Tennessee Passes “Employee Online Privacy Act of 2014” Preventing Employers from Obtaining Access to Personal Internet Accounts Like Facebook

Posted on Jul 20 2014 8:55PM by Attorney, Jason A. Lee

The Tennessee Legislature recently passed the Employee Online Privacy Act of 2014.  This is found in 2014 Public Chapter 826.   This new statute will be found in Title 50, Chapter 1 (T.C.A. § 50-1-??? – we do not know yet) and takes effect on January 1, 2015.  This new statute basically prevents an employer from taking any adverse employment action against an employee for failure to provide access to a “personal internet account” (which basically includes any type of internet account).  “Personal internet account” is defined as follows:


(5) "Personal Internet account":

(A) 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

(B) 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.


Upon review of the definition of personal internet account would certainly include Email, Facebook and Twitter accounts.  The most common of the “personal internet account’s” that falls within this statute is likely Facebook so it would certainly apply to anyone who has a Facebook account with private settings (yet another reason to make sure that your Facebook account is set to “private” and not “public”)  Under this statute Tennessee employers are specifically prevented from the following:

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TAGS: Employment Law, Corporation/LLC Law Comments [0]

New Tennessee Statute Provides Immunity for Forcible Entry Into A Motor Vehicle to Remove Minor in Imminent Danger

Posted on Jul 13 2014 7:03PM by Attorney, Jason A. Lee

Analysis:  The Tennessee Legislature dealt with an interesting issue in the 2014 legislative session involving minor’s stuck in vehicles.  The legislature passed Public Chapter No. 788 and it took effect on July 1, 2014.  Apparently, there was some need to pass this statute although this statute really addresses a very rare circumstance.  It is of note, however, that this particular change in Tennessee law has received quite a bit of attention from the media even though there are other changes in the law that are much more substantial and significant but they receive no media attention. 


In summary this new statute basically provides immunity from civil liability for any damages resulting from forcible entry into a vehicle to remove a minor from the vehicle.  The person who removes the minor must have a good faith belief that forcible entry is necessary because the minor is in imminent danger of suffering harm.  There are also other requirements that are outlined in the statute and must be followed for this immunity to apply.  The new statute is found in T.C.A. § 29-34-209 and provides as follows:


(a) A person whose conduct conforms to the requirements of subsection (b) shall be immune from civil liability for any damage resulting from the forcible entry of a motor vehicle for the purpose of removing a minor from the vehicle.
(b) Subsection (a) applies if the person:
 (1) Determines the vehicle is locked or there is otherwise no reasonable method for the minor to exit the vehicle;
 (2) Has a good faith belief that forcible entry into the vehicle is necessary because the minor is in imminent danger of suffering harm if not immediately removed from  the vehicle and, based upon the circumstances known to the person at the time, the belief is a reasonable one;
 (3) Has contacted either the local law enforcement agency, the fire department or the 911 operator prior to forcibly entering the vehicle;
 (4) Places a notice on the vehicle's windshield with the person's contact information, the reason the entry was made, the location of the minor and that the  authorities have been notified;
 (5) Remains with the minor in a safe location, out of the elements but reasonably close to the vehicle until law enforcement, fire or other emergency responder  arrives; and
 (6) Used no more force to enter the vehicle and remove the child from the vehicle than is necessary under the circumstances.
(c) Nothing in this section shall affect the person's civil liability if the person attempts to render aid to the minor in addition to what is authorized by this section.


Obviously, it is likely a rare circumstance where this will occur (I am referring to the actual need for immunity to apply to protect someone from a lawsuit – I am aware that minors are sometimes left in vehicl...

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TAGS: Automobile/Motorcycle Liability, 2014 Tennessee Legislation, Defenses, Immunity Comments [0]

New Tennessee Law Clarifies that Red Light Violation Does Not Occur When Vehicle’s Front Tires Have Already Entered Intersection When Light Turns Red

Posted on Jul 6 2014 8:59PM by Attorney, Jason A. Lee

Analysis:  In the 2014 Tennessee Legislative session the Tennessee Legislature decided to clarify exactly what constitutes a red light violation in Tennessee.  The legislature amended T.C.A. § 55-8-110 which is the statute that discusses what traffic control signals mean for an intersection.  It defines and explains the meaning of the “green”, “yellow”, and “red” notifications on traffic signal devices.  The Tennessee Legislature passed Public Chapter No. 989 that added a new subsection (e) to T.C.A. § 55-8-110 as follows:


(e) It is not a violation of subdivision (a)(3), unless the front tires of a vehicle cross the stop line after the signal is red.


