIS 104 (Tenn. Ct. App. Feb. 15, 2012), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 353 (Tenn. May 21, 2012).

Employee failed to state a cause of action for whistleblower retaliatory discharge under the common law and T.C.A. § 50-1-304 where he only reported the illegal activity to the owner of the company, who was the one engaging in the allegedly illegal activity. Haynes v. Formac Stables, Inc., — S.W.3d —, 2013 Tenn. App. LEXIS 786 (Tenn. Ct. App. Dec. 4, 2013), aff'd, 463 S.W.3d 34, 2015 Tenn. LEXIS 269 (Mar. 27, 2015).

Employee, who was terminated after she refused to delete work-related e-mails containing confidential client health care information that she had forwarded from her work computer to her personal account, failed to show retaliation under the Tennessee Public Protection Act because her refusal to delete the office e-mails was not a refusal to participate in illegal activities. Aldrich v. Rural Health Servs. Consortium, 579 Fed. Appx. 335, — F.3d —, 2014 U.S. App. LEXIS 15567, 2014 FED App. 625N (6th Cir. 2014).

Employee did not show the employee's firing violated T.C.A. § 50-1-304 when the employee did not go on test drives without dealer license plates and proof of insurance, because no significant public concern was implicated, as cars were clearly marked. McMillin v. Ted Russell Ford, Inc., — S.W.3d —, 2014 Tenn. App. LEXIS 450 (Tenn. Ct. App. July 31, 2014).

Trial court properly dismissed an employee's claim for retaliatory discharge under the Tennessee Public Protection Act (TPPA) because the employee could not establish that he refused to participate in or remain silent about illegal activity; leaving a bandage in a sock, where a patient's wound was otherwise sufficiently bandaged, was not illegal activity under the TPPA, and leaving the bandage in the sock was not abuse and neglect under the Tennessee Adult Protective Act. Richmond v. Vanguard Healthcare Servs., — S.W.3d —, 2016 Tenn. App. LEXIS 66 (Tenn. Ct. App. Jan. 29, 2016), appeal denied, Richmond v. Vanguard Healthcare Servs., LLC, — S.W.3d —, 2016 Tenn. LEXIS 873 (Tenn. Nov. 16, 2016).

10. Causation.

In a retaliatory discrimination suit brought under the Tennessee Public Protection Act, T.C.A. § 50-1-304, by a employee fired for doing Naval Reserve work on a company computer during company time, the evidence showed that the employee was fired, not because he made certain complaints about his employer's practices, but for his violation of the company's computer policy. Escher v. BWXT Y-12, LLC,  627 F.3d 1020, 2010 FED App. 634N, 2010 U.S. App. LEXIS 19734 (6th Cir. Sept. 22, 2010).

Employers were entitled to summary judgment on two discharged employees' claims under the Whistleblower Act because the employees could not prove an exclusive causal relationship between their whistleblowing activity relating to racial profiling and their discharge. Both employees admitted violations of the employer's cell phone and other employment policies. However, the evidence of close proximity between their complaints of racial profiling and their discharge supported their claim under the Tennessee Human Rights Act. Sykes v. Chattanooga Hous. Auth., 343 S.W.3d 18, 2011 Tenn. LEXIS 604 (Tenn. June 24, 2011).

Employer was not entitled to summary judgment on its claim that employee could not establish that she was terminated solely for her whistleblowing activities because the reasons for the employee's termination were hotly disputed and the employee produced evidence to show that a genuine issue of material fact existed. Coleman v. Humane Soc'y of Memphis, — S.W.3d —, 2014 Tenn. App. LEXIS 77 (Tenn. Ct. App. Feb. 14, 2014).

Trial court did not err in granting the Tennessee Department of Mental Health and Developmental Disabilities and the Commissioner of the Department summary judgment because they presented evidence that the doctor's position was included in the reduction in force since he was the least qualified; the doctor presented no evidence of an actual causal connection between his reports and the elimination of his position. Morson v. Tenn. Dep't of Mental Health & Developmental Disabilities, — S.W.3d —, 2014 Tenn. App. LEXIS 283 (Tenn. Ct. App. May 14, 2014), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 795 (Tenn. Sept. 18, 2014).

Trial court properly granted a city summary judgment in a sergeant's action alleging retaliatory discharge because the sergeant could not establish sole causation and pretext; even if the sergeant could establish a prima facie showing of sole causation, the city demonstrated legitimate, nondiscriminatory reasons for the actions about which the sergeant complained. Coffey v. City of Oak Ridge, — S.W.3d —, 2014 Tenn. App. LEXIS 564 (Tenn. Ct. App. Sept. 12, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 60 (Tenn. Jan. 16, 2015).

Trial court erred in dismissing the complaint where a trier of fact could have concluded from the officer's evidence that his employment was terminated solely for his refusal to remain silent about the police chief's alleged illegal actions. Brumley v. City of Cleveland, — S.W.3d —, 2015 Tenn. App. LEXIS 839 (Tenn. Ct. App. Oct. 15, 2015).

City was entitled to summary judgment as to officers'  Tennessee Public Protection Act claim alleging the officers were fired for reporting another officer's illegal acts because the officers'  failure to report the illegal activity for a year was a nondiscriminatory reason for the officers'  discharge. Jones v. City of Union City, — S.W.3d —, 2015 Tenn. App. LEXIS 972 (Tenn. Ct. App. Dec. 17, 2015).

Officers suing a city under the Tennessee Public Protection Act for firing the officers after the officers reported another officer's illegal activity did not show the city's nonretaliatory reason for the discharge, which was that the officers waited a year to report the activity, was a pretext for retaliation due to a failure to fire other officers aware of the activity because the other officers were not similarly situated, as the other officers reported the activity shortly after becoming aware of it. Jones v. City of Union City, — S.W.3d —, 2015 Tenn. App. LEXIS 972 (Tenn. Ct. App. Dec. 17, 2015).

City was entitled to summary judgment when a former city police officer brought a retaliatory discharge action against the city, alleging that the officer was discharged solely because of the officer's whistleblowing activities, because a trier of fact could not reasonably have concluded that the sole reason for the officer's termination was unlawful retaliation as the city had legitimate, non-retaliatory reasons for the officer's termination. Weinert v. City of Sevierville, — S.W.3d —, 2019 Tenn. App. LEXIS 26 (Tenn. Ct. App. Jan. 23, 2019).

11. Complaint Stated Cause of Action.

Employee's amended complaint specifically referred to the statute upon which the employee was relying to state a claim of retaliatory discharge, T.C.A. § 50-1-304, and thus comported with Tenn. R. Civ. P. 8.05(1). The amended complaint, while not a model of pleading, provided the employer with sufficient notice of the claims alleged and sufficiently pleaded a legal cause of action. Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422, 2011 Tenn. LEXIS 623 (Tenn. July 21, 2011).

In a sexual harassment and retaliation suit, the employer's motion to dismiss for failure to state a claim was denied as to the former employee's claim under the Tennessee Public Protection Act, T.C.A. § 50-1-304, because she sufficiently pled a cause of action by asserting that her supervisor's actions of commenting on her sexuality, asking to watch her perform sexual acts with other women, and other actions exceeded routine workplace jokes and teasing and caused her to be constructively discharged. Stacy v. MVT Servs., LLC, — F. Supp. 2d —, 2012 U.S. Dist. LEXIS 84082 (M.D. Tenn. June 18, 2012).

Plaintiff's statutory retaliatory discharge claim under T.C.A. § 50-1-304(b) stated a claim since: (1) plaintiff could plead in the alternative that whistleblowing was the sole cause and one of multiple causes of his termination under Tenn. R. Civ. P. 8.05(2); (2) the allegation that the whistleblowing activity was the exclusive cause of the termination was equivalent to an allegation that it was the sole cause of the termination; and (3) any allegation to the contrary was properly construed as an alternative allegation, especially since plaintiff alleged that any other reason given for the termination was pretextual. Phelps v. Newman, — S.W.3d —, 2013 Tenn. App. LEXIS 4 (Tenn. Ct. App. Jan. 3, 2013).

Employer was not entitled to summary judgment on its claim that employee could not establish a refusal to participate claim at trial because the employee arguably revealed illegal practices and the practices involved the employee in such a way that her continued complaints about them could be characterized as a refusal to participate in and a refusal to remain silent about the activities. Coleman v. Humane Soc'y of Memphis, — S.W.3d —, 2014 Tenn. App. LEXIS 77 (Tenn. Ct. App. Feb. 14, 2014).

It was error to dismiss an employee's complaint under the Tennessee Public Protection Act (TPPA), alleging the employee was terminated for refusing to remain silent about an employer's failure to enact workplace violence policies, because the employee alleged a violation of the Occupational Safety and Health Act's general duty clause which implicated important public policy concerns in Tennessee, which satisfied the TPPA's “illegal act” requirement. Davis v. Vanderbilt Univ. Med. Ctr., — S.W.3d —, 2020 Tenn. App. LEXIS 349 (Tenn. Ct. App. Aug. 5, 2020).

12. Complete Severance of Employment Required.

Employee's complaint against a university was insufficient to state a claim under Tennessee Public Protection Act (TPPA), T.C.A. § 50-1-304, because, although the employee alleged that he was demoted for refusing to participate in or for refusing to remain silent about illegal activities, the TPPA required a complete severance of employment to bring suit; the university had removed the employee as department head, but continued to employ him as a tenured professor after removing him as department head. Harman v. Univ. of Tenn., 353 S.W.3d 734, 2011 Tenn. LEXIS 871 (Tenn. Sept. 16, 2011).

13. No Right to Jury Trial.

Employee was not entitled to a jury trial on his retaliation claim because such claims were not “brought under” the Governmental Tort Liability Act, but were brought under the Tennessee Public Protection Act, an independent statute that established its own rights and remedies, no similar statute of general application afforded the employee a right to trial by jury, the civil procedure rule was merely descriptive of the constitutional right to a jury trial and did not itself confer an independent right to trial by jury, and the employee was not entitled to a jury trial under the state constitution on his claim where the claim did not exist at common law. Young v. City of Lafollette, 479 S.W.3d 785, 2015 Tenn. LEXIS 695 (Tenn. Aug. 26, 2015).

14. Burden of Proof.

Because an employee's cause of action accrued in 2013, the burden-shifting framework under the statute applied to the motion for summary judgment filed by a doctor and nurse practitioner. Richmond v. Vanguard Healthcare Servs., — S.W.3d —, 2016 Tenn. App. LEXIS 66 (Tenn. Ct. App. Jan. 29, 2016), appeal denied, Richmond v. Vanguard Healthcare Servs., LLC, — S.W.3d —, 2016 Tenn. LEXIS 873 (Tenn. Nov. 16, 2016).

15. Attorney Fees.

There was no dispute that under the statute, appellant was entitled to reasonable attorney fees incurred in prosecuting her action, but even assuming the trial court was permitted to determine the appropriate hourly rate in the locality in the absence of proof, the trial court failed to do so in a way that afforded meaningful appellate review; the trial court did not discuss the experience of counsel and did not say what it believed to be the proper market rate, and remand was required. Smith v. All Nations Church of God, — S.W.3d —, 2020 Tenn. App. LEXIS 535 (Tenn. Ct. App. Nov. 25, 2020).

Collateral References.

After-acquired evidence of employee's misconduct as barring or limiting recovery in action for wrongful discharge. 34 A.L.R.5th 699.

Preemption of state-law wrongful discharge claim, not arising from whistleblowing, by § 301(a) of Labor-Management Act of 1947 (29 U.S.C.A. § 185(a)). 184 A.L.R. Fed. 241.

Preemption of state-law wrongful discharge claim, not arising from whistleblowing, by § 541(a) of Employee Retirement Income Security Act of 1974 (29 U.S.C.A. § 1144(a)). 176 A.L.R. Fed. 433.

Pre-emption of wrongful discharge cause of action by civil rights laws. 21 A.L.R.5th 1.

What constitutes activity of employee, other than reporting wrongdoing, protected under state whistleblower protection statute. 13 A.L.R.6th 499.

What constitutes activity of employee protected under state whistleblower protection statute covering employee's report, disclosure, notification, or the like of wrongdoing — Sufficiency of report. 10 A.L.R.6th 531.

What constitutes activity of private-sector employee protected under state whistleblower protection statute covering employee's “report,” “disclosure,” “notification,” or the like of wrongdoing — Nature of activity reported. 36 A.L.R.6th 203.

What constitutes activity of public or state employee protected under state whistleblower protection statute covering employee's “report,” “disclosure,” “notification,” or the like of wrongdoing — Nature of activity reported. 37 A.L.R.6th 137.

Who are “public employers” or “public employees” within the meaning of state whistleblower protection acts. 90 A.L.R.5th 687.

Wrongful discharge based on public policy derived from professional ethics codes. 52 A.L.R.5th 405.

50-1-305. Breast milk expressing by employees — Break time and place.

  1. As used in this section, “employer” means a person or entity that employs one (1) or more employees and includes the state and its political subdivisions.
  2. An employer shall provide reasonable unpaid break time each day to an employee who needs to express breast milk for that employee's infant child. The break time shall, if possible, run concurrently with any break time already provided to the employee. An employer shall not be required to provide break time under this section if to do so would unduly disrupt the operations of the employer.
  3. The employer shall make reasonable efforts to provide a room or other location in close proximity to the work area, other than a toilet stall, where the employee can express breast milk in privacy. The employer shall be held harmless if reasonable efforts have been made to comply with this subsection (c).

Acts 1999, ch. 161, § 1.

Cross-References. Breastfeeding, title 68, ch. 58.

50-1-306. Authorization of patient to market or sell medical information.

  1. As used in this section, “medical information” includes lists of employees or family members receiving health insurance. “Medical information” does not include information that does not identify the patient.
  2. It is unlawful for any employer, or an agent, contractor or employee of an employer, to market or sell medical information that directly identifies an employee, unless the patient has authorized the release in written, electronic or other form that indicates the patient's consent, including records for medical services provided or paid for by the employer for purposes unrelated to:
    1. The provision of health care to the employee or family members receiving health insurance;
    2. Payment for health care to the employee or family members receiving health insurance; or
    3. Administration of any health plan or program offered by the plan.
  3. A violation of this section shall be punished as a Class C misdemeanor.
  4. This section shall not apply to information for which the employee or family member has executed a voluntary waiver or release.

Acts 2000, ch. 769, § 2.

Compiler's Notes. Acts 2000, ch. 769, § 3, provided that this section and § 56-7-124 shall only take effect to the extent permitted by federal law, including, but not limited to, the Employee Retirement Income Security Act of 1974 [29 U.S.C. § 1001 et seq.], and to the extent that any necessary approvals under the federal waiver for TennCare (or a successor entity or program) have been secured from the federal health care financing administration.

Cross-References. Penalty for Class C misdemeanor, § 40-35-111.

Release of information relating to physical or mental health of patient, § 56-7-124.

50-1-307. Volunteer firefighters — Rights against termination.

  1. No employer shall terminate an employee who is a volunteer firefighter solely because the employee, when acting as a volunteer firefighter, is absent or late to the employee's employment in order to respond to an emergency prior to the time the employee is to report to employee's place of employment.
  2. An employer may charge against the employee's regular pay any time that an employee who is a volunteer firefighter loses from employment because of the employee's response to an emergency.
  3. An employer has the right to request an employee who loses time from the employee's employment to respond to an emergency to provide the employer with a written statement from the supervisor or acting supervisor of the volunteer fire department stating that the employee responded to an emergency and list the time and date of the emergency.
  4. Any employee who is absent or late to the employee's employment in order to respond to an emergency shall make a reasonable effort to notify the employee's employer that the employee may be absent or late.
  5. Any employee terminated in violation of this section may bring a civil action against the employee's employer. The employee may seek reinstatement to the employee's former position, payment of back wages, reinstatement of fringe benefits, and where seniority rights are granted, the reinstatement of seniority rights. The employee has one (1) year from the date of a violation of this section to file an action.

Acts 2003, ch. 148, § 1.

Law Reviews.

The Law at Work: Volunteer Firefighter Paid Leave (Edward G. Phillips), 44 Tenn. B.J. 37 (2008).

50-1-308. Payroll deductions for health insurance premiums.

Notwithstanding any other law, any employer, including, but not limited to, state and local government employers, that offers health insurance regulated under title 56 to its employees, may provide a payroll deduction for the employee portion of the health insurance premiums on the request of any employee who participates in the health insurance program.

Acts 2006, ch. 590, § 1.

50-1-309. Volunteer firefighters — Permission to leave work — Allowance for time off following response to fire call.

    1. Notwithstanding § 50-1-307, any employee who is an active volunteer firefighter may be permitted to leave work in order to respond to fire calls during the employee's regular hours of employment without loss of pay, vacation time, sick leave or earned overtime accumulation. The employee may be permitted to take off the next scheduled work period within twelve (12) hours following the response as a vacation day or sick leave day without loss of pay, if the employee assisted in fighting the fire for more than four (4) hours. If the employee is not entitled to a vacation day or sick leave day, then the employee may be permitted to take off the work period without pay.
    2. In addition to subdivision (a)(1), any employee who is an active volunteer firefighter and who worked for more than four (4) hours the prior day or night as a volunteer firefighter in an emergency may be permitted to take off the next scheduled work period within twelve (12) hours following the emergency as a vacation day or sick leave day without the loss of pay. If the employee is not entitled to a vacation day or sick leave day then the employee may be permitted to take off the work period without pay.
  1. The employer may require the employee to submit a written statement from the chief of the volunteer fire department verifying that the employee responded to a fire or was on-call and specifying the date, time and duration of the response.

Acts 2008, ch. 791, § 1.

Code Commission Notes.

Acts 2008, ch. 885, § 1 purported to add a new section as § 50-1-309. Since Acts 2008, ch. 791, § 1 added § 50-1-309, Acts 2008, ch. 885, § 1 was added as § 50-1-310.

Law Reviews.

The Law at Work: Volunteer Firefighter Paid Leave (Edward G. Phillips), 44 Tenn. B.J. 37 (2008).

50-1-310. Discharge of teacher for refusal to participate in or remain silent about illegal activities — Damages — Frivolous lawsuits.

  1. No teacher employed by a local education agency shall be discharged, terminated, or otherwise discriminated against with respect to compensation, terms, conditions or privileges of employment solely for refusing to participate in, or for refusing to remain silent about, illegal activities.
  2. As used in this section, “illegal activities” means activities that are in violation of the criminal or civil code of this state or the United States or any regulation intended to protect the public health, safety or welfare.
    1. Any teacher terminated or discriminated against in violation of subsection (a) shall have a cause of action against the employer for violation of this section and any other damages to which the employee may be entitled.
    2. Any teacher terminated or discriminated against in violation of subsection (a) solely for refusing to participate in, or for refusing to remain silent about, illegal activities who prevails in a cause of action against an employer for such prohibited actions shall be entitled to recover reasonable attorney fees and costs.
    1. This section shall not be used for frivolous lawsuits and anyone who files a frivolous lawsuit is subject to sanction as provided in subdivision (d)(2).
    2. If any teacher files a cause of action for retaliatory discharge for any improper purpose, such as to harass or to cause needless increase in costs to the employer, the court, upon motion or upon its own initiative, shall impose upon the teacher an appropriate sanction, which may include an order to pay the other party or parties the amount of reasonable expenses incurred, including reasonable attorney's fee.

Acts 2008, ch. 885, § 1.

Code Commission Notes.

Acts 2008, ch. 885, § 1 purported to add a new section as § 50-1-309. Since Acts 2008, ch. 791, § 1 added § 50-1-309, Acts 2008, ch. 885, § 1 was added as § 50-1-310.

50-1-311. Employer prohibited from using results of voice stress analysis to prove misconduct by employee.

  1. As used in this section, “voice stress analysis” means the use of a device that has the ability to electronically analyze the responses of an individual to a specific set of questions and to record the analysis, both digitally and on a graph.
  2. At any hearing or other employment procedure in which an employee is entitled to due process, no employer shall introduce the results of a voice stress analysis performed on an employee to prove misconduct by the employee.

Acts 2014, ch. 928, § 1.

Effective Dates. Acts 2014, ch. 928, § 3. July 1, 2014.

50-1-312. Adverse employment action for transporting or storing firearm or ammunition in employer parking area prohibited — Cause of action.

  1. For the purposes of this section:
    1. “Employee” means a natural person who performs services for an employer for valuable consideration and who possesses a valid handgun carry permit recognized in this state; and
    2. “Employer” means a person, association, or legal or commercial entity receiving services from an employee and, in return, giving compensation of any kind to the employee.
      1. No employer shall discharge or take any adverse employment action against an employee solely for transporting or storing a firearm or firearm ammunition in an employer parking area in a manner consistent with § 39-17-1313(a).
      2. An employee discharged, or subject to an adverse employment action, in violation of subdivision (b)(1)(A) shall have a cause of action against the employer to enjoin future acts in violation of this section and to recover economic damages plus reasonable attorney fees and costs.
      3. Any action brought under this section shall be filed in the chancery or circuit court having jurisdiction in the county where the alleged violation of subdivision (b)(1)(A) occurred.
    1. In any action brought pursuant to this section, the employee shall have the burden of establishing a prima facie case of discharge, or adverse employment action, based solely on the employee's transporting or storing a firearm or firearm ammunition in the employer's parking area in a manner consistent with § 39-17-1313(a). If the employee satisfies this burden, the burden shall then be on the employer to produce evidence that one (1) or more legitimate reasons existed for the employee's discharge or adverse employment action. The burden on the employer is one of production and not persuasion. If the employer produces such evidence, the presumption of discharge, or adverse employment action, raised by the employee's prima facie case is rebutted, and the burden shifts to the employee to demonstrate that the reason given by the employer was not the true reason for the employee's discharge, or adverse employment action, and that the stated reason was a pretext for discharge or adverse employment action. The allocations of burdens of proof set out in this subdivision (b)(2) shall apply at all stages of the proceedings, including motions for summary judgment. The employee at all times retains the burden of persuading the trier of fact that the employee has been the victim of discharge, or adverse employment action, based solely on the employee's adherence with § 39-17-1313(a).
    2. The employee has one (1) year from the date of termination of employment, or the date of adverse employment action, to file an action pursuant to this section.
  2. The presence of a firearm or ammunition within an employer's parking area in accordance with § 39-17-1313 does not by itself constitute a failure by the employer to provide a safe workplace.
  3. Except as otherwise provided in § 39-17-1313 for parking areas, nothing in this section shall be construed as prohibiting an employer from prohibiting firearms or firearm ammunition on the premises of the employer.

Acts 2015, ch. 80, § 1.

Compiler's Notes. Acts 2015, ch. 80, § 2 provided that the act shall apply to employee terminations, and adverse employment actions, occurring on and after July 1, 2015.

Effective Dates. Acts 2015, ch. 80, § 2. July 1, 2015.

Part 4
Private Pensions and Retirement Plans

50-1-401. “Private pension and retirement plan” defined — Separate trust account established for employee contributions.

  1. As used in this part, “private pension and retirement plan” means any plan not covered by the federal employee retirement income security program, the Tennessee consolidated retirement system, or any other governmentally regulated pension and retirement fund.
    1. Any person maintaining a private pension and retirement plan that receives its funding either partially or totally from the employees' pay shall deposit all money received for the plan in a separate trust account.
    2. The funds in this separate account can only be used for the costs of administering the plan and for providing the benefits that accrue to the members of the plan.

Acts 1978, ch. 834, § 1; T.C.A., § 50-401; T.C.A., § 50-801.

50-1-402. Violation — Penalty.

A violation of § 50-1-401, requiring all funds in a private pension and retirement fund to be deposited in a separate trust account, is a Class E felony.

Acts 1979, ch. 122, § 1; T.C.A., § 50-802; Acts 1989, ch. 591, § 46.

Cross-References. Penalty for Class E felony, § 40-35-111.

Part 5
Healthy Workplace Act

50-1-501. Short title.

This part shall be known and may be cited as the “Healthy Workplace Act.”

Acts 2014, ch. 997, § 1.

Compiler's Notes. Former part 5, §§ 50-1-50150-1-505, concerning maternity leave, was transferred to § 4-21-408 in 1988.

Effective Dates. Acts 2014, ch. 997, § 2. May 22, 2014.

Attorney General Opinions. Each “employer” may adopt a policy conforming to T.C.A. § 50-1-503(b).  When the employer is a local governmental entity, such as a county or a municipality, the question of who has authority within that local governmental entity to adopt such a policy is a matter of local law and will depend in each case on the particular charter of the local government, its ordinances, rules, and regulations. OAG 15-01, 2015 Tenn. AG LEXIS 1 (1/6/15).

The Healthy Workplace Act of 2014 does not create a new cause of action against state or local employers or against state or local employees for abusive conduct in the workplace.  It appears that when a state or local government complies with the policy-adoption requirement of T.C.A. § 50-1-503(b), that entity would, under certain circumstances, acquire a specific supplement to the immunity already applicable under the Governmental Tort Liability Act (GTLA) and the Tennessee Claims Commission Act. OAG 15-01, 2015 Tenn. AG LEXIS 1 (1/6/15).

The Healthy Workplace Act extends to quasi-governmental entities. “Employer” is defined in the Act as any agency, county, metropolitan government, municipality, or other political subdivision of the state. The definition of “agency” in the Act includes all boards, offices, and other agencies of the executive, legislative, or judicial branches of government. OAG 15-01, 2015 Tenn. AG LEXIS 1 (1/6/15).

50-1-502. Part definitions.

As used in this part:

  1. “Abusive conduct” means acts or omissions that would cause a reasonable person, based on the severity, nature, and frequency of the conduct, to believe that an employee was subject to an abusive work environment, such as:
    1. Repeated verbal abuse in the workplace, including derogatory remarks, insults, and epithets;
    2. Verbal, nonverbal, or physical conduct of a threatening, intimidating, or humiliating nature in the workplace; or
    3. The sabotage or undermining of an employee's work performance in the workplace;
  2. “Agency” means any department, commission, board, office or other agency of the executive, legislative or judicial branch of state government;
  3. “Employee” means an employee of any county, metropolitan government, municipality, or other political subdivision of this state;
  4. “Employer” means a private employer and a state or local governmental entity;
  5. “Harassment” means two (2) or more instances of contact serving no legitimate purpose directed at an employee, in connection with that person's status as an employee, that a reasonable person would consider alarming, threatening, intimidating, abusive, or emotionally distressing and that does or reasonably could interfere with the performance of the employee's duties; and
  6. “Instance of contact” means a direct communication or physical touching.

Acts 2014, ch. 997, § 1; 2019, ch. 214, § 1; 2019, ch. 331, § 1.

Compiler's Notes. Former part 5, §§ 50-1-50150-1-505, concerning maternity leave, was transferred to § 4-21-408 in 1988.

Amendments. The 2019 amendment by ch. 214 rewrote the definition of “employer” which read: “‘Employer’ means any agency, county, metropolitan government, municipality, or other political subdivision of this state.”

The 2019 amendment by ch. 331 added the definitions of “employee”, “harassment” and “instance of contact”.

Effective Dates. Acts 2014, ch. 997, § 2. May 22, 2014.

Acts 2019, ch. 214, § 3. April 23, 2019.

Acts 2019, ch. 331, § 3. May 10, 2019.

Attorney General Opinions. The Healthy Workplace Act extends to quasi-governmental entities. “Employer” is defined in the Act as any agency, county, metropolitan government, municipality, or other political subdivision of the state. The definition of “agency” in the Act includes all boards, offices, and other agencies of the executive, legislative, or judicial branches of government. OAG 15-01, 2015 Tenn. AG LEXIS 1 (1/6/15).

The Healthy Workplace Act of 2014 does not create a new cause of action against state or local employers or against state or local employees for abusive conduct in the workplace.  It appears that when a state or local government complies with the policy-adoption requirement of T.C.A. § 50-1-503(b), that entity would, under certain circumstances, acquire a specific supplement to the immunity already applicable under the Governmental Tort Liability Act (GTLA) and the Tennessee Claims Commission Act. OAG 15-01, 2015 Tenn. AG LEXIS 1 (1/6/15).

Each “employer” may adopt a policy conforming to T.C.A. § 50-1-503(b).  When the employer is a local governmental entity, such as a county or a municipality, the question of who has authority within that local governmental entity to adopt such a policy is a matter of local law and will depend in each case on the particular charter of the local government, its ordinances, rules, and regulations. OAG 15-01, 2015 Tenn. AG LEXIS 1 (1/6/15).

50-1-503. Development of model policy for employers to prevent abusive conduct in the workplace — Requirements of policy.

  1. No later than March 1, 2015, the Tennessee advisory commission on intergovernmental relations (TACIR) shall create a model policy for employers to prevent abusive conduct in the workplace. The model policy shall be developed in consultation with the department of human resources and interested municipal and county organizations including, but not limited to, the Tennessee municipal league, the Tennessee county services association, the municipal technical advisory service (MTAS), and the county technical assistance service (CTAS).
  2. The model policy created pursuant to subsection (a) shall:
    1. Assist employers in recognizing and responding to abusive conduct in the workplace; and
    2. Prevent retaliation against any employee who has reported abusive conduct in the workplace.
  3. Each employer may adopt the policy created pursuant to subsection (a) as a policy to address abusive conduct in the workplace.

Acts 2014, ch. 997, § 1.

Compiler's Notes. Former part 5, §§ 50-1-50150-1-505, concerning maternity leave, was transferred to § 4-21-408 in 1988.

Effective Dates. Acts 2014, ch. 997, § 2. May 22, 2014.

Attorney General Opinions. The Healthy Workplace Act extends to quasi-governmental entities. “Employer” is defined in the Act as any agency, county, metropolitan government, municipality, or other political subdivision of the state. The definition of “agency” in the Act includes all boards, offices, and other agencies of the executive, legislative, or judicial branches of government. OAG 15-01, 2015 Tenn. AG LEXIS 1 (1/6/15).

The Healthy Workplace Act of 2014 does not create a new cause of action against state or local employers or against state or local employees for abusive conduct in the workplace.  It appears that when a state or local government complies with the policy-adoption requirement of T.C.A. § 50-1-503(b), that entity would, under certain circumstances, acquire a specific supplement to the immunity already applicable under the Governmental Tort Liability Act (GTLA) and the Tennessee Claims Commission Act. OAG 15-01, 2015 Tenn. AG LEXIS 1 (1/6/15).

Each “employer” may adopt a policy conforming to T.C.A. § 50-1-503(b).  When the employer is a local governmental entity, such as a county or a municipality, the question of who has authority within that local governmental entity to adopt such a policy is a matter of local law and will depend in each case on the particular charter of the local government, its ordinances, rules, and regulations. OAG 15-01, 2015 Tenn. AG LEXIS 1 (1/6/15).

The Healthy Workplace Act of 2014 does not constitute an unlawful delegation of legislative authority in violation of the Tennessee Constitution. OAG 15-39, 2015 Tenn. AG LEXIS 40 (4/22/15).

If proposed legislation, HB 856/SB 815, 111th Tenn. Gen. Assem. (2019) [this bill did become law and was enacted as chapter 214 of the Public Acts of 2019], which would add private employers to the entities covered by the Healthy Workplace Act,  becomes law, private employers who adopted the statutorily required anti-bullying policies would receive the same immunity under the  Act as do public employers who adopt such policies. A private employer who had not adopted the model anti-bullying policy would not be immune from suit unless the employer had adopted an anti-bullying policy that satisfied the requirements of T.C.A. § 50-1-503(b). Furthermore, the proposed language that would be added to T.C.A. § 50-1-504 makes it clear that neither the Act nor the proposed legislation creates a cause of action against employers—public or private—who fail to adopt the model policy or a policy that satisfies the requirements of T.C.A. § 50-1-503(b). OAG 19-04, 2019 Tenn. AG LEXIS 4 (4/3/2019).

50-1-504. Immunity of employer when policy adopted — Cause of action against employer not created.

  1. Notwithstanding § 29-20-205, if an employer adopts the model policy created by TACIR pursuant to § 50-1-503(a) or adopts a policy that conforms to the requirements set out in § 50-1-503(b), then the employer is immune from suit for any employee's abusive conduct that results in negligent or intentional infliction of mental anguish. Nothing in this section limits the personal liability of an employee for any abusive conduct in the workplace.
  2. Nothing in this section creates a cause of action against an employer who does not adopt the model policy created by TACIR pursuant to § 50-1-503(a) or adopt a policy conforming to the requirements set out in § 50-1-503(b).

Acts 2014, ch. 997, § 1; 2019, ch. 214, § 2.

Compiler's Notes. Former part 5, §§ 50-1-50150-1-505, concerning maternity leave, was transferred to § 4-21-408 in 1988.

Amendments. The 2019 amendment, in (a), substituted “is immune” for “shall be immune” in the first sentence, and substituted “limits” for “shall be construed to limit” in the second sentence; and added (b).

Effective Dates. Acts 2014, ch. 997, § 2. May 22, 2014.

Acts 2019, ch. 214, § 3. April 23, 2019.

Attorney General Opinions. The Healthy Workplace Act extends to quasi-governmental entities. “Employer” is defined in the Act as any agency, county, metropolitan government, municipality, or other political subdivision of the state. The definition of “agency” in the Act includes all boards, offices, and other agencies of the executive, legislative, or judicial branches of government. OAG 15-01, 2015 Tenn. AG LEXIS 1 (1/6/15).

Each “employer” may adopt a policy conforming to T.C.A. § 50-1-503(b).  When the employer is a local governmental entity, such as a county or a municipality, the question of who has authority within that local governmental entity to adopt such a policy is a matter of local law and will depend in each case on the particular charter of the local government, its ordinances, rules, and regulations. OAG 15-01, 2015 Tenn. AG LEXIS 1 (1/6/15).

The Healthy Workplace Act of 2014 does not create a new cause of action against state or local employers or against state or local employees for abusive conduct in the workplace.  It appears that when a state or local government complies with the policy-adoption requirement of T.C.A. § 50-1-503(b), that entity would, under certain circumstances, acquire a specific supplement to the immunity already applicable under the Governmental Tort Liability Act (GTLA) and the Tennessee Claims Commission Act. OAG 15-01, 2015 Tenn. AG LEXIS 1 (1/6/15).

The Healthy Workplace Act of 2014 does not constitute an unlawful delegation of legislative authority in violation of the Tennessee Constitution. OAG 15-39, 2015 Tenn. AG LEXIS 40 (4/22/15).

If proposed legislation, HB 856/SB 815, 111th Tenn. Gen. Assem. (2019) [this bill did become law and was enacted as chapter 214 of the Public Acts of 2019], which would add private employers to the entities covered by the Healthy Workplace Act,  becomes law, private employers who adopted the statutorily required anti-bullying policies would receive the same immunity under the  Act as do public employers who adopt such policies. A private employer who had not adopted the model anti-bullying policy would not be immune from suit unless the employer had adopted an anti-bullying policy that satisfied the requirements of T.C.A. § 50-1-503(b). Furthermore, the proposed language that would be added to T.C.A. § 50-1-504 makes it clear that neither the Act nor the proposed legislation creates a cause of action against employers—public or private—who fail to adopt the model policy or a policy that satisfies the requirements of T.C.A. § 50-1-503(b). OAG 19-04, 2019 Tenn. AG LEXIS 4 (4/3/2019).

50-1-505. Injunction against person who commits harassment against employee of county, municipal, or metropolitan government.

A county, municipal, or metropolitan government may, through its attorney, seek an injunction against a person who commits harassment against an employee. The injunction may be sought in any court of competent jurisdiction having the power to grant injunctions. Nothing in this section shall be construed to authorize any cause of action unrelated to a person's status as an employee.

Acts 2019, ch. 331, § 2.

Effective Dates. Acts 2019, ch. 331, § 3. May 10, 2019.

50-1-506. Injunction against person who commits harassment against state employee.

  1. The state may, through the office of the attorney general, seek an injunction against a person who commits harassment against a state employee. The injunction may be sought in any court of competent jurisdiction having the power to grant injunctions. This section does not authorize any cause of action unrelated to a person's status as a state employee. This section does not authorize a court to issue an injunction prohibiting activities that are protected by the constitutions of this state or the United States, including, but not limited to, political speech.
  2. Notwithstanding § 50-1-502, as used in this section, “state employee” has the same meaning as defined in § 8-42-101.

Acts 2020, ch. 694, § 1.

Effective Dates. Acts 2020, ch. 694, § 2, June 11, 2020.

Part 6
Plant Closings and Reduction in Operations

50-1-601. Part definitions.

As used in this part, unless the context otherwise requires:

  1. “Employer” means any person, corporation or other entity that employs at least fifty (50) but not more than ninety-nine (99) full-time employees at a workplace located within this state, and that is not excluded or exempt from the requirements of the Employment Security Law, compiled in chapter 7 of this title;
  2. “Reduction in operations” means:
    1. The closure of a workplace, or a portion of the operations in the workplace, whereby the number of employees working within the workplace is permanently or indefinitely reduced by fifty (50) or more during any three-month period;
    2. The modernization of a workplace, or a portion of the operations in the workplace, whereby the number of employees working within the workplace is permanently or indefinitely reduced by fifty (50) or more during any three-month period;
    3. The relocation of a workplace, or a portion of the operations in the workplace, to another site located more than fifty (50) miles from the workplace, whereby the number of employees working within the workplace is permanently or indefinitely reduced by fifty (50) or more during any three-month period; or
    4. The implementation or application of any management policy within a workplace, whereby the number of employees working within the workplace is permanently or indefinitely reduced by fifty (50) or more during any three-month period; and
  3. “Workplace” means a factory, plant, office or other facility where employees produce goods or provide services.

Acts 1988, ch. 997, § 2; 1989, ch. 399, § 1.

Cross-References. State officials notified of plant closings or mass layoffs, § 50-1-104.

Law Reviews.

The Effect of the 1988 Federal Plant Closing Legislation on Tennessee Employers (Carol Daugherty Rasnic), 25 No. 5 Tenn. B.J. 26 (1989).

50-1-602. Notification of employees and state.

  1. Upon notifying affected employees of a reduction in operations, the employer shall then notify state government by telephoning the commissioner of labor and workforce development and informing the commissioner of the circumstances of the reduction in operations, as well as the number of employees affected.
    1. The commissioner of labor and workforce development shall obtain and operate a toll-free telephone line for the purpose of receiving and encouraging employer compliance with subsection (a).
    2. The commissioner shall regularly undertake appropriate activities to inform and remind employers of the existence of the toll-free telephone line and of the requirements contained in subsection (a).
  2. Upon receiving initial notification of a reduction in operations, the commissioner shall immediately advise the commissioners of economic and community development, education, health, human services, and mental health and substance abuse services, the executive director of the state board of education, and the chancellor of the board of regents of the state university and community college system, concerning the circumstances of the reduction in operations and the number of affected employees.

Acts 1988, ch. 997, § 3; 1989, ch. 399, § 3; 1999, ch. 520, § 41; 2010, ch. 1100, § 85; 2012, ch. 575, § 2.

Compiler's Notes. The toll-free telephone number referred to in (b) is: 1-800-255-5872.

Acts 2010, ch. 1100, § 153 provided that the commissioner of mental health and developmental disabilities, the commissioner of mental health, the commissioner of intellectual and developmental disabilities, and the commissioner of finance and administration are authorized to promulgate rules and regulations to effectuate the purposes of the act. All such rules and regulations shall be promulgated in accordance with the provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Cross-References. State officials notified of plant closings or mass layoffs, § 50-1-104.

Law Reviews.

The Effect of the 1988 Federal Plant Closing Legislation on Tennessee Employers (Carol Daugherty Rasnic), 25 No. 5 Tenn. B.J. 26 (1989).

50-1-603. Provisions not applicable in certain situations.

Section 50-1-602(a) shall not apply to any reduction in operations that:

  1. Results solely from a labor dispute;
  2. Occurs at a construction site or other temporary workplace; or
  3. Results from seasonal factors, as determined by the rules of the commissioner of labor and workforce development to be customary within the business or industry.

Acts 1988, ch. 997, § 4; 1989, ch. 399, § 3; 1999, ch. 520, § 41.

50-1-604. Rules.

The commissioner of labor and workforce development shall promulgate rules necessary to implement this part in an orderly and efficient manner, in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Acts 1988, ch. 997, § 5; 1989, ch. 399, § 3; 1999, ch. 520, § 41.

Part 7
Tennessee Lawful Employment Act

50-1-701. Short title.

This part shall be known and may be cited as the “Tennessee Lawful Employment Act.”

Acts 2011, ch. 436, § 5.

NOTES TO DECISIONS

1. Applicability.

Recent amendments to the Tennessee Public Protection Act, or the Whistleblower Act, T.C.A. § 50-1-304, at T.C.A. §§ 50-1-304(f) and 50-1-701, were inapplicable to a case where the cause of action accrued before June 10, 2011. Williams v. City of Burns, — S.W.3d —, 2012 Tenn. App. LEXIS 104 (Tenn. Ct. App. Feb. 15, 2012), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 353 (Tenn. May 21, 2012).

50-1-702. Part definitions.

As used in this part:

  1. “Commissioner” means the commissioner of labor and workforce development, or the commissioner's designee;
  2. “Department” means the department of labor and workforce development, unless the context provides otherwise;
  3. “Department of homeland security” means the United States department of homeland security, or the appropriate agency or division within such department, or any successor department, agency, or division thereto;
  4. “Economic development incentive” means any grant, loan or performance-based incentive from any governmental entity;
  5. “Employee” means any individual for whom an employer must complete a Form I-9 pursuant to federal law and regulations, and does not include an independent contractor as defined by 8 U.S.C. § 1324a and its regulations;
  6. “Employer” means private employers and governmental entities;
  7. “E-Verify program” means the federal electronic work authorization verification service provided by the department of homeland security pursuant to the federal Basic Pilot Program Extension and Expansion Act of 2003, P.L. 108-156, or any successor program thereto;
  8. “Governmental entity” means this state or any political subdivision which exercises governmental powers under the laws of this state and uses tax revenues;
  9. “Internet access” means Internet service that is installed and accessible at an employer's place of business;
  10. “License” means any certificate, approval, registration, or similar form of permission issued by a local government with respect to business licensure as described in title 67, chapter 4;
  11. “Non-employee” means any individual, other than an employee, paid directly by the employer in exchange for the individual's labor or services;
  12. “Person” means an individual, corporation, partnership, or other legal entity;
  13. “Private employer” means any person who is required by federal law and regulations to report, for any purpose, remuneration paid to at least six (6) employees; and
  14. “Tax form” means any form issued by the United States internal revenue service, including, but not limited to, Form W-2, Form-1099 or Form-1040.

Acts 2011, ch. 436, § 5; 2012, ch. 736, § 1.

Compiler's Notes. The Basic Pilot Program Extension and Expansion Act of 2003, P.L. 108-156, referred to in this section, amended 8 U.S.C. §§ 1153 note, 1324a note, 1360 note, and appears in part as 8 U.S.C. § 1153 note.

50-1-703. Duties of employers — Office of employment verification assistance — Application — Complaints for violations — Commissioner's order on finding of violation — Penalties.

    1. Employers shall:
      1. For non-employees, request and maintain a copy, pursuant to subdivision (a)(4), of any one (1) of the following documents prior to the non-employee providing labor or services:
        1. A valid Tennessee driver license or photo identification license issued by the department of safety;
        2. A valid driver license or photo identification license issued by another state where the issuance requirements are at least as strict as those in this state, as determined by the department. The commissioner, in consultation with the department of safety, shall determine which states have issuance requirements that are at least as strict as this state, and shall develop, and periodically update, a publicly accessible list of such states on the department's web site;
        3. An official birth certificate issued by a United States state, jurisdiction or territory;
        4. A United States government-issued certified birth certificate;
        5. A valid, unexpired United States passport;
        6. A United States certificate of birth abroad (DS-1350 or FS-545);
        7. A report of birth abroad of a citizen of the United States (FS-240);
        8. A certificate of citizenship (N560 or N561);
        9. A certificate of naturalization (N550, N570 or N578);
        10. A United States citizen identification card (I-197 or I-179); or
        11. Valid alien registration documentation or other proof of current immigration registration recognized by the United States department of homeland security that contains the individual's complete legal name and current alien admission number or alien file number (or numbers if the individual has more than one (1) number); and
      2. For employees, either:
        1. Request and maintain a copy, pursuant to subdivision (a)(4), of any one (1) of the documents described in (a)(1)(A)(i)-(xi) prior to the employee providing labor or services; or
        2. (a)  Enroll in the E-Verify program prior to hiring an employee;
          1. (ii)  (a)  Enroll in the E-Verify program prior to hiring an employee;
          2. Verify the work authorization status of the employee hired by using the E-Verify program; and
          3. Maintain a record of any results generated by the E-Verify program for that particular employee in a manner consistent with subdivision (a)(4).
      1. An employer who verifies the work authorization status of an employee pursuant to subdivision (a)(1)(B)(ii) has not violated § 50-1-103(b) with respect to the particular employee if the employer meets the requirements in § 50-1-103(d).
      2. No employer shall prevail in any proceeding where a violation of § 50-1-103 is alleged if the sole evidence presented by the employer is evidence of compliance with subdivisions (a)(1)(A) or (a)(1)(B)(i).
    2. No employer shall be in violation of subdivision (a)(1)(B) or subsection (b) if the employer has requested, but has not received, assistance pursuant to subdivision (a)(6).
    3. An employer shall maintain:
      1. A record of results generated by the E-Verify program pursuant to (a)(1)(B)(ii) with respect to an employee for three (3) years after the date of the employee's hire or for one (1) year after the employee's employment is terminated, whichever is later; and
      2. Documentation received pursuant to subdivisions (a)(1)(A) and (a)(1)(B)(i) for three (3) years after the documentation is received by the employer or for one (1) year after the employee or non-employee ceases to provide labor or services for the employer, whichever is later.
    4. Nothing in this section shall be construed to prevent an employer from contracting with or otherwise obtaining the services of an E-Verify employer agent, or similar third party, for the purpose of complying with subdivision (a)(1)(B)(ii).
    5. There is created within the department the office of employment verification assistance. The department is authorized to enter into any memorandum of understanding or other agreement required by the E-Verify program to operate this office. If an employer does not have Internet access, then the office shall, at no charge to the employer, enroll the employer in the E-Verify program or conduct work authorization status checks of the employer's employees by using the E-Verify program; provided, that the employer signs a prescribed form, under penalty of perjury, attesting to the employer's lack of Internet access and completes any paperwork required by the E-Verify program to permit the office to provide such assistance.
    6. Except as otherwise provided in subsection (c), the department shall conduct an investigation concerning an employer's compliance with subdivision (a)(1) or subsection (b) in conjunction with any pending inquiry, investigation, or inspection of the employer by the department, or any successor agencies thereto. If the commissioner determines that the investigation report contains evidence of a violation of subdivision (a)(1) or subsection (b), then the commissioner shall issue a notice and initial order pursuant to subdivision (d)(1).
  1. Notwithstanding subdivision (a)(1)(B), private employers with fifty (50) or more employees, on or after January 1, 2017, shall comply with the requirements in subdivision (a)(1)(B)(ii); provided, that such employers shall only be required to use the E-Verify program to verify the work authorization status of employees hired on or after January 1, 2017.
    1. Any lawful resident of this state or employee of a federal agency may file a complaint alleging a violation of subdivision (a)(1) or subsection (b) to the department. The complaint shall, at a minimum, include the name of the individual filing the complaint, and satisfactory evidence of a violation as determined by the commissioner.
    2. On receipt of a complaint, the commissioner shall determine if the complaint contains satisfactory evidence of a violation of subdivision (a)(1) or subsection (b); provided, that the commissioner shall inform the individual filing the complaint the basis for such determination. The commissioner shall not investigate complaints that are based solely on race, color or national origin.
    3. If the commissioner determines that the investigation report contains evidence of a violation of subdivision (a)(1) or subsection (b), then the commissioner shall issue a notice and initial order pursuant to subdivision (d)(1). Upon request by the employer, the department shall provide the employer with the name of the individual filing a complaint if a complaint is filed.
    4. [Deleted by 2016 amendment.]
    1. If the commissioner determines that an employer has violated subdivision (a)(1) or subsection (b), pursuant to subdivision (a)(7) or (c)(3), or determines that an employer has violated § 50-1-704, then the commissioner shall issue a notice and initial order that shall include, at a minimum:
      1. The commissioner's findings and determinations;
      2. The penalties that will apply pursuant to subsections (f)-(j);
      3. The process to request a contested case hearing; and
      4. The process by which the commissioner shall waive all penalties for a first violation as provided in subdivision (d)(3).
    2. An employer shall have the right to appeal, pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, a notice and initial order issued by the commissioner pursuant to this section; provided, that the employer sends written notice to the commissioner within thirty (30) days of the date of the notice and initial order. If the employer fails to send such written notice, then the contested case hearing process is waived.
    3. The commissioner shall issue a warning in lieu of all penalties for a first violation of subdivision (a)(1) or subsection (b) if:
      1. The employer complies with all remedial action requested by the department to remedy the violation of subdivision (a)(1) and subsection (b) within forty-five (45) days of the date of the notice and initial order; and
      2. The commissioner determines that the violation of subdivision (a)(1) or subsection (b) was not a knowing violation.
  2. If the commissioner does not issue a warning in lieu of penalties pursuant to subdivision (d)(3), then the notice and initial order shall be deemed a final order not subject to further review. If there is a contested case hearing, the commissioner shall issue a final order. If the employer does not timely remedy the violations within forty-five (45) days of receipt of the notice and initial order, the notice and initial order shall be deemed a final order, not subject to further review. If a contested case hearing is conducted or a final order is otherwise required to be issued, then the commissioner shall issue a final order. The final order shall include, at a minimum, the types of evidence required from the private employer in order to avoid suspension of the private employer's license under subdivision (f)(3).
    1. If the commissioner issues a final order, or a notice and initial order is deemed a final order, not subject to further review, for a violation of subdivision (a)(1) by a private employer, or a violation of § 50-1-704, then the commissioner shall assess the following civil penalties:
      1. Five hundred dollars ($500) for a first violation;
      2. One thousand dollars ($1,000) for a second violation; or
      3. Two thousand five hundred dollars ($2,500) for a third or subsequent violation.
      1. In addition to the civil penalties provided in subdivision (f)(1), the commissioner shall also assess the following civil penalties:
        1. For a first violation, five hundred dollars ($500) for each employee or non-employee not verified pursuant to subdivisions (a)(1)(A) and (B);
        2. For a second violation, one thousand dollars ($1,000) for each employee or non-employee not verified pursuant to subdivisions (a)(1)(A) and (B); or
        3. For a third or subsequent violation, two thousand five hundred dollars ($2,500) for each employee or non-employee not verified pursuant to subdivisions (a)(1)(A) and (B).
      2. In addition to the civil penalties provided in subdivisions (f)(1) and (f)(2)(A), the commissioner shall also assess a monetary penalty in the amount of five hundred dollars ($500) for any employer that knowingly violates subsection (b) and additional penalties in the amount of five hundred dollars ($500) per day for each day that such violation of subsection (b) continues to exist, beginning forty-five (45) days after the notice and initial order is received by the employer.
    2. The private employer shall submit to the commissioner evidence of compliance with subdivision (a)(1) and subsection (b) within forty-five (45) days of the final order. If the private employer fails to submit such documentation, then the commissioner shall request an order consistent with § 4-5-320, requiring the appropriate local government with respect to business licensure pursuant to title 67, chapter 4, to suspend the private employer's license until the employer remedies the violation; provided, however, if the private employer's license has also been suspended pursuant to § 50-1-103(e)(1)(A) or (B), then the license shall remain suspended until the expiration of the period provided for in § 50-1-103(e)(1)(A) or (B).
  3. A second or subsequent violation of subdivision (a)(1) or subsection (b) shall accrue from a separate inquiry conducted under subdivision (a)(7) or (c)(3).
  4. All moneys collected pursuant to this section shall be deposited into the lawful employment enforcement fund created by § 50-1-708.
  5. The penalties described in this section shall not be mutually exclusive, and may be imposed in conjunction with any applicable penalties as provided by law.
  6. If the commissioner issues a final order, or a notice and initial order is deemed a final order, not subject to further review, for a violation of subdivision (a)(1) or subsection (b) by a governmental entity, then the commissioner shall post the violation on the department's web site as provided in § 50-1-705. If the employer does not timely remedy the violations within forty-five (45) days of receipt of the notice and initial order, the notice and initial order shall be deemed a final order, not subject to further review. If a contested case hearing is conducted or a final order is otherwise required to be issued, then the commissioner shall issue a final order.

Acts 2011, ch. 436, § 5; 2013, ch. 147, §§ 1-6; 2016, ch. 828, §§ 1-19, 21.

Compiler's Notes. Acts 2016, ch. 828, § 22 provided that the act, which amended this section, shall apply to violations occurring on and after July 1, 2016.

Amendments. The 2016 amendment, in (a)(1)(A) and (a)(1)(B)(i), deleted “on or after the phase-in period applicable to the particular size employer described in subsection (b)” following “labor or services”; in (a)2)(B)(ii)(a), deleted “on or after the applicable phase-in period described in subsection (b)”; in (a)(3), inserted “or subsection (b)” following “subdivision “(a)(1)(B)”; in (a)(6), deleted “, and shall create no more than one (1) full-time administrative position to staff the office” following “operate this office,”; rewrote (a)(7), which read: “Except as otherwise provided in subsection (c), the department shall conduct an inquiry concerning an employer's compliance with subdivision (a)(1) in conjunction with any pending inquiry, investigation, or inspection of the employer by the department's division of labor standards or workers' compensation division, or any successor divisions thereto. When conducting an inquiry, the commissioner shall provide written notification to the employer of the inquiry and a request for documentation establishing compliance with subdivision (a)(1). The employer shall provide such documentation to the commissioner within thirty (30) days from the date the employer received the department's request. If the employer fails to respond with documentation establishing compliance with subdivision (a)(1) within the thirty-day period, then the commissioner shall issue an initial order pursuant to subsection (d).”; rewrote (b), which read:“(b)(1) On or after January 1, 2012, subsection (a) shall apply to: “(A) Governmental entities; and “(B) Private employers with employees of five hundred (500) or more. “(2) On or after July 1, 2012, subsection (a) shall apply to private employers with employees of two hundred (200) to four hundred ninety-nine (499). “(3) On or after January 1, 2013, subsection (a) shall apply to private employers with employees of six (6) to one hundred ninety-nine (199).”; in (c)(1) and (c)(2), added all occurrences of “or subsection (b)” and “and subsection (b)”; rewrote (c)(3), which read: “If the commissioner determines that the complaint contains satisfactory evidence of a violation of subdivision (a)(1), then the commissioner shall conduct an inquiry. When conducting an inquiry, the commissioner shall provide written notification to the employer of the alleged violation of subdivision (a)(1) and a request for documentation establishing compliance with subdivision (a)(1). The employer shall provide such documentation to the commissioner within thirty (30) days from the date the employer received the department's request. Upon request by the employer, the department shall provide the employer with the name of the individual filing a complaint.”; deleted (c)(4), which read: “Upon the expiration of the thirty-day period in subdivision (c)(3), the commissioner shall make a determination of whether a violation of subdivision (a)(1) occurred. If the employer fails to provide documentation establishing compliance with subdivision (a)(1) within the thirty-day period, then the commissioner shall issue an initial order pursuant to subdivision (d)(1). If documentation is submitted within the thirty-day period, then the commissioner shall determine whether there is clear and convincing evidence of a violation of subdivision (a)(1) based on the documentation submitted, the evidence from the complaint, and other applicable evidence.”; in (d)(1), in the first sentence, inserted “or subsection (b),” following “violated subdivision (a)(1),” substituted “(c)(3)” for “(c)(4)” and “issue a notice and initial order” for “issue an initial order”; in (d)(1)(B), substituted “pursuant to subsections (f)-(j)” for “if a final issue is ordered”; in (d)(2), substituted “a notice and initial order” for “an initial order” and “the notice and initial order” for “the initial order”; in (d)(3)(A), substituted  “forty-five (45) days” for “sixty (60) days” and “notice and initial order” for “initial order”; in (e), following “then, the” in the first sentence, substituted “notice and initial order shall be deemed a final order not subject to further review. If there is a contested case hearing, the commissioner shall issue a final order. If the employer does not timely remedy the violations within forty-five (45) days of receipt of the notice and initial order, the notice and initial order shall be deemed a final order, not subject to further review.” for “commissioner shall issue a final order on the date the contested case hearing concludes or is waived and assess penalties in accordance with subsections (f)-(j).”; at the beginning of (f)(1), substituted the present language for “If the commissioner issues a final order for a violation of subdivision (a)(1) by a private employer, or a violation of § 50-1-704, then the commissioner shall assess”; rewrote (f)(2), which read: “In addition to the civil penalties provided in subdivision (f)(1), the commissioner shall also assess the following civil penalties:“(A) For a first violation, five hundred dollars ($500) for each employee or non-employee not verified pursuant to subdivisions (a)(1)(A) and (B);“(B) For a second violation, one thousand dollars ($1,000) for each employee or non-employee not verified pursuant to subdivisions (a)(1)(A) and (B); or“(C) For a third or subsequent violation, two thousand five hundred dollars ($2,500) for each employee or non-employee not verified pursuant to subdivisions (a)(1)(A) and (B).” ; in (f)(3), in the first sentence, substituted “subdivision (a)(1) or subsection (b) within forty-five (45) days” for “subdivision (a)(1) within sixty (60) days”; in (g), substituted “subdivision (a)(1) or subsection (b)” for “subdivision (a)(1)”; and rewrote (j), which read: “If the commissioner issues a final order for a violation of subdivision (a)(1) by a governmental entity, then the commissioner shall post the violation on the department's web site as provided in § 50-1-705.”

Effective Dates. Acts 2016, ch. 828, § 22. July 1, 2016.

50-1-704. Employer's knowing misclassification to avoid requirements.

  1. If the department determines that an employer knowingly misclassified an individual in order to avoid the requirements of this part or chapters 1, 2, 6 or 7 of this title, then the department shall:
    1. Share the findings and information from its investigations with divisions within the department and with the department of commerce and insurance; and
    2. Pursue appropriate sanctions against the employer as provided by law including, but not limited to, sanctions provided in this part and chapters 1, 2, 6 and 7 of this title.
  2. The department and its divisions are hereby authorized to execute any necessary memorandums of understanding to allow the sharing of such findings and information as required by this section.

Acts 2011, ch. 436, § 5.

50-1-705. Posting of list of employers against whom final orders issued.

  1. Beginning February 1, 2012, and on a monthly basis thereafter, the department shall post a publicly accessible list on the department's web site of any employer against whom a final order has been issued pursuant to this part.
  2. The list required to be posted pursuant to this section shall state, at a minimum, the employer's name, the place of business of a private employer where the violation occurred, a brief description of the violation, a designation of the violation as a first or subsequent violation, and any penalties that have been assessed against the employer.
  3. The list shall remain on the web site for such time as determined by the commissioner.
  4. The department shall electronically transmit a report to each member of the general assembly of the total number of final orders issued pursuant to this part, and the total number of violations of § 12-3-309, by December 1, 2016, and each December 1 thereafter.

Acts 2011, ch. 436, § 5; 2016, ch. 676, § 1.

Amendments. The 2016 amendment added (d).

Effective Dates. Acts 2016, ch. 676, § 2. July 1, 2016.

50-1-706. Protection against retaliation.

Any individual alleging a violation of this part shall have all protections under §§ 8-50-116 and 50-1-304, and any other applicable protections as provided by law.

Acts 2011, ch. 436, § 5.

50-1-707. Compliance deadline.

On or after January 1, 2012, in addition to any other requirement to receive an economic development incentive, a private employer shall be in compliance with this part.

Acts 2011, ch. 436, § 5.

50-1-708. Lawful employment enforcement fund.

  1. There is created in the state treasury a fund to be known as the lawful employment enforcement fund. Moneys collected by the department pursuant to this part shall be deposited in this fund and shall only be used by the department to implement and administer the purposes set forth in this part, including, but not limited to, enforcement and education. Moneys in the fund shall not revert to the general fund of the state, but shall remain available to be used as provided for in this section.
  2. Interest accruing on investments and deposits of the lawful employment enforcement fund shall be credited to such account, shall not revert to the general fund, and shall be carried forward into each subsequent fiscal year.
  3. Moneys in the lawful employment enforcement fund account shall be invested by the state treasurer in accordance with § 9-4-603.

Acts 2011, ch. 436, § 5.

50-1-709. Termination of employment of illegal aliens.

If an employer fails to terminate the employment of any individual for whom the employer receives a final non-confirmation result from the E-Verify program, then the department may consider such fact when making a determination pursuant to § 50-1-103.

Acts 2011, ch. 436, § 5.

50-1-710. Enforcement without prejudice.

This part shall be enforced without regard to race, color, or national origin.

Acts 2011, ch. 436, § 5.

50-1-711. Compliance with federal immigration law.

Nothing in this part shall be construed to abrogate any obligations by an employer to comply with federal immigration law, including, but not limited to, the proper completing and maintaining of federal employment eligibility verification forms or documents.

Acts 2011, ch. 436, § 5.

50-1-712. Interpretation as fully consistent with federal immigration and labor laws.

This part shall be interpreted so as to be fully consistent with all federal laws, including, but not limited to, federal laws regulating immigration and labor.

Acts 2011, ch. 436, § 5.

50-1-713. Exemption when E-Verify program suspended or not operational.

An employer shall not be in violation of this part during any time period in which the E-Verify program is suspended or not operational.

Acts 2011, ch. 436, § 5.

50-1-714. Rules and regulations.

The commissioners of labor and workforce development and safety are authorized to promulgate rules and regulations to effectuate the purposes of this part. All rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Acts 2011, ch. 436, § 6.

50-1-715. Expiration of federal electronic work authorization verification system.

If the federal electronic work authorization verification service provided by the United States department of homeland security pursuant to the federal Basic Pilot Program Extension and Expansion Act of 2003, P.L. 108-156, or any successor program, expires and a successor program is not implemented prior to such expiration date, then this part shall cease to be effective as of such expiration date.

Acts 2011, ch. 436, § 7.

Compiler's Notes. The Basic Pilot Program Extension and Expansion Act of 2003, P.L. 108-156, referred to in this section, amended 8 U.S.C. §§ 1153 note, 1324a note, 1360 note, and appears in part as 8 U.S.C. § 1153 note.

Part 8
Retaliatory Discharge

50-1-801. Burden of proof in case of retaliatory discharge.

In any civil cause of action alleging wrongful discharge in violation of Tennessee public policy, including, but not limited to a discharge in retaliation for the exercise of rights under the Tennessee workers' compensation law, the plaintiff shall have the burden of establishing a prima facie case of retaliatory discharge. If the plaintiff satisfies this burden, the burden shall then be on the defendant to produce evidence that one (1) or more legitimate, nondiscriminatory reasons existed for the plaintiff's discharge. The burden on the defendant is one of production and not persuasion. If the defendant produces such evidence, the presumption of discrimination raised by the plaintiff's prima facie case is rebutted, and the burden shifts to the plaintiff to demonstrate that the reason given by the defendant was not the true reason for the plaintiff's discharge and that the stated reason was a pretext for unlawful retaliation. The foregoing allocations of burdens of proof shall apply at all stages of the proceedings, including motions for summary judgment. The plaintiff at all times retains the burden of persuading the trier of fact that the plaintiff has been the victim of unlawful retaliation or wrongful discharge.

Acts 2011, ch. 461, § 3.

Code Commission Notes.

Acts 2011, ch. 461, § 3 purported to enact a new part 7, § 50-1-701. Part 7 was previously enacted by Acts 2011, ch. 436, § 5; therefore, the enactment by Acts 2011, ch. 461, § 3 was designated as part 8, § 50-1-801 by the code commission.

Compiler's Notes. Acts 2011, ch. 461, § 4 provided that the act, which enacted this section, shall apply to all causes of action accruing on or after June 10, 2011.

NOTES TO DECISIONS

1. Construction.

Statute does not in itself provide a cause of action; rather, that statute supplies a burden of proof relevant to wrongful discharge claims. Clark v. Metro. Gov't of Nashville, — S.W.3d —, 2017 Tenn. App. LEXIS 226 (Tenn. Ct. App. Apr. 3, 2017).

2. Burdens of Proof.

Circuit court properly granted summary judgment to an employer on its former internal police officers'  claims for employment discrimination and retaliation because they failed to establish a prima facie case of racial or age discrimination where they were all terminated together despite color or age, the basis for retaliation cited by five the officers occurred after they were terminated, and the other two officers'  claims were barred inasmuch as they accepted severance agreements and signed release Lawrence v. Chattanooga-Hamilton Cty. Hosp. Auth., — S.W.3d —, 2017 Tenn. App. LEXIS 674 (Tenn. Ct. App. Oct. 6, 2017).

Part 9
Exclusive Bargaining Representative

50-1-901. Designating an exclusive bargaining representative.

  1. All employees and employers in this state, when seeking to designate an exclusive bargaining representative through an election permitted by state or federal law, have the right to make such designation by secret ballot, when secret ballot is permitted by such law; under such circumstances, no alternative means of designation shall be used in this state as convincing evidence of employee majority support.
  2. Any agreement, understanding, or practice, written or oral, implied or expressed, between any labor organization and an employer that violates the rights of employees as guaranteed by this section shall be null and void.
  3. This section shall not apply to employee representation agreements:
    1. Entered into prior to July 1, 2011; or
    2. Involving both employees within and without this state when the employer conducted business within this state prior to July 1, 2011.

Acts 2011, ch. 502, § 1.

Code Commission Notes.

Acts 2011, ch. 502, § 1 purported to enact a new part 7, § 50-1-701. Part 7 was previously enacted by Acts 2011, ch. 436, § 5; therefore, the enactment by Acts 2011, ch. 502, § 1 was designated as part 9, § 50-1-901 by the code commission.

Law Reviews.

Does “Why” or “What” Matter: Should Section 302 Apply to Card Check Neutrality Agreements, 45 U. Mem. L. Rev. 249 (2014).

Attorney General Opinions. Acts 2011, ch. 502 does not conflict with federal law and is not preempted by federal law; it does not violate the United States Constitution.  OAG 11-54, 2011 Tenn. AG LEXIS 56 (7/6/11).

Part 10
Employee Online Privacy Act of 2014

50-1-1001. Short title.

This part shall be known and may be cited as the “Employee Online Privacy Act of 2014.”

Acts 2014, ch. 826, § 2.

Compiler's Notes.  Acts 2014, ch. 826, § 6 provided that the act, which enacted this part, shall not apply to a contract entered into prior to January 1, 2015, that permits an employer action prohibited by this act unless or until the contract is renewed on or after January 1, 2015.

Effective Dates. Acts 2014, ch. 826, § 6. January 1, 2015.

50-1-1002. Part definitions.

As used in this part:

  1. “Adverse action” means to discharge, threaten, or otherwise discriminate against an employee in any manner that affects the employee's employment, including compensation, terms, conditions, location, rights, immunities, promotions, or privileges;
  2. “Applicant” means an individual who has applied for employment with an employer;
  3. “Employer” means a person or entity that employs one (1) or more employees and includes the state and its political subdivisions and an agent, representative, or designee of the employer;
  4. “Law enforcement agency” has the same meaning as defined in § 39-17-314; and
  5. “Personal Internet account”:
    1. Means an online account that is used by an employee or applicant exclusively for personal communications unrelated to any business purpose of the employer; and includes any electronic medium or service where users may create, share or view content, including, emails, messages, instant messages, text messages, blogs, podcasts, photographs, videos or user-created profiles; and
    2. Does not include an account created, maintained, used, or accessed by an employee or applicant for business-related communications or for a business purpose of the employer.

Acts 2014, ch. 826, § 3.

Compiler's Notes.  Acts 2014, ch. 826, § 6 provided that the act, which enacted this part, shall not apply to a contract entered into prior to January 1, 2015, that permits an employer action prohibited by this act unless or until the contract is renewed on or after January 1, 2015.

Effective Dates. Acts 2014, ch. 826, § 6. January 1, 2015.

