(a) 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.
(b) 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, Pub. L. No. 109-90, or subsequent federal funding sources.
(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.
(b) A violation of subsection (a) is a Class B misdemeanor.
(c)
(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.
(d)
(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.
(e) 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.
(a) 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, with respect to the employment of an alien at a particular time, an alien who is not, at that time:
(A) Lawfully admitted for permanent residence in the United States pursuant to the federal Immigration and Naturalization Act (8 U.S.C. § 1101 et seq.); or
(B) 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.
(b) A person shall not knowingly employ, rehire, recruit, or refer for a fee for employment an illegal alien.
(c) [Deleted by 2022 amendment.]
(d) 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, Pub. L. No. 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.
(e)
(1)
(A) 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).
(B) 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.
(C) 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.
(f) The department shall notify the appropriate official making declarations pursuant to § 12-3-309 of a person's violation of this section.
(g) The department shall notify the department of homeland security of any person found in violation of this section.
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 (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.
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.
(a) 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.
(b) 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.
(c) 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.
(a) 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.
(b) 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.
(c) A policy adopted pursuant to subsection (a) must be applied uniformly to employment decisions regarding hiring and promotion.
(d) The preferences authorized by this section are not considered violations of any state or local equal employment opportunity law.
(e) Nothing in this section requires a private employer to provide a preference in hiring to any of the persons listed in subsection (a).
(a) 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 nondisclosure agreement with respect to sexual harassment in the workplace as a condition of employment.
(b) 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.
An employer, as defined in § 50-1-304, shall not require a physician, or a prospectively employed physician, to disclose participation in a physician wellness program, as defined in § 63-1-173, as a condition of employment or continued employment.
An employer, as defined in § 50-1-304, shall not require an independent contractor, or a prospective independent contractor, who is licensed pursuant to title 63, chapter 6 or 9, to disclose participation in a physician wellness program, as defined in § 63-1-173.
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.
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.
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.
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.
(a) Any person, firm, corporation or association of any kind violating any of the provisions of this part commits a Class A misdemeanor.
(b) 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.
(a) 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.
(b) 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.
(c) 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.
(d) The commissioner shall designate those persons in the department responsible for carrying out the commissioner’s power, duties and responsibilities under this part.
(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 (29 U.S.C. § 151 et seq.), and the Labor Management Relations Act (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.
(b) 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.
(c) 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 nonmandatory 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.
(d) This section shall be interpreted and enforced consistent with the National Labor Relations Act.
(e)
(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.
(a) 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.
(b) For purposes of this section “franchisee” and “franchisor” have the same definitions as set out in 16 CFR 436.1.
(a) This section shall be known as “The Essential Workers Act.”
(b) Notwithstanding any law to the contrary, a local governmental entity or the executive head of a local government shall not, by executive order, ordinance, or resolution, create categories or classes of nonessential businesses, trades, professions, or industries for the purpose of suspending lawful commerce, encumbering trade, or denying citizens the right to work if such activities are otherwise lawful in this state, unless an explicit order of the local fire marshal or a court of competent jurisdiction declares that the business operating poses a clear and present danger to the citizenry of this state.
(a) All persons employing female employees in any manufacturing or mercantile establishment shall provide separate privies or water closets for the female employees.
(b) No male person shall enter the separate privies or water closets except for the purpose of repairing or cleaning the privies or water closets.
(c) A violation of this section is a Class C misdemeanor.
(a) 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.
(b) 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.
(c) Any employer, or agent, clerk or superintendent of the employer, violating this section commits a Class C misdemeanor.
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.
(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”:
(A) 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; and
(B) Does not include activities prohibited under title 4, chapter 21, § 8-50-103, or federal laws prohibiting discrimination in employment.
(b) No employee shall be discharged or terminated solely for refusing to participate in, or for refusing to remain silent about, illegal activities.
(c)
(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.
(d)
(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.
(e)
(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.
(f) 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.
(g) This section abrogates and supersedes the common law with respect to any claim that could have been brought under this section.
(a) 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.
(b) 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.
(c) 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).
(a) 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.
(b) 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.
(c) A violation of this section shall be punished as a Class C misdemeanor.
(d) This section shall not apply to information for which the employee or family member has executed a voluntary waiver or release.
(a) 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.
(b) 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.
(c) 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.
(d) 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.
(e) 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.
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.
(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.
(b) 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.
(a) 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.
(b) 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.
(c)
(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.
(d)
(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.
(a) 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.
(b) 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.
(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.
(b)
(1)
(A) 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).
(B) 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.
(C) 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.
(2) 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).
(3) 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.
(c) 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.
(d) 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.
(1) “Commissioner” means the commissioner of labor and workforce development or the commissioner's designee;
(2) “Employee” means an individual who performs services for an employer for valuable consideration, and does not include a self-employed independent contractor; and
(3) “Employer” means an individual or entity that employs one (1) or more employees and includes this state and political subdivisions of this state.
(b) An employer shall not adopt a policy that does not permit an employee to wear the employee's hair in braids, locs, twists, or another manner that is part of the cultural identification of the employee's ethnic group or that is a physical characteristic of the employee's ethnic group.
(c)
(1) A policy in violation of subsection (b) is deemed discriminatory and void as against the public policy of this state. A violation of this section does not form the basis for a violation of another provision of law.
(2) This section does not create a private cause of action.
(d) An employee may file a complaint for a violation of this section with the commissioner. The commissioner shall provide a warning to an employer in violation of this section.
(e) This section does not apply to:
(1) A public safety employee if it would prevent the employee from performing essential functions of the employee's job requirements during the course of employment; or
(2) A policy that an employer must adopt to adhere to common industry safety standards, to maintain reasonable safety measures, or to comply with federal or state laws, rules, or regulations relative to health or safety.
(a) A public servant who was terminated by the public servant's employer or agent of the employer in violation of § 39-16-506 may bring a cause of action against the employer for unlawful discharge and any other damages to which the employee may be entitled, subject to the limitations set out in § 4-21-313, and:
(1) Treble the amount of damages resulting from or incident to the unlawful discharge; and
(2) Reasonable attorney fees and costs.
(b) If a public servant files a cause of action under this section for any improper purpose, such as to harass or to cause needless increase in costs to an employer, the court, upon motion or upon its own initiative, shall impose upon the public servant 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.
(c) In any cause of action for discharge brought pursuant to this section, the plaintiff shall have the burden of establishing a prima facie case of unlawful 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 discharge. 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 discharge.
(d) This section abrogates and supersedes the common law with respect to any claim that could have been brought under this section.
(a) 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.
(b)
(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.
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.
(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;
(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.
(a) 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).
(b) 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.
(c) Each employer may adopt the policy created pursuant to subsection (a) as a policy to address abusive conduct in the workplace.
(a) 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.
(b) 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).
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.
(a) 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.
(b) Notwithstanding § 50-1-502, as used in this section, “state employee” has the same meaning as defined in § 8-42-101.
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:
(A) 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;
(B) 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;
(C) 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
(D) 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.
(a) 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.
(b)
(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).
(c) 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.
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.
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.
(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, Pub. L. No. 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) “Nonemployee” 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.
(A) For nonemployees, request and maintain a copy, pursuant to subdivision (a)(4), of any one (1) of the following documents prior to the nonemployee providing labor or services:
(i) A valid Tennessee driver license or photo identification license issued by the department of safety;
(ii) 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 website;
(iii) An official birth certificate issued by a United States state, jurisdiction or territory;
(iv) A United States government-issued certified birth certificate;
(v) A valid, unexpired United States passport;
(vi) A United States certificate of birth abroad (DS-1350 or FS-545);
(vii) A report of birth abroad of a citizen of the United States (FS-240);
(viii) A certificate of citizenship (N560 or N561);
(ix) A certificate of naturalization (N550, N570 or N578);
(x) A United States citizen identification card (I-197 or I-179); or
(xi) 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
(B) For employees, either:
(i) 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
(ii)
(a) Enroll in the E-Verify program prior to hiring an employee;
(b) Verify the work authorization status of the employee hired by using the E-Verify program; and
(c) Maintain an E-Verify case result for each employee that shows that the employee is authorized to work, whether on the E-Verify Quick Audit Report, the E-Verify User Audit Report, or the individual employee E-Verify case verification result. The E-Verify case result must be visible showing the work authorization status.
(2)
(A) 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).
(B) 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 subdivision (a)(1)(A) or (a)(1)(B)(i).
(3) 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).
(4) An employer shall maintain:
(A) 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
(B) 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 nonemployee ceases to provide labor or services for the employer, whichever is later.
(5) 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).
(6)
(A) There is created within the department the office of employment verification assistance. The department is authorized to enter into a memorandum of understanding or other agreement required by the E-Verify program to operate this office.
(B) If an employer does not have internet access or if an employer has less than thirty-five (35) full-time equivalent employees, 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 as long as the employer signs a prescribed form, under penalty of perjury, attesting to the employer's qualification for assistance pursuant to this subdivision (a)(6)(B) and completes paperwork required by the E-Verify program to permit the office to provide the assistance.
(7) 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).
(b) Notwithstanding subdivision (a)(1)(B), private employers with thirty-five (35) or more full-time equivalent employees, on or after January 1, 2023, shall comply with the requirements in subdivision (a)(1)(B)(ii); provided, that those employers are only required to use the E-Verify program to verify the work authorization status of employees hired on or after January 1, 2023.
(c)
(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.
(d)
(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:
(A) The commissioner's findings and determinations;
(B) The penalties that will apply pursuant to subsections (f)-(j);
(C) The process to request a contested case hearing; and
(D) 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:
(A) 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
(B) The commissioner determines that the violation of subdivision (a)(1) or subsection (b) was not a knowing violation.
(e) 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).
(f)
(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:
(A) Five hundred dollars ($500) for a first violation;
(B) One thousand dollars ($1,000) for a second violation; or
(C) Two thousand five hundred dollars ($2,500) for a third or subsequent violation.
(2)
(A) In addition to the civil penalties provided in subdivision (f)(1), the commissioner shall also assess the following civil penalties:
(i) For a first violation, five hundred dollars ($500) for each employee or nonemployee not verified pursuant to subdivisions (a)(1)(A) and (B);
(ii) For a second violation, one thousand dollars ($1,000) for each employee or nonemployee not verified pursuant to subdivisions (a)(1)(A) and (B); or
(iii) For a third or subsequent violation, two thousand five hundred dollars ($2,500) for each employee or nonemployee not verified pursuant to subdivisions (a)(1)(A) and (B).
(B) 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.
(3) 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)(B) or (e)(1)(C), then the license shall remain suspended until the expiration of the period provided for in § 50-1-103(e)(1)(B) or (e)(1)(C).
(g) 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).
(h) All moneys collected pursuant to this section shall be deposited into the lawful employment enforcement fund created by § 50-1-708.
(i) 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.
(j) 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 website 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.
(a) 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.
(b) 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.
(a) Beginning February 1, 2012, and on a monthly basis thereafter, the department shall post a publicly accessible list on the department's website of any employer against whom a final order has been issued pursuant to this part.
(b) 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.
(c) The list shall remain on the website for such time as determined by the commissioner.
(d) 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.
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.
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.
(a) 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.
(b) 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.
(c) Moneys in the lawful employment enforcement fund account shall be invested by the state treasurer in accordance with § 9-4-603.
If an employer fails to terminate the employment of any individual for whom the employer receives a final nonconfirmation result from the E-Verify program, then the department may consider such fact when making a determination pursuant to § 50-1-103.
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.
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.
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.
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, Pub. L. No. 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.
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.
(a) 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.
(b) 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.
(c) 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.
(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”:
(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.
(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).
(b) 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:
(A) An electronic communications device supplied by or paid for wholly or in part by the employer; or
(B) 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:
(A) 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
(B) 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 websites 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:
(A) 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));
(B) For purposes of law enforcement employment; or
(C) 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.
(c) 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.
(d)
(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.
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.
(a) 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.
(b) 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 (45 U.S.C. § 151 et seq.).
(c)
(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.
(d) The department of labor and workforce development shall enforce this section.
(a) 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.
(b) 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.
(c) Nothing in this section is to be construed as to legalize the issuance or use of scrip.
(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:
(A) 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
(B) 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.
(b) “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.
(c) Nothing contained in this section shall be construed as prohibiting the payment of wages at more frequent periods than required pursuant to subsection (a).
(d) 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).
(e)
(1) The payment of wages or compensation of employees in the employments defined in this section shall be made as follows:
(A) In lawful money of the United States;
(B) 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;
(C) Electronic automated fund transfer in lawful money of the United States; or
(D) 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.
(f) 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.
(g) 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).
(h)
(1)
(A) 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.
(B) For purposes of this subsection (h), “meal break” means a rest break or meal period.
(2)
(A) 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.
(B) 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:
(i) The employee must submit the request knowingly and voluntarily; and
(ii) The employer and employee must both consent to the waiver.
(C) 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:
(i) 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;
(ii) The length of time the waiver will be in effect; and
(iii) Procedures for rescission of the waiver agreement by the employee or employer.
(D) 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.
(E) No employer shall coerce an employee into waiving a meal break.
(i) 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.
(j) 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.
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.
(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.
(b)
(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.
(c) 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.
(d) 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.
(a) 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.
(b) No employee shall be required, as a condition of employment, to trade at a store specified by the employer.
(c) Any person violating this section commits a Class C misdemeanor.
(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.
(3)
(A) 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.
(B)
(i) This section does not apply to bills presented to or charges paid by guests for accommodations and activities at a guest ranch.
(ii) For purposes of subdivision (a)(3)(B)(i), “guest ranch” means a facility segregated from the public-at-large:
(a) Offering accommodations for overnight stays and activities typical of western ranching;
(b) 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
(c) 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.
(b) A violation of this section is a Class C misdemeanor. Each failure to pay an employee constitutes a separate offense.
(a) 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.
(b) 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.
(c) 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.
(a) 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.
(b) All penalties owed under this part shall be paid to the commissioner.
(a) 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:
(A) There is an amount the employee owes the employer;
(B) The employee's wages may be offset if the amount owed is not paid prior to the payment of wages due and owing; and
(C) 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).
(b) 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.
(c) 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.
(a) 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.
(b) 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.
(A) Unless required by state or federal law, all additional wage or employment benefit mandates imposed on private employers by a local government are hereby preempted.
(B) Notwithstanding a charter, ordinance, or resolution to the contrary, a local government shall not require, as a condition to doing business within the jurisdictional boundaries of the local government or contracting with the local government, a private employer to pay its employees an hourly wage in excess of the minimum hourly wage required to be paid by such employer under applicable federal or state law, nor does a local government have the authority to impose a wage or employment benefit mandate on a private employer.
(C) A local government entity shall not, through its purchasing or contracting procedures, seek to control or affect the wages or employment benefits provided by its vendors, contractors, service providers, or other parties doing business with the local government. A local government shall not, through the use of evaluation factors, qualifications of bidders, or otherwise award preferences on the basis of wages or employment benefits provided by its vendors, contractors, service providers, or other parties doing business with the local government.
(D) A local government may offer its own employees wage and employment benefits.
(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.
(b) As used in this section:
(1) “Employment benefits” means anything of value that an employee may receive from an employer in addition to wages and salary, including, but not limited to, health benefits; disability benefits; death benefits; group accidental death and dismemberment benefits; paid days off for holidays, sick leave, vacation, and personal necessity; additional pay based on schedule changes; retirement benefits; and profit-sharing benefits;
(2) “Local government” means a county, incorporated city or town, metropolitan government, or an agency or unit thereof, or other political subdivision of this state; and
(3) “Wage or employment benefit mandate” means a requirement adopted by a local government which requires a private employer to pay any or all of its employees a wage rate or provide employment benefits not otherwise required under state or federal law.
(c) 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.
(a) This section shall be known and may be cited as the “Tennessee Wage Protection Act.”
(b) 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.
(c) 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 (29 U.S.C. § 201 et seq.), the Portal-to-Portal Act of 1947 (29 U.S.C. § 251 et seq.), the Davis-Bacon Act (40 U.S.C. § 3141 et seq.), the McNamara-O’Hara Service Contract Act (41 U.S.C. § 6701 et seq.), the Migrant and Seasonal Agricultural Protection Act (29 U.S.C. § 1801 et seq.), the Contract Work Hours and Safety Standards Act (29 CFR 5.1 et seq.), the Copeland Anti-Kickback Act (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.
(d) 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.
(a) An employer shall pay an employee no less than the federal minimum wage under 29 U.S.C. § 206, regardless of the subminimum wage authorized pursuant to 29 U.S.C. § 214(c).
(b) As used in this section:
(1) “Employee” means a person born or naturalized in the United States and subject to the jurisdiction thereof, or a person legally present in this country, either of whom is employed by an employer; and
(2) “Employer” includes an individual, partnership, association, corporation, business trust, legal representative, or organized group of persons, not involved in interstate commerce, acting directly or indirectly in the interest of an employer in relation to an employee.
(1) Has the same meaning as interpreted by the United States supreme court for purposes of the Fair Labor Standards Act (29 U.S.C. § 201 et seq.) and the Portal-to-Portal Act of 1947 (29 U.S.C. § 251 et seq.); and
(2) Does not include the time that an employee spends on:
(A) Walking, riding, or traveling to and from the actual place of performance of the principal activity or activities that the employee is employed to perform;
(B) Activities that are preliminary to or postliminary to the principal activity; or
(C) Activities that require insubstantial or insignificant periods of time beyond the employee's scheduled working hours.
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 (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.
(a) 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.
(b) 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.
(c) 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.
(a) 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.
(b) 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.
(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.
(b) 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.
(c) 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.
(d) 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.
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.
(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.
(b) 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 (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.
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”:
(A) 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:
(i) 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;
(ii) 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;
(iii) 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;
(iv) 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;
(v) 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;
(vi) 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;
(vii) 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;
(viii) 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;
(ix) 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;
(x) 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;
(xi) 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;
(xii) 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;
(xiii) 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;
(xiv) 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;
(xv) 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;
(xvi) 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;
(xvii) 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;
(xviii) 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;
(xix) 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
(xx) 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
(B) 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 (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.
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 (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 (30 U.S.C. § 801 et seq.), the federal Metal and Nonmetallic Mine Safety Act (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 (45 U.S.C. § 1 et seq. [repealed]), or the federal Railroad Safety Act of 1970 (45 U.S.C. §§ 431-441 [repealed]);
(5) Domestic workers; and
(6) 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.
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.
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.
(a) 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.
(b) 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).
(c) 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.
(d) 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.
(e) 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.
(f) 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.
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.
(a) A county, municipality, or other local government entity, or department, board, or agency thereof, including a school or board of education, shall not require a prime contractor or remote contractor, as part of an improvement of real property, or a bid, proposal, or agreement relating to an improvement of real property, to:
(1) Obtain, gather, or disclose personnel information or data of the prime or remote contractor's employees, except to the extent required under federal or state law;
(2) Provide personnel information or data of the prime contractor or remote contractor's employees to a person or entity, except to the extent required by federal or state law;
(3) Adhere to safety and health standards in excess of that required under federal occupational health and safety act (OSHA) and Tennessee occupational health and safety act (TOSHA) rules and regulations;
(4) Provide access to a worksite to anyone who would not otherwise have a legal right to access the worksite under federal or state law;
(5) Provide access to personnel information or data of anyone furnishing labor or materials on a worksite to a third party, including a nonemployee designee, unless:
(A) Otherwise required by federal or state law; or
(B) The third party is a certified public accountant retained by the government entity to conduct an overall audit of the prime contract for the improvement;
(6) Require written contracts or agreements for the provision of labor or materials furnished in furtherance of the improvement, unless otherwise required by federal or state law;
(7) Be responsible for another party's compliance with a written agreement relating to the improvement, except as otherwise required by federal or state law; or
(8) Offer direct employment to a temporary laborer or an employee regardless of the temporary laborer's or temporary employee's length of service.
(b) Unless otherwise required by federal or state law, an ordinance, rule, or policy adopted by a government entity listed in subsection (a) that attempts to prevent or restrict a prime contractor or remote contractor from bidding on or accepting a contract for the improvement of real property based on the contractor's failure or refusal to perform an act described in subsection (a), or that attempts to provide a preference to a contractor that is willing to perform such act, is void as against the public policy of this state.
(c) A government entity listed in subsection (a) shall only restrict a prime contractor or remote contractor from bidding, proposing, or accepting a contract or furnishing labor or material for an improvement to real property based upon a final finding or order that the prime contractor or remote contractor committed a willful violation of federal or state law.
(a) It is the responsibility of the commissioner of labor and workforce development to develop and promulgate regulations that adopt occupational safety and health standards.
(b) The commissioner may adopt as an occupational safety or health standard the federal standard relating to the same issue.
(c) 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.
(d) 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.
(a) 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.
(b) Whenever practical, the standard promulgated shall be expressed in terms of objective criteria and of the performance desired.
(c) 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.
(a) 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.
(b) 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.
(c)
(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.
(d) 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.
(e)
(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.
(a) The commissioner may appoint an advisory committee to assist the commissioner in the development and review of regulations prescribing standards under § 50-3-201.
(b)
(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.
(c) 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.
(d)
(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.
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.
(a) 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.
(b) 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.
(c) 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.
(d) 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.
(a) 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.
(b) 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.
(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.
(b) 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.
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 §§ 50-3-301 — 50-3-306, subject to the restriction of § 50-3-915.
(a) Inspections conducted under §§ 50-3-301 — 50-3-306 shall be accomplished without advance notice, subject to the exceptions in subsection (b).
(b) 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.
(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.
(b)
(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.
(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.
(b) 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).
(c) 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.
(d) 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.
(a) 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.
(b) 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.
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.
(a) 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.
(b) 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.
(a) 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.
(b) 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.
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.
(a) 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.
(b) 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.
(c)
(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.
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.
(a) 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.
(b)
(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.
(3)
(A) 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.
(B) 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.
(c) 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).
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.
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.
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.
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.
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.
(a) 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.
(b) 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.
(a) The temporary variance provided for in § 50-3-601 may be granted only after notice to employees and interested parties and opportunity for hearing.
(b) The variance may be for a period of no longer than required to achieve compliance or one (1) year, whichever is shorter.
(c) 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.
(d) Application for renewal of a variance must be filed in accordance with provisions in the initial grant of the variance.
An order granting a temporary variance shall be issued only if the employer establishes that:
(1)
(A) 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;
(B) All available steps have been taken to safeguard the employer's employees against the hazards covered by the standard; and
(C) The employer has an effective program for coming into compliance with the standard as quickly as practicable; or
(2) The employer is engaged in an experimental program as described in § 50-3-602.
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.
(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.
(b) 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.
(c) 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.
(d) 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.
(a) 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.
(b) No interim order may be effective for longer than one hundred eighty (180) days.
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).
(1) Each employer shall, in addition to making available to the commissioner the records and reports required by § 50-3-701 and the rules of the department of labor and workforce development's division of occupational safety and health, report each accident resulting in a work-related death or personal injury as defined in § 50-6-102 to the bureau of workers' compensation no later than fourteen (14) calendar days after the earlier of the date the employer is notified of the accident or the date the employer has knowledge of the accident.
(2) [Deleted by 2024 amendment.]
(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.
(b) 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).
(a) 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.
(b) The governor shall designate one (1) member to serve as chair.
(c) The members shall be chosen from persons qualified by education, training or experience to carry out the functions of the commission.
(d) Service on the commission for a term shall not render a person ineligible for reappointment.
(e) 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.
(f) A per diem allowance of fifty dollars ($50.00) shall only be paid to members for meetings at which a quorum is present.
(g) 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.
(a) The commission or its appointed hearing examiners may hold hearings at places of convenience to the parties concerned.
(b) 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.
(c) Hearings may be conducted on the basis of oral or written evidence.
(d) The commission may administer oaths and subpoena persons, including parties, as witnesses and may compel them to produce documentary evidence for hearings.
(e) 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.
(f) The hearings shall be open to the public and the records of hearings shall be maintained and available for examination.
(g) 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.
(h) The rules of the commission shall provide affected employees or their representatives an opportunity to participate as parties.
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.
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.
(a) 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.
(b) The appeal shall be processed in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
(a) 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.
(b) The persons designated shall be qualified by education, training and experience to ensure the effectiveness of this chapter.
The commissioner of labor and workforce development may delegate the power to conduct inspections under §§ 50-3-301 — 50-3-306 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.
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.
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.
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.
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.
(a) 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.
(b) 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.
(c) 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.
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.
(a) 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.
(b) 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.
(c) 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.
(d) If a local government does not file the notification, it shall be considered to have elected to be treated as a private employer.
(e) On or before July 1, 2016, each utility district created by private act shall elect to either:
No action shall be taken with reference to an employer that is a local government, other than the performance of inspections under §§ 50-3-301 — 50-3-306 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.
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.
If proceedings under §§ 50-3-307, 50-3-401 — 50-3-404, 50-3-407 and 50-3-408 or 50-3-409, 50-3-501 — 50-3-503, 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.
(a) 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.
(b) A violation of this section is a Class A misdemeanor.
(a) 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.
(b) 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.
(a) Records and reports required by this chapter shall be obtained with a minimum burden on employers, especially those operating small businesses.
(b) 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.
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 (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 (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.
(a) 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.
(b) 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.
(c) 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.
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.
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.
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.
(a) 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.
(b) 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.
(c) 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.
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.
The commissioner shall administer and enforce this part and the commissioner is empowered to prescribe and promulgate rules and regulations consistent with this part.
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 §§ 50-3-1002 — 50-3-1005.