Subsection (a)(3) is the section that discusses the responsibilities of a driver when faced with a red light in Tennessee.  As a result of this change, it is not a red light violation unless the front tires of the vehicle cross the stop line after the signal is already red.  As a result, if the front tires are already beyond the traffic intersection line at the point when the light turns red, then it is not a red light violation under the newly amended T.C.A. § 55-8-110.  This law takes effect on July 1, 2014.


Obviously, this change in the law will come into play in automobile accident litigation across the state of Tennessee.  This new statute more clearly defines what it means to violate a red light and provides a definitive time period when a red light violation occurs (when the vehicle’s front tires cross the intersection line when the light is already red).  I am sure this statute will be heavily involved in litigated car accident cases across the State of Tennessee.  However, I think it is a beneficial clarification in the law to make a bright line test for when a red light violation occurs.  There is still plenty of room for disagreement as to whether the fr...

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TAGS: Uninsured Motorist, Automobile/Motorcycle Liability, 2014 Tennessee Legislation, Defenses Comments [1]

Tennessee Adds Five Year Statute of Repose for Attorney and Accountant Malpractice Claims

Posted on Jun 29 2014 9:22PM by Attorney, Jason A. Lee

Analysis:  The Tennessee legislature recently passed a law that now provides a five year statute of repose for any malpractice claims against accountants or attorneys.  The Tennessee Legislature in the 2014 Tennessee Legislative Session passed Public Chapter No. 618 making this change to existing Tennessee law.  This statute takes effect July 1, 2014 and applies to all acts or omissions of malpractice by accountants or attorneys that occur on or after July 1, 2014. 


T.C.A. § 28-3-104 is modified to add a new subsection (c).  The new subsection in the statute provides as follows:


(c)(1) Actions and suits against licensed public accountants, certified public accountants, or attorneys for malpractice shall be commenced within one (1) year after the cause of action accrued, whether the action or suit is grounded or based in contract or tort.

(2) In no event shall any action or suit against a licensed public accountant, certified public accountant or attorney be brought more than five (5) years after the date on which the act or omission occurred, except where there is fraudulent concealment on the part of the defendant, in which case the action or suit shall be commenced within one (1) year after discovery that the cause of action exists.


As you can see, there is still a one year statute of limitations for suits against accountants and attorneys for malpractice from the date the cause of action accrued (the discovery rule applies in Tennessee to these causes of action so that can extend the statute of limitations well beyond 1 year from the actual act or omission).  However, the new five year statute of repose is now found in subsection (c)(2) which basically provides that once five years passes from the date of the act or omission which constituted malpractice, no claim can be brought against the accountant or attorney. 

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TAGS: 2014 Tennessee Legislation, Defenses, Torts, Statute of Limitations, Statute of Repose Comments [0]

Tennessee Nurse Practitioners Are Now Exempt from Subpoena to Trial

Posted on Jun 16 2014 8:35PM by Attorney, Jason A. Lee

Analysis:  T.C.A. § 24-9-101 provides a list of individuals who are exempt from subpoena to trial in Tennessee.  These individuals are still subject to give a deposition by subpoena but they cannot be subpoenaed to trial.  Tennessee Public Chapter No. 590, was passed in the 2014 Tennessee Legislative session and it added “advanced practice nurses”, commonly referred to as “nurse practitioners” to the list of those who are exempt from subpoena to trial.  As a result, T.C.A. § 24-9-101 now provides the following list of individuals who are exempt from subpoena to trial:


(a) Deponents exempt from subpoena to trial but subject to subpoena to a deposition are:

(1) An officer of the United States;

(2) An officer of this state;

(3) An officer of any court or municipality within the state;

(4) The clerk of any court of record other than that in which the suit is pending;

(5) A member of the general assembly while in session, or clerk or officer thereof;

(6) A practicing physician, physician assistant, advanced practice nurse, psychologist, senior psychological examiner, chiropractor, dentist or attorney;

(7) A jailer or keeper of a public prison in any county other than that in which the suit is pending; and

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TAGS: Discovery Comments [0]

Tennessee Removes Sovereign Immunity for Claims Against Tennessee Governmental Entities Under the Uniformed Services Employment and Reemployment Rights Act

Posted on Jun 8 2014 6:36PM by Attorney, Jason A. Lee

Analysis:  I am working on several blog posts to try to update everyone on important Tennessee Legislative changes that came out of the 2014 Tennessee Legislative session.  These posts will touch on various topics and will be published over the next few months.  One change from the recent session is the removal of sovereign immunity for Tennessee governmental entities for claims against those entities under the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”).  The Uniformed Services Employment and Reemployment Rights Act is found in 38 USC §§ 4301-4334.  Basically, this federal legislation strengthens military veteran’s reemployment rights when they are required to serve in a war.  This has always been an important principle to protect in America and has been protected by numerous statutes over the years.  Basically, soldiers who fight in wars for this country should not lose their jobs because they had to fight in a war.