50-1-1003. Prohibited actions by employers — Permissible actions.

  1. An employer shall not:
    1. Request or require an employee or an applicant to disclose a password that allows access to the employee's or applicant's personal Internet account;
    2. Compel an employee or an applicant to add the employer or an employment agency to the employee's or applicant's list of contacts associated with a personal Internet account;
    3. Compel an employee or an 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 employee's or applicant's personal Internet account; or
    4. Take adverse action, fail to hire, or otherwise penalize an employee or applicant because of a failure to disclose information or take an action specified in subdivisions (a)(1)-(3).
  2. Unless otherwise provided by law, an employer is not prohibited from:
    1. Requesting or requiring an employee to disclose a username or password required only to gain access to:
      1. An electronic communications device supplied by or paid for wholly or in part by the employer; or
      2. An account or service provided by the employer that is obtained by virtue of the employee's employment relationship with the employer, or used for the employer's business purposes;
    2. Disciplining or discharging an employee for transferring the employer's proprietary or confidential information or financial data to an employee's personal Internet account without the employer's authorization;
    3. Conducting an investigation or requiring an employee to cooperate in an investigation if:
      1. 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; or
      2. The employer has specific information about an unauthorized transfer of the employer's proprietary information, confidential information, or financial data to an employee's personal Internet account;
    4. Restricting or prohibiting an employee's access to certain web sites 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, in accordance with state and federal law;
    5. Monitoring, reviewing, accessing, or blocking electronic data stored on an electronic communications device supplied by or paid for wholly or in part by the employer, or stored on an employer's network, in accordance with state and federal law;
    6. Complying with a duty to screen employees or applicants before hiring or to monitor or retain employee communications:
      1. That is established under federal law or by a “self-regulatory organization”, as defined in the Securities and Exchange Act of 1934, 15 U.S.C. § 78c(a);
      2. For purposes of law enforcement employment; or
      3. For purposes of an investigation into law enforcement officer conduct performed by a law enforcement agency; or
    7. Viewing, accessing, or using information about an employee or applicant that can be obtained without violating subsection (a) or information that is available in the public domain.
  3. Conducting an investigation or requiring an employee to cooperate in an investigation as specified in subdivision (b)(3) includes requiring the employee to share the reported content or information in order to make a factual determination.
    1. This part does not create a duty for an employer to search or monitor the activity of a personal Internet account.
    2. An employer is not liable under this part for a failure to request or require that an employee or applicant grant access to, allow observation of, or disclose information that allows access to or observation of the employee's or applicant's personal Internet account.

Acts 2014, ch. 826, § 2.

Compiler's Notes.  Acts 2014, ch. 826, § 6 provided that the act, which enacted this part, shall not apply to a contract entered into prior to January 1, 2015, that permits an employer action prohibited by this act unless or until the contract is renewed on or after January 1, 2015.

Effective Dates. Acts 2014, ch. 826, § 4. January 1, 2015.

50-1-1004. Severability.

If any provision of this part or the application of any provision of this part to any person or circumstance is held invalid, the invalidity shall not affect other provisions or applications of the part that can be given effect without the invalid provision or application, and to that end, the provisions of this part are declared to be severable.

Acts 2014, ch. 826, § 5.

Compiler's Notes.  Acts 2014, ch. 826, § 6 provided that the act, which enacted this part, shall not apply to a contract entered into prior to January 1, 2015, that permits an employer action prohibited by this act unless or until the contract is renewed on or after January 1, 2015.

Effective Dates. Acts 2014, ch. 826, § 6. January 1, 2015.

Chapter 2
Wage Regulations

Part 1
General Provisions

50-2-101. Prospective employee to be informed as to wages — Exceptions — Enforcement.

  1. As used in this section, “workshops and factories” includes manufacturing, mills, mechanical, electrical, mercantile, art, and laundering establishments, printing, telegraph, and telephone offices, department stores, or any kind of establishment where labor is employed or machinery is used; provided, that domestic service and agricultural pursuits are excluded.
  2. It is unlawful for any proprietor, foreman, owner or other person to employ, permit or suffer to work for hire, in, about, or in connection with any workshop or factory any person whatsoever without first informing the employee of the amount of wages to be paid for the labor. This shall not apply to farm labor. Nothing in this section shall apply to railroad companies engaged in interstate commerce and subject to the federal Railway Labor Act, compiled in 45 U.S.C. § 151 et seq.
    1. The failure on the part of any proprietor, foreman, owner or other person in charge of any industry named in subsection (a) to inform any employee of the wages to be paid as provided in this section is a Class C misdemeanor.
    2. Nothing in this section shall be so construed to preclude the employment of any person or persons on a piece-work basis or on a commission basis.
  3. The department of labor and workforce development shall enforce this section.

Acts 1915, ch. 144, § 1; Shan., § 4433a95; Code 1932, § 5324; Acts 1935, ch. 73, §§ 1, 2; C. Supp. 1950, §§ 5330.1, 5330.2; T.C.A. (orig. ed.), §§ 50-301, 50-302; Acts 1989, ch. 591, § 113; 2013, ch. 240, §§ 1, 2.

Cross-References. Penalty for Class C misdemeanor, § 40-35-111.

NOTES TO DECISIONS

1. Applicability.

Amendment to provide for agency enforcement of the wage laws was a clarification that the legislature did not intend to create a private right of action, rather than a substantive change to the statute, and thus could be applied retroactively to preclude pending private claims. Abadeer v. Tyson Foods, Inc., 975 F. Supp. 2d 890, 2013 U.S. Dist. LEXIS 145918 (M.D. Tenn. Oct. 3, 2013).

Dismissal of inmate's claims under the Tennessee Wage Regulation Act, specifically T.C.A. § 50-2-101 et seq., was appropriate because the inmates failed to state a claim arising under the Act for which relief could have been granted. As a matter of law, the inmates were not employees because they could not enter into a contract of hire as employees Harris v. Tenn. Rehabilitative Initiative in Corr., — S.W.3d —, 2014 Tenn. App. LEXIS 273 (Tenn. Ct. App. May 8, 2014).

T.C.A. § 50-2-107 permitted a private cause of action notwithstanding the 2013 amendment to this section providing for enforcement of that section by the Department of Labor and Workforce Development, because the court's holding in Owens that § 50-2-107 provided a private cause of action had not been overruled, the General Assembly did not amend § 50-2-107 when it amended this section in 2013, and when the General Assembly amended § 50-2-107 in 2012 it did not overrule Owens. Hardy v. Tournament Players Club at Southwind, Inc., — S.W.3d —, 2015 Tenn. App. LEXIS 524 (Tenn. Ct. App. July 2, 2015), rev'd, 513 S.W.3d 427, 2016 Tenn. LEXIS 985 (Tenn. May 25, 2016).

50-2-102. Redemption of coupons or scrip.

  1. All persons, firms and corporations using coupons, scrip, punchouts, store orders or other evidence of indebtedness to pay their laborers and employees, for labor or otherwise, shall, if demanded, redeem the coupons, scrip, punchouts, store orders or other evidence of indebtedness in the hands of the laborer, employee or bona fide holder, in good and lawful money of the United States; provided, that the coupons, scrip, punchouts, store orders or other evidence of indebtedness is presented and redemption demanded of the person, firm or corporation issuing the coupons, scrip, punchouts, store orders or other evidence of indebtedness, as mentioned in this subsection (a), at a regular pay day of the person, firm or corporation to laborers or employees; or, if presented and redemption demanded by the laborers, employees or bona fide holders at any time not less than thirty (30) days from the issuance or delivery of the coupon or other evidence of indebtedness to the employees, laborers or bona fide holder. Redemption shall be at the face value of the coupon or other evidence of indebtedness; provided, that the face value shall be in cash the same as its purchasing power in goods, wares and merchandise at the commissary store or other repository of the company, firm, person or corporation.
  2. Any employee, laborer or bona fide holder, upon presentation and demand for redemption of the coupon or other evidence of indebtedness, and upon refusal of the person, firm or corporation to redeem the coupon or other evidence of indebtedness in good and lawful money of the United States, may maintain in the employee's, laborer's or bona fide holder's own name an action before any court of competent jurisdiction against the person, firm or corporation, issuing the coupon or other evidence of indebtedness, pursuant to subsection (a), for the recovery of the value of the coupon or other evidence of indebtedness; and, if the plaintiff recovers judgment in the case, it shall include a penalty of twenty-five percent (25%) of the amount due and a reasonable fee for the plaintiff's attorney for the attorney's services in the suit, all of which, as well as the costs, shall be taxed against the defendant.
  3. Nothing in this section is to be construed as to legalize the issuance or use of scrip.

Acts 1899, ch. 11, §§ 1-3; 1915, ch. 90, § 1; Shan., § 3608a75-3608a77; Code 1932, §§ 6710-6712; T.C.A. (orig. ed.), §§ 50-303 — 50-305.

Textbooks. Tennessee Jurisprudence, 10 Tenn. Juris., Employer and Employee, § 6.

50-2-103. Payment of employees in private employments.

    1. All wages or compensation of employees in private employment shall be due and payable not less frequently than once per month.
    2. For each employer that makes wage payments once monthly to employees in private employments, all wages or compensation earned and unpaid prior to the first day of any month shall be due and payable not later than the fifth day of the succeeding month.
    3. For each employer that makes wage payments in two (2) or more periods per month, all wages and compensation of employees in private employments shall be due and payable as follows:
      1. All wages or compensation earned and unpaid prior to the first day of any month shall be due and payable not later than the twentieth day of the month following the one in which the wages were earned; and
      2. All wages or compensation earned and unpaid prior to the sixteenth day of any month shall be due and payable not later than the fifth day of the succeeding month.
    4. For the purposes of this subsection (a), the final wages of an employee who quits or is discharged shall include any vacation pay or other compensatory time that is owed to the employee by virtue of company policy or labor agreement. This subdivision (a)(4) does not mandate employers to provide vacations, either paid or unpaid, nor does it require that employers establish written vacation pay policies.
  1. “Private employment,” as used in subsection (a), means and includes all employments in concerns where five (5) or more employees are employed, except those under the direct management, supervision and control of the United States, this state, any county, incorporated city or town, or other municipal corporation or political subdivision of the state, or any office or department of the state or general government.
  2. Nothing contained in this section shall be construed as prohibiting the payment of wages at more frequent periods than required pursuant to subsection (a).
  3. Every employer shall establish and maintain regular pay days as provided in this section, and shall post and maintain notices, printed or written in plain type or script, in at least two (2) conspicuous places where the notices can be seen by the employees as they go to and from work, setting forth the regular pay day as prescribed in subsection (a).
    1. The payment of wages or compensation of employees in the employments defined in this section shall be made as follows:
      1. In lawful money of the United States;
      2. By a good and valid negotiable check or draft, payable on presentation of the check or draft at some bank or other established place of business without discount, exchange or cost of collection, in lawful money of the United States;
      3. Electronic automated fund transfer in lawful money of the United States; or
      4. Credit to a prepaid debit card issued through a network system from which the employee is able to withdraw or transfer funds, subject to the limitations contained in subdivisions (e)(2) and (3).
    2. An employer who chooses to compensate its employees using prepaid debit cards under subdivision (e)(1)(D) shall also give employees the choice of being paid by electronic transfer under subdivision (e)(1)(C). If after the employer has explained this system to an employee and provided full written disclosure of any applicable fees associated with the prepaid debit card and the employee does not designate an account at a financial institution in advance and as required by the employer for the payroll transfer to occur, then the employer may arrange to pay such employee by prepaid debit card pursuant to subdivision (e)(1)(D).
    3. If an employer pays its employees their wages on a prepaid debit card pursuant to subdivision (e)(1)(D), then such employer shall ensure that each employee shall have the ability to make at least one (1) withdrawal or transfer from the prepaid debit card per pay period without cost to the employee for any amount contained on the card.
  4. In case an employee in the employments defined in this section is absent from the usual place of employment at the time the payment of wages or compensation is due and payable, the employee shall be paid the wages or compensation within a reasonable time after making a demand for the wages or compensation.
  5. Any employee who leaves or is discharged from employment shall be paid in full all wages or salary earned by the employee no later than the next regular pay day following the date of dismissal or voluntary leaving, or twenty-one (21) days following the date of discharge or voluntary leaving, whichever occurs last. No employer shall, by any means, secure an exemption from this subsection (g).
      1. Except as provided in subdivision (h)(2), each employee shall have a thirty-minute unpaid meal break if scheduled to work six (6) hours consecutively, except in workplace environments that by their nature of business provide ample opportunity to take an appropriate meal break. The meal break shall not be scheduled during or before the first hour of scheduled work activity.
      2. For purposes of this subsection (h), “meal break” means a rest break or meal period.
      1. At the discretion of an employer, an employee who is principally employed in the service of food or beverages to customers and who, in the course of such employment, receives tips and reports the tips to the employer may waive the employee's right to a thirty-minute unpaid meal break.
      2. To waive the meal break, an employee shall submit a waiver request to the employer in writing on a form established by the employer as provided in subdivision (h)(C)(i). For the waiver to be effective:
  6. The employee must submit the request knowingly and voluntarily; and
  7. The department of labor and workforce development shall enforce this section. Each employer, during normal business hours, shall make available to inspectors of the department specific wage and payroll records of its employees maintained on the premises that are pertinent to a written complaint. Records that are maintained off the premises or inaccessible shall be made available to the inspectors on a timely basis as agreed upon by the inspector and the employer.

The employer and employee must both consent to the waiver.

An employer who intends to enter into waiver agreements with employees subject to this subdivision (h)(2) shall establish a reasonable policy that permits employees to waive the meal break subject to the demands of the employees' work environment. This policy shall be in writing and posted in at least one (1) conspicuous place in the workplace. The policy shall include, but not be limited to, the following:

A waiver form that contains a statement that the employee acknowledges the employee's right, under state law, to receive an unpaid meal break of not less than thirty (30) minutes during a six-hour work period and that the employee is knowingly and voluntarily waiving this right;

The length of time the waiver will be in effect; and

Procedures for rescission of the waiver agreement by the employee or employer.

An employer or employee may rescind a waiver agreement after providing notice to the other party. Such notice must be provided at least seven (7) calendar days prior to the date that the waiver will no longer be in effect.

No employer shall coerce an employee into waiving a meal break.

A violation of this section is a Class B misdemeanor, punishable by a fine of not less than one hundred dollars ($100) nor more than five hundred dollars ($500). Further, every employer, partnership or corporation willfully violating this section is subject to a civil penalty of not less than five hundred dollars ($500) nor more than one thousand dollars ($1,000) at the discretion of the commissioner or the commissioner's designated representative. Each and every infraction constitutes a separate and distinct offense. If the commissioner, or the commissioner's designated representative, determines that the violation was unintentional, there shall be a warning, in lieu of a penalty, on the first offense. On second or subsequent violations, the civil penalty is applicable and may be assessed at the discretion of the commissioner or the commissioner's designated representative. It shall be at the sole discretion of the commissioner to elect to proceed either civilly or criminally upon any violation of this part; however, the employer shall not be charged both civilly and criminally for the same violation.

Acts 1917, ch. 28, §§ 1-6; Shan., §§ 3608a77b1-3608a77b8; Code 1932, §§ 6713-6720; modified; Acts 1935, ch. 57, § 1; 1937, ch. 153, § 1; C. Supp. 1950, §§ 6714, 6719; T.C.A. (orig. ed.), §§ 50-306 — 50-313; Acts 1989, ch. 591, § 113; 1991, ch. 384, § 1; 1993, ch. 219, §§ 1, 3, 4; 1999, ch. 32, § 1; 1999, ch. 118, §§ 1, 2; 1999, ch. 520, § 41; 2001, ch. 128, § 1; 2003, ch. 142, § 1; 2010, ch. 874, § 1; 2012, ch. 760, § 1; 2017, ch. 362, §§ 1, 2.

Amendments. The 2017 amendment rewrote (a), which read:“All wages or compensation of employees in private employments shall be due and payable as follows:“(1)  All wages or compensation earned and unpaid prior to the first day of any month shall be due and payable not later than the twentieth day of the month following the one in which the wages were earned;“(2)  All wages or compensation earned and unpaid prior to the sixteenth day of any month shall be due and payable not later than the fifth day of the succeeding month; and“(3)  For the purposes of this subsection (a), the final wages of an employee who quits or is discharged shall include any vacation pay or other compensatory time that is owed to the employee by virtue of company policy or labor agreement. This subdivision (a)(3) does not mandate employers to provide vacations, either paid or unpaid, nor does it require that employers establish written vacation pay policies.”; and substituted “required pursuant to subsection (a)” for “semimonthly” at the end of (c).

Effective Dates. Acts 2017, ch. 362, § 3. May 11, 2017.

Cross-References. Penalty for Class B misdemeanor, § 40-35-111.

Law Reviews.

The Constitutionality of Bimonthly Pay Day Laws (Cyril J. Smith), 16 Tenn. L. Rev. 940 (1940).

Attorney General Opinions. Applicability, OAG 94-060 (4/19/94).

Break or meal periods, OAG 94-060 (4/19/94).

Whether an employee in private employment is entitled to pay for accrued sick leave upon the employee's termination will depend on the private employer's company policy or labor agreement, OAG 05-059 (4/20/05).

T.C.A. § 50-2-103(a)(3) does not require that an employee's final wages include unused “vacation pay or other compensatory time” upon the employee's termination of employment, OAG 06-169 (11/13/06).

Provision of two 20-minute unpaid breaks that employees may use however they wish and during which they are not required to perform any duties for the employer's benefit is not in compliance with T.C.A. § 50-2-103(h), OAG 08-187 (12/16/08).

Enforcements of requirements of T.C.A. § 50-2-103(a); exemptions from provisions of statute.  OAG 12-50, 2012 Tenn. AG LEXIS 51 (5/8/12).

NOTES TO DECISIONS

1. Rest Break or Meal Period.

Retaliatory discharge was an available claim where an employee was allegedly discharged for taking a rest break as a consequence of the employer's violation of a clearly expressed statutory policy that required employees be given a 30-minute rest period if the scheduled shift was six hours or longer. Yates v. Hertz Corp., 285 F. Supp. 2d 1104, 2003 U.S. Dist. LEXIS 17832 (M.D. Tenn. 2003).

T.C.A. § 50-2-103(h) requires a thirty-minute meal break; however, T.C.A. § 50-2-103 makes no provision for private enforcement, but instead provides for enforcement by the department of labor and workforce development under T.C.A. § 50-2-103(j). Johnson v. Koch Foods, Inc., 670 F. Supp. 2d 657, 2009 U.S. Dist. LEXIS 106058 (E.D. Tenn. Nov. 13, 2009).

2. Duress Not Found.

Denial of vacation pay to the employee under T.C.A. § 50-2-103(a)(3) was proper because the conclusion that the 2004 contract was not signed under duress undermined much of the employee's argument that he was entitled to his 2005 vacation pay due to the employer's breach of contract. There was no caselaw supporting the employee's assertion that the trial court was permitted to award him vacation pay based on equitable principles. Cummings Inc. v. Dorgan, 320 S.W.3d 316, 2009 Tenn. App. LEXIS 639 (Tenn. Ct. App. Sept. 23, 2009), rehearing denied, — S.W.3d —, 2009 Tenn. App. LEXIS 854 (Tenn. Ct. App. Dec. 9, 2009), appeal denied, 320 S.W.3d 316, 2010 Tenn. LEXIS 576 (Tenn. 2010).

Collateral References.

Time for payment of wages, constitutionality of statute regulating. 12 A.L.R. 612, 26 A.L.R. 1396.

Validity, construction, and effect of state laws requiring payment of wages on discharge of employee immediately or within specified period. 18 A.L.R.5th 577.

50-2-104. Misrepresenting wages in new employment.

Any employer who misrepresents to any employee the amount of wages that the employee is to receive on entering into a new contract of employment commits a Class C misdemeanor. Further, any employer who misrepresents to any employee the amount of wages that the employee is to receive on entering into a new contract of employment shall be subject to a civil penalty of not less than five hundred dollars ($500) nor more than one thousand dollars ($1,000) at the discretion of the commissioner or the commissioner's designated representative. If the commissioner or the commissioner's designated representative determines that the violation was unintentional, there shall be a warning, in lieu of a penalty, on the first offense. On second or subsequent violations, the civil penalty is applicable and may be assessed at the discretion of the commissioner, or the commissioner's designated representative. It shall be at the sole discretion of the commissioner to elect to proceed either civilly or criminally upon any violation of this part; however, the employer shall not be charged both civilly and criminally for the same violation.

Acts 1917, ch. 48, § 1; Shan., § 4338a1; mod. Code 1932, § 8561; T.C.A. (orig. ed.), § 50-314; Acts 1989, ch. 591, § 113; 1993, ch. 219, § 2; 2001, ch. 128, § 2; 2003, ch. 142, § 2.

Cross-References. Penalty for Class C misdemeanor, § 40-35-111.

NOTES TO DECISIONS

1. Applicability.

Dismissal of inmate's claims under the Tennessee Wage Regulation Act, T.C.A. § 50-2-101 et seq., was appropriate because the inmates failed to state a claim arising under the Act for which relief could have been granted. As a matter of law, the inmates were not employees because they could not enter into a contract of hire as employees Harris v. Tenn. Rehabilitative Initiative in Corr., — S.W.3d —, 2014 Tenn. App. LEXIS 273 (Tenn. Ct. App. May 8, 2014).

50-2-105. Restrictions on assignment of income — Court orders.

  1. As used in this section:
    1. “Court” and “clerk” are defined as set out in § 26-2-201; and
    2. “Employer” includes the state and any political subdivision of the state.
    1. No action shall be brought to charge any employer upon any assignment by any clerk, servant or employee of the employer to any person of any wages or salaries unearned at the time of the assignment, unless the assignment at the time of the execution of the assignment has been assented to in writing by the employer, or unless the assignment is to enforce support orders as provided in title 36, chapter 5, part 5.
    2. “Support,” “order of support” or “child support” includes child support, and support for a spouse or ex-spouse if the obligor is legally responsible for the support of a child residing with the spouse or ex-spouse.
  2. Assignment of income by a court for child support or spousal support shall be made according to title 36, chapter 5. If an employer fails to comply with the order, a judgment may be entered against the employer in the same manner as set forth in title 26, chapter 2, part 2.
  3. An order for the assignment of income entered by a court under subsections (b) and (c) for child support entered before October 1, 1985, shall remain in full force and effect, and any new orders for assignment of income or for modification or termination of assignments of income shall be as provided in title 36, chapter 5.

Acts 1903, ch. 21, § 1; 1903, ch. 53, § 1; Shan., § 4341a1; Code 1932, § 8562; Acts 1981, ch. 61, § 1; T.C.A. (orig. ed.), § 50-315; Acts 1985, ch. 477, § 12; 1986, ch. 890, § 7; 1994, ch. 987, § 15; 2002, ch. 651, § 6.

Compiler's Notes. For codification of Acts 1985, ch. 477, see the Session Law Disposition Tables in Volume 13 of the Tennessee Code Annotated.

Acts 1985, ch. 477, § 1 provided that Acts 1985, ch. 477 may be cited as the “Child Support Enforcement Act of 1985.”

Cross-References. Applicability to orders of spousal support and juvenile court proceedings, § 39-15-104.

Tax levy upon salary or wages, §§ 67-1-140567-1-1408.

Termination of Acts 1985, ch. 447, which amended this section, § 36-5-110.

Textbooks. Tennessee Jurisprudence, 10 Tenn. Juris., Employer and Employee, § 6.

Law Reviews.

The Employment-At-Will Doctrine — Time to Terminate? But How? (D. Bruce Shine), 18 No. 4 Tenn. B.J. 28 (1982).

NOTES TO DECISIONS

1. Constitutionality.

This section is not invalid as impairing the obligation of contracts, within the prohibition of Tenn. Const., art. I, § 20, for it deals solely with contracts to be made in the future. West v. Jefferson Woolen Mills, 147 Tenn. 100, 245 S.W. 542, 1922 Tenn. LEXIS 24 (1922).

This section is not unconstitutional as violative of the law of the land or due process of law clause of Tenn. Const., art. I, § 8. West v. Jefferson Woolen Mills, 147 Tenn. 100, 245 S.W. 542, 1922 Tenn. LEXIS 24 (1922).

2. Purpose.

The manifest of this section was to protect the laborer and wage earner. Fox v. Miller, 173 Tenn. 453, 121 S.W.2d 527, 1938 Tenn. LEXIS 27 (1938).

3. Employees Covered.

This section was intended to protect those who work for a fixed sum per day, per week, or per month, whether it be denominated “wages” or “salaries,” for such terms are interchangeable. West v. Jefferson Woolen Mills, 147 Tenn. 100, 245 S.W. 542, 1922 Tenn. LEXIS 24 (1922).

This section does not authorize assignments by public officials of their future official salaries. Fox v. Miller, 173 Tenn. 453, 121 S.W.2d 527, 1938 Tenn. LEXIS 27 (1938).

4. Unauthorized Assignment — Garnishment.

Assignment of unearned wages by employee to a third party without consent of the employer was void as to the employer, and being void as to the employer such assignment was void as to a garnisheeing creditor of the employee, as the employer, notwithstanding the assignment, owed the wages after being earned by the employee and such wages were subject to garnishment in his hands. Ellison v. Long, 170 Tenn. 582, 98 S.W.2d 96, 1936 Tenn. LEXIS 35 (1936).

5. Union Dues.

Authorizations by union members permitting company to deduct union dues from wages were not invalid under the provisions of this section. Murtha v. Pet Dairy Products Co., 44 Tenn. App. 460, 314 S.W.2d 185, 1958 Tenn. App. LEXIS 97 (Tenn. Ct. App. 1958).

Collateral References.

Law governing assignment of wages or salary. 1 A.L.R. 3d 927.

50-2-106. Company stores.

  1. It is not lawful for any employer, or agent, clerk or superintendent of the employer, who owns or controls a store for the sale of general merchandise in connection with the employer's manufacturing or other business, to attempt to control the employer's employees or laborers in the purchase of goods and supplies at the store, by withholding the payment of wages longer than the usual time of payment, whereby the employee would be compelled to purchase supplies at the employer's store.
  2. No employee shall be required, as a condition of employment, to trade at a store specified by the employer.
  3. Any person violating this section commits a Class C misdemeanor.

Acts 1887, ch. 155, §§ 1-2; Shan., §§ 6882-6883; mod. Code 1932, §§ 11361-11362; Acts 1935, ch. 58, § 1; C. Supp. 1950, § 1136.1; T.C.A. (orig. ed.), §§ 50-316, 50-317; Acts 1989, ch. 591, § 113.

Cross-References. Payment of wages in private employment, § 50-2-103.

Penalty for Class C misdemeanor, § 40-35-111.

50-2-107. Distribution of service charges or gratuities.

    1. If a business, including a private club, lounge, bar or restaurant, includes on the bill presented to and paid by a customer, member or patron an automatic percentage or specific dollar amount denominated as a service charge, tip, gratuity, or otherwise, which amount is customarily assumed to be intended for the employee or employees who have served the customer, member or patron, that amount shall be paid over to or distributed among the employee or employees who have rendered that service. The payment shall be made at the close of business on the day the amount is received or at the time the employee is regularly paid, or, in the case of a bill for which credit is extended to a customer, member or patron, payment shall be made at the close of business on the day the amount is collected or on the first day the employee is regularly paid occurring after the amount is collected.
    2. The payment shall not be reduced, docked or otherwise diminished to penalize an employee for any actions in connection with the employee's employment, if it is derived from a mandatory service charge or tip collected from customers, members or patrons.
      1. This section does not apply to bills for food or beverage served in a banquet, convention or meeting facility segregated from the public-at-large, except banquet, convention or meeting facilities that are on the premises of a private club.
        1. This section does not apply to bills presented to or charges paid by guests for accommodations and activities at a guest ranch.
        2. For purposes of subdivision (a)(3)(B)(i), “guest ranch” means a facility segregated from the public-at-large:
          1. Offering accommodations for overnight stays and activities typical of western ranching;
          2. That may provide other recreational activities exclusively for guests in conjunction with the ranching activities, including, but not limited to, fishing, hiking, horseback riding, rafting and swimming; and
          3. At which food services are incidental to the operation of the guest ranch, are only for the guests of the guest ranch and the cost of which are included in the fee to stay.

A violation of this section is a Class C misdemeanor. Each failure to pay an employee constitutes a separate offense.

Acts 1983, ch. 152, § 1; 1989, ch. 591, § 113; 2012, ch. 895, § 1.

Cross-References. Penalty for Class C misdemeanor, § 40-35-111.

Law Reviews.

Selected Tennessee Legislation of 1983 (N. L. Resener, J. A. Whitson, K. J. Miller), 50 Tenn. L. Rev. 785 (1983).

Attorney General Opinions. Constitutionality of section, OAG 83-144 (4/5/83).

NOTES TO DECISIONS

1. Private Cause of Action.

This section permitted a private cause of action notwithstanding the 2013 amendment to T.C.A. § 50-2-101 providing for enforcement of that section by the Department of Labor and Workforce Development, because the court's holding in Owens that this section provided a private cause of action had not been overruled, the General Assembly did not amend this section when it amended § 50-2-101 in 2013, and when the General Assembly amended this section in 2012 it did not overrule Owens. Hardy v. Tournament Players Club at Southwind, Inc., — S.W.3d —, 2015 Tenn. App. LEXIS 524 (Tenn. Ct. App. July 2, 2015), rev'd, 513 S.W.3d 427, 2016 Tenn. LEXIS 985 (Tenn. May 25, 2016).

Employee had no private right of action under the Tennessee Tip Statute because, while the employee was an intended beneficiary, (1) the statute did not expressly provide such a right, and (2) no such right was implied, as the doctrine of legislative inaction did not apply to show legislative acquiescence in a judicial decision implying the right, since that decision was inconsistent with subsequent jurisprudence on implication of a private right of action, as the decision reflected a willingness to imply a private remedy so long as doing so was not inconsistent with either the purpose of the statute or any criminal or administrative remedies expressly provided therein, but courts had retreated from that approach in favor of one presuming a legislature would expressly provide for a private remedy if it intended there to be one. Hardy v. Tournament Players Club at Southwind, Inc., 513 S.W.3d 427, 2016 Tenn. LEXIS 985 (Tenn. May 25, 2016).

50-2-108. Collection of claims and judgments for wages.

  1. In addition to the powers and duties of the commissioner of labor and workforce development specified elsewhere in this code, the commissioner is authorized and empowered to enter into reciprocal agreements with the labor department or corresponding agency of any other state or with the person, board, officer or commission authorized to act on behalf of the department or agency, for the collection in the other state of claims and judgments for wages based upon claims assigned to the commissioner.
  2. The commissioner may, to the extent provided for by any reciprocal agreement entered into by law or with any agency of another state as provided in this section, maintain actions in the courts of the other state for the collection of claims and judgments for wages, and may assign the claims and judgments to the labor department or agency of the other state for collection to the extent that the assignment may be permitted or provided for by the law of the state or by reciprocal agreement.
  3. The commissioner may, upon the written consent of the labor department or other corresponding agency of any other state or of any person, board, officer or commission of the state authorized to act on behalf of the labor department or corresponding agency, maintain actions in the courts of this state upon assigned claims and judgments for wages arising in the other state in the same manner and to the same extent that such actions by the commissioner are authorized when arising in this state. However, the actions may be maintained only in cases where the other state by law or reciprocal agreement extends a like comity to cases arising in this state.

Acts 1992, ch. 670, § 1; 1999, ch. 520, § 41.

50-2-109. Assessment of penalties.

  1. If, within thirty (30) days from the receipt of written notification of penalties assessed pursuant to this part, an employer fails to notify the commissioner in writing of its intent to contest the imposition of the penalty, the assessment of a penalty as stated in the notification shall be deemed a final order of the commissioner and not subject to further review.
  2. All penalties owed under this part shall be paid to the commissioner.

Acts 2003, ch. 142, § 3.

50-2-110. Offset of moneys owed by employee to employer.

  1. Except as provided in subsection (b), an employer may offset an employee's wages due and owing for an amount the employee owes the employer if:
    1. An employer enters into an agreement with an employee to advance the employee wages prior to the date the wages are due and owing, agrees to otherwise lend the employee money, or permits the employee to charge personal items on the business or corporate credit card issued to the employee;
    2. The employee signs a written agreement prior to any actions occurring pursuant to subdivision (a)(1) allowing the employer to offset the employee's wages for any amount the employee owes the employer, and the employer has in its possession at the time of the offset a copy of such signed agreement;
    3. The employer notifies the employee in writing fourteen (14) days prior to the payment of wages due and owing that:
      1. There is an amount the employee owes the employer;
      2. The employee's wages may be offset if the amount owed is not paid prior to the payment of wages due and owing; and
      3. The employee may submit an affidavit as described in subsection (b); and
    4. The employee has not paid the amount owed the employer that was described in the notice sent pursuant to subdivision (a)(3).
  2. The employer shall not be entitled to offset an employee's wages due and owing if the employee sends a sworn affidavit to the employer, and a copy of such affidavit to the department of labor and workforce development, no later than seven (7) days after receiving notification pursuant to subdivision (a)(3), contesting the amount owed. If an employee contests an amount owed pursuant to this subsection (b), then the employer may commence an appropriate civil action to recover the amount the employer alleges that the employee owes the employer.
  3. For purposes of this section:
    1. “Amount the employee owes the employer” means any specific dollar amount the employer loaned or advanced the employee, including, but not limited to, any amount the employee charged for personal items to a business or corporate credit card issued to the employee; and
    2. “Wages” means any remuneration owed to an employee for services, including, but not limited to, commissions, bonuses, incentive program rewards and tips.

Acts 2011, ch. 273, § 1.

50-2-111. Application of chapter.

  1. This chapter only applies to an individual if the individual performs services for an employer for wages and the services performed by the individual qualify as an employer-employee relationship with the employer based upon consideration of the following twenty (20) factors as described in the twenty-factor test of Internal Revenue Service Revenue Ruling 87-41, 1987-1 C.B. 296:
    1. Instructions.  A worker who is required to comply with other persons' instructions about when, where, and how the worker is to work is ordinarily an employee. This control factor is present if the person or persons for whom the services are performed have the right to require compliance with instructions;
    2. Training.  Training a worker by requiring an experienced employee to work with the worker, by corresponding with the worker, by requiring the worker to attend meetings, or by using other methods indicates that the person or persons for whom the services are performed want the services performed in a particular method or manner;
    3. Integration.   Integration of the worker's services into the business operations generally shows that the worker is subject to direction and control. When the success or continuation of a business depends to an appreciable degree upon the performance of certain services, the workers who perform those services must necessarily be subject to a certain amount of control by the owner of the business;
    4. Services rendered personally.   If the services must be rendered personally, then presumably the persons for whom the services are performed are interested in the methods used to accomplish the work as well as in the results;
    5. Hiring, supervising, and paying assistants.   If the person or persons for whom the services are performed hire, supervise, and pay assistants, then that factor generally shows control over the workers on the job. However, if one (1) worker hires, supervises, and pays the other assistants pursuant to a contract under which the worker agrees to provide materials and labor and under which the worker is responsible only for the attainment of a result, then this factor indicates an independent contractor status;
    6. Continuing relationship.   A continuing relationship between the worker and the person or persons for whom the services are performed indicates that an employer-employee relationship exists. A continuing relationship may exist where work is performed at frequently recurring although irregular intervals;
    7. Set hours of work.   The establishment of set hours of work by the person or persons for whom the services are performed is a factor indicating control;
    8. Full time required.   If the worker must devote substantially full time to the business of the person or persons for whom the services are performed, then the person or persons have control over the amount of time the worker spends working and impliedly restrict the worker from doing other gainful work. An independent contractor is free to work when and for whom the independent contractor chooses;
    9. Doing work on employer's premises.   If the work is performed on the premises of the person or persons for whom the services are performed, then that factor suggests control over the worker, especially if the work could be done elsewhere. Work done off the premises of the person or persons receiving the services, such as at the office of the worker, indicates some freedom from control. However, this fact by itself does not mean that the worker is not an employee. The importance of this factor depends on the nature of the service involved and the extent to which an employer generally would require that employees perform those services on the employer's premises. Control over the place of work is indicated when the person or persons for whom the services are performed have the right to compel the worker to travel a designated route, to canvass territory within a certain time, or to work at specific places as required;
    10. Order or sequence set.   If a worker must perform services in the order or sequence set by the person or persons for whom the services are performed, then that factor shows that the worker is not free to follow the worker's own pattern of work but instead must follow the established routines and schedules of the person or persons for whom the services are performed. Often, because of the nature of an occupation, the person or persons for whom the services are performed do not set the order of the services or set the order infrequently. It is sufficient to show control, however, if the person or persons retain the right to do so;
    11. Oral or written reports.   A requirement that the worker submit regular or written reports to the person or persons for whom the services are performed indicates a degree of control;
    12. Payment by hour, week, month.   Payment by the hour, week, or month generally points to an employer-employee relationship; provided, that this method of payment is not just a convenient way of paying a lump sum agreed upon as the cost of a job. Payment made by the job or on straight commission generally indicates the worker is an independent contractor;
    13. Payment of business or traveling expenses.   If the person or persons for whom the services are performed ordinarily pay the worker's business or traveling expenses, then the worker is ordinarily an employee. An employer, to be able to control expenses, generally retains the right to regulate and direct the worker's business activities;
    14. Furnishing of tools and materials.   The fact that the person or persons for whom the services are performed furnish significant tools, materials, and other equipment tends to show the existence of an employer-employee relationship;
    15. Significant investment.   If the worker invests in facilities that are used by the worker in performing services and are not typically maintained by employees, such as the maintenance of an office rented at fair value from an unrelated party, then that factor tends to indicate that the worker is an independent contractor. However, lack of investment in facilities indicates dependence on the person or persons for whom the services are performed for the facilities and the existence of an employer-employee relationship;
    16. Realization of profit or loss.   A worker who can realize a profit or suffer a loss as a result of the worker's services, in addition to the profit or loss ordinarily realized by employees, is generally an independent contractor but the worker who cannot is an employee. For example, if the worker is subject to a real risk of economic loss due to significant investments or a bona fide liability for expenses, such as salary payments to unrelated employees, then that factor indicates that the worker is an independent contractor. The risk that a worker will not receive payment for the worker's services is common to both independent contractors and employees and does not constitute sufficient economic risk to support treatment as an independent contractor;
    17. Working for more than one firm at a time.   If a worker performs more than de minimis services for multiple unrelated persons or firms at the same time, then that factor generally indicates that the worker is an independent contractor. However, a worker who performs services for more than one (1) person may be an employee of each of the persons, especially where such persons are part of the same service arrangement;
    18. Making service available to general public.   The fact that a worker makes the worker's services available to the general public on a regular and consistent basis indicates an independent contractor relationship;
    19. Right to discharge.   The right to discharge a worker is a factor indicating that the worker is an employee and the person possessing the right is an employer. An employer exercises control through the threat of dismissal, which causes the worker to obey the employer's instructions. An independent contractor cannot be fired so long as the independent contractor produces a result that meets the contract specifications; and
    20. Right to terminate.   If the worker has the right to end the worker's relationship with the person for whom the services are performed at any time the worker wishes without incurring liability, then that factor indicates an employer-employee relationship.
  2. Notwithstanding subsection (a), this chapter does not apply to an individual who provides services as a leased-operator or an owner-operator of a motor vehicle or vehicles under contract to a common carrier doing an interstate business while engaged in interstate commerce regardless of whether the common law relationship of master and servant exists.

Acts 2011, ch. 416, § 2; 2019, ch. 337, § 1.

Compiler's Notes. Acts 2011, ch. 416, § 10 provided that §§ 1 and 2 of the act, which enacted § 50-2-111 and amended § 50-7-207(e), shall apply to causes of action arising on or after June 6, 2011.

Acts 2019, ch. 337, § 6 provided that the act, which amended this section, applies only to actions occurring on or after January 1, 2020.

Amendments. The 2019 amendment, effective January 1, 2020,  rewrote the section, which read: “This chapter shall not apply to any individual who provides services as a leased-operator or an owner-operator of a motor vehicle or vehicles under contract to a common carrier doing an interstate business while engaged in interstate commerce regardless of whether the common law relationship of master and servant exists; provided, that this chapter shall apply to those employees of the common carrier who do not provide services as a leased-operator or an owner-operator of a motor vehicle or vehicles under contract to a common carrier doing interstate business while engaged in interstate commerce.”

Effective Dates. Acts 2019, ch. 337, § 6. January 1, 2020.

50-2-112. Restrictions on local government authority regarding requiring private employers to pay wages in excess of federal and state minimum hourly wage laws.

    1. Notwithstanding any charter, ordinance or resolution to the contrary, no local government, as a condition of doing business within the jurisdictional boundaries of the local government or contracting with the local government, has the authority to require a private employer to pay its employees a hourly wage in excess of the minimum hourly wage required to be paid by such employer under applicable federal or state law.
    2. With respect to construction contracts, a local government has no authority to require a prevailing wage be paid in excess of the wages established by the prevailing wage commission for state highway construction projects in accordance with title 12, chapter 4, part 4 or the Tennessee occupational wages prepared annually by the department of labor and workforce development, employment security division, labor market information for state building projects.
  1. As used in this section, “local government” means a county, including any county having a metropolitan form of government, or municipal government, or any agency or unit thereof or any other political subdivision of the state.
  2. If compliance with this section by a local government relative to a specific contract, project, or program would result in the denial of federal funds that would otherwise be available to the local government, then the local government may require a private employer to pay its employees a wage necessary to meet the federal requirements to obtain the federal funds, but only relative to such contract, project, or program.

Acts 2013, ch. 91, § 1.

Compiler's Notes. Acts 2013, ch. 91, § 5 provided that the act, which enacted this section, shall apply to contracts entered into or renewed on or after April 11, 2013.

50-2-113. State preemption of wage theft laws, ordinances or rules.

  1. This section shall be known and may be cited as the “Tennessee Wage Protection Act.”
  2. The general assembly finds as a matter of public policy that it is necessary to declare the theft of wages and the denial of fair compensation for work completed to be against the laws and policies of this state.
  3. Employers and employees alike benefit from consistent and established standards of wage theft regulation. Existing federal and state laws, including, but not limited to, the Fair Labor Standards Act, compiled in 29 U.S.C. § 201 et seq., the Davis-Bacon Act, compiled in 40 U.S.C. § 3141 et seq., the McNamara-O’Hara Service Contract Act, compiled in 41 U.S.C. § 6701 et seq., the Migrant and Seasonal Agricultural Protection Act, compiled in 29 U.S.C. § 1801 et seq., the Contract Work Hours and Safety Standards Act, compiled in 29 CFR 5.1 et seq., the Copeland Anti-Kickback Act, codified primarily in 18 U.S.C. § 874 and 40 U.S.C. § 3145, and this chapter, seek to protect employees from predatory and unfair wage practices while also providing appropriate due process to employers.
  4. A county, municipality, or political subdivision of the state shall not adopt or maintain in effect any law, ordinance, or rule that creates requirements, regulations, or processes for the purpose of addressing wage theft. Any additional wage theft ordinance or regulation that exceeds the designated state and federal laws in subsection (c) shall be explicitly preempted by the state.

Acts 2013, ch. 91, § 4.

Compiler's Notes. Acts 2013, ch. 91, § 5 provided that the act, which enacted this section, shall apply to contracts entered into or renewed on or after April 11, 2013.

Law Reviews.

Facilitating Wage Theft: How Courts Use Procedural Rules to Undermine Substantive Rights of Low-Wage Workers (Nantiya Ruan), 63 Vand. L. Rev. 727 (2010).

It's No Revolution: Long Standing Legal Principles Mandate the Preemption of State Laws in Conflict with Section 3(o) of the Fair Labor Standards Act (Anna Wermuth and Jeremy Glenn), 40 U. Mem. L. Rev. 839 (2010).

Part 2
Sex Discrimination

50-2-201. Part definitions.

As used in this part, unless the context otherwise requires:

  1. “Commissioner” means the commissioner of labor and workforce development;
  2. “Employ” includes to suffer or permit to work;
  3. “Employee” means any individual employed by any employer within the state, including individuals employed by the state but not by its political subdivisions, but does not include any individual who is entitled to the equal pay provisions of the Fair Labor Standards Act of 1938, compiled in 29 U.S.C. § 201 et seq.;
  4. “Employer” includes any person acting in the interest of any employer, directly or indirectly, and includes the state but not its political subdivisions; and
  5. “Wage rate” means all compensation for employment, including payments in kind and amounts paid by employers for employee benefits as defined by the commissioner in regulations issued under this part.

Acts 1974, ch. 757, § 1; T.C.A., § 50-320; Acts 1999, ch. 520, § 41.

Law Reviews.

Government Contractors Beware: Recent Changes to Federal Affirmative Action Requirements (James Francis Barna), 37 No. 9 Tenn. B.J. 14 (2001).

It's No Revolution: Long Standing Legal Principles Mandate the Preemption of State Laws in Conflict with Section 3(o) of the Fair Labor Standards Act (Anna Wermuth and Jeremy Glenn), 40 U. Mem. L. Rev. 839 (2010).

NOTES TO DECISIONS

1. Evidence.

Reasonable fact-finder could find a former employer tended to pay female employees less than men performing the same job, as the average woman made $9 and the average man made $10.10, and of the six lowest-paid employees, three were women; accordingly, plaintiff made out a prima facie case of disparate pay under the Tennessee Equal Pay Act, T.C.A. § 50-2-201 et seq.Tolliver v. Children's Home-Chambliss Shelter, 784 F. Supp. 2d 893, 2011 U.S. Dist. LEXIS 32553 (E.D. Tenn. Mar. 28, 2011).

Collateral References.

Application of state law to sex discrimination in employment. 87 A.L.R.3d 93.

Application of state law to sex discrimination in sports. 66 A.L.R.3d 1262.

Construction and application of state equal rights amendments forbidding determination of rights based on sex. 90 A.L.R.3d 158.

Recovery of damages for emotional distress resulting from discrimination because of sex or marital status. 61 A.L.R.3d 944.

50-2-202. Prohibited acts.

  1. No employer shall discriminate between employees in the same establishment on the basis of sex by paying any employee salary or wage rates less than the rates the employer pays to any employee of the opposite sex for comparable work on jobs the performance of which require comparable skill, effort and responsibility, and that are performed under similar working conditions; however, nothing in this part shall prohibit wage differentials based on a seniority system, a merit system, a system that measures earnings by quality or quantity of production, or any other reasonable differential that is based on a factor other than sex.
  2. An employer who is paying a wage differential in violation of this part shall not, in order to comply with this part, reduce the wage rate of any employee.
  3. No employer may discharge or discriminate against any employee by reason of any action taken by the employee to invoke or assist in any manner the enforcement of this part.

Acts 1974, ch. 757, § 2; T.C.A., § 50-321.

Cross-References. Discharge for refusal to engage in or remain silent about illegal activities, or for legal use of agricultural product, § 50-1-304.

Collateral References.

Availability and scope of punitive damages under state employment discrimination law. 81 A.L.R.5th 367.

50-2-203. Commissioner to administer law.

  1. The commissioner has the power and duty to carry out and administer this part, including the power to issue regulations, not inconsistent with the purpose of this part, that the commissioner considers necessary or appropriate to carry out this part.
  2. The commissioner is authorized to endeavor to eliminate pay practices unlawful under this part by informal methods of conference, conciliation and persuasion, and to supervise the payment of wages owing to any employee under this part.

Acts 1974, ch. 757, § 3; T.C.A., § 50-322.

50-2-204. Employee remedies.

    1. Any employer who violates § 50-2-202 shall be liable to the employee or employees affected in the amount of their unpaid wages, and in instances of an employer knowingly violating § 50-2-202 in employee suits under subsection (b), up to an additional equal amount of unpaid wages as liquidated damages.
    2. For the second established violation of this part in a separate judicial proceeding distinct from the first, any employer who violates § 50-2-202 shall be liable to the employee or employees affected in the amount of their unpaid wages, and instances of an employer knowingly violating § 50-2-202 in employee suits under subsection (b), up to an additional two (2) times the amount of unpaid wages as liquidated damages.
    3. For the third established violation of this part in a separate judicial proceeding distinct from the first and second, any employer who violates § 50-2-202 shall be liable to the employee or employees affected in the amount of their unpaid wages, and instances of an employer knowingly violating § 50-2-202 in employee suits under subsection (b), up to an additional three (3) times the amount of unpaid wages as liquidated damages.
  1. Action to recover wages may be maintained in any court of competent jurisdiction by any one (1) or more employees. The court shall, in cases of violation, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney's fee and cost of the action to be paid by the defendant.
  2. No agreement by any employee to work for less than the wages to which the employee is entitled under this part shall be a bar to an action to recover wages, or to a voluntary wage restitution of the full amount due under this part.
  3. At the written request of any employee claiming to have been paid less than the wage to which the employee is entitled under this part, the commissioner may bring any legal action necessary on behalf of the employee to collect the claim for unpaid wages. The commissioner shall not be required to pay any filing fee, or other cost in connection with the action. The commissioner shall have the power to join various claims against the employer in one (1) cause of action.

Acts 1974, ch. 757, § 4; T.C.A., § 50-323; Acts 2004, ch. 822, § 2.

Compiler's Notes. Acts 2004, ch. 822, § 1 provided that the act may be cited as the “Equal Pay Remedies and Enforcement Act.”

Collateral References.

Availability and scope of punitive damages under state employment discrimination law. 81 A.L.R.5th 367.

50-2-205. Limitation of actions.

Court action under this part may be commenced no later than two (2) years after the cause of action occurs.

Acts 1974, ch. 757, § 5; T.C.A., § 50-324.

50-2-206. Penalty.

Any employer who violates this part, or who discharges or in any other manner discriminates against any employee because the employee has made a complaint to that employee's employer, the commissioner, or any other person, or instituted or caused to be instituted any proceedings under or related to this part, or has testified or is about to testify in any such proceeding, commits a Class A misdemeanor.

Acts 1974, ch. 757, § 6; T.C.A., § 50-325; Acts 1989, ch. 591, § 111.

Cross-References. Penalty for Class A misdemeanor, § 40-35-111.

50-2-207. [Repealed.]

Acts 2004, ch. 822, § 3; repealed by Acts 2017, ch. 326, § 4, effective July 1, 2017.

Compiler's Notes. Former § 50-2-207 concerned research on wage disparities.

Chapter 3
Occupational Safety and Health Act of 1972

Part 1
General Provisions

50-3-101. Short title.

This chapter shall be known and may be cited as the “Occupational Safety and Health Act of 1972.”

Acts 1972, ch. 561, § 1; T.C.A., § 50-501.

Cross-References. Additional funds for administration of the Tennessee Occupational Safety Health Act, §§ 50-6-401, 56-4-206, 56-4-207.

Law Reviews.

Long Arm: Does OSHA's Reach Extend to Employees Working at Home on Company-Provided Computers? (Linda S. Peterson), 36 No. 11 Tenn. B.J. 14 (2000).

The OSHA Hazard Communication Standard (Gary C. Shockley), 25 No. 5 Tenn. B.J. 22 (1989).

The Rights of Nonsmokers in Tennessee, 54 Tenn. L. Rev. 671 (1987).

Tort—Bellamy v. Federal Express Corp.: The Availability of Contributory Negligence and Assumption of Risk as Defenses to Violations of Worker Safety Statutes, 19 Mem. St. U.L. Rev. 393 (1989).

Workers' Compensation — Valencia v. Freeland & Lemm Construction Company: Proving an Employer's Intent Remains Nearly Impossible in Tennessee, 34 U. Mem. L. Rev. 717 (2004).

NOTES TO DECISIONS

1. Independent Contractors.

Company owed no duty to protect an employee of an independent contractor from obvious and apparent dangers on its property, even though the employee was engaged in inherently dangerous work when the fall from the transmission tower occurred. Ellis v. Chase Communications, 63 F.3d 473, 1995 FED App. 263P, 1995 U.S. App. LEXIS 24105, 153 A.L.R. Fed. 693 (6th Cir. Tenn. 1995).

50-3-102. Purpose.

  1. The general assembly finds that:
    1. The burden on employers and employees of this state resulting from personal injuries and illnesses arising out of work situations is substantial;
    2. The prevention of these injuries and illnesses is an important objective of the government of this state;
    3. The greatest hope of attaining this objective lies in programs of research and education, and in the earnest cooperation of government, employers and employees; and
    4. A program of regulation and enforcement is a necessary supplement to these more basic programs.
  2. The general assembly declares it to be its purpose and policy through the exercise of its powers to assure so far as possible every working man and woman in the state safe and healthful working conditions and to preserve our human resources by:
    1. Encouraging employers and employees in their efforts to reduce the number of occupational safety and health hazards at their places of employment, and to stimulate employers and employees to institute new, and to perfect existing, programs for providing safe and healthful working conditions;
    2. Providing that employers and employees have separate but dependent responsibilities and rights with respect to achieving safe and healthful working conditions;
    3. Authorizing the commissioner of labor and workforce development to develop occupational safety and health standards applicable to business, giving consideration to the needs of employees and employers and to standards promulgated from time to time by the secretary of labor under the Occupational Safety and Health Act of 1970, compiled in 29 U.S.C. § 651 et seq., and by creating an occupational safety and health review commission for carrying out adjudicatory functions under this chapter;
    4. Building upon advances already made by federal laws and regulations and state laws and regulations for providing safe and healthful working conditions;
    5. Providing criteria that will assure, insofar as practicable, that no employee will suffer diminished health, functional capacity or life expectancy as a result of the employee's work experience;
    6. Providing for education and training of personnel for the fair and efficient administration of occupational safety and health standards;
    7. Providing for education and training of employers and employees in occupational safety and health;
    8. Providing an effective enforcement program, which shall include a prohibition against giving advance notice of an inspection and sanctions for any individual violating this prohibition;
    9. Providing for appropriate reporting procedures with respect to occupational safety and health, which procedures will help achieve the objectives of this chapter and accurately describe the nature of the occupational safety and health problem; and
    10. Encouraging joint labor-management efforts to reduce injuries and diseases arising out of employment.

Acts 1972, ch. 561, § 1; 1977, ch. 111, § 1; T.C.A., § 50-502; Acts 1999, ch. 520, § 41.

Compiler's Notes. This section may be affected by § 9-1-116, concerning entitlement to funds, absent appropriation.

NOTES TO DECISIONS

1. Negligence Per Se.

The violation of T.C.A. § 50-3-102 by a contractor is negligence per se, and it was error to allow issues of contributory negligence and assumption of risk by injured construction worker to go to the jury. Wren v. Sullivan Electric, Inc., 797 F.2d 323, 1986 U.S. App. LEXIS 27611 (6th Cir. Tenn. 1986).

2. Tennessee Public Protection Act.

It was error to dismiss an employee's complaint under the Tennessee Public Protection Act (TPPA), alleging the employee was terminated for refusing to remain silent about an employer's failure to enact workplace violence policies, because the employee alleged a violation of the Occupational Safety and Health Act's general duty clause which implicated important public policy concerns in Tennessee, which satisfied the TPPA's “illegal act” requirement. Davis v. Vanderbilt Univ. Med. Ctr., — S.W.3d —, 2020 Tenn. App. LEXIS 349 (Tenn. Ct. App. Aug. 5, 2020).

50-3-103. Chapter definitions.

As used in this chapter, unless the context otherwise requires:

  1. “Administrator” means the chief administrative officer of the division of occupational safety and health of the department of labor and workforce development. For the purposes of all sections of this chapter other than §§ 50-3-902 and 50-3-903, “administrator” includes any person appointed, designated or deputized to perform any duties under this chapter or to exercise the powers assigned to the administrator of the division of occupational safety and health under this chapter;
  2. “Commission” means the occupational safety and health review commission established pursuant to § 50-3-801;
  3. “Commissioner” or “commissioner of labor and workforce development” means the chief executive officer of the department of labor and workforce development. For the purposes of all sections of this chapter other than §§ 50-3-902 and 50-3-903, it includes any person appointed, designated or deputized to perform the duties or to exercise the powers assigned to the commissioner of labor and workforce development under this chapter, but does not include the person appointed as administrator;
  4. “Committee” means the occupational safety and health advisory committee established pursuant to § 50-3-204;
  5. “Department” means the department of labor and workforce development;
  6. “Division” or “division of occupational safety and health” means the division of occupational safety and health of the department;
  7. “Employee”:
    1. Means an individual who performs services for an employer for wages under a contract of hire if the services performed by the individual qualify as an employer-employee relationship with the employer based upon consideration of the following twenty (20) factors as described in the twenty-factor test of Internal Revenue Service Revenue Ruling 87-41, 1987-1 C.B. 296:
      1. Instructions.   A worker who is required to comply with other persons' instructions about when, where, and how the worker is to work is ordinarily an employee. This control factor is present if the person or persons for whom the services are performed have the right to require compliance with instructions;
      2. Training.   Training a worker by requiring an experienced employee to work with the worker, by corresponding with the worker, by requiring the worker to attend meetings, or by using other methods indicates that the person or persons for whom the services are performed want the services performed in a particular method or manner;
      3. Integration.   Integration of the worker's services into the business operations generally shows that the worker is subject to direction and control. When the success or continuation of a business depends to an appreciable degree upon the performance of certain services, the workers who perform those services must necessarily be subject to a certain amount of control by the owner of the business;
      4. Services rendered personally.    If the services must be rendered personally, then presumably the persons for whom the services are performed are interested in the methods used to accomplish the work as well as in the results;
      5. Hiring, supervising, and paying assistants.   If the person or persons for whom the services are performed hire, supervise, and pay assistants, then that factor generally shows control over the workers on the job. However, if one (1) worker hires, supervises, and pays the other assistants pursuant to a contract under which the worker agrees to provide materials and labor and under which the worker is responsible only for the attainment of a result, then this factor indicates an independent contractor status;
      6. Continuing relationship.   A continuing relationship between the worker and the person or persons for whom the services are performed indicates that an employer-employee relationship exists. A continuing relationship may exist where work is performed at frequently recurring although irregular intervals;
      7. Set hours of work.   The establishment of set hours of work by the person or persons for whom the services are performed is a factor indicating control;
      8. Full time required.   If the worker must devote substantially full time to the business of the person or persons for whom the services are performed, then the person or persons have control over the amount of time the worker spends working and impliedly restrict the worker from doing other gainful work. An independent contractor is free to work when and for whom the independent contractor chooses;
      9. Doing work on employer's premises.   If the work is performed on the premises of the person or persons for whom the services are performed, then that factor suggests control over the worker, especially if the work could be done elsewhere. Work done off the premises of the person or persons receiving the services, such as at the office of the worker, indicates some freedom from control. However, this fact by itself does not mean that the worker is not an employee. The importance of this factor depends on the nature of the service involved and the extent to which an employer generally would require that employees perform those services on the employer's premises. Control over the place of work is indicated when the person or persons for whom the services are performed have the right to compel the worker to travel a designated route, to canvass territory within a certain time, or to work at specific places as required;
      10. Order or sequence set.   If a worker must perform services in the order or sequence set by the person or persons for whom the services are performed, then that factor shows that the worker is not free to follow the worker's own pattern of work but instead must follow the established routines and schedules of the person or persons for whom the services are performed. Often, because of the nature of an occupation, the person or persons for whom the services are performed do not set the order of the services or set the order infrequently. It is sufficient to show control, however, if the person or persons retain the right to do so;
      11. Oral or written reports.   A requirement that the worker submit regular or written reports to the person or persons for whom the services are performed indicates a degree of control;
      12. Payment by hour, week, month.   Payment by the hour, week, or month generally points to an employer-employee relationship; provided, that this method of payment is not just a convenient way of paying a lump sum agreed upon as the cost of a job. Payment made by the job or on straight commission generally indicates the worker is an independent contractor;
      13. Payment of business or traveling expenses.   If the person or persons for whom the services are performed ordinarily pay the worker's business or traveling expenses, then the worker is ordinarily an employee. An employer, to be able to control expenses, generally retains the right to regulate and direct the worker's business activities;
      14. Furnishing of tools and materials.   The fact that the person or persons for whom the services are performed furnish significant tools, materials, and other equipment tends to show the existence of an employer-employee relationship;
      15. Significant investment.   If the worker invests in facilities that are used by the worker in performing services and are not typically maintained by employees, such as the maintenance of an office rented at fair value from an unrelated party, then that factor tends to indicate that the worker is an independent contractor. However, lack of investment in facilities indicates dependence on the person or persons for whom the services are performed for the facilities and the existence of an employer-employee relationship;
      16. Realization of profit or loss.   A worker who can realize a profit or suffer a loss as a result of the worker's services, in addition to the profit or loss ordinarily realized by employees, is generally an independent contractor but the worker who cannot is an employee. For example, if the worker is subject to a real risk of economic loss due to significant investments or a bona fide liability for expenses, such as salary payments to unrelated employees, then that factor indicates that the worker is an independent contractor. The risk that a worker will not receive payment for the worker's services is common to both independent contractors and employees and does not constitute sufficient economic risk to support treatment as an independent contractor;
      17. Working for more than one firm at a time.   If a worker performs more than de minimis services for multiple unrelated persons or firms at the same time, then that factor generally indicates that the worker is an independent contractor. However, a worker who performs services for more than one (1) person may be an employee of each of the persons, especially where such persons are part of the same service arrangement;
      18. Making service available to general public.   The fact that a worker makes the worker's services available to the general public on a regular and consistent basis indicates an independent contractor relationship;
      19. Right to discharge.   The right to discharge a worker is a factor indicating that the worker is an employee and the person possessing the right is an employer. An employer exercises control through the threat of dismissal, which causes the worker to obey the employer's instructions. An independent contractor cannot be fired so long as the independent contractor produces a result that meets the contract specifications; and
      20. Right to terminate.   If the worker has the right to end the worker's relationship with the person for whom the services are performed at any time the worker wishes without incurring liability, then that factor indicates an employer-employee relationship; and
    2. Includes minors, whether lawfully or unlawfully employed; persons in executive positions; and county, metropolitan, and municipal government employees;
  8. “Employer” means a person engaged in a business who has one (1) or more employees and includes county, metropolitan and municipal governments;
  9. “Federal standard” means a standard adopted by a rule promulgated under § 6 of the federal Occupational Safety and Health Act of 1970, codified as 29 U.S.C. § 655;
  10. “Issue” means a category of like industrial, occupational or hazard groupings that affects the safety and health of employment or place of employment and is suggested by the groupings in the Code of Federal Regulations, title 29, chapter XVII, part 1910;
  11. “Person” means one (1) or more individuals, partnerships, associations, corporations, business trusts, legal representatives or any organized group of persons; and
  12. “Standard” means an occupational safety and health standard promulgated by the commissioner that requires conditions or the adoption or the use of one (1) or more practices, means, methods, operations or processes reasonably necessary or appropriate to provide safe and healthful employment and places of employment.

Acts 1972, ch. 561, § 2; 1974, ch. 585, §§ 1, 2; 1977, ch. 111, § 2; impl. am. Acts 1977, ch. 111, § 44; T.C.A., § 50-503; Acts 1999, ch. 520, § 41; 2019, ch. 337, § 2.

Compiler's Notes. Acts 2019, ch. 337, § 6 provided that the act, which amended this section, applies only to actions occurring on or after January 1, 2020.

Amendments. The 2019 amendment, effective January 1, 2020, rewrote the definition of “employee” which read: “'Employee' means any person performing services for another under a contract of hire, including minors, whether lawfully or unlawfully employed, persons in executive positions, and shall include county, metropolitan and municipal government employees;”.

Effective Dates. Acts 2019, ch. 337, § 6. January 1, 2020.

NOTES TO DECISIONS

1. Employer.

Occupational Safety and Health Act claims against a city and the city manager were properly dismissed because decedents were employees of a general contract and were working on a building that was privately owned; the decedents'  workplace safety was the contractor's responsibility, and the city and manager were not required to prepare the engineering survey, brace the walls and floors, or to ensure that the contractor did. Kemper v. Baker, — S.W.3d —, 2012 Tenn. App. LEXIS 253 (Tenn. Ct. App. Apr. 19, 2012).

50-3-104. Scope of chapter.

This chapter or any standard or regulation promulgated pursuant to this chapter shall apply to all employers and employees except:

  1. The federal government, including its departments, agencies and instrumentalities;
  2. Employees whose safety and health are subject to protection under the Atomic Energy Act of 1954, compiled in 42 U.S.C. §§ 2011-2296;
  3. Employees whose safety and health are subject to protection under the federal Coal Mine Health and Safety Act of 1969, compiled in 30 U.S.C. § 801 et seq., the federal Metal and Nonmetallic Mine Safety Act, codified as 30 U.S.C. § 725 [repealed], or title 59 of this code;
  4. Railroad employees whose safety and health are subject to protection under the federal Safety Appliances Act, compiled in 45 U.S.C. § 1 et seq. [repealed], or the federal Railroad Safety Act of 1970, compiled in 45 U.S.C. §§ 431-441 [repealed];
  5. Domestic workers; and
  6. [Deleted by 2015 amendment, effective July 1, 2015.]
  7. Any employee engaged in agriculture who is employed on a farm, each of the employees of which is related to the employer as spouse, child, parent, grandparent or grandchild.

Acts 1972, ch. 561, § 3; 1974, ch. 585, § 3; T.C.A., § 50-504; 2015, ch. 23, § 1.

Compiler's Notes. The federal Metal and Nonmetallic Mine Safety Act, referred to in this section, was repealed by Pub. L. No. 95-164, effective 120 days after November 9, 1977. See note concerning Pub. L. No. 95-164 at 30 U.S.C. § 801. For present law, see 30 U.S.C. § 801 et seq.

The federal Safety Appliance Act and the Railroad Safety Act of 1970, referred to in this section, were repealed by P.L. 103-272, § 7(b), 108 Stat. 1379, July 5, 1994, and are covered generally in 49 U.S.C. § 20101 et seq.

Amendments. The 2015 amendment deleted former (6) which read: “Employees covered by the Longshoremen's and Harbor Workers' Compensation Act, compiled in 33 U.S.C. §§ 901-950”.

Effective Dates. Acts 2015, ch. 23, § 2. July 1, 2015.

NOTES TO DECISIONS

1. Railroad Employees.

Railroad employees are not covered by the Occupational Safety and Health Act of 1972. Fowinkle v. Southern R. Co., 533 S.W.2d 728, 1976 Tenn. LEXIS 507 (Tenn. 1976).

2. Domestic Workers.

The domestic worker exception applies to household workers and has no relevance to relatives of the employer when they assist in his business. Acuff v. Commissioner of Tennessee Dep't of Labor, 554 S.W.2d 627, 1977 Tenn. LEXIS 645 (Tenn. 1977).

3. Subcontractors.

Safety regulations adopted under authority of T.C.A. §§ 50-3-104, 50-3-201 and 50-3-917 and safety rules incorporated by reference in T.C.A. § 68-16-104 (now T.C.A. § 68-101-104) do not impose a nondelegable duty upon a municipal electric system to furnish a safe work place for employees of a subcontractor. Dempsey v. Correct Mfg. Corp., 755 S.W.2d 798, 1988 Tenn. App. LEXIS 245 (Tenn. Ct. App. 1988).

4. —Individual Employees of Governmental Entity.

Employees of a county hospital authority were immune as individuals from a claim for retaliatory discharge. Coffey v. Chattanooga-Hamilton County Hosp. Auth., 932 F. Supp. 1023, 1996 U.S. Dist. LEXIS 10508 (E.D. Tenn. 1996), aff'd, Coffey v. Chattanooga Hamilton County Hosp. Auth., 1998 U.S. Dist. LEXIS 22509 (E.D. Tenn. Aug. 17, 1998).

Collateral References.

Preemptive effect of federal railroad safety act, exclusive of “essentially local safety or security hazard” savings clause. 44 A.L.R. Fed. 2d 261.

50-3-105. Employers' rights and duties.

