What happened to the Tennessee Healthy Workplace Act?

Introduction

Tennessee was the first state to pass the “Healthy Workplace Act” in 2014. The Act addresses “abusive conduct” in state and local government workplaces. By late 2018, parts of the state government and some of the major cities had adopted policies to implement the Act.

What the state and cities did can matter to you, even if your organization is not in Tennessee. The state and local policies have language you can use in your business or government agency. A few of these policies have flawed language you should avoid in your own policies.

This analysis covers implementation of the Act by the executive, legislative, and judicial branches of the Tennessee government, and by Metropolitan Nashville, Memphis, Chattanooga, Knoxville, and Clarksville.

This is a picture of the status as of the fall of 2018. A three-year delay was not enough time to study this. A few members of the General Assembly sabotaged part of the legislation at the Tennessee Advisory Commission on Intergovernmental Relations, so I waited four years. The sabotage and its consequences are covered in the last section.

Description of abusive conduct in the act

For the general public, the most important part of the Act is this description in TN Code § 50-1-502 (2014):

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:

(A) Repeated verbal abuse in the workplace, including derogatory remarks, insults, and epithets;

(B) Verbal, nonverbal, or physical conduct of a threatening, intimidating, or humiliating nature in the workplace; or

(C) The sabotage or undermining of an employee's work performance in the workplace; …

This section is short but subtle. It covers acts and omissions. Policies often overlook omissions, e.g., purposeful, malicious refusals to act when a supervisor or coworker should be acting on a request or need.

It covers verbal, nonverbal, or physical conduct. Policies often overlook intimidating or humiliating nonverbal conduct. People use cold stares and sneers because almost everyone understands those nonverbal messages. When an animal or person sneers at you, it is to express hostility, threat, or contempt. [This is covered in C. Darwin’s “The Expression of Emotions in Man and Animals, of 1872.]

Further, it covers sabotaging or undermining an employee's work. This too is often left out of otherwise good policies. This is a hidden form of bullying or psychological aggression.

The model policy and its sabotage

For Tennessee State components and municipalities, TN Code § 50-1-503 (2014) “Development of model policy for employers to prevent abusive conduct in the workplace” should have been important. The Act tasked the Tennessee Advisory Commission on Intergovernmental Relations (TACIR) to develop a “model policy” in early 2015 for state agencies and municipalities to use. The Commission refused to accept the staff’s proposed model and took no further action on the task assigned to them. The failure of the Commission members to adopt a model hurt the implementation of the Act, but it wasn’t a crippling blow. More of this story is at the end of this article.

Several attorneys for the State of Tennessee told me that the State was delayed in getting its own policy out (until 2017), because there was no model policy. Nevertheless, various state entities borrowed language from that excellent draft. The TACIR staff’s proposed “Model Abusive Conduct Prevention Policy” could be valuable to businesses and government agencies anywhere. See: https://www.tn.gov/content/dam/tn/tacir/commission-meetings/2015-january/2015Tab%204HealthyWorkplace.pdf.

State government / The Executive Branch:

In 2017, the Division of Human Resources adopted Policy Number: 17-001(rev. 8/17), entitled “Abusive Conduct in the Workplace.” Overall, it is a very respectable policy. See the state policy at https://www.tn.gov/content/dam/tn/hr/documents/17-001_Abusive_Conduct_in_the_Workplace.pdf.

Almost all of the policy’s examples of abusive conduct are clear and useful. The policy includes a few examples that work against its goals.

As an example of abusive conduct, the policy lists: “Persistent or constant criticism in front of others for the purpose of humiliating another employee.” The phrase “persistent or constant criticism [of an employee] in front of others” invites the inference that intermittent or occasional criticism of an employee in front of others is acceptable. But such events could be the basis of a complaint of abusive conduct under the Act. Criticism in front of others (whether fellow employees, managers, or customers) is always humiliating to the target. Ancient law recognized that public humiliation had strong physical effect on the target.