Under Tennessee law, however, governmental entities are provided with sovereign immunity under many circumstances.  Specifically, T.C.A. § 29-20-201(a) is one of the statutes (there are others) that addresses sovereign immunity and provides as follows:


(a) Except as may be otherwise provided in this chapter, all governmental entities shall be immune from suit for any injury which may result from the activities of such governmental entities wherein such governmental entities are engaged in the exercise and discharge of any of their functions, governmental or proprietary.

(b)(1) The general assembly finds and declares that the services of governmental entity boards, commissions, authorities and other governing agencies are critical to the efficient conduct and management of the public affairs of the citizens of this state. Complete and absolute immunity is req...

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TAGS: GTLA, Employment Law, Immunity Comments [0]

Is One-Sided Contract Requiring Arbitration by One Party, but Not the Other, Enforceable in Tennessee?

Posted on Jun 1 2014 8:42PM by Attorney, Jason A. Lee

Analysis:  A recent Tennessee Court of Appeals decision discussed the viability of a contract that had a one-sided arbitration provision.  The Tennessee Court of Appeals decision of Richard A. Berent v. CMH Homes, Inc., 2014 WL 813874 (Tenn. Ct. App. 2014) dealt with an arbitration agreement that required the purchaser of a manufactured mobile home to submit virtually all of the buyer’s potential claims to arbitration.  On the other hand, the same contract provided certain exceptions to the “mandatory” arbitration that exclusively benefited the mobile home manufacturer.  The effective result was that the purchaser of the mobile home had to submit virtually all of his claims to arbitration whereas the seller of the manufactured mobile home could pursue judicial relief for many claims.


As a result, the question before the Court was whether this arbitration requirement was unconscionable and therefore unenforceable under Tennessee law.  Previously in Taylor v. Butler, 142 S.W.3d 277 (Tenn. 2004) the Tennessee Supreme Court held that an arbitration agreement was unconscionable when it reserves the “right to a judicial forum for the defendants while requiring the plaintiff to submit all claims to arbitration.”  Taylor at 280.  In the Berent case the Tennessee Court of Appeals applied the Taylor reasoning and found that this arbitration agreement was unconscionable.  As a result, this Tennessee Court of Appeals decision reaffirmed the applicability of the Taylor decision finding that it is improper in Tennessee for any arbitration agreement to selectively decide that one party has access to a judicial remedy while the other party only has access to an arbitration remedy. 


Interestingly, the defendants in this case attacked the viability of the Supreme Court’s holding in Taylor from 2004.  The defendants asserted in this case that Taylor is no longer in the legal majority across the country and that this decision should be overruled (in fact they assert this holding is only accepted in a “small minority” of jurisdictions).  Obviously, the Tennessee Court of Appeals declined to overrule a Tennessee Supreme Court decision and specifically stated that such an issue must be directed to...

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TAGS: Defenses, Breach of Contract, Arbitration, Contracts Comments [0]

When is a National Organization Responsible for the Sexual Abuse of a Minor that Occurs at a Local Chapter in Tennessee?

Posted on May 18 2014 10:14PM by Attorney, Jason A. Lee

Analysis:  A very interesting Tennessee Court of Appeals decision was recently decided on an issue that often comes up in sexual abuse cases.  The question is whether a national organization or entity can be held responsible for actions that occurred by the local organization or their members or volunteers.  The Tennessee Court of Appeals decision of Ms. B., individually and on behalf of minor child, John Doe, “N” v. Boys and Girls Club of Middle Tennessee, et al, No. M-2013-00812-COA-R3-CV, 2014 WL 890892 (Tenn. Ct. App. 2014) involved a lawsuit that was filed for the alleged sexual abuse of a minor child by a volunteer associated with the local Boys and Girls Club of Middle Tennessee.  The national entity, Boys and Girls Club of America, was also sued in this case.  The trial court granted the national entity’s motion for summary judgment and that ruling was appealed to the Tennessee Court of Appeals. 