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)
(A) Employers shall keep a record of the dates of training sessions given to their employees;
(B) 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;
(2)
(A) 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;
(B) 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;
(C) 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;
(D) 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;
(E) 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;
(F) 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;
(G)
(i) Employers and distributors shall place one (1) sign in accordance with the NFPA 704M 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);
(ii) 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;
(iii) The commissioner shall exempt an employer from this subdivision (2)(G) who can satisfactorily demonstrate that:
(a) The employer maintains a trained fire or emergency preparedness team considered capable of handling workplace chemical or fire emergencies without external assistance; or
(b) 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;
(H) The department of labor and workforce development shall assist employers and fire personnel to effectuate the purposes of this section;
(3)
(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;
(ii) 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;
(iii) 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;
(B)
(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.);
(ii) 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;
(iii) 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
(iv) 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.
(C) 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;
(D) The department of labor and workforce development shall provide the following information and services:
(i) 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)<em>(a)</em> or (3)(D)(i)<em>(b)</em>, if:
(a) The chemical is not a mixture; and
(b) A CAS number exists for the chemical;
(ii) 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;
(iii) 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;
(E) 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.
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.
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:
(A) 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;
(B) Previous inspections have shown violations of law and the present inspection is necessary to determine whether those violations have been abated;
(C) 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;
(D) 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
(E) 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.
(a) 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.
(b) No notice shall be required prior to the issuance of the 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.
(a) 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.
(b) All warrants shall be executed within ten (10) days of issuance.
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.
(a) 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.
(b) 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.
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.
(a) 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.
(b) 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)
(A) 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.
(B) 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.
(C) 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.
(D) 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.
(E) 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.
(c) 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.
(d) 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.
(a) 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) [Deleted by 2023 amendment.]
(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;
(20)
(A) 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;
(B) 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
(21) Occupations involved in youth peddling.
(b)
(1) If a minor is fifteen (15) years of age or younger, the minor must not be employed 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 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.
(2) If a minor is sixteen (16) or seventeen (17) years of age, the minor may be employed 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 if the minor is not permitted to take orders for or serve intoxicating beverages.
(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.
(a) 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.
(b)
(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.
(c) Failure by the commissioner to grant a special exemption within ten (10) days of submission shall be considered a refusal.
(d)
(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.
(e)
(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).
(f)
(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.
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.
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.
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:
(A) An employment application;
(B) A copy of the minor's birth certificate or other evidence of the minor's age as provided in § 50-5-109;
(C) 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
(D) 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.
(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.
(b) Each day during which any violation of subsection (a) continues after notification by the department that a violation exists constitutes a separate punishable offense.
(c) 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.
(d) 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.
(e) 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.
(f) Any person who violates the youth peddling provisions of this part commits a Class D felony.
(g) 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.
(h) All penalties owed under this part shall be paid to the commissioner.
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.
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.
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.
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.
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.
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.
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.
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.
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.
(a) 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.
(b) 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.
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.
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.
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.
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.
(a) Modifications, amendments, or assignments of contracts previously approved by the court are deemed a new contract and require separate approval under this part.
(b) 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.
(a) 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.
(b) 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.
(a) 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.
(b) 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.
(c) 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.
(d) 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.
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.
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.
(a) 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.
(b) 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.
(a) 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.
(b) 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.
(c) 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.
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.
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.
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;
(3)
(A) “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;
(B) 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;
(C) 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;
(D) 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;
(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:
(A) 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;
(B) 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
(C) 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)
(A) “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;
(B) “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 (10)(B) does not become effective until it is filed with the proper entity;
(C) 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;
(D)
(i) 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:
(a) The right to control the conduct of the work;
(b) The right of termination;
(c) The method of payment;
(d) The freedom to select and hire helpers;
(e) The furnishing of tools and equipment;
(f) Self-scheduling of working hours; and
(g) The freedom to offer services to other entities; and
(ii) A premium shall not be charged by an insurance company for any individual determined to be an independent contractor pursuant to this subdivision (10)(D);
(E) “Employee” does not include a construction services provider, as defined in § 50-6-901, if the construction services provider is:
(i) 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;
(ii) Not covered under a policy of workers' compensation insurance maintained by the person or entity for whom the provider is providing services; and
(iii) Rendering services on a construction project that:
(a) Is not a commercial construction project, as defined in § 50-6-901; or
(b) 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);
(11) “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;
(12) “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:
(A) 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;
(B) 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;
(C) 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;
(D) “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;
(E) 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;
(13)
(A) “Maximum total benefit” means the sum of all weekly benefits to which a worker may be entitled;
(B) 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;
(C) 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 (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;
(D) 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 (14)(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;
(14)
(A)
(i) “Maximum weekly benefit” means the maximum compensation payable to the worker per week;
(ii) 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;
(iii) 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;
(iv) 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 ⅔%) 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;
(v) 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 ⅔%) 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;
(vi) 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 ⅔%) 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;
(vii) 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 ⅔%) 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;
(viii) 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 ⅔%) 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;
(ix) 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 ⅔%) 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;
(x) 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 ⅔%) 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
(xi)
(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 ⅔%) 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
(b) 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 ⅔%) 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;
(B) 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;
(15) “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;
(16) “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;
(17) “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
(18) “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.
Every employer and employee subject to this chapter, shall, respectively, pay and accept compensation for personal injury or death by accident arising primarily out of and in the course and scope of employment without regard to fault as a cause of the injury or death; provided, that any person who has an exemption pursuant to § 50-6-104 or part 9 of this chapter shall not be bound if the employee has given, prior to any accident resulting in injury or death, notice to be exempted from this chapter as provided in this part.
(a) Any officer of a corporation may elect to be exempt from the operation of this chapter.
(b) An officer who elects exemption from this chapter shall give written notice to the corporation of the officer's intent not to be covered by this chapter on a form prescribed by the bureau. Notice of the officer's election not to be bound by this chapter must include an affidavit of the officer that the action of the officer in rejecting this chapter was not advised, counseled, nor encouraged by the employer or by anyone acting on the employer's behalf. The election by any employee, who is a corporate officer of the employer, to be exempt from this chapter, does not reduce the number of employees of the employer for the purposes of determining the requirements of coverage of the employer under this chapter.
(c) Every employee who is a corporate officer and who elects not to operate under this chapter, in any action to recover damages for personal injury or death by accident brought against an employer who has elected to operate under this chapter, shall proceed as at common law, and the employer may make use of all common law defenses.
(d) Notification given pursuant to this section does not become effective until it is filed with the proper entity. Any officer who elects exemption and who, after electing exemption then revokes that exemption, shall give written notice of the revocation to the employer and its insurer at least thirty (30) days before the occurrence of any injury or death.
(e) This section does not apply to any officer of a corporation, member of a limited liability company, partner, or sole proprietor who is engaged in the construction industry, as defined by § 50-6-901; instead, part 9 of this chapter applies to such officer, member, partner, or sole proprietor.
Nothing in this chapter shall be construed as amending or repealing any statute or municipal ordinance relating to associations or funds for the relief, pensioning, retirement or other benefit of any employees of the municipal employer, or of the surviving spouses, children or dependents of the employees of the municipal employer, or as in any manner interfering with any statute or municipal ordinance as now or hereafter established.
(A) Any common carrier doing an interstate business while engaged in interstate commerce, which common carrier and the interstate business are already regulated as to employer's liability or workers' compensation by act of congress, it being the purpose of this law to regulate all such business that the congress has not regulated in the exercise of its jurisdiction to regulate interstate commerce; provided, that this chapter shall apply to those employees of the common carriers with respect to whom a rule of liability is not provided by act of congress; provided, further, that no common carrier by motor vehicle operating pursuant to a certificate of public convenience and necessity shall be deemed the employer of a leased-operator or owner-operator of a motor vehicle or vehicles under a contract to such a common carrier;
(B) Notwithstanding subdivision (1)(A), a leased operator or a leased owner/operator of a motor vehicle under contract to a common carrier may elect to be covered under any policy of workers' compensation insurance insuring the common carrier upon written agreement of the common carrier, by filing written notice of the contract, on a form prescribed by the administrator, with the bureau; provided, that the election shall in no way terminate or affect the independent contractor status of the leased operator or leased owner/operator for any other purpose than to permit workers' compensation coverage. The leased operator or leased owner/operator electing coverage as provided in this section shall establish the validity of and satisfy the terms and conditions of all contractual agreements between the parties prior to the payment of any claim for workers' compensation. The election of coverage may be terminated by the leased operator, leased owner/operator, or common carrier by providing written notice of the termination to the bureau and to all other parties consenting to the prior election. The termination shall be effective thirty (30) days from the date of the notice to all other parties consenting to the prior election and to the bureau;
(C) The venue of any dispute arising out of or connected with the validity of the contractual relationship or terms of the written agreement upon which the workers' compensation benefits are extended between the common carrier and a leased operator or leased owner/operator shall be the chancery court of the county where the contract was entered or the county of the principal place of business of the common carrier;
(D) Whenever the leased operator, the leased owner/operator or the carrier files a suit to resolve a contract dispute pursuant to subdivision (C), the statute of limitations for filing a petition for benefit determination with the bureau shall be tolled for ninety (90) days after final judgment has been entered in the suit including all appeals. In cases where a leased operator or leased owner/operator has filed a petition for benefit determination before the leased operator, leased owner/operator or the carrier has filed a suit pursuant to subdivision (C) to resolve a contract dispute, the petition for benefit determination shall be held in abeyance by the bureau until final judgment, including all appeals, has been entered in the suit filed pursuant to subdivision (C);
(2) Any person whose employment at the time of injury is casual, that is, one who is not employed in the usual course of trade, business, profession or occupation of the employer;
(3) Domestic servants and employers of domestic servants;
(4) Farm or agricultural laborers and employers of those laborers. Employers of farm or agricultural laborers may accept this chapter by purchasing a workers' compensation insurance policy, and may at any time withdraw that acceptance by canceling or not renewing the policy and providing notice to the employees;
(5) Cases where fewer than five (5) persons are regularly employed, except as provided in § 50-6-902. In cases with fewer than five (5) regularly employed persons, the employer may accept this chapter by purchasing a workers' compensation insurance policy, and may at any time withdraw that acceptance by canceling or not renewing the policy and providing notice to the employees;
(6) The state, counties of the state and municipal corporations; provided, that the state, any county or municipal corporation may accept this chapter by filing written notice of the acceptance with the bureau under the administrator, at least thirty (30) days before the happening of any accident or death, and may at any time withdraw the acceptance by giving like notice of the withdrawal. The state, any county or municipal corporation may accept this chapter as to any department or division of the state, county or municipal corporation by filing written notice of acceptance with the bureau under the administrator, at least thirty (30) days before the happening of any accident or death and may, at any time, withdraw acceptance for the division or department by giving like notice of the withdrawal, and the acceptance by the state, county or municipal corporation for any department or division of the state, county or municipal corporation shall have effect only of making the department or division designated subject to the terms of this chapter; or
(7) Any person performing voluntary service as a ski patrolperson who receives no compensation for the services other than meals, lodging or the use of ski tow or ski lift facilities or any combination of meals, lodging and the use of ski tow or ski lift facilities.
(a) The rights and remedies granted to an employee subject to this chapter, on account of personal injury or death by accident, including a minor whether lawfully or unlawfully employed, shall exclude all other rights and remedies of the employee, the employee's personal representative, dependents or next of kin, at common law or otherwise, on account of the injury or death.
(b) No employer who fails to secure payment of compensation as required by this chapter, shall be permitted to defend the suit upon any of the following grounds, in any suit brought against the employer by an employee covered by this chapter or by the dependent or dependents of the employee, to recover damages for personal injury or death arising from an accident:
(1) The employee was negligent;
(2) The injury was caused by the negligence of a fellow servant or fellow employee; or
(3) The employee had assumed the risk of the injury.
(c) This section shall not be construed to preclude third party indemnity actions against an employer who has expressly contracted to indemnify the third party.
(a) No compensation shall be allowed for an injury or death due to:
(1) The employee's willful misconduct;
(2) The employee's intentional self-inflicted injury;
(3) The employee's intoxication or illegal drug usage;
(4) The employee's willful failure or refusal to use a safety device;
(5) The employee's willful failure to perform a duty required by law; or
(6) The employee's voluntary participation in recreational, social, athletic or exercise activities, including, but not limited to, athletic events, competitions, parties, picnics, or exercise programs, whether or not the employer pays some or all of the costs of the activities unless:
(A) Participation was expressly or impliedly required by the employer;
(B) Participation produced a direct benefit to the employer beyond improvement in employee health and morale;
(C) Participation was during employee's work hours and was part of the employee's work-related duties; or
(D) The injury occurred due to an unsafe condition during voluntary participation using facilities designated by, furnished by or maintained by the employer on or off the employer's premises and the employer had actual knowledge of the unsafe condition and failed to curtail the activity or program or cure the unsafe condition.
(b) If the employer defends on the ground that the injury arose in any or all of the ways stated in subsection (a), the burden of proof shall be on the employer to establish the defense.
(c)
(1) In cases where the employer has implemented a drug-free workplace pursuant to chapter 9 of this title, if the injured employee has, at the time of the injury, a blood alcohol concentration level equal to or greater than eight-hundredths of one percent (0.08%) for non-safety sensitive positions, or four-hundredths of one percent (0.04%) for safety-sensitive positions, as determined by blood or breath testing, or if the injured employee has a positive confirmation of a drug as defined in § 50-9-103, then it is presumed that the drug or alcohol was the proximate cause of the injury. This presumption may be rebutted by clear and convincing evidence that the drug or alcohol was not the proximate cause of injury. Percent by weight of alcohol in the blood must be based upon grams of alcohol per one hundred milliliters (100 mL) of blood. If the results are positive, the testing facility must maintain the specimen for a minimum of three hundred sixty-five (365) days at minus twenty degrees celsius (-20° C.). Blood serum may be used for testing purposes under this chapter; provided, however, that if this test is used, the presumptions under this section do not arise unless the blood alcohol level is proved to be medically and scientifically equivalent to or greater than the comparable blood alcohol level that would have been obtained if the test were based on percent by weight of alcohol in the blood. However, if, before the accident, the employer had actual knowledge of and acquiesced in the employee's presence at the workplace while under the influence of alcohol or drugs, the employer retains the burden of proof in asserting any defense under subsections (a) and (b), and this subsection (c) does not apply.
(2) If the injured worker refuses to submit to a drug test, it shall be presumed, in the absence of clear and convincing evidence to the contrary, that the proximate cause of the injury was the influence of drugs, as defined in § 50-9-103.
(3) The administrator of the bureau of workers' compensation shall provide, by rule, for the authorization and regulation of drug testing policies, procedures and methods. Testing of injured employees pursuant to a drug-free workplace program under chapter 9 of this title shall not commence until the rules are adopted.
(1) “Department” means the department of labor and workforce development;
(2) “Employer” means a municipality, county, metropolitan form of government, or other political subdivision of this state that employs firefighters;
(3) “Fire department”:
(A) Means a department of a municipality, county, or political subdivision, or an organization, agency, or entity that offers its services, for or without pay, for the purpose of suppressing fires, performing rescue services, or for other emergency response purposes; and
(B) Does not include law enforcement agencies, emergency medical agencies licensed by the Tennessee emergency medical services board, and rescue squads that do not provide fire protection;
(4) “Firefighter”:
(A) Means a regular or full-time, paid employee of the fire department of a municipality, county, municipal form of government, or other political subdivision of this state and whose duties require the employee to actively engage in fire suppression, rescue services, or other emergency response tasks; and
(B) Includes employees whose previous duties required the employee to respond to and be actively engaged in fire suppression, rescue services, or other emergency response tasks;
(5) “Mental health professional” means an individual professionally licensed in this state to diagnose and treat post-traumatic stress disorders; and
(6) “Post-traumatic stress disorder” has the same meaning as defined in the most recent publication of the Diagnostic and Statistical Manual of Mental Disorders (DSM) of the American Psychiatric Association.
(b) The department shall establish and administer a grant program to mitigate the costs to an employer of providing workers' compensation for firefighters diagnosed with post-traumatic stress disorder by a mental health professional.
(c) The department shall utilize existing staff to assist in the implementation of the program and provide grant funding from whatever funding sources are available, including available department funds and funds from the federal and state governments.
(d) The department shall administer the program pursuant to rules promulgated by the department. The rules must provide for the awarding of grants to employers, or to the workers' compensation benefits provider of employers, who apply for a grant and meet the requirements described in subdivision (e)(1), which must be verified by the state fire marshal's office.
(e)
(1) The department may award an employer a grant if the employer provides mental health awareness training for its personnel, which must include:
(A) Understanding the signs and symptoms of stress, depression, anxiety, psychological trauma, complex trauma, and addiction;
(B) Understanding, navigating, and reducing mental health stigma;
(C) Utilizing appropriate de-escalation strategies; and
(D) Managing stress, using self-care techniques, developing coping skills, and promoting resiliency.
(2) An employer may develop the mental health awareness training described in subdivision (e)(1), or may use a training program developed by another entity that satisfies the criteria set forth in subdivision (e)(1).
(f) The employer shall grant a firefighter who receives mental health awareness training in accordance with subsection (e) appropriate continuing education credits.
(g) The department shall annually provide a report, on or before February 1 each year, to the chairs of the state and local government committee of the senate and the local government committee of the house of representatives. The report must include an analysis of the number of claims brought under Section 1, the portion of those claims that resulted in a settlement or award of benefits, the effect of this section on costs to this state and its political subdivisions, and the balance of funds available for future claims.
(a) When the injury or death for which compensation is payable under this chapter was caused under circumstances creating a legal liability against some person other than the employer to pay damages, the injured worker, or the injured worker's dependents, shall have the right to take compensation under this chapter, and the injured worker, or those to whom the injured worker's right of action survives at law, may pursue the injured worker's or their remedy by proper action in a court of competent jurisdiction against the other person.
(b) In the event of a recovery from the other person by the worker, or those to whom the worker's right of action survives, by judgment, settlement or otherwise, the attorney representing the injured worker, or those to whom the injured worker's right of action survives, and effecting the recovery, shall be entitled to a reasonable fee for the attorney's services, and the attorney shall have a first lien for the fees against the recovery; provided, that if the employer has engaged other counsel to represent the employer in effecting recovery against the other person, then a court of competent jurisdiction shall, upon application, apportion the reasonable fee between the attorney for the worker and the attorney for the employer, in proportion to the services rendered.
(c)
(1) In the event of a recovery against the third person by the worker, or by those to whom the worker's right of action survives, by judgment, settlement or otherwise, and the employer's maximum liability for workers' compensation under this chapter has been fully or partially paid and discharged, the employer shall have a subrogation lien against the recovery, and the employer may intervene in any action to protect and enforce the lien.
(2) In the event the net recovery by the worker, or by those to whom the worker's right of action survives, exceeds the amount paid by the employer, and the employer has not, at the time, paid and discharged the employer's full maximum liability for workers' compensation under this chapter, the employer shall be entitled to a credit on the employer's future liability, as it accrues, to the extent the net recovery collected exceeds the amount paid by the employer.
(3) In the event the worker, or those to whom the worker's right of action survives, effects a recovery, and collection of that recovery, from the other person, by judgment, settlement or otherwise, without intervention by the employer, the employer shall nevertheless be entitled to a credit on the employer's future liability for workers' compensation, as it accrues under this chapter, to the extent of the net recovery.
(d)
(1) The action against the other person by the injured worker, or those to whom the injured worker's right of action survives, must be instituted in all cases within one (1) year from the date of injury.
(2) Failure on the part of the injured worker, or those to whom the injured worker's right of action survives, to bring the action within the one-year period shall operate as an assignment to the employer of any cause of action in tort that the worker, or those to whom the worker's right of action survives, may have against any other person for the injury or death, and the employer may enforce the cause of action in the employer's own name or in the name of the worker, or those to whom the worker's right of action survives, for the employer's benefit, as the employer's interest may appear, and the employer shall have six (6) months after the assignment within which to commence the suit.
(3) If the cause of action described in subsection (a) arises in a jurisdiction other than this state and the other jurisdiction has a statute of limitations for personal injury and wrongful death greater than the one-year statute of limitations provided in this state, the court hearing the cause of action shall apply the statute of limitations that provides the injured worker, or those to whom the injured worker's right of action survives, the greatest amount of time in which to institute an action.
(4) Under no circumstances shall the negligent party described in subsection (a) benefit from this subsection (d).
(a) A principal contractor, intermediate contractor or subcontractor shall be liable for compensation to any employee injured while in the employ of any of the subcontractors of the principal contractor, intermediate contractor or subcontractor and engaged upon the subject matter of the contract to the same extent as the immediate employer.
(b) Any principal contractor, intermediate contractor or subcontractor who pays compensation under subsection (a) may recover the amount paid from any person who, independently of this section, would have been liable to pay compensation to the injured employee, or from any intermediate contractor.
(c) Every claim for compensation under this section shall be in the first instance presented to and instituted against the immediate employer, but the proceedings shall not constitute a waiver of the employee's rights to recover compensation under this chapter from the principal contractor or intermediate contractor; provided, that the collection of full compensation from one (1) employer shall bar recovery by the employee against any others, nor shall the employee collect from all a total compensation in excess of the amount for which any of the contractors is liable.
(d) This section applies only in cases where the injury occurred on, in, or about the premises on which the principal contractor has undertaken to execute work or that are otherwise under the principal contractor's control or management.
(e) A subcontractor under contract to a general contractor may elect to be covered under any policy of workers' compensation insurance insuring the contractor upon written agreement of the contractor, by filing written notice of the election, on a form prescribed by the administrator, with the bureau. It is the responsibility of the general contractor to file the written notice with the bureau. Failure of the general contractor to file the written notice shall not operate to relieve or alter the obligation of an insurance company to provide coverage to a subcontractor when the subcontractor can produce evidence of payment of premiums to the insurance company for the coverage. The election shall in no way terminate or affect the independent contractor status of the subcontractor for any other purpose than to permit workers' compensation coverage. The election of coverage may be terminated by the subcontractor or general contractor by providing written notice of the termination to the bureau and to all other parties consenting to the prior election. The termination shall be effective thirty (30) days from the date of the notice to all other parties consenting to the prior election and to the bureau.
(f) This section shall not apply to a construction services provider, as defined by § 50-6-901.
(a) No contract or agreement, written or implied, or rule, regulation or other device, shall in any manner operate to relieve any employer, in whole or in part, of any obligation created by this chapter, except as provided in subsection (b).
(b) Any employer may set off from temporary total, temporary partial, permanent partial and permanent total disability benefits any payment made to an employee under an employer funded disability plan for the same injury; provided, that the disability plan permits such an offset. The offset from a disability plan may not result in an employee's receiving less than the employee would otherwise receive under this chapter. In the event that a collective bargaining agreement is in effect, this subsection (b) shall be subject to the agreement of both parties.
(a) For purposes of this section, an employee is considered to be temporarily in a state working for an employer if the employee is working for such employee's employer in a state other than the state where such employee is primarily employed for no more than fourteen (14) consecutive days, or no more than twenty-five (25) days total, during a calendar year. This subsection (a) does not apply to construction services providers, as defined in § 50-6-901, performing work in this state.
(b)
(1) If an employee in this state who is subject to this chapter temporarily leaves this state incidental to the employee's employment and receives an accidental injury arising out of and in the course and scope of the employee's employment, the employee, or the employee's beneficiaries in the case of an injury that results in the employee's death, shall be entitled to the benefits of this chapter as if the employee was injured in this state.
(2) If an employee, while working outside the territorial limits of this state other than temporarily, suffers an injury on account of which the employee, or, in the event of the employee's death, the employee's dependents, would have been entitled to the benefits provided by this chapter had the injury occurred within this state, the employee, or in the event of the employee's death resulting from the injury, the employee's dependents, shall be entitled to the benefits provided by this chapter; provided, that at the time of the injury:
(A) The employment was principally localized within this state;
(B) The contract of hire was made in this state; or
(C) If at the time of the injury the injured worker was a Tennessee resident and there existed a substantial connection between this state and the particular employer and employee relationship.
(c)
(1) An employee from another state and the employee's employer are exempt from this chapter while the employee is temporarily in this state performing work for the employer if:
(A) The employer has furnished workers' compensation insurance coverage under the workers' compensation insurance or similar laws of the other state to cover the employee's employment while in this state;
(B) The extraterritorial provisions of this chapter are recognized in the other state; and
(C) Employees and employers who are covered in this state are likewise exempted from the application of the workers' compensation insurance or similar laws of the other state.
(2) The benefits under the workers' compensation insurance or similar laws of the other state, or other remedies under similar law, are the exclusive remedy against the employer for any injury, whether resulting in death or not, received by the employee while temporarily working for that employer in this state.
(3) A certificate from the duly authorized officer of the appropriate department of another state certifying that the employer of such other state is insured in that state and has provided extraterritorial coverage insuring employees while working in this state is prima facie evidence that the employer carries such workers' compensation insurance.
(4) Whenever in any appeal or other litigation the construction of the laws of another jurisdiction is required, the courts shall take judicial notice of such construction of the laws of the other jurisdiction.
(5) When an employee has a claim under the workers' compensation insurance laws of another state, territory, province, or foreign nation for the same injury or occupational disease as the claim filed in this state, the total amount of compensation paid or awarded under such other workers' compensation law shall be credited against the compensation due under this chapter.
(6) Subdivisions (c)(1)-(3) do not apply to construction services providers, as defined in § 50-6-901, performing work in this state.
(d)
(1) Any employer who is insured in this state for workers' compensation under this chapter, and who has extraterritorial coverage under this chapter, for their employees while such employees are temporarily working outside this state within the meaning of subsection (a) may obtain a certificate evidencing such coverage at the time that the application for certification is made from the commissioner of commerce and insurance.