Rights and duties of employers include, but are not limited to, the following:

  1. Each employer shall furnish to each of its employees conditions of employment and a place of employment free from recognized hazards that are causing or are likely to cause death or serious injury or harm to its employees;
  2. Each employer shall comply with occupational safety and health standards or regulations promulgated pursuant to this chapter;
  3. Each employer shall refrain from any unreasonable restraint on the right of the commissioner to inspect the employer's place of business. Each employer shall assist the commissioner in the performance of the commissioner's inspection duties by supplying or by making available information, personnel or inspection aids reasonably necessary to the effective conduct of the inspection;
  4. Any employer, or association of employers, is entitled to participate in the development of standards by submission of comments on proposed standards, participation in hearings on proposed standards, or by requesting the development of standards on a given issue, under § 50-3-201;
  5. Any employer is entitled, under § 50-3-307, to a review of any citation issued because of the employer's alleged violation of any standard promulgated under this chapter;
  6. Any employer is entitled, under §§ 50-3-402 — 50-3-408, to a review of any penalty in the form of civil damages assessed against the employer because of the employer's alleged violation of this chapter;
  7. Any employer is entitled, under part 6 of this chapter, to seek an order granting a variance from an occupational safety or health standard; and
  8. Any employer is entitled, under § 50-3-914, to protection of the employer's trade secrets and other legally privileged communications.

Acts 1972, ch. 561, § 4; 1974, ch. 585, §§ 4-7; 1977, ch. 111, § 3; impl. am. Acts 1977, ch. 111, § 44; T.C.A., § 50-505; Acts 1999, ch. 520, § 41.

Law Reviews.

“Get Off Your Butts”: The Employer's Right to Regulate Employee Smoking (David B. Ezra), 60 Tenn. L. Rev. 905 (1993).

The New ADA Backlash, 82 Tenn. L. Rev. 1 (2014).

Attorney General Opinions. Americans with Disabilities Act — smoking — employees — state buildings, OAG 93-40 (4/28/93).

NOTES TO DECISIONS

1. Dangerous Working Conditions.

Allegations that defendant knowingly permitted dangerous working conditions to exist and violated safety regulations is not sufficient to subject defendant to common law liability. The Workers' Compensation Law, compiled in title 50, chapter 6, provides the exclusive remedy for the entire injury and all of its damages. Mize v. Conagra, Inc., 734 S.W.2d 334, 1987 Tenn. App. LEXIS 2513 (Tenn. Ct. App. 1987).

Occupational Safety and Health Act claims against a city and the city manager were properly dismissed because decedents were employees of a general contract and were working on a building that was privately owned; the decedents'  workplace safety was the contractor's responsibility, and the city and manager were not required to prepare the engineering survey, brace the walls and floors, or to ensure that the contractor did. Kemper v. Baker, — S.W.3d —, 2012 Tenn. App. LEXIS 253 (Tenn. Ct. App. Apr. 19, 2012).

Collateral References.

Secondary smoke as battery. 46 A.L.R.5th 813.

50-3-106. Employees' rights and duties.

Rights and duties of employees include, but are not limited to, the following:

  1. Each employee shall comply with occupational safety and health standards and all rules, regulations and orders issued pursuant to this chapter that are applicable to the employee's own actions and conduct;
  2. Each employee shall be notified by the employee's employer of any application for a temporary order granting the employer a variance from this chapter or standard or regulation promulgated pursuant to this chapter;
  3. Each employee shall be given the opportunity to participate in any hearing that concerns an application by the employee's employer for a variance from a standard promulgated under this chapter;
  4. Any employee who may be adversely affected by a standard or variance issued pursuant to this chapter may file a petition with the commissioner;
  5. Any employee who has been exposed or is being exposed to toxic materials or harmful physical agents in concentrations or at levels in excess of that provided for by any applicable standard shall be provided by the employee's employer with the opportunities provided in § 50-3-203;
  6. Subject to regulations issued pursuant to this chapter, any employee or authorized representative of employees shall be given the right to request an inspection and to consult with the commissioner at the time of the physical inspection of any workplace, as provided in part 3 of this chapter;
  7. No employee shall be discharged or discriminated against because the employee has filed a complaint, instituted, or caused to be instituted a proceeding or inspection under or related to this chapter, or testified, or is about to testify, in a proceeding or because of the exercise by the employee on behalf of the employee or others of any right afforded by this chapter;
  8. Any employee who believes that the employee has been discriminated against or discharged in violation of subdivision (7) may, within thirty (30) days after the violation occurs, file a complaint with the commissioner alleging the discrimination. The commissioner shall act promptly on the complaint to determine whether to seek imposition of the sanction provided in § 50-3-409;
  9. Any employee or representative of employees who believes that any period of time fixed in the citation given to the employee's employer by the commissioner for correction of a violation is unreasonable has the right to contest the time for correction by filing a notice with the commissioner within twenty (20) days of the date the citation was issued;
  10. Nothing in this chapter or this section shall be deemed to authorize or require medical examination, immunization or treatment for those who object to the medical examination, immunization or treatment on religious grounds, except where the medical examination, immunization or treatment is necessary for the protection of the health or safety of others; and
  11. Any affected employee shall be notified by the employee's employer and shall be given the opportunity to participate in negotiations on alleged violations of occupational safety and health standards.

Acts 1972, ch. 561, § 5; 1974, ch. 585, § 8; 1977, ch. 111, § 4; T.C.A., § 50-506; Acts 1986, ch. 844, § 3; 1999, ch. 520, § 41.

Law Reviews.

Workers' Compensation — Anderson v. Standard Register Co.: Tennessee Supreme Court Specifies Elements Required to Establish a Cause of Action for Retaliatory Discharge in Workers' Compensation Cases, 24 Mem. St. U.L. Rev. 825 (1994).

NOTES TO DECISIONS

1. Construction.

Since the federal and state statutes concerning occupational safety and health are very broad and general, they do not create such a specially protected class of persons as to obviate contributory negligence as a defense. These statutes impose duties and obligations upon employees as well as employers. Bellamy v. Federal Express Corp., 749 S.W.2d 31, 1988 Tenn. LEXIS 42 (Tenn. 1988).

2. Remedies.

Tennessee courts have the equitable remedy of reinstatement available to them when an employee is discharged for seeking workers' compensation benefits. Sasser v. Averitt Express, Inc., 839 S.W.2d 422, 1992 Tenn. App. LEXIS 403 (Tenn. Ct. App. 1992).

50-3-107. Unpaid fines and penalties — Interest — Additional penalties for late payment.

  1. The commissioner shall refer any fine or penalty assessed under this chapter that remains unpaid for more than six (6) months from the date the order against the violator becomes final to the attorney general and reporter for enforcement. The attorney general and reporter is authorized to contract with one (1) or more private entities or individuals for the collection of these fines and penalties.
  2. When any person or entity is assessed a fine or penalty under this chapter, and the fines or penalties are not paid on or before the date they are due, as established in the final order or otherwise, interest shall be added to the amount due, in addition to any further penalty provided by law, at the rate established pursuant to § 67-1-801(a)(1).
  3. In addition to the interest assessed pursuant to subsection (b), there shall be imposed a penalty in the amount of ten percent (10%) of the unpaid fine or penalty amount for each thirty (30) days or fraction of the thirty-day period that the fine or penalty remains unpaid after becoming due, up to a maximum of thirty percent (30%) of the unpaid amount.
  4. Any interest or penalty imposed due to failure to pay a fine or penalty assessed under this chapter shall be considered a part of the delinquent fine or penalty and shall be collectible in the same manner as the fine or penalty.
  5. Any interest or penalty imposed and collected pursuant to this section shall be used to offset the cost of collection of the fines and penalties assessed under this chapter.
  6. The commissioner shall include within the department's annual report to the general assembly and the governor a listing of employers whose penalties remain unpaid more than one (1) year after a final order has been entered. The listing shall include the amount of any unpaid penalty for each employer.

Acts 1996, ch. 944, § 45; 1999, ch. 520, § 41.

Compiler's Notes. Acts 1996, ch. 944, which enacted this section, is known and may be cited as the “Workers' Compensation Reform Act of 1996.”

Cross-References. Reporting requirement satisfied by notice to general assembly members of publication of report, § 3-1-114.

50-3-108. Full payment required except in case of compromise and settlement.

The commissioner shall require the full amount of any penalty assessed by a final order of the department to be paid, unless the commissioner receives approval to compromise and settle the amount to be paid pursuant to § 20-13-103.

Acts 1996, ch. 944, § 46; 1999, ch. 520, § 41.

Compiler's Notes. Acts 1996, ch. 944, which enacted this section, is known and may be cited as the “Workers' Compensation Reform Act of 1996.”

Part 2
Standards

50-3-201. Regulations authorized.

  1. It is the responsibility of the commissioner of labor and workforce development to develop and promulgate regulations that adopt occupational safety and health standards.
  2. The commissioner may adopt as an occupational safety or health standard the federal standard relating to the same issue.
  3. The commissioner may, by regulation, promulgate, modify or revoke any occupational safety and health standard in the manner provided in the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
  4. The decision of an individual, corporation, business entity or local, state or federal government entity, or agent thereof, not to post property pursuant to § 39-17-1359, thereby allowing persons with handgun permits to carry a handgun on such property, does not constitute an occupational safety and health hazard within the jurisdiction of this chapter.

Acts 1972, ch. 561, § 6; 1977, ch. 111, § 5; T.C.A., § 50-507; Acts 1999, ch. 520, § 41; 2011, ch. 33, § 1.

Attorney General Opinions. Confidential HIV and hepatitis testing waivers, OAG 93-35 (4/7/93).

NOTES TO DECISIONS

1. Federal Preemption.

The authority of the Tennessee department of labor and workforce development to promulgate regulations regarding the use of pesticides in the workplace is not preempted by either the federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. §§ 136-136y, or the federal Occupational Safety and Health Act, 29 U.S.C. § 651 et seq.Terminix Int'l Co., L.P. v. Tenn. Dep't of Labor, 77 S.W.3d 185, 2001 Tenn. App. LEXIS 855 (Tenn. Ct. App. 2001).

2. Federal Standards.

Where federal standards are incorporated into the Tennessee standards, decisions under the federal regulations are of the very highest persuasive authority in interpreting the Tennessee regulation and should be adhered to closely. Acuff v. Commissioner of Tennessee Dep't of Labor, 554 S.W.2d 627, 1977 Tenn. LEXIS 645 (Tenn. 1977).

3. Subcontractors.

Safety regulations adopted under authority of T.C.A. §§ 50-3-104, 50-3-201 and § 50-3-917 and safety rules incorporated by reference in T.C.A. § 68-16-104 (now T.C.A. § 68-101-104) do not impose a nondelegable duty upon a municipal electric system to furnish a safe work place for employees of a subcontractor. Dempsey v. Correct Mfg. Corp., 755 S.W.2d 798, 1988 Tenn. App. LEXIS 245 (Tenn. Ct. App. 1988).

50-3-202. Criteria for standards.

  1. Regulations issued under § 50-3-201 shall provide, insofar as possible, the highest degree of health and safety protection for the employee; other considerations shall be the latest available scientific data in the field, the feasibility of the standard and experience gained under this and other health and safety laws.
  2. Whenever practical, the standard promulgated shall be expressed in terms of objective criteria and of the performance desired.
  3. In promulgating standards dealing with toxic materials or harmful physical agents, the commissioner shall set a standard that most adequately assures, to the extent possible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity even if the employee has regular exposure to the hazard dealt with by the standard for the period of the employee's working life.

Acts 1972, ch. 561, § 6; 1977, ch. 111, § 6; T.C.A., § 50-517.

50-3-203. Protective measures.

  1. Where appropriate, any standard promulgated under § 50-3-201 may prescribe the use of labels or other appropriate forms of warning to the extent necessary to ensure that employees are informed of any significant hazards to which they are exposed, relevant symptoms and proper conditions for safe use or exposure.
  2. Where appropriate, the standards may also prescribe suitable protective equipment, but not as a substitute for appropriate control techniques, as well as control or technological procedures to be used in connection with the hazards.
    1. Where appropriate, the administrator shall require the monitoring or measuring of employee exposure at the locations and intervals, and in the manner, necessary for the protection of the employees.
    2. Any employee who has been or is being exposed in a biologically significant manner to harmful agents or materials in excess of the applicable standard shall be promptly notified by the employee's employer, and informed of corrective action being taken.
  3. In addition, where appropriate, the standard shall prescribe the type and frequency of medical examinations or other tests that shall be made available, by the employer or at the employer's cost, to employees exposed to the hazards, in order to most effectively determine whether the health of the employees is adversely affected by the exposure.
    1. Where appropriate, the standards shall reduce the transmission of bloodborne pathogens through needles. The commissioners of labor and workforce development and health shall jointly review sharps injury prevention technology to include needleless systems and needles with engineered sharps injury protection.
    2. The commissioners shall jointly determine those environments where standards require that sharps injury prevention technology be employed. Sharps injury prevention technology shall not be required wherever the employer or other appropriate party demonstrates that the technology is medically contraindicated or is not more effective than alternative measures used by an employer to prevent exposure incidents.
    3. The standard shall require written exposure control plans be adopted by employers. Written exposure control plans shall be revised to reflect improvements in sharps injury prevention technology. Written exposure control plans shall include the type and brand of device used in an incident of exposure.
    4. The departments of labor and workforce development and health shall jointly compile and maintain a list of existing needleless systems and sharps with engineered sharps injury protection, that shall be available to assist employers in complying with the requirements of the bloodborne pathogen standards promulgated pursuant to this section. The list may be developed from existing sources of information, including, but not limited to, the federal food and drug administration, the federal centers for disease control, the national institute for occupational safety and health, and the United States department of veterans affairs.

Acts 1972, ch. 561, § 6; 1977, ch. 111, § 7; T.C.A., § 50-518; Acts 1999, ch. 37, § 1; 1999, ch. 520, § 41.

Collateral References.

Recovery of damages for expense of medical monitoring to detect or prevent future disease or condition. 17 A.L.R.5th 327.

50-3-204. Advisory committee.

  1. The commissioner may appoint an advisory committee to assist the commissioner in the development and review of regulations prescribing standards under § 50-3-201.
    1. The committee shall consist of an uneven number of persons, not to exceed seven (7), appointed by the commissioner, engaged in the development of the regulation.
    2. Membership on the committee shall include representatives qualified by experience and affiliation to present the diverse viewpoint of persons and groups most likely to be affected by the standards, and may include representatives of employers, employees, the insurance industry, the health professions and the safety professions.
    3. In the selection of members, the commissioner shall consider such criteria as special expertise in the health and safety fields, geographical distribution of members within the three (3) grand divisions of the state, the interests of state and local government and the interests of the public.
  2. Members of the advisory committee shall be reimbursed for their expenses and shall be paid on a per diem basis for days actually and necessarily employed in the discharge of official duties of the committee at a rate to be determined by the commissioner and approved by the department of finance and administration.
    1. Administrative and technical assistance reasonably required by the advisory committee shall be provided by the commissioner.
    2. The committee may seek advice and information from interested and knowledgeable parties and governmental agencies to assist it in the determination of its recommended standards.

Acts 1972, ch. 561, § 7; 1977, ch. 111, § 8; impl. am. Acts 1977, ch. 111, § 44; T.C.A., § 50-519.

Cross-References. Grand divisions, title 4, ch. 1, part 2.

Part 3
Inspections

50-3-301. Inspections authorized.

In order to carry out the purposes of this chapter, the commissioner of labor and workforce development, upon presenting appropriate credentials to the owner, operator or agent in charge, is authorized to:

  1. Enter without delay and at any reasonable time any factory, plant, establishment, construction site, or other area, workplace or environment where work is performed by an employee of an employer; and
  2. Inspect and investigate during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner, the places of employment and all pertinent conditions, processes, structures, machines, apparatus, devices, equipment and materials in the places of employment, and question privately any employer, owner, operator, agent or employee.

Acts 1972, ch. 561, § 8; 1977, ch. 111, § 9; T.C.A., § 50-520; Acts 1999, ch. 520, § 41.

Cross-References. Administrative inspections, title 50, ch. 4.

50-3-302. Witnesses.

  1. In making inspections and investigations under this chapter, the commissioner may issue subpoenas to require the attendance and testimony of witnesses and the production of evidence under oath.
  2. Witnesses shall be reimbursed for all travel and other necessary expenses that shall be claimed and paid in accordance with the prevailing travel regulations of the state.
  3. In case of a failure or refusal of any person to obey a subpoena issued under §§ 50-3-301 — 50-3-306, the chancery court of the county in which the inspection or investigation is conducted shall have jurisdiction, upon application of the commissioner, to issue an order requiring the person to appear and testify or produce evidence as the case may require, and any failure to obey the order of the court may be punished by the court as contempt of the order.
  4. The name, job title and other information that may be used to identify a witness who is interviewed during the course of an investigation shall be considered confidential and shall not be a public record pursuant to title 10, chapter 7.

Acts 1972, ch. 561, § 8; 1977, ch. 111, § 10; T.C.A., § 50-521; Acts 2004, ch. 558, § 1.

Cross-References. Confidentiality of public records, § 10-7-504.

Contempt, § 29-9-103, Tenn. R. Crim. P. 42.

Attorney General Opinions. Disclosure of witness identifying information in matters before the occupational safety and health review commission, OAG 05-168 (11/1/05).

50-3-303. Representation of employers and employees during inspection.

  1. Subject to regulations issued by the commissioner of labor and workforce development, a representative of the employer and a representative authorized by the employer's employees shall be given an opportunity to accompany the commissioner or the commissioner's authorized representative during the physical inspection of any workplace under § 50-3-301 for the purpose of aiding the inspection.
  2. Where there is no authorized employee representative, the commissioner or the commissioner's authorized representative shall consult with a reasonable number of employees concerning matters of health and safety in the workplace.

Acts 1972, ch. 561, § 8; 1974, ch. 585, § 10; 1977, ch. 111, § 11; T.C.A., § 50-522; Acts 1999, ch. 520, § 41.

50-3-304. Notice by employees of dangerous conditions or violations.

    1. Any employees or representative of employees who believes that a violation of a safety or health standard exists that threatens physical harm, or that an imminent danger exists, may request an inspection by giving notice of the violation or danger to the commissioner.
    2. The notice shall be in writing, shall set forth with reasonable particularity the grounds for the notice, and shall be signed by employees or representative of employees, and a copy shall be provided the employer or the employer's agent no later than at the time of inspection.
    3. Upon the request of the person giving the notice, the person's name and the names of individual employees referred to in the notice shall not appear in the copy or on any record published, released or made available pursuant to § 50-3-305.
    4. If upon receipt of the notification the commissioner determines there are reasonable grounds to believe that the violation or danger exists, the commissioner shall make a special investigation in accordance with §§ 50-3-301 — 50-3-306 as soon as practicable, to determine if a violation or danger exists.
    5. If the commissioner determines there are not reasonable grounds to believe that a violation or danger exists, the commissioner shall notify the employees or representative of the employees in writing of the determination.
  1. Prior to or during any inspection of a workplace, any employees or representative of employees employed in the workplace may notify the commissioner, in writing, of any violation of this chapter that they have reason to believe exists in the workplace. The commissioner shall, by regulation, establish procedures for informal review of any refusal by a representative of the commissioner to issue a citation with respect to the alleged violation and shall furnish the employees or representative of employees requesting the review a written statement of the reasons for the commissioner's final disposition of the case.

Acts 1972, ch. 561, § 8; 1977, ch. 111, § 12; T.C.A., § 50-523.

50-3-305. Reports of inspections and investigations.

The commissioner of labor and workforce development is authorized to compile, analyze and publish, either in summary or detailed form, all reports or information obtained under §§ 50-3-30150-3-306, subject to the restriction of § 50-3-915.

Acts 1972, ch. 561, § 8; 1974, ch. 585, § 11; 1977, ch. 111, § 13; T.C.A., § 50-524; Acts 1999, ch. 520, § 41.

50-3-306. Advance notice of inspections prohibited — Exceptions.

  1. Inspections conducted under §§ 50-3-301 — 50-3-306 shall be accomplished without advance notice, subject to the exceptions in subsection (b).
  2. The commissioner may authorize the giving to any employer or employee advance notice of an inspection only when the giving of notice is essential to the effectiveness of the inspection, and in keeping with regulations issued by the commissioner.

Acts 1972, ch. 561, § 8; 1977, ch. 111, § 14; T.C.A., § 50-525; Acts 1999, ch. 520, § 41.

50-3-307. Citation of violations.

    1. If, upon an inspection or investigation, the commissioner believes that an employer is not in compliance with any standard or regulation promulgated by the commissioner pursuant to this chapter, the commissioner shall, with reasonable promptness and in no event later than six (6) months following the inspection, issue to the employer by certified mail, by delivery service with delivery receipt, or via hand delivery, a written citation that states the nature and location of the violation, including a reference to the chapter, standard or regulation alleged to have been violated.
    2. In addition, the citation shall fix a reasonable time for abatement of the violation.
    3. If the commissioner has reason to believe that the violation, or the failure to abate the violation, should result in the assessment of a penalty under §§ 50-3-402 — 50-3-408, the citation may so state.
    4. A copy of each citation shall immediately be posted by the employer at or near each location referred to in the citation.
    5. Whenever the abatement or correction requirements of this chapter conflict with any local zoning ordinance, this chapter shall govern.
    6. A citation issued pursuant to this chapter shall become a final order of the department twenty (20) days after its receipt by the employer.
    1. At any time within twenty (20) days after receipt of the citation, an employer or affected employee, or group of employees or their representative, may advise the commissioner of objections to the terms and conditions of the citation.
    2. Upon receipt of the objections, the commissioner shall notify the occupational safety and health review commission of the receipt of the objections, and the commission shall afford an opportunity for a hearing.
    3. The commission shall thereafter issue an order affirming, modifying or vacating the citation.
    4. The order shall become final thirty (30) days after its issuance, unless within that period judicial review of the order has been sought pursuant to § 50-3-806.

Acts 1972, ch. 561, § 9; 1974, ch. 585, §§ 12, 13; 1977, ch. 111, §§ 15, 16; T.C.A., §§ 50-526, 50-527; Acts 1999, ch. 520, § 41; 2001, ch. 62, § 1; 2007, ch. 102, § 1.

Attorney General Opinions. State agency assessment of penalty without jury trial, OAG 99-123 (6/18/99).

Part 4
Civil Remedies

50-3-401. Injunctive relief.

    1. Where the commissioner of labor and workforce development has reason to believe that any condition or practice in any place of employment could reasonably be expected to cause death or serious physical harm immediately or before the imminence of the danger can be eliminated through the enforcement procedures otherwise provided by this chapter, the commissioner may institute proceedings to prevent, correct or remove the conditions or practice in any court having statutory power to enjoin or restrain in the county in which the condition or practice exists.
    2. Injunctive relief granted under this subsection (a) may require the removal of all individuals from the place of employment except those individuals required to prevent, correct or remove the imminent danger.
    3. In the event that cessation of employment operations is necessary, the injunctive relief may require the cessation to be accomplished in a safe and orderly manner.
  1. For the purpose of Rule 65.03 of the Tennessee Rules of Civil Procedure, the commissioner, when seeking relief under subsection (a), shall be considered to represent the interest of any employee affected by the condition or practice referred to by subsection (a).
  2. Institution of a proceeding for injunctive relief under this section shall not in any way bar the institution or continuation of proceedings for the imposition of monetary penalties under §§ 50-3-402 — 50-3-408.
  3. Any employee or group of employees affected by a condition or practice referred to in subsection (a) may be permitted to intervene in an action brought by the commissioner pursuant to this section; provided, that the intervention is subject to the discretion of the court in which the action is brought.

Acts 1972, ch. 561, § 10; 1974, ch. 585, §§ 14, 15; 1977, ch. 111, §§ 17, 18; T.C.A., §§ 50-528 — 50-530; Acts 1999, ch. 520, § 41.

50-3-402. Authority of commissioner.

  1. The commissioner has the authority to assess monetary penalties as provided in this section and §§ 50-3-403 — 50-3-408 for any violation of this chapter or of any standard, rule or order adopted by regulation promulgated by the commissioner pursuant to this chapter.
  2. In making the assessment, the commissioner shall give due consideration to the appropriateness of the penalty with respect to the size of the business of the employer charged, the gravity of the violation, the good faith of the employer and the employer's history of previous violations.

Acts 1972, ch. 561, § 11; 1974, ch. 585, § 16; 1977, ch. 111, § 19; T.C.A., § 50-531; Acts 1999, ch. 520, § 41.

Attorney General Opinions. State agency assessment of penalty without jury trial, OAG 99-123 (6/18/99).

50-3-403. Knowledge of conditions endangering health or safety — Penalty.

If an employer knows or has reason to know that an employment condition or practice in the employer's business seriously endangers the health or safety of the employer's employees, and if the condition or practice is not in compliance with any standard promulgated pursuant to this chapter, a penalty of up to seven thousand dollars ($7,000) shall be assessed for each violation.

Acts 1972, ch. 561, § 11; 1977, ch. 111, § 20; T.C.A., § 50-532; Acts 1991, ch. 170, § 1.

50-3-404. Failure to correct violation of standard or regulation — Penalty.

  1. Any employer who has received a citation for a violation of this chapter or standard or regulation promulgated pursuant to this chapter, and has failed to correct the violation within the period of correction of the citation, shall be assessed a penalty of up to seven thousand dollars ($7,000) for each day the violation exists.
  2. The period of correction may be suspended or lengthened by the commissioner upon a showing by the employer of a good faith effort to comply with the correction requirements, and that failure to comply with the correction requirements is due to factors beyond the employer's reasonable control.

Acts 1972, ch. 561, § 11; 1977, ch. 111, § 21; T.C.A., § 50-533; Acts 1991, ch. 170, § 2.

50-3-405. Violation of standard or regulation — Nonserious violation — Willful or repeat violations — Penalties.

  1. Any employer who has received a citation for a violation of this chapter or standard or regulation promulgated pursuant to this chapter, and the violation is specifically determined not to be of a serious nature, may be assessed a penalty of up to seven thousand dollars ($7,000) for each violation.
  2. Any employer who willfully or repeatedly violates the requirements of this chapter or standard or regulation promulgated pursuant to this chapter may be assessed a penalty of up to seventy thousand dollars ($70,000) for each violation.

Acts 1974, ch. 585, § 34; T.C.A., §§ 50-534, 50-535; Acts 1991, ch. 170, §§ 3, 4.

50-3-406. Violation of posting requirements.

Any employer who violates any of the posting requirements, as prescribed in this chapter, shall be assessed a penalty of up to seven thousand dollars ($7,000) for each violation.

Acts 1974, ch. 585, § 34; T.C.A., § 50-536; Acts 1991, ch. 170, § 5.

50-3-407. Manner of imposing penalties.

  1. Penalties provided for by §§ 50-3-402 — 50-3-408 shall be imposed in the following manner: whenever the commissioner has determined that a penalty should be assessed against an employer, the commissioner shall issue a written notification to the employer by certified mail, stating the amount of the penalty to be assessed, the reason for the assessment, which may be done by reference to citations issued prior to or simultaneously with the notification, and informing the employer of the employer's right to appeal to the occupational safety and health review commission.
  2. If, within twenty (20) days from the receipt of notification, the employer fails to notify the commissioner that the employer intends to contest the imposition of the penalty, the assessment of a penalty as stated in the notification shall be deemed a final order of the commissioner, and shall not be subject to further review.
    1. If an employer notifies the commissioner within twenty (20) days of receipt of notification of a penalty that the employer intends to contest the penalty, the commissioner shall advise the commission of the notification, and the commission shall afford an opportunity for a hearing.
    2. The commission shall thereafter issue an order, based on findings of fact, affirming, modifying or vacating the commissioner's citation or assessment of penalty.
    3. The order shall become final thirty (30) days after its issuance, unless within that period judicial review of the order has been sought pursuant to § 50-3-806.

Acts 1972, ch. 561, § 11; 1974, ch. 585, §§ 17, 34; 1977, ch. 111, § 22; T.C.A., § 50-537; Acts 1999, ch. 520, § 41.

Attorney General Opinions. State agency assessment of penalty without jury trial, OAG 99-123 (6/18/99).

50-3-408. Payment of penalties — Action to recover.

All penalties owed under this chapter shall be paid to the commissioner for deposit into the state treasury in the general fund and shall be earmarked for expenditure solely for use in the division of occupational safety and health equally between enforcement activities and the safety consulting service conducted under this chapter, and may be recovered in a civil action in the name of the state, in the county where the violation is alleged to have occurred or where the employer has its principal office.

Acts 1972, ch. 561, § 11; 1974, ch. 585, § 34; 1977, ch. 111, § 23; T.C.A., § 50-538; Acts 1996, ch. 944, § 44; 1999, ch. 520, § 41.

Compiler's Notes. Acts 1996, ch. 944, which amended this section, is known and may be cited as the “Workers' Compensation Reform Act of 1996.”

50-3-409. Discrimination against employee.

  1. No person shall discharge or in any manner discriminate against any employee because the employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding, or because of the exercise by the employee on behalf of the employee or others of any rights afforded by this chapter.
    1. Any employee who believes that the employee has been discharged or otherwise discriminated against by any person in violation of this section may, within thirty (30) days after the violation occurs, file a complaint with the commissioner of labor and workforce development alleging the discrimination.
    2. Upon receipt of the complaint, the commissioner shall cause an investigation to be made that the commissioner deems appropriate.
      1. If, upon investigation, the commissioner determines that this section has been violated, the commissioner shall bring an action in any appropriate chancery court against the person.
      2. In any such action, the chancery courts shall have jurisdiction, for cause shown, to restrain violations of subsection (a) and order all appropriate relief, including rehiring or reinstatement of the employee to the employee's former position with back pay.
  2. Within ninety (90) days of the receipt of a complaint filed under this section, the commissioner shall notify the complainant of the commissioner's determination under subsection (b).

Acts 1972, ch. 561, § 12; 1974, ch. 585, §§ 21, 35; T.C.A., § 50-542; Acts 1999, ch. 520, § 41.

Attorney General Opinions. Tennessee Occupational Safety and Health Administration has no statutory authority to investigate or prosecute a complaint of discrimination by an employee of a state government department or agency pursuant to this section, but such agencies may enter into agreements with the Department of Labor and Workforce Development allowing for investigations and sanctions, OAG 03-115 (9/10/03).

NOTES TO DECISIONS

1. Exclusive Remedy.

In an employee's suit against her former employer alleging common law and statutory claims of retaliatory discharge after she complained of an activity by a co-worker that she found personally offensive in that it created a foul smell and dust, the employee's claim of common law retaliatory discharge was not applicable because the Tennessee Occupational Safety and Health Act, T.C.A. § 50-3-409, provided the exclusive remedy. And as the employee but did not cite any specific threat either to her own health or safety or that of the public, and failed to show that the employer's activities implicated fundamental public policy concerns, the trial court properly dismissed the employee's claim under the Tennessee Public Protection Act, T.C.A. § 50-1-304 as well. Boyd v. Edwards & Assocs., 309 S.W.3d 470, 2009 Tenn. App. LEXIS 165 (Tenn. Ct. App. Apr. 30, 2009), appeal denied, — S.W.3d —, 2009 Tenn. LEXIS 867 (Tenn. Dec. 21, 2009).

Part 5
Criminal Offenses and Penalties

50-3-501. Unauthorized advance notice of inspection.

Any person who, without proper authorization, gives advance notice of any inspection to be conducted under this chapter commits a Class C misdemeanor.

Acts 1972, ch. 561, § 12; 1974, ch. 585, §§ 18, 34; T.C.A. § 50-539; Acts 1989, ch. 591, § 113.

Cross-References. Penalty for Class C misdemeanor, § 40-35-111.

Law Reviews.

The Tennessee Court Systems — The Jury System (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 489 (1978).

Collateral References.

What constitutes “repeated” or “willful” violation for purposes of state occupational safety and health acts. 17 A.L.R.6th 715.

50-3-502. False statements or representations in applications, records, reports or documents.

Any person who knowingly makes any false statement, representation or certification in any application, record, report or other document filed or required to be filed or maintained pursuant to this chapter commits a Class C misdemeanor.

Acts 1972, ch. 561, § 12; 1974, ch. 585, §§ 19, 34; T.C.A., § 50-540; Acts 1989, ch. 591, § 113.

Cross-References. Penalty for Class C misdemeanor, § 40-35-111.

Collateral References.

What constitutes “repeated” or “willful” violation for purposes of state occupational safety and health acts. 17 A.L.R.6th 715.

50-3-503. Death of employee caused by willful violation of standard.

Any employer who willfully violates any standard adopted by regulation promulgated pursuant to § 50-3-201, which violation causes the death of any employee, commits a Class A misdemeanor.

Acts 1972, ch. 561, § 12; 1974, ch. 585, §§ 20, 35; impl. am. Acts 1977, ch. 111, § 44; T.C.A., § 50-541; Acts 1989, ch. 591, § 111.

Cross-References. Penalty for Class A misdemeanor, § 40-35-111.

Collateral References.

What constitutes “repeated” or “willful” violation for purposes of state occupational safety and health acts. 17 A.L.R.6th 715.

50-3-504. Disclosure of trade secrets or privileged information.

A representative of the commissioner of labor and workforce development who publishes, divulges, discloses, or makes known in any manner or to any extent not authorized by law any information coming to the representative in the course of the representative's employment or official duties or by reason of any examination or investigation made by, or return, report, or record made to or filed with the representative, which information contains or might reveal a trade secret or is otherwise privileged, commits a Class A misdemeanor.

Acts 1974, ch. 585, § 36; 1977, ch. 111, § 24; T.C.A., § 50-543; Acts 1989, ch. 591, § 1; 1999, ch. 520, § 41.

Cross-References. Penalty for Class A misdemeanor, § 40-35-111.

Law Reviews.

Keep your Friends Close:  A Framework for Addressing Rights to Social Media Contacts, 67 Vand. L. Rev. 1459 (2014).

Collateral References.

What constitutes “repeated” or “willful” violation for purposes of state occupational safety and health acts. 17 A.L.R.6th 715.

50-3-505. Enforcement of part and criminal penalties.

The commissioner of labor and workforce development may seek enforcement of this part, and may offer to any district attorney general assistance that may be appropriate and feasible for the purpose of giving effect to this part, including the services of staff attorneys.

Acts 1972, ch. 561, § 12; 1974, ch. 585, §§ 22, 36; 1977, ch. 111, § 25; T.C.A., § 50-544; Acts 1999, ch. 520, § 41.

Collateral References.

What constitutes “repeated” or “willful” violation for purposes of state occupational safety and health acts. 17 A.L.R.6th 715.

50-3-506. Grand jury — Enforcement duties.

The grand jury of each county is given inquisitorial power for the purpose of the enforcement of this part, and shall inquire promptly into any alleged violation brought to the attention of the grand jury by the commissioner of labor and workforce development.

Acts 1972, ch. 561, § 12; 1974, ch. 585, §§ 22, 36; 1977, ch. 111, § 26; T.C.A., § 50-545; Acts 1999, ch. 520, § 41.

Law Reviews.

The Tennessee Court Systems — The Jury System (Frederic S. LeClercq), 8 Mem. St. U.L. Rev. 489 (1978).

Part 6
Variances

50-3-601. Temporary variances authorized.

  1. The commissioner of labor and workforce development may, upon written application by an employer, issue an order granting the employer a temporary variance from standards promulgated under this chapter.
  2. The order shall prescribe the practices, means, methods, operations and processes that the employer must adopt or use while the variance is in effect and state in detail a program for coming into compliance with the standard.

Acts 1972, ch. 561, § 13; 1974, ch. 585, § 36; 1977, ch. 111, § 27; T.C.A., § 50-546; Acts 1999, ch. 520, § 41.

50-3-602. Temporary variances — Notice — Duration — Renewals.

  1. The temporary variance provided for in § 50-3-601 may be granted only after notice to employees and interested parties and opportunity for hearing.
  2. The variance may be for a period of no longer than required to achieve compliance or one (1) year, whichever is shorter.
  3. The variance may be renewed only once; provided, that longer variances may be granted in the case of employers who undertake experimental programs in safety and health that are either in cooperation with state or federal agencies or approved by the commissioner.
  4. Application for renewal of a variance must be filed in accordance with provisions in the initial grant of the variance.

Acts 1972, ch. 561, § 13; 1974, ch. 585, § 36; 1977, ch. 111, § 28; T.C.A., § 50-547.

50-3-603. Temporary variances — Grounds.

An order granting a temporary variance shall be issued only if the employer establishes that:

    1. The employer is unable to comply with the standard by the effective date because of the unavailability of professional or technical personnel or materials and equipment required or necessary construction or alteration of facilities or technology;
    2. All available steps have been taken to safeguard the employer's employees against the hazards covered by the standard; and
    3. The employer has an effective program for coming into compliance with the standard as quickly as practicable; or
  1. The employer is engaged in an experimental program as described in § 50-3-602.

Acts 1972, ch. 561, § 13; 1974, ch. 585, § 36; T.C.A., § 50-548.

50-3-604. Temporary variances — Applications.

An application for a temporary variance shall contain:

  1. A specification of the standard or portion of the standard from which the employer seeks a variance;
  2. A detailed statement of the reasons why the employer is unable to comply with the standard, supported by representations by qualified personnel having firsthand knowledge of the facts represented;
  3. A statement of the steps the employer has taken and will take with specified dates, to protect employees against the hazard covered by the standard;
  4. A statement of when the employer expects to comply and what steps the employer has taken or will take with specified dates to come into compliance with the standard; and
  5. A certification that the employer has informed the employer's employees of the application by giving a copy of it to their authorized representatives, posting a statement summarizing the application, to include the location of a copy available for examination, at the places where employee notices are normally posted and by other appropriate means. The certification shall contain a description of the means actually employed to inform employees and that employees have been informed of their right to petition the commissioner for a hearing.

Acts 1972, ch. 561, § 13; 1974, ch. 585, § 36; T.C.A., § 50-549.

50-3-605. Permanent variances.

    1. Any affected employer may apply to the commissioner for a rule or order for a variance from a standard.
    2. Affected employees shall be given notice of each application and an opportunity to participate in a hearing.
  1. The commissioner shall issue the rule or order if the commissioner determines on the record, after opportunity for an inspection where appropriate and a hearing, that the proponent of the variance has demonstrated by a preponderance of the evidence that the conditions, practices, means, methods, operations or processes used or proposed to be used by an employer will provide employment and places of employment to the employer's employees that are as safe and healthful as those that would prevail if the employer complied with the standard.
  2. The rule or order issued shall prescribe the conditions the employer must maintain, and the practices, means, methods, operations and processes that the employer must adopt and utilize, to the extent they differ from the standard in question.
  3. The rule or order may be modified or revoked upon application by an employer, employees, or by the commissioner on the commissioner's own motion, in the manner prescribed for its issuance under this section at any time after six (6) months from its issuance.

Acts 1974, ch. 585, § 37; 1977, ch. 111, § 29; T.C.A., § 50-550; Acts 1999, ch. 520, § 41.

50-3-606. Interim variances.

  1. Upon receipt of an application for an order granting a variance, the commissioner may issue an interim order granting the variance for the purpose of permitting time for an orderly consideration of the application.
  2. No interim order may be effective for longer than one hundred eighty (180) days.

Acts 1972, ch. 561, § 13; 1974, ch. 585, § 37; 1977, ch. 111, § 30; T.C.A., § 50-551.

Part 7
Records and Reports

50-3-701. Records and reports generally.

Each employer shall make available to the commissioner of labor and workforce development, in the manner the commissioner requires, copies of the same records and reports regarding the employer's activities relating to this chapter as are required to be made, kept or preserved by 29 U.S.C. § 657(c) and regulations made pursuant to 29 U.S.C. § 657(c).

Acts 1972, ch. 561, § 14; 1974, ch. 585, § 37; T.C.A., § 50-552; Acts 1999, ch. 520, § 41.

50-3-702. Accident reports.

    1. Each employer shall, in addition to making available to the commissioner the records and reports required by § 50-3-701, report each and every accident resulting in a work-related death or personal injury as defined in § 50-6-102.
    2. Reports of accidents that result in death or personal injury of a nature that the injured person does not return to the person's employment within seven (7) days after the occurrence of the accident shall be submitted to the bureau of workers' compensation as soon as possible, but not later than fourteen (14) days after the accident. Reports of all accidents causing seven (7) days of disability or fewer shall be submitted to the bureau of workers' compensation on or before the fifteenth day of the month following the month covered by the report.
    3. The information required in the reports provided for in subdivision (a)(1) shall be prescribed by the commissioner and forms for making the reports shall be available on request.
    4. Special or additional reports shall be furnished, on written request of the commissioner, to provide any other necessary information.
    5. No report required by § 50-3-701 and this section shall be used in any judicial proceeding.
  1. The employer's first report of work injury records that are maintained by the bureau are confidential. After completing a standard authorization form, which shall be provided by the bureau, an employee or an employee's attorney may obtain a copy of any report that concerns the employee's work injury. An employer may inquire in writing of the bureau to determine whether a job applicant has responded truthfully concerning any prior work injury. Nothing contained in this subsection (b) shall be construed or implemented to alter or amend existing law pertaining to Occupational Safety and Health Administration (OSHA) Form 300 reports. This section does not apply to a collective bargaining agent as certified by the national labor relations board (NLRB).

Acts 1972, ch. 561, § 14; 1974, ch. 585, §§ 23, 37; 1978, ch. 503, § 1; impl. am. Acts 1980, ch. 534, § 1; T.C.A., § 50-553; Acts 1990, ch. 839, § 1; 1999, ch. 520, § 41; 2002, ch. 540, § 1; 2015, ch. 341, § 16.

Amendments. The 2015 amendment substituted “bureau of workers' compensation” for “division of workers' compensation” twice in (a)(2).

Effective Dates. Acts 2015, ch. 341, § 19. May 4, 2015.

Cross-References. Confidentiality of public records, § 10-7-504.

Part 8
Occupational Safety and Health Review Commission

50-3-801. Creation — Members.

  1. There is created the occupational safety and health review commission, consisting of three (3) members to be appointed by the governor, each member to serve for a period of three (3) years.
  2. The governor shall designate one (1) member to serve as chair.
  3. The members shall be chosen from persons qualified by education, training or experience to carry out the functions of the commission.
  4. Service on the commission for a term shall not render a person ineligible for reappointment.
  5. Each member shall be reimbursed for travel in accordance with the comprehensive travel regulations as approved by the attorney general and reporter and the commissioner of finance and administration.
  6. A per diem allowance of fifty dollars ($50.00) shall only be paid to members for meetings at which a quorum is present.
  7. In the event a member is unable to complete the member's term, the member's replacement shall serve only the remainder of the term of the member the replacement replaces, unless reappointed.

Acts 1972, ch. 561, § 15; 1974, ch. 585, § 37; 1976, ch. 707, § 1; 1976, ch. 806, § 1(74); T.C.A., § 50-554.

Code Commission Notes.

Former subsection (c), concerning terms to be served by members on initial appointment, was deleted as obsolete by the code commission in 2008.

Compiler's Notes. The occupational safety and health review commission, created by this section, terminates June 30, 2021. See §§ 4-29-112, 4-29-242.

Law Reviews.

The Exclusiveness of an Employee's Workers Compensation Remedy Against His Employer (Joseph H. King, Jr.), 55 Tenn. L. Rev. 405 (1988).

50-3-802. Functions.

  1. The function of the commission shall be to review citations issued under § 50-3-307 and monetary penalties assessed under §§ 50-3-402 — 50-3-408.
  2. The commission may affirm, modify or revoke a citation or a monetary penalty.

Acts 1972, ch. 561, § 15; 1974, ch. 585, §§ 24, 37; T.C.A., § 50-555.

50-3-803. Hearings.

  1. The commission or its appointed hearing examiners may hold hearings at places of convenience to the parties concerned.
  2. The powers of the commission in the conduct of hearings, including the power to administer oaths and subpoena persons, may be exercised on its behalf by a member, members or a hearing examiner appointed by the chair of the commission.
  3. Hearings may be conducted on the basis of oral or written evidence.
  4. The commission may administer oaths and subpoena persons, including parties, as witnesses and may compel them to produce documentary evidence for hearings.
  5. Timely notice of the hearing and its time and place, as well as the future storage place for the hearing record, shall be given to the parties, and copies of the notice of the hearing shall be posted by the employer at places the commission shall require.
  6. The hearings shall be open to the public and the records of hearings shall be maintained and available for examination.
  7. For the orderly transaction of the hearings, the Tennessee Rules of Civil Procedure shall be used unless a different rule is adopted by the commission.
  8. The rules of the commission shall provide affected employees or their representatives an opportunity to participate as parties.

Acts 1972, ch. 561, § 15; 1974, ch. 585, § 37; T.C.A., § 50-556.

Attorney General Opinions. State agency assessment of penalty without jury trial, OAG 99-123 (6/18/99).

50-3-804. Quorum.

For the purpose of carrying out its functions under this chapter, two (2) members of the commission shall constitute a quorum, and official action can be taken only on the affirmative vote of at least two (2) members.

Acts 1972, ch. 561, § 15; 1974, ch. 585, § 37; T.C.A., § 50-557.

50-3-805. Facilities.

It is the duty of the department of labor and workforce development to provide equipment, supplies, clerical assistance, and the like, that the commission reasonably requires.

Acts 1972, ch. 561, § 15; 1974, ch. 585, § 37; T.C.A., § 50-558; Acts 1999, ch. 520, § 41.

50-3-806. Appeals.

  1. An appeal may be taken from any final order or other final determination of the commission by any person, including the commissioner, who is or may be adversely affected by the final order or other final determination.
  2. The appeal shall be processed in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Acts 1972, ch. 561, § 16; 1974, ch. 585, §§ 24, 25, 37; 1977, ch. 111, §§ 31, 32; T.C.A., §§ 50-559, 50-560.

Compiler's Notes. This section may be affected by T.R.A.P. 3(e).

Attorney General Opinions. State agency assessment of penalty without jury trial, OAG 99-123 (6/18/99).

Part 9
Miscellaneous Administrative and Enforcement Provisions

50-3-901. Delegation of powers and duties by the commissioner.

  1. The commissioner shall designate those persons in the commissioner's department responsible for carrying out the commissioner's powers, duties and responsibilities under this chapter.
  2. The persons designated shall be qualified by education, training and experience to ensure the effectiveness of this chapter.

Acts 1972, ch. 561, § 17; 1974, ch. 585, § 37; 1977, ch. 111, § 33; T.C.A., § 50-561.

50-3-902. Delegation of power of inspection.

The commissioner of labor and workforce development may delegate the power to conduct inspections under §§ 50-3-30150-3-306 to any other department of state government or to any local or regional health agency; provided, that the procedures employed by the department or agency are as effective as those employed by the commissioner.

Acts 1972, ch. 561, § 17; 1974, ch. 585, § 37; 1977, ch. 111, § 34; T.C.A., § 50-562; Acts 1999, ch. 520, § 41.

50-3-903. Limitation on delegation of powers.

  1. The commissioner of labor and workforce development shall not designate any person of a rank below division administrator to:
    1. Determine to institute an action under § 50-3-401;
    2. Seek judicial review under § 50-3-806;
    3. Recommend to a district attorney general the institution of a criminal proceeding under § 50-3-409 or part 5 of this chapter; or
    4. Permit the giving of advance notice of an inspection under §§ 50-3-301 — 50-3-306.
  2. The commissioner shall not designate any person of a rank below division director to assess penalties under §§ 50-3-402 — 50-3-408.

Acts 1972, ch. 561, § 17; 1974, ch. 585, §§ 26, 37; 1977, ch. 111, § 35; T.C.A., § 50-563; Acts 1999, ch. 520, § 41; 2000, ch. 637, § 1.

50-3-904. Educational programs authorized.

The commissioner of labor and workforce development may engage in educational programs to provide an adequate supply of qualified personnel to carry out the purposes of this chapter, and is authorized to conduct, directly or by grants or contracts, training of personnel engaged in work related to the commissioner's responsibilities under this chapter. In carrying out the commissioner's responsibilities under this chapter, the commissioner is authorized to:

  1. Use, with the consent of any state agency or agency of county or municipal government, the services, facilities and personnel of the agency, with or without reimbursement in accordance with existing regulations and procedures;
  2. Employ experts and consultants or organizations of experts and consultants; and compensate the individuals employed at rates determined by the commissioner and approved by the department of finance and administration, including travel time, and allow them travel expenses while employed;
  3. Engage in programs of research, demonstrations and experiments, directly, or by grant or contract, relating to occupational safety and health; and
  4. Provide to employers or employees, to the extent feasible, advice and assistance to enable them to improve occupational safety and health in their work places.

Acts 1972, ch. 561, § 17; 1974, ch. 585, § 37; 1977, ch. 111, § 36; T.C.A., § 50-565; Acts 1999, ch. 520, § 41.

50-3-905. Duties of attorney general and reporter and district attorneys general.

It is the duty of the attorney general and reporter and of the district attorneys general in the various districts of the state to assist the commissioner of labor and workforce development, upon the commissioner's request, and to act promptly upon the commissioner's recommendations for the prosecution of persons alleged to be subject to sanctions under § 50-3-409 or part 5 of this chapter.

Acts 1972, ch. 561, § 18; 1974, ch. 585, §§ 27, 37; 1977, ch. 111, § 37; 1979, ch. 422, § 24; T.C.A. § 50-566; Acts 1999, ch. 520, § 41.

Law Reviews.

The Tennessee Court Systems — Prosecution (Frederic S. LeClercq), 8 Mem. St. U.L. Rev. 477 (1978).

50-3-906. State departments and agencies — Responsibilities.

It is the responsibility of each administrative department, commission, board, division or other agency of the state to establish and maintain an effective and comprehensive occupational safety and health program consistent with the standards promulgated under this chapter. The head of each agency shall, in consultation with employees or representatives of employees of the agency:

  1. Provide a safe and healthful place and conditions of employment;
  2. Acquire, maintain and require the use of safety equipment, personal protective equipment and devices reasonably necessary to protect employees;
  3. Make, keep, preserve and make available to the commissioner of labor and workforce development, the commissioner's designated representative or persons within the agency to whom the responsibilities have been delegated, adequate records of all occupational accidents and personal injuries for proper evaluation and necessary corrective action as required under §§ 50-3-701 and 50-3-702;
  4. Consult with the commissioner with regard to the adequacy of the form and content of records kept pursuant to subdivision (3);
  5. By agreement with the commissioner, devise a program of inspection and sanctions required to carry out the purposes of the chapter;
  6. Consult with the commissioner regarding health and safety problems of the agency that are considered to be unusual or peculiar to its activities, or responsibilities that cannot be achieved under a standard required under this chapter;
  7. Make an annual report to the commissioner with respect to accidents and personal injuries and the agency's program under the chapter; and
  8. Provide reasonable opportunity for the participation of employees in the effectuation of the objectives of this section, including the opportunity to make anonymous complaints concerning conditions or practices injurious to employee safety and health.

Acts 1972, ch. 561, § 19; 1974, ch. 585, §§ 28, 37; 1977, ch. 111, § 38; T.C.A., § 50-567; Acts 1999, ch. 520, § 41.

Attorney General Opinions. Tennessee Occupational Safety and Health Administration has no statutory authority to investigate or prosecute a complaint of discrimination by an employee of a state government department or agency pursuant to this section, but such agencies may enter into agreements with the Department of Labor and Workforce Development allowing for investigations and sanctions, OAG 03-115 (9/10/03).

Commissioner of the Department of Labor and Workforce Development may issue written notification of noncompliance with the Tennessee Occupational Safety and Health Act to the head of the state department or agency which is the employer, and ultimately issue this notification to the governor, OAG 03-115 (9/10/03).

50-3-907. Annual report of state department and agency programs.

The commissioner shall submit annually to the governor and the general assembly a summary or digest of reports submitted to the commissioner under § 50-3-906(7), together with the commissioner's evaluations of the progress toward achievement of the purposes of this chapter, the needs and requirements in the field of occupational safety and health, any other relevant information, and the commissioner's recommendations derived from these reports.

Acts 1972, ch. 561, § 19; 1974, ch. 585, §§ 29, 37; T.C.A., § 50-568; Acts 1999, ch. 520, § 41.

Cross-References. Reporting requirement satisfied by notice to general assembly members of publication of report, § 3-1-114.

50-3-908. Violations by state departments or agencies — Notice.

  1. Whenever the commissioner has reason to believe that an agency or department is failing reasonably to abide by §§ 50-3-906 — 50-3-913, the commissioner may issue to the head of the agency or department a written notification stating in what respects the agency or department has not adequately met its responsibilities.
  2. If the agency or department does not advise the commissioner within twenty (20) days of its intention to contest the notification, the commissioner shall submit a copy of the notification to the governor, together with a request that action be taken to bring the agency or department into compliance with this chapter.
  3. If, within twenty (20) days of receipt of notification, the agency or department advises the commissioner of its intention to contest the notification, the commissioner shall promptly notify the commission, which shall afford an opportunity for a hearing and shall thereafter issue to the governor its findings of fact and recommendations for action.

Acts 1972, ch. 561, § 19; 1974, ch. 585, §§ 30, 37; 1977, ch. 111, § 39; T.C.A., § 50-569; Acts 1999, ch. 520, § 41; 2004, ch. 558, § 2.

Attorney General Opinions. Tennessee Occupational Safety and Health Administration has no statutory authority to investigate or prosecute a complaint of discrimination by an employee of a state government department or agency pursuant to this section, but such agencies may enter into agreements with the Department of Labor and Workforce Development allowing for investigations and sanctions, OAG 03-115 (9/10/03).

Commissioner of the Department of Labor and Workforce Development may issue written notification of noncompliance with the Tennessee Occupational Safety and Health Act to the head of the state department or agency which is the employer, and ultimately issue this notification to the governor, OAG 03-115 (9/10/03).

50-3-909. Conditions or practices by state departments or agencies endangering health — Abatement.

Whenever the commissioner of labor and workforce development has reason to believe that failure of an agency or department to meet its responsibilities under this chapter creates imminent danger of death or serious physical injury to any employee of this state, the commissioner shall immediately submit to the governor a statement of the reasons for the commissioner's belief, together with recommendations for the immediate abatement of the hazard.

Acts 1972, ch. 561, § 19; 1974, ch. 585, § 37; 1977, ch. 111, § 40; T.C.A., § 50-570; Acts 1999, ch. 520, § 41.

50-3-910. Local governments' duty to employees — Treatment as private employer.

  1. It is the duty of county, municipal and other local governments to provide their employees with conditions of employment consistent with the objectives of this chapter, and to comply with standards developed under § 50-3-201.
  2. On or before July 1, 2006, or in the case of local governments created after July 1, 2004, within two (2) years following the creation of the local government, each local government shall elect whether to:
    1. Be treated as a private employer; or
    2. Develop its own program of compliance.
  3. If a local government elects to develop its own program of compliance, it shall prepare a statement in writing of the program, including a description of methods of inspection, and shall register the program with the commissioner of labor and workforce development, by sending to the commissioner by certified mail a written notification that includes:
    1. A statement that the local government elects to develop its own program of compliance;
    2. A statement that the program has been developed and has been reduced to writing;
    3. A statement of where the writing may be inspected;
    4. A statement that employees of the local government have been informed of the program and have access to the writing;
    5. An assurance that the program incorporates standards developed under § 50-3-201; and
    6. An assurance that the program includes provisions for inspection and record keeping as effective as the provisions of this chapter.
  4. If a local government does not file the notification, it shall be considered to have elected to be treated as a private employer.
  5. On or before July 1, 2016, each utility district created by private act shall elect to either:
    1. Be treated as a private employer; or
    2. Develop its own program of compliance.

Acts 1972, ch. 561, § 19; 1974, ch. 513, § 1; 1974, ch. 585, § 37; impl. am. Acts 1977, ch. 111, § 44; T.C.A., § 50-571; Acts 1999, ch. 520, § 41; 2004, ch. 558, § 3; 2015, ch. 332, § 1.

Amendments. The 2015 amendment added (e).

Effective Dates. Acts 2015, ch. 332, § 2. April 28, 2015.

50-3-911. Inspection and enforcement of local government programs.

No action shall be taken with reference to an employer that is a local government, other than the performance of inspections under §§ 50-3-30150-3-306 performed for the purpose of determining the effectiveness of programs developed and registered by the employers under § 50-3-910, and other than investigation and enforcement actions under § 50-3-409, unless the local government has elected to be treated as a private employer.

Acts 1972, ch. 561, § 19; 1974, ch. 585, §§ 31, 37; T.C.A., § 50-572; Acts 2004, ch. 508, § 1.

50-3-912. Report of failure of government programs.

If the commissioner has reason to believe that any local government program of compliance is ineffective, the commissioner shall, after unsuccessfully seeking by negotiation to abate the failure, include this fact in the commissioner's annual report to the governor and the general assembly, together with the reasons for the belief that the local government program of compliance is ineffective, and may recommend legislation intended to correct the condition.

Acts 1972, ch. 561, § 19; 1974, ch. 585, § 37; T.C.A., § 50-573; Acts 1999, ch. 520, § 41.

Cross-References. Reporting requirement satisfied by notice to general assembly members of publication of report, § 3-1-114.

50-3-913. Local governments as private employers — Enforcement not affected by notice to develop own program.

If proceedings under §§ 50-3-307, 50-3-40150-3-404, 50-3-407 and 50-3-408 or 50-3-409, 50-3-50150-3-503, 50-3-505 and 50-3-506 have been commenced with reference to a local government that has elected to be treated as a private employer, the proceedings, including subsequent review, shall not be terminated by the filing of a notification of an election to develop its own program of compliance.

Acts 1972, ch. 561, § 19; 1974, ch. 585, §§ 32, 37; T.C.A., § 50-574.

50-3-914. Trade secrets confidential.

  1. All information obtained by or reported to the commissioner pursuant to any section of this chapter that contains or might reveal a trade secret or is otherwise privileged shall be considered confidential for the purpose of that section. The information may be disclosed to other officers or employees concerned with carrying out this chapter or when relevant in any proceeding under this chapter.
  2. A violation of this section is a Class A misdemeanor.

Acts 1972, ch. 561, § 20; 1974, ch. 585, §§ 33, 37; 1977, ch. 111, § 41; T.C.A., § 50-575; Acts 1989, ch. 591, § 111; 1999, ch. 520, § 41.

Cross-References. Confidentiality of public records, § 10-7-504.

Penalty for Class A misdemeanor, § 40-35-111.

Law Reviews.

Keep your Friends Close:  A Framework for Addressing Rights to Social Media Contacts, 67 Vand. L. Rev. 1459 (2014).

50-3-915. Compliance with chapter — Relation of chapter to other laws.

  1. Compliance with any other state law that regulates safety and health in employment and places of employment shall not excuse any employer or employee or any other person from compliance with this chapter or any standard or regulation promulgated pursuant to this chapter.
  2. Compliance with this chapter or any standard or regulation promulgated pursuant to this chapter shall not excuse any employer or employee or any other person from compliance with any state law regulating and promoting safety and health unless the state law is specifically repealed by this chapter or is repealed by subsequent legislation pursuant to this chapter.

Acts 1972, ch. 561, § 21; 1974, ch. 585, § 37; T.C.A., § 50-576.

50-3-916. Minimizing report burden.

  1. Records and reports required by this chapter shall be obtained with a minimum burden on employers, especially those operating small businesses.
  2. Unnecessary duplication will be avoided by encouraging and approving the use of existing substitute records for those required under §§ 50-3-701 and 50-3-702 to the maximum extent possible.

Acts 1972, ch. 561, § 22; 1974, ch. 585, § 37; T.C.A., § 50-577.

50-3-917. Cooperation with federal government.

The commissioner of labor and workforce development, subject to the direction and designation of the governor under § 4-4-116, is authorized, in accordance with § 18 of the federal Occupational Safety and Health Act of 1970, codified as 29 U.S.C. § 667 to:

  1. Submit a state plan for the state that provides for safe and healthful employment by the adoption of standards and means for enforcement of the standards that are at least as effective as those standards and means for enforcement of the standards as are provided by the federal Occupational Safety and Health Act of 1970, compiled in 29 U.S.C. §§ 651-678;
  2. Accept funds made available under that act and similar or related acts;
  3. Enter into agreements and make reports necessary to the acceptance of the funds; and
  4. Cooperate with the federal government in ways that are reasonably designed to carry out the purposes of the act.

Acts 1972, ch. 561, § 23; 1974, ch. 585, § 37; 1977, ch. 111, § 42; T.C.A., § 50-578; Acts 1999, ch. 520, § 41.

NOTES TO DECISIONS

1. Subcontractors.

Safety regulations adopted under authority of T.C.A. §§ 50-3-104, 50-3-201 and 50-3-917 and safety rules incorporated by reference in t. § 68-16-104 (now T.C.A. § 68-101-104) do not impose a nondelegable duty upon a municipal electric system to furnish a safe work place for employees of a subcontractor. Dempsey v. Correct Mfg. Corp., 755 S.W.2d 798, 1988 Tenn. App. LEXIS 245 (Tenn. Ct. App. 1988).

50-3-918. Hazardous condition — Action by commissioner — Emergency stop orders.

  1. If the commissioner of labor and workforce development, upon inspection or investigation, finds a hazardous condition at a place of employment that presents an imminent threat to life or limb of an employee, the commissioner may issue an emergency stop order requiring the immediate alleviation of the condition. This may require the discontinuation of a practice or the removal of all individuals from the threatened area. The stop order shall be in writing and is effective from the time it is posted in the place where the condition exists. Immediately after the order is posted, a copy shall be given to the employer. The commissioner shall fix a place and time, not later than twenty-four (24) hours thereafter, for a hearing to be held before the commissioner. Not more than twenty-four (24) hours after the start of the hearing, and without adjournment of the hearing, the commissioner shall affirm, modify or set aside the commissioner's previous order. The commissioner shall cause a transcript to be made of the proceedings in the hearing, copies of which shall be made available to all parties affected, at a reasonable cost.
  2. The action taken by the commissioner shall be subject to review by the chancery or circuit court of the county in which the condition is found to exist, upon petition for certiorari in the manner now provided for review of actions of boards and commissions in title 27, chapter 9. The review shall take precedence over all other matters on the docket except application for extraordinary process. Upon petition for certiorari, the stop order may be vacated by the reviewing court upon the giving of a bond as the court may find appropriate in the circumstances by the party seeking review.
  3. Should the commissioner fail to abide by the provision for affirming, modifying or setting aside of the commissioner's order, any work or project halted by the stop order may resume, it being the legislative intent that the stop order shall not serve to be a device to be used arbitrarily.

Acts 1973, ch. 29, §§ 1, 2; 1977, ch. 111, § 43; impl. am. Acts 1977, ch. 111, § 44; T.C.A., § 50-579; Acts 1999, ch. 520, § 41.

50-3-919. [Repealed.]

Acts 1988, ch. 722, § 1; 1999, ch. 520, §§ 41, 52, repealed by Acts 2011, ch. 61, § 3, effective April 11, 2011.

Compiler's Notes. Former § 50-3-919 concerned the occupational safety and health administration labor advisory council.

50-3-920. No regulation and enforcement of changes in federal regulations relating to child labor performed on farms.

On or after April 16, 2012, no public funds of this state or any political subdivision of this state shall be allocated to the regulation or enforcement of any change made after December 1, 2011, to the United States department of labor's Hazardous Occupations Orders for Agricultural Employment relating to children, compiled in 29 CFR part 570.

Acts 2012, ch. 757, § 1.

Part 10
High-Voltage Lines

50-3-1001. Part definitions.

As used in this part, unless the context otherwise requires:

  1. “Approved” means approved by the commissioner;
  2. “Commissioner” means the commissioner of labor and workforce development or any of the commissioner's authorized representatives;
  3. “Department” means the department of labor and workforce development;
  4. “High-voltage” means a voltage in excess of seven hundred fifty (750) volts between conductors or from any conductor to ground; and
  5. “Overhead lines” means all bare or insulated electrical conductors installed above ground, except those conductors that are enclosed in approved metal covering.

Acts 1955, ch. 289, § 1; T.C.A., §§ 53-2801, 68-21-101; Acts 1999, ch. 520, § 46; 2011, ch. 157, § 1; 2012, ch. 681, §§ 1, 4; T.C.A. § 68-103-101.

Compiler's Notes. Former § 68-103-101 was transferred to § 50-3-1001 by Acts 2012, ch. 681, § 4, effective July 1, 2012.

NOTES TO DECISIONS

1. Nature and Effect of Statute.

This chapter (now part) was not intended to relieve a company transmitting deadly energy through uninsulated wires from the consequences of its negligence but was designed merely as an additional safety measure. Martin v. McMinnville, 51 Tenn. App. 503, 369 S.W.2d 902, 1962 Tenn. App. LEXIS 123 (Tenn. Ct. App. 1962).

Collateral References.

Applicability of rule of strict liability to injury from electrical current escaping from power line. 82 A.L.R.3d 218, 60 A.L.R.4th 732.

Liability of electric company to one other than employee for injury or death arising from commencement or resumption of service. 46 A.L.R.5th 423.

50-3-1002. Guarding against accidental contact by employee.

No person, firm, or corporation, or agent of a person, firm or corporation, shall require or permit any employee to perform any function in proximity to high-voltage overhead lines; to enter upon any land, building, or other premises and engage in any excavation, demolition, construction, repair or other operation; or to erect, install, operate, or store in or upon such premises any tools, machinery, equipment, materials, or structures, including house moving, well drilling, pile driving or hoisting equipment, unless and until danger from accidental contact with such high-voltage overhead  lines has been effectively guarded against in the manner prescribed in this part.

Acts 1955, ch. 289, § 2; T.C.A., §§ 53-2802, 68-21-102; Acts 2011, ch. 157, § 2; 2012, ch. 681, §§ 1, 4; T.C.A. § 68-103-102.

Compiler's Notes. Former § 68-103-102 was transferred to § 50-3-1002 by Acts 2012, ch. 681, § 4, effective July 1, 2012.

Law Reviews.

Workmen's Compensation — Subrogations in Action Against Third-Party Tort-feasor — Contributory Negligence — Intervening Cause, 31 Tenn. L. Rev. 275 (1964).

50-3-1003. Clearance or safeguard required.

  1. The operation, erection or transportation of any tools, machinery, or equipment, or any part of any tools, machinery, or equipment, capable of vertical, lateral or swinging motion, the handling, transportation or storage of any supplies, materials or apparatus, or the moving of any house or other building, or any part of any house or building, under, over, by or near high-voltage overhead lines, is expressly prohibited, if at any time during such operation, transportation or other manipulation it is possible to bring the equipment, tools, materials, building, or any part of the equipment, tools, materials or building, within ten feet (10') of the high-voltage overhead lines, or the distance required by an applicable standard of the Tennessee occupational health administration, except where the high-voltage overhead lines have been effectively guarded against danger from accidental contact, by either:
    1. The erection of mechanical barriers to prevent physical contact with high-voltage conductors;
    2. De-energizing the high-voltage conductors and grounding where necessary; or
    3. By insulating the lines.
  2. Only in the case of an exception referenced in subdivision (a)(1), (a)(2) or (a)(3) may the clearance required by subsection (a) be reduced. The clearance required by subsection (a) shall not be provided by movement of the conductors through strains impressed, by attachments or otherwise, upon the structures supporting the high-voltage overhead line nor upon any equipment, fixtures or attachments on the structures.
  3. If temporary relocation of the high-voltage conductors is necessary, appropriate arrangements shall be made with the owner or operator of the overhead line for such temporary relocation.

Acts 1955, ch. 289, § 3; T.C.A., §§ 53-2803, 68-21-103; Acts 2011, ch. 157, §§ 3, 4; 2012, ch. 681, § 4; T.C.A. § 68-103-103.

Compiler's Notes. Former § 68-103-103 was transferred to § 50-3-1003 and reenacted without change by Acts 2012, ch. 681, § 4, effective July 1, 2012.

50-3-1004. [Repealed.]