The question before the Tennessee Court of Appeals was whether the national Boys and Girls Club of America had a legal responsibility to the minor child in this context.  The court noted that it is well settled in Tennessee that “there is no duty to protect others against risks of harm by third parties.”  Ms. B. at 4.  However, the court went on to state that, “an exception arises, however, when a special relationship exists between the defendant and either the person at risk or the actor who is the source of the risk or danger.”  Ms. B. at 4.  Further, “[i]f an individual stands in a special relationship to another individual who is the source of the danger or who is foreseeably at risk from the danger, then the individual assumes an affirmative duty to exercise reasonable care to either control the danger or protect the vulnerable.”  Ms. B. at 4. 


The Tennessee Court of Appeals in this case framed the specific issue in dispute as follows:


The question of whether a duty should be imposed on BBBSA to take reasonable measures to prevent sexual abuse of children participating in programs offered b...

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TAGS: Torts, Corporation/LLC Law, Miscellaneous Comments [0]

In Tennessee How Long Does a Settlement Offer Remain Open When No Expiration Time Period is Provided?

Posted on May 11 2014 10:01PM by Attorney, Jason A. Lee

Analysis:  The Tennessee Court of Appeals recently decided an interesting case that discussed how long a settlement offer stays open when the settlement offer does not have a specific expiration date or any reference to how long the offer will remain open.  In the Tennessee Court of Appeals decision of Tonita Reeves v. Pederson-Kronseder, LLC d/b/a Pederson’s Natural Farms, Inc., No. M2013-01651-COA-R3-CV, 2014 WL 1285702 (Tenn. Ct. App. 2014) the employee and employer were preparing to arbitrate an age discrimination case.  Prior to the time of the arbitration the parties entered into settlement negotiations.


On June 29, 2012, a specific settlement proposal was made by defense counsel to the plaintiff after multiple prior emails discussing the concept of settlement (this proposal did not have any expiration date).  Defense counsel followed up with additional emails inquiring about the status of settlement but plaintiff’s counsel provided no specific response.  In the following month the parties engaged in additional written discovery and took additional depositions.  The arbitration was set for August 15, 2012.  Without any further offer being made, the plaintiff emailed defense counsel August 12, 2012, three days before the arbitration, and accepted the June 29, 2012 offer of settlement.  Defense counsel responded by stating that the June 29, 2012 offer of settlement was no longer viable due to the passage of time and the expenses that had been incurred since it was made.


Ultimately, the arbitration went forward and the plaintiff did not receive a favorable outcome at the arbitration.  As a result, the plaintiff filed a lawsuit in Chancery Court alleging breach of contract for the settlement proposal that was “accepted” prior to the mediation.  The trial court found there was no enforceable settlement agreement in this circumstance.  This was appealed to the Tennessee Court of Appeals.


The Tennessee Court of Appeals considered whether there was a legitimate settlement.  The Court basically found that settlement offers only remain open for a reasonable period of time even when there is no expiration date.  Reeves at 4, 5.  The court cited the rule in the Tullahoma Concrete case where the Court stated:


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TAGS: Settlement, Breach of Contract, Contracts Comments [0]

Status of Pending Tennessee Legislation to Abolish Collateral Source Rule in Tennessee – What Happened in 2014 Legislative Session?

Posted on May 4 2014 9:18PM by Attorney, Jason A. Lee

Several people have recently asked me about the status of proposed legislation in Tennessee to abolish the collateral source rule.  Many of you will recall that in the 2013 legislative session a bill on this issue was proposed called the “Phantom Damages Elimination Act”.  This bill was SB 1184/HB 0978.  The Legislative website page that will provide you with updates on this bill can be found here.  This bill would effectively abolish the collateral source rule in Tennessee. 

There were many discussions about this bill in 2013.  In fact, in 2013 the Senate Judiciary Committee decided to establish a study committee to study the impact of this bill over the summer and fall of 2013.  In the 2013 hearings it was stated that the bill would be brought back in 2014 pursuant to the request of Senator Tracy, who sponsored the bill in the Senate.  So the question is, what happened in the recently ended 2014 Tennessee legislative session?