(2) In order to obtain a certificate under subdivision (d)(1), an employer shall:
(A) File an application with the commissioner of commerce and insurance, on a form that is approved by the commissioner of commerce and insurance;
(B) Pay a filing fee to the department of commerce and insurance in the amount of one hundred dollars ($100). The commissioner of commerce and insurance may change the amount of the filing fee required by this subdivision (d)(2)(B) by promulgating a rule pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, as necessary to ensure that the proceeds of such filing fees are sufficient to offset the cost of processing applications and issuing the certificates authorized by this subsection (d); and
(C) Submit to the commissioner of commerce and insurance a copy of the declaration page from the employer's workers' compensation insurance policy, or such proof as the commissioner of commerce and insurance may require to demonstrate that the employer is self insured for workers' compensation and the territorial limits of such coverage.
(3) The commissioner of commerce and insurance is authorized to issue a certificate that certifies that, at the time that the application for certification is made, the applicant employer in this state is insured for workers' compensation under this chapter, and that such employers have extraterritorial coverage under this chapter, for their employees while such employees are temporarily working outside this state within the meaning of subsection (a).
(e)
(1) A construction services provider, as defined in § 50-6-901, performing work in this state shall maintain workers' compensation insurance coverage throughout the duration of that work and must designate “Tennessee” in section 3A of a construction service provider's workers' compensation insurance policy or endorsement.
(2) A construction services provider who violates this subsection (e) is subject to a penalty issued by the administrator or administrator's designee of up to the greater of:
(A) One thousand dollars ($1,000); or
(B) One and one-half (1.5) times the average yearly workers' compensation premium for the construction services provider based on the appropriate assigned risk plan advisory prospective loss cost and multiplier for the construction services provider as of the date of determination that the construction services provider performs work in this state and did not secure payment of compensation pursuant to this subsection (e).
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, this chapter shall not be remedially or liberally construed but shall be construed fairly, impartially, and in accordance with basic principles of statutory construction and this chapter shall not be construed in a manner favoring either the employee or the employer.
(a) The bureau of workers' compensation shall, by rule promulgated pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, establish and collect penalties for the following:
(1) Failure of a covered employer to provide workers' compensation coverage or qualify as a self-insurer;
(2) Late filing of accident reports;
(3) Bad faith denial of claims;
(4) Late filing of notice of denial of claim;
(5) Failure of any party to appear or to mediate in good faith at any alternative dispute resolution proceeding;
(6) Failure of any party to comply, within the designated timeframe, with any order or judgment issued by a workers' compensation judge;
(7) Performance of any enumerated action provided in § 29-9-102 in relation to any proceedings in the court of workers' compensation claims;
(8) Failure of any employer to timely provide medical treatment made reasonably necessary by the accident and recommended by the authorized treating physician or operating physician;
(9) Failure of an employer to timely provide a panel of physicians that meets the statutory requirements of this chapter;
(10) Wrongful failure of an employer to pay an employee's claim for temporary total disability payments;
(11) Wrongful failure to satisfy the terms of an approved settlement;
(12) Refusal to cooperate with the services provided by an ombudsman; and
(13) Any violation of § 50-6-215 by an individual or entity not licensed by the department of commerce and insurance.
(b) All penalties collected by the bureau from an employer for failure to provide workers' compensation coverage or failure to qualify as a self-insurer shall be paid into and become a part of the uninsured employers fund. All other penalties collected pursuant to an assessment made under this section shall be paid to the bureau for use by the bureau, at the discretion of the administrator, to offset the cost of administering this chapter.
(c) The bureau of workers' compensation may assess the penalties authorized by this chapter, upon providing notice and an opportunity for a hearing to an employer, an employee, an insurer, or a self-insured pool or trust. If a hearing is requested, the commissioner, commissioner's designee, or an agency member appointed by the commissioner shall have the authority to hear the matter as a contested case, and the authority to hear the administrative appeal of an agency decision, relating to the assessment of the penalties authorized by this chapter. When a hearing or review of an agency decision is requested, the requesting party shall have the burden of proving, by a preponderance of the evidence, that the penalized party was either not subject to this chapter, or that the penalties assessed pursuant to this chapter should not have been assessed. Any party assessed a penalty pursuant to this section shall have the right to appeal the penalty assessed by the bureau and affirmed by the commissioner, the commissioner's designee or an agency member in the manner provided in this subsection (c), pursuant to the Uniform Administrative Procedures Act.
(d)
(1) If an employee receives a settlement, judgment, or decree under this chapter that includes the payment of medical expenses, and the employer or workers' compensation carrier unreasonably fails to reimburse the employee for any medical expenses actually paid by the employee within sixty (60) days of the settlement, judgment, or decree, or unreasonably fails to provide reasonable and necessary medical expenses and treatment, including failure to reimburse the employee for reasonable and necessary medical expenses, after receiving actual notice of the obligation to provide the medical treatment and a reasonable opportunity to obtain the information and documentation necessary to pay medical expenses or provide medical treatment, then the employer or workers' compensation carrier is liable, in the court's discretion, to pay the employee a sum not exceeding twenty-five percent (25%) of the expenses, in addition to the amount due for medical expenses paid. The court may exercise this discretion only if the court finds that the refusal to pay the claim inflicted additional expense, loss, or injury upon the employee.
(2) An employer or workers' compensation carrier is not liable under subdivision (d)(1) if payment of the subject medical expense is issued, or reasonable and necessary medical treatment is authorized, within sixty (60) days of the employer's or workers' compensation carrier's receipt of information and documentation reasonably necessary to issue payment of the subject medical expense or to determine liability for reasonable and necessary medical treatment.
(a) In order to provide greater awareness among employers and employees of the rights and obligations of the workers' compensation laws, the bureau of workers' compensation shall institute an information awareness program. The program shall:
(1) Involve a statewide effort to consult with employers on the actions required;
(2) Provide that employers with frequent incidents of injuries be targeted for referral to appropriate agencies on accident prevention;
(3) Provide education and information aimed at preventing disputes and delays in the processing of claims, through the use of speakers' seminars and conferences;
(4) Provide a system to communicate developments in the law to interested groups;
(5) Provide injured employees with complete information on their rights to compensation and day-to-day assistance with problems on their claims;
(6) Develop general informational literature and audio-visual aids for both employees and employers; and
(7) Provide a toll-free number for employers and employees to receive information from and ask questions of the department.
(b) Any publications for distribution under this section must be published in accordance with the rules, regulations, policies and procedures of the state publications committee.
(a) No construction design professional, or any employee of the construction design professional, who is retained to perform professional services on a construction project, shall be liable for the personal injury or death of any nonemployee of the construction design professional, working on the construction project, unless the construction design professional or any employee of the construction design professional is guilty of negligence that is a proximate cause of the injury or death of the nonemployee.
(b) Nothing in this section shall be construed to affect the rights or responsibilities of any person under this chapter.
(c) Rule 11 of the Tennessee Rules of Civil Procedure shall apply in all actions against construction design professionals.
(A) There is created an advisory council on workers' compensation. There shall be seven (7) voting members of the council, with three (3) representing employers, three (3) representing employees, and one (1) member who shall serve as the chair and who shall be the state treasurer or the state treasurer's designee. There shall be ten (10) nonvoting members of the council. All members shall have a demonstrable working knowledge of the workers' compensation system.
(B) The chair shall preside at meetings of the council and, in consultation with the voting members of the council, shall supervise the work of the staff of the council. The council shall meet at the call of the chair or at the written call of four (4) voting members of the council which written call shall be delivered to the chair. The chair may vote only on matters related to the administration of the council or the council's research. The chair is not permitted to vote on any matter that constitutes the making of a policy recommendation to the governor or to the general assembly.
(C) The speaker of the house of representatives, the speaker of the senate and the governor shall each appoint one (1) employer and one (1) employee representative to the council, who shall be voting members. Representatives, officers and employees from labor organizations or business trade organizations are eligible for appointment. In making the appointments of the employer representatives, the appointing authorities shall strive to ensure a balance of a commercially insured employer, self-insured employer or an employer who operates a small business. At least one (1) employee representative shall be from organized labor. Proxy voting is prohibited by voting members of the council; provided, however, that in instances where a voting member will be absent from a vote of the council, the member's appointing authority is authorized to appoint an alternate or designee for the vote or votes.
(D) Voting members shall serve four-year terms and the terms shall be staggered so that the terms of only three (3) voting members shall terminate at the same time. All four-year terms shall begin on July 1 and terminate on June 30, four (4) years thereafter.
(E)
(i) The governor shall also appoint ten (10) nonvoting members of the council as follows: one (1) to represent local governments, one (1) to represent insurance companies, five (5) to represent health care providers and three (3) attorneys. The nonvoting local government representative may be appointed from lists of qualified persons submitted by interested municipal and county organizations including, but not limited to, the Tennessee Municipal League and the Tennessee County Services Association. The nonvoting insurance company representative may be appointed from lists of qualified persons submitted by interested insurance organizations including, but not limited to, the Property Casualty Insurers Association of America and the American Insurance Association. One (1) nonvoting healthcare provider representative may be appointed from lists of qualified persons submitted by interested medical organizations including, but not limited to, the Tennessee Medical Association and one (1) nonvoting healthcare provider representative may be appointed from lists of qualified persons submitted by interested hospital organizations including, but not limited to, the Tennessee Hospital Association. One (1) nonvoting health care provider representative shall be a chiropractor who is licensed in this state, one (1) nonvoting health care provider representative shall be a physical therapist who is licensed in this state, and one (1) nonvoting health care provider representative shall be an occupational therapist who is licensed in this state, and these members shall not receive reimbursement for travel expenses. The nonvoting attorney members shall be appointed as follows: one (1) who shall primarily represent injured workers' compensation claimants, who may be appointed from lists of qualified persons submitted by interested justice organizations including, but not limited to, the Tennessee Association for Justice; one (1) who shall primarily represent employers or workers' compensation insurers, who may be appointed from lists of qualified persons submitted by interested defense lawyer organizations including, but not limited to, the Tennessee Defense Lawyers Association; and one (1) who may be appointed from lists of qualified persons submitted by interested legal organizations including, but not limited to the Tennessee Bar Association.
(ii) The appointing authorities shall consult with interested groups including, but not limited to, the organizations listed in subdivision (a)(E)(i) to determine qualified persons to fill positions on the council.
(F) The nonvoting members shall be appointed to four-year terms that shall begin on July 1 and terminate on June 30, four (4) years thereafter.
(G) The chair of the commerce and labor committee of the senate, the chair of the commerce committee of the house of representatives, the administrator of the bureau of workers' compensation and the commissioner of commerce and insurance, or their designees, shall be ex officio, nonvoting members of the council.
(2) Each voting and nonvoting member of the advisory council on workers' compensation shall, upon the expiration of the member's term, be eligible for reappointment and shall serve until a successor is appointed. In the event a member resigns or becomes ineligible for service during the member's term, a successor shall be appointed by the appropriate appointing authority to serve the remainder of the term.
(3) No employer shall discriminate in any manner against an employee who serves on the advisory council because of the employee's service. Employees who serve on the advisory council shall not be denied any benefit from their employer because of the employee's service. Travel expenses of the employee representatives on the council shall be reimbursed pursuant to subsection (b); however, employers may choose to pay the travel expenses of their employees' service on the advisory council according to their own policies.
(b)
(1) Notwithstanding § 3-6-304 or any other law to the contrary, and in addition to all other requirements for membership on the council:
(A) Any person registered as a lobbyist pursuant to the registration requirements of title 3, chapter 6 who is subsequently appointed or otherwise named as a member of the council shall terminate all employment and business association as a lobbyist with any entity whose business endeavors or professional activities are regulated by the council, prior to serving as a member of the council. This subdivision (b)(1)(A) shall apply to all persons appointed or otherwise named to the council after July 1, 2010;
(B) No person who is a member of the council shall be permitted to register or otherwise serve as a lobbyist pursuant to title 3, chapter 6 for any entity whose business endeavors or professional activities are regulated by the council during such person's period of service as a member of the council. This subdivision (b)(1)(B) shall apply to all persons appointed or otherwise named to the council after July 1, 2010, and to all persons serving on the council on such date who are not registered as lobbyists; and
(C) No person who serves as a member of the council shall be employed as a lobbyist by any entity whose business endeavors or professional activities are regulated by the council for one (1) year following the date such person's service on the council ends. This subdivision (b)(1)(C) shall apply to persons serving on the council as of July 1, 2010, and to persons appointed to the council subsequent to such date.
(2) A person who violates this subsection (b) shall be subject to the penalties prescribed in title 3, chapter 6.
(3) The bureau of ethics and campaign finance is authorized to promulgate rules and regulations to effectuate the purposes of this subsection (b). All such rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, and in accordance with the procedure for initiating and proposing rules by the ethics commission to the bureau of ethics and campaign finance as prescribed in § 4-55-103.
(c) In addition to all other requirements for membership on the council, all persons appointed or otherwise named to serve as members of the council after July 1, 2010, shall be residents of this state.
(d) Members of the council shall not be paid but may be reimbursed for travel expenses. All reimbursement for travel expenses shall be in accordance with the comprehensive travel regulations promulgated by the department of finance and administration and approved by the attorney general and reporter.
(e) The council shall meet at least twice each year. It shall annually review workers' compensation in the state and shall issue a report of its findings and conclusions on or before July 1 of each year. The annual report shall be sent to the governor, the speakers of the house of representatives and the senate, the chair and vice-chair of the special joint committee on workers' compensation, the administrator of the bureau of workers' compensation, the commissioner of commerce and insurance and the clerks of the house of representatives and senate. Notice of the publication of the annual report and all other reports published by the council shall be provided to all members of the general assembly pursuant to § 3-1-114.
(f) In performing its responsibilities, the council's role shall be strictly advisory, but it may:
(1) Make recommendations to the governor, the general assembly, the special joint committee on workers' compensation, the standing committees of each house that review the status of the workers' compensation system, the administrator of the bureau of workers' compensation and the commissioner of commerce and insurance relating to the promulgation or adoption of legislation or rules;
(2) Make recommendations to the administrator of the bureau of workers' compensation and the commissioner of commerce and insurance regarding the method and form of statistical data collections; and
(3) Monitor the performance of the workers' compensation system in the implementation of legislative directives.
(g) The chair, in consultation with the voting members of the council, is authorized to retain staff and professional assistance, such as consultants and actuaries, as the chair deems necessary for the work of the council, subject to budgetary approval in the general appropriations act. For administrative purposes, the council shall be attached to the department of treasury for all administrative matters relating to receipts, disbursements, expense accounts, budget, audit and other related items. The state treasurer shall have administrative and supervisory control over the staff assigned to assist the council. Employees of the council shall not have the status of preferred service employees pursuant to title 8. The autonomy of the council and its authority are not affected by this subsection (g).
(h) The council may develop evaluations, statistical reports and other information from which the general assembly may evaluate the impact of the legislative changes to workers' compensation law, including, but not limited to, the Reform Act of 2004 and subsequent statutory changes to this chapter.
(i) The advisory council shall issue an annual report that includes a summary of significant supreme court decisions relating to workers' compensation, including an explanation of their impact on existing policy. The report shall be due on or before January 15 of each year and shall include, to the extent possible, the decisions that were issued during the preceding calendar year. This annual report shall be sent to the governor, the speaker of the house of representatives, the speaker of the senate, the chair of the commerce committee of the house of representatives, the chair of the commerce and labor committee of the senate, and the chair and co-chair of the special joint committee on workers' compensation. Notice of the publication of the report shall be provided to all members of the general assembly pursuant to § 3-1-114.
(j) The advisory council on workers' compensation shall, within ten (10) business days of each meeting it conducts, provide a summary of the meeting and a report of all actions taken and all actions recommended to be taken to each member of the commerce committee of the house of representatives and the commerce and labor committee of the senate.
(k) Whenever any bill is introduced in the general assembly proposing to amend this chapter or to make any change in workers' compensation law, or to make any change in the law that may have a financial or other substantive impact on the administration of workers' compensation law, the standing committee to which the bill is referred may refer the bill to the council. The council's review of bills relating to workers' compensation should include, but not be limited to, bills that propose to amend chapters 3, 6, 7, and 9 of this title, and title 56, chapters 5 and 47. All bills referred to the council shall be reported back to the standing committee to which they were assigned as quickly as reasonably possible. Notwithstanding the absence of a report from the council, the standing committee is free to consider the bill at any time. The chair making the referral shall immediately notify the prime sponsors of the referral and the council shall not review and comment on the proposed legislation until the prime sponsors have been notified. The comments of the council shall describe the potential effects of the proposed legislation on the workers' compensation system and its operations and any other information or suggestions that the council may think helpful to the sponsors, the standing committees or the general assembly. The comments of the council may include recommendations for or against passage of the proposed legislation. Other than reporting the recommendations for or against passage of proposed legislation and responding to any questions that the legislators may have, no staff of the advisory council shall lobby or advocate for or against passage of proposed legislation.
(l) The council shall study and report on the occupational health and safety of employment in Tennessee and make recommendations for safe employment education and training and promote the development of employer-sponsored health and safety programs.
(1) It is the intent of the general assembly that quality medical care services shall be available to injured and disabled employees. It is also the legislative intent to control increasing medical costs in workers' compensation matters by establishing cost control mechanisms to ensure cost-effective delivery of medical care services by employing a program of medical case management and a program to review the utilization and quality of medical care services.
(2) In order to assure that in workers' compensation cases quality medical care is rendered and to control medical care costs, an employer is authorized to use, but is not required to use, health maintenance organizations (HMOs) and preferred provider organizations (PPOs). An HMO or PPO may contract with medical care providers as permitted by law. The contracts are authorized to use, but are not limited to the use of, the following managed care methodologies:
(A) Medical bill review;
(B) Establishment of medical practice guidelines;
(C) Case management, subject to § 50-6-123;
(D) Utilization review, subject to § 50-6-124; and
(E) Peer review programs.
(3) Section 50-6-204(a)(3), relative to medical care, shall apply to any managed care methodology employed pursuant to this section. For the purposes of § 50-6-204(a)(3), physicians and surgeons in the same HMO or PPO are considered to be associated in practice together if they share a common employer for purposes of their clinical practice, or are associated together in a group practice.
(b) A health care provider shall not pursue a private claim against a workers' compensation claimant for all or part of the costs of health care services provided to the claimant by the provider unless:
(1) The injury is finally adjudicated not to be compensable under this chapter;
(2) The physician or surgeon, as provided in § 50-6-204, who was not authorized by the employer at the time the services were rendered, knew that the physician or surgeon was not an authorized physician or surgeon; or
(3) The employee knew that the physician or surgeon was not an authorized physician or surgeon; provided, that subdivision (b)(2) and this subdivision (b)(3) do not apply to emergency care.
(a) All case managers, including case manager assistants, coordinating the medical care services provided to employees claiming benefits or handling claims of employees claimed under this chapter shall be certified by the bureau pursuant to this section.
(b) The administrator shall establish, pursuant to the administrator's rulemaking authority, a system of case management for coordinating the medical care services provided to employees claiming benefits under this chapter; provided, however, it is within the discretion of the administrator to provide or deny case management services to any employee who has suffered a workers' compensation injury. Pursuant to the administrator's rulemaking authority, the administrator may establish:
(1) Minimum standards for the professional practice of case managers and case manager assistants; and
(2) A procedure for case managers and case manager assistants to obtain certification if required pursuant to this section.
(c) Any case manager, case manager assistant, or person or entity that employs a case manager who fails to comply with this section, or rules promulgated pursuant to this section, may be subject, after notice of a violation has been provided, to a penalty of not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000) per violation, at the discretion of the administrator. In addition to any penalty assessed pursuant to this subsection (c), the administrator may also suspend the person's certification as a case manager or case manager assistant if, in the discretion of the administrator, the person has an established pattern of violations of this section.
(d) The bureau shall notify any person who has violated this section of such violation and may assess a penalty, suspend the person's certification, or both. The person shall have fifteen (15) calendar days from the date notice was sent to appeal the decision pursuant to the procedures provided for under the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, or to pay the assessed penalty.
(e) Nothing in this section shall prevent an employer from establishing its own program of case management that meets the guidelines promulgated by the administrator in rules.
(f) Medical care, treatment, therapy, or services provided at the employee's residence pursuant to this chapter shall not be considered home health services as defined in § 68-11-201 when provided pursuant to direction of the employee's attending physician in the following specific circumstances only:
(1) By a licensed healthcare provider who routinely provides services to employees at the place of employment, if the services rendered by the provider at the employee's residence are of the same type rendered by the provider at the place of employment; or
(2) By a licensed physical therapist, occupational therapist, or speech therapist practicing independently of a home health agency, when the employee's attending physician determines that it is in the best interest of the employee to be treated by the independent therapist because of the therapist's expertise in workplace injuries.
(a) The administrator of the bureau of workers' compensation shall establish a system of utilization review of selected outpatient and inpatient healthcare providers for employees claiming benefits under this chapter, to be performed by utilization review organizations accredited by either the Utilization Review Accreditation Commission (URAC) or the National Committee for Quality Assurance (NCQA). Utilization review organizations shall be required to provide proof of such accreditation beginning July 1, 2016.
(b) The administrator shall also establish a system of preadmission review of all hospital admissions, except for emergency services; however, utilization review pursuant to subsection (a) and this subsection (b) shall begin within one (1) working day of all emergency hospital admissions.
(c) Pursuant to the administrator's established system of utilization review, the administrator may contract with an independent utilization review organization, not owned by or affiliated with any carrier authorized to write workers' compensation insurance in the state, to provide utilization review, including peer review.
(d) Nothing in this section shall prevent an employer from electing to provide utilization review; however, if the employee, provider or any other party not contractually bound to the employer's utilization review program disagrees with that employer's utilization review, then that employee, provider or other party shall have recourse to the administrator's utilization review program, as provided for in this section.
(e) Pursuant to the utilization review conducted by the administrator, including providing an opportunity for a hearing, any health care provider who is found by the administrator to have rendered excessive or inappropriate services may be subject to:
(1) A forfeiture of the right to payment for those services that are found to be excessive or inappropriate;
(2) A civil penalty of not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000); or
(3) A temporary or permanent suspension of the right to provide medical care services for workers' compensation claims if the health care provider has established a pattern of violations.
(f) It is the intent of the general assembly to ensure the availability of quality medical care services for injured and disabled employees and to manage medical costs in workers' compensation matters by eradicating prescription drug abuse through the employment of the system established by subsection (a) to review any healthcare provider prescribing one (1) or more Schedule II, III, or IV controlled substances for pain management to an injured or disabled employee for a period of time exceeding ninety (90) days from the initial prescription of such controlled substances.
(g) In consultation with the administrator's medical advisory committee, the administrator shall, by rules to become effective on January 1, 2016, adopt guidelines for the diagnosis and treatment of commonly occurring workers' compensation injuries.
(h) Any treatment that explicitly follows the treatment guidelines adopted by the administrator or is reasonably derived therefrom, including allowances for specific adjustments to treatment, shall have a presumption of medical necessity for utilization review purposes. This presumption shall be rebuttable only by clear and convincing evidence that the treatment erroneously applies the guidelines or that the treatment presents an unwarranted risk to the injured worker.
(i) The administrator may assess a reasonable fee, not to exceed two hundred fifty dollars ($250), for an appeal of any utilization review decision.
(j)
(1) Except as otherwise provided in subdivision (j)(2), the system of utilization review established by the administrator or provided by an employer shall not apply to:
(A) Diagnostic procedures ordered in accordance with the treatment guidelines by the authorized treating physician or chiropractor in the first thirty (30) days after the date of injury; or
(B) Diagnostic studies recommended by the treating physician in the event the initial treatment regimen is nonsurgical, without diagnostic testing, and is not successful in returning the injured worker to employment.
(2) A recommended invasive procedure shall be subject to utilization review at any time.
(3) For purposes of this subsection (j):
(A) “Diagnostic procedures” includes, but is not limited to, routine and specialty radiography, magnetic resonance imaging that is not for low back pain without radiculopathy, a computerized tomography scan, a myelogram, an arthrogram, an ultrasound, and electromyogram and nerve conduction velocity testing; and
(B) “Initial treatment” means the first series of treatments or therapies or first two (2) medication trials ordered by the authorized treating physician in accordance with the adopted treatment guidelines within sixty (60) days of a reported injury.
(1) The administrator shall appoint a medical payment committee. The committee shall hear disputes on medical bill payments between providers and insurers and advise the administrator on issues relating to the medical fee schedule and medical care cost containment in the workers' compensation system. Upon hearing disputes on medical bill payments between providers and insurers, the medical payment committee shall have authority to render a decision on the merits of a dispute. If the medical payment committee determines that a provider or insurer has acted in bad faith in refusing to provide payment for a medical bill or refusing to provide reimbursement for overpayment, the medical payment committee, upon a majority vote, shall refer the malfeasant provider or insurer to the bureau for consideration of assessment of a civil penalty of no more than one thousand dollars ($1,000) per occurrence. Any provider or insurer aggrieved by the assessment of a penalty under this subsection (a) shall have the right to seek review of the penalty assessment in the manner provided by § 50-6-118(c).
(2) The committee shall be comprised of seven (7) voting members appointed by the administrator as follows:
(A) Three (3) members shall be representative of the medical provider industry;
(B) Three (3) members shall be representative of the workers' compensation insurance industry; and
(C) The medical director shall serve as the final member of the committee but shall not cast a vote unless a vote taken by members results in a tie. In that case, the medical director shall cast the deciding vote.
(b) In making appointments, the administrator shall strive to achieve a geographic balance and, in the case of the physician members of the committee, shall assure, to the extent possible, that the membership of the committee reflects the diversity of specialties involved in the medical treatment and management of workers' compensation claimants.
(c) Members of the committee shall serve without compensation but, when engaged in the conduct of their official duties as members of the committee, shall be entitled to reimbursement for travel expenses in accordance with uniform regulations promulgated by the department of finance and administration and approved by the attorney general and reporter.
(d) Each member appointed shall serve a term of four (4) years and may be reappointed by the administrator. If a member leaves the position prior to the expiration of the term, the administrator shall appoint an individual meeting the qualifications of this section to serve the unexpired portion of the term, and the individual may be reappointed by the administrator upon expiration of the term.