Acts 1955, ch. 289, § 4; T.C.A., §§ 53-2804, 68-21-104, repealed by Acts 2011, ch. 157, § 5, effective May 5, 2011; transferred by Acts 2012, ch. 681, § 4 from § 68-103-104, effective July 1, 2012.

Compiler's Notes. Former § 68-103-104 (transferred to § 50-3-1004) concerned a warning sign for high-voltage lines.

50-3-1005. Notification to power company and responsibility for safeguards.

When any operations are to be performed, tools or materials are to be handled, or equipment is to be moved or operated, within ten feet (10'), or the distance required by an applicable standard of the Tennessee occupational health administration, of any high-voltage overhead line, the person or persons responsible for the work to be done shall promptly notify the operator of the high-voltage overhead line of the work to be performed, and such person shall be responsible for the completion of the safety measures that are required by §§ 50-3-1002 and 50-3-1003, before proceeding with any work that would impair the clearance.

Acts 1955, ch. 289, § 5; T.C.A., §§ 53-2805, 68-21-105; Acts 2011, ch. 157, §§ 6, 7; 2012, ch. 681, §§ 2, 4; T.C.A. § 68-103-105.

Compiler's Notes. Former § 68-103-105 was transferred to § 50-3-1005 by Acts 2012, ch. 681, § 4, effective July 1, 2012.

NOTES TO DECISIONS

1. Liability.

Where state statutes were violated by a Tennessee subcontractor in a national park and as a result an independent contractor of the subcontractor was injured, the subcontractor, not the federal government, was liable for the injury. Morgan v. United States, 413 F. Supp. 72, 1976 U.S. Dist. LEXIS 16504 (E.D. Tenn. 1976).

50-3-1006. Enforcement.

The commissioner shall administer and enforce this part and the commissioner is empowered to prescribe and promulgate rules and regulations consistent with this part.

Acts 1955, ch. 289, § 6; T.C.A., §§ 53-2806, 68-21-106; Acts 2012, ch. 681, §§ 1, 4; T.C.A. § 68-103-106.

Compiler's Notes. Former § 68-103-106 was transferred to § 50-3-1006 by Acts 2012, ch. 681, § 4, effective July 1, 2012.

50-3-1007. Violation of part.

A violation of any provision of this part is a violation of § 50-3-105(1).

Acts 1955, ch. 289, § 7; T.C.A., § 53-2807; Acts 1989, ch. 591, § 112; T.C.A., § 68-21-107; Acts 2011, ch. 157, § 8; 2012, ch. 681, §§ 1, 4; T.C.A. § 68-103-107.

Compiler's Notes. Former § 68-103-107 was transferred to § 50-3-1007 by Acts 2012, ch. 681, § 4, effective July 1, 2012.

50-3-1008. Operations exempt.

This part shall not be construed as applying to, shall not apply to, and is not intended to apply to, the construction, reconstruction, operation, and maintenance of overhead electrical conductors and their supporting structures and associated equipment by authorized and qualified electrical workers; nor to the authorized and qualified employees of any person, firm or corporation engaged in the construction, reconstruction, operation, and maintenance of overhead electrical circuits or conductors and their supporting structures and associated equipment of rail transportation systems, or electrical generating, transmission, distribution, and communication systems. This exception, when applied to railway systems, shall be construed as permitting operation of standard rail equipment that is normally used in the transportation of freight or passengers or both and the operation of relief trains, or other equipment in emergencies, or in maintenance of way service, at a distance of less than ten feet (10'), or the distance required by an applicable standard of the Tennessee occupational health administration, from any high-voltage overhead conductor of such railway system; but this part shall be construed as prohibiting normal repair or construction operations at a distance of less than ten feet (10'), or the distance required by an applicable standard of the Tennessee occupational health administration, from any high-voltage overhead conductor by other than properly qualified and authorized persons or employees under the direct supervision of an authorized person who is familiar with the hazards involved, unless there has been compliance with the safety provisions of §§ 50-3-100250-3-1005.

Acts 1955, ch. 289, § 8; T.C.A., §§ 53-2808, 68-21-108; Acts 2011, ch. 157, § 9; 2012, ch. 681, §§ 1, 3, 4; T.C.A. § 68-103-108.

Compiler's Notes. Former § 68-103-108 was transferred to § 50-3-1008 by Acts 2012, ch. 681, § 4, effective July 1, 2012.

50-3-2001. Employer compliance with the federal hazard communication standard for chemicals and other compliance requirements.

Each employer shall comply with all of the requirements of the federal hazard communication standard codified in 29 CFR 1910.1200. In addition to the requirements set forth in 29 CFR 1910.1200 each employer must also comply with the following:

    1. Employers shall keep a record of the dates of training sessions given to their employees;
    2. The hazard communication program and employee information and training required of employers pursuant to 29 CFR 1910.1200 and the education and training program pursuant to subdivision (1) shall require annual refresher training after the initial training pursuant to 29 CFR 1910.1200 is conducted, unless the commissioner grants an exemption from annual refresher training. The exemption may be granted if the commissioner determines that the nature of the work assignment, the level of exposure or the nature of the hazardous chemical involved would not reasonably require annual refresher training;
    1. For the purposes of this section only, “workplace” means any workplace as defined in 29 CFR 1910.1200(c) that is located within the fire chief's actual jurisdiction or that is located in a jurisdiction to which the fire chief responds pursuant to a mutual aid pact;
    2. Employers and distributors who normally store a hazardous chemical in excess of fifty-five gallons (55 gal.) or five hundred pounds (500 lbs.) shall provide the fire chief, in writing, the names and telephone numbers of knowledgeable representatives of the manufacturing employer, non-manufacturing employer or distributor who can be contacted for further information or in the event of an emergency;
    3. Each employer and distributor shall provide a copy of the workplace chemical list to the fire chief and shall thereafter notify the fire chief of any significant changes that occur in the workplace chemical list;
    4. The fire chief or the fire chief's representative, upon request, shall be permitted on-site inspections of the hazardous chemicals on the workplace chemical list during normal business hours for the sole purpose of preplanning emergency fire department activities;
    5. Employers and distributors, upon written request, shall provide the fire chief a copy of the safety data sheet (SDS) for any chemical on their workplace chemical list;
    6. The fire chief shall, upon request, make the workplace chemical list and SDSs available to members of the fire chief's fire company having jurisdiction over the workplace, or their designated representatives, but shall not otherwise distribute the information without written approval of the manufacturing employer, nonmanufacturing employer or distributor who provided the workplace chemical list or SDSs; except that approval shall not be required in an emergency situation in which human life is at stake. In the event the workplace chemical list or SDSs are released under an emergency situation, the fire chief shall promptly notify the supplier of the workplace chemical list or SDSs, in writing, as to whom the information was released and the circumstances of the emergency. Persons receiving workplace chemical lists or SDSs from the fire chief shall hold the information contained in the workplace chemical lists or SDSs in confidence;
      1. Employers and distributors shall place one (1) sign in accordance with the NFPA704M series on the outside of any building that contains a class A explosive, class B explosive, poison gas (poison A), water-reactive flammable solid (flammable solid W), or radioactive material as listed in Table 1 of the federal department of transportation (DOT) regulations at 49 CFR, Part 172, and further defined in federal DOT regulations at 49 CFR, Part 173, or any other hazardous chemical in excess of the amounts listed in subdivision (2)(B);
      2. The commissioner shall promulgate rules in accordance with § 50-3-102(b)(3) to establish specifications on the size, color, lettering and posting requirements pursuant to the series. The regulations shall provide that the number used shall be determined by the hazardous chemical that presents the greatest danger;
      3. The commissioner shall exempt an employer from this subdivision (2)(G) who can satisfactorily demonstrate that:
  1. The employer maintains a trained fire or emergency preparedness team considered capable of handling workplace chemical or fire emergencies without external assistance; or
  2. The employer maintains twenty-four (24) hour security personnel who maintain accurate records of the location of chemicals and who can readily direct emergency personnel from outside sources to affected company facilities;

The department of labor and workforce development shall assist employers and fire personnel to effectuate the purposes of this section;

(A)  (i)  Manufacturing employers shall compile and maintain a list of the hazardous chemicals known to be present using a product identifier that is referenced on the appropriate safety data sheet and the work area or workplace in which the hazardous chemical is normally used or stored;

The manufacturing employer shall maintain the workplace chemical list for no less than thirty (30) years. The manufacturing employer shall send complete records pertinent to the workplace chemical list to the commissioner if the manufacturing employer generating the list ceases to operate a business within the state;

The workplace chemical list shall be filed with the commissioner within ninety-six (96) hours of a request by an authorized representative of the commissioner;

(i)  Nonmanufacturing employers shall compile and maintain a list of the hazardous chemicals known to be present using a product identifier that is referenced on the appropriate safety data sheet and the work area or workplace in which the hazardous chemical is normally used or stored. This subdivision (3)(B)(i) shall apply to employers who store such chemicals in excess of fifty-five gallons (55 gal.) or five hundred pounds (500 lbs.);

The nonmanufacturing employer shall maintain the workplace chemical list for no less than thirty (30) years. The nonmanufacturing employer shall send complete records pertinent to the workplace chemical list to the commissioner if the nonmanufacturing employer generating the list ceases to operate a business within the state;

The nonmanufacturing employer shall notify new or newly assigned employees about the workplace chemical list and its contents before working in a work area containing hazardous chemicals; and

The nonmanufacturing employer shall file the workplace chemical list with the commissioner within ninety-six (96) hours of a request by an authorized representative of the commissioner.

The workplace chemical list may consist of either a single listing prepared for the workplace as a whole or a collection of lists prepared for each work area individually;

The department of labor and workforce development shall provide the following information and services:

The CAS number for any hazardous chemical on the workplace chemical list that is not included by the manufacturing or nonmanufacturing employer pursuant to subdivision (3)(D)(i)(a)  or (b) , if:

The chemical is not a mixture; and

A CAS number exists for the chemical;

The employer shall make available a copy of the workplace chemical list for inspection by the public during regular office hours at the division's central office or any division field office. The copy must be requested by the public and received by the division as specified by this section;

Copies of any workplace chemical list may be obtained from the division of occupational safety and health upon written request and payment of a reasonable copying and mailing fee. The division shall provide the list within ten (10) business days of receipt of the written request;

It is the intention of the general assembly, pursuant to this section, to provide access to information concerning hazardous chemicals used and stored in this state to the citizens of this state who live and work in proximity to the chemicals to enable the citizens to make informed decisions concerning their health, safety and welfare.

Acts 2013, ch. 257, § 1; 2014, ch. 709, § 1.

Compiler's Notes. Former title 50, ch. 3, part 20, §§ 50-3-200150-3-2019 (Acts 1985, ch. 417, §§ 1-17, 19, 20; 1989, ch. 490, § 1; 1999, ch. 520, § 41; 2003, ch. 83, §§ 1-4), concerning the Hazardous Chemical Right to Know Law, was repealed by Acts 2013, ch. 257, § 2, effective April 23, 2013.

Amendments. The 2014 amendment rewrote (3)(A)(i) and (B)(i) which read: “(3)(A)(i) Manufacturing employers shall compile and maintain a workplace chemical list, which shall contain the following information for each hazardous chemical known to be present in the workplace:“(a) The chemical name or common name used on the SDS or the container label, or both;“(b) The chemical abstract service (CAS) number for the hazardous chemical, if the number is included on the SDS; and“(c) The work area or workplace in which the hazardous chemical is normally used or stored;”“(B)(i) Nonmanufacturing employers shall compile and maintain a workplace chemical list, which shall contain the following information for each hazardous chemical normally used or stored in the workplace in excess of fifty-five gallons (55 gal.) or five hundred pounds (500 lbs.):“(a) The chemical name or the common name used on the SDS or container label, or both;“(b) The CAS number, if the number is included on the SDS; and“(c) The work area or workplace in which the hazardous chemical is normally stored or used;”

Effective Dates. Acts 2014, ch. 709, § 2. July 1, 2014.

Cross-References. Confidentiality of public records, § 10-7-504.

50-3-2002. [Repealed.]

Acts 1985, ch. 417, §§ 1-17, 19, 20; 1989, ch. 490, § 1; 1999, ch. 520, § 41; 2003, ch. 83, §§ 1-4; repealed by Acts 2013, ch. 257, § 2, effective April 23, 2013.

Former title 50, ch. 3, part 20, §§ 50-3-200150-3-2019, concerned the Hazardous Chemical Right to Know Law.

50-3-2003. [Repealed.]

Acts 1985, ch. 417, §§ 1-17, 19, 20; 1989, ch. 490, § 1; 1999, ch. 520, § 41; 2003, ch. 83, §§ 1-4; repealed by Acts 2013, ch. 257, § 2, effective April 23, 2013.

Former title 50, ch. 3, part 20, §§ 50-3-200150-3-2019, concerned the Hazardous Chemical Right to Know Law.

50-3-2004. [Repealed.]

Acts 1985, ch. 417, §§ 1-17, 19, 20; 1989, ch. 490, § 1; 1999, ch. 520, § 41; 2003, ch. 83, §§ 1-4; repealed by Acts 2013, ch. 257, § 2, effective April 23, 2013.

Former title 50, ch. 3, part 20, §§ 50-3-200150-3-2019, concerned the Hazardous Chemical Right to Know Law.

50-3-2005. [Repealed.]

Acts 1985, ch. 417, §§ 1-17, 19, 20; 1989, ch. 490, § 1; 1999, ch. 520, § 41; 2003, ch. 83, §§ 1-4; repealed by Acts 2013, ch. 257, § 2, effective April 23, 2013.

Former title 50, ch. 3, part 20, §§ 50-3-200150-3-2019, concerned the Hazardous Chemical Right to Know Law.

50-3-2006. [Repealed.]

Acts 1985, ch. 417, §§ 1-17, 19, 20; 1989, ch. 490, § 1; 1999, ch. 520, § 41; 2003, ch. 83, §§ 1-4; repealed by Acts 2013, ch. 257, § 2, effective April 23, 2013.

Former title 50, ch. 3, part 20, §§ 50-3-200150-3-2019, concerned the Hazardous Chemical Right to Know Law.

50-3-2007. [Repealed.]

Acts 1985, ch. 417, §§ 1-17, 19, 20; 1989, ch. 490, § 1; 1999, ch. 520, § 41; 2003, ch. 83, §§ 1-4; repealed by Acts 2013, ch. 257, § 2, effective April 23, 2013.

Former title 50, ch. 3, part 20, §§ 50-3-200150-3-2019, concerned the Hazardous Chemical Right to Know Law.

50-3-2008. [Repealed.]

Acts 1985, ch. 417, §§ 1-17, 19, 20; 1989, ch. 490, § 1; 1999, ch. 520, § 41; 2003, ch. 83, §§ 1-4; repealed by Acts 2013, ch. 257, § 2, effective April 23, 2013.

Former title 50, ch. 3, part 20, §§ 50-3-200150-3-2019, concerned the Hazardous Chemical Right to Know Law.

50-3-2009. [Repealed.]

Acts 1985, ch. 417, §§ 1-17, 19, 20; 1989, ch. 490, § 1; 1999, ch. 520, § 41; 2003, ch. 83, §§ 1-4; repealed by Acts 2013, ch. 257, § 2, effective April 23, 2013.

Former title 50, ch. 3, part 20, §§ 50-3-200150-3-2019, concerned the Hazardous Chemical Right to Know Law.

50-3-2010. [Repealed.]

Acts 1985, ch. 417, §§ 1-17, 19, 20; 1989, ch. 490, § 1; 1999, ch. 520, § 41; 2003, ch. 83, §§ 1-4; repealed by Acts 2013, ch. 257, § 2, effective April 23, 2013.

Former title 50, ch. 3, part 20, §§ 50-3-200150-3-2019, concerned the Hazardous Chemical Right to Know Law.

50-3-2011. [Repealed.]

Acts 1985, ch. 417, §§ 1-17, 19, 20; 1989, ch. 490, § 1; 1999, ch. 520, § 41; 2003, ch. 83, §§ 1-4; repealed by Acts 2013, ch. 257, § 2, effective April 23, 2013.

Former title 50, ch. 3, part 20, §§ 50-3-200150-3-2019, concerned the Hazardous Chemical Right to Know Law.

50-3-2012. [Repealed.]

Acts 1985, ch. 417, §§ 1-17, 19, 20; 1989, ch. 490, § 1; 1999, ch. 520, § 41; 2003, ch. 83, §§ 1-4; repealed by Acts 2013, ch. 257, § 2, effective April 23, 2013.

Former title 50, ch. 3, part 20, §§ 50-3-200150-3-2019, concerned the Hazardous Chemical Right to Know Law.

50-3-2013. [Repealed.]

Acts 1985, ch. 417, §§ 1-17, 19, 20; 1989, ch. 490, § 1; 1999, ch. 520, § 41; 2003, ch. 83, §§ 1-4; repealed by Acts 2013, ch. 257, § 2, effective April 23, 2013.

Former title 50, ch. 3, part 20, §§ 50-3-200150-3-2019, concerned the Hazardous Chemical Right to Know Law.

50-3-2014. [Repealed.]

Acts 1985, ch. 417, §§ 1-17, 19, 20; 1989, ch. 490, § 1; 1999, ch. 520, § 41; 2003, ch. 83, §§ 1-4; repealed by Acts 2013, ch. 257, § 2, effective April 23, 2013.

Former title 50, ch. 3, part 20, §§ 50-3-200150-3-2019, concerned the Hazardous Chemical Right to Know Law.

50-3-2015. [Repealed.]

Acts 1985, ch. 417, §§ 1-17, 19, 20; 1989, ch. 490, § 1; 1999, ch. 520, § 41; 2003, ch. 83, §§ 1-4; repealed by Acts 2013, ch. 257, § 2, effective April 23, 2013.

Former title 50, ch. 3, part 20, §§ 50-3-200150-3-2019, concerned the Hazardous Chemical Right to Know Law.

50-3-2016. [Repealed.]

Acts 1985, ch. 417, §§ 1-17, 19, 20; 1989, ch. 490, § 1; 1999, ch. 520, § 41; 2003, ch. 83, §§ 1-4; repealed by Acts 2013, ch. 257, § 2, effective April 23, 2013.

Former title 50, ch. 3, part 20, §§ 50-3-200150-3-2019, concerned the Hazardous Chemical Right to Know Law.

50-3-2017. [Repealed.]

Acts 1985, ch. 417, §§ 1-17, 19, 20; 1989, ch. 490, § 1; 1999, ch. 520, § 41; 2003, ch. 83, §§ 1-4; repealed by Acts 2013, ch. 257, § 2, effective April 23, 2013.

Former title 50, ch. 3, part 20, §§ 50-3-200150-3-2019, concerned the Hazardous Chemical Right to Know Law.

50-3-2018. [Repealed.]

Acts 1985, ch. 417, §§ 1-17, 19, 20; 1989, ch. 490, § 1; 1999, ch. 520, § 41; 2003, ch. 83, §§ 1-4; repealed by Acts 2013, ch. 257, § 2, effective April 23, 2013.

Former title 50, ch. 3, part 20, §§ 50-3-200150-3-2019, concerned the Hazardous Chemical Right to Know Law.

50-3-2019. [Repealed.]

Acts 1985, ch. 417, §§ 1-17, 19, 20; 1989, ch. 490, § 1; 1999, ch. 520, § 41; 2003, ch. 83, §§ 1-4; repealed by Acts 2013, ch. 257, § 2, effective April 23, 2013.

Former title 50, ch. 3, part 20, §§ 50-3-200150-3-2019, concerned the Hazardous Chemical Right to Know Law.

Chapter 4
Administrative Inspections

50-4-101. Administrative inspection warrant available to department of labor and workforce development.

In the event that an employee or official of the department of labor and workforce development authorized to conduct inspections is denied permission to make that inspection, and a warrant is required by the constitution of the United States or the state of Tennessee, the employee or official may obtain an administrative inspection warrant in accordance with the procedures outlined in this chapter. Section 39-16-402 and title 40, chapter 6, part 1, do not apply to warrants issued pursuant to this chapter.

Acts 1979, ch. 345, § 2; T.C.A., § 50-601; Acts 1996, ch. 675, § 50; 1999, ch. 520, § 41.

Cross-References. Inspection under Occupational Safety and Health Act, title 50, ch. 3, part 3.

Search warrants, Tenn. R. Crim. P. 41.

NOTES TO DECISIONS

1. Application.

Child Labor Act provides authority to the Department of Labor and Workforce Development to immediately request the records that are required to be maintained by the Child Labor Act be produced for inspection, however, if the employer refuses an immediate inspection of the records, the appropriate recourse is for the Department to seek an administrative warrant pursuant to T.C.A. § 50-4-101, and the Department may not threaten an employer with a penalty for asserting its Fourth Amendment right. Publix Super Mkts., Inc. v. Tenn. Dep't of Labor & Workforce Dev., 402 S.W.3d 218, 2012 Tenn. App. LEXIS 799 (Tenn. Ct. App. Aug. 24, 2012), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 284 (Tenn. Mar. 5, 2013).

50-4-102. “Issuing officer” defined.

As used in this chapter, “issuing officer,” means either:

  1. Any official authorized by law to issue search warrants; or
  2. Any court of record in the county of residence of the agency making application for an administrative inspection warrant.

Acts 1979, ch. 345, § 3; T.C.A., § 50-602.

50-4-103. Grounds for issuing administrative inspection warrants — Probable cause.

The issuing officer is authorized to issue administrative inspection warrants authorizing an employee or official of the department of labor and workforce development to inspect named premises and seize certain items. In so doing, the issuing officer must determine from the affidavits filed by the agency requesting the warrant that:

  1. The agency and employee or official has the statutory authority to conduct the inspection;
  2. Probable cause exists to believe that a violation of law has occurred or is occurring. Probable cause in these cases is not the same standard as used in obtaining criminal search warrants. In addition to a showing of specific evidence of an existing violation, probable cause can be found upon a showing of facts justifying further inquiry, by inspection, to determine whether a violation of law is occurring. This finding can be based upon a showing that:
    1. The inspection of the premises in question was to be made pursuant to an administrative plan containing neutral criteria supporting the need for the inspection;
    2. Previous inspections have shown violations of law and the present inspection is necessary to determine whether those violations have been abated;
    3. The business, occupation, product, equipment, materials, wastes or other characteristics of a particular enterprise or class of enterprises, including the named premises, present a probability of violation of the law in excess of the general business community;
    4. Complaints have been received by the agency and presented to the issuing officer from persons who, by status or position, have personal knowledge of violations of law occurring on the named premises; or
    5. Any other showing consistent with constitutional standards for probable cause in administrative inspections;
  3. The inspection is reasonable and not intended to arbitrarily harass the persons or business involved;
  4. The areas and items to be inspected or seized are accurately described and are consistent with the statutory inspection authority; and
  5. The purpose of the inspection is not criminal in nature and the agency is not seeking sanctions against the person or business for refusing entry.

Acts 1979, ch. 345, § 4; T.C.A., § 50-603; Acts 1999, ch. 520, § 41.

50-4-104. Issuance of warrant — Notice not required.

  1. The issuing officer shall immediately make a finding as to whether an administrative inspection warrant should be issued and if the issuing officer so determines, issue the warrant.
  2. No notice shall be required prior to the issuance of the warrant.

Acts 1979, ch. 345, § 5; T.C.A., § 50-604.

50-4-105. Contents of warrant.

All warrants shall include at least the following:

  1. The name of the agency and employee or official requesting the warrant;
  2. The statutory authority for the inspection;
  3. The name of the person or persons submitting affidavits in support of the issuance of the warrants;
  4. The names of the persons who will conduct the inspection;
  5. A reasonable description of the property and items to be inspected and seized;
  6. A brief description of the purposes of the inspection; and
  7. Any other requirements or particularity required by the constitutions of the United States and the state of Tennessee, regarding administrative inspections.

Acts 1979, ch. 345, § 6; T.C.A., § 50-605.

50-4-106. Assistance of department of labor and workforce development representative — Execution of warrant.

  1. It is the duty of any representative of the department of labor and workforce development charged with the enforcement of the Occupational Safety and Health Act, compiled in chapter 3 of this title, upon the request of the inspecting person or persons, to accompany the person or persons and assist in the service and execution of an administrative inspection warrant issued pursuant to this chapter.
  2. All warrants shall be executed within ten (10) days of issuance.

Acts 1979, ch. 345, § 7; T.C.A., § 50-606; Acts 1999, ch. 520, § 41.

50-4-107. Obstruction of inspection — Misdemeanor.

Any person who willfully refuses to permit inspection, obstructs inspection or aids in the obstruction of an inspection of property described in an administrative inspection warrant commits a Class C misdemeanor.

Acts 1979, ch. 345, § 8; T.C.A., § 50-607; Acts 1989, ch. 591, § 113.

Cross-References. Penalty for Class C misdemeanor, § 40-35-111.

50-4-108. Suppression of evidence seized during unlawful inspection.

  1. Any person aggrieved by an unlawful inspection of premises named in an administrative inspection warrant may in any judicial or administrative proceeding move to suppress any evidence or information received, or move for the return of any item seized, by the agency pursuant to the inspection.
  2. If the court or the administrative agency finds that the inspection was unlawful, the evidence and information shall be suppressed and any item seized returned and not considered in the proceeding.

Acts 1979, ch. 345, § 9; T.C.A., § 50-608.

Chapter 5
Child Labor

Part 1
Child Labor Act of 1976

50-5-101. Short title.

This part shall be known and may be cited as the “Child Labor Act of 1976.”

Acts 1976, ch. 480, § 1; T.C.A., § 50-701.

Cross-References. Policy of employing young persons to work in state parks and recreation areas, § 11-1-116.

Law Reviews.

A Survey of Tennessee Labor Cases Since 1954 (D. Bruce Shine and Shelburne Ferguson, Jr.), 47 Tenn. L. Rev. 323 (1980).

It's No Revolution: Long Standing Legal Principles Mandate the Preemption of State Laws in Conflict with Section 3(o) of the Fair Labor Standards Act (Anna Wermuth and Jeremy Glenn), 40 U. Mem. L. Rev. 839 (2010).

Collateral References.

Constitutionality of child labor laws. 12 A.L.R. 1216, 21 A.L.R. 1437.

Constitutionality of statute limiting hours of labor of children and women in private industry. 90 A.L.R. 815.

Exhibitions or entertainments by children, construction and application of child labor law as regards. 72 A.L.R. 141.

Nonprofit charitable institutions as within operation of child labor acts. Stansberry v. McKenzie, 192 Tenn. 638, 241 S.W.2d 600, 1951 Tenn. LEXIS 310, 26 A.L.R.2d 1028 (1951).

Streets, construction and application of statutes or ordinances relating to child labor in. 152 A.L.R. 579.

50-5-102. Part definitions.

As used in this part, unless the context otherwise requires:

  1. “Agricultural work” includes farming in all its branches, and, among other things, includes the cultivation and tillage of the soil, dairying, the production, cultivation, growing and harvesting of any agricultural or horticultural commodities, the raising of livestock or poultry, and any practices performed by a farmer or on a farm as an incident to or in conjunction with the farming operations, including preparation for market, delivery to storage or to market or to carriers for transportation to market;
  2. “Commissioner” means the commissioner of labor and workforce development or the commissioner's designated representative;
  3. “Department” means the department of labor and workforce development;
  4. “Director of schools” means the director of schools, or the director's designee, in the county, city, town or special school district in which a minor seeking employment resides or is to be employed; provided, that, with respect to a home school, as defined in § 49-6-3050, “director of schools” means the director of the local education agency (LEA) where the child who has been registered as a home schooled child would otherwise attend; and with respect to a home school that teaches kindergarten through grade twelve (K-12) where the parents are associated with an organization that conducts church-related schools, as defined in § 49-50-801, the “director of schools” means the director of the church-related school;
  5. “Employ” means to permit or suffer to work in employment or a gainful occupation;
  6. “Employer” includes, but is not limited to, any individual, partnership, association, corporation, business trust, legal representative or any organized group of persons, acting directly or indirectly in the interest of an employer in relation to an employee;
  7. “Employment or gainful occupation” means any work engaged in for compensation in money or other valuable consideration, whether paid to the minor or some other person, including, but not limited to, work as a servant, agent, subagent or independent contractor;
  8. “Minor” means a person of either sex under eighteen (18) years of age, unless otherwise provided;
  9. “School days” means any day when normal classes are in session during the regular school year in the school district;
  10. “School hours” means that period of time during a school day when school is in session and students are required to attend classes;
  11. “Self-employed” means earning income directly from one's own business, trade or profession rather than as a specified salary or wages from an employer;
  12. “Sexual conduct” means actual or simulated sexual intercourse, sodomy, sexual bestiality, masturbation, sadomasochistic abuse, excretion, or the exhibition of the male or female genitals;
  13. “Week” means a fixed and regularly recurring period of seven (7) consecutive days; and
  14. “Youth peddling” means the selling of merchandise by a minor under sixteen (16) years of age to customers at the customer's residence, at a customer's place of business, or in public places such as street corners or public transportation stations. “Youth peddling” does not include the activities of individuals who are self-employed or who volunteer to sell goods or services on behalf of not-for-profit organizations or governmental entities or for school functions.

Acts 1976, ch. 480, § 2; 1978, ch. 541, § 1; T.C.A., § 50-702; Acts 1998, ch. 781, § 2; 1999, ch. 203, § 1; 1999, ch. 520, § 41.

50-5-103. Employment of minor under 14 years of age — Penalty.

  1. A minor under fourteen (14) years of age may not be employed in any gainful occupation except as otherwise provided in § 50-5-107.
  2. Any person who violates subsection (a) commits a Class D felony.

Acts 1976, ch. 480, § 3; T.C.A., § 50-703; Acts 2001, ch. 378, § 1.

Cross-References. Penalty for Class D felony, § 40-35-111.

Textbooks. Tennessee Jurisprudence, 10 Tenn. Juris., Employer and Employee, § 54.

50-5-104. Employment of minors fourteen or fifteen years of age.

  1. A minor who is either fourteen (14) or fifteen (15) years of age may be employed in connection with any gainful occupation that:
    1. Does not interfere with the minor's schooling, health or well-being;
    2. Is not prohibited by subsection (b); or
    3. Is not prohibited by § 50-5-106.
  2. A minor who is either fourteen (14) or fifteen (15) years of age may not be employed:
    1. During school hours;
    2. Between the hours of seven o'clock p.m. (7:00 p.m.) and seven o'clock a.m. (7:00 a.m.), if the next day is a school day;
    3. Between the hours of nine o'clock p.m. (9:00 p.m.) and six o'clock a.m. (6:00 a.m.);
    4. More than three (3) hours a day on school days;
    5. More than eighteen (18) hours a week during a school week;
    6. More than eight (8) hours a day on nonschool days; or
    7. More than forty (40) hours a week during nonschool weeks.

Acts 1976, ch. 480, § 4; 1978, ch. 541, § 2; T.C.A., § 50-704.

Textbooks. Tennessee Jurisprudence, 10 Tenn. Juris., Employer and Employee, § 54.

Law Reviews.

Satisfying the State Interest in Education with Private Schools, 49 Tenn. L. Rev. 955 (1982).

50-5-105. Employment of minors sixteen or seventeen years of age.

  1. A minor who is sixteen (16) or seventeen (17) years of age may be employed in connection with any gainful occupation that:
    1. Does not interfere with the minor's health or well-being;
    2. Is not prohibited by subsection (b); or
    3. Is not prohibited by § 50-5-106.
  2. A minor who is sixteen (16) or seventeen (17) years of age and is enrolled in school may not be employed:
    1. During those hours when the minor is required to attend classes; or
    2. Between the hours of ten o'clock p.m. (10:00 p.m.) and six o'clock a.m. (6:00 a.m.), Sunday through Thursday evenings preceding a school day.
      1. If the parents or guardians of the minor submit to the employer a signed and notarized statement of consent, then the minor may be employed between the hours of ten o'clock p.m. (10:00 p.m.) and twelve o'clock midnight (12:00 a.m.), Sunday through Thursday evenings preceding a school day; provided, that under no circumstances shall the minor be employed between those hours on those evenings on more than three (3) occasions during any week.
      2. Each statement of consent shall be submitted to the employer on a carbonized form provided for the purpose by the department. Upon accepting the form, the employer shall promptly mail the carbon copy of the form to the commissioner.
      3. The form shall remain valid until the end of the school year during which it is submitted or until termination of the minor's employment, or until the minor reaches the age of majority, whichever occurs first; and the original copy of the form shall be maintained for the period of its effectiveness by the employer at the location of the minor's employment.
      4. At any time, consent may be rescinded by submission to the employer of a statement of rescission, signed by the parents or guardians of the minor.
  3. With respect to a student enrolled with a church-related school as defined in § 49-50-801, or who is home schooled in accordance with § 49-6-3050 and has the consent of the parent conducting the home school, subdivision (b)(1) shall not apply. However, to work during the hours identified in subdivision (b)(1), the student shall also present to the employer a letter signed by the director, as defined in § 50-5-102, confirming the student's enrollment and the authorization to work. The director of the church-related school shall send a copy of the letter to the director of the LEA of the school district in which the child resides.
  4. If the department discovers that an employer has violated this section or has violated § 50-5-111, by failing to maintain the required file record, including an accurate time record showing the hours of a minor's beginning and ending of work each day, then the department shall promptly take appropriate actions to ensure imposition of the sanctions prescribed by § 50-5-112.

Acts 1976, ch. 480, § 5; 1978, ch. 541, § 3; T.C.A., § 50-705; Acts 1990, ch. 787, § 1; 1998, ch. 781, § 1; 1999, ch. 520, § 41.

Textbooks. Tennessee Jurisprudence, 10 Tenn. Juris., Employer and Employee, § 54.

Law Reviews.

Satisfying the State Interest in Education with Private Schools, 49 Tenn. L. Rev. 955 (1982).

50-5-106. Prohibited employment for minors.

A minor may not be employed in connection with the following:

  1. Occupations in or about plants or establishments manufacturing or storing explosives or articles containing explosive components;
  2. Motor vehicle driving occupations;
  3. Coal mine occupations;
  4. Logging occupations and occupations in the operation of any sawmill, lath mill, shingle mill or cooperage-stock mill;
  5. Occupations involved in the operation of power-driven woodworking machines;
  6. Occupations involving exposure to radioactive substances and to ionizing radiations;
  7. Occupations involved in the operation of elevator and other power-driven hoisting apparatus;
  8. Occupations involved in the operation of power-driven metal-forming, punching and shearing machines;
  9. Occupations in connection with mining elements other than coal;
  10. Occupations involving slaughtering, meat-packing, processing or rendering;
  11. Occupations involved in the operation of hazardous power-driven bakery machines;
  12. Occupations involved in the operation of hazardous power-driven paper products machines;
  13. Occupations involved in the manufacture of brick, tile and kindred products;
  14. Occupations involved in the operation of circular saws, band saws and guillotine shears;
  15. Occupations involved in wrecking, demolition and ship-breaking operations;
  16. Occupations involved in roofing operations;
  17. Occupations in excavation operations;
  18. Any occupation in a place of employment where the average monthly gross receipts from the sale of intoxicating beverages exceed twenty-five percent (25%) of the total gross receipts of the place of employment, or in any place of employment where a minor will be permitted to take orders for or serve intoxicating beverages, regardless of the amount of intoxicating beverages sold in the place of employment;
  19. Occupations that the commissioner shall by regulation, pursuant to this part, declare to be hazardous or injurious to the life, health, safety and welfare of minors;
    1. Occupations involving posing or modeling, alone or with others, while engaged in sexual conduct for the purpose of preparing a film, photograph, negative, slide or motion picture;
    2. As used in (20)(A), “sexual conduct” means actual or simulated conduct, sexual intercourse, sodomy, sexual bestiality, masturbation, sadomasochistic abuse, excretion, or the exhibition of the male or female genitals; and
  20. Occupations involved in youth peddling.

Acts 1976, ch. 480, § 7; 1977, ch. 227, § 1; T.C.A., § 50-707; Acts 1999, ch. 203, § 2.

Cross-References. Penalty for using children in pornography, § 50-5-113.

Textbooks. Tennessee Jurisprudence, 10 Tenn. Juris., Employer and Employee, § 54.

Law Reviews.

A Critical Survey of Developments in Tennessee Family Law in 1976-77, VII. Protection of Minors (Neil P. Cohen), 45 Tenn. L. Rev. 489 (1978).

Collateral References.

Lawn mowing by minors as violation of child labor statutes. 56 A.L.R.3d 1166.

50-5-107. Exempt minors.

This part shall not apply to any minor who:

  1. Is employed in housework in the minor's home;
  2. Is employed by a parent or guardian in a nonhazardous occupation, as defined by § 50-5-106;
  3. Is employed in agricultural work;
  4. Is employed in the distribution or sale of newspapers;
  5. Is employed in errand and delivery work by foot, bicycle or public transportation;
  6. Is self-employed;
  7. Is a musician or entertainer, except in cases covered by § 50-5-106(20);
  8. Has graduated from high school or has the equivalent of a high school diploma, but only if a copy of the minor's high school diploma or its equivalent is retained by the employer in the employer's personnel records;
  9. Is or has been lawfully married or is a parent, but only if a copy of either the minor's marriage license or the birth certificate of the minor's child is retained by the employer in the employer's personnel records;
  10. Is sixteen (16) or seventeen (17) years of age and is an apprentice employed in a craft recognized as an apprenticable trade and is registered by the bureau of apprenticeship and training of the United States department of labor and is employed in accordance with the standards established by that bureau;
  11. Is sixteen (16) or seventeen (17) years of age and is a student learner enrolled in a course of study and training in a cooperative vocational training program under a recognized state or local educational authority or in a course of study in a substantially similar program conducted by a private school. The student learner must be employed under a written agreement, a copy of which must be retained by the employer in the employer's personnel records;
  12. Is an enrollee in a public employment program that is conducted or funded by the federal government; provided, that the employer has on file in the employer's personnel records an unrevoked written statement from a representative of the federal agency administering that program certifying the enrollment of the minor in the program;
  13. Is sixteen (16) or seventeen (17) years of age and not enrolled in school, but only if the employer has on file in the employer's personnel records a written statement signed by the director of schools stating that the particular minor is not enrolled in school; or is lawfully excused from compulsory school attendance under § 49-6-3005, but only if the employer has on file in the employer's personnel records a written statement signed by the director of schools stating that the particular minor has been excused under § 49-6-3005; or
  14. Is fourteen (14) years of age or older and who is a student enrolled in a course of study and training in a cooperative career and technical training program, including a work experience and career exploration program, that is approved and authorized by the department of education and that complies with all applicable federal laws. The student learner must be employed under a written agreement, a copy of which must be retained by the employer in the employer's personnel records.

Acts 1976, ch. 480, § 8; 1977, ch 227, § 2; 1978, ch. 541, § 4; T.C.A., § 50-708; Acts 2008, ch. 888, § 1.

Textbooks. Tennessee Jurisprudence, 10 Tenn. Juris., Employer and Employee, § 54.

Law Reviews.

A Critical Survey of Developments in Tennessee Family Law in 1976-77, VII. Protection of Minors (Neil P. Cohen), 45 Tenn. L. Rev. 489 (1978).

50-5-108. Special exemptions.

  1. The commissioner may consider and grant special exemptions submitted in writing by the minor and the minor's parents or guardian from this part if it is found that to do so would be in the best interest of the minor involved, and present no danger to the life, health or safety, or schooling of the minor.
    1. Before granting a special exemption, the commissioner shall investigate and determine from all pertinent data available that there is reasonable cause to believe that the exemption is in the best interests of the minor.
    2. If the commissioner finds that the minor is entitled to a special exemption, the commissioner will immediately report, in writing, the commissioner's findings and reasons for granting the special exemption, to the director of schools in the county in which the minor resides.
  2. Failure by the commissioner to grant a special exemption within ten (10) days of submission shall be considered a refusal.
    1. When a special exemption has been refused, the commissioner shall, upon demand made within five (5) days after the refusal, furnish the minor and the minor's parents or guardian with a written statement of the reasons for the refusal.
    2. This written statement shall be furnished by the commissioner within ten (10) days of the commissioner's receipt of the demand by the minor and the minor's parents or guardian.
    1. Within ten (10) days after the receipt of the statement by the commissioner, the minor and the minor's parents or guardian may petition the court having jurisdiction over juvenile matters in the county in which the minor resides for an order directing the commissioner to grant a special exemption.
    2. The petition shall state the reasons why the court should issue an order, and the petitioner shall attach to the petition the statement of the commissioner obtained pursuant to subsection (d).
    1. The court shall hold a hearing and receive further testimony and evidence it deems necessary.
    2. If the court finds that the issuance or reissuance of a permit is in the best interest of the minor, it shall grant the petition.

Acts 1976, ch. 480, § 9; 1978, ch. 541, § 5; T.C.A., § 50-709.

Textbooks. Tennessee Jurisprudence, 10 Tenn. Juris., Employer and Employee, § 54.

50-5-109. Proof of age required for employment or continued employment — Oath by parent or guardian if evidence unavailable.

Before any minor may be employed or continue to be employed in connection with any gainful occupation, the employer shall require proof of the age of the minor employee or prospective employee by requiring the minor to provide the employer with a copy of the minor's birth certificate, passport, driver's license or state issued identification. If the evidence is not available, the parents or guardian shall appear with the minor before the judge or other officer of the juvenile court of the county in which the minor resides and shall make an oath as to the age of the minor.

Acts 1976, ch. 480, § 10; 1977, ch. 198, § 1; 1978, ch. 541, § 6; impl. am. Acts 1978, ch. 934, §§ 7, 36; T.C.A., § 50-710; Acts 2001, ch. 378, § 2.

Textbooks. Tennessee Jurisprudence, 10 Tenn. Juris., Employer and Employee, § 54.

50-5-110. Duties of department.

The department shall administer and enforce this part. In addition, the department shall:

  1. Supply employers of minors with printed copies of the regulations governing the employment and hours of work of minors and occupations prohibited to minors under this part;
  2. Inspect all places where minors may be employed and all pertinent records of employment, at any reasonable time, and as often as necessary to effectively enforce this part;
  3. Notify in writing any person charged with a violation of this part as to the nature of the violation;
  4. Bring a complaint before any court of competent jurisdiction against persons violating this part and prosecute these violations; and
  5. Make, keep and preserve a file record of all places where minors may be employed.

Acts 1976, ch. 480, § 13; 1978, ch. 541, § 7; T.C.A., § 50-713; Acts 1986, ch. 844, § 5.

NOTES TO DECISIONS

1. Records Request.

Tennessee Department of Labor and Workplace Development should not have assessed penalties against an employer for violations of T.C.A. § 50-5-111(1), (4), based on the employer's failure to provide records within an hour. Publix Super Mkts., Inc. v. Tenn. Dep't of Labor & Workforce Dev., 402 S.W.3d 218, 2012 Tenn. App. LEXIS 799 (Tenn. Ct. App. Aug. 24, 2012), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 284 (Tenn. Mar. 5, 2013).

50-5-111. Duties of employers of minors.

Employers of minors subject to regulation under this part shall:

  1. Make, keep and preserve a separate and independent file record for each minor employed, which shall be kept at the location of the minor's employment and shall include:
    1. An employment application;
    2. A copy of the minor's birth certificate or other evidence of the minor's age as provided in § 50-5-109;
    3. An accurate time record showing the hours of the minor's beginning and ending of work each day if the minor is one subject to § 50-5-104 or § 50-5-105; and
    4. Any records required under § 50-5-107(8)-(14);
  2. Allow the department to inspect, during regular working hours, any and all premises where minors are or could be employed and the contents of the individual file records specified in subdivision (1);
  3. Post and maintain in a conspicuous place on the business premises a printed notice, furnished by the department, stating the regulations governing the employment and hours of work of minors and employment prohibited to minors under this part; and
  4. Furnish to the department records relative to the employment of minors.

Acts 1976, ch. 480, § 15; 1978, ch. 541, § 8; T.C.A., § 50-715; Acts 1986, ch. 844, § 6; 1990, ch. 787, § 2; 2001, ch. 378, § 3.

NOTES TO DECISIONS

1. Records Request.

Tennessee Department of Labor and Workplace Development should not have assessed penalties against an employer for violations of T.C.A. § 50-5-111(1), (4), based on the employer's failure to provide records within an hour. Publix Super Mkts., Inc. v. Tenn. Dep't of Labor & Workforce Dev., 402 S.W.3d 218, 2012 Tenn. App. LEXIS 799 (Tenn. Ct. App. Aug. 24, 2012), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 284 (Tenn. Mar. 5, 2013).

Child Labor Act provides authority to the Department of Labor and Workforce Development to immediately request the records that are required to be maintained by the Child Labor Act be produced for inspection, however, if the employer refuses an immediate inspection of the records, the appropriate recourse is for the Department to seek an administrative warrant pursuant to T.C.A. § 50-4-101, and the Department may not threaten an employer with a penalty for asserting its Fourth Amendment right. Publix Super Mkts., Inc. v. Tenn. Dep't of Labor & Workforce Dev., 402 S.W.3d 218, 2012 Tenn. App. LEXIS 799 (Tenn. Ct. App. Aug. 24, 2012), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 284 (Tenn. Mar. 5, 2013).

50-5-112. Violations — Penalties.

    1. Except as provided in § 50-5-103, any employer, who violates this part, or hinders or obstructs the department in administering or enforcing this part, or any parent or guardian who permits a child under the parent's or guardian's control or custody to work in violation of this part, commits a Class A misdemeanor.
    2. At the discretion of the commissioner, the employer shall be subject to a civil penalty of not less than one hundred fifty dollars ($150) nor more than one thousand dollars ($1,000) for each instance of an employer's violation of this part. In determining the amount of the penalty, the appropriateness of the penalty to the size of the business of the person charged and the gravity of the violation shall be considered. If the commissioner determines that the violation was unintentional, there shall be a warning in lieu of a penalty on the first offense.
    3. On second or subsequent violations, the civil penalty is applicable and may be assessed at the discretion of the commissioner, or the commissioner's designated representative.
    4. It shall be at the sole discretion of the commissioner to elect to proceed either civilly or criminally upon any violation of this part; however, the employer shall not be charged both civilly and criminally for the same violation.
  1. Each day during which any violation of subsection (a) continues after notification by the department that a violation exists constitutes a separate punishable offense.
  2. Any person who engages a minor under sixteen (16) years of age in youth peddling and transports the minor more than five (5) miles from the minor's residence shall, at the discretion of the commissioner, be subject to a penalty of not less than one thousand dollars ($1,000) nor more than ten thousand dollars ($10,000) if evidence of two (2) or more of the following factors is present:
    1. The minor is working more than three (3) hours a day on school days;
    2. The minor is working more than eighteen (18) hours a week during a school week;
    3. The minor is working more than eight (8) hours a day on nonschool days;
    4. The minor is working more than forty (40) hours a week during nonschool weeks;
    5. The minor is working after seven o'clock p.m. (7:00 p.m.) if the next day is a school day; or
    6. The employer fails to comply with the recordkeeping requirements of § 50-5-111.
  3. Any person who violates § 50-5-103 shall, at the discretion of the commissioner, be subject to a penalty of not less than one thousand dollars ($1,000) nor more than ten thousand dollars ($10,000). Each instance of a minor working in violation of § 50-5-103 shall constitute a separate violation.
  4. Each instance of a minor under sixteen (16) years of age working in violation of the youth peddling provisions of this part shall be considered a separate violation.
  5. Any person who violates the youth peddling provisions of this part commits a Class D felony.
  6. If, within thirty (30) days from the receipt of written notification of penalties assessed pursuant to this part, an employer fails to notify the commissioner in writing of its intent to contest the imposition of the penalty, the assessment of a penalty as stated in the notification shall be deemed a final order of the commissioner, and not subject to further review.
  7. All penalties owed under this part shall be paid to the commissioner.

Acts 1977, ch. 60, § 1; T.C.A., § 50-716; Acts 1989, ch. 591, § 111; 1993, ch. 220, § 1; 1999, ch. 203, §§ 3, 4; 2001, ch. 378, §§ 4-6; 2003, ch. 286, §§ 1, 2.

Cross-References. Penalty for Class A misdemeanor, § 40-35-111.

Penalty for Class D felony, § 40-35-111.

Textbooks. Tennessee Jurisprudence, 10 Tenn. Juris., Employer and Employee, § 54.

Law Reviews.

A Critical Survey of Developments in Tennessee Family Law in 1976-77, VII. Protection of Minors (Neil P. Cohen), 45 Tenn. L. Rev. 489  (1978).

50-5-113. Using children in pornography — Class C felony.

Any person who violates § 50-5-106(20) or who violates § 50-5-103 by employing a child in an occupation that would violate § 50-5-106(20) if the child were over fourteen (14) years of age commits a Class C felony.

Acts 1977, ch. 227, § 3; T.C.A., § 50-717; Acts 1989, ch. 591, § 47.

Cross-References. Penalty for Class C felony, § 40-35-111.

50-5-114. Rules and regulations.

The commissioner may issue, amend and rescind all rules, regulations and procedures necessary to effectuate the purpose of this part.

Acts 1978, ch. 541, § 9; T.C.A., § 50-718; Acts 1986, ch. 844, § 10.

50-5-115. Breaks and meal periods for working minors.

A minor must have a thirty-minute unpaid break or meal period if scheduled to work six (6) hours consecutively. This break shall not be scheduled during or before the first hour of scheduled work activity.

Acts 1993, ch. 220, § 2.

Part 2
Tennessee Protection of Minor Performers Act

50-5-201. Short title.

This part shall be known and may be cited as the “Tennessee Protection of Minor Performers Act.”

Acts 2003, ch. 168, § 1.

Law Reviews.

Stand by Me: The Tennessee Protection of Minor Performers Act (Dorothy Kathryn Campbell), 40 No. 11 Tenn. B.J. 12 (2004).

50-5-202. Power to amend or repeal.

The general assembly shall have power to amend or repeal all or part of this part at any time and all persons subject to this part shall be governed by the amendment or repeal.

Acts 2003, ch. 168, § 1.

50-5-203. Part definitions.

As used in this part, unless the context otherwise requires:

  1. “Artistic or creative services” means, but is not limited to, services as an actor, actress, dancer, musician, comedian, vocalist, including demonstration recordings, stunt-person, voice-over artist, model, or other performer or entertainer, or as a songwriter, musical producer or arranger, writer, director, producer, production executive, choreographer, composer, conductor, or designer, or other performing artist; and
  2. “Minor” means any person who has not attained eighteen (18) years of age and has not had the disability of minority removed so as to make this part inapplicable.

Acts 2003, ch. 168, § 1.

Cross-References. Removal of disability of minors, title 29, chapter 31.

50-5-204. Construction.

This part does not repeal or affect the rights or powers under title 29, chapter 31, regarding the removal of disability of minors, and all provisions of that chapter shall remain in force and effect and applicable to the appropriate circumstances addressed in that chapter.

Acts 2003, ch. 168, § 1.

50-5-205. Approval not exemption from other law — Disability of non-age not removed generally.

Approval of a contract pursuant to this part shall not:

  1. Exempt any person from any other law with respect to licenses, consents, or authorizations required for any conduct, employment, use, or exhibition of the minor in this state, nor limit in any manner the discretion of the licensing authority or other persons charged with the administration of the requirements, nor dispense with any other requirement of law relating to the minor;
  2. Unless specifically so provided in the order, remove the disability of non-age for any other contract with the same minor that is not approved by the court pursuant to this section, nor, unless specifically so provided in the order, is the disability of non-age of the minor removed generally for the minor, nor is the minor emancipated for any other purpose or contract other than the performance of contracts approved pursuant to this section; and
  3. Be granted for a contract that provides for an employment, use, or exhibition of the minor, within or without the state, that is prohibited by law and in particular by any federal or state minor labor law, and could not be licensed to take place in this state.

Acts 2003, ch. 168, § 1.

Cross-References. Removal of disability of minors, title 29, chapter 31.

50-5-206. Applicability.

The chapters of this title shall apply to every minor person who desires to perform artistic or creative services in the state, including minor persons who reside in the state and minor persons not residing in the state, as long as some or all of the services are to be provided or delivered in the state, or at least one (1) of the other parties are doing business in the state.

Acts 2003, ch. 168, § 1.

50-5-207. Disaffirmance of approved contract on ground of minority.

If a contract is approved by the appropriate court pursuant to this part, then the minor may not, either during minority or after reaching majority, disaffirm the contract on the ground of minority, nor may the minor assert that the minor's parent or guardian lacked the authority to make the contract personally as an adult.

Acts 2003, ch. 168, § 1.

50-5-208. Who may apply for court order.

Application for an order pursuant to this part may be made by the minor, or the minor's parent, or legal guardian, or guardian ad litem appointed pursuant to this part. For the purposes of any proceeding under this part, a parent or legal guardian, as the case may be, entitled to the physical custody, care, and control of the minor at the time of the proceeding shall be considered the minor's guardian ad litem for the proceeding, unless the court determines that appointment of a different individual as guardian ad litem is required in the best interests of the minor.

Acts 2003, ch. 168, § 1.

50-5-209. Approval for contract that is executed, in existence or being performed — Effective date — Earnings.

  1. Approval under this part may be sought for a contract or agreement that is fully executed, is already in existence or under which the parties are currently performing. Approval may be effective as of the date upon which the contract has been executed, or the date when services were first performed by the minor, if specifically so ordered by the court. The parties may petition the court for approval to be effective within one (1) year of the contract's ratification by the court. The parties may also petition the court for approval of a contract effective date more than one (1) year after the ratification of the contract by the court, if good cause for the delayed effective date is shown by the petitioners.
  2. If a contract is approved pursuant to this part, all earnings, royalties, or other compensation earned or received by the minor pursuant to the approved contract shall become the sole property of the minor who will be authorized to execute any contracts relating to administration or investments of the earnings.

Acts 2003, ch. 168, § 1.

50-5-210. Where to file petition.

Petition for contract approval under this part shall be filed with and, when granted, approved by the court handling probate matters for the county in which the minor resides, where the minor is employed or where the minor performs or renders the minor's services, or intends to do so; or the county in this state where performance of the contract shall be conducted, if the minor is not a resident of the state where the majority of the services are performed and the non-minor party to the contract is either a resident of this state or has been qualified or licensed to do business in the state.

Acts 2003, ch. 168, § 1.

50-5-211. Notice and hearing.

After a petition is filed pursuant to § 50-5-208, and following reasonable notice to all parties to the contract as is fixed by the court, the court will provide all parties to the contract with the opportunity to appear and be heard. The court may approve the contract following the hearing.

Acts 2003, ch. 168, § 1.

50-5-212. Effect of court approval — Revocation of approval.

Court approval of a valid contract shall serve to bind the minor as if the minor executed the contract personally as an adult; and the minor shall be bound to all provisions including the permanent sale of intellectual property rights; provided, however, that the revocation of approval of the contract by the court shall not include the transfer back to the minor of intellectual property rights unless there has been a showing of fraud or misrepresentation by the employer; and, further, that the court approving the contract shall retain the authority to revoke approval of the contract, or modify its terms if assented to by both parties, if the court finds that the well being of the minor requires the disapproval.

Acts 2003, ch. 168, § 1.

50-5-213. Scope.

Contracts eligible for approval under this part shall include contracts pursuant to which a minor person is employed, employs, or agrees to perform or render artistic or creative services, either directly or through a third party including, without limitation, a personal services corporation, manager, booking agent, or producer. For purposes of this part, when a minor renders services as an extra, background performer, or in a similar capacity, through an agency or service that provides one (1) or more performers for a fee, the agency or service shall be considered the minor's employer.

Acts 2003, ch. 168, § 1.

50-5-214. Effect of modifications, amendments, or assignments of contracts.

  1. Modifications, amendments, or assignments of contracts previously approved by the court are deemed a new contract and require separate approval under this part.
  2. Notwithstanding subsection (a), this section does not require court approval if the employing company assigns its rights in the contract to a successor or affiliate entity.

Acts 2003, ch. 168, § 1.

50-5-215. Appointment of guardian ad litem — Court discretion — Criteria — Compensation.

  1. At any time after the filing of the petition, the court in its discretion may appoint a guardian ad litem to represent the interests of the minor or to oversee the minor's earnings related to the contract approved under this part. The court shall appoint a guardian ad litem as to any contract where the parent or guardian will receive remuneration or financial gain from the performance of the contract or if the court deems that the persons have any other conflict of interest with the minor. The court, in determining whether a guardian ad litem should be appointed, may consider the following criteria:
    1. The length of time the exclusive services of the minor are required;
    2. Whether the gross earnings of the minor under the contract are either contingent or unknown;
    3. The amount of gross earnings of the minor under the contract; and
    4. The age of the minor.
  2. The guardian ad litem shall be entitled to reasonable compensation. The court shall have the power to determine which party shall be responsible for the fee, whether the fee and any required bond shall be paid from the earnings of the minor pursuant to the contract sought to be approved, or may apportion the fee between the parties to the proceedings.

Acts 2003, ch. 168, § 1.

50-5-216. Custody of minor — Contents of petition.

  1. A parent, guardian, or legal custodian entitled to the physical custody, care, and control of a minor who enters into a contract of a type described in this part shall provide a certified copy of the minor's birth certificate indicating the minor's minority to the other party or parties to the contract.
  2. A guardian or a person with temporary legal custody must provide a certified copy of the court document appointing the person as the minor's legal guardian.
  3. A complete copy of the contract or proposed contract shall be attached to the petition. The petition shall also include the following information:
    1. The full name, residence, and date of birth of the minor;
    2. The name and residence of any living parent of the minor, the name and residence of the person who has care and custody of the minor, and the name and residence of the person with whom the minor resides;
    3. A statement that the minor is a resident of the state. If the minor is not a Tennessee resident, a statement that the petition is for approval of a contract for performance or rendering of services by the minor in the state, specifying the place in the state where the services are to be performed or rendered;
    4. A brief description of the minor's employment and compensation under the contract, including where services of the minor are to be performed, accompanied by a plan for the protection of the minor's earnings under the contract;
    5. The full name and residence of the petitioner, and the interest of the petitioner in the contract or proposed contract or in the minor's performance under the contract; and
    6. Other facts known by the petitioner regarding the minor and the minor's family and property that will show that the contract is reasonable, prudent, and in the best interests of the minor. The information shall include whether the minor has had at any time a guardian ad litem appointed by a court of any jurisdiction and an explanation of the facts regarding the previous appointment. Information regarding whether relief similar to the current petition has been sought on behalf of the minor, including whether a guardian ad litem was appointed for the previous application for court approval.
  4. Upon application by any party or by order of the court, the petition or any portion of the petition, including attachments, may be filed under seal.

Acts 2003, ch. 168, § 1.

50-5-217. Persons to be served with petition.

The following persons, other than one who is the petitioner or who joins in the petition, shall be served with the petition by formal notice, as prescribed by Rule 4 of the Tennessee Rules of Civil Procedure:

  1. The minor;
  2. The minor's legal custodian or guardian ad litem, if any, whether or not appointed or qualified in this state;
  3. Each party to the contract;
  4. The parent or parents of the minor;
  5. Any person having the care and custody of the minor;
  6. The person with whom the minor resides, if other than a parent or guardian; and
  7. If it appears that the minor is married, the minor's spouse.

Acts 2003, ch. 168, § 1.

50-5-218. Court's discretion for hearing in chambers or courtroom — Of record — Sealed.

At the court's discretion, the hearing may be held in the court's chambers or courtroom. The proceeding shall be of record and may be sealed, if the court determines that sealing the record will be in the best interests of the minor.

Acts 2003, ch. 168, § 1.

50-5-219. Minor's personal appearance.

The minor, unless excused by the court for good cause shown, shall attend personally before the court upon the hearing of the petition.

Acts 2003, ch. 168, § 1.

50-5-220. Options of the court.

  1. The court at the hearing or on an adjournment of the hearing, may by its order do any of the following:
    1. Approve or disapprove the contract or proposed contract;
    2. Approve the contract upon such conditions, with respect to modification of the terms of the contract or otherwise, as it shall determine;
    3. Appoint a guardian ad litem as provided by § 50-5-215;
    4. Appoint a trustee to administer the trust for earnings as provided by § 50-5-222; or
    5. Award reasonable attorney's fees and other expenses paid or to be paid by or on behalf of the minor in connection with the proceeding, approval of the contract, and its performance.
  2. The court shall consider the following factors in making its final determination:
    1. The best interest of the minor;
    2. Whether the minor is represented by a lawyer;
    3. The length of the contract;
    4. The age of the minor; and
    5. Any other matter that the court deems appropriate.

Acts 2003, ch. 168, § 1.

50-5-221. Court's review of contract — Protection of earnings.

  1. The court shall ensure that any contract it approves contains all the requirements for the rendering of services of the minor and that the petition includes a plan for the protection of earnings under the contract.
  2. The court shall consider the following when determining the protection of earnings:
    1. The interest of the petitioner in the contract or proposed contract or in the minor's performance under the contract;
    2. The parties who are entitled to the minor's earnings, and, if the minor is not so entitled, facts regarding the property and financial circumstances of the parent or parents, or legal custodian or guardian ad litem, or other third party;
    3. A bank or trust account used expressly for the deposit of fees generated under the contract and the relationship of any proposed trustee of the minor's funds;
    4. The percentage of fees generated that are intended for deposit; and
    5. The minor's financial advisor or other third party who will render investment advice and administer the bank or trust account.
  3. Notwithstanding any provision to the contrary, the creditors of any person, other than the minor, shall not be entitled to the earnings of the minor.

Acts 2003, ch. 168, § 1.

50-5-222. Requirement that portion of earnings be set aside in trust.

Notwithstanding any law to the contrary, in an order approving a minor's contract as described in this part, the court shall require that fifteen percent (15%) of the minor's gross earnings pursuant to the contract be set aside by the minor's employer in trust and shall be paid to the trustee appointed by the court so that it may be invested in an account or other savings plan, and preserved for the benefit of the minor until the minor reaches the age of majority. The court may also require that more than fifteen percent (15%) of the minor's gross earnings be set aside in trust, in an account or other savings plan, and preserved for the benefit of the minor, upon request of the minor's parent or legal guardian, or the minor, through the minor's guardian ad litem. Gross earnings for the purpose of this section refers to those funds earned and received by the minor pursuant to the terms of the contract and does not include those funds applied towards recoupment pursuant to the contract.

Acts 2003, ch. 168, § 1.

Chapter 6
Workers' Compensation Law

Compiler's Notes. Pursuant to § 50-6-101, as amended by the Workers’ Compensation Reform Act of 2013, Acts 2013, ch. 289, the amendments by that act apply to injuries occurring on and after July 1, 2014, and prior law governs  claims having a date of injury prior to July 1, 2014.  For ease of reference, the prior law has been maintained in this volume in a distinctive  typeface following each current law section, along with bracketed language following the section headings indicating that the section is applicable to injuries occurring prior to July 1, 2014.  Those sections that were not amended by Acts 2013, ch. 289 are indicated as applicable to injuries occurring both prior to and on and after July 1, 2014.

Part 1
General Provisions

50-6-101. Short title — Controlling law.

This chapter shall be cited to as the “Workers' Compensation Law” and shall be controlling for any claim for workers' compensation benefits for an injury, as defined in this chapter, when the date of injury is on or after July 1, 2014. All claims having a date of injury prior to July 1, 2014, shall be governed by prior law.

Acts 1919, ch. 123, § 1; Shan. Supp., § 3608a137; Code 1932, § 6851; impl. am. Acts 1980, ch. 534, § 1; T.C.A. (orig. ed.), § 50-901; Acts 2013, ch. 289, § 3.

Compiler's Notes. Acts 2013, ch. 289, § 103 provided that the act, which amended this section, shall be known and may be cited as the “Workers' Compensation Reform Act of 2013.”

Amendments. The 2013 amendment, effective July 1, 2014, rewrote the section which read: “This chapter shall be known and may be cited as the ‘Workers' Compensation Law.’”.

Effective Dates. Acts 2013, ch. 289, § 106. July 1, 2014; provided, that, for purposes of promulgating rules and regulations, making appointments and making necessary provisions for the implementation of the act, the act shall take effect April 29, 2013.

Cross-References. Ridesharing, applicability of workers’ compensation provisions, § 65-19-203.

Law Reviews.

The Deep Roots of Workers' Comp: Pirates, Prussians and Progressives Are All in the Family Tree, 49 Tenn. B.J.  10 (2013).

50-6-101. Short title. [Applicable to injuries occurring prior to July 1, 2014.]

This chapter shall be known and may be cited as the “Workers' Compensation Law.”

Acts 1919, ch. 123, § 1; Shan. Supp., § 3608a137; Code 1932, § 6851; impl. am. Acts 1980, ch. 534, § 1; T.C.A. (orig. ed.), § 50-901.

Cross-References. Ridesharing, applicability of workers' compensation provisions, § 65-19-203.

Law Reviews.

Employer not Liable for Manager's Egregious Misconduct (Timothy S. Bland and Licia M. Williams), 37 No. 10 Tenn. B.J. 17 (2001).

Long Arm: Does OSHA's Reach Extend to Employees Working at Home on Company-Provided Computers? (Linda S. Peterson), 36 No. 11 Tenn. B.J. 14 (2000).

Mass Tort Litigation in Tennessee (Paul Campbell, III and Hugh J. Moore, Jr.), 53 Tenn. L. Rev. 221 (1986).

Products Liability and Workers' Compensation — Malkiewicz v. R.R. Donnelley & Sons Co.: Shielding the Guarantor under the Tennessee Workers' Compensation Law, 22 Mem. St. U.L. Rev. 611 (1992).

The Exclusiveness of an Employee's Workers' Compensation Remedy Against his Employer (Joseph H. King, Jr.), 55 Tenn. L. Rev. 405 (1988).

The OSHA Hazard Communication Standard (Gary C. Shockley), 25 No. 5 Tenn. B.J. 22 (1989).

The Rights of Nonsmokers in Tennessee, 54 Tenn. L. Rev. 671 (1987).

1985 Tennessee Survey: Selected Developments in Tennessee Law, 53 Tenn. L. Rev. 415 (1986).

NOTES TO DECISIONS

1. Constitutionality.

This statute does not violate Tenn. Const., art. I, § 8, providing that no man shall be taken or disseized of his freehold, or in any manner deprived of his life, liberty or property but by the judgment of his peers or the law of the land. Scott v. Nashville Bridge Co., 143 Tenn. 86, 223 S.W. 844, 1919 Tenn. LEXIS 27 (1919).

Constitutional prohibition against express repeal of laws without reciting in title or body substance of laws repealed does not render this statute invalid since it only repeals by implication. Scott v. Nashville Bridge Co., 143 Tenn. 86, 223 S.W. 844, 1919 Tenn. LEXIS 27 (1919).

This statute does not violate the provision of Tenn. Const., art. I, § 21 that no man's particular services or property shall be taken or applied to public use, without just compensation. Scott v. Nashville Bridge Co., 143 Tenn. 86, 223 S.W. 844, 1919 Tenn. LEXIS 27 (1919).

This statute is not violative of Tenn. Const., art. I, § 6, upon the ground that it denies trial by jury, because the parties by accepting the act waive the right of trial by jury, and hence are not deprived of that right, for the statute is elective and if its provisions are accepted, it thereby becomes a part of the contract of employment. Scott v. Nashville Bridge Co., 143 Tenn. 86, 223 S.W. 844, 1919 Tenn. LEXIS 27 (1919).

This statute does not deprive the employee of his property without due process of law in violation of U.S. Const., amend. 14. Scott v. Nashville Bridge Co., 143 Tenn. 86, 223 S.W. 844, 1919 Tenn. LEXIS 27 (1919).

This statute is not unconstitutional in that it undertakes to make an election for, and a binding contract upon, a minor employee, since the statute endows a minor, for its purpose, with power to elect. Scott v. Nashville Bridge Co., 143 Tenn. 86, 223 S.W. 844, 1919 Tenn. LEXIS 27 (1919).

Constitutional prohibition against act containing two subjects was not contravened because both the original act and its title provided a system of workers' compensation and also a system of liability or accident insurance. Scott v. Nashville Bridge Co., 143 Tenn. 86, 223 S.W. 844, 1919 Tenn. LEXIS 27 (1919).