The answer to this question is simply – nothing happened!  The bill was only called up on one occasion on January 14, 2014 in the Senate Judiciary Committee.  The Chair of the Senate Judiciary Committee, Brian Kelsey made one comment about the bill at that time.  He said simply “at the sponsor’s request that has been rolled to the last calendar” – see the video of the hearing here.  That is the only official insight we can obtain on this bill at this time.  There was no discussion or revelation of the results of the “study committee” that was established in the 2013 session.  The bill was never called up again according to the Tennessee legislature’s website.  The House appears to have not even called it up in any committee.

So what happened?  It was a hot topic in 2013 that was discussed in several committee hearings and there were many articles posted in the media and on attorney’s websites discussing this possible legislation.  At this time, I simply cannot tell what happened.  I did a Google search and could not find any substantive discussion about why it was not addressed in the 2014 Legislative session.  As a result, I am at a loss to explain why it was not addressed....

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TAGS: Damages, 2014 Tennessee Legislation, 2013 Tennessee Legislation Comments [0]

In a Tennessee Breach of Contract Action Does a Voluntary Dismissal Make the Defendant the “Prevailing Party” for Contractual Attorney’s Fees?

Posted on Apr 27 2014 10:15PM by Attorney, Jason A. Lee

Analysis:  In a Tennessee breach of contract case if the defendant has a counterclaim pending to recover attorney’s fees under the contract and the plaintiff voluntary dismisses the case, the defendant can recover attorney fees if not timely refiled.  This is governed by a Tennessee statute, T.C.A. § 20-6-306 that provides as follows:


(a) If a plaintiff voluntarily dismisses an action while a counterclaim is pending for contractual attorney fees, and if the plaintiff does not timely recommence the action, the court, upon proper showing, may order that the counterclaimant is the prevailing party for the purpose of recovering contractual attorney fees.

(b) This section shall only apply if the contract clause providing for attorney fees applies equally to all parties to the contract.


As a result, the counterclaiming party is essentially considered the prevailing party for the purpose of determining if contractual attorney’s fees must be paid (this is the usual terminology in contracts that discuss when attorney’s fees are due).  However, this only occurs after the plaintiff does not recommence the action in a timely manner (usually this will be within one year from the dismissal).  Even though a voluntary dismissal under Tennessee Rule of Civil Procedure 41.01 is not a determination on the merits, under this statute, it does have the impact of essentially finding the defendant is the prevailing party under a contractual term for attorney’s fees. 


This statute was adopted and put in effect on July 1, 2004.  A search on Westlaw shows this statute has not been substantively addressed by the Court of Appeals or the Tennessee Supreme Court.  I am not sure how well known this statute is but it is certainly something to consider in the context of a counterclaim in a bre...

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TAGS: Breach of Contract, Civil Procedure, Contracts, Attorney Fees Comments [0]

Does the Tennessee Disabilities Act Require Employers to Make "Reasonable Accommodations" for Employees?

Posted on Apr 20 2014 9:39PM by Attorney, Jason A. Lee

Analysis:  The recent Tennessee Court of Appeals decision of Lataynia Jones v. Sharp Electronics Corp., 2014 WL 806131 (Tenn. Ct. App. 2014) discussed whether the Tennessee Disabilities Act requires employers to make “reasonable accommodations” when an employee has a disability.  In this case the employee took leave for medical conditions multiple times under the FMLA (Family and Medical Leave Act) and under her union collective bargaining agreement.  After she exhausted the total time allowed under FMLA and her collective bargaining agreement she was informed she must return to her employment by a specific date.  She did not return to her employment by that date and therefore she was terminated. 


As a result, the employee filed a lawsuit against her employer under the FMLA and under the Tennessee Disability Act.  The FMLA case was previously dismissed.  The Tennessee Disability Act claim remained.  The question before the Tennessee Court of Appeals was whether a “reasonable accommodation” is required under the Tennessee Disability Act for disabled employees.  The court found that several Tennessee cases have already found that “unlike its federal counterpart, the Americans with Disabilities Act (“ADA”), the Tennessee Disabilities Act does not impose a duty on employers to make reasonable accommodations to accommodate a disabled employee.”  Jones at 3 (citing, Bennett v. Nissan North America, Inc., 315 S.W.3d 832, 841-42 (Tenn. Ct. App. 2009)).  As a result, due to this difference in the Tennessee Disability Act


If a person’s disability to some degree prevents the applicant from performing the duties required by the employment sought or impairs the performance of the work involved, a defendant employer will not be considered to have discriminated against that person in an action under the TDA. Bennett at 852.


Jones at 3.  The court further noted that the question of whether Tennessee should adopt a reasonable accommodation requirement com...

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TAGS: Employment Law Comments [0]
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