(e) This section applies to all disputes of medical bill payments for services provided, pursuant to this chapter, on or after July 1, 2014.
The administrator shall appoint a medical director who shall be the executive secretary and a nonvoting ex officio member of the medical committee. The medical director shall be appointed from a list of three (3) nominees submitted by the Tennessee Medical Association. If the administrator finds the list of three (3) nominees to be unsatisfactory, then the administrator shall return the list to the Tennessee Medical Association and the association shall submit another list of nominees. This process shall be repeated, if necessary, until the administrator selects a nominee to be medical director. The medical director may be a part-time employee, a full-time employee or a contract employee, and shall perform the following functions for which the medical director shall be responsible to the administrator or medical care and cost containment committee, as appropriate:
(1) Institute administrative procedures that will enable the medical director to evaluate medical care to effect optimal treatment in workers' compensation cases;
(2) Inquire into instances where the medical treatment or the physical rehabilitation provided appears to be deficient or incomplete and recommend corrective action when indicated;
(3) Advise on the disposition of complaints of a physician's failure to furnish adequate medical care as required by this law or by rules and regulations adopted by the administrator, the disposition of complaints concerning other aspects of the medical management of a workers' compensation case or the failure to render required reports, and the disposition of complaints of any affected party as to unreasonable interference with the medical management of a workers' compensation case;
(4) Gather data and maintain records necessary to fulfill the medical director's responsibilities;
(5) Conduct studies and prepare and issue reports on the medical aspect of workers' compensation cases;
(6) Expedite the submission and processing of medical reports necessary to the processing of claims;
(7) Advise health care providers of their rights and responsibilities under this chapter and under any rules or regulations promulgated pursuant to this chapter;
(8) Advise the medical care and cost containment committee as to the reasonableness of fees for medical services in particular cases; and
(9) Undertake other functions that may be delegated to the medical director by the administrator.
(a) The administrator, in consultation with the commissioner of commerce and insurance and appropriate law enforcement officials, shall implement a public awareness program concerning workers' compensation fraud.
(b) The bureau of workers' compensation shall investigate to determine whether any fraudulent conduct relating to workers' compensation is being practiced, and shall refer to an appropriate law enforcement agency any finding of fraud.
If any employer knowingly, willfully, and intentionally causes a medical or wage loss claim to be paid under health or sickness and accident insurance, or fails to provide reasonable and necessary medical treatment, including a failure to reimburse when the employer knew that the claim arose out of a compensable work-related injury and should have been submitted under its workers' compensation insurance coverage, then a civil penalty of five hundred dollars ($500) shall be assessed against the employer, and the employer may not offset any sickness and accident income benefit paid to the employee against its temporary total disability benefit payment liability due to the employee pursuant to this chapter. The administrator of the bureau of workers' compensation has the authority to assess and collect the civil penalty.
Medical records provided to the bureau of workers' compensation in the course of its activities and the review of settlements pursuant to this chapter shall remain confidential and shall not be considered to be public records.
No later than December 31 of each year, the bureau of workers' compensation shall produce a report that includes a listing of the name of each covered employer that failed, during the preceding state fiscal year, to provide workers' compensation coverage or qualify as a self-insured employer as required by law. Only those employers whose failure resulted in periods of noncoverage shall be included within the report. The report shall also include the penalty assessed by the bureau and the payment status of the penalty. The report shall be provided to the advisory council on workers' compensation and the chairs of the commerce and labor committee of the senate and the commerce committee of the house of representatives.
The bureau shall, on or before July 1, 2015, and annually thereafter, review the impact of the Workers' Compensation Reform Act of 2013 on the workers' compensation system in this state and deliver a report of its findings to each member of the general assembly.
(1) The administrator shall appoint a medical advisory committee comprised of practitioners in the medical community having experience in the treatment of workers' compensation injuries, representatives of the insurance industry, employer representatives, and employee representatives to assist the administrator in the development of treatment guidelines and advise the administrator on issues relating to medical care in the workers' compensation system.
(2) The medical director shall serve as a nonvoting ex-officio member of the committee.
(b) In making appointments, the administrator shall strive to achieve a geographic balance and, in the case of the physician members of the committee, shall assure, to the extent possible, that the membership of the committee reflects the diversity of specialties involved in the medical treatment and management of workers' compensation claimants.
(c) Members of the committee shall serve without compensation but, when engaged in the conduct of their official duties as members of the committee, shall be entitled to reimbursement for travel expenses in accordance with uniform regulations promulgated by the department of finance and administration and approved by the attorney general and reporter.
(d) Each member appointed shall serve a term of four (4) years and may be reappointed by the administrator. If a member leaves the position prior to the expiration of the term, the administrator shall appoint an individual meeting the qualifications of this section to serve the unexpired portion of the term. The individual may be reappointed by the administrator upon expiration of the term.
(1) Every injured employee or the injured employee's representative shall, immediately upon the occurrence of an injury, or as soon thereafter as is reasonable and practicable, give or cause to be given to the employer who has no actual notice, written notice of the injury, and the employee shall not be entitled to physician's fees or to any compensation that may have accrued under this chapter, from the date of the accident to the giving of notice, unless it can be shown that the employer had actual knowledge of the accident. No compensation shall be payable under this chapter, unless the written notice is given to the employer within fifteen (15) days after the occurrence of the accident, unless reasonable excuse for failure to give the notice is made to the satisfaction of the tribunal to which the claim for compensation may be presented.
(2) The notice of the occurrence of an accident by the employee required to be given to the employer shall state in plain and simple language the name and address of the employee and the time, place, nature, and cause of the accident resulting in injury or death. The notice shall be signed by the claimant or by some person authorized to sign on the claimant's behalf, or by any one (1) or more of the claimant's dependents if the accident resulted in death to the employee.
(3) No defect or inaccuracy in the notice shall be a bar to compensation, unless the employer can show, to the satisfaction of the workers' compensation judge before which the matter is pending, that the employer was prejudiced by the failure to give the proper notice, and then only to the extent of the prejudice.
(4) The notice shall be given personally to the employer or to the employer's agent or agents having charge of the business at which the injury was sustained by the employee.
(b) In those cases where the injuries occur as the result of gradual or cumulative events or trauma, then the injured employee or the injured employee's representative shall provide notice of the injury to the employer within fifteen (15) days after the employee:
(1) Knows or reasonably should know that the employee has suffered a work-related injury that has resulted in permanent physical impairment; or
(2) Is rendered unable to continue to perform the employee's normal work activities as the result of the work-related injury and the employee knows or reasonably should know that the injury was caused by work-related activities.
(a) On or after July 1, 2014, the administrator, in cooperation with the commissioner of commerce and insurance, shall adopt rules regarding the electronic submission and processing of medical bills by health care providers to insurance carriers.
(b) Insurance carriers shall accept medical bills submitted electronically by health care providers in accordance with the administrator's rules.
(c) The administrator shall establish by rule the criteria for granting exceptions to insurance carriers and health care providers who are unable to submit or accept medical bills electronically.
(a) No request for a hearing by a workers' compensation judge under this chapter shall be filed with the court of workers' compensation claims, other than a request for settlement approval, until a workers' compensation mediator has issued a dispute certification notice certifying issues in dispute for hearing before a workers' compensation judge.
(b)
(1) In instances when the employer has not paid workers' compensation benefits to or on behalf of the employee, the right to compensation under this chapter shall be forever barred, unless the notice required by § 50-6-201 is given to the employer and a petition for benefit determination is filed with the bureau on a form prescribed by the administrator within one (1) year after the accident resulting in injury.
(2) In instances when the employer has voluntarily paid workers' compensation benefits, within one (1) year following the accident resulting in injury, the right to compensation is forever barred, unless a petition for benefit determination is filed with the bureau on a form prescribed by the administrator within one (1) year from the latter of the date of the last authorized treatment or the time the employer ceased to make payments of compensation to or on behalf of the employee.
(c) For purposes of this section, the issuing date of the last payment of compensation by the employer, not the date of its receipt, shall constitute the time the employer ceased making payments and an employer or its insurer shall provide the date on request.
(d) In case of physical or mental incapacity, other than minority, of the injured person or the injured person's dependents to perform or cause to be performed any action required within the time specified in this section, then the period of limitation in the case shall be extended for one (1) year from the date when the incapacity ceases.
(e)
(1) Unless a claim for death benefits is settled or voluntarily paid, the dependent or dependents of a deceased employee shall file a petition for benefit determination on a form prescribed by the administrator within one (1) year after the date of the employee's death.
(2) In the event the deceased employee was a native of a foreign country and leaves no known dependent or dependents within the United States, it shall be the duty of the administrator to give written notice forthwith of the death to the duly accredited consular officer of the country of which the beneficiaries are citizens.
(f) If the employee fails to appear and participate in alternative dispute resolution as scheduled by the bureau, a workers' compensation judge shall have the authority to dismiss the employee's claim by sending a copy of the order of dismissal by certified mail with return receipt requested to the employee's last known address. The order of dismissal for failure to participate in alternative dispute resolution shall become final and the claim shall be forever barred, unless the employee contacts the bureau to schedule mediation and attends mediation within sixty (60) days after the date on which the workers' compensation judge enters the order of dismissal. If the employee complies with the requirements of this subsection (f) within the timeframe provided, the workers' compensation judge shall rescind the order dismissing the employee's claim for failure to participate in alternative dispute resolution.
(g) Proceedings to obtain a judgment in the case of the failure of the employer for thirty (30) days to pay any compensation due under any settlement or determination shall be filed within one (1) year after the default.
(h) In any case where an employer has paid permanent partial disability benefits to an employee in an attempt to settle a claim for workers' compensation benefits but the employee and employer have not entered into a settlement agreement that has been approved by a workers' compensation judge, the statute of limitations for filing a claim to recover workers' compensation benefits pursuant to this chapter shall be extended for two (2) years from the date the last payment of permanent partial disability benefits was made to the employee.
(A) The employer or the employer's agent shall furnish, free of charge to the employee, such medical and surgical treatment, medicine, medical and surgical supplies, crutches, artificial members, and other reasonable and necessary apparatus, including prescription eyeglasses and eye wear, such nursing services or psychological services as ordered by the attending physician and hospitalization, including such dental work made reasonably necessary by accident as defined in this chapter.
(B) No medical provider shall charge more than ten dollars ($10.00) for the first twenty (20) pages or less, and twenty-five cents (25¢) per page for each page after the first twenty (20) pages, for any medical reports, medical records or documents pertaining to medical treatment or hospitalization of the employee that are furnished pursuant to this subsection (a).
(2)
(A) It is the intent of the general assembly that the administration of the workers' compensation system proceed in a timely manner and that the parties and the bureau have reasonable access to the employee's medical records and medical providers that are pertinent to and necessary for the efficient resolution of the employee's workers' compensation claim in a timely manner. To that end, employers or case managers may communicate with the employee's authorized treating physician, orally or in writing, and each medical provider shall be required to release the records of any employee treated for a work-related injury to both the employer and the employee within thirty (30) days after admission or treatment. There shall be no implied covenant of confidentiality with respect to those records, which will include all written memoranda or visual or recorded materials, e-mails and any written materials provided to the employee's authorized treating physician, by case managers, employers, insurance companies, or their attorneys or received from the employee's authorized treating physician.
(B) For purposes of subdivision (a)(2), “employer” means the employer, the employer's attorney, the employer’s insurance carrier or third party administrator, a case manager as authorized by § 50-6-123, or any utilization review agent as authorized by § 50-6-124 during the employee’s treatment for the claimed workers’ compensation injury.
(C) If the bureau becomes involved in the appeal of a utilization review issue, then the bureau is authorized to communicate with the medical provider involved in the dispute, either orally or in writing, to permit the timely resolution of the issue and shall notify the employee, employer, and any attorney representing the employee or employer that they may review or copy the documents and responses. Each party requesting copies of records shall pay a fee authorized by subdivision (a)(1)(B) prior to the bureau providing the requested copies.
(D) No relevant information developed in connection with authorized medical treatment or an examination provided pursuant to this section for which compensation is sought by the employee shall be considered a privileged communication, and no medical provider shall incur any liability as a result of providing medical information, records, opinions, or reports as described in subdivision (a)(2)(C); provided, that the medical provider complies with subdivision (a)(2)(C).
(3)
(A)
(i) The injured employee shall accept the medical benefits afforded under this section; provided that in any case when the employee has suffered an injury and expressed a need for medical care, the employer shall designate a group of three (3) or more independent reputable physicians, surgeons, chiropractors or specialty practice groups if available in the injured employee's community or, if not so available, in accordance with subdivision (a)(3)(B), from which the injured employee shall select one (1) to be the treating physician.
(ii) When necessary, the treating physician selected in accordance with this subdivision (a)(3)(A) shall make referrals to a specialist physician, surgeon, or chiropractor and immediately notify the employer. The employer shall be deemed to have accepted the referral, unless the employer, within three (3) business days, provides the employee a panel of three (3) or more independent reputable physicians, surgeons, chiropractors or specialty practice groups. In this case, the employee may choose a specialist physician, surgeon, chiropractor or specialty practice group to provide treatment only from the panel provided by the employer.
(iii) The liability of the employer for the services provided to the employee shall be limited to the maximum allowable fees that are established in the applicable medical fee schedule adopted pursuant to this section.
(iv) The bureau shall have authority to waive subdivision (a)(3)(A)(iii) when necessary to provide treatment for an injured employee.
(B) If three (3) or more independent reputable physicians, surgeons, chiropractors, or specialty practice groups not associated in practice together are not available in the employee's community, the employer shall provide a list of three (3) independent reputable physicians, surgeons, chiropractors, or specialty practice groups not associated in practice together that are within a one-hundred-twenty-five-mile radius of the employee's community of residence. For purposes of this subdivision (a)(3)(B), “not associated in practice together” means at least one (1) physician, surgeon, chiropractor, or specialty practice group is not associated in practice with another physician, surgeon, chiropractor, or specialty practice group that is on the list or panel provided to an employee pursuant to this section.
(C) When the treating physician or chiropractor refers the injured employee, the employee shall be entitled to have a second opinion on the issue of surgery and diagnosis from a physician or chiropractor from a panel of two (2) physicians practicing in the same specialty as the physician who recommended the surgery. In cases where the employer has provided a panel of specialists pursuant to subdivision (a)(3)(A)(i) of this section, the employee may choose one (1) of the two (2) remaining specialists to provide a second opinion on the issue of surgery and diagnosis. The employee's decision to obtain a second opinion shall not alter the previous selection of the treating physician or chiropractor.
(D)
(i) The employer shall provide the applicable panel of physicians or chiropractors to the employee in writing on a form prescribed by the bureau, and the employee shall select a physician or chiropractor from the panel, sign and date the completed form, and return the form to the employer. The employer shall provide a copy of the completed form to the employee and shall maintain a copy of the completed form in the records of the employer and shall produce a copy of the completed form upon request by the bureau.
(ii) In any case when the employee has been presented the physician selection form but has failed to sign the completed form and return it to the employer, the employee's receipt of treatment from any physician provided in the panel after the date the panel was provided shall constitute acceptance of the panel and selection of the physician from whom the employee received treatment as the treating physician, specialist physician, chiropractor or surgeon.
(E) In all cases where the treating physician has referred the employee to a specialist physician, surgeon, chiropractor or specialty practice group, the specialist physician, surgeon, or chiropractor to which the employee has been referred, or selected by the employee from a panel provided by the employer, shall become the treating physician until treatment by the specialist physician, surgeon, or chiropractor concludes and the employee has been referred back to the treating physician selected by the employee from the initial panel provided by the employer under subdivision (a)(3)(A).
(F) In all cases when an employee changes the employee's community of residence after selection of a physician under this subdivision (a)(3), the employer shall provide the employee, upon written request, a new panel of reputable physicians, surgeons, chiropractors or specialty practice groups, as provided in subdivision (a)(3)(A), from which the injured employee shall select one (1) to be the treating physician.
(G) If any physician, surgeon, chiropractor or specialty practice group included on a panel provided to an employee under this subsection (a) declines to accept the employee as a patient for the purpose of providing treatment to the employee for his workers' compensation injury, the employee may either select a physician from the remaining physicians, surgeons or chiropractors included on the initial panel provided to the employee pursuant to subdivision (a)(3)(A) or request that the employer provide an additional choice of a physician, surgeon, chiropractor or specialty practice group to replace the physician, surgeon or chiropractor who refused to accept the injured employee as a patient for the purpose of treating the employee's workers' compensation injury.
(H) Any treatment recommended by a physician or chiropractor selected pursuant to this subdivision (a)(3) or by referral, if applicable, shall be presumed to be medically necessary for treatment of the injured employee.
(I) Following the adoption of treatment guidelines pursuant to § 50-6-124, the presumption of medical necessity for treatment recommended by a physician or chiropractor selected pursuant to this subsection (a) or by referral, if applicable, shall be rebuttable only by clear and convincing evidence demonstrating that the recommended treatment substantially deviates from, or presents an unreasonable interpretation of, the treatment guidelines.
(4)
(A) When an injured worker is required by the worker's employer to travel to an authorized medical provider or facility located outside a radius of fifteen (15) miles from the injured worker's residence or workplace, then, upon request, the employee shall be reimbursed for reasonable travel expenses. The injured employee's travel reimbursement shall be calculated based on a per mile reimbursement rate, as defined in subdivision (a)(4)(B), times the total round trip mileage as measured from the employee's residence or workplace to the location of the medical provider's facility. The definition of community as contemplated by this subdivision (a)(4)(A) shall apply only for the purposes of this section.
(B) The per mile reimbursement rate for the injured employee shall be no less than the mileage allowance authorized for state employees who have been authorized to use personally owned vehicles in the performance of their duties. This minimum per mile reimbursement rate shall be based on the last published comprehensive travel regulations promulgated by the department of finance and administration.
(b) Where the nature of the injury or occupational disease, as defined in § 50-6-102, is such that it does not disable the employee but reasonably requires medical, surgical, psychological or dental treatment or care, medicine, surgery, dental and psychological treatment, medicine, medical and surgical supplies, crutches, artificial members, and other apparatus shall be furnished by the employer.
(c) In case death results from the injury or occupational disease, as defined in § 50-6-102, the employer shall, in addition to the medical services, etc., referred to in subsections (a) and (b), pay the burial expenses of the deceased employee, not exceeding ten thousand dollars ($10,000). If the deceased employee leaves no dependents entitled to compensation under this chapter, the employer shall pay to the employee's estate the additional benefits provided in § 50-6-209(b)(2) and (3), and shall also be liable for the medical and hospital services and burial expenses provided for in this section.
(d)
(1) The injured employee must submit to examination by the employer's physician at all reasonable times if requested to do so by the employer, but the employee shall have the right to have the employee's own physician present at the examination, in which case the employee shall be liable to the employee's physician for that physician's services.
(2) Any medical report submitted to the employer based upon the examination, or a true copy of the report, shall be furnished by the employer to the employee upon request; provided, that the employer may, in the employer's discretion, furnish the report to the attorney for the employee or to a member of the employee's family.
(3) The employer shall pay for the services of the physician making the examination at the instance of the employer.
(4) When a dispute as to the degree of medical impairment exists, either party may request an independent medical examiner from the administrator's registry. If the parties are unable to mutually agree on the selection of an independent medical examiner from the administrator's registry, it shall be the responsibility of the employer to provide a written request to the administrator for assignment of an independent medical examiner with a copy of the notice provided to the other party. Upon receipt of the written request, the administrator shall provide the names of three (3) independent medical examiners chosen at random from the registry. No physician may serve as an independent medical examiner in a case and serve on any panel of providers selected under this section for the employer involved in such case. The administrator shall immediately notify the parties by facsimile or e-mail when the list of independent medical examiners has been assigned to a matter, but in any event the notification shall be made within five (5) business days of the date of the request. The employer may strike one (1) name from the list, with the rejection made and communicated to the other party by facsimile or e-mail no later than the third business day after the date on which notification of the list is provided. The employee shall select a physician to perform the independent medical examination from the remaining physicians on the list. All costs and fees for an independent medical examination and report made pursuant to this subdivision (d)(4) shall be paid by the employer. The written opinion as to the permanent impairment rating given by the independent medical examiner pursuant to this subdivision (d)(4) shall be presumed to be the accurate impairment rating; provided, however, that this presumption may be rebutted by clear and convincing evidence to the contrary.
(5) The administrator shall establish by rule, in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, an independent medical examiners registry. The administrator shall establish qualifications for the independent medical examiners, including continuing education and peer review requirements, with the advice of the Tennessee Medical Association and the advisory council on workers' compensation, established by § 50-6-121. The rules established shall include, but not be limited to, qualifications and procedures for submission of an application for inclusion on the registry, procedures for the review and maintenance of the registry, and procedures for assignment that ensures that the composition of the panels is random.
(6) Whenever the nature of the injury is such that specialized medical attention is required or indicated and the specialized medical attention is not available in the community in which the injured employee resides, the injured employee can be required to go, at the request of and at the expense of the employer, to the nearest location at which the specialized medical attention is available.
(7) If the injured employee refuses to comply with any reasonable request for examination or to accept the medical or specialized medical services that the employer is required to furnish under this chapter, the injured employee's right to compensation shall be suspended and no compensation shall be due and payable while the injured employee continues to refuse.
(8) For accidents or injuries occurring on or after July 1, 2005, in case of a dispute as to the injury, other than disputes as to the degree of medical impairment, the court may, at the instance of either party or on its own motion, appoint a neutral physician of good standing and ability to make an examination of the injured person and report the physician's findings to the court, the expense of which examination shall be borne equally by the parties.
(e) In all death claims where the cause of death is obscure or is disputed, any interested party may require an autopsy, the cost of which is to be borne by the party demanding the autopsy.
(f) Any physician whose services are furnished or paid for by the employer and who treats or makes or is present at any examination of an injured employee may be required to testify as to any knowledge acquired by the physician in the course of the treatment or examination as the treatment or examination relates to the injury or disability arising therefrom.
(g)
(1) If an emergency, or on account of the employer's failure or refusal to provide the medical care and services required by this law, the injured employee or the injured employee's dependents may provide the medical care and services, and the cost of the medical care and services, not exceeding three hundred dollars ($300), shall be borne by the employer; provided, that the pecuniary liability of the employer shall be limited to the charges for the service that prevail in the community where the services are rendered.
(2)
(A) If an employer does not provide medical care and treatment, medical services or medical benefits, or both, that an employee contends should be provided as a result of a judgment or decree entered by a workers' compensation judge following a workers' compensation trial or as a result of a workers' compensation settlement agreement, either the employee or the employer, or the attorney for the employee or employer, shall request the assistance of a workers' compensation mediator to determine whether such medical care and treatment, medical services or medical benefits, or both, are appropriate by filing a petition for benefit determination and participating in alternative dispute resolution as provided in § 50-6-236. If the parties do not resolve the dispute by agreement, either party may file a request for a hearing and submit the dispute to a workers' compensation judge for resolution in accordance with § 50-6-239(c) after the workers' compensation mediator has issued a dispute certification notice in accordance with § 50-6-236.
(B) A workers' compensation judge shall have the authority to determine whether it is appropriate to order the employer or the employer's insurer to provide specific medical care and treatment, medical services or medical benefits, or both, to the employee pursuant to a judgment or decree entered by a judge following a workers' compensation trial or pursuant to a workers' compensation settlement agreement approved by a workers' compensation judge pursuant to § 50-6-240. The workers' compensation judge's authority shall include, but is not limited to, the authority to order specific medical care and treatment, medical services or medical benefits, or both. The authority of a workers' compensation judge to order the provision of benefits under this section shall include authority to order specific medical care and treatment, medical services or medical benefits, or both for all settlements approved by the department, the bureau, the commissioner, the commissioner's designee or a workers' compensation specialist, even if the settlement was approved under prior law.
(h) All psychological or psychiatric services available under subdivisions (a)(1) and (b)(1) shall be rendered only by psychologists or psychiatrists and shall be limited to those ordered upon the referral of physicians authorized under subdivision (a)(3).
(i)
(1) The administrator, in consultation with the medical care and cost containment committee and the advisory council on workers' compensation, is authorized to establish by rule, in accordance with the Uniform Administrative Procedures Act, a comprehensive medical fee schedule and a related system that includes, but is not limited to, procedures for review of charges, enforcement procedures and appeal hearings to implement the fee schedule. In developing the rules, the administrator shall strive to assure the delivery of quality medical care in workers' compensation cases and access by injured workers to primary and specialist care while controlling prices and system costs. The medical care fee schedule shall be comprehensive in scope and shall address fees of physicians and surgeons, hospitals, prescription drugs, and ancillary services provided by other health care facilities and providers. The administrator may consider any and all reimbursement systems and methodologies in developing the fee schedule, except that, in no event shall the fee schedule set forth differing rates for reimbursement or conversion factors for reimbursement of physical or occupational therapy services based or dependent on whether the services are performed in independently-owned facilities or physician-affiliated facilities, and shall not otherwise consider the physician ownership in the facility providing services. However, differing reimbursement rates may be implemented by the administrator upon the department's presentation of state data demonstrating there is a need for differing reimbursement rates for physical/occupational therapy services and upon the department's holding a public hearing on the issue.
(2) The administrator is authorized to retain experts to assist in the development of the fee schedule and related system in accordance with the contracting rules of the department of finance and administration.
(3) The administrator, in consultation with the medical care and cost containment committee and the advisory council on workers' compensation, shall review the fee schedules adopted pursuant to this section on an annual basis and when appropriate the administrator shall revise the fee schedules as necessary. It is the intent of the general assembly that this annual review consider, among other factors, the medical consumer price index.
(4) The comprehensive medical fee schedule adopted pursuant to this subsection (i) is not intended to prohibit an employer, trust or pool, or insurer from negotiating lower fees in its own medical fee agreements.