Original act and title were not contrary to constitutional requirements that act and title contain only one subject, in that they provided revenue for the state and compensation to employees by providing for fines after conviction upon violation of certain of its provisions and by appropriating from state revenues sums necessary to effectuate the purpose of the act. Scott v. Nashville Bridge Co., 143 Tenn. 86, 223 S.W. 844, 1919 Tenn. LEXIS 27 (1919).

This statute is elective, and therefore cannot be declared to be discriminative. Vantrease v. Smith, 143 Tenn. 254, 227 S.W. 1023, 1920 Tenn. LEXIS 15 (1920).

This act is not invalid as contrary to Tenn. Const., art. II, § 17 or art. XI, § 8. Mitchell v. Usilton, 146 Tenn. 419, 242 S.W. 648, 1921 Tenn. LEXIS 24 (1921).

No action for punitive damages is allowable in a workers' compensation case. Liberty Mut. Ins. Co. v. Stevenson, 212 Tenn. 178, 368 S.W.2d 760, 1963 Tenn. LEXIS 410 (1963).

2. —Invalid Provision — Elision.

This statute was not unconstitutional as a whole by reason of the invalidity of the provision allowing fees to county judges or chairmen of county courts, because such provision may be elided. Scott v. Nashville Bridge Co., 143 Tenn. 86, 223 S.W. 844, 1919 Tenn. LEXIS 27 (1919).

3. Nature and Effect of Statute.

This statute deprived the employee coming under its provisions of the ordinary remedy for negligence resulting in injury, and substituted compensation for injury by accident arising out of and in course of employment, without reference to negligence, actual or imputed, on the part of the employer. Partee v. Memphis Concrete Pipe Co., 155 Tenn. 441, 295 S.W. 68, 1926 Tenn. LEXIS 64 (1927).

Negligence of employer is not taken into account in cases arising under this statute. Morrison v. Tennessee Consol. Coal Co., 162 Tenn. 523, 39 S.W.2d 272, 1930 Tenn. LEXIS 118 (1931).

The compensation law is both elective and contractual. Hammett v. Vogue, Inc., 179 Tenn. 284, 165 S.W.2d 577, 1942 Tenn. LEXIS 22 (1942).

The Workers' Compensation Act constitutes a complete substitute for the previous remedies in tort on the part of the employee. Liberty Mut. Ins. Co. v. Stevenson, 212 Tenn. 178, 368 S.W.2d 760, 1963 Tenn. LEXIS 410 (1963).

The statute is not a social welfare law. Smith v. Tennessee Furniture Industries, Inc., 212 Tenn. 291, 369 S.W.2d 721, 1963 Tenn. LEXIS 423 (1963).

Workers' Compensation Law is a creature of the general assembly, and any change in its structure must come from the general assembly and not from the courts. Lindsey v. Hunt, 215 Tenn. 406, 384 S.W.2d 441, 1964 Tenn. LEXIS 527 (1964), rehearing denied, Lindsey v. Hunt, 215 Tenn. 406, 387 S.W.2d 344, 1965 Tenn. LEXIS 505 (1964), overruled, Betts v. Tom Wade Gin, 810 S.W.2d 140, 1991 Tenn. LEXIS 174 (Tenn. 1991); Cordell v. Sky Rides of Am., Inc., 218 Tenn. 485, 404 S.W.2d 488, 1966 Tenn. LEXIS 647 (1966), overruled, Betts v. Tom Wade Gin, 810 S.W.2d 140, 1991 Tenn. LEXIS 174 (Tenn. 1991); Aerosol Corp. of South v. Johnson, 222 Tenn. 339, 435 S.W.2d 832, 1968 Tenn. LEXIS 435 (1968).

Although Workers' Compensation Law is to be liberally construed to accomplish its intended purposes, it is not a social welfare statute. Smith v. Tennessee Furniture Industries, Inc., 212 Tenn. 291, 369 S.W.2d 721, 1963 Tenn. LEXIS 423 (1963); Bishop Baking Co. v. Forgey, 538 S.W.2d 602, 1976 Tenn. LEXIS 493 (Tenn. 1976).

4. Application and Scope.

Employees hired in another state could maintain an action in Tennessee for benefits under the Tennessee Workers' Compensation Act where they incurred accidental injury while in the scope and course of their employment in Tennessee. Millican v. Liberty Mut. Ins. Co., 224 Tenn. 604, 460 S.W.2d 842, 1970 Tenn. LEXIS 362 (1970).

The workers' compensation laws should be rationally but liberally construed to promote and adhere to the act's purposes of securing benefits to those workers who fall within its coverage. Lindsey v. Smith & Johnson, Inc., 601 S.W.2d 923, 1980 Tenn. LEXIS 472 (Tenn. 1980).

Supreme Court of Tennessee thinks that a physician discharging a patient to home, knowing that the patient will be confined to a bed and unable to ambulate or perform other functions without assistance, and knowing that the patient will require care such as changing wound dressings or requiring other such attention, must certainly contemplate that nursing services will be required. The statute requires only that a physician “order” the services, not that the order be reduced to writing. Long v. Mid-Tennessee Ford Truck Sales, Inc., 160 S.W.3d 504, 2005 Tenn. LEXIS 225 (Tenn. 2005), rehearing denied, — S.W.3d —, 2005 Tenn. LEXIS 360 (Tenn. Apr. 18, 2005).

5. Election of Remedies.

Employee's execution of agreement that compensation would be payable until terminated in accordance with Indiana workers' compensation law and his acceptance of benefits thereunder constituted a valid and binding election to receive benefits under Indiana law, thus precluding him from the awarding of benefits under Tennessee law. Clevinger v. Burlington Motor Carriers, 925 S.W.2d 518, 1996 Tenn. LEXIS 462 (Tenn. Special Workers' Comp. App. Panel 1996).

6. Purpose.

The general purpose of compensation laws is to provide compensation for loss of earning power or capacity sustained by workers through injuries in industry. Mathis v. J. L. Forrest & Sons, 188 Tenn. 128, 216 S.W.2d 967, 1949 Tenn. LEXIS 323 (1949).

The Workers' Compensation Law was enacted simply to compensate for disability of the employee occurring under certain specified conditions while such employee is working for the employer, and the purpose of the Occupational Disease Statute is the same. Norton v. Standard Coosa-Thatcher Co., 203 Tenn. 649, 315 S.W.2d 245, 1958 Tenn. LEXIS 230 (1958); Smith v. Tennessee Furniture Industries, Inc., 212 Tenn. 291, 369 S.W.2d 721, 1963 Tenn. LEXIS 423 (1963).

The policy of the law is for a speedy trial on the issues of liability. Stovall v. General Shoe Corp., 204 Tenn. 358, 321 S.W.2d 559, 1959 Tenn. LEXIS 288 (1959).

One of the purposes of the statute is to increase the right of employees to be compensated for injuries growing out of their employment. W. S. Dickey Mfg. Co. v. Moore, 208 Tenn. 576, 347 S.W.2d 493, 1961 Tenn. LEXIS 323 (1961).

7. What Constitutes Accident.

When a condition has developed gradually over a period of time resulting in a definite work-connected, unexpected, fortuitous injury, it is an “accident” within the Workers' Compensation Act, T.C.A. § 50-6-101 et seq., and is compensable. Conroy v. Carter Automotive Products Corp., 640 S.W.2d 831, 1982 Tenn. LEXIS 360 (Tenn. 1982).

Mental disability incurred when plaintiff, a driver's license examiner, was assaulted on the premises of her employer's driver's license testing center, was a sufficiently acute, sudden or unexpected emotional stress to support the finding of “injury by accident” which arose out of plaintiff's employment. Beck v. State, 779 S.W.2d 367, 1989 Tenn. LEXIS 467 (Tenn. 1989).

8. Statute as Part of Employment Contracts.

The provisions of this law are written into every contract of employment covered thereby. Scott v. Nashville Bridge Co., 143 Tenn. 86, 223 S.W. 844, 1919 Tenn. LEXIS 27 (1919); Kennedy v. Columbian Casualty Co., 163 Tenn. 312, 43 S.W.2d 201, 1931 Tenn. LEXIS 118 (1931); Tidwell v. Chattanooga Boiler & Tank Co., 163 Tenn. 420, 43 S.W.2d 221, 1931 Tenn. LEXIS 131 (1931), rehearing denied, 163 Tenn. 648, 45 S.W.2d 528, 1931 Tenn. LEXIS 162 (1931).

A widow, claiming the benefits of the act, is bound by all the terms which the law wrote into her husband's contract of employment. Battle Creek Coal & Coke Co. v. Martin, 155 Tenn. 34, 290 S.W. 18, 1926 Tenn. LEXIS 16 (1927).

Under this law the relation of employer and employee is contractual, and the terms of the law are to be read as a part of every contract of service between those subject to its terms. Basham v. Southeastern Motor Truck Lines, Inc., 184 Tenn. 532, 201 S.W.2d 678, 1947 Tenn. LEXIS 407 (1947).

The Workers' Compensation Act of Tennessee imposes its terms upon all contracts of employment that it covers. Hudnall v. S & W Constr. Co. of Tennessee, Inc., 60 Tenn. App. 743, 451 S.W.2d 858, 1969 Tenn. App. LEXIS 343 (Tenn. Ct. App. 1969).

9. Nature of Employment Contracts.

The agreement between an employer and an employee under this law is in the nature of an insurance contract. Hughes v. Elliott, 162 Tenn. 188, 35 S.W.2d 387, 1930 Tenn. LEXIS 78 (1931).

10. Disavowing Contractual Obligations.

An employee cannot be allowed to claim benefits paid by his employer under a contract providing for health care and at the same time be allowed to disavow key provisions of the contract. If the employee were permitted to do so, the logical result would be for the employer to delay any and all disability payments until it could be judicially determined whether its liability to the employee was under the disability plan contract or under the Workers' Compensation Act. There would be no other way for the employer to avoid the possibility of having to pay twice for the same disability. This procedure would result in a hardship to the employee, and thus defeat the purpose of both the Workers' Compensation Act and the disability plan, as it would inevitably delay payments and thus deprive the employee of sustenance at the time of his greatest need. Allen v. Consolidated Aluminum Corp., 688 S.W.2d 64, 1985 Tenn. LEXIS 495 (Tenn. 1985).

11. Federal Courts.

Federal court cannot give the Workers' Compensation Law a construction which conflicts with holdings of the Tennessee supreme court. Anderson v. Royal Indem. Co., 169 F. Supp. 122, 1958 U.S. Dist. LEXIS 3287 (D. Tenn. 1958).

12. Evidence.

Since negligence is not involved in workers' compensation proceedings, evidence of negligence of employer or employer's staff nurse in treating employee in clinic was irrelevant and inadmissible in compensation proceeding to recover for death of employee. Poe v. E. I. Dupont Denemours & Co., 224 Tenn. 683, 462 S.W.2d 480, 1970 Tenn. LEXIS 392 (1970).

Plaintiff introduced insufficient evidence for a jury to have concluded that she was discharged for asserting her rights under the workers' compensation law. Thomason v. Better-Bilt Aluminum Prods., Inc., 831 S.W.2d 291, 1992 Tenn. App. LEXIS 26 (Tenn. Ct. App. 1992).

13. False Statement in Employment Application.

The following factors must be present before a false statement in an employment application will bar benefits: (1) the employee must have knowingly and willfully made a false representation as to his physical condition; (2) the employer must have relied upon the false representation and this reliance must have been a substantial factor in the hiring; and (3) there must have been a causal connection between the false representation and the injury. Federal Copper & Aluminum Co. v. Dickey, 493 S.W.2d 463, 1973 Tenn. LEXIS 503 (Tenn. 1973); Liberty Mut. Ins. Co. v. Taylor, 590 S.W.2d 920, 1979 Tenn. LEXIS 523 (Tenn. 1979).

The Workers' Compensation Law contains no explicit provisions relative to making of false statements by an applicant for employment, but an employee who has willfully misrepresented or failed to disclose material information regarding his physical condition should not be permitted recovery merely because the general assembly failed to anticipate the problem. Federal Copper & Aluminum Co. v. Dickey, 493 S.W.2d 463, 1973 Tenn. LEXIS 503 (Tenn. 1973).

14. Working Conditions.

Any recourse against employer for failure to furnish employee a safe place to work or to protect employee from third party assaults on parking lot was under Workers' Compensation Act. Thomas v. General Electric Co., 494 S.W.2d 493, 1973 Tenn. LEXIS 410 (Tenn. 1973).

15. Indemnity of Third-Party Tortfeasor by Employer.

An employer who has paid an injured employee benefits under the Workers' Compensation Law is not liable for indemnity to a third-party tortfeasor under the Tennessee active-passive negligence doctrine since, in view of § 50-6-108, the employer could share no common tort liability with the third-party tortfeasor. Dawn v. Essex Conveyors, Inc., 498 F.2d 921, 1974 U.S. App. LEXIS 8036 (6th Cir. Tenn. 1974), cert. denied, Process Equipment Engineering Co. v. Tennessee Eastman Co., 419 U.S. 1040, 95 S. Ct. 528, 42 L. Ed. 2d 317, 1974 U.S. LEXIS 3534 (1974).

16. Medical Experts.

Absolute certainty on the part of a medical expert is not necessary to support a workers' compensation award. Stratton-Warren Hardware v. Parker, 557 S.W.2d 494, 1977 Tenn. LEXIS 674 (Tenn. 1977).

17. Common Law Tort Rights.

A worker's common law right to bring a personal tort action against a person other than his employer was neither extinguished nor created by the Tennessee workers' compensation statute. Hodge v. Southern Ry., App. D.C., 415 A.2d 543, 1980 D.C. App. LEXIS 300 (1980).

18. Retaliatory Discharge.

The retaliatory discharge cause of action is intended to prevent employers from relieving themselves of their obligations under the workers' compensation laws. Sasser v. Averitt Express, Inc., 839 S.W.2d 422, 1992 Tenn. App. LEXIS 403 (Tenn. Ct. App. 1992).

Tennessee courts do, in fact, have the equitable remedy of reinstatement available to them when an employee is discharged for seeking workers' compensation benefits. Sasser v. Averitt Express, Inc., 839 S.W.2d 422, 1992 Tenn. App. LEXIS 403 (Tenn. Ct. App. 1992).

Employee did not allege that he was terminated because of his own exercise of a statutory or constitutional right, and he was not an injured employee attempting to exercise his right to see benefits under the Workers' Compensation Act as a result of a work-related accident; his insistence that his termination violated the clear public policy of the Act was at best a conclusory allegation and his allegations were insufficient to state a cause of action for common law retaliatory discharge. Patrick v. Nelson Global Prods., — S.W.3d —, 2014 Tenn. App. LEXIS 441 (Tenn. Ct. App. July 30, 2014).

19. Black Lung Benefits Act.

The Tennessee Workers' Compensation Law, T.C.A. § 50-6-101 et seq., incorporated by reference both the presumptions and standards created by the Black Lung Benefits Act of 1972 (30 U.S.C. §§ 901, 902, 921-925, 931-941 and 951) and the regulations used to determine eligibility for black lung disability payments. Solomon v. Old Republic Ins. Co., 664 S.W.2d 70, 1984 Tenn. LEXIS 726 (Tenn. 1984).

20. Punitive Damages.

Punitive damages are not recoverable in workers' compensation cases. Anderson v. Dean Truck Line, Inc., 682 S.W.2d 900, 1984 Tenn. LEXIS 897 (Tenn. 1984), superseded by statute as stated in, Arnold v. Travelers Ins. Co., — S.W.2d —, 1990 Tenn. LEXIS 440 (Tenn. Nov. 26, 1990).

21. Frivolous Appeals.

A factual or legal dispute will preclude an award of damages for frivolous appeals. Anderson v. Dean Truck Line, Inc., 682 S.W.2d 900, 1984 Tenn. LEXIS 897 (Tenn. 1984), superseded by statute as stated in, Arnold v. Travelers Ins. Co., — S.W.2d —, 1990 Tenn. LEXIS 440 (Tenn. Nov. 26, 1990).

22. Federal Employers' Liability Act.

An employee of a railroad engaged in interstate commerce would not be covered by this chapter if the federal courts' interpretation of the federal Employers' Liability Act (45 U.S.C. § 51 et seq.) would bring the employee within the coverage of that act. Petty v. Tennken R., Inc., 722 S.W.2d 386, 1986 Tenn. LEXIS 851 (Tenn. 1986).

23. Exhaustion of Remedies.

Although the Tennessee Workers'  Compensation Act, T.C.A. § 50-6-101 et seq., was a remedial statute and was to be equitably construed under T.C.A. § 50-6-116, an employee's administrative remedies were not effectively exhausted for T.C.A. §§ 50-6-203(a) and 50-6-225(a)(1) purposes by the Tennessee Department of Labor's long period of inaction on the employee's request for assistance under T.C.A. § 50-6-238. Chapman v. Davita, Inc., 380 S.W.3d 710, 2012 Tenn. LEXIS 643 (Tenn. Sept. 21, 2012).

Collateral References.

Right to workers' compensation for emotional distress or like injury suffered by claimant as result of sudden stimuli involving nonpersonnel action — compensability under particular circumstances. 84 A.L.R.5th 249.

50-6-102. Chapter definitions.

As used in this chapter, unless the context otherwise requires:

  1. “Administrator” means the chief administrative officer of the bureau of workers' compensation of the department of labor and workforce development;
  2. “AMA guides”  means the 6th edition of the American Medical Association Guides to the Evaluation of Permanent Impairment, American Medical Association, until a new edition is designated by the general assembly in accordance with § 50-6-204(k)(2)(A). The edition that is in effect on the date the employee is injured is the edition that shall be applicable to the claim;
    1. “Average weekly wages” means the earnings of the injured employee in the employment in which the injured employee was working at the time of the injury during the period of fifty-two (52) weeks immediately preceding the date of the injury divided by fifty-two (52); but if the injured employee lost more than seven (7) days during the period when the injured employee did not work, although not in the same week, then the earnings for the remainder of the fifty-two (52) weeks shall be divided by the number of weeks remaining after the time so lost has been deducted;
    2. Where the employment prior to the injury extended over a period of less than fifty-two (52) weeks, the method of dividing the earnings during that period by the number of weeks and parts of weeks during which the employee earned wages shall be followed; provided, that results just and fair to both parties will be obtained;
    3. Where, by reason of the shortness of the time during which the employee has been in the employment of the employer, it is impracticable to compute the average weekly wages as defined in this subdivision (3), regard shall be had to the average weekly amount that, during the first fifty-two (52) weeks prior to the injury or death, was being earned by a person in the same grade, employed at the same work by the same employer, and if there is no such person so employed, by a person in the same grade employed in the same class of employment in the same district;
    4. Wherever allowances of any character made to any employee in lieu of wages are specified as part of the wage contract, they shall be deemed a part of the employee's earnings;
  3. [Deleted by 2013 amendment, effective July 1, 2014.]
  4. “Bureau” or “bureau of workers' compensation” means the bureau of workers' compensation of the department of labor and workforce development;
  5. “Case management” means medical case management or the ongoing coordination of medical care services provided to an injured or disabled employee on all cases where medical care expenses are expected to exceed a threshold;
  6. “Commissioner” means the commissioner of labor and workforce development;
  7. “Construction design professional” means:
    1. Any person possessing a valid registration or license entitling that person to practice the technical profession of architecture, engineering, landscape architecture or land surveying in this state;
    2. Any corporation, partnership, firm or other legal entity authorized by law to engage in the technical profession of architecture, engineering, landscape architecture or land surveying in this state; or
    3. Any person, firm or corporation providing interior space planning or design in this state;
  8. “Court of workers' compensation claims” means the adjudicative function within the bureau of workers' compensation;
  9. “Department” means the department of labor and workforce development;
  10. [Deleted by 2015 amendment, effective May 4, 2015.]
    1. “Employee” includes every person, including a minor, whether lawfully or unlawfully employed, the president, any vice president, secretary, treasurer or other executive officer of a corporate employer without regard to the nature of the duties of the corporate officials, in the service of an employer, as employer is defined in subdivision (13), under any contract of hire or apprenticeship, written or implied. Any reference in this chapter to an employee who has been injured shall, where the employee is dead, also include the employee's legal representatives, dependents and other persons to whom compensation may be payable under this chapter;
    2. “Employee” includes a sole proprietor, a partner, or a member of a limited liability company who devotes full time to the proprietorship, partnership, or limited liability company, respectively, and who elects to be included in the definition of “employee” by filing written notice of the election on a form prescribed by the bureau with the insurer or, if there is no insurer, with the partnership, proprietorship, or limited liability company at least thirty (30) days before the occurrence of any injury or death. Such a proprietor, partner, or member may at any time withdraw the election by giving notice of the withdrawal to the insurer or, if there is no insurer, with the partnership, proprietorship, or limited liability company. Such a partner, proprietor, or limited liability company may at any time revoke the election for the term of the policy by giving notice in the same manner. Notification given pursuant to this subdivision (12)(B) does not become effective until it is filed with the proper entity;
    3. The provisions of this subdivision (12) allowing a sole proprietor or a partner to elect to come under this chapter shall not be construed to deny coverage of the sole proprietor or partner under any individual or group accident and sickness policy the sole proprietor or partner may have in effect, in cases where the sole proprietor or partner has elected not to be covered by this chapter, for injuries sustained by the sole proprietor or partner that would have been covered by this chapter had the election been made, notwithstanding any provision of the accident and sickness policy to the contrary. Nothing in this section shall require coverage of occupational injuries or sicknesses, if occupational injuries or sicknesses are not covered under the terms of the policy without reference to eligibility for workers' compensation benefits;
      1. In a work relationship, in order to determine whether an individual is an “employee,” or whether an individual is a “subcontractor” or an “independent contractor,” the following factors shall be considered:
  1. The right to control the conduct of the work;
  2. The right of termination;
  3. The method of payment;
  4. The freedom to select and hire helpers;
  5. The furnishing of tools and equipment;
  6. Self-scheduling of working hours; and
  7. The freedom to offer services to other entities; and

A premium shall not be charged by an insurance company for any individual determined to be an independent contractor pursuant to this subdivision (12)(D);

“Employee” does not include a construction services provider, as defined in § 50-6-901, if the construction services provider is:

Listed on the registry established pursuant to part 9 of this chapter as having a workers' compensation exemption and is working in the service of the business entity through which the provider obtained such an exemption;

Not covered under a policy of workers' compensation insurance maintained by the person or entity for whom the provider is providing services; and

Rendering services on a construction project that:

Is not a commercial construction project, as defined in § 50-6-901; or

Is a commercial construction project, as defined in § 50-6-901, and the general contractor for whom the construction services provider renders construction services complies with § 50-6-914(b)(2);

“Employer” includes any individual, firm, association or corporation, the receiver or trustee of the individual, firm, association or corporation, or the legal representative of a deceased employer, using the services of not less than five (5) persons for pay,  except as provided in § 50-6-902, and, in the case of an employer engaged in the mining and production of coal, one (1) employee for pay. If the employer is insured, it shall include the employer's insurer, unless otherwise provided in this chapter;

“Injury” and “personal injury” mean an injury by accident, a mental injury, occupational disease including diseases of the heart, lung and hypertension, or cumulative trauma conditions including hearing loss, carpal tunnel syndrome or any other repetitive motion conditions, arising primarily out of and in the course and scope of employment, that causes death, disablement or the need for medical treatment of the employee; provided, that:

An injury is “accidental” only if the injury is caused by a specific incident, or set of incidents, arising primarily out of and in the course and scope of employment, and is identifiable by time and place of occurrence, and shall not include the aggravation of a preexisting disease, condition or ailment unless it can be shown to a reasonable degree of medical certainty that the aggravation arose primarily out of and in the course and scope of employment;

An injury “arises primarily out of and in the course and scope of employment” only if it has been shown by a preponderance of the evidence that the employment contributed more than fifty percent (50%) in causing the injury, considering all causes;

An injury causes death, disablement or the need for medical treatment only if it has been shown to a reasonable degree of medical certainty that it contributed more than fifty percent (50%) in causing the death, disablement or need for medical treatment, considering all causes;

“Shown to a reasonable degree of medical certainty” means that, in the opinion of the physician, it is more likely than not considering all causes, as opposed to speculation or possibility;

The opinion of the treating physician, selected by the employee from the employer's designated panel of physicians pursuant to § 50-6-204(a)(3), shall be presumed correct on the issue of causation but this presumption shall be rebuttable by a preponderance of the evidence;

(A)  “Maximum total benefit” means the sum of all weekly benefits to which a worker may be entitled;

For injuries occurring on or after July 1, 1992, but before July 1, 2009, the maximum total benefit shall be four hundred (400) weeks times the maximum weekly benefit, except in instances of permanent total disability;

For injuries occurring on or after July 1, 2009, but before July 1, 2014, the maximum total benefit shall be four hundred (400) weeks times one hundred percent (100%) of the state's average weekly wage, as determined pursuant to subdivision (16)(B), except in instances of permanent total disability. Temporary total disability benefits paid to the injured worker shall not be included in calculating the maximum total benefit;

For injuries occurring on or after July 1, 2014, the maximum total benefit shall be four hundred fifty (450) weeks times one hundred percent (100%) of the state's average weekly wage, as determined pursuant to subdivision (16)(B), except in instances of permanent total disability. Temporary total disability benefits paid to the injured worker before the employee attains maximum medical improvement shall not be included in calculating the maximum total benefit;

(A)  (i)  “Maximum weekly benefit” means the maximum compensation payable to the worker per week;

For injuries occurring between July 1, 1990, and June 30, 1991, the maximum weekly benefit shall be two hundred seventy-three dollars ($273) per week;

For injuries occurring on or after July 1, 1991, and before August 1, 1992, the maximum weekly benefit shall be two hundred ninety-four dollars ($294) per week;

For injuries occurring on or after August 1, 1992, and through June 30, 1993, the maximum weekly benefit shall be sixty-six and two thirds percent (66 2/3%) of the employee's average weekly wage up to seventy-eight percent (78%) of the state's average weekly wage, as determined by the department;

For injuries occurring on or after July 1, 1993, and through June 30, 1994, the maximum weekly benefit shall be sixty-six and two thirds percent (66 2/3%) of the employee's average weekly wage up to eighty-two and four-tenths percent (82.4%) of the state's average weekly wage, as determined by the department;

For injuries occurring on or after July 1, 1994, and through June 30, 1995, the maximum weekly benefit shall be sixty-six and two thirds percent (66 2/3%) of the employee's average weekly wage up to eighty-six and eight-tenths percent (86.8%) of the state's average weekly wage, as determined by the department;

For injuries occurring on or after July 1, 1995, and through June 30, 1996, the maximum weekly benefit shall be sixty-six and two thirds percent (66 2/3%) of the employee's average weekly wage up to ninety-one and two-tenths percent (91.2%) of the state's average weekly wage, as determined by the department;

For injuries occurring on or after July 1, 1996, and through June 30, 1997, the maximum weekly benefit shall be sixty-six and two thirds percent (66 2/3%) of the employee's average weekly wage up to ninety-five and six-tenths percent (95.6%) of the state's average weekly wage as determined by the department;

For injuries occurring on or after July 1, 1997, and through June 30, 2004, the maximum weekly benefit shall be sixty-six and two thirds percent (66 2/3%) of the employee's average weekly wage up to one hundred percent (100%) of the state's average weekly wage as determined by the department;

For injuries occurring on or after July 1, 2004, the maximum weekly benefit for permanent disability benefits shall be sixty-six and two thirds percent (66 2/3%) of the employee's average weekly wage up to one hundred percent (100%) of the state's average weekly wage, as determined by the department; and

(a)  For injuries occurring on or after July 1, 2004, through June 30, 2005, the maximum weekly benefit for temporary disability benefits shall be sixty-six and two thirds percent (66 2/3%) of the employee's average weekly wage up to one hundred five percent (105%) of the state's average weekly wage, as determined by the department; and

For injuries occurring on or after July 1, 2005, the maximum weekly benefit for temporary disability benefits shall be sixty-six and two thirds percent (66 2/3%) of the employee's average weekly wage up to one hundred ten percent (110%) of the state's average weekly wage, as determined by the department;

As used in subdivision (15), the state average weekly wage shall be determined as of the preceding January 1, and shall be adjusted annually using the data from the bureau and shall be effective on July 1 of each year;

“Mental injury” means a loss of mental faculties or a mental or behavioral disorder, arising primarily out of a compensable physical injury or an identifiable work related event resulting in a sudden or unusual stimulus, and shall not include a psychological or psychiatric response due to the loss of employment or employment opportunities;

“Minimum weekly benefit” means the minimum compensation per week payable to the worker, which shall be fifteen percent (15%) of the state's average weekly wage, as determined by the department;

“Specialty practice group” means a group of Tennessee licensed physicians, surgeons, or chiropractors providing medical care services of the same or similar medical specialty as each other and operating out of the same physical location; and

“Utilization review” means evaluation of the necessity, appropriateness, efficiency and quality of medical care services, including the prescribing of one (1) or more Schedule II, III, or IV controlled substances for pain management for a period of time exceeding ninety (90) days from the initial prescription of such controlled substances, provided to an injured or disabled employee based on medically accepted standards and an objective evaluation of those services provided; provided, that “utilization review” does not include the establishment of approved payment levels, a review of medical charges or fees, or an initial evaluation of an injured or disabled employee by a physician specializing in pain management.

[Deleted by 2013 amendment, effective July 1, 2014.]

Acts 1919, ch. 123, § 2; 1923, ch. 84, § 2; Shan. Supp., § 3608a138; Code 1932, § 6852; Acts 1941, ch. 90, § 1; 1947, ch. 139, § 1; C. Supp. 1950, § 6852; Acts 1961, ch. 184, § 1; 1963, ch. 362, § 2; 1971, ch. 300, § 1; 1977, ch. 339, § 1; 1978, ch. 499, § 1; 1978, ch. 687, § 1; impl. am. Acts 1980, ch. 534, §§ 1, 3; Acts 1981, ch. 239, § 1; T.C.A. (orig. ed.), § 50-902; Acts 1985, ch. 393, § 1; 1988, ch. 923, § 1; 1990, ch. 990, § 1; 1991, ch. 225, § 1; 1992, ch. 900, §§ 2, 19, 20, 28; 1997, ch. 330, § 1; 1999, ch. 520, § 41; 2002, ch. 833, §§ 4, 5; 2004, ch. 962, §§ 22, 23, 32; 2008, ch. 1025, § 1; 2009, ch. 599, §§ 1-3; 2010, ch. 1149, §§ 3, 14; 2011, ch. 416, § 8; 2011, ch. 422, § 1; 2012, ch. 1100, § 1; 2013, ch. 282, § 2; 2013, ch. 289, §§ 4-9; 2014, ch. 903, § 1; 2015, ch. 188, § 3; 2015, ch. 341, §§ 14, 15, 18; 2016, ch. 816, § 1; 2017, ch. 344, § 2.

Compiler's Notes. Acts 2004, ch. 962, § 42 provided that:

  1. The general assembly recognizes that significant cost savings will result from the implementation of this bill. It is in the best interest of the citizens of Tennessee that the cost savings be passed to the entities that have paid faithfully workers' compensation premiums in order to ensure the economic well-being of their employees. It is the intent and purpose of the general assembly that workers' compensation premiums be adjusted downward within fifteen (15) months of July 1, 2004, to reflect the cost savings resulting from the provisions of the act. If a workers' compensation policy is subject to renewal during the fifteen (15) month period, adjustments to the policy may be made at that time.
  2. It is the intent of the general assembly that the savings of the act shall routinely be reflected in future filings through the advisory prospective loss cost filing system, pursuant to §§ 56-5-106(b) and 50-6-402. Nothing in this section shall be construed as amending or affecting the procedures for filing and approval of rates set forth in title 56, chapter 5.

Acts 2010, ch. 1149, § 17 provided that the provisions of the act shall not be construed to be an appropriation of funds and no funds shall be obligated or expended pursuant to the act unless such funds are specifically appropriated by the general appropriations act.

Acts 2010, ch. 1149, § 19, provided in part that:

  1. The secretary of state is authorized to promulgate rules and regulations to effectuate the purposes of the act, which added subdivision (E) in the definition of “employee”. All such rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5; provided, that the secretary of state shall permit:
    1. Construction services providers not currently licensed by the board for licensing contractors, but who qualify for a construction services provider registration, to apply for a workers' compensation exemption on or after January 1, 2011; and
    2. Construction services providers licensed by the board for licensing contractors to apply for a workers' compensation exemption on or after February 1, 2011.

Acts 2011, ch. 416, § 10 provided that §§ 3-9 of the act, which amended §§ 50-6-102(12), 50-6-204(a)(1) and (2), 50-6-206(a)(2) and (b)  and 50-6-301, shall apply to injuries occurring on or after June 6, 2011.

Acts 2011, ch. 422, § 13 provided that if any policyholder chooses to cancel a policy of insurance as a result of obtaining an exemption pursuant to the act and cancels prior to February 1, 2012, then the policy of insurance shall be canceled as if the insured were retiring from the business in which the policy of insurance was required.

Acts 2012, ch. 1100, § 5 provided that the act, which amended the definition of “utilization review”, shall apply to pain management, including the prescription of Schedule II, III, or IV controlled substances, prescribed on or after July 1, 2012.

Acts 2013, ch. 289, § 103 provided that the act, which amended the definitions of “AMA guides”, “injury”, “maximum total benefit”, “mental injury” and “minimum weekly benefit”, deleted the definition of “workers' compensation specialist”, and added the definition of “court of workers' compensation claims”, shall be known and may be cited as the “Workers' Compensation Reform Act of 2013.”

Amendments. The 2013 amendment by ch. 282, effective July 1, 2014, deleted the definition of “Benefit review conference” which read: “ ‘Benefit review conference’ means a nonadversarial, informal dispute resolution proceeding to mediate and resolve workers' compensation disputes as provided in this chapter;”.

The 2013 amendment by ch. 289, effective July 1, 2014, substituted “§ 50-6-204(k)(1)(A)” for “§ 50-6-204(d)(3)(C)” in the definition of “AMA guides”; rewrote the definition of “injury” which read: “ ‘Injury’ and ‘personal injury’:“(A) Mean an injury by accident, arising out of and in the course of employment, that causes either disablement or death of the employee; provided, that:“(i) An injury is ‘accidental’ only if the injury is caused by a specific incident, or set of incidents, arising out of and in the course of employment, and is identifiable by time and place of occurrence; and “(ii) The opinion of the physician, selected by the employee from the employer's designated panel of physicians pursuant to  §§ 50-6-204(a)(4)(A) or (a)(4)(B), shall be presumed correct on the issue of causation but said presumption shall be rebutted by a preponderance of the evidence;“(B) Include a mental injury arising out of and in the course of employment; and“(C) Do not include:“(i) A disease in any form, except when the disease arises out of and in the course and scope of employment; or“(ii) Cumulative trauma conditions, hearing loss, carpal tunnel syndrome, or any other repetitive motion conditions unless such conditions arose primarily out of and in the course and scope of employment;”; rewrote the definition of “maximum total benefit” which read: “ ‘Maximum total benefit’ means the sum of all weekly benefits to which a worker may be entitled; “(A) For injuries occurring between July 1, 1990, and June 30, 1991, the maximum total benefit shall be one hundred nine thousand two hundred dollars ($109,200);“(B) For injuries occurring on or after July 1, 1991, and before August 1, 1992, the maximum total benefit shall be one hundred seventeen thousand six hundred dollars ($117,600);“(C) For injuries occurring on or after July 1, 1992, the maximum total benefit shall be four hundred (400) weeks times the maximum weekly benefit except in instances of permanent total disability; and “(D) For injuries occurring on or after July 1, 2009, the maximum total benefit shall be four hundred (400) times one hundred percent (100%) of the state's average weekly wage, as determined pursuant to subdivision (14)(B), except in instances of permanent total disability. Temporary total disability benefits paid to the injured worker shall not be included in calculating the maximum total benefit;”; rewrote the definition of “ minimum weekly benefit” which read: “ ‘Minimum weekly benefit’ means the minimum compensation per week payable to the worker;“(A) For injuries occurring between July 1, 1985, and June 30, 1986, the minimum weekly benefit shall be twenty dollars ($20.00) per week;“(B) For injuries occurring between July 1, 1986, and June 30, 1987, the minimum weekly benefit shall be twenty-five dollars ($25.00) per week;“(C) For injuries occurring between July 1, 1987, and June 30, 1988, the minimum weekly benefit shall be thirty dollars ($30.00) per week;“(D) For injuries occurring on or after July 1, 1988, and before July 1, 1993, the minimum weekly benefit shall be thirty-five dollars ($35.00) per week; and“(E) For injuries occurring on or after July 1, 1993, the minimum weekly benefit shall be fifteen percent (15%) of the state's average weekly wage, as determined by the department;”; rewrote the definition of “mental injury” which read: “ ‘Mental injury’ means a loss of mental faculties or a mental or behavioral disorder where the proximate cause is a compensable physical injury resulting in a permanent disability, or an identifiable work-related event resulting in a sudden or unusual mental stimulus. A mental injury shall not include a psychological or psychiatric response due to the loss of employment or employment opportunities;”; and deleted the definition of “workers' compensation specialist” or “specialist” which read: “ ‘Workers' compensation specialist’ or ‘specialist’ means a department employee who provides information and communication services regarding workers' compensation for employees and employers, and who conducts benefit review conferences and performs other duties as provided in this chapter.”; and added the definition of “court of workers' compensation claims”.

The 2014 amendment added the definition of “specialty practice group”.

The 2015 amendment by ch. 188, in the definition of “employee”, made stylistic changes throughout (D) and added “A premium shall not be charged by an insurance company for any individual determined to be an independent contractor pursuant to this subdivision (12)(D)”.

The 2015 amendment by ch. 341, effective May 4, 2015, deleted the definition of “Division” or “division of workers' compensation” which read: “Division” or “division of workers' compensation” means the division of workers' compensation of the department of labor and workforce development;”; substituted “bureau” for “division” throughout the section; and added the definition of “Bureau” or “bureau of workers' compensation”.

The 2016 amendment substituted “a sole proprietor, a partner, or a member of a limited liability company who devotes full time to the proprietorship, partnership, or limited liability company, respectively,” for “a sole proprietor or a partner who devotes full time to the proprietorship or partnership” in (B) of the definition of “employee”.

The 2017 amendment in (B) in the definition of “Employee”, inserted “who” preceding “elects”, inserted “on a form prescribed by the bureau” substituted “insurer or, if there is no insurer, with the partnership, proprietorship, or limited liability company” for “bureau” near the end and substituted a period for “, and” at the end of the first sentence, in the second sentence, added “Such a proprietor, partner, or member”  at the beginning and substituted “insurer or, if there is no insurer, with the partnership, proprietorship, or limited liability company.” for “bureau” at the end, and added the third sentence.

Effective Dates. Acts 2013, ch. 282, § 10. July 1, 2014.

Acts 2013, ch. 289, § 106. July 1, 2014; provided, that, for purposes of promulgating rules and regulations, making appointments and making necessary provisions for the implementation of the act, the act shall take effect April 29, 2013.

Acts 2014, ch. 903, § 14. July 1, 2014.

Acts 2015, ch. 188, § 4. April 22, 2015.

Acts 2015, ch. 341, § 19. May 4, 2015.

Acts 2016, ch. 816, § 11. April 14, 2016.

Acts 2017, ch. 344, § 12. May 9, 2017.

Attorney General Opinions. A member of the Underground Storage Tanks and Solid Waste Disposal Control Board is a state official.  While state officials are treated as “state employees” for some purposes, state officials are not treated as “state employees” for the purpose of procuring a public contract.  If a contractor has an employee or subcontractor who serves as a member of the Underground Storage Tanks and Solid Waste Disposal Control Board, the contractor may respond to a request for proposal or a request for qualifications to provide services under a contract with a state agency whose services are not overseen by the Board when the Board member does not have a duty “to vote for, let out, overlook, or in any manner superintend any work or any contract” in which the state agency is interested.  The contractor may not contract with a state agency if the Board member has a duty “to vote for, let out, overlook, or in any manner superintend any work or any contract” in which the state agency is interested and the Board member is “directly interested” in the contract).  The only exception is the “sole supplier” provision.  If the Board member is “directly interested” in the contract but is the sole supplier of the services in a municipality or county, the Board member is treated as being only “indirectly interested” in the contract.  In that instance, for the contract to be valid, the Board member must publically acknowledge his or her interest. OAG 18-20, 2018 Tenn. AG LEXIS 19 (4/23/2018).

Workers' Compensation Appeals Board Decisions. An employee was hired as a seasonal worker at the employer's distribution center. During the recruiting process, the employee was informed that transportation to and from the distribution center would be available through a third party, but a fee would be charged for this service. During a ride from the distribution center to her hometown, the bus on which the employee was riding caught fire and, while evacuating the bus, the employee was allegedly injured. She sought medical and temporary disability benefits at an expedited hearing. The Workers' Compensation Appeals Board held that the employee did not come forward with sufficient evidence at the expedited hearing to show she would likely prevail at trial in proving the case falls within an exception to the general rule of non-compensability in “coming and going” cases. Smith v. Macy’s Corporate Services, 2019 TN Wrk Comp App Bd LEXIS 2.

It was undisputed that the employer did not provide transportation or reimburse transportation costs for its seasonal employees. Moreover, the employee was not "on the clock" at the time of the injury, but was returning home after her shift was over. In addition, the trip between her home and the employer's facility was not a substantial part of the service for which the employee was employed and compensated. Furthermore, the employer did not require the employee to use the bus but merely facilitated the use of that service to its seasonal workers as a convenience. Smith v. Macy’s Corporate Services, 2019 TN Wrk Comp App Bd LEXIS 2.

The trial court’s expedited hearing order determining the employee presented sufficient proof that she is likely to succeed at trial and ordering the employer to authorize the revision surgery to the employee’s pre-existing knee replacement was affirmed, where there was no basis in this record to determine that the trial court erred in accepting the causation opinion of the authorized treating physician  over that of the employer's medical expert. Foster v. Andy Frain Services, Inc., 2019 TN Wrk Comp App Bd LEXIS 10.

An employee, a mental health aid employed in a residential group home for teens, alleged suffering  injuries as a result of physical altercations occurring in the group home. The employer did not dispute the occurrence of the incidents and acknowledged that the employee reported suffering headaches  as a result, but denied that the employee's need for recommended  psychiatric treatment arose primarily out of and in the course and scope of her employment. Based upon the authorized physician's referral of the employee to specialists for additional treatment and his taking the employee out of work until she is seen by such specialists, the Workers Compensation Appeal Board concluded the evidence supported the trial court's determination that the employee is entitled to the medical benefits and temporary disability benefits ordered by the trial court. Gautreaux v. Hermitage Hall, 2019 TN Wrk Comp App Bd LEXIS 12.

The employee, a supervisor at a grain processing facility, suffered a heart attack and died while at work. The employee's surviving spouse brought a claim for death benefits, asserting the employee's heart attack  was due to work-related  physical exertion, environmental  exposures, and mental stress. However, she could not prevail on her contention that physical exertion caused the employee's heart attack because there was no evidence he performed any physical labor on the day of his heart attack. Additionally, the mental stress alleged by the surviving spouse, namely pressure to learn the new computer program, was the type of ordinary stress associated with the employee's job and was therefore not compensable.  Further, the medical experts' testimony on dust inhalation's connection to heart attacks was inconclusive and the lay witness testimony on the level of dust at the employer's facility was similarly equivocal.  The medical proof viewed as a whole fell short of that required to establish a compensable injury. Mitchell v. Bunge North America, 2019 TN Wrk Comp App Bd LEXIS 15.

An employee alleged suffering a low back injury while performing her work duties. Based on the authorized physician's opinion that the work incident aggravated the employee's pre-existing condition but that greater than 51% of the cause was related to the employee's degenerative pre-existing process, the employer denied the claim. The employee sought treatment from another physician whose responses to a questionnaire indicated the work incident more likely than not caused the employee's need for medical treatment. Following an evidentiary hearing, the trial court awarded medical benefits and ordered the employer to authorize further treatment with the physician sought out by the employee. The employer has appealed. On appeal, the board found that the employee presented sufficient medical proof to rebut the statutory presumption of correctness afforded the authorized physician's causation opinion In contrast to the authorized physician's opinions, the second physician linked the employee's symptoms to the work incident and provided an opinion that the employment "more likely than not" caused her need for medical treatment. While the second physician's opinions may be insufficient to establish causation by a preponderance of the evidence at trial, those opinions, considered with the employee's lay testimony, were sufficient evidence to rebut the presumption of correctness accorded the authorized physician's causation opinion and to allow the trial court to determine that the employee would likely prevail at a hearing on the merits. Blevins v. Southern Champion Tray, LP, 2019 TN Wrk Comp App Bd LEXIS 29

An employee alleged he suffered injuries when a large airplane tire rolled off a cart and struck him. In addition to physical injuries to his left shoulder and neck, the employee asserted he suffered depression due to his injuries and the loss of his job. He requested a panel of specialists after receiving a referral for a psychological evaluation from his authorized pain management physician. The employer declined to provide a panel of psychologists. The trial court ordered the employer to provide a panel of specialists in response to a pain management specialist's referral for psychological evaluation and treatment. An authorized physician had referred the employee to the pain management specialist, who provided authorized pain management treatment. The pain management specialist, an authorized physician, made a referral to a psychologist. That referral was presumed medically necessary for treatment of the employee and the employer offered no evidence that the employee did not suffer from symptoms of depression due to his loss of function. Moreover, the employer offered no expert medical testimony to refute the pain management specialist’s opinion that the employee needed treatment for his depression. In conclusion, the evidence supported the trial court's order for a panel of specialists, but the order was modified to limit it to a panel of psychologists, as recommended by the pain management specialist. Montgomery v. Mitchell Industrial Tire Co., Inc., 2019 TN Wrk Comp App Bd LEXIS 32.

Following a physical assault in the workplace, the employee initiated a claim for workers' compensation benefits for her alleged physical and mental injuries. The employer accepted the claim for the physical injuries but denied that the employee's alleged mental injury arose primarily out of the work incident. Following a trial, the court properly concluded the employee did not prove by a preponderance of the evidence that she developed a mental injury arising primarily out of and in the course and scope of her employment and denied benefits for the alleged mental injury. Neither the employee's testimony nor the medical proof established that the employee's mental symptoms following the work assault substantially differed from those she reported to her primary care physician eight months before the incident. Following the assault, the employee returned to work and for the next eight months she successfully endured the same general work stress that she experienced before her injury. Furthermore, the trial court had concluded the employee was terminated not because of her disability but rather a disagreement with her supervisor, which was not the reason the employee asserted in her resignation letter. Holdway v. Lakeside Behavioral Health Systems, 2019 TN Wrk Comp App Bd LEXIS 36.

The claimant is an artisan whose expertise is fabricating and sculpting artificial rocks for various types of exhibits. In this case, he was working at the Nashville Zoo and alleged he suffered a work-related injury. He contended the company that hired him to come to Nashville to perform the work was his employer and was responsible for providing workers' compensation benefits as a result of his injury. The alleged employer denied that it was responsible for providing benefits, asserting the claimant was an independent contractor. Following an expedited hearing, the trial court properly determined the claimant was an independent contractor and denied the requested benefits. The claimant was a resident of Florida who agreed to come to Nashville for the purpose of completing a single project that was known to be temporary work. The very nature of the working arrangement was that of a contractor (the artistic director of the project) and an independent contractor (the claimant, an artist tasked with effectuating a portion of the artistic vision of the Zoo). Kent v. Delatorre Art Design, Inc., 2019 TN Wrk Comp App Bd LEXIS 48.

An employee, a nursing assistant, was helping a patient in a chair when the patient began to fall. As she reached to catch the patient, the employee felt pain in her left shoulder and neck. Four days later, she was involved in a motor vehicle collision unrelated to her employment that resulted in pain in her leg, wrist, and elbow. The employer provided medical care but later took the position that the employee's medical conditions did not arise primarily from the work accident and that the motor vehicle accident constituted an intervening cause of the employee's conditions. Following a trial, the court properly found the employee suffered injuries arising primarily out of her employment and awarded temporary total disability benefits, permanent partial disability benefits, and future medical benefits. With respect to whether the employee's car accident was a subsequent intervening event that would break the chain of causation and relieve the employer of its obligation to provide benefits, there was insufficient proof to support a finding that either the car accident or the employee's work as a hairstylist advanced or aggravated her medical conditions. Although the medical records indicated the employee's work as a stylist may have increased her symptoms, there was no opinion in the record, expert or otherwise, that her injuries arose primarily out of either the motor vehicle accident or her work as a stylist. Rather, as the trial court concluded, the preponderance of the evidence supported the conclusion that the employee's left shoulder and neck injuries arose primarily out of and in the course and scope of her work with the employer. Clay v. Signature Healthcare, 2019 TN Wrk Comp App Bd LEXIS 58.

An employee alleged she injured her low back and/or aggravated a pre-existing arthritic condition in her right hip as a result of a work-related accident. Following a course of authorized treatment with two physicians, the employee asserted she was entitled to additional medical treatment. In response to the employer's motion for summary judgment, which was supported by the opinions of three physicians, the employee submitted the sworn declaration of a physician's assistant. The trial court properly granted the employer's motion for summary judgment and dismissed the employee's claim. The employer presented sufficient evidence that the employee's medical conditions and current need for treatment did not arise primarily from the work accident. As a result, the burden shifted to the employee to come forward with sufficient evidence showing a genuine issue of material fact as to the cause of her medical conditions and need for additional treatment. However, the sworn declaration of a physician's assistant, without more, cannot create a genuine issue of material fact as to the issue of causation. A physician's assistant, like a nurse practitioner, is not qualified to offer an expert opinion on medical causation.  Moreover, the physician assistant couched her opinions in terms such as "may be reasonably referable" and "may be related." Such opinions, even if admissible, do not meet the standards to satisfy causation. Thus, the employee did not come forward with sufficient evidence at the summary judgment stage to show a genuine issue of material fact as to the issue of medical causation. Adiole v. Logan Senior Care, LLC, 2019 TN Wrk Comp App Bd LEXIS 78.

An employee was involved in a motor vehicle accident while riding as a passenger in a work vehicle. He asserted he sustained injuries to both arms and his right shoulder as a result of that accident. After several medical evaluations, the authorized physician concluded that the employee's medical conditions pre-existed the work accident and were not at least fifty-one percent causally related to that accident. Following an expedited hearing, the trial court properly denied the employee's interlocutory request for additional medical and temporary disability benefits. The Board agreed with the trial court that the employee did not rebut the presumption of correctness attributable to the authorized physician's causation opinion and did not come forward with sufficient proof at the expedited hearing to show he is likely to prevail at trial on the issue of medical causation. Dennis v. Memphis Light, Gas & Water, 2019 TN Wrk Comp App Bd LEXIS 80.

An employee, a sales manager at an office supply store, alleged he suffered a right knee injury as a result of performing work activities over a two-day period. After timely reporting his injury, the employee sought medical care at a hospital emergency department and was referred to an orthopedic surgeon who subsequently diagnosed a tear in the employee's meniscus and recommended surgery. The employer denied the claim, contending the employee did not suffer a compensable accidental injury based upon the medical proof establishing that the employee suffered an acute injury rather than a gradual injury. In part, the trial court ordered the employer to provide medical benefits, including the recommended knee surgery. The employee identified specific physical activities he performed over the course of a narrow and identifiable period of time that resulted in his right knee injury. His co-worker corroborated his testimony as to the work the employee performed. The fact that the employee was unable to point to the specific moment in time that a tear occurred to his medial meniscus does not prevent his claim from being compensable. The employee successfully met his burden at the expedited hearing by identifying the time and place of his injury, a two-day period over which he performed specific physical tasks that his physician opined are consistent with the type of injury he sustained. Friend v. Staples Contract and Commercial, LLC, 2020 TN Wrk Comp App Bd LEXIS 12.

An employee reported back pain after lifting totes at work and sought medical benefits from her employer. After the employee was seen by an onsite nurse and a physician at an urgent care facility, the employer declined to authorize a referral to an orthopedic specialist because the employee was unable to identify a specific date of injury, a specific incident, or a set of incidents allegedly causing her back condition. The employer also asserted the employee failed to provide proper notice of a work injury and failed to show her back condition arose primarily from a work accident. Following an expedited hearing, the trial court ordered the employer to provide the employee a panel of orthopedic specialists, and the employer has appealed. First, the employer asserted that the employee did not provide timely written notice of the injury and did not even provide timely verbal notice of an accident. However, the employee credibly testified that she reported ongoing back pain to an assistant manager, and received medical treatment from the employer's on-site clinic. Thus, the employer had actual notice of the employee's alleged injury. Moreover, it was undisputed the employer provided the employee a panel of physicians pursuant to the workers' compensation law, and she was treated by an authorized physician. The employer offered no proof that any alleged defective notice caused it prejudice. Second, the employee was likely to prevail at trial in proving a set of incidents sufficiently identifiable by time and place of occurrence, where the employee offered unrefuted testimony that her low back pain began while she was lifting heavy totes at work in September 2018, and she further testified, again without contradiction, that she reported her back pain to an assistant manager on multiple occasions and, ultimately, was seen by an on-site nurse and by a panel-selected physician at an urgent care facility. Ibarra v. Amazon Fulfillment Services, Inc., 2020 TN Wrk Comp App Bd LEXIS 13.

An employee reported that his left knee gave way while he was climbing a ladder at work. The employee had suffered a work-related injury to his left knee several years before when his employer had workers' compensation coverage with a different insurer. The employee also had been diagnosed with pre-existing osteoarthritis in his left knee unrelated to his work injuries. One physician testified that the employee's current need for a total knee arthroplasty was caused primarily by his pre-existing osteoarthritis. Another physician opined that the most recent work accident caused an exacerbation of his pre-existing osteoarthritis. The trial court concluded the employee is likely to prevail at trial in proving the need for a total knee arthroplasty arose primarily from the most recent work accident, and it ordered the employer to authorize treatment, including any recommended surgery. The Board concluded that the trial court erred in concluding the employee's lay testimony and the opinions expressed by the employee’s expert outweighed the unequivocal testimony of an orthopedic surgeon with respect to the need for a total knee replacement surgery. The employee was entitled to reasonable and necessary medical treatment causally related to the work accident. However, the evidence presented at the expedited hearing did not support an order compelling the employer and its current insurer to authorize the total knee arthroplasty at this time. Barnes v. Jack Cooper Transport Co., 2020 TN Wrk Comp App Bd LEXIS 16.

An employee sustained an injury to her right hand and right knee after tripping over a pallet in the course of her employment. The claim was accepted as compensable and the employer provided medical benefits, including authorization of a partial knee replacement. Following surgery, the employee began experiencing back and hip pain, prompting a referral for a neurosurgical evaluation that resulted in a recommendation for lumbar surgery. The employer authorized decompression surgery, but declined to authorize a fusion. The employee filed a petition seeking, in part, to compel the employer to authorize both procedures. The trial court ordered the employer to authorize the recommended surgery. On appeal, the employer that the trial court erred in awarding benefits to the employee when she failed to prove her back and hip injuries were the result of a specific incident or set of incidents that were identifiable by time and place of occurrence. It was undisputed that the employee suffered a compensable injury to her knee after tripping over a pallet at work. The employee's theory of recovery relied on the assertion that her back and hip complaints were the direct and natural consequence of the compensable knee injury and were not caused by a specific incident or set of incidents at work. Thus, the employee's inability to describe a specific incident or set of incidents identifiable by time and place of occurrence that resulted in her back and hip complaints was not a bar to relief. Moreover, the employer offered no proof to rebut a physician's opinion that the employee's knee injury and subsequent surgery caused an alteration in her gait that resulted in an aggravation of her preexisting hip condition and her lumbar condition. Accordingly, the evidence supported the trial court's determination that the employee was likely to prevail at trial in establishing the compensability of her lumbar and hip conditions. Hudgins v. Global Personnel Solutions, Inc., 2020 TN Wrk Comp App Bd LEXIS 19.

An employee, an assistant store manager, alleged a bag of dog food fell on her at work, resulting in injuries to her neck and shoulder. Following an expedited hearing, the trial court determined that the opinion of an authorized treating physician was sufficient to establish that the employee would likely prevail on the merits and ordered the employer to provide a panel of physiatrists for nonoperative treatment for her cervical strain as recommended by the authorized physician. The trial court additionally determined that the employee was entitled to 18 days of temporary disability benefits. The employer appealed. At an expedited hearing, an employee need not prove every element of a claim by a preponderance of the evidence to be entitled to temporary disability or medical benefits, but must instead present evidence sufficient for the trial court to conclude that the employee would likely prevail at a hearing on the merits. However, the employer did not assert that the evidence presented at the expedited hearing failed to support the trial court’s determination that the employee is likely to prevail at trial, but essentially insisted the applicable standard of proof at the expedited hearing is not a lesser evidentiary standard. The Board was unpersuaded by the employer’s argument and affirmed the trial court’s determinations. Gillum v. Dollar General Corporation, 2020 TN Wrk Comp App Bd LEXIS 25.

An employee alleged injuries as a result of receiving an electrical shock in the course of her employment. After receiving treatment from an unauthorized dentist as well as from authorized medical care providers, the employee filed a petition alleging entitlement to additional benefits. She subsequently requested a hearing in which she sought to compel the employer to provide benefits for dental injuries she alleged she suffered as a result of the workplace incident. Following the hearing, the trial court denied benefits for the employee's alleged dental injuries but awarded other medical benefits. Thereafter, the employer filed a motion for summary judgment supported by statements of allegedly undisputed facts. In response, the employee submitted numerous documents, including a letter from a dentist stating that the dental work she needed "could very well be due to the electrical shock." The trial court granted the employer's motion for summary judgment in part and dismissed the employee's claims for injuries to her mouth, eyes, and hearing. The trial court denied the employer's motion as it related to the employee's claim of dental injuries. The employer has appealed. The trial court's grant of summary judgment dismissing the employee's alleged non-dental injuries was affirmed, but the trial court's denial of summary judgment as to the employee's alleged dental injuries was reversed. A dentist's opinion that the work that needed to be performed to save the employee's teeth "could very well be" the result of the electric shock was insufficient as a matter of law to support an award of benefits for the employee's alleged dental injuries. Armstrong v. Chattanooga Billiard Club, 2020 TN Wrk Comp App Bd LEXIS 40.

NOTES TO DECISIONS

1. Evidence Sufficiency.

Claimant failed to produce sufficient evidence to show that his left-foot condition arose primarily out of and in the course and scope of his employment, where the claimant submitted no medical evidence showing that it was more likely than not that his employment contributed more than 50 percent to his injury. The treating physician's statement that the claimant's workplace accident was at least part of the cause of his foot problems did not establish by a preponderance of the evidence that the claimant's employment contributed more than 50 percent in causing the injury. Payne v. D & D Elec., — S.W.3d —, 2017 Tenn. LEXIS 215 (Tenn. Apr. 18, 2017), aff'd, — S.W.3d —, 2017 Tenn. LEXIS 213 (Tenn. Apr. 18, 2017).

Treating physician's opinion that a claimant's injury was not work-related was entitled to a presumption of correctness, and the claimant did not present sufficient medical evidence to overcome the presumption. Thysavathdy v. Bridgestone Ams. Tire Operations, — S.W.3d —, 2018 Tenn. LEXIS 313 (Tenn. June 8, 2018).

2. Causation.

Workers'  Compensation Appeals Board properly reversed the trial court's order which found that the employee's injury was compensable because, in applying the correct standard to the employee's injury that occurred after July 1, 2014, the evidence preponderated against the trial court's finding that the employment of the employee contributed more than 50% in causing his patellar dislocation as the employee's doctor was unable to state with any reasonable degree of medical certainty that dragging heavy rolls of material at work contributed to the employee's injury in any way; and the doctor stated that the employee had patella alta, a condition that predisposed him to patellar dislocations. Willis v. All Staff, — S.W.3d —, 2017 Tenn. LEXIS 455 (Tenn. Aug. 3, 2017).

It was proper to deny an employee's claim for workers'  compensation because the evidence did not preponderate against the trial court's finding that the employee failed to sustain his burden of proof that his injury arose primarily out of his employment; a doctor did not testify within a reasonable degree of medical certainty, either directly or indirectly, that the employee's work activity more likely than not contributed more than fifty percent in causing the injury. Panzarella v. Amazon.Com, Inc., — S.W.3d —, 2018 Tenn. LEXIS 244 (Tenn. May 16, 2018).

Injury that is caused by an employer's failure to provide reasonable medical assistance arises out of and in the course of employment when an employee becomes helpless at work because of illness or other cause unrelated to her employment, the employee needs medical assistance to prevent further injury, the employer knows of the employee's helplessness, and the employer can provide reasonable medical assistance but does not do so. Chaney v. Team Techs., Inc., — S.W.3d —, 2019 Tenn. LEXIS 20 (Tenn. Jan. 31, 2019).

3. Failure to Show Compensable Accident.

Employee's October 2008 shoulder and neck injuries were not compensable because the first doctor testified that the January 2009 MRI of the employee's shoulder showed degenerative changes that had existed for quite some time, and that the cysts appearing in the MRI were evidence of a chronic condition and could not have formed since October 2008; and the second doctor testified that he consulted with a radiologist who interpreted both the employee's 2003 spinal images and his 2012 spinal images and, based on the comparison of those images, the second doctor opined that the employee had only slight progression of his spondylosis over that time and there was no anatomical change due to an acute injury that occurred between 2003 and 2012. T & B Trucking v. Pigue, — S.W.3d —, 2017 Tenn. LEXIS 788 (Tenn. Dec. 14, 2017), aff'd, — S.W.3d —, 2017 Tenn. LEXIS 789 (Tenn. Dec. 14, 2017).

4. Independent Contractor's Employee.

Material evidence supported the jury's determination that a worker was the employee of a non-party independent contractor, rather than the property owner, where the contractor had been hired by the owner to construct a house and had the right to control the conduct of the work, the right to schedule working hours, the freedom to select and hire helpers, and the right of termination. Helton v. Lawson, — S.W.3d —, 2019 Tenn. App. LEXIS 613 (Tenn. Ct. App. Dec. 18, 2019).

50-6-102. Chapter definitions. [Applicable to injuries occurring prior to July 1, 2014.]