To say that criticism in front of others is abusive conduct when it is done “for the purpose of humiliating another employee” is another problem. It invites a defense that the criticism was not for the purpose of humiliating the employee. Public humiliation is workplace violence. A single instance of public humiliation is severe abusive conduct. It is not civil, professional criticism. (Civil disagreement is not abusive conduct.)

As another example of abusive conduct, the policy lists: “Intimidating an employee by excessive yelling, repeated emotional outbursts, berating others, using an unreasonably harsh tone of voice.” This presents several problems.

Yelling and screaming at people, by itself, is excessive. It is not civil or professional behavior, so “excessive” is not needed. Next, consider the phrase “unreasonably harsh tone.” If an unreasonably harsh tone of voice is abusive conduct, then what about a “reasonably harsh” tone of voice? Or a simple harsh tone? A harsh tone is enough to be demeaning or humiliating. It is not civil. (Keep in mind that even the best people can have a bad day, and cut them some slack.) Apart from these problems, the state policy is very good.

The Judicial Branch: the Tennessee Courts

Staff of the Executive Director of the Administrative Office of the Courts reported that the Courts had adopted the policy written by the Executive Branch. I could not find it on the Courts’ website, so I asked repeatedly to see it and got no response. I also asked the Executive Director and the General Counsel how the Courts communicated their policy to employees and got no response. A good policy is useless if the employees do not know about it. I hope they got the word out.

The Legislative Branch: the General Assembly

Obviously, the General Assembly passed the Healthy Workplace bill and the Governor signed it. The Act covers all of the state government, but the General Assembly has not adopted a policy to cover their employees.

The Director of the Office of Legislative Administration wrote to me: “As you know, TCA 50-1-501 [the Act] tasked TACIR with creating a model policy for adoption at an employer’s discretion. The model policy has been created. Issues regarding members of the General Assembly are governed by House and Senate rules which you can find on our website.” She added that “The General Assembly did not adopt the model policy created by TACIR.”

In fact, the staff of TACIR did draft and propose a model policy to the members of the commission, which did not adopt it or approve it. Senator Mark Norris, the Senate Majority Leader, is also the Chairman of TACIR. He knows this topic very well. He could promote adoption of such a policy to protect employees of the General Assembly.

MAJOR CITIES

Nashville

First, Nashville has an abusive conduct policy that could valuable to anyone in the private or public sector. Second, the director of HR responded to my request to the Mayor in less than four hours! (I was impressed.) I capture only a few choice elements here.

Their policy says that “employees should not be exposed or subjected to abusive behavior from other employees.” They show they are serious, by saying, “Supervisors may also be subject to corrective action or discipline if they learn of abusive conduct in their workplace and fail to take appropriate action.”

The Nashville policy is notable for its protection of “the non-abusive exercise of managerial prerogative.” It gives the following as examples of conduct that should not be considered as abusive include:

Routine coaching and counseling, including feedback about and correction of work performance;
Reasonable work assignments, including shift, post, and overtime assignments;
Disciplinary procedures in accordance with adopted rules of the Civil Service Commission;
Individual differences in styles of personal expression;
Passionate, loud expression with no intent to harm others; and
Differences of opinion on work-related concerns.

There are additional, useful notes in the policy. To see the full policy, search for WORKPLACE CONDUCT POLICY in this link: https://www.nashville.gov/Portals/0/SiteContent/HumanResources/docs/CivilService/Civil%20Service%20Policies%20-%20November%2013,%202018.pdf .

Memphis

Memphis has a “Respectful Workplace Policy” which addresses respectful treatment of City of Memphis employees. The policy has been in place since 2012. It does not meet the requirements of the Healthy Workplace Act, but it still has valuable elements to consider.