(5) In order to improve the quality of medical care delivered to injured workers and improve the accuracy of permanent impairment ratings, the administrator is authorized to establish by rule a voluntary physician education program that provides an additional reimbursement under the comprehensive medical fee schedule adopted pursuant to this subsection (i). The additional reimbursement must be available to physicians and chiropractors. The administrator shall determine in rule the education and quality improvement requirements to receive the additional reimbursement.
(j)
(1) If a treating physician determines that pain is persisting for an injured or disabled employee beyond an expected period for healing, the treating physician may either prescribe, if the physician is a qualified physician as defined in subdivision (j)(2)(B), or refer, such injured or disabled employee for pain management encompassing pharmacological, nonpharmacological and other approaches to manage chronic pain.
(2)
(A) In the event that a treating physician refers an injured or disabled employee for pain management, the employee is entitled to a panel of qualified physicians as provided in subdivision (a)(3) except that, in light of the variation in availability of qualified pain management resources across the state, if the office of each qualified physician listed on the panel is located not more than one hundred seventy-five (175) miles from the injured or disabled employee's residence or place of employment, then the community requirement of subdivision (a)(3) shall not apply for the purposes of pain management.
(B) For purposes of the panel required by subdivision (j)(2)(A), “qualified physician” means a physician who has met the requirements set forth in the Chronic Pain Guidelines of the State of Tennessee, Department of Health, definition of “Pain Management Specialist.”
(3) The injured or disabled employee is not entitled to a second opinion on the issue of impairment, diagnosis or prescribed treatment relating to pain management. However, on no more than one (1) occasion, if the injured or disabled employee submits a request in writing to the employer stating that the prescribed pain management fails to meet medically accepted standards, then the employer shall initiate and participate in utilization review as provided in this chapter for the limited purpose of determining whether the prescribed pain management meets medically accepted standards.
(4)
(A) As a condition of receiving pain management that requires prescribing Schedule II, III, or IV controlled substances, the injured or disabled employee may sign a formal written agreement with the physician prescribing the Schedule II, III, or IV controlled substances acknowledging the conditions under which the injured or disabled employee may continue to be prescribed Schedule II, III, or IV controlled substances and agreeing to comply with such conditions.
(B) If the injured or disabled employee violates any of the conditions of the agreement on more than one (1) occasion, then:
(i) The employee's right to pain management through the prescription of Schedule II, III, or IV controlled substances under this chapter shall be terminated and the injured or disabled employee shall no longer be entitled under this chapter to the prescription of such substances for the management of pain;
(ii) For injuries occurring on or after July 1, 2012, the violation shall be deemed to be misconduct connected with the employee's employment for purposes of § 50-6-207(3); and
(iii) For injuries occurring on or after July 1, 2012, in the event such violation occurs prior to a finding that the injured or disabled employee is totally disabled as provided in § 50-6-207(4), through either a judgment or decree entered by a court following a workers' compensation trial or a settlement agreement approved pursuant to § 50-6-206 [See the Compiler's Notes], the incapacity to work due to lack of pain management shall not be considered when determining whether the injured employee is entitled to permanent total disability benefits as provided in § 50-6-207(4).
(C) A physician may disclose the employee's violation of the formal written agreement on the physician's own initiative. Upon request of the employer, a physician shall disclose the employee's violation of the formal written agreement as provided in this section.
(D) The formal written agreement shall include a notice to the employee in capitalized, conspicuous lettering on the face of the agreement the consequences for violating the terms of the agreement as provided for in this subsection (j).
(E)
(i) If an employer terminates an injured or disabled employee's right under this chapter to pain management through the prescription of Schedule II, III, or IV controlled substances pursuant to alleged violations of the formal agreement as provided in subdivision (j)(4)(B), then the employee may file a petition for benefit determination.
(ii) If an employer or insurer alleges that an injured or disabled employee is not entitled to reconsideration under § 50-6-207(3) or permanent total disability benefits as provided in § 50-6-207(4) because of the employee’s alleged violations of the formal agreement as provided in subdivision (j)(4)(B), then a court shall also determine whether such violations occurred.
(5) Prescribing one (1) or more Schedule II, III, or IV controlled substances for pain management treatment of an injured or disabled employee for a period of time exceeding ninety (90) days from the initial prescription of any such controlled substances is considered to be medical care services for the purposes of utilization review as provided in this chapter. The department is authorized to impose a fee for the administration of an appeal process for utilization review under this subdivision (j)(5) and subdivision (j)(3).
(k)
(1) All permanent impairment ratings shall be assigned by the treating physician or chiropractor.
(2)
(A) The treating physician or chiropractor shall utilize the applicable edition of the AMA guides as established by this chapter.
(B) The medical advisory committee shall, within six (6) months of the release of a new edition, conduct an evaluation of the new edition, report the committee's findings to the administrator and recommend to the administrator whether the new edition should be designated for application to this chapter. The administrator shall report the committee's findings and recommendation to the general assembly. The AMA guides, as defined in § 50-6-102, shall remain in effect until a new edition is designated by the general assembly.
(C) No impairment rating, whether contained in a medical record, medical report, including a medical report pursuant to § 50-6-235(c), deposition, or oral expert opinion testimony shall be accepted during alternative dispute resolution proceedings or be admissible into evidence at the trial of a workers' compensation claim unless the impairment rating is based on the applicable edition of the AMA guides or, in cases not covered by the AMA guides, an impairment rating by any appropriate method used and accepted by the medical community.
(3) The treating physician or chiropractor shall assign impairment ratings as a percentage of the body as a whole and shall not consider complaints of pain in calculating the degree of impairment, notwithstanding allowances for pain provided by the applicable edition of the AMA guides as established by this chapter.
(4) The treating physician or chiropractor shall evaluate the employee for purposes of assigning an impairment rating and the employee shall attend the evaluation. An employee who fails to attend a scheduled evaluation without justifiable cause shall be subject to sanctions up to and including dismissal of the employee's claim for workers' compensation benefits.
(5) Scheduling of the evaluation shall occur within time limits and according to procedures promulgated by the administrator by rule.
(6) The treating physician or chiropractor shall complete the evaluation and submit an impairment rating report, on a form prescribed by the administrator, within time limits imposed by the administrator through the promulgation of rules.
(7) The treating physician's or chiropractor's written opinion of the injured employee's permanent impairment rating shall be presumed to be the accurate impairment rating. This presumption shall be rebuttable by the presentation of contrary evidence that satisfies a preponderance of the evidence standard.
(a) No compensation shall be allowed for the first seven (7) days of disability resulting from the injury, excluding the day of injury, except the benefits provided for in § 50-6-204, but if disability extends beyond that period, compensation shall commence with the eighth day after the injury. In the event, however, that the disability from the injury exists for a period as long as fourteen (14) days, then compensation shall be allowed beginning with the first day after the injury.
(b)
(1) The total amount of compensation payable under this part shall not exceed the maximum total benefit, as that benefit is defined in § 50-6-102, in any case, exclusive of travel reimbursement, medical, hospital and funeral benefits.
(2) Compensation shall be paid promptly. The first payment shall be due and payable within fifteen (15) days after the employer has knowledge of any disability or death, and thereafter compensation shall be paid to the employee or the employee's dependents semimonthly. Evidence of the initiation or denial of the compensation is inadmissible in a subsequent proceeding concerning the issue of the compensability of injury.
(3)
(A) In addition to any other penalty provided by law, if an employer, trust or pool or an employer's insurer fails to pay, or untimely pays, temporary disability benefits within twenty (20) days after the employer has knowledge of any disability that would qualify for benefits under this chapter, a workers' compensation judge shall have the authority to assess against the employer, trust or pool or the employer's insurer a civil penalty in addition to the temporary disability benefits that are due to the employee. The penalty, if assessed, shall be in an amount equal to twenty-five percent (25%) of the temporary disability benefits that were not paid in accordance with this subsection (b). Furthermore, the penalty may be assessed as to all temporary disability benefits that are determined not to be paid in compliance with this subsection (b).
(B) Prior to the assessment of any civil penalty, the judge shall issue a written request to the employer or insurance carrier to provide documentation as to why the civil penalty should not be assessed.
(C) If the judge determines the employer or insurer was not in compliance with this subsection (b), the judge shall issue a written order that assesses the penalty in a specific dollar amount to be paid directly to the employee. If the employer or insurer fails to comply with the order within fifteen (15) calendar days of that order's becoming final, the employer or insurer shall be subject to penalties as set forth in § 50-6-239(f).
(D) In any civil action filed pursuant to this chapter, the court shall have the authority to assess penalties as provided in this subdivision (b)(3).
(c) Upon making the first payment of benefits, and upon stopping or changing the benefits for any cause other than final settlement, or upon denying a claim after proper investigation, the employer's insurance carrier or the employer, if self-insured, shall immediately notify the administrator, on a form prescribed by the administrator, that the payment of income benefits has begun or has been stopped or changed.
(d)
(1) If temporary disability payments have been made without an award, and the employer subsequently elects to controvert the employer's liability for any of those benefits, then the employer shall electronically file the required information with the administrator within fifteen (15) calendar days of the due date of the first omitted payment.
(2) In such cases, the prior payment of compensation shall not be considered a binding determination of the obligations of the employer as to future compensation payments.
(3) Likewise, the acceptance of compensation by the employee shall not be considered a binding determination of the obligations of the employer as to future compensation payments; nor shall the acceptance of compensation by the employee be considered a binding determination of the employee's rights.
The following is the schedule of compensation to be allowed employees under this chapter:
(1) Temporary Total Disability.
(A) For injury producing temporary total disability, sixty-six and two-thirds percent (66 ⅔%) of the average weekly wages as defined in this chapter, subject to the maximum weekly benefit and minimum weekly benefit; provided, that if the employee's average weekly wages are equal to or greater than the minimum weekly benefit, the employee shall receive not less than the minimum weekly benefit; and provided, further, that if the employee's average weekly wages are less than the minimum weekly benefit, the employee shall receive the full amount of the employee's average weekly wages, but in no event shall the compensation paid be less than the minimum weekly benefit. Where a fractional week of temporary total disability is involved, the compensation for each day shall be one-seventh (⁄) of the amount due for a full week;
(B)
(i) An employer may choose to continue to compensate an injured employee at the employee's regular wages or salary during the employee's period of temporary total and temporary partial disability. The payments shall not result in an employee's receiving less than the employee would otherwise receive for temporary disability benefits under this chapter; however, a court or the department has no authority to require an employer to pay any temporary disability benefits required by subdivision (1)(A), in addition to the employee's regular wages or salary;
(ii) When an employee receives payments under subdivision (1)(B)(i) and the employee's claim for compensation under this chapter is determined by a court or settlement to be compensable, the employer shall be given credit for the payments. The credit shall be no more than the employee would have been otherwise paid under subdivision (1)(A), and any amount paid beyond the amount that would have otherwise been paid under subdivision (1)(A) shall not be credited against any award for permanent disability;
(C) Any person who has drawn unemployment compensation benefits and who subsequently receives compensation for temporary disability benefits under a workers' compensation law with respect to the same period shall be required to repay the unemployment compensation benefits; provided, that the amount to be repaid does not exceed the amount of temporary disability benefits;
(D) An employee claiming a mental injury, as defined by § 50-6-102, occurring on or after July 1, 2009, shall be conclusively presumed to be at maximum medical improvement upon the earliest occurrence of the following:
(i) At the time the treating psychiatrist concludes the employee has reached maximum medical improvement; or
(ii) One hundred four (104) weeks after the date of injury in the case of mental injuries where there is no underlying physical injury;
(E) An employee claiming an injury as defined in § 50-6-102, when the date of injury is on or after July 1, 2014, shall be conclusively presumed to be at maximum medical improvement when the treating physician ends all active medical treatment and the only care provided is for the treatment of pain or for a mental injury that arose primarily out of a compensable physical injury. The employer shall be given credit against an award of permanent disability for any amount of temporary total disability benefits paid to the employee after the date that the employee attains maximum medical improvement as determined by a workers' compensation judge;
(2) Temporary Partial Disability.
(A) In all cases of temporary partial disability, the compensation shall be sixty-six and two-thirds percent (66⅔%) of the difference between the average weekly wage of the worker at the time of the injury and the wage the worker is able to earn in the worker's partially disabled condition. This compensation shall be paid during the period of the disability, not, however, beyond four hundred fifty (450) weeks, payment to be made at the intervals when the wage was payable, as nearly as may be, and subject to the same maximum, as stated in subdivision (1). In no event shall the compensation be less than the minimum weekly benefit;
(B) In all cases of temporary partial disability for claims with a date of injury on or after July 1, 2014, the compensation shall be sixty-six and two-thirds percent (66 ⅔%) of the difference between the average weekly wage of the worker at the time of the injury and the wage the worker is able to earn in the worker's partially disabled condition. This compensation shall be paid during the period of the disability, but payment shall not extend beyond four hundred fifty (450) weeks. Payment shall be made at the intervals when the wage was payable, as nearly as may be, and subject to the same maximum, as stated in subdivision (1). In no event shall the compensation be less than the minimum weekly benefit;
(C) In any case when a dispute exists over the date of the employee's attainment of maximum medical improvement, the employer shall be given credit against an award of permanent disability for any amount of temporary partial disability paid to the employee after the date on which the workers' compensation judge determines maximum medical improvement;
(3) Permanent Partial Disability.
(A) In case of disability partial in character but adjudged to be permanent, at the time the injured employee reaches maximum medical improvement the injured employee shall be paid sixty-six and two-thirds percent (66 ⅔%) of the employee's average weekly wages for the period of compensation, which shall be determined by multiplying the employee's impairment rating by four hundred fifty (450) weeks. The award set out in this subdivision (3)(A) shall be referred to as the “original award.” The injured employee shall receive these benefits, in addition to the benefits provided in subdivisions (1) and (2) and those provided by § 50-6-204, whether the employee has returned to work or not; and
(B) If at the time the period of compensation provided by subdivision (3)(A) ends, or one hundred eighty (180) days after the employee reaches maximum medical improvement, whichever is later, the employee has not returned to work with any employer or has returned to work and is receiving wages or a salary that is less than one hundred percent (100%) of the wages or salary the employee received from the employee's pre-injury employer on the date of injury, the injured employee may file a claim for increased benefits. If appropriate, the injured employee's original award as determined under subdivision (3)(A) shall be increased by multiplying the original award by a factor of one and thirty-five one hundredths (1.35). The award set out in this subdivision (3)(B) shall be referred to as the “resulting award.” In addition, the injured employee's resulting award shall be further increased by multiplying the resulting award by the product of the following factors, if applicable:
(i) Education: one and forty-five one hundredths (1.45), if the employee lacks a high school diploma or high school equivalency credential approved by the state board of education;
(ii) Age: one and two-tenths (1.2), if the employee was more than forty (40) years of age at the time the period of compensation ends, or one hundred eighty (180) days after the employee reaches maximum medical improvement, whichever is later; and
(iii) Unemployment rate: one and three-tenths (1.3), if the unemployment rate, in the Tennessee county where the employee was employed by the employer on the date of the workers' compensation injury, was at least two (2) percentage points greater than the yearly average unemployment rate in Tennessee according to the yearly average unemployment rate compiled by the department for the year immediately prior to the expiration of the period of compensation;
(C) In determining the employee's increased award pursuant to subdivision (3)(B), the employer shall be given credit for payment of the original award of benefits as determined under subdivision (3)(A) against the increased award;
(D) Any employee may file a claim for increased benefits under subdivision (3)(B) by filing a new petition for benefit determination, on a form prescribed by the administrator, with the bureau no more than one (1) year after the period of compensation provided in subdivision (3)(A) ends or one (1) year after the one hundred eighty-day period after the employee reaches maximum medical improvement, whichever is later. Any claim for increased benefits under this subdivision (3)(D) shall be forever barred, unless the employee files a new petition for benefit determination with the bureau within one (1) year after the period of compensation for the subject injury ends or one (1) year after the one hundred eighty-day period after the employee reaches maximum medical improvement, whichever is later. Under no circumstances shall an employee be entitled to additional benefits when:
(i) The employee's loss of employment is due to the employee's voluntary resignation or retirement; provided, however, that the resignation or retirement does not result from the work-related disability;
(ii) The employee's loss of employment is due to the employee's misconduct connected with the employee's employment; or
(iii) The employee remains employed but received a reduction in salary, wages, or hours that is concurrent with a reduction in salary, wages or reduction in hours that affected at least fifty percent (50%) of all hourly employees operating at or out of the same location;
(E) Nothing in this subdivision (3) shall prohibit the employer and employee from settling the issue of additional benefits at any time after the employee reaches maximum medical improvement. Any settlement or award of additional permanent partial disability benefits pursuant to this subdivision (3) shall give the employer credit for prior permanent partial disability benefits paid to the employee;
(F) Subdivision (3)(B) shall not apply to injuries sustained by an employee who is not eligible or authorized to work in the United States under federal immigration laws;
(G) The total amount of compensation payable in this subdivision (3) shall not exceed the maximum total benefit. The payment of temporary total disability benefits or temporary partial disability benefits shall not be included in calculating the maximum total benefit;
(H) All cases of permanent partial disability shall be apportioned to the body as a whole, which shall have a value of four hundred fifty (450) weeks, and there shall be paid compensation to the injured employee for the proportionate loss of use of the body as a whole resulting from the injury. If an employee has previously sustained an injury compensable under this section and has been awarded benefits for that injury, the injured employee shall be paid compensation for the period of temporary total disability or temporary partial disability and only for the degree of permanent disability that results from the subsequent injury;
(4) Permanent Total Disability.
(A)
(i) For permanent total disability as defined in subdivision (4)(B), sixty-six and two-thirds percent (66⅔%) of the wages received at the time of the injury, subject to the maximum weekly benefit and minimum weekly benefit; provided, that if the employee's average weekly wages are equal to or greater than the minimum weekly benefit, the employee shall receive not less than the minimum weekly benefit; provided, further, that if the employee's average weekly wages are less than the minimum weekly benefit, the employee shall receive the full amount of the employee's average weekly wages, but in no event shall the compensation paid be less than the minimum weekly benefit. This compensation shall be paid during the period of the permanent total disability until the employee is, by age, eligible for full benefits in the Old Age Insurance Benefit Program under the Social Security Act (42 U.S.C. § 401 et seq.); provided, that with respect to disabilities resulting from injuries that occur less than five (5) years before the date when the employee is eligible for full benefits in the Old Age Insurance Benefit Program as referenced previously in this subdivision (4)(A)(i) or after the employee is eligible for such benefits, permanent total disability benefits are payable for a period of two hundred sixty (260) weeks. The compensation payments shall be reduced by the amount of any old age insurance benefit payments attributable to employer contributions that the employee may receive under title 42, chapter 7, title II of the Social Security Act (42 U.S.C. § 401 et seq.). Notwithstanding any statute or court decision to the contrary, the statutory social security offset provided by this section shall have no applicability to death benefits awarded to a deceased worker's dependents pursuant to this chapter;
(ii) Notwithstanding any other law to the contrary and notwithstanding any agreement of the parties to the contrary, permanent total disability payments shall not be commuted to a lump sum, except in accordance with the following:
(a) Benefits may be commuted to a lump sum to pay only the employee's attorney's fees and litigation expenses and to pay pre-injury obligations in arrears;
(b) The commuted portion of an award shall not exceed the value of one hundred (100) weeks of the employee's benefits;
(c) After the total amount of the commuted lump sum is determined, the amount of the weekly disability benefit shall be recalculated to distribute the total remaining permanent total benefits in equal weekly installments beginning with the date of entry of the order and terminating on the date the employee's disability benefits terminate pursuant to subdivision (4)(A)(i);
(iii) For injuries occurring on or after July 1, 2014, attorneys' fees in contested cases of permanent disability shall be calculated upon the first four hundred fifty (450) weeks of disability only;
(iv) In case an employee who is permanently and totally disabled becomes a resident of a public institution, and provided further, that if no person or persons are wholly dependent upon the employee, then the amounts falling due during the lifetime of the employee shall be paid to the employee or to the employee's guardian or conservator, if adjudicated incompetent, to be spent for the employee's benefit; such payments to cease upon the death of the employee;
(B) When an injury not otherwise specifically provided for in this chapter totally incapacitates the employee from working at an occupation that brings the employee an income, the employee shall be considered totally disabled and for such disability compensation shall be paid as provided in subdivision (4)(A); provided, that the total amount of compensation payable under this subdivision (4)(B) shall not exceed the maximum total benefit, exclusive of medical and hospital benefits;
(C)
(i) If an employee is determined, by trial or settlement, to be permanently totally disabled, the employer, insurer or the department, in the event the subsequent injury and vocational recovery fund is involved, may have the employee examined, at the expense of the requesting entity, from time to time, subject to the conditions outlined in this section, and may seek reconsideration of the issue of permanent total disability as provided in this subdivision (4)(C);
(ii) The request for the examination of the employee may not be made until twenty-four (24) months have elapsed following the entry of a final order in which it is determined that the employee is permanently totally disabled. Any request for an examination is subject to considerations of reasonableness in regard to notice prior to examination, place of examination and length of examination;
(iii) A request for an examination may not be made more often than once every twenty-four (24) months. The procedure for this examination shall be as follows:
(a) The requesting entity shall first make informal contact with the employee, either by letter or by telephone, to attempt to schedule an appointment with a physician for examination at a mutually agreeable time and place. It is the intent of the general assembly that the requesting entity make a good faith effort to reach a mutual agreement for examination, recognizing the inherently intrusive nature of a request for examination;
(b) If, after a reasonable period of time, not to exceed thirty (30) days, mutual agreement is not reached, the requesting entity shall send the employee written notice of demand for examination by certified mail, return receipt requested, on a form provided by the department. The form shall clearly inform the employee of the following: the date, time and place of the examination; the name of the examining physician; the employee's obligations; any pertinent time limitations; the employee's rights; and any consequences of the employee's failure to submit to the examination. The examination shall be scheduled to take place within thirty (30) days of the date on the notice;
(c) After receipt of the notice of demand for examination, the employee shall either submit to the examination at the time and place identified in the notice form, or, within thirty (30) days from the date of the notice, the employee shall schedule an appointment for a different date and time conducted by the same physician, and this examination shall be completed no later than ninety (90) days from the date of the notice;
(d) In the event the employee fails to submit to the examination at the time and place identified in the notice form and fails to schedule, within thirty (30) days from the date of the notice, an alternative examination date, as provided in subdivision (4)(C)(iii)(<em>c</em>), then the employee's periodic benefits shall be suspended for a period of thirty (30) days;
(e) In the event the employee schedules an alternative date for the examination as provided in subdivision (4)(C)(iii)(<em>c</em>), and fails to submit to the examination within the ninety (90) day period, then the employee's periodic benefits shall be suspended for a period of thirty (30) days beginning at the end of the ninety (90) day period within which the alternatively scheduled examination was to be completed;
(f) If the employee submits to an examination within any period of suspension of benefits, then within fourteen (14) days of the submission, periodic benefits shall be restored and any periodic benefits that were withheld during any period of suspension of benefits shall be remitted to the employee;
(g) Within ten (10) days of the date on which periodic benefits are suspended pursuant to either subdivision (4)(C)(iii)(<em>d</em>) or (4)(C)(iii)(<em>e</em>), the entity suspending the periodic benefits shall notify the department, in writing, that periodic benefits have been suspended and the date on which the periodic benefits were suspended and shall provide the department a copy of the original notice of demand for examination sent to the employee; and
(h) After the department receives notice of suspension of benefits pursuant to either subdivision (4)(C)(iii)(<em>d</em>) or (4)(C)(iii)(<em>e</em>), the department shall contact the employee and for a period of thirty (30) days assist the employee to schedule an examination to be conducted by the physician named in the notice. After the thirty (30) day assistance period has elapsed, if the employee has not submitted to an examination, the department shall authorize the employer, insurer or department to suspend periodic benefits for a period of thirty (30) days. At the conclusion of each thirty (30) day suspension period, periodic benefits shall be restored. After the restoration of periodic benefits, the department shall, in thirty (30) day cycles, continue to assist the employee to schedule the examination, to be followed by thirty (30) day cycles of suspension of benefits until the examination of the employee is completed. If, at any time during any period of suspension of periodic benefits, the employee submits to an examination, then within fourteen (14) days of notice of the examination having been conducted, periodic benefits shall be restored and any periodic benefits that were withheld during any period of suspension shall be remitted to the employee;
(iv) Subsequent to an examination as described in this subdivision (4)(C), the employer, insurer or department may request a reconsideration of the issue of whether the employee continues to be permanently totally disabled based on any changes in the employee's circumstances that have occurred since the time of the initial settlement or trial;
(v) Prior to filing any request for reconsideration, the employer, insurer or department shall file a petition for benefit determination and participate in alternative dispute resolution pursuant to § 50-6-236. In the event the parties are unable to reach an agreement through alternative dispute resolution, the workers' compensation mediator shall issue a dispute certification notice and the employer, insurer or department may file a request for a hearing, as provided in § 50-6-239, to determine the issue of reconsideration.