As used in this chapter, unless the context otherwise requires:

  1. “Administrator” means the chief administrative officer of the division of workers' compensation of the department of labor and workforce development;
  2. “AMA guides”  means the 6th edition of the American Medical Association Guides to the Evaluation of Permanent Impairment, American Medical Association, until a new edition is designated by the general assembly in accordance with § 50-6-204(d)(3)(C). The edition that is in effect on the date the employee is injured is the edition that shall be applicable to the claim;
    1. “Average weekly wages” means the earnings of the injured employee in the employment in which the injured employee was working at the time of the injury during the period of fifty-two (52) weeks immediately preceding the date of the injury divided by fifty-two (52); but if the injured employee lost more than seven (7) days during the period when the injured employee did not work, although not in the same week, then the earnings for the remainder of the fifty-two (52) weeks shall be divided by the number of weeks remaining after the time so lost has been deducted;
    2. Where the employment prior to the injury extended over a period of less than fifty-two (52) weeks, the method of dividing the earnings during that period by the number of weeks and parts of weeks during which the employee earned wages shall be followed; provided, that results just and fair to both parties will be obtained;
    3. Where, by reason of the shortness of the time during which the employee has been in the employment of the employer, it is impracticable to compute the average weekly wages as defined in this subdivision (3), regard shall be had to the average weekly amount that, during the first fifty-two (52) weeks prior to the injury or death, was being earned by a person in the same grade, employed at the same work by the same employer, and if there is no such person so employed, by a person in the same grade employed in the same class of employment in the same district;
    4. Wherever allowances of any character made to any employee in lieu of wages are specified as part of the wage contract, they shall be deemed a part of the employee's earnings;
  3. “Benefit review conference” means a nonadversarial, informal dispute resolution proceeding to mediate and resolve workers' compensation disputes as provided in this chapter;
  4. “Case management” means medical case management or the ongoing coordination of medical care services provided to an injured or disabled employee on all cases where medical care expenses are expected to exceed a threshold;
  5. “Commissioner” means the commissioner of labor and workforce development;
  6. “Construction design professional” means:
    1. Any person possessing a valid registration or license entitling that person to practice the technical profession of architecture, engineering, landscape architecture or land surveying in this state;
    2. Any corporation, partnership, firm or other legal entity authorized by law to engage in the technical profession of architecture, engineering, landscape architecture or land surveying in this state; or
    3. Any person, firm or corporation providing interior space planning or design in this state;
  7. “Department” means the department of labor and workforce development;
  8. “Division” or “division of workers' compensation” means the division of workers' compensation of the department of labor and workforce development;
    1. “Employee” includes every person, including a minor, whether lawfully or unlawfully employed, the president, any vice president, secretary, treasurer or other executive officer of a corporate employer without regard to the nature of the duties of the corporate officials, in the service of an employer, as employer is defined in subdivision (11), under any contract of hire or apprenticeship, written or implied. Any reference in this chapter to an employee who has been injured shall, where the employee is dead, also include the employee's legal representatives, dependents and other persons to whom compensation may be payable under this chapter;
    2. “Employee” includes a sole proprietor or a partner who devotes full time to the proprietorship or partnership and elects to be included in the definition of employee by filing written notice of the election with the division at least thirty (30) days before the occurrence of any injury or death, and may at any time withdraw the election by giving notice of the withdrawal to the division;
    3. The provisions of this subdivision (10), allowing a sole proprietor or a partner to elect to come under this chapter, shall not be construed to deny coverage of the sole proprietor or partner under any individual or group accident and sickness policy the sole proprietor or partner may have in effect, in cases where the sole proprietor or partner has elected not to be covered by this chapter, for injuries sustained by the sole proprietor or partner that would have been covered by this chapter had the election been made, notwithstanding any provision of the accident and sickness policy to the contrary. Nothing in this section shall require coverage of occupational injuries or sicknesses, if occupational injuries or sicknesses are not covered under the terms of the policy without reference to eligibility for workers' compensation benefits;
    4. In a work relationship, in order to determine whether an individual is an “employee,” or whether an individual is a “subcontractor” or an “independent contractor,” the following factors shall be considered:
      1. The right to control the conduct of the work;
      2. The right of termination;
      3. The method of payment;
      4. The freedom to select and hire helpers;
      5. The furnishing of tools and equipment;
      6. Self-scheduling of working hours; and
      7. The freedom to offer services to other entities;
    5. “Employee” does not include a construction services provider, as defined in § 50-6-901, if the construction services provider is:
      1. Listed on the registry established pursuant to part 9 of this chapter as having a workers' compensation exemption and is working in the service of the business entity through which the provider obtained such an exemption;
      2. Not covered under a policy of workers' compensation insurance maintained by the person or entity for whom the provider is providing services; and
      3. Rendering services on a construction project that:
  1. Is not a commercial construction project, as defined in § 50-6-901; or
  2. Is a commercial construction project, as defined in § 50-6-901, and the general contractor for whom the construction services provider renders construction services complies with § 50-6-914(b)(2);

“Employer” includes any individual, firm, association or corporation, the receiver or trustee of the individual, firm, association or corporation, or the legal representative of a deceased employer, using the services of not less than five (5) persons for pay,  except as provided in § 50-6-902, and, in the case of an employer engaged in the mining and production of coal, one (1) employee for pay. If the employer is insured, it shall include the employer's insurer, unless otherwise provided in this chapter;

“Injury” and “personal injury”:

Mean an injury by accident, arising out of and in the course of employment, that causes either disablement or death of the employee; provided, that:

An injury is “accidental” only if the injury is caused by a specific incident, or set of incidents, arising out of and in the course of employment, and is identifiable by time and place of occurrence; and

The opinion of the physician, selected by the employee from the employer's designated panel of physicians pursuant to §§ 50-6-204(a)(4)(A) or (a)(4)(B), shall be presumed correct on the issue of causation but said presumption shall be rebutted by a preponderance of the evidence;

Include a mental injury arising out of and in the course of employment; and

Do not include:

A disease in any form, except when the disease arises out of and in the course and scope of employment; or

Cumulative trauma conditions, hearing loss, carpal tunnel syndrome, or any other repetitive motion conditions unless such conditions arose primarily out of and in the course and scope of employment;

(A)  “Maximum total benefit” means the sum of all weekly benefits to which a worker may be entitled;

For injuries occurring between July 1, 1990, and June 30, 1991, the maximum total benefit shall be one hundred nine thousand two hundred dollars ($109,200);

For injuries occurring on or after July 1, 1991, and before August 1, 1992, the maximum total benefit shall be one hundred seventeen thousand six hundred dollars ($117,600);

For injuries occurring on or after July 1, 1992, the maximum total benefit shall be four hundred (400) weeks times the maximum weekly benefit except in instances of permanent total disability; and

For injuries occurring on or after July 1, 2009, the maximum total benefit shall be four hundred (400) times one hundred percent (100%) of the state's average weekly wage, as determined pursuant to subdivision (14)(B), except in instances of permanent total disability. Temporary total disability benefits paid to the injured worker shall not be included in calculating the maximum total benefit;

(A)  (i)  “Maximum weekly benefit” means the maximum compensation payable to the worker per week;

For injuries occurring between July 1, 1990, and June 30, 1991, the maximum weekly benefit shall be two hundred seventy-three dollars ($273) per week;

For injuries occurring on or after July 1, 1991, and before August 1, 1992, the maximum weekly benefit shall be two hundred ninety-four dollars ($294) per week;

For injuries occurring on or after August 1, 1992, and through June 30, 1993, the maximum weekly benefit shall be sixty-six and two thirds percent (66 2/3%) of the employee's average weekly wage up to seventy-eight percent (78%) of the state's average weekly wage, as determined by the department;

For injuries occurring on or after July 1, 1993, and through June 30, 1994, the maximum weekly benefit shall be sixty-six and two thirds percent (66 2/3%) of the employee's average weekly wage up to eighty-two and four-tenths percent (82.4%) of the state's average weekly wage, as determined by the department;

For injuries occurring on or after July 1, 1994, and through June 30, 1995, the maximum weekly benefit shall be sixty-six and two thirds percent (66 2/3%) of the employee's average weekly wage up to eighty-six and eight-tenths percent (86.8%) of the state's average weekly wage, as determined by the department;

For injuries occurring on or after July 1, 1995, and through June 30, 1996, the maximum weekly benefit shall be sixty-six and two thirds percent (66 2/3%) of the employee's average weekly wage up to ninety-one and two-tenths percent (91.2%) of the state's average weekly wage, as determined by the department;

For injuries occurring on or after July 1, 1996, and through June 30, 1997, the maximum weekly benefit shall be sixty-six and two thirds percent (66 2/3%) of the employee's average weekly wage up to ninety-five and six-tenths percent (95.6%) of the state's average weekly wage as determined by the department;

For injuries occurring on or after July 1, 1997, and through June 30, 2004, the maximum weekly benefit shall be sixty-six and two thirds percent (66 2/3%) of the employee's average weekly wage up to one hundred percent (100%) of the state's average weekly wage as determined by the department;

For injuries occurring on or after July 1, 2004, the maximum weekly benefit for permanent disability benefits shall be sixty-six and two thirds percent (66 2/3%) of the employee's average weekly wage up to one hundred percent (100%) of the state's average weekly wage, as determined by the department; and

(a)  For injuries occurring on or after July 1, 2004, through June 30, 2005, the maximum weekly benefit for temporary disability benefits shall be sixty-six and two thirds percent (66 2/3%) of the employee's average weekly wage up to one hundred five percent (105%) of the state's average weekly wage, as determined by the department; and

For injuries occurring on or after July 1, 2005, the maximum weekly benefit for temporary disability benefits shall be sixty-six and two thirds percent (66 2/3%) of the employee's average weekly wage up to one hundred ten percent (110%) of the state's average weekly wage, as determined by the department;

As used in subdivision (14)(A), the state average weekly wage shall be determined as of the preceding January 1, and shall be adjusted annually using the data from the division and shall be effective on July 1 of each year;

“Mental injury” means a loss of mental faculties or a mental or behavioral disorder where the proximate cause is a compensable physical injury resulting in a permanent disability, or an identifiable work-related event resulting in a sudden or unusual mental stimulus. A mental injury shall not include a psychological or psychiatric response due to the loss of employment or employment opportunities;

(A)  “Minimum weekly benefit” means the minimum compensation per week payable to the worker;

For injuries occurring between July 1, 1985, and June 30, 1986, the minimum weekly benefit shall be twenty dollars ($20.00) per week;

For injuries occurring between July 1, 1986, and June 30, 1987, the minimum weekly benefit shall be twenty-five dollars ($25.00) per week;

For injuries occurring between July 1, 1987, and June 30, 1988, the minimum weekly benefit shall be thirty dollars ($30.00) per week;

For injuries occurring on or after July 1, 1988, and before July 1, 1993, the minimum weekly benefit shall be thirty-five dollars ($35.00) per week; and

For injuries occurring on or after July 1, 1993, the minimum weekly benefit shall be fifteen percent (15%) of the state's average weekly wage, as determined by the department;

“Utilization review” means evaluation of the necessity, appropriateness, efficiency and quality of medical care services, including the prescribing of one (1) or more Schedule II, III, or IV controlled substances for pain management for a period of time exceeding ninety (90) days from the initial prescription of such controlled substances, provided to an injured or disabled employee based on medically accepted standards and an objective evaluation of those services provided; provided, that “utilization review” does not include the establishment of approved payment levels, a review of medical charges or fees, or an initial evaluation of an injured or disabled employee by a physician specializing in pain management; and

“Workers' compensation specialist” or “specialist” means a department employee who provides information and communication services regarding workers' compensation for employees and employers, and who conducts benefit review conferences and performs other duties as provided in this chapter.

Acts 1919, ch. 123, § 2; 1923, ch. 84, § 2; Shan. Supp., § 3608a138; Code 1932, § 6852; Acts 1941, ch. 90, § 1; 1947, ch. 139, § 1; C. Supp. 1950, § 6852; Acts 1961, ch. 184, § 1; 1963, ch. 362, § 2; 1971, ch. 300, § 1; 1977, ch. 339, § 1; 1978, ch. 499, § 1; 1978, ch. 687, § 1; impl. am. Acts 1980, ch. 534, §§ 1, 3; Acts 1981, ch. 239, § 1; T.C.A. (orig. ed.), § 50-902; Acts 1985, ch. 393, § 1; 1988, ch. 923, § 1; 1990, ch. 990, § 1; 1991, ch. 225, § 1; 1992, ch. 900, §§ 2, 19, 20, 28; 1997, ch. 330, § 1; 1999, ch. 520, § 41; 2002, ch. 833, §§ 4, 5; 2004, ch. 962, §§ 22, 23, 32; 2008, ch. 1025, § 1; 2009, ch. 599, §§ 1-3; 2010, ch. 1149, §§ 3, 14; 2011, ch. 416, § 8; 2011, ch. 422, § 1; 2012, ch. 1100, § 1.

Compiler's Notes. Acts 2002, ch. 833, § 6 provided that the amendment by that act shall apply to injuries occurring on or after July 1, 2002.

Acts 2004, ch. 962, § 42 provided that:

  1. The general assembly recognizes that significant cost savings will result from the implementation of this bill. It is in the best interest of the citizens of Tennessee that the cost savings be passed to the entities that have paid faithfully workers' compensation premiums in order to ensure the economic well-being of their employees. It is the intent and purpose of the general assembly that workers' compensation premiums be adjusted downward within fifteen (15) months of July 1, 2004, to reflect the cost savings resulting from the provisions of the act. If a workers' compensation policy is subject to renewal during the fifteen (15) month period, adjustments to the policy may be made at that time.
  2. It is the intent of the general assembly that the savings of the act shall routinely be reflected in future filings through the advisory prospective loss cost filing system, pursuant to §§ 56-5-106(b) and 50-6-402. Nothing in this section shall be construed as amending or affecting the procedures for filing and approval of rates set forth in title 56, chapter 5.

Acts 2010, ch. 1149, § 17 provided that the provisions of the act shall not be construed to be an appropriation of funds and no funds shall be obligated or expended pursuant to the act unless such funds are specifically appropriated by the general appropriations act.

Acts 2010, ch. 1149, § 19, provided in part that:

  1. The secretary of state is authorized to promulgate rules and regulations to effectuate the purposes of the act, which added subdivision (E) in the definition of “employee”. All such rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5; provided, that the secretary of state shall permit:
    1. Construction services providers not currently licensed by the board for licensing contractors, but who qualify for a construction services provider registration, to apply for a workers' compensation exemption on or after January 1, 2011; and
    2. Construction services providers licensed by the board for licensing contractors to apply for a workers' compensation exemption on or after February 1, 2011.

Acts 2011, ch. 416, § 10 provided that §§ 3-9 of the act, which amended §§ 50-6-102(12), 50-6-204(a)(1) and (2), 50-6-206(a)(2) and (b)  and 50-6-301, shall apply to injuries occurring on or after June 6, 2011.

Acts 2011, ch. 422, § 13 provided that if any policyholder chooses to cancel a policy of insurance as a result of obtaining an exemption pursuant to the act and cancels prior to February 1, 2012, then the policy of insurance shall be canceled as if the insured were retiring from the business in which the policy of insurance was required.

Acts 2012, ch. 1100, § 5 provided that the act, which amended the definition of “utilization review”, shall apply to pain management, including the prescription of Schedule II, III, or IV controlled substances, prescribed on or after July 1, 2012.

The division of workers’ compensation is now referred to as the bureau of workers’ compensation.

Cross-References. Community-based screening agency members, medical consultants, ineligibility for benefits, § 8-42-101.

Effect on insurance policies of sole proprietor or partner's election against coverage under Workers' Compensation Law, § 56-26-133.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 529.

Tennessee Jurisprudence, 26 Tenn. Juris., Workers' Compensation, §§ 5, 7, 15, 33.

Law Reviews.

A Package of Problems: A Suspicious Package Can Raise More Than Fears of Anthrax. It Could Also Present a Potential Liability for an Employer. (James K. Simms IV), 38 No. 2 Tenn. B.J. 12 (2002).

The Faragher and Ellerth Problem: Lower Courts' Confusion Regarding the Definition of “Supervisor,” 54 Vand. L. Rev. 123 (2001).

What Part of “No” Don't You Understand?: Recent Developments in Workplace Sexual Harassment Law (William D. Evans Jr.), 36 No. 5 Tenn. B.J. 14 (2000).

Workers' Compensation — “Arising Out of Employment” Defined, 48 Tenn. L. Rev. 515 (1981).

Attorney General Opinions. Fringe benefits, such as employer contributions to an employee's pension or retirement savings plan, are not considered earnings for purposes of computing an employee's rate of compensation under the Workers' Compensation Act, OAG 01-037 (3/19/01).

Disaster recovery volunteers sent to a Compact state by the Tennessee Emergency Management Agency are not entitled to Tennessee workers' compensation benefits in the event of death or injury, OAG 04-174 (12/17/04)

NOTES TO DECISIONS

1. Employer.

Sawmill operator employing 12 workers was subject to the Workers' Compensation Law. Shoaf v. Fitzpatrick, 104 F.2d 290, 1939 U.S. App. LEXIS 4129 (6th Cir. Tenn. 1939), cert. denied, 308 U.S. 620, 60 S. Ct. 295, 84 L. Ed. 518, 1939 U.S. LEXIS 29 (Tenn. Dec. 11, 1939).

Husband and wife were engaged in building business where they purchased several old houses for building material from which they constructed several new houses, though first house constructed was a house used as a residence for defendants, and were subject to the Workers' Compensation Act. Brady v. Reed, 186 Tenn. 556, 212 S.W.2d 378, 1948 Tenn. LEXIS 581 (1948).

Defendant who operated sawmill as his regular business was not liable for compensation to employee of coal mine operated in addition to mill where he never employed over four men at any time at the mine. Threet v. Cox, 189 Tenn. 477, 226 S.W.2d 86, 1949 Tenn. LEXIS 451 (1949).

Partnership, which operated coal mine under a lease, but which subleased to another without recording sublease and without securing consent of lessor as provided by lease, paid premiums on insurance policy issued in its name, retained entire output of mine, and carried insurance protection for employees of mine, was the employer of a miner killed in accident at the mine. Douglas v. Sharp, 194 Tenn. 11, 249 S.W.2d 999, 1952 Tenn. LEXIS 346 (1952).

An employer's business may embrace two occupations, both within the Workers' Compensation Law. Mason-Dixon Lines, Inc. v. Lett, 201 Tenn. 171, 297 S.W.2d 93, 1956 Tenn. LEXIS 480 (1956).

Where the record showed that Illinois employer brought only two employees to Tennessee to help erect towers, hired only two local men, and at no time had more than four employees in Tennessee, employer was not required to qualify under Tennessee Workers' Compensation Law defining “employer,” as those using not less than five persons for pay. Mooney v. Stainless, Inc., 338 F.2d 127, 1964 U.S. App. LEXIS 4741 (6th Cir. Tenn. 1964), cert. denied, 381 U.S. 925, 85 S. Ct. 1561, 14 L. Ed. 2d 684, 1965 U.S. LEXIS 1173 (1965).

Where decedent was an employee of a wholly owned subsidiary of the parent corporation, the parent company is an employer for purposes of workers' compensation only where the two corporations are so completely integrated and commingled that neither party can realistically be viewed as a separate economic entity. Latham v. Technar, Inc., 390 F. Supp. 1031, 1974 U.S. Dist. LEXIS 6079 (E.D. Tenn. 1974).

Where plaintiff was employee of supplier of temporary manpower and was supplied to defendant who requested some temporary day labor, defendant was a coemployer with employment agency at the time of plaintiff's injury and plaintiff was limited to a cause of action under title 50, chapter 6 and precluded from bringing an action in negligence against defendant. Bennett v. Mid-South Terminals Corp., 660 S.W.2d 799, 1983 Tenn. App. LEXIS 627 (Tenn. Ct. App. 1983).

The definition of “employer” under the Workers' Compensation Act, T.C.A. § 50-6-101 et seq., which includes the compensation insurance carrier, also includes the employees of the insurance carrier. Spears v. Morris & Wallace Elevator Co., 684 S.W.2d 620, 1984 Tenn. App. LEXIS 3047 (Tenn. Ct. App. 1984).

Where a Comprehensive Employment Training Act worker is assigned by an agency to a business for job training and supervision, both the agency and the business are the CETA worker's employer under the provisions of the Workers' Compensation Act, T.C.A. § 50-6-101 et seq.Jackson Housing Authority v. Auto-Owners Ins. Co., 686 S.W.2d 917, 1984 Tenn. App. LEXIS 3363 (Tenn. Ct. App. 1984).

Parent corporation and subsidiary were treated as one employer under T.C.A. § 50-6-101 where the subsidiary functioned as the manufacturing and sales distribution agent of the parent corporation. Stigall v. Wickes Machinery, Div. of Wickes Corp., 801 S.W.2d 507, 1990 Tenn. LEXIS 430 (Tenn. 1990).

2. —Basis of Liability.

The basis of liability under the Workers' Compensation Law is the employer-employee relation. Clendening v. London Assurance Co., 206 Tenn. 601, 336 S.W.2d 535, 1960 Tenn. LEXIS 409 (1960), rehearing denied, 206 Tenn. 601, 337 S.W.2d 603, 1960 Tenn. LEXIS 424 (1960).

Liability under the statute is based on the existence of an employment relationship and there is no imposition of liability where the alleged employee is either an independent contractor or a casual employee. Cromwell General Contractor, Inc. v. Lytle, 222 Tenn. 633, 439 S.W.2d 598, 1969 Tenn. LEXIS 467 (1969).

Insured was liable to insurers for workers'  compensation premiums for physical therapists with whom the insured contracted under a risk of loss provision in the parties'  insurance contract because: (1) the clause did not only apply when T.C.A. § 50-6-113 might apply; and (2) the insurers had to defend any suit in which a therapist sought workers'  compensation from the insured, even if only to find the therapist's status as an employee or independent contractor, so the insured was liable for premiums for shifting this litigation risk to the insurers. Cont'l Cas. Co. v. Theraco, Inc., 437 S.W.3d 841, 2014 Tenn. App. LEXIS 16 (Tenn. Ct. App. Jan. 14, 2014), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 451 (Tenn. May 28, 2014).

3. —Employment of Five Persons.

The five persons referred to need not be regularly engaged in work at the place of the injury, and need not work in the same county to make one an employer under act. The contract of employment and not place of accident governs recovery. Vantrease v. Smith, 143 Tenn. 254, 227 S.W. 1023, 1920 Tenn. LEXIS 15 (1920).

The statute was amended by Acts 1923, ch. 84, § 2, so that its every section applies to employers who employ not less than five persons for pay. Ezell v. Tipton, 150 Tenn. 300, 264 S.W. 355, 1924 Tenn. LEXIS 5 (1924).

The burden of proof is on petitioner to show that employer had five or more employees. King v. Buckeye Cotton Oil Co., 155 Tenn. 491, 296 S.W. 3, 1926 Tenn. LEXIS 72, 53 A.L.R. 1086 (1927); Mayberry v. Bon Air Chemical Co., 160 Tenn. 459, 26 S.W.2d 148, 1929 Tenn. LEXIS 122 (1930).

Workers' compensation coverage attaches on the first day that five or more persons who may be classified as regular employees work for an employer. Ganus v. Asher, 561 S.W.2d 756, 1978 Tenn. LEXIS 580 (Tenn. 1978); Garner v. Reed, 856 S.W.2d 698, 1993 Tenn. LEXIS 196 (Tenn. 1993), rehearing denied, — S.W.2d —, 1993 Tenn. LEXIS 249 (Tenn. June 28, 1993).

Once coverage attaches to an employer of five or more persons it may not be withdrawn solely by the device of reducing the work force to four or fewer regular employees. Ganus v. Asher, 561 S.W.2d 756, 1978 Tenn. LEXIS 580 (Tenn. 1978).

The five-employee limitation for workers' compensation liability was not applicable to principle contractor liable because subcontractor failed to secure workers' compensation insurance. Brown v. Canterbury Corp., 844 S.W.2d 134, 1992 Tenn. LEXIS 609 (Tenn. 1992).

4. —Insurer as “Employer.”

In view of the definition of employer herein as including his insurer, notice of employer's insurer of willingness to pay compensation is sufficient to start running of the period of limitation within which suit may be brought, as provided in former § 50-6-224. Oman v. Delius, 162 Tenn. 192, 35 S.W.2d 570, 1930 Tenn. LEXIS 79 (1931).

Employee had the right to sue the insurance carrier without joining the employer and the mere fact that the statute of limitations barred his right to bring suit against the employer would not prevent his suing and recovering from the carrier where limitations had been tolled as to the carrier. General Acci. Fire & Life Assurance Corp. v. Kirkland, 210 Tenn. 39, 356 S.W.2d 283, 1962 Tenn. LEXIS 410 (1962).

The employer and insurer are each principals and are jointly and severally liable to the employee. General Acci. Fire & Life Assurance Corp. v. Kirkland, 210 Tenn. 39, 356 S.W.2d 283, 1962 Tenn. LEXIS 410 (1962).

The insurer may be sued directly by the employee for compensation benefits. General Guaranty Ins. Co. v. Scudginton, 213 Tenn. 532, 376 S.W.2d 464, 1964 Tenn. LEXIS 420 (1964).

5. Guarantor.

The guarantor of a self-insured employer's obligations is entitled to the same immunity as a workers' compensation insurer. Malkiewicz v. R.R. Donnelley & Sons Co., 703 F. Supp. 49, 1989 U.S. Dist. LEXIS 290 (M.D. Tenn. 1989), aff'd without opinion, 932 F.2d 968, 1991 U.S. App. LEXIS 14568 (6th Cir. Tenn. 1991).

There is no principled distinction between the status of a workers' compensation insurer and that of a guarantor who guarantees the employer's financial ability to comply with the workers' compensation statutes. Malkiewicz v. R.R. Donnelley & Sons Co., 794 S.W.2d 728, 1990 Tenn. LEXIS 306 (Tenn. 1990).

Inclusion of a guarantor within the definition of “employer” so as to afford it the benefit of exclusive remedy provisions is consistent with the legislative purpose of insuring solvent and responsible sources of recovery under the compensation program. Malkiewicz v. R.R. Donnelley & Sons Co., 794 S.W.2d 728, 1990 Tenn. LEXIS 306 (Tenn. 1990).

6. —Insurer's Act as Tolling Statute of Limitations.

Insurer's acts being for and in behalf of the employer under subsection (a), an agreement between an insurer and an employee tolled the statute of limitations, so that action by employee against employer was not barred. Moore v. Hines, 170 Tenn. 456, 95 S.W.2d 928, 1936 Tenn. LEXIS 15 (1936).

7. —Charities.

An educational institution constructing a reservoir, not necessary for its own water supply but to provide the needs of a municipality for profit, is liable for compensation to a worker thereon. Lincoln Memorial University v. Sutton, 163 Tenn. 298, 43 S.W.2d 195, 1931 Tenn. LEXIS 115 (1931).

A university which was a charitable educational institution operating under a welfare charter was an employer within the meaning of this section. Smith v. Lincoln Memorial University, 202 Tenn. 238, 304 S.W.2d 70, 1957 Tenn. LEXIS 386 (1957).

8. —Sufficiency of Evidence.

In suit for workers' compensation, evidence showed that the employers had as many as five employees at time of injury, notwithstanding employer's claim that part of their business had been sold or leased to another. Buck & Simmons Auto & Electric Supply Co. v. Kesterson, 194 Tenn. 115, 250 S.W.2d 39, 1952 Tenn. LEXIS 358 (1952).

9. —Jury Question.

Submitting to the jury the question of whether the defendant corporation was an employer of decedent where decedent was killed while employed by a wholly owned subsidiary of defendant was not prejudicial where substantial evidence in the record supported the jury's finding that the parent corporation was not an employer and where decedent was not a special employee of defendant corporation. Latham v. Technar, Inc., 390 F. Supp. 1031, 1974 U.S. Dist. LEXIS 6079 (E.D. Tenn. 1974).

10. Employees.

The ordinary and usual meaning of the word “employee” is one who is employed by another and works for wages or salary without regard to whether the employment is legal or illegal. American Surety Co. v. Clarksville, 204 Tenn. 67, 315 S.W.2d 509, 1958 Tenn. LEXIS 247 (1958).

In defining the term “employee” the general assembly intended to cover contracts for hire the making of which is prohibited (such as employment in certain cases of minors) but not those contracts, even though legal contracts of hire, where the acts required of the employee are themselves a violation of the penal statutes and the employee receives injuries in the performance of the required illegal acts. Bowers v. General Guaranty Ins. Co., 221 Tenn. 719, 430 S.W.2d 871, 1968 Tenn. LEXIS 499 (1968).

Employee who as part of his employment knowingly violated penal statutes against illegal sale of intoxicating liquor and who was injured in the course of making such a sale was not an “employee” under the statute and was not entitled to compensation. Bowers v. General Guaranty Ins. Co., 221 Tenn. 719, 430 S.W.2d 871, 1968 Tenn. LEXIS 499 (1968).

Whether a workers' compensation claimant was an employee depends upon the nature of the defendant's business, the way it was conducted and the claimant's relationship to the business. Butler v. Johnson, 221 Tenn. 366, 426 S.W.2d 515, 1968 Tenn. LEXIS 469 (1968).

Farmer who brought load of tobacco to warehouse and who was told by owner that if he unloaded the tobacco he would be paid for it was an employee of the warehouse when injured while unloading the tobacco. Butler v. Johnson, 221 Tenn. 366, 426 S.W.2d 515, 1968 Tenn. LEXIS 469 (1968).

The question of whether a claimant is an employee under this section and of whether he is a casual employee under § 50-6-106 are separate and distinct questions. Butler v. Johnson, 221 Tenn. 366, 426 S.W.2d 515, 1968 Tenn. LEXIS 469 (1968).

For one to be an employee of another there must be an express or implied agreement for the alleged employer to remunerate the alleged employee for his services in behalf of the former. Black v. Dance, 643 S.W.2d 654, 1982 Tenn. LEXIS 372 (Tenn. 1982).

For comprehensive enumeration of what constitutes employees for hire and volunteer or gratuitous employees, see Hill v. King, 663 S.W.2d 435, 1983 Tenn. App. LEXIS 650 (Tenn. Ct. App. 1983).

Where volunteer deputy received occasional meal and reimbursement for mileage and expenses, the court might stretch the definition of “hire” if the question was whether or not workers' compensation was due, but would not impute or imply a waiver of the common-law right to recover full compensation or the statutory right to recover within the limits of the Governmental Tort Liability Act (title 29, ch. 20) without real, palpable and substantial consideration; the law will not presume that the deputy sold his birthright for a mess of pottage. Hill v. King, 663 S.W.2d 435, 1983 Tenn. App. LEXIS 650 (Tenn. Ct. App. 1983).

A Comprehensive Employment Training Act worker was an employee both of the local referring agency and of the business which provided the training. Jackson Housing Authority v. Auto-Owners Ins. Co., 686 S.W.2d 917, 1984 Tenn. App. LEXIS 3363 (Tenn. Ct. App. 1984).

A convict cannot make an employment contract with the authorities who confine him, and is not entitled to workers' compensation benefits. Howard v. Uselton, 774 S.W.2d 925, 1989 Tenn. LEXIS 383 (Tenn. 1989).

Job applicant does not have a cause of action under the Tennessee Workers'  Compensation Act against a prospective employer for failure to hire if the prospective employer failed to hire the job applicant because that applicant had filed, or is likely to file, a workers'  compensation claim against a previous employer; moreover, the Second Injury Fund does not show a legislative intent to allow job applicants who have been previously injured to sue prospective employers for failure to hire. Yardley v. Hosp. Housekeeping Sys., LLC, 470 S.W.3d 800, 2015 Tenn. LEXIS 630 (Tenn. Aug. 21, 2015).

11. —Independent Contractors and Employees Distinguished.

One employed to do work according to his own methods, free from control of employer, was an independent contractor. Siskin v. Johnson, 151 Tenn. 93, 268 S.W. 630, 1924 Tenn. LEXIS 47 (1925).

Where the power to direct and supervise the work is reserved, the contractee is a servant and not an independent contractor. Finley v. Keisling, 151 Tenn. 464, 270 S.W. 629, 1924 Tenn. LEXIS 80 (1924); Brademeyer v. Chickasaw Bldg. Co., 190 Tenn. 239, 229 S.W.2d 323, 1950 Tenn. LEXIS 474 (1950).

The mere fact that the laborer is receiving so much by the piece or job does not control the question as to whether the contractee was an independent contractor or a servant. Finley v. Keisling, 151 Tenn. 464, 270 S.W. 629, 1924 Tenn. LEXIS 80 (1924); Mayberry v. Bon Air Chemical Co., 160 Tenn. 459, 26 S.W.2d 148, 1929 Tenn. LEXIS 122 (1930).

One employed at certain price per thousand feet “to cut and haul said timber as directed by said first party,” the employer having power to direct and supervise the cutting, was a servant, obliged to do the work strictly according to instructions, and not an independent contractor. Finley v. Keisling, 151 Tenn. 464, 270 S.W. 629, 1924 Tenn. LEXIS 80 (1924).

Under contract of employment whereby employer simply agreed to pay one for hauling lumber according to the amount hauled, with no relinquishment by the employer of the right to control the means and method by which the hauling was done, or to terminate the employment, the hauler was an employee within meaning of this section and not an independent contractor. Frost v. Blue Ridge Timber Corp., 158 Tenn. 18, 11 S.W.2d 860, 1928 Tenn. LEXIS 119 (1928).

The relationship of employer and employee arises where the former selects the latter, and may discharge him and may order not only that the work shall be done but also the mode of its performance. Mayberry v. Bon Air Chemical Co., 160 Tenn. 459, 26 S.W.2d 148, 1929 Tenn. LEXIS 122 (1930).

Where petitioner agreed to paint a roof at rate of $50.00 per hour and at a maximum labor cost of $15.00 for himself and helper and where there was no evidence to show any relinquishment by employer of his right to control the means and methods by which the painting was to be done, there was material evidence to support the chancellor's finding that petitioner was an employee and not an independent contractor. Welch v. Reiling, 170 Tenn. 698, 99 S.W.2d 216, 1936 Tenn. LEXIS 51 (1936).

Where owner of candy company paid social security tax and carried compensation insurance on traveling salesman who was compensated on a basis of five percent of his gross sales and paid his own expenses and at times as a sideline sold goods for other companies with the consent of the candy company but did not so do in the state of Georgia where his death occurred, such salesman was an employee of the candy company and not an independent contractor and was covered by the compensation statute. Carter v. Hodges, 175 Tenn. 96, 132 S.W.2d 211, 1939 Tenn. LEXIS 16 (1939).

In ascertaining whether a given contract establishes an employer-employee status or that of an independent contractor, the decisive fact always is whether the party for whom the work was being done had the right of control in the doing of that work. Brademeyer v. Chickasaw Bldg. Co., 190 Tenn. 239, 229 S.W.2d 323, 1950 Tenn. LEXIS 474 (1950).

Individual injured hauling logs in own truck was entitled to compensation as an employee, rather than an independent contractor, where he was hired for an indefinite time and amount of work with some control of the manner of working, even though he is paid by the piece, particularly where indorsement blank on salary checks states the parties are subject to fair labor standards act. Bond Bros., Inc. v. Spence, 198 Tenn. 316, 279 S.W.2d 509, 1955 Tenn. LEXIS 374 (1955).

There is no absolute formula whereby it can be determined whether a party is an employee or independent contractor but the facts of each particular case have to be taken into consideration and from these facts a determination made. Barker v. Curtis, 199 Tenn. 413, 287 S.W.2d 43, 1956 Tenn. LEXIS 339 (1956); Seals v. Zollo, 205 Tenn. 463, 327 S.W.2d 41, 1959 Tenn. LEXIS 384 (1959); Smart v. Embry, 208 Tenn. 686, 348 S.W.2d 322, 1961 Tenn. LEXIS 340 (1961).

One of the most widely accepted definitions of an independent contractor is: “One who contracts to do a piece of work according to his own methods without being subject to the control of his employer, except as to the result of the work, and who has the right to employ and direct the action of the worker independent of his employer, and free from any superior authority in the employer to say how specified work shall be done, or what the laborers shall do as the work progresses; one who undertakes to produce a given result without being in any way controlled as to the methods by which he attains the result.” Barker v. Curtis, 199 Tenn. 413, 287 S.W.2d 43, 1956 Tenn. LEXIS 339 (1956); Smart v. Embry, 208 Tenn. 686, 348 S.W.2d 322, 1961 Tenn. LEXIS 340 (1961); Galloway v. Memphis Drum Service, 822 S.W.2d 584, 1991 Tenn. LEXIS 512 (Tenn. 1991).

In determining whether one is an employee or an independent contractor, it is the duty of the court to give the Workers' Compensation Law a liberal construction in favor of the fact that he is an employee, rather than a strict construction. Barker v. Curtis, 199 Tenn. 413, 287 S.W.2d 43, 1956 Tenn. LEXIS 339 (1956).

Where petitioner contracted with coal company to mine coal at stated price per ton with the company to furnish certain equipment and the petitioner to furnish the labor and certain other equipment, and where petitioner paid social security, withheld income tax and paid into miner's pension fund as to his employees but the coal company reserved and exercised full control of where and how the coal was to be mined as well as the quantity of coal and the place at which it was to be delivered and petitioner could have been discharged at any time, evidence supported finding of the trial court that petitioner was an employee rather than an independent contractor. Barker v. Curtis, 199 Tenn. 413, 287 S.W.2d 43, 1956 Tenn. LEXIS 339 (1956).

Where ice cream vendor was furnished with pushcart and products to sell at retail with unsold products being returned to company at close of each day, and company at all times kept control of equipment and products and could seize the products and equipment at any time and terminate contract with vendor, vendor was an employee rather than an independent contractor even though his compensation was the difference between the wholesale and retail prices of the products. Seals v. Zollo, 205 Tenn. 463, 327 S.W.2d 41, 1959 Tenn. LEXIS 384 (1959).

The right of a company to terminate relationship with claimant at will is strong evidence that claimant is an employee rather than an independent contractor. Seals v. Zollo, 205 Tenn. 463, 327 S.W.2d 41, 1959 Tenn. LEXIS 384 (1959); Owens v. Turner, 211 Tenn. 121, 362 S.W.2d 793, 1962 Tenn. LEXIS 348 (1962); Galloway v. Memphis Drum Service, 822 S.W.2d 584, 1991 Tenn. LEXIS 512 (Tenn. 1991).

Whether claimant is an employee or independent contractor depends upon the nature of business of the alleged employer, the way it is conducted and the claimant's relationship to that business. Seals v. Zollo, 205 Tenn. 463, 327 S.W.2d 41, 1959 Tenn. LEXIS 384 (1959).

The method of payment for services supposed to be rendered by claimant is not controlling on question of whether he is an employee or independent contractor. Seals v. Zollo, 205 Tenn. 463, 327 S.W.2d 41, 1959 Tenn. LEXIS 384 (1959).

The mere fact that employee was paid at rate of so much per thousand brick laid would not make him an independent contractor or prevent him from being an employee within the meaning of the Act. Clendening v. London Assurance Co., 206 Tenn. 601, 336 S.W.2d 535, 1960 Tenn. LEXIS 409 (1960), rehearing denied, 206 Tenn. 601, 337 S.W.2d 603, 1960 Tenn. LEXIS 424 (1960).

In determining whether an individual is an employee or an independent contractor, the test is whether employer had the right to control the employee in doing his work and not whether that right was exercised. Owens v. Turner, 211 Tenn. 121, 362 S.W.2d 793, 1962 Tenn. LEXIS 348 (1962).

Carpenter hired for purpose of repairing garage door by owner of motor company who worked by the hour and intended to submit bill when job was complete was independent contractor and not an employee of the garage owner. Federated Mut. Implement & Hardware Co. v. Shoemaker, 211 Tenn. 523, 366 S.W.2d 129, 1963 Tenn. LEXIS 377 (1963).

For determining whether worker is an employee or an independent contractor in workers' compensation cases, one test is whether employer had a right to control employee in doing the work, and another, the right to terminate the employment at any time, such rights being incompatible with full control of the work usually enjoyed by independent contractor. Armstrong v. Spears, 216 Tenn. 643, 393 S.W.2d 729, 1965 Tenn. LEXIS 610 (1965).

Painter was employee rather than independent contractor where he was directed by farm operator to paint trim on house on a particular day and complied, employment could be terminated at any time, regular employees were directed from time to time to paint farm buildings, and painting was an expectable, routine and inherent part of the farming operation. Armstrong v. Spears, 216 Tenn. 643, 393 S.W.2d 729, 1965 Tenn. LEXIS 610 (1965).

Factors to be considered in determining whether claimant is an employee or an independent contractor include right or exercise of control by asserted employer, method of payment, furnishing of equipment and right to fire. Fisher v. J. F. G. Coffee Co., 221 Tenn. 333, 426 S.W.2d 502, 1967 Tenn. LEXIS 360 (1967).

Where there is a contract of employment either express or implied the burden is on the employer to show that the claimant is an independent contractor rather than an employee. Butler v. Johnson, 221 Tenn. 366, 426 S.W.2d 515, 1968 Tenn. LEXIS 469 (1968).

Plaintiff who was engaged to clean bricks on new buildings by the job or by number of bricks, who was not controlled as to means of accomplishment of end result, furnished major portion of tools and materials and frequently hired and paid his own employees, although on occasion he received help from contractor's employees without charge, was, on the facts of the case, an independent contractor rather than an employee, even though plaintiff and building contractor may have engaged in some occasional consultation and experimentation with reference to cleaning solution to be used. Cromwell General Contractor, Inc. v. Lytle, 222 Tenn. 633, 439 S.W.2d 598, 1969 Tenn. LEXIS 467 (1969).

Among the tests for determining whether a work relationship is that of employer-employee or of independent contractor are: (1) Right to control conduct of work; (2) Right of termination; (3) Method of payment between alleged employer and employee; (4) Whether or not alleged employee furnishes his own helpers; and (5) whether or not the alleged employee furnishes his own tools, but these tests are not absolute and are not to be applied abstractly. Cromwell General Contractor, Inc. v. Lytle, 222 Tenn. 633, 439 S.W.2d 598, 1969 Tenn. LEXIS 467 (1969); Carver v. Sparta Electric System, 690 S.W.2d 218, 1985 Tenn. LEXIS 499 (Tenn. 1985); Stratton v. United Inter-Mountain Tel. Co., 695 S.W.2d 947, 1985 Tenn. LEXIS 591 (Tenn. 1985).

So-called “relative nature of the work” test is of vital significance on the issue of whether an individual is an employee or casual employee but is of less significance where the question is whether the injured person is an employee or independent contractor. Cromwell General Contractor, Inc. v. Lytle, 222 Tenn. 633, 439 S.W.2d 598, 1969 Tenn. LEXIS 467 (1969).

Where only practical difference between truck drivers delivering manufacturer's products as employees and as “contract haulers” was that contract haulers stood to make more money and both types of drivers worked same hours, performed same duties and contracts of contract haulers could be terminated at any time, action of trial judge in finding that “contract hauler” was employee would be sustained. Curtis v. Hamilton Block Co., 225 Tenn. 275, 466 S.W.2d 220, 1971 Tenn. LEXIS 300 (1971).

Where worker had leased a tractor from corporation to be used by worker in delivering gasoline and petroleum products for corporation, and where the lease agreement had provided that the leased equipment would be operated by the corporation's exclusive direction and control and that corporation would have the right to terminate the services of any driver, the worker was an employee of the corporation rather than an independent contractor for workers' compensation purposes. Wooten Transports, Inc. v. Hunter, 535 S.W.2d 858, 1976 Tenn. LEXIS 587 (Tenn. 1976).

Where defendant held a franchise to operate a taxicab company, and where a taxicab driver was seriously injured while answering one of defendant's radio dispatches, the fact that the name of the company and other business information was painted on the vehicles, that all of the cabs were radio dispatched, that gasoline purchases were made by the drivers from defendant, that defendant supplied oil for each vehicle, and that defendant's supervisors checked cabs for cleanliness, constituted sufficient evidence of an employer-employee relationship rather than of independent contractors, and defendant was required to compensate plaintiff under § 50-6-112. Nesbit v. Powell, 558 S.W.2d 436, 1977 Tenn. LEXIS 659 (Tenn. 1977).

Where man and his wife worked on painting and papering homes for mortgage company and painting was sometimes paid for by the hour and sometimes on square foot basis and papering was paid for by the roll, and he could set his own working hours, provide his own tools and hire additional helpers if he wished, he was an independent contractor and not an employee. Barnes v. National Mortg. Co., 581 S.W.2d 957, 1979 Tenn. LEXIS 442 (Tenn. 1979).

Where: (1) Injured person was a member of a partnership and was working on the construction of a house for a general contractor; (2) The general contractor inspected the work to the extent necessary to see that the end result would be according to plan but did not control the methods and details of the work; (3) Payment was negotiated on the square foot of completion basis; and (4) Such injured person hired and paid his own helpers and did not use the workers of the general contractor, such injured person was an independent contractor rather than an employee of the general contractor. Lindsey v. Smith & Johnson, Inc., 601 S.W.2d 923, 1980 Tenn. LEXIS 472 (Tenn. 1980).

Where defendant supplied all his own tools and workers, and plaintiff had no right to termination and did not deduct social security or income taxes from defendant's paychecks, defendant was an independent contractor. Jackson Sawmill, Inc. v. West, 619 S.W.2d 105, 1981 Tenn. LEXIS 453 (Tenn. 1981).

The fact that a company did not deduct social security or income taxes was not controlling in deciding whether an employer-employee or independent contractor relationship existed. Carver v. Sparta Electric System, 690 S.W.2d 218, 1985 Tenn. LEXIS 499 (Tenn. 1985).

The following are to be considered as means of analysis, not as absolutes, in the determination of an independent contractor or employee relationship: (1) The right to control the conduct of the work; (2) The right of termination; (3) The method of payment; (4) The freedom to select and hire helpers; (5) The furnishing of tools and equipment; (6) Self scheduling of work hours; and (7) Being free to render services to other entities. German v. Whaley, 760 S.W.2d 627, 1988 Tenn. LEXIS 201 (Tenn. 1988).

The method of payment, the freedom to select and hire helpers, the furnishing of tools and equipment, and the freedom to render services to other entities unequivocally established defendant as an independent contractor, and evidence on issues of termination and control did not persuasively indicate an employer-employee relationship. German v. Whaley, 760 S.W.2d 627, 1988 Tenn. LEXIS 201 (Tenn. 1988); Galloway v. Memphis Drum Service, 822 S.W.2d 584, 1991 Tenn. LEXIS 512 (Tenn. 1991).

A party to a contract can exercise direction and control over the results of the work without destroying the independence of the contract or creating an employer-employee relationship. Wright v. Knox Vinyl & Aluminum Co., 779 S.W.2d 371, 1989 Tenn. LEXIS 465 (Tenn. 1989).

While no single factor is determinative, the supreme court has repeatedly emphasized the importance of the right to control when distinguishing employees and independent contractors, the relevant inquiry being whether the right existed, not whether it was exercised. Galloway v. Memphis Drum Service, 822 S.W.2d 584, 1991 Tenn. LEXIS 512 (Tenn. 1991).

Method of payment does weigh toward finding an independent contractor relationship, but it is one factor among many to be considered. Galloway v. Memphis Drum Service, 822 S.W.2d 584, 1991 Tenn. LEXIS 512 (Tenn. 1991).

Where truck leasing company required driver to sign contract emphasizing driver's status as “independent contractor” rather than “employee,” but could effectively terminate its relationship with driver at will, retained the responsibility for selecting the routes to be driven, required driver to take the most commercially reasonable route and offset any equipment operating costs due to a deviation in route against driver's earnings, penalized driver if he failed to meet pickup or delivery times, required driver to report daily, and required driver to obtain company approval before taking time off from work, evidence supported chancellor's findings that relationship was that of employer-employee. Boruff v. CNA Ins. Co., 795 S.W.2d 125, 1990 Tenn. LEXIS 277 (Tenn. 1990).

Independent contractor status did not place the defendant outside the purview of T.C.A. § 50-6-102 as the defendant was performing a non-delegable duty of the workers' compensation carrier when it failed to pay plaintiff's claim. Davis v. Alexsis, Inc., 2 S.W.3d 228, 1999 Tenn. App. LEXIS 203 (Tenn. Ct. App. 1999), review or rehearing denied, — S.W.3d —, 1999 Tenn. LEXIS 449 (Tenn. Sept. 13, 1999).

Courier, who was denied insurance benefits for an injury sustained while making a delivery, was an employee under T.C.A. § 50-6-102, rather than an independent contractor as designated in his employment contract, where the employer controlled the method of payment, the courier was required to pay for an insurance program that he did not want to participate in, the courier did not have control of his vacation schedule, the employer set the courier's work schedule, the courier did not have time or permission to offer his services to other entities, and the employer had the right to terminate the courier. Dillon v. NICA, Inc., — S.W.3d —, 2011 Tenn. App. LEXIS 669 (Tenn. Ct. App. Dec. 14, 2011).

When physical therapists were required to supervise the therapists'  assistance, such requirement did not make the physical therapists the employees of an insured with whom the therapists contracted, for purposes of making the insured liable to insurers for workers'  compensation premiums for the therapists, because this was a requirement imposed by law that did not show whether the insured could exercise the requisite control over the therapists. Cont'l Cas. Co. v. Theraco, Inc., 437 S.W.3d 841, 2014 Tenn. App. LEXIS 16 (Tenn. Ct. App. Jan. 14, 2014), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 451 (Tenn. May 28, 2014).

Insured was not liable to insurers for workers'  compensation premiums for physical therapists with whom the insured contracted on the theory that the therapists were the insured's employees because the therapists were independent contractors, as there was insufficient evidence that the insured had the right to control how the therapists provided therapy. Cont'l Cas. Co. v. Theraco, Inc., 437 S.W.3d 841, 2014 Tenn. App. LEXIS 16 (Tenn. Ct. App. Jan. 14, 2014), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 451 (Tenn. May 28, 2014).

12. —Status of Claimant — Nature of Question.

If facts surrounding oral contract of employment are undisputed the question of determining whether claimant is an employee or an independent contractor is one of law. Brademeyer v. Chickasaw Bldg. Co., 190 Tenn. 239, 229 S.W.2d 323, 1950 Tenn. LEXIS 474 (1950).

If facts are undisputed question of whether claimant is an employee or an independent contractor is one of law. Seals v. Zollo, 205 Tenn. 463, 327 S.W.2d 41, 1959 Tenn. LEXIS 384 (1959).

A convict performing work for the county during his imprisonment was not under any contract, express or implied, and was therefore not an employee for purposes of the Workers' Compensation Laws. Abrams v. Madison County Highway Dep't, 495 S.W.2d 539, 1973 Tenn. LEXIS 492 (Tenn. 1973).

Where the new hire was injured in an automobile accident while traveling to a training facility, she was an employee for purposes of T.C.A. § 50-6-102. The new hire was being paid for her time at orientation; as soon as the orientation was over, she was to report to the nursing home to begin her work as a hostess at that facility. Hubble v. Dyer Nursing Home, 188 S.W.3d 525, 2006 Tenn. LEXIS 301 (Tenn. 2006).

13. —Burden of Proof.

The burden of proof is on the employer to show that status of alleged employee was that of an independent contractor. Sledge v. Hunt, 157 Tenn. 606, 12 S.W.2d 529, 1928 Tenn. LEXIS 227 (1928).

Any doubt as to whether an injured worker is an employee or an independent contractor must be resolved in favor of the former. Kamarad v. Parkes, 201 Tenn. 566, 300 S.W.2d 922, 1957 Tenn. LEXIS 335 (1957); Seals v. Zollo, 205 Tenn. 463, 327 S.W.2d 41, 1959 Tenn. LEXIS 384 (1959).

Where a business relation or contract of employment, either express or implied, is shown, the burden is on the employer to show that claimant is an independent contractor rather than an employee. Seals v. Zollo, 205 Tenn. 463, 327 S.W.2d 41, 1959 Tenn. LEXIS 384 (1959); Galloway v. Memphis Drum Service, 822 S.W.2d 584, 1991 Tenn. LEXIS 512 (Tenn. 1991).

Because the Workers' Compensation Law, T.C.A. § 50-6-101 et seq., must be rationally but liberally construed to promote and adhere to the purpose of securing benefits to those workers who fall within its coverage, the supreme court will resolve doubts in favor of a finding that a worker is an employee rather than an independent contractor. Galloway v. Memphis Drum Service, 822 S.W.2d 584, 1991 Tenn. LEXIS 512 (Tenn. 1991).

Burden of proof is upon the employee to establish that the employer “had the requisite number of employees to bring it within the application of Tennessee's compensation statute.” Mooney v. Stainless, Inc., 338 F.2d 127, 1964 U.S. App. LEXIS 4741 (6th Cir. Tenn. 1964), cert. denied, 381 U.S. 925, 85 S. Ct. 1561, 14 L. Ed. 2d 684, 1965 U.S. LEXIS 1173 (1965).

14. —Presumption.

There is a rebuttable presumption that one performing work for another is his employee. Sledge v. Hunt, 157 Tenn. 606, 12 S.W.2d 529, 1928 Tenn. LEXIS 227 (1928); Mayberry v. Bon Air Chemical Co., 160 Tenn. 459, 26 S.W.2d 148, 1929 Tenn. LEXIS 122 (1930); Phillips v. Tennessee Eastman Corp., 160 Tenn. 538, 26 S.W.2d 1051, 1929 Tenn. LEXIS 130 (1929).

Where employment appears, the presumption is that one doing work is an employee and the burden is on the employer who seeks to be relieved from the liability arising from such relationship to establish an independent contractual relationship and to show that he has relinquished his right to control the other and that the other did not have to take orders and instructions from him. Welch v. Reiling, 170 Tenn. 698, 99 S.W.2d 216, 1936 Tenn. LEXIS 51 (1936); Carter v. Hodges, 175 Tenn. 96, 132 S.W.2d 211, 1939 Tenn. LEXIS 16 (1939).

15. —Necessity of Contract.

No action will lie unless the parties are bound by contract, express or implied. Cornett v. Chattanooga, 165 Tenn. 563, 56 S.W.2d 742, 1932 Tenn. LEXIS 86 (1933); Seals v. Zollo, 205 Tenn. 463, 327 S.W.2d 41, 1959 Tenn. LEXIS 384 (1959).

Recovery under the Workers' Compensation Act, whether by an adult or a minor, is recovery as under a contract. Moore v. Nashville Union Stock Yards, Inc., 169 Tenn. 638, 90 S.W.2d 524, 1935 Tenn. LEXIS 91 (1936).

16. —Regular Employee.

The amount of compensation paid and the length of time one is employed are not determinative of whether he is a regular or a casual employee, nor is it material that an alleged employee is related to his employer. Brady v. Reed, 186 Tenn. 556, 212 S.W.2d 378, 1948 Tenn. LEXIS 581 (1948); American Surety Co. v. Clarksville, 204 Tenn. 67, 315 S.W.2d 509, 1958 Tenn. LEXIS 247 (1958).

The mere fact that some of the persons who were in the defendants' service were minors and were “picked up” from day to day and not used for a specified time does not exclude them from the class of regular employees as defined by state statutes. So long as they were members of the class who were doing some work that was necessary in carrying on the particular business, they fall within the classification of those “regularly employed.” Brady v. Reed, 186 Tenn. 556, 212 S.W.2d 378, 1948 Tenn. LEXIS 581 (1948).

The nature of the employment rather than its frequency or infrequency or its duration determines whether the employment is casual or regular. American Surety Co. v. Clarksville, 204 Tenn. 67, 315 S.W.2d 509, 1958 Tenn. LEXIS 247 (1958).

So long as compensation claimant was a member of a class doing some work necessary in carrying on defendant's business he fell within the classification of those regularly employed. Butler v. Johnson, 221 Tenn. 366, 426 S.W.2d 515, 1968 Tenn. LEXIS 469 (1968).

17. —Part-time.

Evidence was sufficient to show that claimant was a part-time employee. Jones v. Crenshaw, 645 S.W.2d 238, 1983 Tenn. LEXIS 604 (Tenn. 1983).

18. —Temporary Work for Another Employer.

Where employer authorized its employee to execute trucking “trip lease” with another trucking company, employer remained liable for employee's injuries even though trip lease worked to sole benefit of other company. Argonaut Ins. Co. v. Vanatta, 539 S.W.2d 35, 1976 Tenn. LEXIS 571 (Tenn. 1976).

19. —Last Date Worked Rule.

The “last date worked” rule was adopted to prevent workers with gradual and repetitive injuries from losing the opportunity to bring claims due to the statute of limitations; thus, where evidence supported a causal connection between plaintiff's injury and her employment, her failure to miss work was not fatal to her claim. Story v. Legion Ins. Co., 3 S.W.3d 450, 1999 Tenn. LEXIS 434 (Tenn. 1999).

Last day worked rule does not apply when determining an employee's compensation rate if the employee gives the employer actual notice of a gradually occurring injury prior to missing time from work on account of the injury. Accordingly, the judgment of the trial court was modified to reflect an award based on a weekly compensation rate calculated as of the date the employee reported her gradually occurring injury to her employer, rather than on the date of her surgery, the latter date being the date she finally stopped working. Bone v. Saturn Corp., 148 S.W.3d 69, 2004 Tenn. LEXIS 907 (Tenn. 2004), overruled in part, Bldg. Materials Corp. v. Britt, 211 S.W.3d 706, 2007 Tenn. LEXIS 21 (Tenn. 2007), overruled, Shoulders v. TRW Commer. Steering Div., — S.W.3d —, 2007 Tenn. LEXIS 351 (Tenn. Apr. 3, 2007), overruled, Brown v. Erachem Comilog, Inc., 231 S.W.3d 918, 2007 Tenn. LEXIS 741 (Tenn. Aug. 30, 2007), overruled in part, Mathenia v. Milan Seating Sys., 254 S.W.3d 313, 2007 Tenn. LEXIS 896 (Tenn. 2007), overruled, Buckingham v. Fid. & Guar. Ins. Co., — S.W.3d —, 2007 Tenn. LEXIS 910 (Tenn. Oct. 25, 2007), overruled, Pickens v. Delta Faucet, — S.W.3d —, 2007 Tenn. LEXIS 914 (Tenn. Oct. 29, 2007), overruled, Aerospace Testing Alliance v. Anderson, — S.W.3d —, 2008 Tenn. LEXIS 369 (Tenn. May 23, 2008), overruled in part, Edwards v. Saturn Corp., — S.W.3d —, 2008 Tenn. LEXIS 617 (Tenn. Sept. 25, 2008).

20. —Loaned Employees.

Although during the year immediately preceding an employee's death, he was loaned to another company by his employer, and worked for the other company three weeks, he should be treated as a regular employee of his employer during the year, and comes under subdivision (a)(1), in determining the amount of compensation. Wilmoth v. Phoenix Utility Co., 168 Tenn. 95, 75 S.W.2d 48, 1934 Tenn. LEXIS 22 (1934).

Where truck owner loaned drivers to contractor for hauling of material to state highway and contractor supervised hauling and paid wages though deducting amount of wages from amount due truck owner, the contractor was a special employer and was liable to injured truck driver for compensation. Wardrep v. Houston, 168 Tenn. 170, 76 S.W.2d 328, 1934 Tenn. LEXIS 36 (1934).

In determining whether an employee in a particular instance should be regarded as a loaned employee in the service of a special employer or whether he should be regarded as remaining in the service of his general employer the question of whose work the employee was engaged in at the time of the injury is a test to be considered. Owen v. St. Louis Spring Co., 175 Tenn. 543, 136 S.W.2d 498, 1939 Tenn. LEXIS 72 (1940).

Where it was the duty of the seller of a machine to furnish a man to install the machine and to instruct the buyer's employees in the use of it and where the buyer could instruct such person what to do but not how to do it, a worker who was injured while engaged in such operations was not a loaned employee even though he was at the time on the payroll of the buyer but was in the employ of the general employer. Owen v. St. Louis Spring Co., 175 Tenn. 543, 136 S.W.2d 498, 1939 Tenn. LEXIS 72 (1940).

Employee loaned by employer to foreman for personal use outside of working hours, where employer continues to pay wages, is not injured in course of employment where accidental death occurred in employer's truck, even though employee had finished job, delivered helper home, and was returning truck to employer. Kempkau v. Cathey, 198 Tenn. 17, 277 S.W.2d 392, 1955 Tenn. LEXIS 339 (1955).

The rule was adopted in Tennessee that where a general employer lends an employee to a special employer the special employer becomes liable for workers' compensation only if: (1) The employee has made a contract of hire express or implied with the special employer; (2) The work being done is essentially that of the special employer; and (3) The special employer has the right to control the details of the work. Winchester v. Seay, 219 Tenn. 321, 409 S.W.2d 378, 1966 Tenn. LEXIS 531 (1966).

Where worker was injured while cutting metal strip to fit under air conditioner over door of restaurant, such employee was engaged in maintenance and repair work so as to be entitled to compensation from restaurant owner rather than from his regular employer even though he was regularly employed at nearby hotel where at time of injury he was working under direction of owner of restaurant and not of his regular employer. Winchester v. Seay, 219 Tenn. 321, 409 S.W.2d 378, 1966 Tenn. LEXIS 531 (1966).

Where four separate equipment rental corporations had common president, vice president and general manager who supervised all operations and exercised control over all employees who at different times performed work for all corporations, employee of one corporation who was injured while performing work for a second of the corporations was engaged in dual employment and his remedy was against second corporation under the Workers' Compensation Law rather than by common law tort action. Potts v. Knox-Tenn Rental, Inc., 62 Tenn. App. 699, 467 S.W.2d 796, 1971 Tenn. App. LEXIS 205 (Tenn. Ct. App. 1970).

Decedent was not a loaned employee where she was employed by the wholly owned subsidiary of a parent corporation, although at the time of her death in an industrial explosion she was doing work for the parent company which controlled the details of her work, due to fact that decedent was not transferred to a new payroll and that the evidence at trial failed to show that decedent expressly or impliedly consented to a change of employers. Latham v. Technar, Inc., 390 F. Supp. 1031, 1974 U.S. Dist. LEXIS 6079 (E.D. Tenn. 1974).

Where plaintiff was injured while he was working on a crew which had been requested by defendant from plaintiff's regular employer, and where this crew was working under the direction of one of defendant's supervisors, plaintiff was a “loaned servant” and defendant was consequently plaintiff's employer for the purposes of recovery. Carpenter v. Hooker Chemical & Plastics Corp., 553 S.W.2d 356, 1977 Tenn. App. LEXIS 286 (Tenn. Ct. App. 1977).

Employee found to be “loaned servant.” Catlett v. Indemnity Ins. Co., 813 S.W.2d 411, 1991 Tenn. LEXIS 270 (Tenn. 1991).

21. —Employee of Independent Contractor.

Plaintiff who worked for general contractor was employee of general contractor where latter constructed a home for third party on a flat fee of five percent of cost, though plaintiff was paid directly by third party. Edwards v. Harvey, 194 Tenn. 603, 253 S.W.2d 766, 1952 Tenn. LEXIS 428 (1952).

Evidence that contractor had actual knowledge and notice of accident, and that claimant was contractor's employee, was sufficient to uphold award of compensation. Rote v. Walls, 197 Tenn. 463, 274 S.W.2d 1, 1954 Tenn. LEXIS 508 (1954).

Where contractor was engaged on a cost plus basis to make certain changes in manufacturing plant and such contractor employed and supervised its own workers and acted in its own discretion as to the manner of accomplishing the alterations provided for in the contract, worker injured on the construction project was an employee of the contractor and not of the manufacturing corporation and was entitled to maintain common law action against manufacturing corporation as third party tort feasor. Bowaters Southern Paper Corp. v. Brown, 253 F.2d 631, 1958 U.S. App. LEXIS 5205 (6th Cir. Tenn. 1958).

Where evidence showed that deceased was killed more than three months after his employment was terminated by defendant manufacturing company and that at the time of the accident he was driving a truck owned and operated by and under the instructions of a third party, he was not an employee of defendant manufacturing company even though at the time of the accident the truck was carrying property of defendant manufacturing company. Gluck Bros., Inc. v. Turner, 205 Tenn. 691, 330 S.W.2d 311, 1959 Tenn. LEXIS 409 (1959).

22. —Minors.

Every injured employee must give notice of injury as prescribed by statute even though he is a minor, unless there is a reasonable excuse for not doing so. Moore v. Nashville Union Stock Yards, Inc., 169 Tenn. 638, 90 S.W.2d 524, 1935 Tenn. LEXIS 91 (1936).

23. — —Validity of Provisions as to.

This statute is not invalid as undertaking to make an election for and a binding contract upon a minor employee when, by reason of such minority, he is unable to make such election or contract, since the act makes him sui juris as to power of election for purpose of the act. Scott v. Nashville Bridge Co., 143 Tenn. 86, 223 S.W. 844, 1919 Tenn. LEXIS 27 (1919).

24. — —Illegal Employment — Effect.

Prior to the 1961 amendment, subdivision (a)(2) (now (a)(3)(A)) did not include the words “whether lawfully or unlawfully employed” following the word “minor.” Under the law prior to such amendment it was held that a minor unlawfully employed was not covered by the Workers' Compensation Law and therefore could maintain an action at common law for damages in the cases of Manning v. American Clothing Co., 147 Tenn. 274, 247 S.W. 103, 1922 Tenn. LEXIS 39 (1922); Western Union Tel. Co. v. Ausbrooks, 148 Tenn. 615, 257 S.W. 858, 1923 Tenn. LEXIS 47, 33 A.L.R. 330 (1924); Knoxville News Co. v. Spitzer, 152 Tenn. 614, 279 S.W. 1043, 1925 Tenn. LEXIS 108 (1926). It was held otherwise, however, with respect to employment in violation of municipal ordinance in Walsh v. Myer Hotel Co., 161 Tenn. 355, 30 S.W.2d 225, 1929 Tenn. LEXIS 64 (1930).

It was also indicated that a minor unlawfully employed could elect whether to seek recovery under the act or sue for damages at common law in the cases of Western Union Tel. Co. v. Ausbrooks, 148 Tenn. 615, 257 S.W. 858, 1923 Tenn. LEXIS 47, 33 A.L.R. 330 (1924); American Surety Co. v. Clarksville, 204 Tenn. 67, 315 S.W.2d 509, 1958 Tenn. LEXIS 247 (1958).

Where death of minor occurred prior to effective date of 1961 amendment extending definition of employee to a minor whether lawfully or unlawfully employed, administrator of minor's estate was entitled to maintain suit against employer of minor for wrongful death and amendment had no retroactive effect so as to preclude actions at law arising prior to the time the amendment became effective. Pigg v. Stacey, 210 Tenn. 144, 356 S.W.2d 593, 1962 Tenn. LEXIS 414 (1962); Mills v. Pigg, 54 Tenn. App. 612, 393 S.W.2d 28, 1965 Tenn. App. LEXIS 281 (Tenn. Ct. App. 1965).

In common law action for wrongful death arising prior to 1961 amendment to this section making compensation law applicable to minors whether lawfully or unlawfully employed, exclusion of evidence offered by defendants to show that decedent minor was lawfully employed at time of death and that common law action was thereby precluded was improper. Mills v. Pigg, 54 Tenn. App. 612, 393 S.W.2d 28, 1965 Tenn. App. LEXIS 281 (Tenn. Ct. App. 1965).

25. Leased Operators.

Grant of summary judgment in favor of the alleged employer was proper pursuant to T.C.A. § 50-6-106(1)(A) where it was not, as a matter of law, the alleged employees' employer so as to subject it to liability under the Workers' Compensation Law, T.C.A. § 50-6-101 et seq.; in a service agreement executed by the alleged employer and company, the company agreed to provide drivers to the alleged employer and the agreement stated that the personnel supplied to the alleged employer would be employees of the company only. Honsa v. Tombigbee Transp. Corp., 141 S.W.3d 540, 2004 Tenn. LEXIS 632 (Tenn. 2004), rehearing denied, — S.W.3d —, 2004 Tenn. LEXIS 826 (Tenn. Aug. 18, 2004).

26. — —Limitations.

Since subdivision (a)(2) (now (a)(3)(A)) expressly includes a minor within the definition of an employee and § 50-6-224(4) (now 50-6-224(a)(4)), expressly excludes minors from those entitled to extension of the statute of limitations for reasons of physical or mental incapacity to assert their rights, a minor is subject to the one year statute of limitations with reference to making his claim under the Workers' Compensation Law. Franse v. Knox Porcelain Corp., 171 Tenn. 49, 100 S.W.2d 647, 1936 Tenn. LEXIS 59 (1937).

27. —Associations — Status of Members.

Where incorporated rural education association paid plaintiff hourly wages before she signed paper stating that she was a member of the association and that thereafter she was to be paid “merely for the purpose of subsistence,” that she was not an employee and that any sums she received were not to constitute wages, but where she was continually paid a wage thereafter until the time of her injury, plaintiff was an employee of the association and the association was not relieved from liability under the compensation statute. Schroader v. Rural Educational Ass'n, 33 Tenn. App. 36, 228 S.W.2d 491, 1950 Tenn. App. LEXIS 84 (Tenn. Ct. App. 1950).

28. —Corporate Officers.

Prior to the 1963 amendment subdivision (a)(2) (now (a)(3)(A)) did not include the words “the president, any vice president, secretary, treasurer, or other executive officer of a corporate employer” in the definition of “employee.” Cases decided prior to such amendment and determining whether the specific duties of such officials would constitute them employees are Alsup v. Murfreesboro Bread & Ice Cream Co., 165 Tenn. 591, 56 S.W.2d 746, 1932 Tenn. LEXIS 91 (1933); Alperin v. Eagle Indem. Co., 169 Tenn. 215, 84 S.W.2d 101, 1935 Tenn. LEXIS 34 (1935).

29. —Municipal Officers and Employees.

A policeman of a city is a civil officer and not “under any contract of hire” so as to be an employee. Cornett v. Chattanooga, 165 Tenn. 563, 56 S.W.2d 742, 1932 Tenn. LEXIS 86 (1933); Woods v. La Follette, 185 Tenn. 655, 207 S.W.2d 572, 1947 Tenn. LEXIS 370 (1947). However, see insurance company would cover a police officer when the provisions of the contract clearly provided for such coverage.

Where the injured employee seeking compensation was employed and paid by the federal emergency relief administration, and received the injury to his eye when engaged in emergency work, in the extension of a street, under a foreman furnished by the city, he is not entitled to compensation under the Workers' Compensation Act as against the city, since the work was being prosecuted by the federal emergency relief administration. Shelton v. Greeneville, 169 Tenn. 366, 87 S.W.2d 1016, 1935 Tenn. LEXIS 56 (1935).

Where there was material evidence to sustain the finding of the trial judge that the primary duties of municipal employee suing the municipality under the Workers' Compensation Law were those of a street superintendent or foreman and that he was acting in that capacity at the time of the accidental injury such finding was upheld even though there was some evidence in the record to show that petitioner served as an arresting officer or policeman. Shelbyville v. Hamilton, 170 Tenn. 297, 95 S.W.2d 43, 1935 Tenn. LEXIS 136 (1936).

30. —Stockholder of Employer.

The fact that an employee was a stockholder in the employer corporation is immaterial on question of his right to compensation. Alsup v. Murfreesboro Bread & Ice Cream Co., 165 Tenn. 591, 56 S.W.2d 746, 1932 Tenn. LEXIS 91 (1933).

31. —Partners.

A member of a partnership who receives wages is not an employee. An employee must be under the control of the employer. Gebers v. Murfreesboro Laundry Co., 159 Tenn. 51, 15 S.W.2d 737, 1928 Tenn. LEXIS 61 (1929).

Where decedent mined coal under an agreement of mutual understanding of partnership or joint venture, and each controlled his own work, and after the expenses were determined and deducted from the proceeds of the coal, the balance was divided up between the members in accordance with the amount of time each worked, deceased was not an employee. Tidwell v. Walden, 205 Tenn. 705, 330 S.W.2d 317, 1959 Tenn. LEXIS 411 (1959).

32. —Payment of Social Security Tax — Effect.

The payment by the employer of social security tax on the earnings of a traveling salesman was a recognition of the fact that such person was an employee so that the employer was in no position to deny the fact of employment. Carter v. Hodges, 175 Tenn. 96, 132 S.W.2d 211, 1939 Tenn. LEXIS 16 (1939).

Lumber company which provided plans and specifications for house, guaranteed owner that house would be erected to FHA or GI specifications, paid for labor on house, withheld social security and withholding taxes for all laborers except injured worker, relied on mechanics' and materialmen's statute, made statements at various times that it was the builder and furnisher and supervised job from beginning to end was employer of injured workman where proof showed that there was no difference between such worker and the other employees working on construction of the house except for fact that social security and withholding taxes were not withheld as to him. Kamarad v. Parkes, 201 Tenn. 566, 300 S.W.2d 922, 1957 Tenn. LEXIS 335 (1957).

The fact that neither social security taxes nor withholding taxes are deducted is not controlling on question of whether or not claimant is an employee. Seals v. Zollo, 205 Tenn. 463, 327 S.W.2d 41, 1959 Tenn. LEXIS 384 (1959).

33. —Carrying Compensation Insurance — Effect.

Where an employer carries workers' compensation insurance and the earnings of the employee are included in computing the premiums paid for such insurance, neither the employer nor the insurer is in a position to question the relationship of the parties under the compensation law. Employers' Liability Assurance Corp. v. Warren, 172 Tenn. 403, 112 S.W.2d 837, 1937 Tenn. LEXIS 89 (1938) (decision under Kentucky statute); Carter v. Hodges, 175 Tenn. 96, 132 S.W.2d 211, 1939 Tenn. LEXIS 16 (1939).