The definition of Workplace Violence includes, but is not limited to, intimidations, bullying, stalking, threats, physical attack, domestic violence or property damage and includes acts of violence committed by City employees, clients, customers, relatives, acquaintances or strangers against a fellow employee, member of management, customer, vendor, or visitor to the City’s premise.

Their definition of “Intimidation” is engaging in actions that include, but are not limited to, behavior intended to frighten, coerce or induce duress. The terms “coerce or induce duress” may not be understood by every employee, including some college graduates. Simpler language would be better.

Their definition of “Bullying” is “unwanted offensive and malicious behavior which undermines an individual or group through persistently negative attacks.” This definition is very limited. Bullying includes more than maliciously undermining a person. Bullying is also behavior described by the Act’s sections A and B, above: acts and omissions, and verbal, nonverbal, and physical conduct of a humiliating nature. Nonverbal conduct would include contemptuous stares and sneers. They are humiliating and/or intimidating.

Knoxville

The Law Director for the City of Knoxville wrote that they looked into the Act and found that the City already had equal or better protection for employees. He gave as an example Administrative Rule 1.06, which states that “derogatory or degrading remarks, jokes, objects or pictures, or negative commentaries about a person’s race color, gender, age, religion, national origin, ethnic origin, gender identity, sexual orientation, creed, genetic information, or disability are strictly prohibited.” This section addresses harassment of people in legally protected classes under EEO law. That protection was in effect before the Healthy Workplace Act. EEO law does not reach abusive conduct towards employees when that abuse is unrelated to protected personal characteristics.

Further, the Law Director noted that Rule 1.06 protects against retaliation “against an employee who brings a good faith complaint of unlawful harassment or against any employee who provides good faith testimony or evidence during an investigation.” Since this section on retaliation is part of EEO protections, it does not appear to cover abusive conduct that is not covered under EEO law.

The Law Director also pointed to Rule 1.07 which says that “the City expressly forbids any acts or threats of violence…” That does not reach workplace insults and sabotage of an employee’s work, etc. The City of Knoxville’s Administrative Rules are at http://insideknoxville.knx/CivilService/Administrative%20Rules11/Forms/AllItems.aspx and are not accessible to the general public. (I tried IE and Chrome browsers.)

Officials in Knoxville should reread the Tennessee Healthy Workplace Act and the TACIR model policy. The Act and the model policy provide protection for employees which Knoxville’s rules do not.

Chattanooga draft

The Mayor’s Office very kindly sent me the draft of their new Workplace Violence and Abusive Conduct policy. It looks very good. At the time of this writing, this policy was not online, so I am sharing choice parts of the draft here. The first paragraph is a great statement of their goal. The second paragraph is a strong statement of their commitment.

ABUSIVE CONDUCT [Sec IV – Workplace Violence and Abusive Conduct (July 25, 2018)]

“The City of Chattanooga is firmly committed to a workplace free from abusive conduct. We strive to provide high quality services in an atmosphere of respect, collaboration, openness, safety and equality. All employees have the right to be treated with dignity and respect. To that end, employees are expected to exhibit proper behavior and conduct themselves in a manner that demonstrates professionalism and respect for others in the workplace. No employee shall engage in threatening, violent, intimidating, or other abusive conduct or behaviors.”

“All complaints of negative and inappropriate workplace behaviors will be taken seriously and followed through to resolution. Employees who file grievances to address their complaint of abusive conduct will not suffer negative consequences for reporting others for inappropriate behavior. This policy applies to all employees of the City, to include interns. It does not apply to independent contractors, but other contract employees are included. This policy applies to any sponsored program, event or activity including, but not limited to, sponsored recreation programs and activities; and the performance by officers and employees of their employment related duties. The policy includes electronic communications by any City employee.”

Definition of abusive conduct

Abusive conduct includes 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, which can include but is not limited to:

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.

A single act generally will not constitute abusive conduct, unless such conduct is determined to be severe and egregious.”