(vi) In the event a reconsideration request is filed pursuant to this section, the only remedy available to the employer, insurer or department is the modification or termination of future periodic disability benefits;
(vii) In the event the employer, insurer or department files a request for reconsideration or cause of action under this subdivision (4)(C) and the court does not terminate the employee's future periodic disability benefits, the employee shall be entitled to an award of reasonable attorney fees, court costs and reasonable and necessary expenses incurred by the employee in responding to the request for reconsideration upon application to and approval by the court. In determining what attorney fees shall be awarded under this subdivision (4)(C), the court shall make specific findings with respect to the following criteria:
(a) The time and labor required, the novelty and difficulty of the questions involved in responding to the request for reconsideration, and the skill requisite to perform the legal service properly;
(b) The fee customarily charged in the locality or by the attorney for similar legal services;
(c) The amount involved and the results obtained;
(d) The time limitations imposed by the client or by the circumstances; and
(e) The experience, reputation, and ability of the lawyer or lawyers performing the services;
(D)
(i) The employer, insurer or department, in the event the subsequent injury and vocational recovery fund is involved, shall notify the department, on a form to be developed by the department, of the entry of a final order adjudging an employee to be permanently totally disabled. The form shall be submitted to the department within thirty (30) days of the entry of the order;
(ii) On an annual basis, the department shall require an employee who is receiving permanent total disability benefits to certify on forms provided by the department that the employee continues to be permanently totally disabled, that the employee is not currently working at an occupation that brings the employee an income and has not been gainfully employed since the date permanent total disability benefits were awarded, by trial or settlement;
(iii) The department shall send the certification form to the employee by certified mail, return receipt requested and shall include a self-addressed stamped envelope for the return of the completed form; and
(iv) In each annual cycle, if the employee fails to return the form to the department within thirty (30) days of the date of receipt of the form, as evidenced by the date on the return receipt notice, then the department shall notify the entity who gave notice to the department that the employee was permanently totally disabled pursuant to subdivision (4)(D)(i) that four (4) weeks of periodic disability benefits shall be withheld from the employee as a penalty for the failure to return the form to the department. If the completed form is returned to the department within one hundred twenty (120) days of the date on the return receipt notice, the department shall notify the appropriate entity and then, within fourteen (14) days of receipt of the notice from the department, that entity shall refund to the employee the entire four (4) weeks of periodic disability benefits previously withheld from the employee;
(5) Deductions in Case of Death. In case a worker sustains an injury due to an accident arising primarily out of and in the course and scope of the worker's employment, and during the period of disability caused by the injury death results proximately from the injury, all payments previously made as compensation for the injury shall be deducted from the compensation, if any, due on account of death; and
(6) For social security purposes only, as permitted by federal law or regulation, in an award of compensation as a lump sum or a partial lump sum under this chapter for permanent partial or permanent total disability, the court may make a finding of fact that the payment represents a payment to the individual to be distributed over the individual's lifetime based upon life expectancy as determined from mortality tables maintained by the United States Centers for Disease Control and Prevention.
(1) If an employee has previously sustained a permanent physical disability from any cause or origin and becomes permanently and totally disabled through a subsequent injury, the employee shall be entitled to compensation from the employee's employer or the employer's insurance company only for the disability that would have resulted from the subsequent injury, and the previous injury shall not be considered in estimating the compensation to which the employee may be entitled under this chapter from the employer or the employer's insurance company; provided, that in addition to the compensation for a subsequent injury, and after completion of the payments for the subsequent injury, then the employee shall be paid the remainder of the compensation that would be due for the permanent total disability out of a special fund to be known as the subsequent injury and vocational recovery fund.
(2) To receive benefits from the subsequent injury and vocational recovery fund, the injured employee must be the employee of an employer who has properly insured the employer's workers' compensation liability or has qualified to operate under this chapter as a self-insurer, and the employer must establish that the employer had actual knowledge of the permanent and preexisting disability at the time that the employee was hired or at the time that the employee was retained in employment after the employer acquired knowledge, but in all cases prior to the subsequent injury.
(3) In determining the percentage of disability for which the subsequent injury and vocational recovery fund shall be liable, no previous physical impairment shall be considered unless the impairment was within the knowledge of the employer as prescribed in subdivision (a)(2).
(4) Nothing in this section shall be construed to limit the employer's liability as provided by law for aggravation of preexisting conditions or disabilities in cases where recovery against the subsequent injury and vocational recovery fund is not applicable.
(5) Claims against the fund shall be made by either the injured employee or the employer in the manner prescribed in § 50-6-239. In all cases when a party is making a claim against the fund, the party advancing the claim shall give notice to the fund of any alternative dispute resolution proceedings scheduled pursuant to § 50-6-236.
(6) Nothing in this section shall relieve the employer or its insurance company of liability for other benefits that may be due the injured employee, including temporary benefits, medical expenses and permanent benefits for injuries.
(b) A sum sufficient to provide the benefits of this section shall be allocated from the four percent (4%) premium tax imposed in § 50-6-401(b), subject to a maximum allocation of fifty percent (50%) of the premium tax collected. The sums shall be deposited in the subsequent injury and vocational recovery fund for distribution by the administrator of the bureau of workers' compensation.
(c) There is appropriated a sum sufficient to the subsequent injury and vocational recovery fund for payment of benefits provided in this section, pursuant to this section. The appropriation shall be allocated from and equal to an amount not greater than fifty percent (50%) of the revenues derived from the premium tax levied pursuant to § 50-6-401.
(d) The sums collected by the administrator as provided in this section must be deposited by the administrator in a special fund, which must be termed the “subsequent injury and vocational recovery fund”, to be disbursed by the administrator only for the purposes stated in this section, for costs associated with legal counsel to defend the administrator in actions claiming compensation from the subsequent injury and vocational recovery fund pursuant to this section, and for costs associated with providing vocational recovery assistance to eligible employees pursuant to subsection (i). Monies remaining in the fund must not, at any time, be appropriated or diverted to any other purpose. The administrator shall not invest any monies in the subsequent injury and vocational recovery fund in any other manner than is provided by the general laws of the state for investments of funds in the hands of the state treasurer. Disbursements from the fund for permanent total physical disabilities must be made by the administrator only after receipt by the administrator of a certified copy of the court decree awarding compensation as provided in this section. Disbursements must be made only in accordance with the decree. A copy of the decree awarding compensation from the fund must in all cases be filed with the bureau. The administrator has the authority in accordance with subsection (i) to make disbursements for vocational recovery assistance from the fund without any court decree.
(e) The administrator, in consultation with the attorney general and reporter, shall prepare a plan for a pilot project using private legal counsel to defend the administrator in actions claiming compensation from the subsequent injury and vocational recovery fund pursuant to § 50-6-206 [See the Compiler's Notes.]. The plan shall include types of cases, approximate numbers of cases, proposed method of selection and other relevant matters. Any private legal counsel retained for these purposes shall be retained pursuant to § 8-6-106. Expenses relating to private legal counsel retained pursuant to this subsection (e) shall be paid from the subsequent injury and vocational recovery fund.
(f)
(1) Before any proposed settlement is considered final in cases involving benefits from the subsequent injury and vocational recovery fund under this section, it shall either:
(A) Have the written approval of the administrator or the administrator's designee, in accordance with subdivision (f)(2); or
(B) Have been approved in accordance with § 20-13-103.
(2) The administrator is authorized to settle certain subsequent injury and vocational recovery fund claims without the necessity of complying with § 20-13-103; provided, that the attorney general and reporter, with the written approval of the governor and the comptroller of the treasury, shall set specific limits and conditions on the settlement authority.
(g) In order to require the subsequent injury and vocational recovery fund to participate in the alternative dispute resolution, a party shall serve notice of potential liability on the fund.
(h) “Party” or “parties,” as referenced in § 50-6-204(d)(4), shall include the subsequent injury and vocational recovery fund.
(i)
(1) If, after the compensation under § 50-6-207(3)(A) has been provided, the employee has not returned to work with any employer because of a work injury, or has returned to work and is receiving wages or a salary that is less than one hundred percent (100%) of the wages or salary the employee received from the employee's pre-injury employer on the date of injury, then the injured employee may request vocational recovery assistance from the subsequent injury and vocational recovery fund. To be eligible for assistance, the injured employee must submit to the bureau on a form approved by the administrator a request for vocational recovery assistance within ninety (90) days of the date of final payment of the compensation under § 50-6-207(3)(A).
(2) Vocational recovery assistance may include, but is not limited to, vocational assessment, employment training, job analysis, vocational testing, adult education programming that includes preparation and testing toward obtaining a high school equivalency credential approved by the state board of education, and education through a public Tennessee community college, university, or college of applied technology, including books and materials required for courses. All assistance is subject to the maximum limitation set out in subdivision (i)(5).
(3) The administrator may evaluate a request for vocational recovery assistance based upon the facts and circumstances relevant to the request and make a determination whether to grant any such request.
(4) The administrator may distribute as vocational recovery assistance any revenues in the subsequent injury and vocational recovery fund that are in excess of:
(A) The estimated required reserves for known claims and incurred but not reported subsequent injury claims, as determined in the most recent actuarial analysis;
(B) The liability to be incurred from the date of the most recent actuarial analysis to the end of the fiscal year in which assistance is provided; and
(C) The costs associated with legal counsel to defend the fund and administrative costs of the recovery assistance program.
(5) The total amount paid on behalf of any eligible employee for vocational recovery assistance from the subsequent injury and vocational recovery fund pursuant to this subsection (i) must not exceed five thousand dollars ($5,000) in any one (1) fiscal year, and must not exceed the total sum of twenty thousand dollars ($20,000) per employee who participates in this program for all years. The total aggregate amount to be paid from the subsequent injury and vocational recovery fund as to all eligible employees is limited to a total of five hundred thousand dollars ($500,000) in any calendar year.
(6) The administrator may promulgate rules in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, for the purpose of discharging the administrator's duties to carry out the purposes, goals, and intent of this subsection (i). Such rules may include determining future eligibility of assistance based upon satisfactory completion of coursework in courses taken.
(7) This subsection (i) applies to injuries that occur on or after July 1, 2018, but does not apply to injuries that occur after June 30, 2025.
(a) In all cases of permanent total disability of an employee covered by this chapter, sixty-six and two-thirds percent (66 ⅔%) of the average weekly wages shall be paid, subject to maximum compensation as follows: where there are or are not persons dependent upon each injured employee, the maximum weekly benefit per week.
(b)
(1) In all cases of death of an employee covered by this chapter, sixty-six and two-thirds percent (66 ⅔%) of the average weekly wages shall be paid in cases where the deceased employee leaves dependents, subject to the maximum weekly benefit.
(2) In all cases of death of an employee covered by this chapter, and where the employee leaves no dependents, as provided in § 50-6-210, then the lump sum amount of twenty thousand dollars ($20,000) shall be paid to the estate of the deceased employee.
(3) The total amount of compensation payable under this subsection (b) shall not exceed the maximum total benefit exclusive of medical, hospital and funeral benefits.
(a) Persons Wholly Dependent. For the purposes of this chapter, the following persons shall be conclusively presumed to be wholly dependent:
(1) A surviving spouse, unless it is shown that the surviving spouse was voluntarily living apart from the surviving spouse's spouse at the time of injury; and
(2) Children under sixteen (16) years of age.
(b) Persons Prima Facie Dependent. Children between sixteen (16) and eighteen (18) years of age, or those over eighteen (18) years of age, if physically or mentally incapacitated from earning, shall prima facie be considered dependent.
(c) Actual Dependents. Wife, husband, child, mother, father, grandparent, sister, brother, mother-in-law, father-in-law, who were wholly supported by the deceased employee at the time of death and for a reasonable period of time immediately prior to the time of death, shall be considered actual dependents, and payment of compensation shall be made in the order named.
(d) Partial Dependents. Any member of a class named in subsection (c) who regularly derived part of the member's support from the wages of the deceased employee at the time of death and for a reasonable period of time immediately prior to the time of death shall be considered a partial dependent, and payment of compensation shall be made to the dependents in the order named.
(e) Compensation in Death Cases. In death cases, compensation payable to dependents shall be computed on the following basis, and shall be paid to the persons entitled to compensation, without administration:
(1) Surviving Spouse and No Dependent Child. If the deceased employee leaves a surviving spouse and no dependent child, there shall be paid to the surviving spouse sixty-six and two-thirds percent (66 ⅔%) of the average weekly wages of the deceased;
(2) Surviving Spouse and Children. If the deceased employee leaves a surviving spouse and one (1) or more dependent children, there shall be paid to the surviving spouse for the benefit of the surviving spouse and the child or children, sixty-six and two-thirds percent (66 ⅔%) of the average weekly wages of the deceased;
(3) Surviving Spouse and Children, How Paid. In all cases where compensation is payable to a surviving spouse for the benefit of the surviving spouse and dependent child or children, the court shall have the power to determine in its discretion what portion of the compensation shall be applied for the benefit of any child or children, and may order the compensation paid to a guardian;
(4) Remarriage of Surviving Spouse. Upon the remarriage of a surviving spouse, if there is no child of the deceased employee, the periodic compensation benefits shall terminate and the surviving spouse is entitled to one (1) lump sum payment equal to one hundred (100) weeks based on twenty-five percent (25%) of the average weekly wages of the deceased employee, subject to the maximum total benefit; but if there is a child or children under eighteen (18) years of age, or over eighteen (18) years of age if physically or mentally incapacitated from earning, from the time of the remarriage, the child or children have status of orphan or orphans and draw compensation accordingly, except the compensation shall not exceed sixty-six and two-thirds percent (66 ⅔%) of the average weekly wages of the deceased.
(5) Dependent Orphans. If the deceased employee leaves one (1) dependent orphan, there shall be paid sixty-six and two-thirds percent (66 ⅔%) of the average weekly wages of the deceased; if the deceased leaves two (2) or more dependent orphans, there shall be paid sixty-six and two-thirds percent (66 ⅔%) of the average weekly wages of the deceased;
(6) Parent or Parents. If the deceased employee leaves no surviving spouse or child entitled to any payment under this section, but should leave a parent or parents, either or both of whom are wholly dependent on the deceased, there shall be paid, if only one (1) parent, twenty-five percent (25%) of the average weekly wages of the deceased to the parent, and if both parents, thirty-five percent (35%) of the average weekly wages of the deceased to the parents;
(7) Grandparent, Brother, Sister, Mother-in-law or Father-in-law. If the deceased leaves no surviving spouse or dependent child or parent entitled to any payment under this section, but leaves a grandparent, brother, sister, mother-in-law or father-in-law wholly dependent upon the deceased for support, there shall be paid to the dependent, if only one (1), twenty percent (20%) of the average weekly wages of the deceased, or, if more than one (1), twenty-five percent (25%) of the average weekly wages of the deceased, divided between them or among them share and share alike;
(8) Compensation to Dependents to Cease upon Death or Marriage. If compensation is being paid under this chapter to any dependent, the compensation shall cease, upon the death or marriage of the dependent, unless otherwise provided in this section;
(9) Partial Dependents to Receive Proportion. Partial dependents shall be entitled to receive only that proportion of the benefits provided for actual dependents that the average amount of the wages regularly contributed by the deceased to the partial dependent at the time of, and for a reasonable time immediately prior to, the injury, bore to the total income of the dependent during the same time;
(10) Maximum and Minimum Compensation. The compensation payable in case of death to persons wholly dependent shall be subject to the maximum weekly benefit and minimum weekly benefit; provided, that if at the time of injury the employee receives wages of less than the minimum weekly benefit, the compensation shall be the full amount of the wages a week, but in no event shall the compensation payable under this provision be less than the minimum weekly benefit. The compensation payable to partial dependents shall be subject to the same maximum and minimum specified in this subdivision (e)(10); provided, that if the income loss of the partial dependents by the death is less than the minimum weekly benefit, then the dependents shall receive the full amount of the income loss. This compensation shall be paid during dependency not to exceed the maximum total benefit, payments to be paid at the intervals when the wage was payable, as nearly as may be;
(11) Orphans and Other Children. In computing and paying compensation to orphans or other children, in all cases, only those under eighteen (18) years of age, or those over eighteen (18) years of age who are physically or mentally incapacitated from earning, shall be included, the former to receive compensation only during the time they are under eighteen (18) years of age, the latter only for the time they are so incapacitated. If the dependent is attending a recognized educational institution or completing secondary education or a program leading to an equivalent credential, or enrolled in a recognized institution that provides postsecondary or career or technical education, then benefits shall be paid until twenty-two (22) years of age;
(12) Actual Dependents. Actual dependents shall be entitled to take compensation in the order named in subsection (c), until sixty-six and two-thirds percent (66 ⅔%) of the monthly wages of the deceased during the time specified in this chapter have been exhausted, but the total compensation to be paid to all actual dependents of a deceased employee shall not exceed in the aggregate the maximum weekly benefit;
(13) Dependency Status Not Affected by Certain Assistance Payments. Sums distributed under the Employment Security Law, compiled in chapter 7 of this title; the Old-Age Assistance Law, compiled in title 71, chapter 2, part 2; the Aid to Dependent Children Law, compiled in title 71, chapter 3, part 1; Aid to Blind Law, compiled in title 71, chapter 4, part 1; the federal Social Security Act (42 U.S.C. § 301 et seq.), or any other public assistance distributed by the United States government, the state, or any county or municipality of the state, shall not be considered income within the meaning of this law and shall not affect the status or compensation of any person entitled to benefits as provided in this chapter.
(f)
(1)
(A) If compensation is payable due to the death of an employee under this chapter, and the decedent leaves an alien dependent or dependents residing outside of the United States, a workers' compensation mediator is authorized to conduct alternative dispute resolution proceedings to attempt to resolve the issues; provided, that a representative or representatives of the employer and a duly authorized representative or representatives of the consul or other representative of the foreign country in which the dependent or dependents reside are present. If the parties reach a settlement agreement, the administrator or administrator's designee is authorized to approve the settlement, and the order of the administrator or the administrator's designee shall be entitled to the same standing as a judgment of a court of record for all purposes. If the parties are unable to reach an agreement, the employer or employee's representative may seek relief pursuant to § 50-6-239 following the issuance of a dispute certification notice.
(B) The administrator, or administrator's designee, or the court shall order payment of any compensation due from the employer to be made to the duly accredited consular officer of the country where the beneficiaries are citizens. The consular officer or the consular officer's representative shall be fully authorized and empowered by this law to settle all claims for compensation and to receive the compensation for distribution to the persons entitled to the compensation.
(2) The distribution of funds in cases described in subdivision (f)(1)(A) shall be made only upon the order of the administrator, the administrator's designee, or the court that heard the matter. If required to do so by the administrator, the administrator's designee, or the court, the consular officer or the consular officer's representative shall execute a good and sufficient bond to be approved by the administrator, the administrator's designee, or the court, conditioned upon the faithful accounting of the moneys so received by the consular officer or the consular officer's representative. Before the bond is discharged, a verified statement of receipts and disbursements of the moneys shall be made and filed with the administrator or the court, as appropriate.
(3) The consular officer or the consular officer's representative shall, before receiving the first payment of the compensation, and at reasonable times thereafter, upon the request of the employer, furnish to the employer a sworn statement containing a list of the dependents with the name, age, residence, extent of dependency and relation to the deceased of each dependent.
(g)
(1) If a dependent, as established by order, judgment, or decree, is determined to be entitled to benefits under this chapter, then the employer or insurer may periodically require the dependent to provide information relevant to whether the dependent continues to qualify for benefits. After receipt of the request for information, the dependent shall provide the requested information relevant to dependency within fifteen (15) days of the date of the request.
(2)
(A) If the dependent fails to provide the requested information relevant to dependency, then the employer or insurer may suspend benefits. If benefits are suspended, then the employer or insurer shall notify the department by filing a notice of change or termination of benefits within fifteen (15) days of the first omitted payment of compensation.
(B) If the dependent provides the requested information relevant to dependency within any period of suspension of benefits and the employer or insurer does not dispute the dependent's eligibility for benefits, then within fifteen (15) days of the receipt of such information, the employer or insurer shall restore periodic benefits and shall remit to the dependent any periodic benefits that were withheld during any period of suspension of benefits.
(3) If the dependent provides information indicating the dependent no longer qualifies for benefits under this chapter based on changes in the dependent's circumstances that have occurred since the time of the initial order, judgment, or decree, then the employer or insurer may terminate benefits. If benefits are terminated, then the employer or insurer shall notify the department by filing a notice of change or termination of benefits within fifteen (15) days of the first omitted payment of compensation.
(4) If benefits are suspended as provided in subdivision (g)(2), or terminated as provided in subdivision (g)(3), then the dependent may file a petition for benefit determination.
(5) A person who provides false or misleading information in response to a request for information relevant to dependency commits a fraudulent insurance act as provided in § 56-47-103, which is punishable as theft under § 39-14-105.
(a) In case any employee for whose injury or death compensation is payable under this chapter, shall, at the time of injury, be employed and paid jointly by two (2) or more employers subject to this chapter, the employers shall contribute to the payment of the compensation in a proportion of their several wage liability to the employee.
(b) If one (1) or more, but not all, of the employers are subject to this chapter, and otherwise subject to liability for compensation under this chapter, then the liability of those who are so subject shall be to pay the proportion of the entire compensation that their portion of the wage liability bears to the wages of the employee; provided, that nothing in this section shall prevent any agreement between the different employers between themselves as to the distribution of the ultimate burden of the compensation.
(a) In all claims for compensation for hernia or rupture, resulting from injury by accident arising primarily out of and in the course and scope of the employee's employment, it must be definitely proven to the satisfaction of the court that:
(1) There was an injury resulting in hernia or rupture;
(2) The hernia or rupture appeared suddenly;
(3) It was accompanied by pain;
(4) The hernia or rupture immediately followed the accident; and
(5) The hernia or rupture did not exist prior to the accident for which compensation is claimed.
(b) All hernia or rupture, inguinal, femoral or otherwise, so proven to be the result of an injury by accident arising primarily out of and in the course and scope of the employment, shall be treated in a surgical manner by a radical operation. If death results from the operation, the death shall be considered as the result of the injury, and compensation paid in accordance with this chapter.
(c)
(1) In case the injured employee refuses to undergo the radical operation for the cure of the hernia or rupture, no compensation will be allowed during the time the refusal continues.
(2) If, however, it is shown that the employee has some chronic disease, or is otherwise in such physical condition that the court finds it unsafe for the employee to undergo the operation, the employee shall be paid compensation in accordance with this chapter.
(a) Epileptics may elect not to be subject to this part for injuries resulting because of epilepsy and still remain subject to its provisions for all other injuries.
(b) This election shall be made by giving notice to the employer in writing on a form to be furnished by the bureau of workers' compensation and filing a copy of the notice with the bureau.
(c) An election may be revoked by giving written notice to the employer of revocation, and the revocation shall be effective upon filing copy of the notice with the bureau.
(a) The administrator or the administrator's designee shall order appropriate workers' compensation benefits and loss adjustment expenses associated with the claim to be paid on an equal basis by the insurance carrier or carriers and the self-insured employer, as appropriate, in any case where:
(1)
(A) An employer changes insurance carriers;
(B) The employer having been self-insured, becomes insured; or
(C) The employer having been insured, is approved to be self-insured; and
(2) One (1) of the following applies:
(A) The compensability of the claim is not being disputed by the employer or carrier; or
(B) A workers' compensation judge has determined the claim to be compensable or ordered the provision of benefits to an employee; and
(3) There is a dispute as to which entity is responsible to provide workers' compensation benefits to a worker.
(b) Upon an agreement by the parties or a court order as to which entity is responsible to pay the workers' compensation benefits to the employee, the entity responsible for the provision of workers' compensation benefits shall reimburse the other entity all moneys paid for or on behalf of the employee as ordered by the administrator or the administrator's designee, plus interest from the date of payment at the rate set by § 47-14-121.
(a) This section may be referred to as the “Rental and Assignment of PPO Network Rights.”
(b) For purposes of this section, unless the context otherwise requires:
(1) “Contracting agent” means any person that is in direct privity of contract with a medical provider to reimburse the medical provider for medical services provided to an injured worker pursuant to this chapter at rates other than those provided under the workers' compensation medical fee schedule. Nothing contained within this section shall be construed to permit the creation of preferred provider organization networks that permit payments above the medical fee schedule adopted by the department; and
(2) “Workers' compensation payor” means an employer, workers' compensation trust, workers' compensation pool or insurer responsible pursuant to § 50-6-405 for paying a medical provider for the delivery of workers' compensation related healthcare services.
(c) Every contracting agent that sells, leases, assigns, transfers, or conveys its list of contracted medical providers and their contracted reimbursement rates shall, upon entering or renewing a medical provider contract, do all of the following:
(1) Disclose to the medical provider whether the list of contracted medical providers may be sold, leased, transferred, or conveyed to other payors or agents, including workers' compensation insurers or self insureds. The disclosure of the ability to sell, lease, transfer or convey the list or network of medical providers shall be in a section of a contract titled “assignment” or “assignability” or similar title;
(2) Disclose whether workers' compensation payors to whom the list of contracted medical providers may be sold, leased, transferred, or conveyed may be permitted to pay a medical provider's contracted rate if less than the workers' compensation fee schedule. The disclosure of the ability to pay a medical provider's contracted rate, if less than the workers' compensation fee schedule, shall be in a section of a contract titled “assignment” or “assignability” or similar title;
(3) Allow medical providers, upon the initial signing or renewal of a medical provider contract, to decline to participate in networks solely to serve workers' compensation payors that are sold, leased, transferred, or conveyed to workers' compensation payors; and
(4) Maintain a web page that contains a complete listing of customers to whom the network is sold, leased, transferred or conveyed that is accessible to all contracted medical providers and updated at least twice a year, as well as maintain a toll-free telephone number accessible to all contracted medical providers whereby medical providers may access workers' compensation payor summary information and a list of lessees of the network.
(d)
(1) The explanation of payment (EOP) or explanation of review (EOR) transmitted to the medical provider shall delineate the following information:
(A) Employer's name;
(B) Injured worker's name;
(C) Name of the workers' compensation payor and the name of the third party administrator if a third party administrator is utilized. If a third party administrator is utilized, then a telephone number for the third party administrator shall be delineated; otherwise, a telephone number for the workers' compensation payor shall be delineated;
(D) Name and telephone number of the entity that analyzes the medical provider bill for the purpose of ensuring that the billed amount complies with the workers' compensation medical fee schedule;
(E) Name and telephone number of the contracting agent that has a written medical provider contract signed by the medical provider whereby the contracting agent or a third party is entitled to access and pay rates other than those provided under the workers' compensation medical fee schedule;
(F) Name and telephone number of the entity that analyzes the medical provider bill for the purpose of reducing the billed amount below the medical fee schedule pursuant to a preferred provider organization network contract, unless the entity is the same entity referenced in subdivision (d)(1)(E);
(G) Amount billed by the medical provider;
(H) Amount permitted by the workers' compensation fee schedule; and
(I) Amount of payment.