Fact that building corporation included window washer in social security list which insurance company used to determine premium on policy covering employees of corporation was a factor to be considered in determining whether window washer was an employee or an independent contractor. Brademeyer v. Chickasaw Bldg. Co., 190 Tenn. 239, 229 S.W.2d 323, 1950 Tenn. LEXIS 474 (1950).

Independent contractor was not covered by workers' compensation although deductions for workers' compensation insurance were deducted from checks paid to independent contractor. Barnes v. National Mortg. Co., 581 S.W.2d 957, 1979 Tenn. LEXIS 442 (Tenn. 1979).

34. —Admissibility of Evidence.

Testimony of municipal officers and others tending to show the character of work required of petitioner and petitioner's contract of employment with town was admissible in suit by municipal employee against town under the Workers' Compensation Law as showing that petitioner was an employee subject to the statute rather than a policeman with the weight of such testimony being for the trial judge. Shelbyville v. Hamilton, 170 Tenn. 297, 95 S.W.2d 43, 1935 Tenn. LEXIS 136 (1936).

35. Maximum Total Benefit.

The 1985 amendment to T.C.A. § 50-6-208(b)(2) does not authorize an exception to the maximum total benefit limitation of T.C.A. § 50-6-102 so that an employee who has been awarded temporary total disability benefits and permanent total disability benefits can recover more than the statutory maximum. Smith v. Liberty Mut. Ins. Co., 762 S.W.2d 883, 1988 Tenn. LEXIS 266 (Tenn. 1988).

When an injury is confined to a scheduled member, ordinarily only the statutory benefits for that particular member can be awarded. Onley v. National Union Fire Ins. Co., 785 S.W.2d 348, 1990 Tenn. LEXIS 81 (Tenn. 1990).

Award of permanent total disability benefits under T.C.A. § 50-6-207(4)(A)(i) are payable to age 65 without regard to the monetary cap imposed by the maximum total benefit provisions of T.C.A. § 50-6-102. Love v. American Olean Tile Co., 970 S.W.2d 440, 1998 Tenn. LEXIS 296 (Tenn. 1998).

Awards of permanent and total disability are not subject to the monetary cap imposed by the 400 week maximum total benefit provision of T.C.A. § 50-6-102. Bomely v. Mid-America Corp., 970 S.W.2d 929, 1998 Tenn. LEXIS 298 (Tenn. 1998).

Because the statutory definition of maximum total benefit exempts permanent total disability awards from the 400 week limitation, such benefits are to be paid until age 65 under T.C.A. § 50-6-207(4)(A)(i) without regard to the monetary cap imposed by the maximum total benefit provision of T.C.A. § 50-6-102. Bomely v. Mid-America Corp., 970 S.W.2d 929, 1998 Tenn. LEXIS 298 (Tenn. 1998).

As awards of permanent total disability under T.C.A. § 50-6-207(4)(A)(i) are not subject to the monetary cap imposed by the definition contained in T.C.A. § 50-6-102, once the employee was reclassified as being “100 percent permanently and totally disabled,” the employer and the workers' compensation insurer were liable for the total disability award without any credit for temporary total disability benefits previously paid to the employee. Vinson v. UPS, 92 S.W.3d 380, 2002 Tenn. LEXIS 706 (Tenn. 2002).

The 400-week statutory limitation applied to temporary total disability benefits as the statutory definition of maximum total benefit was clear; the only category of disability benefits exempted from this 400-week limitation was permanent total disability benefits and the maximum total benefit 400-week limitation applied to temporary total disability benefits. Thus, trial court erred in ordering the insurer to pay temporary total disability benefits in excess of the statutory 400-week limitation. Wausau Ins. Co. v. Dorsett, 172 S.W.3d 538, 2005 Tenn. LEXIS 660 (Tenn. 2005).

36. Maximum Weekly Benefit.

In the case of an employee who died with dependents in February 1993, the “maximum weekly benefit” was determined based upon the employee's average weekly wage; not until 662/3% of the employee's average weekly wage equals or exceeds 78% of the state's average weekly wage would that figure be used to determine the amount of compensation benefits payable to the dependents. Spencer v. Towson Moving & Storage, 922 S.W.2d 508, 1996 Tenn. LEXIS 306 (Tenn. 1996).

In a workers'  compensation case where the employee alleged she sustained injuries to her ankle and knee while lifting a patient, the trial court awarded 291 weeks of temporary disability benefits and a 65% permanent partial disability to the leg which resulted in a total award of 421 weeks of benefits. The trial court erred by awarding benefits in excess of the statutory maximum set out in T.C.A. § 50-6-102 because the employee's recovery of permanent and temporary disability benefits was subject to the 400-week maximum. Collier v. Life Care Ctrs. of Collegedale, — S.W.3d —, 2012 Tenn. LEXIS 736 (Tenn. Oct. 8, 2012), aff'd, — S.W.3d —, 2012 Tenn. LEXIS 737 (Tenn. Oct. 8, 2012).

37. Average Weekly Wages.

The court must ascertain the average weekly wages of petitioner by past earnings and not by what he may earn in the future. White v. Pinkerton Co., 155 Tenn. 229, 291 S.W. 448, 1926 Tenn. LEXIS 40 (1927); Armstrong v. Spears, 216 Tenn. 643, 393 S.W.2d 729, 1965 Tenn. LEXIS 610 (1965).

The three methods of ascertaining the average weekly wage discussed. White v. Pinkerton Co., 155 Tenn. 229, 291 S.W. 448, 1926 Tenn. LEXIS 40 (1927); Bragg's Quarry v. Smith, 161 Tenn. 682, 33 S.W.2d 87, 1930 Tenn. LEXIS 55 (1930).

Ascertainment of average weekly wages as a basis of workers' compensation where employed over a year prior to the injury is constitutional under equal protection and due process clauses of U.S. Const., amend. 14 and Tenn. Const., art. I, § 8, where total wages for year are divided by 52, less weeks involuntarily laid off but not less weeks voluntarily laid off such as strike for employee's benefit. Hartley v. Liberty Mut. Ins. Co., 197 Tenn. 504, 276 S.W.2d 1, 1954 Tenn. LEXIS 519 (1954).

The average weekly wage of a claimant in workers' compensation must be ascertained by past earnings and not by what he may earn in the future. Armstrong v. Spears, 216 Tenn. 643, 393 S.W.2d 729, 1965 Tenn. LEXIS 610 (1965).

Where employee was injured while engaged in part time work of unloading truck for carrier as loaned employee, award would be based on employee's part time earnings rather than on basis of standard hourly wage. Johnson v. Aero Mayflower Transit Co., 221 Tenn. 219, 425 S.W.2d 757, 1968 Tenn. LEXIS 458 (1968).

The compensation award is determined by the amount of wages the employee earns and not by the rate of the wage. Johnson v. Aero Mayflower Transit Co., 221 Tenn. 219, 425 S.W.2d 757, 1968 Tenn. LEXIS 458 (1968).

A computation of the “average weekly wage” of a part-time employee, such as the plaintiff, must be based upon his actual part-time earnings rather than upon the basis of the standard hourly wage or the standard work week of 40 hours. McKinney v. Feldspar Corp., 612 S.W.2d 157, 1981 Tenn. LEXIS 405 (Tenn. 1981).

Except in those cases where the claimant earns a given sum for a normal week, actual wages should be used in computing the claimant's average weekly wages. Russell v. Genesco, Inc., 651 S.W.2d 206, 1983 Tenn. LEXIS 653 (Tenn. 1983).

In computing an injured employee's average weekly wage, the court considers only the earnings of the injured employee in the employment in which he was working when injured. Acklie v. Carrier, 785 S.W.2d 355, 1990 Tenn. LEXIS 69 (Tenn. 1990).

The value of fringe benefits is not included in the calculation of an employee's average weekly wage. Pollard v. Knox County, 886 S.W.2d 759, 1994 Tenn. LEXIS 295 (Tenn. 1994).

Trial court erred in ruling that weeks an injured employee spent on strike should be excluded from the employee's average weekly wage because time spent away from work due to a strike was a voluntary absence. Goodman v. HBD Indus., 208 S.W.3d 373, 2006 Tenn. LEXIS 991 (Tenn. 2006), cert. denied, 550 U.S. 918, 127 S. Ct. 2130, 167 L. Ed. 2d 863, 2007 U.S. LEXIS 4558 (2007).

38. —What Constitutes Earnings.

The earnings of an employee include anything received by him under the terms of his employment contract from which he realizes economic gain. P & L Constr. Co. v. Lankford, 559 S.W.2d 793, 1978 Tenn. LEXIS 702 (Tenn. 1978).

Where an employee-shareholder foregoes any direct monetary compensation for his labors, a measure of his earnings would be the compensation paid by the same company to another employee performing the same or similar duties. P & L Constr. Co. v. Lankford, 559 S.W.2d 793, 1978 Tenn. LEXIS 702 (Tenn. 1978).

In certain situations involving closely held corporations, an employee-shareholder's earnings may include the implicit increase in the value of the stock held by such employee-shareholder which occurs when he foregoes any direct monetary compensation for his labors. P & L Constr. Co. v. Lankford, 559 S.W.2d 793, 1978 Tenn. LEXIS 702 (Tenn. 1978).

Gifts are not “earnings” within the meaning of of T.C.A. § 50-6-102. Jones v. Crenshaw, 645 S.W.2d 238, 1983 Tenn. LEXIS 604 (Tenn. 1983).

39. —Wages for Year as Basis of Computation.

It is only when the employment has been regular and continuous for a year or longer that the average weekly wage is determined by dividing the total wages received during the year by 52. Bragg's Quarry v. Smith, 161 Tenn. 682, 33 S.W.2d 87, 1930 Tenn. LEXIS 55 (1930).

In a compensation proceeding, where the chancellor found that the injured employee's total earnings for 52 weeks were $1,030.74, and during the year preceding the injury decedent lost six and 5/7 weeks of work, his average weekly wage was $22.76, on which compensation was properly based. Wilmoth v. Phoenix Utility Co., 168 Tenn. 95, 75 S.W.2d 48, 1934 Tenn. LEXIS 22 (1934).

40. —Time Lost as Incident to Employment.

Where worker had been employed regularly and continuously for several years, and such employment varied from week to week as to the number of hours per day and days per week, but since variation in weekly wages and amount of time worked per week was a normal and recognized incident of the employment and not due to chance happenings or uncontemplated circumstances, the proper test for determining worker's weekly wage was a division of the total annual amount earned by 52. Carter v. Victor Chemical Works, 171 Tenn. 141, 101 S.W.2d 462, 1936 Tenn. LEXIS 73 (1937).

Time lost by chance or accident is deducted, but time lost because of incidental events common and natural to the type or kind of employment, is not deducted. Strikes and “mine creep” are natural incidents of coal mining, and injured employee's average weekly wage was computed by dividing wages for the 52 weeks immediately preceding injury by 52, without deductions for 10 weeks lost because of a strike and “mine creep.” New Jellico Coal Co. v. Kenner, 172 Tenn. 185, 110 S.W.2d 476, 1937 Tenn. LEXIS 68 (1937).

41. —Loaned Employee.

Deceased was an employee for 52 week period prior to death though he was loaned to another company for three weeks during that period. Wilmoth v. Phoenix Utility Co., 168 Tenn. 95, 75 S.W.2d 48, 1934 Tenn. LEXIS 22 (1934).

42. —Wages Divided by Weeks Employed.

Average weekly wage of grocery store clerk who worked during holidays and Saturday afternoons and nights for 10 weeks was properly computed by dividing the total wages received by number of weeks employed. White v. Pinkerton Co., 155 Tenn. 229, 291 S.W. 448, 1926 Tenn. LEXIS 40 (1927).

Average wage determined by dividing wages received by number of weeks worked. Mayberry v. Bon Air Chemical Co., 160 Tenn. 459, 26 S.W.2d 148, 1929 Tenn. LEXIS 122 (1930).

Where employment covered a period of several years but the employee did not work regularly and continuously, compensation will be based on average weekly wages actually earned during time of actual employment, the statute not specifically covering such a case. Bragg's Quarry v. Smith, 161 Tenn. 682, 33 S.W.2d 87, 1930 Tenn. LEXIS 55 (1930).

Where deceased lost six and 5/7 weeks out of 52 week period prior to death, proper method of determining average weekly wage was to divide total amount earned by 45 and 2/7 weeks. Wilmoth v. Phoenix Utility Co., 168 Tenn. 95, 75 S.W.2d 48, 1934 Tenn. LEXIS 22 (1934).

Where injured employee worked intermittently for a total of 14 weeks during the year preceding his injury, with the time worked being dependent on the amount of work his employer had available, such employee was not regularly employed within the meaning of this section and his average weekly wages should have been determined by dividing the total amount earned during the year by the number of weeks worked. Toler v. Nashville, C. & S. L. Ry., 173 Tenn. 378, 117 S.W.2d 751, 1937 Tenn. LEXIS 36 (1938).

Where time lost from work was not because of the fault of employee but because of shortage of material or lack of orders, average weekly wage would be determined on the basis of the number of weeks actually worked. Bryant v. McAllister, 202 Tenn. 654, 308 S.W.2d 412, 1957 Tenn. LEXIS 451 (1957).

Where injured employee was only employed part-time, the correct method of computing his average weekly wage was to divide the total wages received during the year by the number of weeks during which the employee received wages. Gaw v. Raymer, 553 S.W.2d 576, 1977 Tenn. LEXIS 584 (Tenn. 1977).

The average weekly wage of a part-time employee is found by dividing the total wages received during the year by the number of weeks during which the employee received wages. McKinney v. Feldspar Corp., 612 S.W.2d 157, 1981 Tenn. LEXIS 405 (Tenn. 1981).

The proper method of computing the average wages of a regular employee is to total his earnings and divide by 52, and in deciding which “lost” days can be deducted from the 52 weeks, only sickness, other disabilities and fortuitous events can be considered. Russell v. Genesco, Inc., 651 S.W.2d 206, 1983 Tenn. LEXIS 653 (Tenn. 1983).

43. —Wages of Person of Same Grade in Same Work.

A finding by the trial court that, because of the short duration of employment, it was impracticable to calculate compensation otherwise than by having regard to the available wages received by a person of the same grade, employed at the same work by the same employer, is one of fact binding on the supreme court when not appealed from. United States Fidelity & Guaranty Co. v. McBride, 165 Tenn. 580, 56 S.W.2d 736, 1932 Tenn. LEXIS 89 (1933).

Where employee worked only a few weeks before injury, finding as to amount of compensation due such employee based on wages of employee during such period including overtime and Sunday work was improper, and such finding should have been based on the average weekly wages of other employees in the same grade of work and class of employment. United States Rubber Products Co. v. Cannon, 172 Tenn. 665, 113 S.W.2d 1184, 1937 Tenn. LEXIS 112 (Tenn. Mar. 7, 1938).

Where deceased railroad switchman who worked only a day and a half during the preceding year was working under the “extra board” system when killed and evidence showed that switchmen working under such system averaged 20 days per month, the average weekly wage of other switchmen working under the system was to be used in determining compensation under the statute. A. G. S. R. Co. v. Wright, 175 Tenn. 138, 133 S.W.2d 457, 1939 Tenn. LEXIS 23 (1939).

44. —Evidence of Average Weekly Wage.

Where injured employee testified that his earnings had been $16.50 per week, agreement of employer and employee upon payment of $8.25 per week as compensation and payment thereof for 13 weeks afforded some evidence of employee's average weekly earnings for 52 weeks preceding injury. Cambria Coal Mining Co. v. Wilson, 156 Tenn. 64, 299 S.W. 811, 1927 Tenn. LEXIS 84 (1927).

Where plaintiff was paid a gross salary out of which he had to deduct his expenses, it was impossible to use any of the methods described in this section to determine his average weekly wage, and therefore resort to the average weekly amount being earned by a person in the same grade employed in the same class of employment in the same district was proper. American Mut. Liability Ins. Co. v. Bradshaw, 568 S.W.2d 97, 1978 Tenn. LEXIS 608 (Tenn. 1978).

Where the eight weeks during which the workers'  compensation claimant was on a leave of absence constituted lost days due to sickness or disability, those days and the disability benefits received, those days were properly excluded by the trial court from the computation of the claimant's average weekly wage under T.C.A. § 50-6-102. Cantrell v. Carrier Corp., 193 S.W.3d 467, 2006 Tenn. LEXIS 447 (Tenn. May 30, 2006).

45. —Bonuses and Allowances.

Bonus received by refiner of aluminum ore for doing a certain amount of work and working a certain number of days each week was a part of his compensation to be included in the computation of his average weekly pay. Otherwise the employer might escape his burdens by paying small wages and large bonuses. Moss v. Aluminum Co. of America, 152 Tenn. 249, 276 S.W. 1052, 1925 Tenn. LEXIS 69 (1925).

Provision that “wherever allowances of any character made to an employee in lieu of wages are specified as part of the wage contract, they shall be deemed a part of his earnings” is inapplicable where bonuses are not claimed to have been made in lieu of wages, the only question being whether the bonus was a part of the wages. Moss v. Aluminum Co. of America, 152 Tenn. 249, 276 S.W. 1052, 1925 Tenn. LEXIS 69 (1925).

“Meals” and “tips” are not part of the wage contract unless specifically made a part by the contract of employment. Crane Co. v. Jamieson, 192 Tenn. 41, 237 S.W.2d 546, 1951 Tenn. LEXIS 378 (1951).

When it is within the contemplation of the parties that tips received by an employee should be retained by him as part of his compensation such tips should be taken into account in determining average weekly wages. Bryson v. Benton, 217 Tenn. 116, 395 S.W.2d 794, 1965 Tenn. LEXIS 523 (1965).

Where employer and waitress in restaurant both treated tips as part of wages, such tips were “in lieu of wages” and within meaning of this section and were to be taken into account in computing average weekly wages. Bryson v. Benton, 217 Tenn. 116, 395 S.W.2d 794, 1965 Tenn. LEXIS 523 (1965).

46. Injury by Accident.

The word “accident” implies that the injury must partake of the unusual, casual, or fortuitous. Meade Fiber Corp. v. Starnes, 147 Tenn. 362, 247 S.W. 989, 1922 Tenn. LEXIS 48 (1923).

An injury need not be traumatic, it may be accidental whether occasioned by heat, germs or more abrupt or perceptible physical force. Whether an infection is an accidental injury must be determined on the facts of the case. Hartford Acci. & Indem. Co. v. Hay, 159 Tenn. 202, 17 S.W.2d 904, 1928 Tenn. LEXIS 76 (1929); Sears-Roebuck & Co. v. Starnes, 160 Tenn. 504, 26 S.W.2d 128, 1929 Tenn. LEXIS 126 (1930).

The statute is only applicable to cases of accidental injury, which is one unforeseen, unexpected and fortuitous. An element of unexpected casualty must be present. Other injuries are for common law action. Morrison v. Tennessee Consol. Coal Co., 162 Tenn. 523, 39 S.W.2d 272, 1930 Tenn. LEXIS 118 (1931).

An award is sustainable if death has been the result of, or shall at least have been substantially contributed to by, a compensable injury. Lenoir Car Works v. Hill, 163 Tenn. 578, 44 S.W.2d 321, 1931 Tenn. LEXIS 151 (1931).

The word “injury” as used in this chapter is synonymous with the word “accident” as used herein. Franse v. Knox Porcelain Corp., 171 Tenn. 49, 100 S.W.2d 647, 1936 Tenn. LEXIS 59 (1937).

Employee who for 18 months was required to stand over a melting pot in connection with his duties, and on specified date became sick, was not entitled to recover compensation for alleged ailment, since ailment was the gradual result of breathing fumes for a period of 18 months, and not the result of a single occurrence. Gabbard v. Proctor & Gamble Defense Corp., 184 Tenn. 464, 201 S.W.2d 651, 1947 Tenn. LEXIS 398 (1947).

An accident is an event or happening in the nature of a misfortune, casual or fortuitous. Benjamin F. Shaw Co. v. Musgrave, 189 Tenn. 1, 222 S.W.2d 22, 1949 Tenn. LEXIS 394 (1949); Railway Express Agency, Inc. v. Clark, 194 F.2d 29, 1952 U.S. App. LEXIS 2725 (6th Cir. Tenn. 1952).

Employee was not entitled to recover for loss of vision due to removal of eye after rock struck the eye where medical evidence showed that removal of eye was due to diseased blood vessel. Craig v. Marquette Cement Mfg. Co., 190 Tenn. 234, 229 S.W.2d 148, 1950 Tenn. LEXIS 473 (1950).

Neurosis due to being struck on neck by employer's truck while engaged in moving barricade was compensable. Buck & Simmons Auto & Electric Supply Co. v. Kesterson, 194 Tenn. 115, 250 S.W.2d 39, 1952 Tenn. LEXIS 358 (1952).

Stroke sustained at home by employee in failing health after doing normal work during day was not compensable though he had headache on the job. McMahan v. Travelers Ins. Co., 114 F. Supp. 286, 1953 U.S. Dist. LEXIS 3960 (D. Tenn. 1953).

Where deceased suffered a heart attack and died while unloading plumbing fixtures, his death was attributable to an accidental injury arising out of and in the course of his employment and was compensable under this act. Patterson Transf. Co. v. Lewis, 195 Tenn. 474, 260 S.W.2d 182, 1953 Tenn. LEXIS 417 (1953).

Under Tennessee law, a heart attack brought about or aggravated by the exertion of work of an employee is an accident within the meaning of this statute. Aetna Casualty & Surety Co. v. Johnson, 278 F.2d 200, 1960 U.S. App. LEXIS 4678 (6th Cir. Tenn. 1960).

An accident is generally an unlooked for mishap, an untoward event, which is not expected or designed. Brown Shoe Co. v. Reed, 209 Tenn. 106, 350 S.W.2d 65, 1961 Tenn. LEXIS 353 (1961).

Gradually occurring traumatic injury to ulnar nerve as a result of repeated movement of such nerve in and out of groove it normally occupied while employee was operating machine as required by his employment was an accidental injury and not an occupational disease. Brown Shoe Co. v. Reed, 209 Tenn. 106, 350 S.W.2d 65, 1961 Tenn. LEXIS 353 (1961).

“Injury” as applied to a personal injury to a human being includes whatever lesion or change to any part of the system produces harm or lessened facility of the natural use of any bodily activity or capability. Brown Shoe Co. v. Reed, 209 Tenn. 106, 350 S.W.2d 65, 1961 Tenn. LEXIS 353 (1961).

If ordinary exertion or usual strain produces an unusual result, the resulting injury is by accident and is compensable. Huey Bros. Lumber Co. v. Kirk, 210 Tenn. 170, 357 S.W.2d 50, 1962 Tenn. LEXIS 420 (1962); Central Motor Express, Inc. v. Burney, 214 Tenn. 118, 377 S.W.2d 947, 1964 Tenn. LEXIS 456 (1964).

When a condition has developed gradually over a period of time resulting in a definite work-connected, unexpected, fortuitous injury, it is an “accident” within the terms of the statute. Central Motor Express, Inc. v. Burney, 214 Tenn. 118, 377 S.W.2d 947, 1964 Tenn. LEXIS 456 (1964).

Where employee gradually developed a protruded or herniated disc as a result of strain or exertion involved in lifting heavy freight, such injury was compensable. Central Motor Express, Inc. v. Burney, 214 Tenn. 118, 377 S.W.2d 947, 1964 Tenn. LEXIS 456 (1964).

An accidental injury is an unusual, fortuitous or unexpected happening causing an injury which is accidental in character. Travelers Ins. Co. v. Googe, 217 Tenn. 272, 397 S.W.2d 368, 1965 Tenn. LEXIS 543 (1965); Travelers Ins. Co. v. Evans, 221 Tenn. 199, 425 S.W.2d 611, 1968 Tenn. LEXIS 457 (1968); Electro--Voice, Inc. v. O'Dell, 519 S.W.2d 395, 1975 Tenn. LEXIS 705 (Tenn. 1975).

Where handling of heavy hides in tanning operation resulted in disability from pressure on nerve of hand of employee, such disability constituted injury by accident. A. C. Lawrence Leather Co. v. Britt, 220 Tenn. 444, 414 S.W.2d 830, 1967 Tenn. LEXIS 425 (1967), rehearing denied, 220 Tenn. 457, 418 S.W.2d 660, 1967 Tenn. LEXIS 426 (1967).

The courts will not attempt to lay down an exclusive definition of the word “accident” although they will observe certain boundaries including the requirement that the injury must be unexpected. Kroger Co. v. Johnson, 221 Tenn. 649, 430 S.W.2d 130, 1967 Tenn. LEXIS 363 (1967).

Severe cramping and pain in feet and legs which resulted from standing and lifting were conditions which would normally be expected to develop in person having flat feet and such cramping and pain would not be considered as result of injury by accident to employee having such foot condition even though standing and lifting was part of his employment. Kroger Co. v. Johnson, 221 Tenn. 649, 430 S.W.2d 130, 1967 Tenn. LEXIS 363 (1967).

The mere manifestation of a heart condition without proof of any strain or over-exertion at work does not show an accidental injury even though the development of the heart disease may have been hastened by the employee's usual and ordinary work. Travelers Ins. Co. v. Evans, 221 Tenn. 199, 425 S.W.2d 611, 1968 Tenn. LEXIS 457 (1968); Chapman v. Aetna Casualty & Surety Co., 221 Tenn. 376, 426 S.W.2d 760, 1968 Tenn. LEXIS 470 (1968).

When an employee's work exposes him to an elemental force and requires him to continue to work under the risk of the hazard which the elemental force creates, the employee is to be compensated for injuries which result therefrom. Globe Co. Inc. v. Hughes, 223 Tenn. 37, 442 S.W.2d 253, 1969 Tenn. LEXIS 387 (1969).

An employee who was required to assume a certain posture by her employment which increased the pain of a previously suffered injury which was not related to her employment, did not sustain an “accident” within the meaning of this section. Boling v. Raytheon Co., 223 Tenn. 528, 448 S.W.2d 405, 1969 Tenn. LEXIS 439 (1969).

An accidental injury is one which cannot be reasonably anticipated, is unexpected and is precipitated by unusual combinations of fortuitous circumstances. A. C. Lawrence Leather Co. v. Loveday, 224 Tenn. 317, 455 S.W.2d 141, 1970 Tenn. LEXIS 329 (1970).

If the usual strain or exertion of work produces an unusual result, the resulting injury is by accident. A. C. Lawrence Leather Co. v. Loveday, 224 Tenn. 317, 455 S.W.2d 141, 1970 Tenn. LEXIS 329 (1970).

Where employee was required to assume an unusual position in digging a ditch and such strain resulted in back injury, employee suffered injury by accident. A. C. Lawrence Leather Co. v. Loveday, 224 Tenn. 317, 455 S.W.2d 141, 1970 Tenn. LEXIS 329 (1970).

Compensation is allowable for conditions which do not occur instantaneously as the result of one accident but develop gradually over varying periods of time resulting from repeated work related incidents. St. Paul Ins. Co. v. Waller, 524 S.W.2d 478, 1975 Tenn. LEXIS 666 (Tenn. 1975).

Where the usual strain or exertion of work causes an unusual result, such an injury is “by accident” under this section. Continental Ins. Co. v. Dowdy, 560 S.W.2d 619, 1978 Tenn. LEXIS 570 (Tenn. 1978).

“Injury by accident” does not embrace every stress or strain of daily living or every undesirable experience encountered in carrying out the duties of a contract of employment. Allied Chemical Corp. v. Wells, 578 S.W.2d 369, 1979 Tenn. LEXIS 409 (Tenn. 1979).

Workers' compensation coverage is not as broad as general, comprehensive health and accident insurance. Allied Chemical Corp. v. Wells, 578 S.W.2d 369, 1979 Tenn. LEXIS 409 (Tenn. 1979).

A very liberal interpretation has been given in this state to the statutory requirement of “injury by accident.” Allied Chemical Corp. v. Wells, 578 S.W.2d 369, 1979 Tenn. LEXIS 409 (Tenn. 1979); Mays v. United States Fed. & Guar. Co., 672 S.W.2d 773, 1984 Tenn. LEXIS 819 (Tenn. 1981).

47. —Failure to Show Compensable Accident.

Where plaintiff claimed that long hours and work stress of a general nature exacerbated his heart condition, he failed to show that he suffered a compensable “accident” within the meaning of the Workers' Compensation Law, T.C.A. § 50-6-101 et seq.Sexton v. Scott County, 785 S.W.2d 814, 1990 Tenn. LEXIS 122 (Tenn. 1990).

48. —False Medical Information.

False medical information will bar recovery under the workers' compensation statute if employer shows: (1) That the employee knowingly and willfully made a false representation of his physical condition; (2) That the employer relied on the false representation and that this reliance was a substantial factor in the decision to hire; and (3) That there is a causal connection between the false representation and the injury subsequently suffered by the employee. Bane v. Daniel Constr. Co., 793 S.W.2d 256, 1990 Tenn. LEXIS 278 (Tenn. 1990).

49. —Causal Connection — Meaning.

The burden rests upon the employee to show a causal connection between his injury and his employment, but by “causal connection” is meant not proximate cause as used in the law of negligence, but cause in the sense that the accident had its origin in the hazards to which the employment exposed the employee while doing his work. Tapp v. Tapp, 192 Tenn. 1, 236 S.W.2d 977, 1951 Tenn. LEXIS 374 (1951).

There must be a causal connection between a worker's accidental injury and his death and the nature of his employment. McCann Steel Co. v. Carney, 192 Tenn. 94, 237 S.W.2d 942, 1951 Tenn. LEXIS 386 (1951).

Where doctor testified that employee complained of increasing pain in abdomen following a fall, a ruptured appendix was causally related to the fall, even though there was no direct evidence that fall actually caused the ruptured appendix, since absolute certainty was not required to support award. Great American Indem. Co. v. Friddell, 198 Tenn. 360, 280 S.W.2d 908, 1955 Tenn. LEXIS 381 (1955).

Question of whether accident suffered by workman initiated gall bladder and liver trouble of worker or merely aggravated it was immaterial where there was a causal relation between the initiating accident and the resultant disability and the inception of plaintiff's disability was assignable to the accident. Kitts v. American Mut. Liability Ins. Co., 133 F. Supp. 937, 1955 U.S. Dist. LEXIS 2971 (D. Tenn. 1955).

Where medical evidence did not establish causal connection between injury to truck driver's hip and side, award for total and permanent disability caused by lung cancer was not justified. American Casualty Co. v. Ball, 211 Tenn. 608, 366 S.W.2d 773, 1963 Tenn. LEXIS 384 (1963).

Question of causal connection between injury and employment is one of fact. Cas Walker's Cash Stores, Inc. v. Livesay, 215 Tenn. 306, 385 S.W.2d 745, 1965 Tenn. LEXIS 618 (1965).

There must be a causal connection between the worker's accidental injury or death and the nature of his employment. Armstrong v. Liles Constr. Co., 215 Tenn. 678, 389 S.W.2d 261, 1965 Tenn. LEXIS 641 (1965); Globe Co. Inc. v. Hughes, 223 Tenn. 37, 442 S.W.2d 253, 1969 Tenn. LEXIS 387 (1969).

Causal connection is cause in the sense the accident had its origins in the hazards to which the employment exposed the employee while doing his work. Lawrenceburg v. Nelson, 219 Tenn. 177, 407 S.W.2d 674, 1966 Tenn. LEXIS 516 (1966).

The question of causal connection is one of fact and review of trial court on this point will only be for sole purpose of determining if there is material evidence to support findings. Poe v. E. I. Dupont Denemours & Co., 224 Tenn. 683, 462 S.W.2d 480, 1970 Tenn. LEXIS 392 (1970).

Where employee fainted and was nauseous while being treated for an on the job injury to her ankle and shortly after she felt stiffness of the neck, the evidence was sufficient to establish a causal connection between stress during treatment of the ankle injury and the rupture of a pre-existent aneurism. Elmore's Variety Store v. White, 553 S.W.2d 350, 1977 Tenn. LEXIS 581 (Tenn. 1977).

Where employee had recently assumed a new job involving heavier work, and experienced a sudden pain in her shoulder while flinging a pair of overalls onto a rack, which was a usual action required in her new job, there was sufficient evidence of a causal connection between her injury and her work. Continental Ins. Co. v. Dowdy, 560 S.W.2d 619, 1978 Tenn. LEXIS 570 (Tenn. 1978).

Where the cause of a fall is due to some condition personal to the employee, and is not causally related to some hazard incident to the conditions of the employment, injury resulting therefrom is not compensable under workers' compensation statutes. Dickerson v. Trousdale Mfg. Co., 569 S.W.2d 803, 1978 Tenn. LEXIS 628 (Tenn. 1978).

In many of the cases where recovery has been allowed for myocardial infarctions, although not in all, some unusual or sudden event involving emotional stress, fright or shock could be pointed to as the precipitating event. In others, the statutory provisions did not include a requirement of injury by accident. Allied Chemical Corp. v. Wells, 578 S.W.2d 369, 1979 Tenn. LEXIS 409 (Tenn. 1979).

When emotional stress that accompanies the performance of the employment contract is “within the bounds of the ups and downs of emotional normal human experience”, courts frequently decline to impose liability upon employers for conditions resulting from “cumulated” strain. Allied Chemical Corp. v. Wells, 578 S.W.2d 369, 1979 Tenn. LEXIS 409 (Tenn. 1979).

Absent either physical exertion or some acute, sudden or unexpected emotional stress directly attributable to employment, an industrial accident should not be deemed to have occurred, even though worry, anxiety or emotional stress of a general nature may have preceded the onset of a myocardial infarction. Allied Chemical Corp. v. Wells, 578 S.W.2d 369, 1979 Tenn. LEXIS 409 (Tenn. 1979).

Mental stimulus, such as fright, shock or excessive unexpected anxiety resulting in injury might justify a compensation award. Allied Chemical Corp. v. Wells, 578 S.W.2d 369, 1979 Tenn. LEXIS 409 (Tenn. 1979).

In determining whether an accident arose out of and in the course of employment, the relation of the employment to the injury is the essential point of inquiry, liability for workers' compensation is not based upon any act or omission of the employer. Thus, the law of tort causation, wherein liability is predicated upon fault and nullified by contributory fault, is not applicable in workers' compensation cases. Bell v. Kelso Oil Co., 597 S.W.2d 731, 1980 Tenn. LEXIS 447 (Tenn. 1980).

The court was unwilling to find that the shift of hours that an employer has available for an employee can be considered to provide a causal connection between the conditions under which the work is performed and an employee's inability to discipline his personal life. Henley v. Roadway Express, 699 S.W.2d 150, 1985 Tenn. LEXIS 561 (Tenn. 1985).

There was no causal connection between the conditions under which work was required to be performed and the resulting injury where the claimant suffered a severe and unusual reaction from ingesting a substance to enhance his work performance where the substance was not found in the workplace, was not supplied by the employer, nor was the use of the substances explicitly or implicitly required by the employment. Arden v. Hutch Mfg. Co., 771 S.W.2d 406, 1989 Tenn. LEXIS 188 (Tenn. 1989).

Refusal to award medical expenses to employee in a workers'  compensation action was appropriate pursuant to T.C.A. § 50-6-102 because he failed to exercise due care and was negligent in placing his hand on the hot burner of the stove in his kitchen which operated to relieve the employer of liability for medical expenses incurred in treating the injuries from his negligent act; when employee disregarded his disabled condition and placed his fingers on the hot stove, responsibility for the accident and its consequences could no longer fairly be ascribed to his original compensable injury. Anderson v. Westfield Group, 259 S.W.3d 690, 2008 Tenn. LEXIS 532 (Tenn. Aug. 12, 2008).

Workers'  compensation award based on a claimant's workplace smoke inhalation was error because the claimant suffered from bulla emphysema from his cigarette smoking, and the evidence preponderated against a finding that the workplace smoke inhalation advanced the claimant's preexisting bulla emphysema; there was no evidence that the claimant's breathing limits were the direct result of damage to his remaining lung tissue caused by smoke he inhaled at the workplace and the plain meaning of the expert testimony was that the surgery was performed to treat the bullous emphysema and not the smoke inhalation. Although one doctor stated that the smoke inhalation contributed to and aggravated the claimant's emphysema, he did not state that the smoke inhalation itself advanced the severity of the claimant's preexisting condition or cause a new distinct injury. McGowan v. State, — S.W.3d —, 2012 Tenn. LEXIS 65 (Tenn. Feb. 15, 2012), review denied, — S.W.3d —, 2012 Tenn. LEXIS 70 (Tenn. Feb. 15, 2012).

Finding that an employee established causation for his injury arising from a spinal infection was proper based on the expert medical testimony; the claimant's treating surgeon stated that trauma could have been a “participating” or “contributing” factor in the development of infection and that the claimant's medical history made him more vulnerable to an infection. A second doctor testified unequivocally that the claimant's injury at work led to a hematoma, which then served as a “breeding ground” for his spinal infection, and, although the second doctor's testimony was more equivocal as to causation, he testified that the work-related injury “more likely” aggravated an ongoing infection. Stewart v. Westfield Ins. Co., — S.W.3d —, 2012 Tenn. LEXIS 66 (Tenn. Feb. 16, 2012), aff'd, — S.W.3d —, 2012 Tenn. LEXIS 67 (Tenn. Feb. 16, 2012).

Appellate court declined to apply the causation standard of an amended statute retroactively to an employee's injury in a workers'  compensation case. Marvel v. Roane Transp. Servs., LLC, — S.W.3d —, 2015 Tenn. LEXIS 587 (Tenn. July 23, 2015), aff'd, Marvel v. Roane Transp. Servs., — S.W.3d —, 2015 Tenn. LEXIS 586 (Tenn. July 23, 2015).

50. —Employment as Means of Accident.

The purpose of the Workers' Compensation Act is to afford protection against accidental results, and, broadly speaking, under such statute, the employment itself is the means of the accident, and the employment, of course, is never accidental. Scott v. Metropolitan Life Ins. Co., 169 Tenn. 351, 87 S.W.2d 1011, 1935 Tenn. LEXIS 53 (1935).

Where employee, after becoming ill with pains in chest and arms, was sent to company infirmary where he rested for approximately two hours and was then sent back to work, and later that day died from a heart attack while working, his death arose out of and in the course of his employment although he was doing nothing but his ordinary work. Johnson v. Aetna Casualty & Surety Co., 174 F. Supp. 308, 1959 U.S. Dist. LEXIS 3037 (D. Tenn. 1959), aff'd, 278 F.2d 200, 1960 U.S. App. LEXIS 4678 (6th Cir. Tenn. 1960).

Where worker would have completely recovered from an attack of edema occurring on the job except for an operation performed for correction of heart disease having no connection with his employment, evidence was not sufficient to establish causal connection between employment and disability. E. I. Du Pont De Nemours & Co. v. Kessler, 208 Tenn. 224, 345 S.W.2d 663, 1961 Tenn. LEXIS 414 (1961).

Recovery of benefits is proper for death due to a heart attack immediately precipitated by acute or sudden emotional stress as opposed to physical exertion, where the necessary causal connection is properly established by the proof. Cabe v. Union Carbide Corp., 644 S.W.2d 397, 1983 Tenn. LEXIS 601 (Tenn. 1983).

51. —Two or More Accidents Causing Injury.

A disability is nonetheless an injury by accident when it results from a series of accidents, each specific and ascertainable, although its exclusive influence in the resulting disability cannot be fixed precisely. Burton v. Miller Bros. Co., 166 Tenn. 622, 64 S.W.2d 195, 1933 Tenn. LEXIS 127 (1933).

While an accidental injury must be assignable to a particular time and place, the rule is satisfied if each of several accidents, assigned as the combined or alternative causes of a disability, can be thus localized and identified. Burton v. Miller Bros. Co., 166 Tenn. 622, 64 S.W.2d 195, 1933 Tenn. LEXIS 127 (1933).

It is not necessary that the happening of the accident be a single occurrence identified in space or time. Benjamin F. Shaw Co. v. Musgrave, 189 Tenn. 1, 222 S.W.2d 22, 1949 Tenn. LEXIS 394 (1949).

Where there are two equally probable causes of death, one which would impose liability and the other which would not, the plaintiff must fail since the burden of proof to establish accidental death rests upon him. Railway Express Agency, Inc. v. Clark, 194 F.2d 29, 1952 U.S. App. LEXIS 2725 (6th Cir. Tenn. 1952).

Where permanent and total loss of use of eye was the result of two accidents occurring while employee was in employ of different employers and under testimony it was impossible to allocate any particular part of the loss to any particular employer, chancellor's finding of joint and several liability on part of both employers was correct. J. E. Greene Co. v. Bennett, 207 Tenn. 635, 341 S.W.2d 751, 1960 Tenn. LEXIS 503 (1960), overruled in part, Indiana Lumberman's Mut. Ins. Co. v. Ray, 596 S.W.2d 816, 1980 Tenn. LEXIS 434 (Tenn. 1980).

The last employer or insurance carrier will be liable in full for any permanent disability resulting from the last of successive injuries under different employers or insurance carriers. Globe Co. Inc. v. Hughes, 223 Tenn. 37, 442 S.W.2d 253, 1969 Tenn. LEXIS 387 (1969).

52. —Prima Facie Case of Accident — Effect.

Where the claimant had made out a prima facie case, the employer is required to go forward and negative this prima facie case. This may either be done by showing the cause of death or by showing other causes equally probable. Milstead v. Kaylor, 186 Tenn. 642, 212 S.W.2d 610, 1948 Tenn. LEXIS 592 (1948).

Where an employee is found dead at his post of labor, without direct evidence as to the manner of his death, an inference may arise of an accident springing out of and in the course of his employment. In other words a prima facie case for the claimant is thus supported. When such a prima facie case is thus made out the burden shifts to the employer to produce evidence to overthrow it. Milstead v. Kaylor, 186 Tenn. 642, 212 S.W.2d 610, 1948 Tenn. LEXIS 592 (1948).

The defendant is not called upon to introduce any proof or make any explanation as to the death of the employee except where the facts alleged make a prima facie case. Farris v. Yellow Cab Co., 189 Tenn. 46, 222 S.W.2d 187, 1949 Tenn. LEXIS 397 (1949).

Where there was substantial evidence that the decedent was in good health prior to his death and upon the very morning of his death, that he had sustained a serious fall after propelling a handtruck and handling several crates which weighed between 25 and 35 pounds and that immediately after the fall there was a bruise on his head which might have been the cause of his death, the evidence was sufficient to create a prima facie case of accident, and the trial court's finding that death was due to an accident was not clearly erroneous, notwithstanding the employer's contention that the medical evidence established the cause of death as heart seizure. Railway Express Agency, Inc. v. Clark, 194 F.2d 29, 1952 U.S. App. LEXIS 2725 (6th Cir. Tenn. 1952).

Prima facie case of compensable death was shown where miner found dead in mine had shoveled 18 tons of coal from kneeling position. Phillips v. Eureka Casualty Co., 133 F. Supp. 630, 1955 U.S. Dist. LEXIS 2930 (D. Tenn. 1955), aff'd, 233 F.2d 743, 1956 U.S. App. LEXIS 3202 (6th Cir. Tenn. 1956).

Where an employee is found dead at his post of labor without direct evidence as to the manner of his death an inference may arise of an accident springing out of and in the course of his employment and when a prima facie case is thus made out the burden shifts to the employer to overturn such prima facie case. Eureka Casualty Co. v. Phillips, 233 F.2d 743, 1956 U.S. App. LEXIS 3202 (6th Cir. Tenn. 1956).

53. —Disease or Condition Contributing to Injury.

A cook, becoming faint from overheated kitchen, stepped into an alley for fresh air and falling was injured by a passing truck. He was entitled to recover. Patten Hotel Co. v. Milner, 145 Tenn. 632, 238 S.W. 75, 1921 Tenn. LEXIS 101 (1921).

Where epilepsy, or other physical disturbances, suddenly and without expectation occur and contribute to cause an injury to an employee while at work the same should be held compensable, provided there is present another hazard, incident to the employment, which is generally known to exist and which is shown to be the immediate cause of the accident. Tapp v. Tapp, 192 Tenn. 1, 236 S.W.2d 977, 1951 Tenn. LEXIS 374 (1951).

Sickness, or any idiopathic condition, is considered as a “remote cause;” if another cause, incident to the employment, is present and is the immediate cause of the injury and death it is an injury “arising out of,” the employment. McCann Steel Co. v. Carney, 192 Tenn. 94, 237 S.W.2d 942, 1951 Tenn. LEXIS 386 (1951).

A predisposition toward an injury will not bar a claimant from workers' compensation. Bush Bros. & Co. v. Williams, 197 Tenn. 334, 273 S.W.2d 137, 1954 Tenn. LEXIS 491 (1954).

Where tension or fatigue of work accelerated or triggered a cerebral thrombosis, causing the employee to faint, striking his head upon the floor, resulting in a fractured skull, which caused his death, the employee's death was caused by an accident while in the performance of his duties and was compensable. Whitehead v. Aluminum Co., 239 F. Supp. 415, 1965 U.S. Dist. LEXIS 7060 (E.D. Tenn. 1965), aff'd, Whitehead v. Aluminum Co. of America, 361 F.2d 620, 1966 U.S. App. LEXIS 5862 (6th Cir. Tenn. 1966).

The death of a worker who was caused to fall by a cerebral thrombosis, fracturing his skull, was due to an accident arising out of and in the course of his employment. Whitehead v. Aluminum Co. of America, 361 F.2d 620, 1966 U.S. App. LEXIS 5862 (6th Cir. Tenn. 1966).

54. —Aggravation of Preexisting Condition.

Compensation may be properly awarded for disability resulting from aggravation of a preexisting heart disorder by an accidental injury. Sanders v. Blue Ridge Glass Corp., 161 Tenn. 535, 33 S.W.2d 84, 1930 Tenn. LEXIS 40 (1930); Anderson v. Volz Const. Co., 183 Tenn. 169, 191 S.W.2d 436, 1946 Tenn. LEXIS 197 (1946); Lucey Boiler & Mfg. Corp. v. Hicks, 188 Tenn. 700, 222 S.W.2d 19, 1949 Tenn. LEXIS 393 (1949).

Preexisting weakness or disease will not prevent injury from being result of accident, and acceleration or aggravation of preexisting ailment may be compensable injury. Cambria Coal Co. v. Ault, 166 Tenn. 567, 64 S.W.2d 18, 1933 Tenn. LEXIS 118 (1933).

Dependents of an injured employee were entitled to compensation, where the injury either caused his death or accelerated an existing cancer or other malady, thereby causing his death. Tullahoma v. Ward, 173 Tenn. 91, 114 S.W.2d 804, 1937 Tenn. LEXIS 16 (1938).

Evidence to the effect that worker suffered from diseased blood vessels prior to his death but prior to the time of his death had performed his work and was apparently undisturbed by his condition supported the finding of the trial judge that his death was the result of a fall while on the job which induced the rupture of the blood vessels. Riverside Mill Co. v. Parsons, 176 Tenn. 381, 141 S.W.2d 895, 1939 Tenn. LEXIS 128 (1940).

Death of employee which occurred without warning while making manholes on a hot day was not compensable where medical evidence showed that cause of death was the sudden cutting off of blood supply as result of diseased heart. Anderson v. Volz Const. Co., 183 Tenn. 169, 191 S.W.2d 436, 1946 Tenn. LEXIS 197 (1946).

Injured back from lifting side of beef, though due to a congenital weak back, is compensable. Swift & Co. v. Howard, 186 Tenn. 584, 212 S.W.2d 388, 1948 Tenn. LEXIS 585 (1948).

When an employer employs a worker he takes him as he is and assumes the risk of having a weakened condition aggravated by some injury which might not hurt or bother a perfectly normal, healthy person. If the injury is the proximate cause of the disability and excites and aggravates a previous weakened condition, then the employer is liable. Swift & Co. v. Howard, 186 Tenn. 584, 212 S.W.2d 388, 1948 Tenn. LEXIS 585 (1948).

Ruptured aneurism of aorta 55 minutes after accidental injury to finger and 10 minutes after amputation of finger was compensable, though walls of aorta had been weakened by disease of syphilis, where there was testimony by expert witnesses that ruptured aneurism could have been due to excitement from accident. Lucey Boiler & Mfg. Corp. v. Hicks, 188 Tenn. 700, 222 S.W.2d 19, 1949 Tenn. LEXIS 393 (1949).

Disability resulting from an untoward event, which we commonly refer to as an accident, that hastens the onset of an affliction or aggravates a preexisting disease, is compensable. Howell v. Charles H. Bacon Co., 98 F. Supp. 567, 1951 U.S. Dist. LEXIS 2266 (D. Tenn. 1951), aff'd, 197 F.2d 333, 1952 U.S. App. LEXIS 2625 (6th Cir. Tenn. 1952).

In an action to recover death benefits under the Workers' Compensation Law, the stronger inference was that the injury of decedent and the inseparable consequences of ceaseless pain and worry and nervous tension aggravated a preexisting coronary sclerosis and hastened his death, and the death was held compensable. Howell v. Charles H. Bacon Co., 98 F. Supp. 567, 1951 U.S. Dist. LEXIS 2266 (D. Tenn. 1951), aff'd, 197 F.2d 333, 1952 U.S. App. LEXIS 2625 (6th Cir. Tenn. 1952).

Where the evidence showed that the employee died of blood poisoning resulting from a cut received in the course of his employment, the death arose out of and in the course of the employment, in spite of the fact that the employee was suffering from leukemia, and would eventually have died from that disease. McCann Steel Co. v. Carney, 192 Tenn. 94, 237 S.W.2d 942, 1951 Tenn. LEXIS 386 (1951).

Where an accident can be fairly considered to be a contributing cause of death, it is compensable under the statute, even though the injured employee was suffering from some prior disability of a serious nature. Boyd v. Young, 193 Tenn. 272, 246 S.W.2d 10, 1951 Tenn. LEXIS 354, 1951 Tenn. LEXIS 355 (1951).

Where it is doubtless true that sooner or later an employee would have died from a cancer, with which he was afflicted, the case is still compensable if an accident in the course of his employment so accelerated or aggravated the cancer that the accident was a contributing cause to the shortening of his life. Boyd v. Young, 193 Tenn. 272, 246 S.W.2d 10, 1951 Tenn. LEXIS 354, 1951 Tenn. LEXIS 355 (1951).

If a blow inflicted upon the leg injures that leg by aggravating a preexisting disease it is no less an injury received from the blow, within the meaning of the statute, than it would have been if there had been no preexisting disease. Ledford v. Miller Bros. Co., 194 Tenn. 467, 253 S.W.2d 552, 1952 Tenn. LEXIS 405 (1952).

Death of employee from coronary occlusion as result of overworking on a hot day was compensable since exertion aggravated diseased heart condition and hastened his death. Jenkins v. American Mut. Liability Ins. Co., 113 F. Supp. 250, 1953 U.S. Dist. LEXIS 2558 (D. Tenn. 1953).

Employer takes employee in the condition in which he is employed and assumes risk of having any weakened condition aggravated or accelerated by employment, therefore even though employee dies of predisposed disease, if it is shown by expert testimony that physical exertion on the job was a contributing and accelerating factor, a compensable case is made which is not speculative. Heron v. Girdley, 198 Tenn. 110, 277 S.W.2d 402, 1955 Tenn. LEXIS 341 (1955).

Employee may be compensated where peptic ulcer was caused to rupture by strain of work. London & Lancashire Indem. Co. v. Starcher, 202 Tenn. 278, 304 S.W.2d 87, 1957 Tenn. LEXIS 389 (1957).

Recovery may be had for aggravation of preexisting condition where such issue is raised by the evidence, even though the employee does not allege such ground in his pleading or seek at the outset to recover on this theory. Norton v. Standard Coosa-Thatcher Co., 203 Tenn. 649, 315 S.W.2d 245, 1958 Tenn. LEXIS 230 (1958).

Evidence that heat stroke occurring in course of employment aggravated a preexisting arteriosclerosis condition was sufficient to make out a compensable injury. Eslinger v. Miller Bros. Co., 203 Tenn. 688, 315 S.W.2d 261, 1958 Tenn. LEXIS 236 (1958).

If the physical activity and exertion of an employee's work aggravates a preexisting heart condition, precipitates a fatal heart attack and thus hastens his death, such death is the result of accident arising out of and in the course of the employment. Nashville Pure Milk Co. v. Rychen, 204 Tenn. 575, 322 S.W.2d 432, 1958 Tenn. LEXIS 277 (1958); Coleman v. Coker, 204 Tenn. 310, 321 S.W.2d 540, 1959 Tenn. LEXIS 283 (1959); Sweat v. United States Fidelity & Guaranty Co., 169 F. Supp. 155, 1959 U.S. Dist. LEXIS 3816 (E.D. Tenn. 1959), aff'd, 272 F.2d 943, 1959 U.S. App. LEXIS 2913 (6th Cir. Tenn. 1959); Huey Bros. Lumber Co. v. Kirk, 210 Tenn. 170, 357 S.W.2d 50, 1962 Tenn. LEXIS 420 (1962).

Where an employer employs a worker, he takes him as he is and assumes the risk of having a weakened condition aggravated by some injury which might not affect a normal person. Coleman v. Coker, 204 Tenn. 310, 321 S.W.2d 540, 1959 Tenn. LEXIS 283 (1959); Combustion Engineering Co. v. Blanks, 210 Tenn. 233, 357 S.W.2d 625, 1962 Tenn. LEXIS 428 (1962); Fidelity & Casualty Co. v. Treadwell, 212 Tenn. 1, 367 S.W.2d 470, 1963 Tenn. LEXIS 393 (1963); American Surety Co. v. Kizer, 212 Tenn. 328, 369 S.W.2d 736, 1963 Tenn. LEXIS 426 (1963); Fink v. Caudle, 856 S.W.2d 952, 1993 Tenn. LEXIS 378 (Tenn. 1993).

Where evidence sustained finding of trial court that employee's fall from bakery truck in the course of his employment aggravated preexisting cirrhosis of the liver and resulted in permanent partial disability of 75 percent of the whole body, causal connection was established between the employment and the injury so that employee was entitled to compensation. Martha White Bakeries, Inc. v. Vance, 204 Tenn. 491, 322 S.W.2d 206, 1959 Tenn. LEXIS 302 (1959).

Where evidence sustained the finding that worker who had preexisting condition of berry aneurysm died from the rupture of a blood vessel while using a power saw in the course of his employment, such death was compensable. Huey Bros. Lumber Co. v. Kirk, 210 Tenn. 170, 357 S.W.2d 50, 1962 Tenn. LEXIS 420 (1962).

Traumatic aggravation of otherwise noncompensable disease as result of employment was compensable. Combustion Engineering Co. v. Blanks, 210 Tenn. 233, 357 S.W.2d 625, 1962 Tenn. LEXIS 428 (1962).

Where last injury resulted from the aggravation of a prior injury received while working for another employer and in proceeding for compensation from the last employer it was determined that the disability was attributable to the injury received while working for such employer, such employer could not bring action for contribution against the first employer. Baxter v. Smith, 211 Tenn. 347, 364 S.W.2d 936, 1962 Tenn. LEXIS 360 (1962).

Disability resulting from aggravation of a preexisting disease or condition is compensable. American Surety Co. v. Kizer, 212 Tenn. 328, 369 S.W.2d 736, 1963 Tenn. LEXIS 426 (1963).

Where worker reported to work in apparent good health and about an hour later suffered a rupture of a hemangioma or vascular tumor located on the left cerebral hemisphere while working as a ripsaw operator and there was medical testimony that such physical exertion could produce the rupture, evidence sustained finding of trial judge that death of employee resulted from accidental injury arising out of and in the course of his employment. Morristown Chest Co. v. Morgan, 212 Tenn. 441, 370 S.W.2d 513, 1963 Tenn. LEXIS 439 (1963).

Although driving a tractor-trailer rig may have aggravated claimant's diseased heart condition, under Tennessee law it was not enough to establish that his death was due to an accident arising out of and in the course of his employment; in addition, preponderance of evidence must show driving the truck aggravated plaintiff's diseased condition and that his death was accelerated as a proximate result of such aggravation. Kirby v. Dance Freight Lines, 226 F. Supp. 947, 1964 U.S. Dist. LEXIS 6452 (E.D. Tenn. 1964).

Proof failed to show that death of plaintiff's intestate, which followed driving tractor-trailer rigs for employer, was caused by an accident arising out of or in the course of his employment or that his heart trouble was aggravated to the extent that it shortened his life or accelerated his death. Kirby v. Dance Freight Lines, 226 F. Supp. 947, 1964 U.S. Dist. LEXIS 6452 (E.D. Tenn. 1964).

Where, due to cerebral thrombosis, which was aggravated, accelerated or triggered by his work, employee became dizzy and immediately fell to the floor, sustaining skull fracture which was the primary cause of death, employee met with an accident while in performance of his duties, for purposes of workers' compensation. Whitehead v. Aluminum Co., 239 F. Supp. 415, 1965 U.S. Dist. LEXIS 7060 (E.D. Tenn. 1965), aff'd, Whitehead v. Aluminum Co. of America, 361 F.2d 620, 1966 U.S. App. LEXIS 5862 (6th Cir. Tenn. 1966).

Where decedent, driver of tractor-trailer rig, died at his home after returning from a long and strenuous trip which placed unusual stress on his preexisting diseased heart, the widow was entitled to recover, as her husband's death arose out of and in the course of his employment. Treadway v. Associated Transport, Inc., 302 F. Supp. 301, 1969 U.S. Dist. LEXIS 9847 (E.D. Tenn. 1969).

An employer takes an employee as he finds him so that employer is liable for disabilities resulting from injuries sustained by employee arising out of and in the course of his employment even though it aggravates a previous condition with resulting disability far greater than otherwise would have been the case. Globe Co. Inc. v. Hughes, 223 Tenn. 37, 442 S.W.2d 253, 1969 Tenn. LEXIS 387 (1969); Newport v. Webb, 223 Tenn. 445, 446 S.W.2d 683, 1969 Tenn. LEXIS 430 (1969); Blalock v. Williams, 483 S.W.2d 578, 1972 Tenn. LEXIS 366 (Tenn. 1972).

Where, while securing chicken coops on truck in course of his employment, employee suffered attack of angina pectoris which aggravated and accelerated preexisting arteriosclerotic heart disease and contributed to coronary occlusion, employee suffered injury by accident in course of employment. R. E. Butts Co. v. Powell, 225 Tenn. 119, 463 S.W.2d 707, 1971 Tenn. LEXIS 284 (1971).

When an employer employs a worker he takes him as he is and assumes the risk of having a weakened condition aggravated by some injury which might not hurt or bother a normal, healthy person, but such injury must be the proximate cause of the workers' disability to be compensable. Blalock v. Williams, 483 S.W.2d 578, 1972 Tenn. LEXIS 366 (Tenn. 1972).

Unrebutted statement in death certificate filled out by company doctor that cause of death of employee was “acute coronary thrombosis” due to “coronary atherosclerosis”, together with testimony of physician that if employee had preexisting condition of atherosclerosis then the work he was performing could contribute to accelerate his fatal heart attack was sufficient to support finding of chancellor that there was a causal connection between work employee was performing and his death by heart attack suffered on job. Boles v. Aluminum Co. of America, 483 S.W.2d 582, 1972 Tenn. LEXIS 368 (Tenn. 1972).

The exertion of unloading heavy boxes from a truck aggravated a preexisting condition of arteriosclerosis causing a heart attack which was an injury arising out of and in the course of employment and there was a causal connection therein. Palmer v. Pruitt, 498 S.W.2d 89, 1973 Tenn. LEXIS 453 (Tenn. 1973).

In an action for compensation for permanent partial disability as a result of a ruptured disc, evidence of rheumatoid arthritis in the joints of the arms and legs did not support an award for aggravation of the preexisting condition of rheumatoid arthritis. Murray Ohio Mfg. Co. v. Vines, 498 S.W.2d 897, 1973 Tenn. LEXIS 463 (Tenn. 1973).

Where employee suffered a myocardial infarction while at work, his subsequent death was covered by the act even though exertion at work only aggravated a preexistent condition, and even though the exertion was no more than the job ordinarily required. Kingsport Press, Inc. v. Van Huss, 547 S.W.2d 572, 1977 Tenn. LEXIS 566 (Tenn. 1977).

Where the employee's arthritic condition was aggravated and made symptomatic by the bending, stooping, lifting, reaching and twisting motions required by the job assignment he was given, his injury was included within the definition of an accident. Laminite Plastics Mfg. Co. v. Greene, 561 S.W.2d 458, 1978 Tenn. LEXIS 583 (Tenn. 1978).

Although there was no evidence in record that the last act performed before the onset of pain was the cause of the injury, it is reasonable to conclude that a back injury sustained shortly after doing heavy work was caused by the work, as the injured person suffered from a degenerative disorder which can be aggravated by such work. American Precision, Inc. v. Ottinger, 562 S.W.2d 818, 1978 Tenn. LEXIS 594 (Tenn. 1978).

Where an employer employs a worker, he takes him as he is and assumes the risk of having a weakened condition aggravated by some injury which might not affect a normal person. See Harlan v. McClellan, 572 S.W.2d 641, 1978 Tenn. LEXIS 656 (Tenn. 1978).

Employee's previous back injury, for which he received compensation for approximately seven to eight percent permanent disability, did not preclude an award for disability resulting from the current injury to his back. Harlan v. McClellan, 572 S.W.2d 641, 1978 Tenn. LEXIS 656 (Tenn. 1978).

Defendant employer which employed plaintiff with a preexisting weakened condition (diabetes), which generally made him more susceptible to infections, was not liable for aggravation of an infection that plaintiff contracted from some source other than work and which has not been shown to be employment-related even though aggravation may have been caused by working conditions. Bowers v. Liberty Mut. Ins. Co., 580 S.W.2d 787, 1979 Tenn. LEXIS 432 (Tenn. 1979).

If a work related accident aggravates an idiopathic condition, causing injury or death, or if it is a contributing cause, compensation is available. Hall v. Auburntown Industries, Inc., 684 S.W.2d 614, 1985 Tenn. LEXIS 468 (Tenn. 1985).

The last successive employer or insurance carrier, taking the employee as he is found at the time of the accident, will be liable for the entire resulting disability, including all medical expenses arising from the disability and regardless of any preexisting condition. Bennett v. Howard Johnsons Motor Lodge, 714 S.W.2d 273, 1986 Tenn. LEXIS 779 (Tenn. 1986).

The aggravation of a preexisting nervous condition by a physical injury is compensable. Thomas v. Aetna Life & Casualty Co., 812 S.W.2d 278, 1991 Tenn. LEXIS 246 (Tenn. 1991).

Physical or mental injuries caused by worry, anxiety or emotional stress of a general nature or ordinary stress associated with the worker's occupation are not compensable; the injury must have resulted from an incident of abnormal and unusual stressful proportions, rather than the day to day mental stresses and tensions to which workers in that field are occasionally subjected. Cunningham v. Shelton Sec. Serv., 46 S.W.3d 131, 2001 Tenn. LEXIS 140 (Tenn. 2001), rehearing denied, Cunningham v. Shelton Sec. Serv., Inc. , — S.W.3d —, 2001 Tenn. LEXIS 381 (Tenn. 2001).

55. —Alcoholics.

Where an employee, with a five-year history of alcoholism and related diseases, including pancreatitis and cirrhosis of the liver, while on duty as a policeman, fell on an icy street, which aggravated degenerative arthritis in his back and neck causing extreme pain and preventing him from working, and he then began drinking more heavily until six months later, after acute delirium tremens, a marked enlargement of the liver and a collapse, he was admitted to the hospital in a comatose state and died of acute necrotizing pancreatitis contributed to by bilateral lobular pneumonia and cirrhosis, the court held that his fall which occurred in the course of his employment was the proximate cause of his death, that he was not guilty of willful misconduct or intentional self-inflicted injury as defined by § 50-6-110, and that his survivor was entitled to recover full compensation for his injury and death. Wheeler v. Glens Falls Ins. Co., 513 S.W.2d 179, 1974 Tenn. LEXIS 461 (Tenn. 1974).

56. —Subsequent Disease or Condition Resulting from Injury.

Injury resulting from an infection following the formation of a callous upon claimant's fingertip, occasioned by operation of listing machine, was accidental. Sears-Roebuck & Co. v. Starnes, 160 Tenn. 504, 26 S.W.2d 128, 1929 Tenn. LEXIS 126 (1930).

Where an employee, in the course of his employment, accidentally fell and struck his head against a radiator, and soon afterwards symptoms of epilepsy developed without any other apparent cause, and expert medical testimony shows that such an injury often gives rise to epilepsy, it was sufficient to support finding that the condition was brought about by the fall and injury. Sears-Roebuck & Co. v. Finney, 169 Tenn. 547, 89 S.W.2d 749, 1935 Tenn. LEXIS 81 (1936).

Evidence to the effect that the death of a policeman 40 days after being struck by a car was caused by an internal condition which was either brought about by such accident or aggravated thereby was sufficient to support an award for death of the policeman on grounds that such death was either proximately caused or appreciably accelerated by such injury. Tullahoma v. Ward, 173 Tenn. 91, 114 S.W.2d 804, 1937 Tenn. LEXIS 16 (1938).

Where three medical witnesses introduced by defendant testified that the cause of cancer was purely speculative, that the idea that a blow might cause cancer had been advanced but never proven true and where medical witness for petitioner testified that medical science did not know that cancer will result from certain conditions or that it results from traumatic conditions, finding of the trial judge that the proof did not establish that cancer from which deceased worker died was caused by a blow sustained in the course of employment was proper. McBrayer v. Dixie Mercerizing Co., 178 Tenn. 135, 156 S.W.2d 408, 1941 Tenn. LEXIS 41 (1941).

Evidence held sufficient to justify the finding of the trial court that pericarditis with effusion, by which disease the employee was disabled, was directly attributable to repeated sharp blows upon the chest suffered by the employee in the course of his employment. Benjamin F. Shaw Co. v. Musgrave, 189 Tenn. 1, 222 S.W.2d 22, 1949 Tenn. LEXIS 394 (1949).

Coronary occlusion three months and one week after injury to foot as result of fall was compensable where employee had suffered pain and shock to nervous system so as to aggravate heart condition. Howell v. Charles H. Bacon Co., 98 F. Supp. 567, 1951 U.S. Dist. LEXIS 2266 (D. Tenn. 1951), aff'd, 197 F.2d 333, 1952 U.S. App. LEXIS 2625 (6th Cir. Tenn. 1952).

Where petitioner made out a prima facie case that death of deceased employee from cerebro vascular accident was contributed to or aggravated by a sun or heat stroke, and there was no autopsy or any evidence contrary to prima facie case established by petitioner, an award for compensation was justified. Cunningham v. Hembree, 195 Tenn. 107, 257 S.W.2d 12, 1953 Tenn. LEXIS 307 (1953).

Where employee employed as a miner, in apparent good health, sustained a ruptured artery after crawling on his hands and knees a distance of 500 to 800 feet, and 30 days thereafter, following two operations for the purpose of tying off some of the blood flow to the artery, died of thrombosis of the artery, widow was entitled to compensation since exertion in reaching his work was the cause of the ruptured artery. Lay v. Blue Diamond Coal Co., 196 Tenn. 63, 264 S.W.2d 223, 1953 Tenn. LEXIS 406 (1953).

It was immaterial that the initial injury may have been small in contrast to the grave consequences which resulted where there was a causal relation between the initiating accident and the resultant disability. Kitts v. American Mut. Liability Ins. Co., 133 F. Supp. 937, 1955 U.S. Dist. LEXIS 2971 (D. Tenn. 1955).

Testimony of claimant's attendant doctor that first heart attack in course of employment could have so impaired the heart to make it incapable of standing later attack, without stating direct causal relationship, was sufficient to justify award upon holding that the first attack substantially contributed to the second. Powers v. Beasley, 197 Tenn. 549, 276 S.W.2d 720, 1955 Tenn. LEXIS 315 (1955).