“Abusive conduct does not include: {emphasis added}

1. Disciplinary procedures in accordance with adopted policies of the City of Chattanooga.

2. Routine coaching and counseling, including feedback about and correction of work performance.

3. Reasonable work assignments, including shift, post, and overtime assignments.

4. Individual differences in styles of personal expression.

5. Passionate, loud expression with no intent to harm others.

6. Differences of opinion on work-related concerns.

7. The non-abusive exercise of managerial prerogative.”

These examples of what abusive conduct is and isn’t come directly from the model policy proposed by the TACIR staff and consultants. That model could be used in any workplace bullying program. I credit Chattanooga for making use of this excellent material.

City of Clarksville

Clarksville is the smallest of the five largest cities in Tennessee. With regards to abusive conduct, the director of Human Resources wrote to me that they have a “section of City Code that addresses employee behavior, including rude or discourteous treatment of others.” That is Sec. 1.5-1002. - Just cause for disciplinary action. It states:

“The following may constitute just cause for disciplinary action, up to and including dismissal: … ”j. Discourteous treatment of the public or other employees.” This is at https://library.municode.com/tn/clarksville/codes/code_of_ordinances?nodeId=TIT1.5HURE_CH10DIAC

The phrase “discourteous treatment” of others has broad implications. But it does not spell out abusive conduct as the Healthy Workplace Act does. The HR director said that Clarksville is “reviewing other policies that have more specificity (like the State policy) as well.”

The City of Clarksville would do well to borrow Chattanooga’s draft policy. It is clear and easy to work with. It is based on the draft “model policy” developed by TACIR’s very good staff and consultants, and it avoids the few problems in the State policy.

The sabotage at the Commission story

The Tennessee Advisory Commission on Intergovernmental Relations (TACIR) is made up of state House and Senate members, local government officials (e.g. mayors), and private citizens. It was created by the Tennessee General Assembly in 1978 to monitor federal, state, and local government relations and to make recommendations for improvement to the legislature.

The Healthy Workplace Act explicitly required the Commission, by March 1, 2015, to create an optional model policy for state and local government employers to address abusive conduct in the workplaces. The TACIR meeting on Jan. 28, 2015 was to approve the model policy.

At that meeting, State Sen. Jim Tracy, R-Shelbyville, said, “Once you get this implemented, you’re opening up a can of worms that we can’t close. … I don’t think this is needed.” Rep. Ryan Haynes, R-Knoxville, said, “I have a hunch that there’s probably going to be a bill to wipe this off the books.” Another member (whose name card was blocked) said, “If anyone knows what a reasonable person is, I would be shocked and amazed.” These and similar statements are from the video of the meeting between 10 and 30 minutes, at http://tnga.granicus.com/MediaPlayer.php?view_id=321&clip_id=9851.

During the discussion, no one criticized the proposed model. Rather, some were anxious about the Act itself. At the end of the discussion, the members of the Commission voted not to accept the model policy. That vote undermined and delayed implementation of the Act. It did not stop the progress noted above.

Later in 2015, Senator Mark Norris, then Majority Leader and Chairman of TACIR, sponsored a bill to extend “the date by which TACIR must create a model policy for employers to prevent abusive conduct in the workplace from March 1, 2015, to September 1, 2015.” The introduction of that bill recognized that TACIR did not “create” the model policy called for by the Healthy Workplace Act. The bill did not become law. That bill is at http://wapp.capitol.tn.gov/apps/BillInfo/default.aspx?BillNumber=SB1157&GA=109.

Senator Mark Norris is still the Majority Leader and Chairman of TACIR. It is late but still possible to accept the model policy. With or without the commission’s acceptance, the model policy is just fine (for which credit largely goes to TACIR Senior Researcher Ethel Detch and her consultant, Dr. Jackie Gilbert, professor of business at Middle Tennessee State University). But an official endorsement is likely to make cities and counties more confident is using it. If not now, when?