(2) Within twenty (20) calendar days of a medical provider submitting in writing to a workers' compensation payor an EOP or EOR that does not comply with subdivision (d)(1), the entity that originally generated the EOP or EOR shall issue to the medical provider a corrected EOP or EOR that complies with subdivision (d)(1).
(3) A workers' compensation payor shall demonstrate that it is entitled to pay a contracted rate within thirty (30) days of receipt of a written request from a medical provider who has received a claim payment from the workers' compensation payor. The medical provider shall include in the request a statement explaining why the payment is not at the correct contracted rate for the services provided. The failure of the medical provider to include such a statement shall relieve the workers' compensation payor from the responsibility of demonstrating that it was entitled to pay the disputed contracted rate. A workers' compensation payor shall be deemed to have demonstrated that it is entitled to pay a contracted rate if it correctly identifies the contracting agent that originally entered into the contract with the medical provider to pay the claim at the contracted rate.
(e)
(1) A written complaint alleging a violation of this section by individuals or entities licensed by the department of commerce and insurance may be filed with the bureau of workers' compensation. The bureau may investigate complaints made under this subsection (e) and shall direct all such complaints, along with any investigatory materials, to the department of commerce and insurance. The commissioner of commerce and insurance may take appropriate action in accordance with § 56-2-305.
(2) A written complaint alleging a violation of this section by individuals or entities not licensed by the department of commerce and insurance may be filed with the bureau. The bureau may investigate all complaints made under this subsection (e) and shall have the authority to establish and collect penalties for violations of this section in accordance with § 50-6-118.
(a) The administrator shall establish a workers' compensation ombudsman program to assist injured or disabled employees, persons claiming death benefits, employers, and other persons in protecting their rights, resolving disputes, and obtaining information available under workers' compensation laws. The ombudsman program shall be available only to those individuals or organizations that are not represented by an attorney in the claim for workers' compensation benefits.
(b) No statement, discussion, evidence, allegation or other matter of legal significance that occurs in the presence of an ombudsman shall be admissible as evidence in any other proceeding.
(c) The administrator may adopt rules and regulations consistent with this chapter in order to fulfill the purposes of this section in an orderly and efficient manner.
(d) The bureau shall have authority to assess a civil penalty against any person or organization, with the exception of the state or a representative of the state, that refuses to cooperate with the services provided by an ombudsman as provided in § 50-6-118.
(e)
(1) Any party that is not represented by legal counsel may request the services of a workers' compensation ombudsman by contacting the office of mediation services.
(2) The ombudsman's authority shall include, but not be limited to, the following:
(A) Meet with and provide information to unrepresented parties about the unrepresented party's rights and responsibilities under the law;
(B) Explain the administrative process for resolving workers' compensation claims;
(C) Investigate claims and attempt to resolve disputes without resort to alternative dispute resolution and court proceedings;
(D) Communicate with all parties and providers in the claim;
(E) Assist the parties in the completion of forms; and
(F) Facilitate the exchange of medical records.
(3) An ombudsman who is not a licensed attorney shall not provide legal advice; however, an ombudsman who is a licensed attorney may provide limited legal advice but shall not represent any party as the party's attorney. No ombudsman shall make attorney referrals.
(4) An ombudsman shall not be called to testify in any proceeding and no statement or representation made to an ombudsman shall be considered by a workers' compensation judge for any purpose.
(5) An unrepresented party has a right to consult with an ombudsman and receive services under this subsection (e). If the party receiving the services of an ombudsman obtains legal counsel pertaining to the case or dispute for which the services of an ombudsman were engaged, the party, or the party's counsel, shall immediately notify the bureau and the office of mediation services. Upon receipt of notice that the party has retained counsel, the ombudsman shall terminate all services.
(1) The administrator shall establish a workers' compensation appeals board, which must be wholly separate from the court of workers' compensation claims, to review interlocutory and final orders entered by workers' compensation judges upon application of any party to a workers' compensation claim.
(2) Any party aggrieved by an order issued by a workers' compensation judge may appeal the order to the workers' compensation appeals board by filing a timely notice of appeal on a form prescribed by the administrator. Review must be accomplished in the following manner:
(A) Within seven (7) business days after the filing of an interlocutory order, either party may appeal the interlocutory order by filing a notice of appeal with the clerk of the court of workers' compensation claims. Following the expiration of the time established by bureau rules for the parties to file a transcript prepared by a licensed court reporter or a statement of the evidence, along with briefs or position statements specifying the issues presented for review and supporting arguments, the record on appeal must be submitted by the clerk of the court of workers' compensation claims to the clerk of the workers' compensation appeals board. Within twenty (20) business days of the receipt of the record on appeal or oral argument conducted pursuant to bureau rules, whichever is later, the workers' compensation appeals board shall issue a decision affirming, reversing, or modifying the interlocutory order and remanding the case. The decision of the workers' compensation appeals board is not subject to further review; and
(B) Within thirty (30) calendar days after the issuance of a compensation order pursuant to § 50-6-239(c)(2), either party may appeal the compensation order by filing a notice of appeal with the clerk of the court of workers' compensation claims. The appealing party has fifteen (15) calendar days after the record is filed with the clerk of the workers' compensation appeals board to file a brief. A brief in response, if any, must be filed within fifteen (15) calendar days of the filing of the appellant's brief. No later than forty-five (45) calendar days after oral argument conducted pursuant to bureau rules or the expiration of the fifteen-day period for a responsive brief to be filed, whichever is later, the workers' compensation appeals board shall issue a decision affirming, reversing, modifying the compensation order; remanding the case; or any combination thereof. For purposes of further appellate review, the workers' compensation appeals board must, if appropriate, certify as final the order of the court of workers' compensation claims as affirmed, reversed, modified, or remanded. The decision of the workers' compensation appeals board is appealable to the Tennessee Supreme Court as provided for in the Tennessee Rules of Appellate Procedure. If a compensation order is timely appealed to the workers' compensation appeals board, the order issued by the workers' compensation judge must not become final, as provided in § 50-6-239(c)(7), until the workers' compensation appeals board issues a written decision certifying the order as a final order.
(b) This section shall have no effect on the procedures established for filing a claim for workers' compensation benefits in the division of claims and risk management, pursuant to § 9-8-402, or in the claims commission, pursuant to § 9-8-307. The workers' compensation appeals board shall have no jurisdiction over an appeal of a decision of a commissioner of the claims commission.
(c) The decisions of the workers' compensation appeals board shall not be subject to judicial review pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
(d)
(1) In the appeal of an interlocutory order, with the exception of the filing of the notice of appeal, when an act is required to be performed within a specified time, the workers' compensation appeals board may extend the specified time only in exceptional circumstances not to exceed five (5) additional business days, either upon its own motion or upon motion of any party. In the appeal of a compensation order, with the exception of the filing of the notice of appeal, when an act is required to be performed within a specified time, the workers' compensation appeals board may extend the specified time only in exceptional circumstances not to exceed twenty-one (21) additional calendar days, either upon its own motion or upon motion of any party.
(2) The administrator shall have the authority to assess filing fees sufficient to offset the costs of administering this chapter.
(a) The governor, in consultation with the speaker of the house of representatives and the speaker of the senate, shall appoint three (3) qualified individuals to serve as judges on the workers' compensation appeals board. Each individual selected shall be a Tennessee licensed attorney, with at least seven (7) years' experience in workers' compensation matters, shall be at least thirty (30) years of age, and shall be required to attend annual training on workers' compensation laws.
(b) Upon appointment, each judge of the workers' compensation appeals board shall serve a term of six (6) years and may be reappointed for up to two (2) additional terms by the governor upon expiration of the initial term. The governor shall designate one (1) of the judges as the presiding judge, who, in addition to performing the duties of a judge on the workers' compensation appeals board, shall administer the day to day operations of the workers' compensation appeals board and supervise the activities of the workers' compensation appeals board judges. Service of more than half of a six-year term constitutes service of one (1) full term. A judge appointed to the workers' compensation appeals board to serve less than a full term to fill a vacancy is eligible to serve up to an additional three (3) full terms. In the initial appointment of judges to the workers' compensation appeals board, one (1) judge appointed shall serve a term of two (2) years, one (1) judge appointed shall serve a term of four (4) years, and one (1) judge appointed shall serve a term of six (6) years.
(c) The governor shall have authority to remove a judge sitting on the workers' compensation appeals board during an unexpired term for the commission of any of the judicial offenses provided in § 17-5-301(j)(1).
(d) Any person appointed to serve as a judge on the workers' compensation appeals board shall be required to take an oath or affirmation to support the constitutions of the United States and of this state, and to administer justice without respect of persons, and impartially to discharge all the duties incumbent upon a judge to the best of the judge's skill and ability. The governor or any active or retired Tennessee judge or chancellor may administer the oath.
(e) No person appointed to serve as a judge on the workers' compensation appeals board shall practice law, or perform any of the functions of attorney or counsel, in any of the courts of this state, except in cases in which the judge may have been employed as counsel previous to the appointment as a judge on the workers' compensation appeals board. A newly appointed judge on the workers' compensation appeals board can practice law only in an effort to wind up the judge's practice and must end the practice of law as soon as reasonably possible and in no event longer than one hundred eighty (180) days after assuming the position of judge on the workers' compensation appeals board.
The administrator shall institute and maintain an education and training program for workers' compensation mediators, workers' compensation judges, the chief judge, ombudsmen, and the judges of the workers' compensation appeals board in order to assure that these persons maintain current and appropriate skills and knowledge in performing their duties. Before assuming their duties, all persons selected to serve or appointed as workers' compensation mediators, workers' compensation judges, the chief judge, ombudsmen, or as judge of the workers' compensation appeals board shall be provided formal training and education, which shall include training on the department's workers' compensation system, the Tennessee workers' compensation statutes and case law, and the rules and regulations of the bureau of workers' compensation. In addition, such persons shall attend at least seven (7) hours of training each year that is focused on workers' compensation statutes and case law, and the rules and regulations of the bureau of workers' compensation.
(a) Whenever payment of compensation is made to a surviving spouse for the surviving spouse's use, or for the surviving spouse's use and the use of a child or children, the written receipt of the payment by the surviving spouse shall acquit the employer in this and all other jurisdictions of the entire injury and all its damages.
(b) Whenever payment is made to any person eighteen (18) years of age or over, the written receipt of the person shall acquit the employer in this and all other jurisdictions of the entire injury and all its damages.
(c)
(1) Whenever payment is made to a person under eighteen (18) years of age, or to a dependent child as defined in § 50-6-210(b) over eighteen (18) years of age, the payment shall be paid to a duly and regularly appointed guardian or trustee of the child, and the receipt of the guardian or trustee shall acquit the employer in this and all other jurisdictions of the entire injury and all its damages and shall be in lieu of any claim of the parents of the child or minor for loss of services.
(2) Where the amount of compensation due a person under eighteen (18) years of age does not exceed the sum of two hundred fifty dollars ($250), the court may, in its discretion, direct the amount of compensation due the minor be paid as provided by title 34, chapter 1.
All rights of compensation granted by this chapter shall have the same preference or priority for the whole thereof against the assets of the employer as is allowed by law for any unpaid wages for labor.
(a) No claim for compensation under this chapter shall be assignable, and all compensation and claims for compensation shall be exempt from claims of creditors.
(b) Notwithstanding subsection (a), compensation made by periodic payments shall be subject to income assignment for payment of support as provided by title 36, chapter 5, part 5 and § 50-2-105.
(c) Notwithstanding subsection (a), the department of human services shall have a lien on any lump-sum settlements for the collection of current or overdue support as defined by § 36-5-113, and may enforce the lien as provided by title 36, chapter 5, part 9.
(1) If a party is dissatisfied or aggrieved by a workers' compensation appeals board decision to certify a compensation order of the court of workers' compensation claims as final, then the party may appeal to the supreme court, where the cause shall be heard and determined as provided in the Tennessee Rules of Appellate Procedure.
(2) Review of the court of workers' compensation claims' findings of fact are de novo upon the record of the court of workers' compensation claims, accompanied by a presumption of the correctness of the finding, unless the preponderance of the evidence is otherwise.
(3) The supreme court may, by order, refer workers' compensation cases to a panel known as the special workers' compensation appeals panel. This panel shall consist of three (3) judges designated by the chief justice, at least one (1) of whom shall be a member of the supreme court.
(4) Any case that the supreme court by order or rule refers to the special workers' compensation appeals panel shall be briefed, and oral argument shall be heard pursuant to the Tennessee Rules of Appellate Procedure as if the appeal were being heard by the entire supreme court.
(5)
(A) The special workers' compensation appeals panel shall reduce to writing its findings and conclusions in all cases. The decision of the panel shall become the judgment of the supreme court thirty (30) days after it is issued unless:
(i) Any member of the supreme court files with the clerk a written request within the thirty-day period that the case be heard by the entire supreme court, in which event a final judgment will not be entered until the supreme court, after due consideration of the case, enters final judgment; or
(ii) Any party to the appeal files a motion requesting review by the entire supreme court within fifteen (15) days after issuance of the decision by the panel, in which event a final judgment will not be entered:
(a) Until the motion is denied; or
(b) If the motion is granted, until the supreme court enters final judgment after its consideration of the case.
(B) For purposes of this subsection (a), a decision of the panel shall be deemed to be issued on the day it is mailed to the parties, which date shall be noted on the decision by the clerk. Section 27-1-122 applies to all motions made pursuant to this subsection (a).
(b) Appeal of all cases under this chapter shall be expedited by:
(1) Giving the cases priority over all cases on the appellate dockets; and
(2) Allowing any case on appeal in the supreme court to be on motion of either party transferred to the bureau where the supreme court is then or will next be in session.
(c)
(1) If the judgment or decree is appealed pursuant to subsection (a), interest on the judgment or decree shall be computed from the date that the judgment is entered by the court of workers' compensation claims at an annual rate as defined in § 47-14-121. For purposes of calculating the accrual of interest pursuant to this subdivision (c)(1), the average prime loan rate on the day the judgment or decree is entered by the trial court shall be used.
(2) Total judgment awarded is computed by the total number of weeks multiplied by the benefit rate without any reduction.
(d) When a reviewing court determines pursuant to motion or sua sponte that the appeal of an employer or insurer is frivolous, or taken for purposes of delay, a penalty may be assessed by the court, without remand, against the appellant for a liquidated amount.
(e) When a reviewing court determines pursuant to motion or sua sponte that the appeal of an employee is frivolous, a penalty may be assessed by the court, without remand, against the appellant for a liquidated amount.
(1) The reasonableness of attorney fees for services to employees under this chapter is subject to the approval of the workers' compensation judge before whom the matter is pending; provided, that attorney fees must not exceed twenty percent (20%) of the amount of the recovery or award to the injured worker, or in cases governed by § 50-6-207(4), twenty percent (20%) of the first four hundred fifty (450) weeks of the award; provided, further, that such fees must be paid by the party employing the attorney. All attorney fees for attorneys representing employers are subject to review for reasonableness of the fee and are subject to approval by a workers' compensation judge when the fee exceeds ten thousand dollars ($10,000).
(2)
(A) Medical costs that have been voluntarily paid by the employer or its insurer shall not be included in determining the award for purposes of calculating the attorney's fee.
(B) In cases that proceed to trial, an employee’s attorney shall file an application for approval of a proposed attorney’s fee. Where the award of an attorney’s fee exceeds ten thousand dollars ($10,000), the court shall make specific findings as to the factors that justify the fee as provided in Tennessee Supreme Court Rule 8, RPC 1.5.
(C) The final order or settlement in all workers' compensation cases shall set out the attorney portion of the award in both dollar and percentage terms and the required findings.
(3) In accident cases that result in death of an employee, the plaintiff's attorney's fees shall not exceed reasonable payment for actual time and expenses incurred when the employer makes a voluntary settlement offer in writing to dependents or survivors eligible under § 50-6-210 within thirty (30) days of the employee's death if the employer offers to provide the dependents or survivors with all the benefits provided under this chapter. The approving authority shall review and approve the settlements on an expedited basis.
(4) The fees of physicians and charges of hospitals for services to employees under this chapter, shall be subject to the approval of the administrator or the court before which the matter is pending, as appropriate, as provided in this subdivision (a)(4). Unless a medical fee or charge is contested, the department shall deem it to be reasonable. If a fee or charge is contested, the department shall permit a party to seek review only of the contested fee or charge in any court with jurisdiction to hear a matter pursuant to § 50-6-237. A court may review the case solely for the purpose of approving the fees and charges that are reasonable.
(b) The charging or receiving of any fee by an attorney in violation of subsection (a) shall be deemed unlawful practice and render the attorney liable to disbarment; and, further, the attorney shall forfeit double the entire amount retained by the attorney, to be recovered as in case of debt by the injured person or the injured person's creditor.
(c)
(1) The fees charged to the claimant by the treating physician or a specialist to whom the employee was referred for giving testimony by oral deposition relative to the claim shall, unless the interests of justice require otherwise, be considered a part of the costs of the case, to be charged against the employer when the employee is the prevailing party.
(2) The workers' compensation judge shall have the discretion to determine the reasonableness of the fee charged by any physician pursuant to this subsection (c).
(3) This subsection (c) applies only to workers' compensation actions arising on or after July 1, 1988.
(d)
(1) In addition to attorneys' fees provided for in this section, the court of workers' compensation claims may award reasonable attorneys' fees and reasonable costs, including, but not limited to, reasonable and necessary court reporter expenses and expert witness fees for depositions and trials, incurred when the employer:
(A) Fails to furnish appropriate medical, surgical, and dental treatment or care, medicine, medical and surgical supplies, crutches, artificial members, and other apparatus to an employee provided for in a settlement, expedited hearing order, compensation hearing order, or judgment under this chapter; or
(B) Unreasonably denies a claim or unreasonably fails to timely initiate any of the benefits to which the employee or dependent is entitled under this chapter, including medical benefits under § 50-6-204, temporary or permanent disability benefits under § 50-6-207, or death benefits under § 50-6-210 if the workers' compensation judge makes a finding that the benefits were owed at an expedited hearing or compensation hearing.
(2) Subdivision (d)(1)(B) applies to injuries that occur:
(A) Between July 1, 2016, and June 30, 2020; and
(B) Between July 1, 2021, and June 30, 2025.
(e) A health care provider shall not employ a collection agency or make a report to a credit bureau concerning a private claim against an employer for all or part of the costs of medical care provided to an employee that are not paid by the employer's workers' compensation insurer without having first given notice of the dispute to the medical payment committee. The medical director may include the insurer in the administrative process.
(a) The amounts of compensation payable periodically under this chapter may be commuted to one (1) or more lump sum payments. These may be commuted upon motion of any party subject to the approval of the court of workers' compensation claims. No agreed stipulation or order or any agreement by the employer and employee or any other party to the proceeding shall be a prerequisite to the court's approval or disapproval of the award being paid in one (1) or more lump sum payments. In making the commutation, the lump sum payment shall, in the aggregate, amount to a sum of all future installments of compensation. No settlement or compromise shall be made except on the terms provided in this chapter. In determining whether to commute an award, the trial court shall consider whether the commutation will be in the best interest of the employee, and the court shall also consider the ability of the employee to wisely manage and control the commuted award, regardless of whether special needs exist. Attorneys' fees may be paid as a partial lump sum from any award when approved and ordered by the trial judge.
(b) All settlements of compensation by agreement of the parties and all awards of compensation made by the court of workers' compensation claims, when the amount paid or to be paid in settlement or by award does not exceed the compensation for twenty-six (26) weeks of disability, shall be final and not subject to readjustment.
(c) All amounts paid by the employer and received by the employee or the employee's dependents, by lump sum payments, shall be final, but the amount of any award payable periodically for more than twenty-six (26) weeks may be modified as follows:
(1) At any time by agreement of the parties and approval by the court; or
(2) If the parties do not agree, then at any time after twenty-six (26) weeks from the date of the award, either party may file an application to the court of workers' compensation claims, on the ground of increase or decrease of incapacity due solely to the injury.
(a) Any time after the amount of any award has been agreed upon by the parties, or found and ordered by the court, a sum of all future installments of compensation may, where death or the nature of the injury renders the amount of future payments certain, by leave of court, be paid by the employer to any savings bank or trust company of this state to be approved and designated by the court, and the sum, together with all interest on the sum, shall be held in trust for the employee or the dependents of the employee who shall have no further recourse against the employer.
(b) The payment of the sum by the employer evidenced by the receipts of the trustee, which shall be filed with the bureau, shall constitute satisfaction of the award by the employer.
(c) Payments from the fund shall be made by the trustee in the same amounts and at the same time as are required of the employer until the fund interest is exhausted.
(d) In the appointment of the trustee, preference shall be given, in the discretion of the court of workers' compensation claims, to the choice of the injured employee or the dependent of the deceased employee, as the case may be.
(1) There is conferred upon the administrator the power to enforce this chapter that relate to the assurance of payments of the awards under this chapter.
(2) In no event shall the bureau of workers' compensation charge a fee or impose a cost for any necessary or required forms needed to process a workers' compensation claim.
(b) In addition to the rulemaking authority granted in § 50-6-118, and subsection (a), the administrator or the commissioner of commerce and insurance, as appropriate, may promulgate rules and regulations implementing this chapter. The rules and regulations shall be promulgated pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
(a) In any case when the employer has commenced paying temporary disability benefits to the employee and has then stopped or changed the benefits for any cause other than failure of an employee to submit to employer requests for reasonable medical examinations by the treating physician or final settlement, the employee may request the assistance of a workers' compensation mediator who shall mediate the dispute, in accordance with § 50-6-236. If the dispute is not resolved by agreement, the parties may submit the dispute to a workers' compensation judge for resolution after the workers' compensation mediator has issued a dispute certification notice in accordance with § 50-6-236.
(b) After temporary disability payments have commenced, when the injured employee reaches maximum medical improvement and the compensability of the injury has not been contested by the employer, then payments shall continue until the injured employee accepts or rejects a job offered by any employer at a wage equal to or greater than the employee's pre-injury wage, if the employee is able to perform the duties of the position within any restrictions placed on the employee by the physician selected pursuant to § 50-6-204. In no case may temporary payments pursuant to this subsection (b) exceed the lesser of sixty (60) days or the value of the employee's permanent partial disability award calculated solely upon the medical impairment; provided, that these limits may be exceeded if agreed to by all parties. The amount of the payment shall be credited against any permanent award. For purposes of this subsection (b), the determination of attainment of maximum medical improvement and the employee's medical impairment shall be made by the physician selected in accordance with § 50-6-204. Nothing in this subsection (b) shall require an employer to return any employee to work.
(1) If a physician refuses to make a reasonable effort to give a deposition in a workers' compensation case within ninety (90) days of receipt of notice, the employee may petition the court for an order requiring the physician to give the deposition.
(2) If the physician does not respond to the petition in a timely fashion, the physician may lose the exemption from subpoena to trial established by § 24-9-101.
(b) For the purpose of subsection (a), the requirement that the physician make a reasonable effort to give a deposition may be presumed to be satisfied if the physician offers to be available to give the physician's deposition within ninety (90) days' of notice at two (2) or more reasonable places and at times within normal business hours, but because of scheduling difficulties on the part of any of the other persons who wish to be present at the deposition, the deposition cannot take place at either of the times and places offered by the physician.
(c)
(1) Any party may introduce direct testimony from a physician through a written medical report on a form established by the administrator. The administrator shall establish by rule the form for the report. All parties have the right to take the physician's deposition on cross examination concerning the contents of the medical report. A written medical report sought to be introduced as evidence must be signed by the physician making the report bearing an original or electronic signature. A reproduced medical report that was originally signed is admissible as evidence to the same extent as the original report or a report bearing an electronic signature unless a genuine question is raised as to the authenticity of the original, which question must be resolved by a workers' compensation judge. A written medical report sought to be introduced into evidence must include within the body of the report or as an attachment a statement of qualifications of the person making the report. The administrator shall, by rule, fix the fee to be charged by the physician for the preparation and filing of the report and fix penalties for a failure to file the report after a timely request for it by an interested party.
(2) The written medical report of a treating or examining physician shall be admissible at any stage of a workers' compensation claim in lieu of a deposition upon oral examination, if notice of intent to use the sworn statement is provided to the opposing party or counsel not less than twenty (20) days before the date of intended use. If no objection is filed within ten (10) days of the receipt of the notice, the sworn statement shall be admissible as described in this subsection (c). In the event that a party does object, then the objecting party shall depose the physician within a reasonable period of time or the objection shall be deemed to be waived.
(d) The medical payment committee established in § 50-6-125 shall establish a schedule by rule for reasonable charges by physicians for preparing and giving depositions in workers' compensation cases. The schedule may be subject to annual revision. Physicians shall not be permitted to charge more than the amount permitted under the schedule. The rule shall be subject to the approval of the administrator, including annual revisions.
(a) The administrator shall establish a workers' compensation mediators program to assist injured or disabled employees, persons claiming death benefits, employers and other persons in protecting their rights, resolving disputes, and obtaining information pertinent to workers' compensation laws and practices.