Where decedent carrying heavy loads in work suffered a brain hemorrhage and, after several months' treatment, suffered another hemorrhage causing death, his death arose out of original employment since it contributed to his death. Parrott v. Parrott, 198 Tenn. 96, 278 S.W.2d 83, 1955 Tenn. LEXIS 350 (1955).

Where workers' compensation claimant suffered electric shock which doctors testify could “possibly” have caused later brain injury seven years after shock, with no symptoms in meantime, decision of trial judge refusing award on basis of one of two reasonable conflicting inferences as to cause will be sustained. Lynch v. La Rue, 198 Tenn. 101, 278 S.W.2d 85, 1955 Tenn. LEXIS 351 (1955).

Where employee was hospitalized as result of compensable injury, aggravation of injury as result of negligence of hospital orderly while bathing employee during course of treatment was compensable. Mallette v. Mercury Outboard Supply Co., 204 Tenn. 438, 321 S.W.2d 816, 1959 Tenn. LEXIS 298 (1959), overruled in part, Lollar v. Wal-Mart Stores, Inc., 767 S.W.2d 143, 1989 Tenn. LEXIS 38, 4 A.L.R.5th 1086 (Tenn. 1989).

Chancellor was justified in finding causal connection between employee's back injury and his death from hepatitis where employee used drugs and whiskey to relieve continued and excruciating pain resulting from such injury without knowing that they were dangerous to his life when he was suffering from malnutrition. Fennell v. Maryland Casualty Co., 208 Tenn. 116, 344 S.W.2d 352, 1961 Tenn. LEXIS 402 (1961).

Death of worker resulting from operation of tractor was not compensable as arising out of his former employment on ground that necessity of operation of tractor resulting from his inability to perform former work. Jones v. Huey, 210 Tenn. 162, 357 S.W.2d 47, 1962 Tenn. LEXIS 419 (1962).

Where the primary injury is shown to have arisen out of and in the course of the employment, every natural consequence that flows from such injury likewise arises out of the employment unless the subsequent injury is the result of an independent intervening cause attributable to the employee's own negligence or misconduct. Jones v. Huey, 210 Tenn. 162, 357 S.W.2d 47, 1962 Tenn. LEXIS 419 (1962).

Where, in compensation suit involving successive hospitalizations, chancellor found that disability resulted from injury occurring at time of first hospitalization, such finding was binding in suit between the insurance carriers as of the two dates who, although not named, had entered appearances in the original suit. United States Fidelity & Guaranty Co. v. Bituminous Casualty Corp., 52 Tenn. App. 43, 371 S.W.2d 801, 1962 Tenn. App. LEXIS 129 (Tenn. Ct. App. 1962).

Where an employee was injured about the hips, pelvis and legs in a cave-in and an embolism developed during his convalescence causing either a pulmonary embolism or a coronary thrombosis, causing the employee to fall out of a chair and die, his death was caused by the injuries received in his employment. Manis v. Travelers Ins. Co., 239 F. Supp. 439, 1965 U.S. Dist. LEXIS 7062 (E.D. Tenn. 1965).

Nurse's claim for workers' compensation benefits, based upon the nurse's claim that the nurse had contracted tuberculosis when the nurse's hand came into contact with the blood of a patient who was subsequently diagnosed with tuberculosis, was dismissed because the nurse failed to present competent medical evidence that the nurse had contracted tuberculosis as a result of the nurse's employment. Wheetley v. State, — S.W.3d —, 2014 Tenn. LEXIS 467 (Tenn. June 25, 2014), aff'd, — S.W.3d —, 2014 Tenn. LEXIS 468 (Tenn. June 25, 2014).

57. —Subsequent Injuries Following Rehabilitation.

The policy allowing compensation in spite of a previous determination of permanent disability to the same member encourages rehabilitation and reemployment. Harlan v. McClellan, 572 S.W.2d 641, 1978 Tenn. LEXIS 656 (Tenn. 1978).

An employee who rehabilitates himself and returns to work rather than relying on public relief should not be penalized for his rehabilitation or discouraged from re-entry into the work force by the denial of benefits for subsequent injuries. Harlan v. McClellan, 572 S.W.2d 641, 1978 Tenn. LEXIS 656 (Tenn. 1978).

58. —Elemental Forces.

When an employee's work exposes him to an elemental force and requires him to continue to work under the risk of the hazard which the elemental force creates, the employee is to be compensated for injuries which result therefrom. Hodge v. Diamond Container General, Inc., 759 S.W.2d 659, 1988 Tenn. LEXIS 194 (Tenn. 1988).

It is foreseeable that when exposed to the hot sun or the freezing cold an employee suffers an injury therefrom. When the nature of the work requires exposure to the risk of this hazard, any injury resulting therefrom arises out of and in the course of the employment. Hodge v. Diamond Container General, Inc., 759 S.W.2d 659, 1988 Tenn. LEXIS 194 (Tenn. 1988).

59. —Heat Prostration, Sunstroke and Heat Exhaustion.

Heat prostration of a fireman in boiler room on an extremely hot day is compensable. King v. Buckeye Cotton Oil Co., 155 Tenn. 491, 296 S.W. 3, 1926 Tenn. LEXIS 72, 53 A.L.R. 1086 (1927).

Where it was shown without dispute that the employee while at his work in loading timber on a very hot July day fell and after a few minutes died, and that the employee was a strong, healthy, able-bodied man, the evidence made out a prima facie case of death from heat exhaustion, heat prostration or sunstroke. Milstead v. Kaylor, 186 Tenn. 642, 212 S.W.2d 610, 1948 Tenn. LEXIS 592 (1948).

Death caused by heat prostration, sunstroke or heat exhaustion is compensable in this state. Anderson v. Volz Const. Co., 183 Tenn. 169, 191 S.W.2d 436, 1946 Tenn. LEXIS 197 (1946); Milstead v. Kaylor, 186 Tenn. 642, 212 S.W.2d 610, 1948 Tenn. LEXIS 592 (1948); T. J. Moss Tie Co. v. Rollins, 191 Tenn. 577, 235 S.W.2d 585, 1951 Tenn. LEXIS 361 (1951).

Death of employee was compensable where he died suddenly while engaged in loading crossties on a hot day where medical testimony established that cause of death was sunstroke. T. J. Moss Tie Co. v. Rollins, 191 Tenn. 577, 235 S.W.2d 585, 1951 Tenn. LEXIS 361 (1951).

60. —Frostbite and Freezing.

Where employee's work exposed him to the elemental force of freezing for long hours, frostbite resulting therefrom was compensable. Globe Co. Inc. v. Hughes, 223 Tenn. 37, 442 S.W.2d 253, 1969 Tenn. LEXIS 387 (1969).

61. —Back Injuries.

Back injury claims are recognized as appropriate situations for applying gradual injury guidelines; however, while in some cases an employee's back injury has been found to have occurred gradually and not as the result of a specific incident, the court has never held that back injuries are always gradual injuries. Each case must be decided on its facts based upon the proof relating to causation. Mynatt v. Liberty Mut. Ins. Cos., 699 S.W.2d 799, 1985 Tenn. LEXIS 569 (Tenn. 1985).

62. —Hernia.

If, as result of a strain in lifting some heavy article for his employer, an employee dislocates his vertebrae, or breaks his wrist, or ruptures a blood vessel, it could not be seriously insisted that such unexpected injury was not accidental. If the strain or “stretching,” as petitioner terms his act, instead of causing one of the injuries just enumerated, produces a hernia, the occurrence is nonetheless accidental. Webster v. Lloyd A. Fry Roofing Co., 177 Tenn. 122, 146 S.W.2d 946, 1940 Tenn. LEXIS 18 (1941).

Where uncontradicted evidence was to the effect that deceased, a strong healthy man without previous evidence of hernia, engaged in very heavy work subjecting himself to strain in lifting heavy bars of iron, left his place of employment, walked one block to his home and there complained of pain in his side, went to bed and remained there for two days and that on the morning of the third day his employer's physician found him suffering from hernia, the inference was irresistible that deceased had received this injury while lifting the heavy bars and the trial court erred in holding that there was no evidence to show that deceased received an accidental injury arising out of and in the course of his employment. Riley v. Knoxville Iron Co., 178 Tenn. 107, 156 S.W.2d 398, 1941 Tenn. LEXIS 37 (1941).

63. —Mental Ailments and Nervous Conditions.

The word “injury” in the Workers' Compensation Law is broader than the mere reference to some objective physical break or wound to the body and includes the consequences therefrom such as mental ailments or nervous conditions. Buck & Simmons Auto & Electric Supply Co. v. Kesterson, 194 Tenn. 115, 250 S.W.2d 39, 1952 Tenn. LEXIS 358 (1952).

An employee disabled by “traumatic or post-traumatic neurosis” precipitated by an accident arising out of and in the course of his employment is entitled to compensation under the Workers' Compensation Law. Buck & Simmons Auto & Electric Supply Co. v. Kesterson, 194 Tenn. 115, 250 S.W.2d 39, 1952 Tenn. LEXIS 358 (1952).

Testimony of doctors and neighbors of muscle spasms and inability to walk or work is such substantial evidence of causation and permanent disability as to allow trial judge to award compensation where claimant alleges back injury. Bush Bros. & Co. v. Williams, 197 Tenn. 334, 273 S.W.2d 137, 1954 Tenn. LEXIS 491 (1954).

Traumatic or post-traumatic neurosis is an “injury” within the meaning of the act. McKenzie v. Campbell & Dann Mfg. Co., 209 Tenn. 475, 354 S.W.2d 440, 1962 Tenn. LEXIS 380 (1962).

Where the medical testimony gave no opinion as to the permanence of a present aggravated nervous condition, there was no evidence before the trial court from which a permanent impairment could be inferred. Minton v. Leonard, 219 Tenn. 642, 412 S.W.2d 886, 1967 Tenn. LEXIS 378 (1967).

Where there was testimony in the record by psychiatrist that employee suffered from chronic undifferentiated schizophrenia and that such condition disabled him from work, supreme court would not disturb trial court's finding to that effect even though on the basis of the entire record it might have reached a different conclusion. Gluck Bros., Inc. v. Pollard, 221 Tenn. 383, 426 S.W.2d 763, 1968 Tenn. LEXIS 471 (1968).

Mental or nervous illnesses are compensable when shown to be caused by an industrial, work-related accident. Jose v. Equifax, Inc., 556 S.W.2d 82, 1977 Tenn. LEXIS 609 (Tenn. 1977).

Where defendant's claim for workers' compensation benefits alleged that he sustained a “severe psychiatric illness” as a result of being placed under a tremendous amount of pressure and tension in order to meet his obligations to his employer, the complaint was dismissed for failure to state a claim due to its general, conclusory nature and lack of specificity. Jose v. Equifax, Inc., 556 S.W.2d 82, 1977 Tenn. LEXIS 609 (Tenn. 1977).

Trial court erred in awarding workers' compensation benefits for a mental injury to a worker who had been exposed to the blood of a co-worker whom she believed was HIV positive where she had not shown actual exposure to the virus through a medically recognized channel of transmission and five HIV tests had been performed on her and all were negative. The Supreme Court of Tennessee is unwilling to award workers' compensation disability benefits to a claimant who suffers from an irrational fear of exposure to HIV when there is no proof of actual exposure via a medically recognized channel of transmission. Guess v. Sharp Mfg. Co. of Am., 114 S.W.3d 480, 2003 Tenn. LEXIS 722 (Tenn. 2003).

Trial court had not erred in concluding that a claimant had not suffered a cognitive impairment due to a work related accident because she had not asserted that she had sustained a closed head injury until her attorney referred her for psychological testing almost three years after the accident. And, the court found “a huge void” in the medical evidence between the time that she received treatment from the neurologist and the time that she was referred for psychological testing. Layman v. Vanguard Contrs., 183 S.W.3d 310, 2006 Tenn. LEXIS 5 (Tenn. 2006).

64. —Emotional Stress.

Worry, anxiety or emotional stress of a general nature are not in and of themselves sufficient to establish an accident. Emotional stress, to some degree, accompanies the performance of any contract of employment; when this is within the bounds of the ups and downs of emotional normal human experience, courts frequently decline to impose liability upon employers for conditions resulting from cumulated strain. Henley v. Roadway Express, 699 S.W.2d 150, 1985 Tenn. LEXIS 561 (Tenn. 1985).

For a mental injury by accident or occupational disease to arise out of employment, it must be caused by an identifiable stressful, work-related event producing a sudden mental stimulus such as fright, shock or excessive unexpected anxiety, and therefore it may not be gradual employment stress building up over a period of time. In addition, the stress produced may not be usual stress, but must be extraordinary and unusual in comparison to the stress ordinarily experienced by an employee in the same type duty. Gatlin v. Knoxville, 822 S.W.2d 587, 1991 Tenn. LEXIS 511 (Tenn. 1991).

Where plaintiff suffered an acute, sudden, or unexpected emotional stress, there was an injury by accident. Jones v. Hartford Acci. & Indem. Co., 811 S.W.2d 516, 1991 Tenn. LEXIS 195 (Tenn. 1991).

Even if incident where employee was informed by her supervisor that she was probably going to be fired caused employee's mental breakdown, the employee's mental injury was not compensable. Goodloe v. State, 36 S.W.3d 62, 2001 Tenn. LEXIS 53 (Tenn. 2001).

Post-traumatic stress disorder (PTSD) can, in some circumstances, be a compensable workers' compensation injury. Guess v. Sharp Mfg. Co. of Am., 114 S.W.3d 480, 2003 Tenn. LEXIS 722 (Tenn. 2003).

65. —Poisoning.

Death of person employed to remove trolley lines and steel rails from coal mines as result of arsenic poisoning was not compensable where expert evidence showed that amount of arsenic from copper wiring handled by deceased in mines was not in sufficient quantity to have caused arsenic poisoning. Smith v. Fentress Coal & Coke Co., 188 Tenn. 656, 222 S.W.2d 3, 1949 Tenn. LEXIS 386 (1949).

66. —Diseases.

Disease caused by breathing dust in work of moving sacks containing chemicals was not compensable. Meade Fiber Corp. v. Starnes, 147 Tenn. 362, 247 S.W. 989, 1922 Tenn. LEXIS 48 (1923). But see part 3 of this chapter.

Despite conflict in testimony of medical experts, pyelitis held to have been caused by injury to employee's back seven weeks previously. Vester Gas Range & Mfg. Co. v. Leonard, 148 Tenn. 665, 257 S.W. 395, 1923 Tenn. LEXIS 53 (1923).

Pneumonia from which employee died four days after heat prostration, which was the moving, exciting or contributing cause of the pneumonia, held to have naturally resulted from such injury. King v. Buckeye Cotton Oil Co., 155 Tenn. 491, 296 S.W. 3, 1926 Tenn. LEXIS 72, 53 A.L.R. 1086 (1927).

Whenever an injury by accident can be said to have been the moving, exciting or contributing cause of a resulting disease, such disease “naturally resulted” from the injury; and it is wholly immaterial whether such disease often or usually results from similar injuries. King v. Buckeye Cotton Oil Co., 155 Tenn. 491, 296 S.W. 3, 1926 Tenn. LEXIS 72, 53 A.L.R. 1086 (1927).

An accidental injury may be occasioned by squeezing a pimple resulting in infection with a disease communicated by a horse, cared for by the employee, to his fingers. Hartford Acci. & Indem. Co. v. Hay, 159 Tenn. 202, 17 S.W.2d 904, 1928 Tenn. LEXIS 76 (1929).

In order for a disease to be referable to an accidental injury, its inception must be assignable to a determinate, single occurrence, identified in time and space. Morrison v. Tennessee Consol. Coal Co., 162 Tenn. 523, 39 S.W.2d 272, 1930 Tenn. LEXIS 118 (1931); Gabbard v. Proctor & Gamble Defense Corp., 184 Tenn. 464, 201 S.W.2d 651, 1947 Tenn. LEXIS 398 (1947). But see part 3 of this chapter.

If an employee suffers from a disease at all, occupational or otherwise, he has no recourse under this act unless the disease naturally results from an accidental injury. Morrison v. Tennessee Consol. Coal Co., 162 Tenn. 523, 39 S.W.2d 272, 1930 Tenn. LEXIS 118 (1931); Gabbard v. Proctor & Gamble Defense Corp., 184 Tenn. 464, 201 S.W.2d 651, 1947 Tenn. LEXIS 398 (1947). But see part 3 of this chapter.

Since the cause of cancer is purely speculative, it could not be said that deceased employee died of cancer caused by a blow on the breast while working. McBrayer v. Dixie Mercerizing Co., 178 Tenn. 135, 156 S.W.2d 408, 1941 Tenn. LEXIS 41 (1941).

Loss of eye held to be result of disease and not accident. Craig v. Marquette Cement Mfg. Co., 190 Tenn. 234, 229 S.W.2d 148, 1950 Tenn. LEXIS 473 (1950).

Acts 1947, ch. 139, compiled in this section and in parts 2 and 3 of this chapter, did not limit compensation to specified occupational diseases if the disability from the disease is the result of an injury arising out of and in the course of employment. Buck & Simmons Auto & Electric Supply Co. v. Kesterson, 194 Tenn. 115, 250 S.W.2d 39, 1952 Tenn. LEXIS 358 (1952).

Death by apoplexy while carrying light rope was not compensable since sudden death was not due to exertion but to progress of disease. Wilhart v. L. A. Warlick Const. Co., 195 Tenn. 344, 259 S.W.2d 655, 1953 Tenn. LEXIS 347 (1953).

Spondylolisthesis is a disability capable of supporting an award under the Workers' Compensation Act since such disability, in addition to being congenital, may result from trauma. E. I. Dupont De Nemours & Co. v. Friar, 218 Tenn. 554, 404 S.W.2d 518, 1966 Tenn. LEXIS 588 (1966).

Occupational diseases are embraced within the terms “injury” and “personal injury.” Wittenbarger v. Carr Co., 557 S.W.2d 65, 1977 Tenn. LEXIS 670 (Tenn. 1977).

The death of an employee who dies in the course of his employment by reason of a heart attack, although suffering from a previous heart disease, is covered under the Workers' Compensation Act even if the result was produced only by ordinary exertion and usual strain of the work. Cortrim Mfg. Co. v. Smith, 570 S.W.2d 854, 1978 Tenn. LEXIS 636 (Tenn. 1978).

An injury by accident is not separate from an occupational disease in terms of legal analysis because they both fall within the statutory definition of injury. Gatlin v. Knoxville, 822 S.W.2d 587, 1991 Tenn. LEXIS 511 (Tenn. 1991).

Where police officer's heart attack was not immediately precipitated by a specific acute or sudden stressful event, the trial court's finding of compensability was reversed. Benton v. City of Springfield, 973 S.W.2d 936, 1998 Tenn. LEXIS 351 (Tenn. 1998).

Employee was entitled to workers' compensation benefits because the employee developed a lung condition as a consequence of the employee's exposure at work to grain dust that was produced by a grain facility adjacent to the employer's workplace. Plotner v. Metal Prep, — S.W.3d —, 2014 Tenn. LEXIS 677 (Tenn. Sept. 29, 2014), aff'd, — S.W.3d —, 2014 Tenn. LEXIS 679 (Tenn. Sept. 29, 2014).

67. —Permanent Disfigurement.

Permanent disfigurement is an injury covered by workers' compensation, even if it is not disabling. Clayton v. Pizza Hut, Inc., 673 S.W.2d 144, 1984 Tenn. LEXIS 820 (Tenn. 1984).

68. —Scarring.

Claimant did suffer a compensable injury which arose out of the employment, occurred in the course of employment and caused disablement despite her employer's assertion that her claim should be denied because it was the result of a mere episode of pain resulting from scar tissue which had accumulated as a result of two previous surgeries, did not constitute a new injury and did not advance the severity of her preexisting condition. Fink v. Caudle, 856 S.W.2d 952, 1993 Tenn. LEXIS 378 (Tenn. 1993).

69. —Averment of Employee — Effect.

An employee is bound by his own averment that his employer's physician was of the opinion that his injury was only a back strain that would readily yield to treatment. Netherland v. Mead Corp., 170 Tenn. 520, 98 S.W.2d 76, 1936 Tenn. LEXIS 23 (1936).

70. —Statements in Employment Application.

Three factors must be present before a false statement in an employment application will bar recovery of workers' compensation benefits. First, the employee must have knowingly and willfully made a false representation as to his physical condition. Second, the employer must have relied upon a false representation and this reliance must have been a substantial factor in the hiring. Third, there must have been a causal connection between the false representation and the injury. The causal connection required is a factual showing that the injury upon which the workers' compensation claim is based is causally related to the employee's prior injuries or physical condition which were wrongfully concealed from the employer. Except in the most obvious cases, such causation must be established by expert medical testimony. Quaker Oats Co. v. Smith, 574 S.W.2d 45, 1978 Tenn. LEXIS 675 (Tenn. 1978).

Although the employer insisted that the employee misrepresented her physical condition in making application for employment, and, consequently, could not recover workers' compensation benefits, where evidence that the employee had not had any “back trouble” for several years before her employment supported a finding that the employee did not knowingly or willfully misrepresent her physical condition in making application for employment, and evidence that the employee was required to undergo a pre-employment physical examination by the employer, which revealed no “back trouble,” supported a finding that the employer did not rely solely on the medical history given by the employee in making application for employment, but relied on the medical examination, there was support for the chancellor's finding that the employee was entitled to receive benefits. Quaker Oats Co. v. Smith, 574 S.W.2d 45, 1978 Tenn. LEXIS 675 (Tenn. 1978).

71. —Evidence.

Where employee was found dead in badly ventilated mine where he had been doing heavy manual labor, and doctor testified in workers' compensation trial for death benefits that such air and labor would be contributing causes of death from predisposed heart trouble, although laymen testified he looked healthy, there was sufficient substantial evidence to uphold trial judge's award of compensation. Heron v. Girdley, 198 Tenn. 110, 277 S.W.2d 402, 1955 Tenn. LEXIS 341 (1955).

Medical testimony that it “is possible” or “could be responsible” is not alone sufficient on which to predicate a finding of a causal connection between the accident and the injury for which compensation is sought. Mason & Dixon Lines, Inc. v. Gregory, 206 Tenn. 525, 334 S.W.2d 939, 1960 Tenn. LEXIS 390 (1959).

Where preponderance of proof showed plaintiff's intestate's death resulted from deterioration of the body caused by multiple diseases, the fact that driving a tractor-trailer rig may have been a strain on the body was not sufficient to make out a case or liability under Tennessee's Workers' Compensation Act. Kirby v. Dance Freight Lines, 226 F. Supp. 947, 1964 U.S. Dist. LEXIS 6452 (E.D. Tenn. 1964).

Lay testimony is competent to establish simple but important matters such as the existence of pain, its location, inability to work and the like, but it may not be received and relied on to prove matters requiring scientific knowledge. American Enka Corp. v. Sutton, 216 Tenn. 228, 391 S.W.2d 643, 1965 Tenn. LEXIS 573 (1965).

Evidence was sufficient to support the finding that the employee was disabled as a result of coal worker's pneumoconiosis rather than the heart disease from which the employee also suffered. Consolidated Coal Co. v. Bray, 570 S.W.2d 847, 1978 Tenn. LEXIS 634 (Tenn. 1978).

In a workers' compensation proceeding for total permanent disability benefits for coal worker's pneumoconiosis, the trial court properly excluded from evidence an application and supporting data submitted by the employee, a coal miner, to the United States department of labor in an effort to obtain black lung benefits under federal statutes where the evidence was offered, not for the purpose of impeaching the employee's testimony or to show a prior inconsistent statement on his part or that of any other witness, but as substantive evidence that the employee had not sustained total disability as a result of pneumoconiosis. Consolidated Coal Co. v. Bray, 570 S.W.2d 847, 1978 Tenn. LEXIS 634 (Tenn. 1978).

Where the employee's testimony describing his symptoms and complaints, in general, was admissible, although he was not qualified to testify as to the medical reasons or cause of these, any error of the trial court in not formally striking portions of his testimony from the record was harmless and did not affect the outcome of the case, since the hearing was nonjury and before an experienced chancellor, who was clearly able to eliminate any incompetent evidence from consideration in reaching his decision. Consolidated Coal Co. v. Bray, 570 S.W.2d 847, 1978 Tenn. LEXIS 634 (Tenn. 1978).

A state court, although applying federal standards and criteria, such as are set forth in federal regulations, should make an independent determination of the employee's entitlement to compensation, and it may consider any competent evidence presented on that issue by either party. Consolidated Coal Co. v. Bray, 570 S.W.2d 847, 1978 Tenn. LEXIS 634 (Tenn. 1978).

The trial court did not err in overruling an objection to a hypothetical question as to whether, assuming that the employee was setting up machinery, which involved a tremendous amount of bending, stooping, stretching and reaching, such exertion could have contributed to the employee's fatal heart attack, where the record indicated that adjusting wood-working machines, which is what the employee was engaged in, did consist of such activity and, moreover, the employer had the opportunity to restate the hypothetical question on cross-examination or frame other questions of his own to point out deficiencies in the question posed by the claimant. Cortrim Mfg. Co. v. Smith, 570 S.W.2d 854, 1978 Tenn. LEXIS 636 (Tenn. 1978).

Where there was direct evidence that prior to his fatal heart attack a part-time high school custodian had moved desks and swept one aisle in the room where his body was found, and there was medical testimony that the exertion required of the custodian could be enough to produce a heart attack, the finding of the chancellor that there was a causal connection between the custodian's activities at work and his fatal heart attack was supported by the evidence, and the supreme court was bound by it. Shelby Mut. Ins. Co. v. Dudley, 574 S.W.2d 43, 1978 Tenn. LEXIS 674 (Tenn. 1978).

In “causal connection” cases, facts and circumstances revealed by lay testimony may often have relevancy upon the ultimate determination of that issue, and therefore it is not exclusively within the realm of medical science. Owens Illinois, Inc. v. Lane, 576 S.W.2d 348, 1978 Tenn. LEXIS 695 (Tenn. 1978).

The trial judge is not bound to accept physicians' opinions of the extent of the employee's disability, but is entitled to determine the extent of disability from all of the evidence, both expert and nonexpert. Hinson v. Wal-Mart Stores, Inc., 654 S.W.2d 675, 1983 Tenn. LEXIS 690 (Tenn. 1983).

The preponderance of the evidence established that plaintiff did not injure his chest while at work and that his pulmonary problems for which he was hospitalized were caused by his sickle-cell disease. Sheffield v. Schneider Services Int'l, Inc., 800 S.W.2d 174, 1990 Tenn. LEXIS 432 (Tenn. 1990).

Where the employee testified that she was injured while flipping a piece of wood and the medical records reflected her doctor's opinion that her back condition was work-related, the evidence was sufficient to establish a causal relationship between the employee's work activities and her back injury. Glisson v. Mohon Int'l, Inc., 185 S.W.3d 348, 2006 Tenn. LEXIS 180 (Tenn. 2006).

72. —Burden of Proof.

The plaintiff in a workers' compensation suit, and all civil actions generally, has the burden of proving his case “in all its parts” by a preponderance of the evidence. Owens Illinois, Inc. v. Lane, 576 S.W.2d 348, 1978 Tenn. LEXIS 695 (Tenn. 1978).

73. — —Circumstantial Evidence.

Accidental death within the Workers' Compensation Law is provable by circumstantial evidence just as any other fact may be proven. Riley v. Knoxville Iron Co., 178 Tenn. 107, 156 S.W.2d 398, 1941 Tenn. LEXIS 37 (1941); Heron v. Girdley, 198 Tenn. 110, 277 S.W.2d 402, 1955 Tenn. LEXIS 341 (1955).

Compensable injury may be shown by circumstantial evidence, but the circumstances relied on must be sufficient to make out a prima facie case and at least take it out of the realm of speculation. Smith v. Fentress Coal & Coke Co., 188 Tenn. 656, 222 S.W.2d 3, 1949 Tenn. LEXIS 386 (1949).

An expert is not required to testify that trauma is the cause of employee's disability but it is sufficient if the expert testifies that trauma could or might be the cause of the disability in determining issue whether trauma or disease is the cause of the disability sustained. Benjamin F. Shaw Co. v. Musgrave, 189 Tenn. 1, 222 S.W.2d 22, 1949 Tenn. LEXIS 394 (1949).

The fact of accident may be established not only by direct evidence but as well by circumstances reasonably leading to an inference that an accident occurred. Railway Express Agency, Inc. v. Clark, 194 F.2d 29, 1952 U.S. App. LEXIS 2725 (6th Cir. Tenn. 1952).

Complaint for compensation which alleged that plaintiff was injured as result of fall did not bar expert testimony that fall aggravated a preexisting disease, hence exclusion of expert testimony by trial court was prejudicial error. Ledford v. Miller Bros. Co., 194 Tenn. 467, 253 S.W.2d 552, 1952 Tenn. LEXIS 405 (1952).

Finding a person dead at his post of duty does not alone raise a prima facie case for compensation, but where physical exertion is also proven a prima facie case may, depending on circumstances, be made out that death was due to an accident arising out of, and in the course of employment. Heron v. Girdley, 198 Tenn. 110, 277 S.W.2d 402, 1955 Tenn. LEXIS 341 (1955).

74. — —Expert Testimony.

Where the cause of an existing condition or injury is in dispute, an expert's opinion may be admitted to the effect that a certain cause could or might produce the condition, but to permit him to testify as to what in his opinion probably did produce it would be error. Sanders v. Blue Ridge Glass Corp., 161 Tenn. 535, 33 S.W.2d 84, 1930 Tenn. LEXIS 40 (1930).

Where previously healthy claimant suffered heart attack while engaged in hot, heavy work, and attendant doctor testified that there was a causal relationship, there was sufficient evidence that the injury arose out of employment. Powers v. Beasley, 197 Tenn. 549, 276 S.W.2d 720, 1955 Tenn. LEXIS 315 (1955).

Optometrist's testimony that prior to accidental splashing of acid into his right eye claimant had 20-20 vision, and after the accident had 20-400 vision therein, was valuable in measuring the sight before and after the accident; however, since his training was not in diseases of the eye, his testimony could not be considered material evidence to support award to claimant for loss of eyesight. American Enka Corp. v. Sutton, 216 Tenn. 228, 391 S.W.2d 643, 1965 Tenn. LEXIS 573 (1965).

Where both an optometrist and workers' compensation claimant testified that splashing of acid in claimant's right eye caused loss of vision, but a specialist in ophthalmology testified that there was no possible connection between the accident and optic neuritis which caused the loss of vision, the evidence failed to support award for loss of use of the eye. American Enka Corp. v. Sutton, 216 Tenn. 228, 391 S.W.2d 643, 1965 Tenn. LEXIS 573 (1965).

Where expert witness testified that employee's work could have been a contributing factor to employee's stroke, there was sufficient evidence to establish a connection between the work and the stroke, and to support a claim for compensation, even though employee was suffering from arteriosclerosis. Forest Products v. Parvin, 532 S.W.2d 908, 1975 Tenn. LEXIS 613 (Tenn. 1975).

Where the physician who testified on the issue of permanence of disability performed several physical examinations, some of which revealed objective signs of injury and treated plaintiff for several months, the fact that he noted no objective signs of back injury on several examinations of plaintiff did not per se destroy the probative value of his testimony. Travelers Ins. Co. v. Flatford, 551 S.W.2d 695, 1977 Tenn. LEXIS 532 (Tenn. 1977).

Where the physician who testified on the issue of permanence of disability was not sure whether the back injury was to a disc or was an acute lumbar strain and the only way to resolve the doubt was to perform an operation which might increase the injury to plaintiff, the court found his testimony sufficient to support a finding for plaintiff. Travelers Ins. Co. v. Flatford, 551 S.W.2d 695, 1977 Tenn. LEXIS 532 (Tenn. 1977).

A trial judge may properly predicate an award on medical testimony to the effect that a given incident “could be” the cause of the plaintiff's injury, when he also has before him lay testimony from which it may reasonably be inferred that the incident was in fact the cause of the injury. P & L Constr. Co. v. Lankford, 559 S.W.2d 793, 1978 Tenn. LEXIS 702 (Tenn. 1978); Cortrim Mfg. Co. v. Smith, 570 S.W.2d 854, 1978 Tenn. LEXIS 636 (Tenn. 1978).

Although the greater number of witnesses were of the opinion that there was no causal connection between the accident and the subsequent optic neuritis, it was within the discretion of the trial judge to conclude that the opinion of one expert should be accepted over those of the other experts and that it contained the most probable explanation. Combustion Engineering, Inc. v. Kennedy, 562 S.W.2d 202, 1978 Tenn. LEXIS 585 (Tenn. 1978).

Testimony of employee and other lay witnesses who first establish a proper factual foundation is admissible on issue of employee's inability to work and may be sufficient to establish that fact without expert medical testimony. Simpson v. Satterfield, 564 S.W.2d 953, 1978 Tenn. LEXIS 543 (Tenn. 1978).

No expert medical testimony is required to show the causal connection between an employee's injury and his inability to work where the nature of the injury and the result produced thereby, as testified to by lay witnesses, makes evident to the lay mind, based upon the common knowledge and experience of mankind, that the causal connection exists. Simpson v. Satterfield, 564 S.W.2d 953, 1978 Tenn. LEXIS 543 (Tenn. 1978).

When causal connection and permanency of the injury have been established by expert medical testimony, the trial judge is not bound to accept the doctors' opinions of the extent of the employee's disability. Trane Co. v. Morrison, 566 S.W.2d 849, 1978 Tenn. LEXIS 557 (Tenn. 1978).

A plaintiff must establish the permanency of his disability by a preponderance of the evidence which must be accomplished through expert medical testimony. A fortiori, any expert medical witness presented must give testimony that preponderates in favor of permanency to qualify as having probative value on that issue. Owens Illinois, Inc. v. Lane, 576 S.W.2d 348, 1978 Tenn. LEXIS 695 (Tenn. 1978).

The determination of the issue of permanency of all but the most obvious injuries, such as loss of a member, is peculiarly within the realm of scientific knowledge. Thus, an award of permanent partial disability for an injury must be supported by expert medical testimony that the resulting condition is permanent. Owens Illinois, Inc. v. Lane, 576 S.W.2d 348, 1978 Tenn. LEXIS 695 (Tenn. 1978).

Where employee sought compensation for permanent partial disability to his foot, the doctor's testimony that permanent disability was “just a possibility” and that chances were 40 percent for and 60 percent against permanency clearly failed to preponderate in favor of permanency. Owens Illinois, Inc. v. Lane, 576 S.W.2d 348, 1978 Tenn. LEXIS 695 (Tenn. 1978).

75. — —“Rule of Reasonable Inference.”

Under the “rule of reasonable inference,” where from the medical testimony, two inferences could be drawn and the medical testimony more strongly supports one of them, as a matter of law the court is authorized to adopt the stronger inference. Howell v. Charles H. Bacon Co., 98 F. Supp. 567, 1951 U.S. Dist. LEXIS 2266 (D. Tenn. 1951), aff'd, 197 F.2d 333, 1952 U.S. App. LEXIS 2625 (6th Cir. Tenn. 1952).

No prima facie case that workers' compensation claimant was killed in course of employment is made out, where night clerk of flop house was found during working hours murdered by persons and for reasons unknown; since where employee is found at post during customary hours and there is no direct evidence of manner of his death, inference may arise that it was in course of employment, but if facts indicate more than one reasonable inference as to cause of death, the rule does not apply. Reed v. Langford, 197 Tenn. 587, 276 S.W.2d 735, 1955 Tenn. LEXIS 322 (1955).

76. — —Statement in Death Certificate — Effect.

A statement in a death certificate that death was “due to probable heart attack” was insufficient, in an action for workers' compensation, to overcome the inference that the employee, an able-bodied, healthy man who collapsed and died while loading timber on a very hot day, died of heat prostration. Milstead v. Kaylor, 186 Tenn. 642, 212 S.W.2d 610, 1948 Tenn. LEXIS 592 (1948).

77. —Presumptions Resolved in Favor of Employee.

Where, in the course of and arising out of his employment, an employee in good health and of strong physique suffers physical injury which is followed by serious disabilities, and competent physicians differ as to whether the disabilities are attributable to the injury, but only probable or conjectural reasons or causes are assigned by the physicians in an effort to explain the disabilities on grounds other than the injury, the presumptions should be resolved in favor of the employee rather than against him. Milstead v. Kaylor, 186 Tenn. 642, 212 S.W.2d 610, 1948 Tenn. LEXIS 592 (1948).

Award cannot be based solely on medical experts' testimony that accident possibly could cause injury, but it may be if there is other evidence to reasonably infer such result. Lynch v. La Rue, 198 Tenn. 101, 278 S.W.2d 85, 1955 Tenn. LEXIS 351 (1955).

78. —Previous Recovery from Another Employer — Effect.

For law on subsequent injuries, see § 50-6-208.

Recovery from a former employer for permanent loss of an eye does not preclude recovery for the loss of that member against a subsequent employer eight years later. Claimant may show that he and the former employer were mistaken as to such loss, as demonstrated by the event. Loss of an eye not wholly useless is within the schedule of award for loss of an eye. Williams v. S. & W. Const. Co., 167 Tenn. 84, 66 S.W.2d 992, 1933 Tenn. LEXIS 8 (1934).

That the claimant had received compensation for permanent and total loss of the same eye from a previous employer eight years before accident relied upon is competent as tending to show whether the claimant has such an eye to lose. Williams v. S. & W. Const. Co., 167 Tenn. 84, 66 S.W.2d 992, 1933 Tenn. LEXIS 8 (1934).

79. Arising out of and in Course of Employment.

The test of compensable injury is one of contract and not conduct. If the employee is doing that which by his contract, either expressly or by implication is made his duty, he is in the course of his employment, however negligent his conduct may be. Leonard v. Cranberry Furnace Co., 150 Tenn. 346, 265 S.W. 543, 1924 Tenn. LEXIS 11 (1924).

An accident arises “in course of employment” if it occurs while employee is doing what a man so employed may reasonably do in the time during which he is reasonably employed and at a place where he may reasonably be during that time. Shockley v. Morristown Produce & Ice Co., 158 Tenn. 148, 11 S.W.2d 900, 1928 Tenn. LEXIS 135 (1928).

An accident arises in course of employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be done and the resultant injury. Chamber of Commerce v. Turner, 158 Tenn. 323, 13 S.W.2d 318, 1928 Tenn. LEXIS 156 (1929); Porter v. Travelers' Ins. Co., 163 Tenn. 526, 43 S.W.2d 1066, 1931 Tenn. LEXIS 144 (1931); Jellico Grocery Co. v. Hendrickson, 172 Tenn. 148, 110 S.W.2d 333, 1937 Tenn. LEXIS 64 (1937); Whaley v. Patent Button Co., 184 Tenn. 700, 202 S.W.2d 649, 1947 Tenn. LEXIS 291 (1947); Davis v. Wabash Screen Door Co., 185 Tenn. 169, 204 S.W.2d 87, 1947 Tenn. LEXIS 316 (1947); Tapp v. Tapp, 192 Tenn. 1, 236 S.W.2d 977, 1951 Tenn. LEXIS 374 (1951); Fink v. Caudle, 856 S.W.2d 952, 1993 Tenn. LEXIS 378 (Tenn. 1993).

In order for an injury to arise out of the course of employment within the meaning of the statute there must exist a causal connection between the conditions of employment and the resulting injury so that it will appear that such injury resulted from a peculiar condition or danger to which the employment exposed the worker. Scott v. Shinn, 171 Tenn. 478, 105 S.W.2d 103, 1937 Tenn. LEXIS 127 (1937); Toombs v. Liberty Mut. Ins. Co., 173 Tenn. 38, 114 S.W.2d 785, 1937 Tenn. LEXIS 10 (1938).

An injury arises out of the employment where there is a causal connection between the injury and the employment. Jellico Grocery Co. v. Hendrickson, 172 Tenn. 148, 110 S.W.2d 333, 1937 Tenn. LEXIS 64 (1937); Employers' Liability Assurance Corp. v. Warren, 172 Tenn. 403, 112 S.W.2d 837, 1937 Tenn. LEXIS 89 (1938); Toombs v. Liberty Mut. Ins. Co., 173 Tenn. 38, 114 S.W.2d 785, 1937 Tenn. LEXIS 10 (1938).

The term “in the course of employment” refers to the time, place and circumstances under which the injury occurred. Tullahoma v. Ward, 173 Tenn. 91, 114 S.W.2d 804, 1937 Tenn. LEXIS 16 (1938).

If the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises “out of” the employment. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment and have flowed from that source as a rational consequence. Davis v. Wabash Screen Door Co., 185 Tenn. 169, 204 S.W.2d 87, 1947 Tenn. LEXIS 316 (1947).

Mere presence at a place where injury takes place is not sufficient to make injury compensable unless injury is related to the employment. Thornton v. RCA Service Co., 188 Tenn. 644, 221 S.W.2d 954, 1949 Tenn. LEXIS 384 (1949).

An injury arises out of the employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work was required to be performed and the resulting injury. T. J. Moss Tie Co. v. Rollins, 191 Tenn. 577, 235 S.W.2d 585, 1951 Tenn. LEXIS 361 (1951); Bell v. Kelso Oil Co., 597 S.W.2d 731, 1980 Tenn. LEXIS 447 (Tenn. 1980).

Injury, in order to be considered as arising out of employment under Workers' Compensation Law, must result from a danger peculiar to the work and not common to the neighborhood and an injury purely coincidental, or contemporaneous, or collateral, with the employment will not cause the injury to be considered as arising out of the employment. Jackson v. Clark & Fay, Inc., 197 Tenn. 135, 270 S.W.2d 389, 1954 Tenn. LEXIS 464 (1954).

In order to be compensable the injury suffered by the employee must arise out of and in the course of his employment. Armstrong v. Liles Constr. Co., 215 Tenn. 678, 389 S.W.2d 261, 1965 Tenn. LEXIS 641 (1965).

Where deceased had left his place of employment and had gone to his apartment on the same premises for rest or association with his family and had retired when fatal heart attack occurred, relationship of master and servant was suspended and injury did not arise out of or in course of his employment where there was no proof of an injury or accident connected with his work to which heart attack could be related. Travelers Ins. Co. v. Googe, 217 Tenn. 272, 397 S.W.2d 368, 1965 Tenn. LEXIS 543 (1965); Bowman v. Smith-Built Homes, Inc., 221 Tenn. 102, 424 S.W.2d 801, 1967 Tenn. LEXIS 358 (1967).

An injury by accident to an employee is “in the course of” employment if it occurred while he was performing a duty he was employed to do and it is an injury “arising out of” employment if caused by a hazard incident to such employment. Travelers Ins. Co. v. Googe, 217 Tenn. 272, 397 S.W.2d 368, 1965 Tenn. LEXIS 543 (1965); Travelers Ins. Co. v. Evans, 221 Tenn. 199, 425 S.W.2d 611, 1968 Tenn. LEXIS 457 (1968); Williams v. Preferred Development Corp., 224 Tenn. 174, 452 S.W.2d 344, 1970 Tenn. LEXIS 310 (1970).

Mere presence of an employee at the place of injury because of employment will not alone result in the injury being considered as arising out of employment and if the injury or death resulted from an exposure which is no more or different from that of any other member of the public similarly situated in place and time it is not compensable. Knox v. Batson, 217 Tenn. 620, 399 S.W.2d 765, 1966 Tenn. LEXIS 617, 1966 Tenn. LEXIS 618 (1966), overruled in part, Lollar v. Wal-Mart Stores, Inc., 767 S.W.2d 143, 1989 Tenn. LEXIS 38, 4 A.L.R.5th 1086 (Tenn. 1989).

An employer is not liable for workers' compensation benefits to an employee who is injured in an attempt to rescue a stranger, under circumstances in which the employer has no pecuniary or proprietary interest in the rescue as such and no responsibility for creating the danger out of which the rescue attempt arose. Lennon Co. v. Ridge, 219 Tenn. 623, 412 S.W.2d 638, 1967 Tenn. LEXIS 453 (1967).

The mere presence of an employee at the place of injury because of employment will not result in the injury being considered as arising out of the employment. Travelers Ins. Co. v. Evans, 221 Tenn. 199, 425 S.W.2d 611, 1968 Tenn. LEXIS 457 (1968).

The fact that employee was on job site at time of death by heart attack was not in and of itself determinative of the question of whether death arose out of and in the course of his employment. Chapman v. Aetna Casualty & Surety Co., 221 Tenn. 376, 426 S.W.2d 760, 1968 Tenn. LEXIS 470 (1968).

Where an employee becomes helpless in the course of employment due to illness or other cause not related to his employment, is in dire need of medical attention or other assistance in order to prevent further injury and the employer has the ability to make such medical attention or other assistance available but does not do so, the disability which results from this failure of the employer is to be considered as having arisen out of and in the course of employment; however, an employer is not required to force medical treatment upon an unwilling employee who is conscious and rational at the time. Vanderbilt University v. Russell, 556 S.W.2d 230, 1977 Tenn. LEXIS 612 (Tenn. 1977).

In determining whether an accident arose out of and in the course of the employment, each case must be decided with respect to its own attendant circumstances and not by resort to some formula. Bell v. Kelso Oil Co., 597 S.W.2d 731, 1980 Tenn. LEXIS 447 (Tenn. 1980).

Accident and injury were found to have arisen out of and in the course of the employment of the employee. Wellington v. John Morrell & Co., 619 S.W.2d 116, 1981 Tenn. LEXIS 461 (Tenn. 1981).

An injury arises out of and in the course of employment if it has a rational causal connection to the work and occurs while the employee is engaged in the duties of his employment, and any reasonable doubt as to whether an injury arose out of the employment or not is to be resolved in favor of the employee. Hall v. Auburntown Industries, Inc., 684 S.W.2d 614, 1985 Tenn. LEXIS 468 (Tenn. 1985).

If, because of the nature of the work, there is a special risk of exposure, beyond that incurred by the general public, to criminal attacks or to the violence of the elements, the injury is one arising out of the employment. Hall v. Auburntown Industries, Inc., 684 S.W.2d 614, 1985 Tenn. LEXIS 468 (Tenn. 1985).

The mere presence of an employee at the place of injury because of his employment will not alone result in the injury being considered as arising out of the employment; the injury must be occasioned by and must “arise out of” the employment as well as “in the course of” employment. Jordan v. United Methodist Urban Ministries, Inc., 740 S.W.2d 411, 1987 Tenn. LEXIS 1012 (Tenn. 1987).

Plaintiff's medical problems did not arise out of and in the course of his employment. La-Z-Boy Chair Co. v. Reed, 778 F. Supp. 954, 1990 U.S. Dist. LEXIS 19446 (E.D. Tenn. 1990), aff'd, 936 F.2d 573, 1991 U.S. App. LEXIS 19988 (6th Cir. Tenn. 1991).

“In the course of employment,” for plant employees having a fixed time to clock in, embraces a reasonable interval before and after actual working hours while the employee is on the premises engaged in preparatory or incidental acts. Carter v. Volunteer Apparel, Inc., 833 S.W.2d 492, 1992 Tenn. LEXIS 309 (Tenn. 1992).

Employee security guard's death did not arise from generalized employment condition but rather from something beyond the norm even for a security guard, where individuals whom security guard chased from the property not only regularly confronted the guard verbally, but also threatened to return and kill him. Cunningham v. Shelton Sec. Serv., 46 S.W.3d 131, 2001 Tenn. LEXIS 140 (Tenn. 2001), rehearing denied, Cunningham v. Shelton Sec. Serv., Inc. , — S.W.3d —, 2001 Tenn. LEXIS 381 (Tenn. 2001).

The mere presence of an employee at the place of injury because of employment is not sufficient to establish entitlement to worker's compensation, as the injury must result from a danger or hazard peculiar to the work or be caused by a risk inherent in the nature of the work. Cunningham v. Shelton Sec. Serv., 46 S.W.3d 131, 2001 Tenn. LEXIS 140 (Tenn. 2001), rehearing denied, Cunningham v. Shelton Sec. Serv., Inc. , — S.W.3d —, 2001 Tenn. LEXIS 381 (Tenn. 2001).

Trial court properly denied an employee workers' compensation benefits under T.C.A. § 50-6-102 as her injury did not result from a danger or hazard peculiar to her work; rather, it occurred while she was undertaking a voluntary test as part of the application process for a job she did not have and may not have gotten even if she passed the test. This case fell within the rule that an injury which is merely coincidental, contemporaneous, or collateral with the employment is not compensable. Blankenship v. Am. Ordnance Sys., LLC, 164 S.W.3d 350, 2005 Tenn. LEXIS 401 (Tenn. 2005).

Where the employee of a nursing home was injured in an automobile accident while traveling to a training facility, the accident arose out of and was in the course of her employment within the meaning of T.C.A. § 50-6-102. This trip fell within the “special errand or mission” exception because it was a special assignment at the direction of the employer. Hubble v. Dyer Nursing Home, 188 S.W.3d 525, 2006 Tenn. LEXIS 301 (Tenn. 2006).

80. —Evidence.

Where there was evidence that petitioner was struck across his lower back by a plank knocking him to the ground and doctor testified that the injury caused the herniated disc, evidence was sufficient to support finding of trial court that employee's herniated disc was the result of an accident arising out of and in the course of employment. Atlas Powder Co. v. Grimes, 200 Tenn. 206, 292 S.W.2d 13, 1956 Tenn. LEXIS 397 (1956).

If there is any conflict in the evidence as to whether an accident arose out of and within the course of employment or in the inferences to be drawn therefrom, or if the evidence is undisputed but the minds of reasonable men may draw different conclusions from the same, it cannot be stated that a pure question of law is presented but rather a question of fact. Volz v. Southerland, 200 Tenn. 344, 292 S.W.2d 385, 1956 Tenn. LEXIS 416 (1956).

The burden rests upon the employee to show a causal connection between his injury and his employment but by causal connection is meant not proximate cause as used in the law of negligence but cause in the sense that the accident had its origin in the hazards to which the employment exposed the employee in doing the work. Volz v. Southerland, 200 Tenn. 344, 292 S.W.2d 385, 1956 Tenn. LEXIS 416 (1956); White v. Whiteway Pharmacy, Inc., 210 Tenn. 449, 360 S.W.2d 12, 1962 Tenn. LEXIS 306 (1962).

Evidence sustained finding of trial court that construction employee whose death resulted from burns suffered when he overturned bucket containing waste and diesel oil which he had lighted to keep warm in ditch where he was working died as a result of an accident arising out of and in the course of his employment. Volz v. Southerland, 200 Tenn. 344, 292 S.W.2d 385, 1956 Tenn. LEXIS 416 (1956).

Where traveling salesman operated under rule by which the salesman remained in the territory in which they were operating until the job was completed unless it would be less expensive for them to return to headquarters and in the particular instance such salesman was more than a hundred miles from the headquarters and he was not told to return home, death of such salesman resulting from automobile accident which occurred while traveling to his home over the weekend did not arise out of and in the course of his employment. Timmerman v. Kerr Glass Mfg. Co., 203 Tenn. 543, 314 S.W.2d 31, 1958 Tenn. LEXIS 329 (1958).

Evidence sustained trial court's finding that work which decedent had done on the day of his death following his period of rest at the dispensary contributed to onset of fatal heart attack and thus his death arose out of his employment. Aetna Casualty & Surety Co. v. Johnson, 278 F.2d 200, 1960 U.S. App. LEXIS 4678 (6th Cir. Tenn. 1960).

Burden is on the claimant to establish that the injury or death arose out of and in the course of the employment. Gridley v. Liberty Mut. Ins. Co., 208 Tenn. 124, 344 S.W.2d 356, 1961 Tenn. LEXIS 403 (1961).

Evidence to the effect that employee left his automobile and deliberately ran 30 feet and placed his body beneath a moving train sustained the finding of the trial judge that employee's death resulted from suicide and did not arise out of and in the course of his employment as sales manager. Gridley v. Liberty Mut. Ins. Co., 208 Tenn. 124, 344 S.W.2d 356, 1961 Tenn. LEXIS 403 (1961).

Injury to policeman during off-duty hours occurring as a result of an offense committed in his presence was compensable where policemen were obligated to make such arrests. Gallatin v. Anderson, 209 Tenn. 392, 354 S.W.2d 84, 1962 Tenn. LEXIS 369 (1962).

From evidence which established that a pot attendant for an aluminum company had a diseased heart when he began work on the day of his heart attack, the court found as a fact that exertion of his work either aggravated the heart condition or his physical disability, or caused the attack which resulted in his death; therefore, the deceased sustained an accident arising out of and in the course of his employment. Blair v. Aluminum Co. of America, 217 F. Supp. 471, 1962 U.S. Dist. LEXIS 3077 (E.D. Tenn. 1962).

If there was a causal connection between deceased's heart attack and his work, then his disability and death resulted from an accident that arose out of and in the course of his employment. Blair v. Aluminum Co. of America, 217 F. Supp. 471, 1962 U.S. Dist. LEXIS 3077 (E.D. Tenn. 1962).

“Arising out of” and “in the course of” are but facets of the single question of whether the injury was accidental and work-connected. Central Motor Express, Inc. v. Burney, 214 Tenn. 118, 377 S.W.2d 947, 1964 Tenn. LEXIS 456 (1964).

Evidence that employee suffered heart attack shortly after he returned from lunch hour during which he had mowed lawn on hot day and became ill shortly after return would not support finding of causal connection between injury and employment. Cas Walker's Cash Stores, Inc. v. Livesay, 215 Tenn. 306, 385 S.W.2d 745, 1965 Tenn. LEXIS 618 (1965).

If, upon undisputed proof, it is conjectural whether disability resulted from a cause operating within petitioner's employment, or a cause operating without his employment, there can be no award. Tibbals Flooring Co. v. Stanfill, 219 Tenn. 498, 410 S.W.2d 892, 1967 Tenn. LEXIS 369 (1967).

Where the employer construction company frequently performed work in localities away from its principal office, and the employees were required to provide their own transportation and were not paid for any time up until they actually went to work on the job site, the plaintiff employee was simply a commuter, and the accident which occurred on the 115 mile trip back to his home from the job site did not arise out of his employment. Smith v. Royal Globe Ins. Co., 551 S.W.2d 679, 1977 Tenn. LEXIS 527 (Tenn. 1977).

Where the death certificate stated that the cause of death in an automobile accident was “an apparent heart attack,” and although there was a stipulation that death occurred in the course of deceased's employment, and testimony that deceased was a hard worker and frequent traveler, this was not sufficient to raise presumption that death arose out of employment. Collins v. Liberty Mut. Ins. Co., 561 S.W.2d 456, 1978 Tenn. LEXIS 582 (Tenn. 1978).

The medical proof that the injury was caused in the course of the employee's work must not be speculative or so uncertain regarding the cause of injury that attributing it to the plaintiff's employment would be an arbitrary determination or a mere possibility. Bolton v. CNA Ins. Co., 821 S.W.2d 932, 1991 Tenn. LEXIS 483 (Tenn. 1991).

Evidence supported the trial court's finding that conditions of employment — stress associated with driving a truck through an ice storm — precipitated the employee's stroke. Reeser v. Yellow Freight Sys., 938 S.W.2d 690, 1997 Tenn. LEXIS 107 (Tenn. 1997).

Where an employee suffered a fatal heart attack while driving the employer's vehicle home from work, the employee's widow and son were entitled to death benefits, funeral expenses, and medical expenses; the trial court was permitted to believe his doctor's testimony that the employee's heart attack could have resulted from the physical exertion of his job. Clark v. Nashville Mach. Elevator Co., 129 S.W.3d 42, 2004 Tenn. LEXIS 173 (Tenn. 2004).

Evidence did not preponderate against the trial court's finding that the employee's death arose out of his employment where the shooting was related to the employee's employment as he was outside the employer's office waiting to get paid in accordance with the employer's payment procedure when the shooting occurred; the shooting occurred while the employee was within the time and place of his employment and while he was following the employer's procedures for collecting his paycheck. Hurst v. Ready, 197 S.W.3d 756, 2006 Tenn. LEXIS 598 (Tenn. July 7, 2006).

81. —“Arising out of” and “In Course of” Distinguished.

“Arising out of employment” refers to the origin of the injury, while “in course of employment” refers to time, place and circumstance. Hendrix v. Franklin State Bank, 154 Tenn. 287, 290 S.W. 30, 1926 Tenn. LEXIS 125 (1926); Early Stratton Co. v. Rollison, 156 Tenn. 256, 300 S.W. 569, 1927 Tenn. LEXIS 110 (1927); McConnell v. Lancaster Bros., 163 Tenn. 194, 42 S.W.2d 206, 1931 Tenn. LEXIS 97 (1931); McAdams v. Canale, 200 Tenn. 655, 294 S.W.2d 696, 1956 Tenn. LEXIS 451 (1956); Shubert v. Steelman, 214 Tenn. 102, 377 S.W.2d 940, 1964 Tenn. LEXIS 454 (1964).

The injury must arise “out of” the employment as well as “in the course of” employment. Thornton v. RCA Service Co., 188 Tenn. 644, 221 S.W.2d 954, 1949 Tenn. LEXIS 384 (1949); McAdams v. Canale, 200 Tenn. 655, 294 S.W.2d 696, 1956 Tenn. LEXIS 451 (1956).

The qualifying terms of this section are connected by the conjunction and both conditions must obtain before compensation for the injury can be claimed. It is not sufficient that the injury resulted from an accident received in the course of employment. Smith v. Camel Mfg. Co., 192 Tenn. 670, 241 S.W.2d 771, 1951 Tenn. LEXIS 314 (1951), overruled in part, Lollar v. Wal-Mart Stores, Inc., 767 S.W.2d 143, 1989 Tenn. LEXIS 38, 4 A.L.R.5th 1086 (Tenn. 1989).

The terms “arising out of employment” and “in the course of employment” are not synonymous, and if an employee suffers an accident in the course of employment it does not necessarily follow that the injury arose out of and in the course of his employment. Sandlin v. Gentry, 201 Tenn. 509, 300 S.W.2d 897, 1957 Tenn. LEXIS 330 (1957).

The phrases “arising out of” and “in the course of” are not synonymous, but, rather, embody distinct concepts which are primarily basic to liability under the Workers' Compensation Law. Knox v. Batson, 217 Tenn. 620, 399 S.W.2d 765, 1966 Tenn. LEXIS 617, 1966 Tenn. LEXIS 618 (1966), overruled in part, Lollar v. Wal-Mart Stores, Inc., 767 S.W.2d 143, 1989 Tenn. LEXIS 38, 4 A.L.R.5th 1086 (Tenn. 1989).

The phrase “in the course of” refers to time and place and “arising out of” to cause or origin. Chapman v. Aetna Casualty & Surety Co., 221 Tenn. 376, 426 S.W.2d 760, 1968 Tenn. LEXIS 470 (1968).

The phrase, “in the course of,” refers to time and place, and “arising out of,” to cause or origin; an injury by accident to an employee is “in the course of” employment if it occurred while he was performing a duty he was employed to do, and it is an injury “arising out of” employment if caused by a hazard incident to such employment, citing Travelers Ins. Co. v. Googe, 217 Tenn. 272, 397 S.W.2d 368, 1965 Tenn. LEXIS 543 (1965); Bell v. Kelso Oil Co., 597 S.W.2d 731, 1980 Tenn. LEXIS 447 (Tenn. 1980).

The terms “arising out of employment” and “in the course of employment” are not synonymous; an injury occurs “in the course of employment” if it takes place while the employee was performing a duty he was employed to perform; in contrast, “arising out of” employment refers to cause or origin. Houser v. Bi-Lo, Inc., 36 S.W.3d 68, 2001 Tenn. LEXIS 54 (Tenn. 2001).

An injury occurs “in the course of” employment if it takes place while the employee was performing a duty he was employed to perform, whereas an injury arises out of employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be done and the resultant injury. Cunningham v. Shelton Sec. Serv., 46 S.W.3d 131, 2001 Tenn. LEXIS 140 (Tenn. 2001), rehearing denied, Cunningham v. Shelton Sec. Serv., Inc. , — S.W.3d —, 2001 Tenn. LEXIS 381 (Tenn. 2001).

Statutory requirements that the injury arise out of and occur in the course of the employment are not synonymous; an injury occurs in the course of employment if it takes place while the employee was performing a duty he or she was employed to perform, and therefore the course of employment requirement focuses on the time, place, and circumstances of the injury. Clark v. Nashville Mach. Elevator Co., 129 S.W.3d 42, 2004 Tenn. LEXIS 173 (Tenn. 2004).

82. —“Employment”.

83. — —Construction and Application of Term.

The word “employment” as used in this statute will be given a liberal rather than a restricted meaning. McAdams v. Canale, 200 Tenn. 655, 294 S.W.2d 696, 1956 Tenn. LEXIS 451 (1956).

Employee may not recover workers' compensation benefits for emotional injuries resulting from sexual harassment by a supervisor because the employee's injuries did not arise out of her employment where supervisor's motive for harassment was purely personal in nature, was not related to furthering the business of the employer and there is no indication that the nature of the employer's business was such that the risk of harassment was a reasonable hazard of or normal component of the employee's working relationship. Anderson v. Save-A-Lot, Ltd., 989 S.W.2d 277, 1999 Tenn. LEXIS 45 (Tenn. 1999), rehearing denied, — S.W.3d —, 1999 Tenn. LEXIS 110 (Tenn. Mar. 1, 1999).

84. —Injury within Contemplation — Requirement.

The injury, to be compensable, must be one that by the exercise of foresight the employer might have contemplated as a result of engaging in the business and contracting with his workmen. Leonard v. Cranberry Furnace Co., 150 Tenn. 346, 265 S.W. 543, 1924 Tenn. LEXIS 11 (1924); Davis v. Wabash Screen Door Co., 185 Tenn. 169, 204 S.W.2d 87, 1947 Tenn. LEXIS 316 (1947); Bell v. Kelso Oil Co., 597 S.W.2d 731, 1980 Tenn. LEXIS 447 (Tenn. 1980).

Recovery will be denied when the employee voluntarily engages in work not only outside of his employment but involving an added element of peril which could not reasonably have been anticipated as applicable to the work for which he had been employed. Leonard v. Cranberry Furnace Co., 150 Tenn. 346, 265 S.W. 543, 1924 Tenn. LEXIS 11 (1924).

In order to be compensable, an injury need not to have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence, and reasonably have been, if thought of at the time of employment, considered a risk. Jackson v. Clark & Fay, Inc., 197 Tenn. 135, 270 S.W.2d 389, 1954 Tenn. LEXIS 464 (1954).

If the injury can be seen to have followed as a natural incident of the work of the employee and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment it arises out of the employment. Volz v. Southerland, 200 Tenn. 344, 292 S.W.2d 385, 1956 Tenn. LEXIS 416 (1956).

An accident arises out of employment when it is apparent to the rational mind upon consideration of all the circumstances that there is a causal connection between work required to be done and the resultant injury. Sandlin v. Gentry, 201 Tenn. 509, 300 S.W.2d 897, 1957 Tenn. LEXIS 330 (1957).

Ordinary and usual exertion at work resulting in injury is compensable. Nashville Pure Milk Co. v. Rychen, 204 Tenn. 575, 322 S.W.2d 432, 1958 Tenn. LEXIS 277 (1958).

In order to be compensable, an injury need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence and reasonably have been, if thought of at the time of employment, considered a risk. West Tennessee Nix-A-Mite Systems, Inc. v. Funderburk, 208 Tenn. 381, 346 S.W.2d 250, 1961 Tenn. LEXIS 296 (1961); Central Motor Express, Inc. v. Burney, 214 Tenn. 118, 377 S.W.2d 947, 1964 Tenn. LEXIS 456 (1964); Ward v. Ward, 213 Tenn. 657, 378 S.W.2d 754, 1964 Tenn. LEXIS 434 (1964).

There must be some causal relation between the employment and the injury, but if the injury is one which after the event may seem to have had its origin in the employment, it need not be shown that it is one that ought to have been foreseen or expected. W. S. Dickey Mfg. Co. v. Moore, 208 Tenn. 576, 347 S.W.2d 493, 1961 Tenn. LEXIS 323 (1961).

The question of whether a death resulting from a heart attack in the course of employment can be compensable as arising out of the employment is a question of fact to be resolved by the trial court on the basis of whether or not there was a causal connection between the heart attack and the employment. Ward v. Commercial Ins. Co., 213 Tenn. 100, 372 S.W.2d 292, 1963 Tenn. LEXIS 473 (1963); Cas Walker's Cash Stores, Inc. v. Livesay, 215 Tenn. 306, 385 S.W.2d 745, 1965 Tenn. LEXIS 618 (1965).

85. —Acts for Employer's Benefit.

Acts for the employer's benefit are usually held to arise out of the employment, if expressly, impliedly or reasonably authorized. Tallent v. M. C. Lyle & Son, 187 Tenn. 482, 216 S.W.2d 7, 1948 Tenn. LEXIS 454 (1948); McAdams v. Canale, 200 Tenn. 655, 294 S.W.2d 696, 1956 Tenn. LEXIS 451 (1956); Sharp v. Jenkins, 211 Tenn. 691, 367 S.W.2d 464, 1963 Tenn. LEXIS 392 (1963).

Where duties of employee employed by sole employer were many and varied and include driving employer's automobile both for business purposes and for purposes purely personal to the employer, and where employee was injured while driving employer on a trip which was purely personal to the employer but which was not personal to employee and which employee was making solely because directed to do so by employer, employee's injury arose out of and was in the course of employment and was compensable under statute. McAdams v. Canale, 200 Tenn. 655, 294 S.W.2d 696, 1956 Tenn. LEXIS 451 (1956).

Where it was undisputed that the usual lunch time procedures, which were known and participated in by employer, regularly involved one of the employees leaving the premises and obtaining lunch for the others who remained at their work stations; that on the date of the accident, plaintiff had brought his own lunch to work with him that morning and therefore had no reason to leave work at lunch time except to obtain lunch for his coworkers; and that plaintiff's journey, although arguably unknown to his employer on February 15, 1980, not only benefitted his employer by allowing the other employees to keep on working while plaintiff was obtaining their lunch, but also subjected plaintiff to a definite risk or hazard on the road, chancellor's finding that plaintiff sustained a compensable injury arising out of and in the course of his employment when he was involved in an accident during the trip would be upheld. McCammon v. Neubert, 651 S.W.2d 702, 1983 Tenn. LEXIS 663 (Tenn. 1983).

86. —Recreation or Social Activities.

Employee injured while playing basketball on break from work at home of customer was not injured as an incident of his employment and was not entitled to workers' compensation. Ward v. Mid-South Home Service, 769 S.W.2d 486, 1989 Tenn. LEXIS 140 (Tenn. 1989).

Neither mere encouragement nor the offer of a nominal cash prize is enough to transform what would otherwise be a voluntary activity into one within the course of employment. Phyllis A. Young v. Taylor-white, LLC., 181 S.W.3d 324, 2005 Tenn. LEXIS 853 (Tenn. Oct. 20, 2005).

Where an employee injured her shoulder while participating in races during an employer-sponsored company picnic, the injury did not occur in the course of her employment; the picnic was held on a Saturday, outside of work hours, at a public park off of the company's premises. Phyllis A. Young v. Taylor-white, LLC., 181 S.W.3d 324, 2005 Tenn. LEXIS 853 (Tenn. Oct. 20, 2005).

87. —Nonbeneficial Acts.

It is not essential that the employee be engaged in an act directly beneficial to his employer in order that the resulting injury may be said to have arisen out of the employment. Chamber of Commerce v. Turner, 158 Tenn. 323, 13 S.W.2d 318, 1928 Tenn. LEXIS 156 (1929).

88. —Emergency.

A timekeeper, a part of whose duties it was to supervise conditions in the yard adjoining his office, when there was a degree of emergency calling for his physical effort in moving a concrete mixer that obstructed the office entrance, was not so far a volunteer as to deprive him of compensation for an injury that resulted. Roehl