In a prior post, I listed several bills pending in the General Assembly that might affect Tennessee employers. I was checking the status of these bills today and saw that on May 7, 2009, the Governor signed into law amendments to the Tennessee's Whistleblower statute, T.C.A. 50-1-304. I had earlier said that these amendments looked to only clarify some minor points – and that is correct – but figuring out exactly what the revision "clarifies" is not really all that clear. The amendment changes the first three subsections of 50-1-304. Before the recent change, the statute read:
(a) As used in this section:
(1) "Employee" includes an employee of the state, or any municipality, county, department, board, commission, agency, instrumentality, political subdivision or any other entity of the state;
(2) "Employer" includes the state, or any municipality, county, department, board, commission, agency, instrumentality, political subdivision or any other entity of the state; 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.
(b) No employee shall be discharged or terminated solely for refusing to participate in, or for refusing to remain silent about, illegal activities.
(c) In addition to all employees in private employment, this section applies to all employees who receive compensation from the federal government for services performed for the federal government, notwithstanding that the persons are not full-time employees of the federal government.
These three subsections would be replaced by the following two subsections:
(a) As used in this section:
(1) "Employee" includes, but is not limited to:
(A) A person employed by the state, or any municipality, county, department, board, commission, agency, instrumentality, political subdivision or any other entity of the state;
(B) A person employed by a private employer; or
(C) 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:
(A) The state, or any municipality, county, department, board, commission, agency, instrumentality, political subdivision or any other entity of the state;
(B) A private employer; or
(C) 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" mean 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.
(b) No employee shall be discharged or terminated solely for refusing to participate in, or for refusing to remain silent about, illegal activities.
If you are wondering whether the amendment is materially different from the existing version, join the club. Call me dense but both old an new define "employee" and "employer" in semantically indistinguishable terms. The definition of "illegal activities" is identical. The legislative history indicates the legislation: "clarifies that the civil cause of action for the retaliatory discharge of an employee for reporting illegal activities applies to state employees, private employees, and certain persons paid by the federal government." On the Senate floor, the sponsor explained that the bill "is simply intended to clarify existing law" regarding the types of employees to which the law applies because of some "debate in the judiciary." When asked how the bill changes current law, the senate sponsor explained that the placement of the word "includes," in the existing statute, at the entrance of the section caused confusion but admitted she wasn't sure why there was a debate in the judiciary.
I am not sure there ever was a debate in the judiciary. I couldn't find evidence of one in the court decisions and the Tennessee Supreme Court, in Guy v. Mut. of Omaha Ins. Co., 79 S.W.3d 528, 537 (Tenn. 2002), said "The statute also extends protection to public employees, which is a significant departure from the common law." And if you think the judges might have talked amongst themselves and decided the statute was ambiguous, the problem there is that most judges are far too busy to engage in behind the bench debates about the meaning of a statute. I won't say it couldn't or didn't happen but in the grand scheme of things, I could think of a lot more state statutes that needed clarification much more than did the whistleblower statute.
I won't resolve this issue here. I simply wanted to update the blog to note the bill has passed the General Assembly and was signed by the governor on May 7, 2009. We now have clarification that someone (not me) thought was necessary but in practical terms, the clarifying amendment to T.C.A. § 50-1-304 does not and was not intended to change anything meaningful. Sometimes the absence of change is itself is good news.
As an aside, however, employers may get a kick out of the comments by Senator Henry, the only senator to vote against the bill, who complained that the bill "encourages tattle-tales." He got that one right.
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