(b) In accordance with rules adopted by the administrator, the mediator shall conduct alternative dispute resolution and the mediator shall:
(1) Mediate all disputes between the parties related to the resolution of a claim for workers' compensation benefits and assist in the adjustment of claims consistent with this chapter and the policies of the administrator;
(2) Thoroughly inform all parties of their rights and responsibilities under this chapter, including the right of any party to be represented by an attorney of the party's choice;
(3) Accept all documents and information presented to the bureau relating to the employee's wages, medical condition, and any other information pertinent to the resolution of disputed issues and include them in the claim file; and
(4) If the parties reach a full and final settlement, then either the mediator, or one (1) party's legal representative upon agreement of the parties, shall reduce the settlement to writing and each party, or their representative, shall sign. A settlement reached during alternative dispute resolution proceedings is not effective until it has been approved by a workers' compensation judge in accordance with the procedure provided in this chapter.
(c)
(1) When mediation is held, a person representing the employee and the employer, or the employer's insurer, with the authority to settle, shall attend. It shall not be required that the state or its representative who attends mediation have final settlement authority. Parties entering into mediation shall be prepared to mediate all disputed issues at the beginning of mediation and shall mediate all issues in good faith.
(2) When a mediator determines that a party is not prepared to mediate as required or believes a party is not mediating in good faith, the mediator shall include comments to that effect in the dispute certification notice.
(3) The administrator is authorized to promulgate rules to effectuate the purposes of this subsection (c) in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5. The violation of those rules or this subsection (c) may subject the party or their representative to a civil penalty of not less than fifty dollars ($50.00) or more than five thousand dollars ($5,000).
(d)
(1) If the parties are unable to reach settlement of any disputed issues, the mediator shall issue a written dispute certification notice setting forth all unresolved issues for hearing before a workers' compensation judge.
(2) The dispute certification shall be issued on a form prescribed by the administrator and signed by the assigned workers' compensation mediator who shall distribute a copy of the signed dispute certification notice to all parties in accordance with rules adopted by the administrator.
(3)
(A) No party is entitled to a hearing before a workers' compensation judge to determine temporary or permanent benefits or to resolve a dispute over the terms of an agreed settlement of a workers' compensation claim, unless a workers' compensation mediator has issued a dispute certification notice setting forth the issues for adjudication by a workers' compensation judge.
(B) Within five (5) business days after a copy of the dispute certification notice signed by the mediator has been distributed to the parties, any party may, on no more than one (1) occasion for each notice, present a written request that the contents of the dispute certification notice be amended to the mediator who presided over the alternative dispute resolution proceeding.
(C) If a written request to amend the dispute certification notice is presented to the mediator before the expiration of the five (5) business day period provided in subdivision (d)(3)(B), the mediator shall, within three (3) business days after the initial five (5) business day period ends, issue an amended dispute certification notice. If no amended dispute certification notice is signed by the mediator and distributed to the parties, the initial dispute certification notice distributed to the parties pursuant to subdivision (d)(3) shall remain in effect.
(e) A workers' compensation mediator shall not be an advocate for either party and shall mediate all issues without favor or presumption for or against either party. A mediator shall have no authority to order the provision of workers' compensation benefits.
(f) Any person employed as a workers' compensation mediator shall not engage in mediation, litigation, or determination of workers' compensation claims outside of the workers' compensation mediator's duties as a workers' compensation mediator.
(g) If, following a request by the mediator, a party fails to produce documents, to cooperate in scheduling mediation, or to provide a representative authorized to settle a matter in attendance at mediation, then the mediator may issue a dispute certification notice and include a statement detailing the party's failure to cooperate, produce documents or to ensure attendance of a representative authorized to settle the claim. On the motion of either party or on the workers' compensation judge's motion, a workers' compensation judge is authorized, but not required, to hold a hearing on the failure to produce documents requested by the mediator, to cooperate in scheduling and to provide a representative who possessed settlement authority. If the workers' compensation judge determines that the failure lacked good cause or resulted from bad faith, then the workers' compensation judge may assess the offending party who failed to take the requested action with attorney's fees and costs related only to the mediation and the hearing. The administrator is authorized to promulgate rules to effectuate the purposes of this subsection (g) in accordance with the Uniform Administrative Procedures Act.
There is created the court of workers' compensation claims in the bureau of workers' compensation, which shall have original and exclusive jurisdiction over all contested claims for workers' compensation benefits when the date of the alleged injury is on or after July 1, 2014. The administrator shall have sole administrative authority over the court including authority to appoint, and to remove, workers' compensation judges. The administrator shall promulgate rules and regulations consistent with this chapter in order to fulfill the purposes of this chapter in an orderly and efficient manner.
(1) On or after July 1, 2013, the administrator shall appoint qualified individuals to serve as workers' compensation judges. Workers' compensation judges shall be Tennessee licensed attorneys in good standing with at least five (5) years experience in workers' compensation matters and shall be at least thirty (30) years of age. Workers' compensation judges shall be executive service employees of the state as defined in § 8-30-103.
(2)
(A) In making the initial appointments, the administrator shall have authority to shorten and stagger the terms of workers' compensation judges to ensure that the terms of no more than seven (7) workers' compensation judges shall terminate at the same time.
(B) Except for the initial appointment of candidates to fill the position of workers' compensation judge, upon appointment, each workers' compensation judge shall serve a term of six (6) years. Terms shall begin on July 1 and expire six (6) years later, on June 30. No workers' compensation judge shall serve more than three (3) full terms, and service of more than half of a term shall constitute service of one (1) full term. If a sitting workers' compensation judge is removed or resigns, a vacancy shall exist in the office, which shall be filled for the unexpired term by a person meeting the requirements of subdivision (a)(1).
(C) Any workers' compensation judge may be reappointed by the administrator upon expiration of the term.
(D) If a workers' compensation judge leaves the position prior to the expiration of the term, the administrator shall appoint an individual meeting the qualifications of this section to serve the unexpired portion of the term. The individual may be reappointed by the administrator upon expiration of the term. Any workers' compensation judge appointed to serve less than a full term to fill a vacancy created by the removal or resignation of a sitting workers' compensation judge shall be eligible to serve an additional three (3) full terms.
(3) It shall be the duty of a workers' compensation judge to hear and determine claims for compensation, to approve settlements of claims for compensation, to conduct hearings, and to make orders, decisions, and determinations. Workers' compensation judges shall conduct hearings in accordance with the Tennessee Rules of Civil Procedure, the Tennessee Rules of Evidence, and the rules adopted by the bureau and shall have authority to swear in witnesses at hearings and other court of workers' compensation claims functions, to issue subpoenas, to compel obedience to their judgments, orders, and process through the assessment of a penalty as provided in § 50-6-118, and to conduct judicial settlement conferences.
(4) In any claim for workers' compensation death benefits, a workers' compensation judge shall have the authority to appoint a guardian ad litem consistent with § 37-1-149 and Tennessee Supreme Court Rule 40. For purposes of this section, “guardian ad litem” means a lawyer appointed by the court to advocate for the best interests of a child and to ensure that the child's concerns and preferences are effectively advocated. The court shall have authority to award a reasonable fee for the services provided by the guardian ad litem, which shall be paid by the employer.
(b)
(1) On or after July 1, 2013, the administrator shall appoint a qualified individual to serve as chief judge of the court of workers' compensation claims. The individual shall be a Tennessee licensed attorney in good standing with at least seven (7) years experience in workers' compensation matters. The chief judge shall be an executive service employee of the state as defined in § 8-30-103.
(2) In addition to performing the duties required of a workers' compensation judge by subdivision (a)(3), it shall be the duty of the chief judge, under the rules adopted by the bureau, to administer the day to day operations of the court of workers' compensation claims and supervise the activities of workers' compensation judges.
(3) Upon appointment, the chief judge shall serve a term of six (6) years and may be reappointed by the administrator upon expiration of a term if the chief judge has served competently, responsibly, and impartially. Service of more than half of a six-year term constitutes service of one (1) full term. A chief judge of the court of workers' compensation claims appointed to serve less than a full term to fill a vacancy is eligible to serve up to an additional three (3) full terms.
(c) Unless otherwise provided by law or clearly inapplicable in context, the Tennessee Code of Judicial Conduct, Rule 10, Canons 1-4, of the Rules of the Tennessee Supreme Court, and any subsequent amendments thereto, shall apply to all workers' compensation judges. However, any complaints regarding the conduct of a workers' compensation judge under the code shall be made to the chief workers' compensation judge. Any complaints about the chief judge shall be made to the administrator.
(d) The administrator shall have authority to remove a workers' compensation judge or the chief judge during an unexpired term for the commission of any of the judicial offenses provided in § 17-5-301(j)(1).
(e) Any person appointed to serve as a workers' compensation judge or as the chief judge shall be required to take an oath or affirmation to support the constitutions of the United States and of this state, and to administer justice without respect of persons, and impartially to discharge all the duties incumbent upon a judge to the best of the judge's skill and ability. The governor, an active or retired Tennessee judge or chancellor, or an active or retired judge of the court of workers' compensation claims or workers' compensation appeals board may administer the oath.
(f) No workers' compensation judge or chief judge shall practice law, or perform any of the functions of attorney or counsel, in any of the courts of this state, except in cases in which the judge may have been employed as counsel previous to the appointment as a workers' compensation judge or chief judge. A newly appointed workers' compensation judge or chief judge can practice law only in an effort to wind up the judge's practice and must end the practice of law as soon as reasonably possible and in no event longer than one hundred eighty (180) days after assuming the position of workers' compensation judge or chief judge.
(g) When considering the appointment of an individual to serve as a workers' compensation judge or as the chief judge, the administrator shall consider comment from the members of the business, labor and legal communities concerning the suitability of the individual for appointment as a workers' compensation judge or the chief judge.
(h) On or after July 1, 2013, the administrator shall appoint a qualified individual to serve as the clerk of the court of workers' compensation claims whose duty it shall be to perform all the clerical functions of the court. The clerk of the court of workers' compensation claims shall be an executive service employee of the state as defined in § 8-30-103.
(i) The judges of the court of workers' compensation claims shall have execution authority as provided in title 26.
(a) Within sixty (60) days after issuance of a dispute certification notice by a workers' compensation mediator, a party seeking further resolution of disputed issues shall file a request for a hearing with the bureau, and the clerk of the court of workers' compensation claims shall issue notice to all parties identifying the judge to whom the claim has been assigned and the procedure for scheduling and preparing for a hearing.
(b)
(1) Unless permission has been granted by the assigned workers' compensation judge, only issues that have been certified by a workers' compensation mediator within a dispute certification notice may be presented to the workers' compensation judge for adjudication.
(2) Following the issuance of a dispute certification notice and assignment of the claim to a workers' compensation judge, the workers' compensation judge may grant permission for parties to present issues that have not been certified by a workers' compensation mediator only upon finding that:
(A) The parties did not have knowledge of the issue prior to issuance of the dispute certification and could not have known of the issue despite reasonable investigation; and
(B) Prohibiting presentation of the issue would result in substantial injustice to the petitioning party.
(c) Hearings of disputes shall be conducted in the following manner:
(1) All hearings shall be conducted within the timeframes adopted by the administrator through the promulgation of rules. The Tennessee Rules of Evidence and the Tennessee Rules of Civil Procedure shall govern proceedings at all hearings before a workers' compensation judge unless an alternate procedural or evidentiary rule has been adopted by the administrator. Whenever the administrator has adopted an alternate procedural or evidentiary rule that conflicts with the Tennessee Rules of Civil Procedure or the Tennessee Rules of Evidence, the rule adopted by the administrator shall apply;
(2) Following the hearing, the workers' compensation judge shall issue a compensation order that sets forth findings of fact and conclusions of law, and, if appropriate, an order for the payment of benefits under the workers' compensation law. The workers' compensation judge shall note the date of entry on the order and a copy of the order shall be distributed to the parties in accordance with procedures adopted by the administrator;
(3) If a party who has filed a request for hearing files a notice of nonsuit of the action, either party shall have ninety (90) days from the date of the order of dismissal to institute an action for recovery of benefits under this chapter;
(4) All hearings before the workers' compensation judge shall be open to the public. The parties may provide a court reporter for the preparation of a record;
(5) The testimony of any witness may be taken by deposition according to the Tennessee Rules of Civil Procedure or may be taken before the workers' compensation judge. No costs shall be charged, taxed or collected by the workers' compensation judge for the appearance of witnesses except fees for witnesses who testify under subpoena. The witnesses shall be allowed the same fee for attendance and mileage as is fixed by law in civil actions;
(6) Unless the statute provides for a different standard of proof, at a hearing the employee shall bear the burden of proving each and every element of the claim by a preponderance of the evidence;
(7) There shall be a presumption that the findings and conclusions of the workers' compensation judge are correct, unless the preponderance of the evidence is otherwise. The decision of the workers' compensation judge shall become final thirty (30) days after the workers' compensation judge enters a compensation order, unless a party in interest seeks an appeal of the decision from the workers' compensation appeals board pursuant to this chapter;
(8) The workers' compensation judge may, in his discretion, assess discretionary costs including reasonable fees for depositions of medical experts against the employer upon adjudication of the employee's claim as compensable;
(9) After an order entered by a workers' compensation judge has become final, the parties subject to the order shall have five (5) business days after all appeals are exhausted to comply with the order or the noncompliant parties shall be subject to penalization as provided by § 50-6-118;
(10) In any claim where the employee has suffered a catastrophic injury, the workers' compensation judge assigned to the claim shall have discretion to order that the claim be heard on an expedited basis. If the assigned workers' compensation judge orders an expedited hearing of the claim, the claim shall be given priority over all cases on the workers' compensation judge's trial docket with the exception of any other claims that the workers' compensation judge has previously ordered to be heard on an expedited basis under this subdivision (c)(10).
(d) Hearings of disputes on an expedited basis shall be conducted in the following manner:
(1) Upon motion of either party made at any time after a dispute certification notice has been issued by a workers' compensation mediator, a workers' compensation judge may, at the judge's discretion, hear disputes over issues provided in the dispute certification notice concerning the provision of temporary disability or medical benefits on an expedited basis and enter an interlocutory order upon determining that the injured employee would likely prevail at a hearing on the merits. A copy of the motion shall be served by the moving party on all other parties to the claim in accordance with procedures adopted by the administrator;
(2) A workers' compensation judge is not required to hold a full evidentiary hearing before issuing an interlocutory order for temporary disability or medical benefits;
(3) If temporary disability or medical benefits are ordered, the employer shall have seven (7) business days to comply with the order or to request an appeal from the workers' compensation appeals board. Unless modified by the workers' compensation appeals board following an appeal or unless a subsequent order to modify an interlocutory order for temporary disability or medical benefits is issued by the workers' compensation judge presiding over the claim, the interlocutory order shall remain in effect pending conclusion of the matter by hearing according to the procedure provided in subsection (c);
(4) If a motion for temporary disability or medical benefits is denied on the basis that the claim is not compensable, the proceeding shall continue according to the procedure provided in subsection (c) unless the employee files a request for an appeal to the workers' compensation appeals board. At any time after the employee has exhausted the procedures for seeking an appeal from the workers' compensation appeals board, as provided in this chapter, the workers' compensation judge may entertain an appropriate motion from the employer for dismissal of the claim.
(e) All discovery disputes, including motions to compel and for protective order, shall be adjudicated upon the review of written motions and affidavits. A workers' compensation judge may, in the judge's discretion, convene a hearing on a discovery dispute only upon a finding that good cause to convene a hearing exists.
(f) The failure of any party to comply in a timely manner with an interlocutory or final order issued by a workers' compensation judge may result in the assessment of a penalty as provided in § 50-6-118.
(g) The administrator shall have authority to assess filing fees sufficient to offset the cost of administering this chapter.
(h) Except as otherwise provided in § 50-6-118, no order issued by a workers' compensation judge shall be subject to judicial review pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
(a) The interested parties shall have the right to settle all matters of compensation between themselves, but all settlements shall be reduced to writing and shall be approved by a judge of the court of workers' compensation claims before they are binding on either party. It shall be the duty of the judge of the court of workers' compensation claims to whom any proposed settlement is presented for approval under this chapter, to examine the proposed settlement to determine whether the employee is receiving, substantially, the benefits provided by this chapter. Upon approving the settlement, a judgment shall be rendered on the settlement by the court of workers' compensation claims and duly entered by the clerk. The cost of the proceeding shall be borne by the employer. In all cases where the settlement proceedings or any other court proceedings for workers' compensation under this chapter involve a subsequent injury wherein the employee would be entitled to receive or is claiming compensation from the subsequent injury and vocational recovery fund provided for in § 50-6-208, the administrator shall be made a party defendant to the proceedings in an action filed by either the employer or the injured employee, and an attorney representing the bureau under the supervision of the attorney general and reporter shall represent the administrator in the proceeding. The court of workers' compensation claims, by its decree, shall determine the right of the employee to receive compensation from the fund.
(b) A workers' compensation judge shall approve or reject settlements submitted to the bureau within three (3) business days after the settlement has been received by the bureau and assigned to a workers' compensation judge for consideration.
(c) In approving settlements, a workers' compensation judge shall consider all pertinent factors and if the injured employee is not represented by counsel, then the workers' compensation judge shall thoroughly inform the employee of the scope of benefits available under this chapter and the employee's rights and the procedures necessary to protect those rights.
(d) Nothing in this section shall be construed to prohibit the parties from compromising and settling the issue of future medical benefits at any time; provided, that the settlement agreement is approved by a judge of the court of workers' compensation claims, and includes a provision confirming that the employee has been informed of the potential consequences of the settlement, if any, with respect to medicare and TennCare benefits and liabilities. Notwithstanding any other provision of this chapter, an employee who is determined to be permanently and totally disabled shall not be allowed to compromise and settle the employee's rights to future medical benefits.
(e) Notwithstanding any other provision of this section, if there is a dispute between the parties as to whether a claim is compensable, or as to the amount of compensation due, the parties may settle the matter without regard to whether the employee is receiving substantially the benefits provided by this chapter; provided, that the settlement is determined by a workers' compensation judge to be in the best interest of the employee.
(f) No party may settle a claim for permanent disability benefits unless the settlement agreement has been approved by a workers' compensation judge. Any settlement agreement not approved pursuant to this section is void.
(A) For injuries occurring on or after July 1, 2004, but before July 1, 2014, in cases in which an injured employee is eligible to receive any permanent partial disability benefits either for body as a whole or for schedule member injuries, except schedule member injuries specified in § 50-6-207(3)(A)(ii)(a)-(l), (n), (q), and (r), and the pre-injury employer returns the employee to employment at a wage equal to or greater than the wage the employee was receiving at the time of the injury, the maximum permanent partial disability benefits that the employee may receive is one and one-half (1 ½) times the medical impairment rating determined pursuant to [former] § 50-6-204(d)(3). In making the determinations, the court shall consider all pertinent factors, including lay and expert testimony, the employee's age, education, skills and training, local job opportunities and capacity to work at types of employment available in claimant's disabled condition.
(B)
(i) If an injured employee receives benefits for body as a whole injuries pursuant to subdivision (a)(1)(A) and the employee is subsequently no longer employed by the pre-injury employer at the wage specified in subdivision (a)(1)(A) within four hundred (400) weeks of the day the employee returned to work for the pre-injury employer, the employee may seek reconsideration of the permanent partial disability benefits. Employees who continue in their employment after a reduction in pay or a reduction in hours due to economic conditions shall not be entitled to reconsideration of their claims under this section if the reduction in pay or reduction in hours affected at least fifty percent (50%) of all hourly employees operating at or out of the same location. This provision does not apply to or include employees involved in layoffs, closures or a termination of business operations.
(ii) If an injured employee receives benefits for schedule member injuries pursuant to subdivision (a)(1)(A), and the employee is subsequently no longer employed by the pre-injury employer at the wage specified in subdivision (a)(1)(A), the employee may seek reconsideration of the permanent partial disability benefits. The right to seek the reconsideration shall extend for the number of weeks for which the employee was eligible to receive benefits under § 50-6-207, beginning with the day the employee returned to work for the pre-injury employer. Employees who continue in their employment after a reduction in pay or a reduction in hours due to economic conditions shall not be entitled to reconsideration of their claims under this section if the reduction in pay or reduction in hours affected at least fifty percent (50%) of all hourly employees operating at or out of the same location. This provision does not apply to or include employees involved in layoffs, closures or a termination of business operations.
(iii) Notwithstanding this subdivision (a)(1)(B), under no circumstances shall an employee be entitled to reconsideration when the loss of employment is due to either:
(a) The employee's voluntary resignation or retirement; provided, however, that the resignation or retirement does not result from the work-related disability that is the subject of such reconsideration; or
(b) The employee's misconduct connected with the employee's employment.
(iv) To seek reconsideration pursuant to subdivision (a)(1)(B)(i) or (a)(1)(B)(ii), the employee shall first request a benefit review conference within one (1) year of the date on which the employee ceased to be employed by the pre-injury employer. If the parties are not able to reach an agreement regarding additional permanent partial disability benefits at the benefit review conference, the employee shall be entitled to file a complaint seeking reconsideration in a court of competent jurisdiction within ninety (90) days of the date of the benefit review conference. Any settlement or award of additional permanent partial disability benefits pursuant to reconsideration shall give the employer credit for prior permanent partial disability benefits paid to the employee. Any new settlement or award regarding additional permanent partial disability benefits remains subject to the maximum established in [former] subdivision (a)(2) and shall be based on the medical impairment rating that was the basis of the previous settlement or award.
(v) Notwithstanding any other provision of law to the contrary, an employee shall not be permitted to waive or forfeit, and the parties shall not be permitted to compromise and settle, the employee's rights to reconsideration pursuant to this section.
(C)
(i) Notwithstanding any other law to the contrary, for injuries occurring on or after July 1, 2009, but before July 1, 2014, if an injured employee receives permanent partial disability benefits for body as a whole injuries or if the injured employee receives permanent partial disability benefits for schedule member injuries pursuant to subdivision (a)(1)(A) and the pre-injury employer is sold or acquired subsequent to the receipt of the permanent partial disability benefits, then the injured employee shall not be entitled to seek reconsideration:
(a) Provided, that the injured employee continues to be employed by the successor employer at the same or higher pay; or
(b) If the employee declines an offer of employment with the successor employer at the same or higher pay.
(ii) Notwithstanding subdivision (a)(1)(C)(i), an injured employee shall be entitled to seek reconsideration:
(a) From the successor employer within four hundred (400) weeks of the day the employee returned to work for the pre-injury employer, if the injured employee received permanent partial disability benefits for body as a whole injuries from the pre-injury employer pursuant to subdivision (a)(1)(A) and the injured employee is no longer employed by the successor employer at the same or higher pay; or
(b) From the successor employer within the number of weeks for which the employee was eligible to receive benefits from the pre-injury employer under § 50-6-207, to be calculated from the day the employee returned to work for the pre-injury employer, if the injured employee received permanent partial disability benefits for schedule member injuries from the pre-injury employer pursuant to subdivision (a)(1)(A) and the injured employee is no longer employed by the successor employer at the same or higher pay.
(iii) Any additional permanent partial disability benefits to which the injured employee is entitled pursuant to subdivision (a)(1)(C)(ii) shall be paid by the successor employer or the insurance carrier for the successor employer.
(iv) If an injured employee is entitled to seek reconsideration pursuant to this subdivision (a)(1)(C), then the employee shall first request a benefit review conference within one (1) year of the date on which the employee ceased to be employed by the successor employer. If the parties are not able to reach an agreement regarding additional permanent partial disability benefits at the benefit review conference, then the employee shall be entitled to file a complaint against the successor employer seeking reconsideration in a court of competent jurisdiction within ninety (90) days of the date of the benefit review conference. Any settlement or award of additional permanent partial disability benefits pursuant to reconsideration shall give the successor employer credit for the prior permanent partial disability benefits paid by the pre-injury employer to the employee. Any new settlement or award regarding additional permanent partial disability benefits shall be subject to the maximum established in subdivision (a)(2).
(2)
(A) For injuries arising on or after July 1, 2004, but before July 1, 2014, in cases in which the pre-injury employer did not return the injured employee to employment at a wage equal to or greater than the wage the employee was receiving at the time of the injury, the maximum permanent partial disability benefits that the employee may receive for body as a whole and schedule member injuries may not exceed six (6) times the medical impairment rating determined pursuant to [former] § 50-6-204(d)(3). The maximum permanent partial disability benefits to which the employee is entitled shall be computed utilizing the appropriate maximum number of weeks as set forth in § 50-6-207 for the type of injury sustained by the employee. In making such determinations, the court shall consider all pertinent factors, including lay and expert testimony, the employee's age, education, skills and training, local job opportunities, and capacity to work at the types of employment available in claimant's disabled condition.
(B) If the court awards a permanent partial disability percentage that equals or exceeds five (5) times the medical impairment rating, the court shall include specific findings of fact in the order that detail the reasons for awarding the maximum permanent partial disability.
(b)
(1) It is the intent of the general assembly to adopt as public policy for this state specific provisions related to workers' compensation to preserve the tradition of legal immigration while seeking to close the door to illegal workers in this state and to encourage the employers of this state to comply with federal immigration laws in the hiring or continued employment of individuals who are not eligible or authorized to work in the United States.
(2) The general assembly takes notice that federal law prohibits a pre-injury employer from permitting an employee to return to work following the work-related injury when the employee is not eligible or authorized to work in the United States pursuant to federal immigration laws; and, therefore, the general assembly adopts the following as the compensation to which such an employee is entitled for permanent partial disability benefits:
(A) For injuries occurring on or after July 1, 2009, but before July 1, 2014, in cases in which an injured employee is eligible to receive any permanent partial disability benefits either for body as whole or schedule member injuries, the maximum permanent partial disability benefits that the employee may receive is up to one and one-half (1 ½) times the medical impairment rating determined pursuant to [former] § 50-6-204(d)(3); provided, that the employer did not knowingly hire the employee at a time when the employee was not eligible or authorized to work in the United States under federal immigration laws. It shall be presumed the employer did not knowingly hire the employee at a time when the employee was not eligible or authorized to work in the United States under federal immigration laws if the employer can show, by a preponderance of the evidence, that the employer in good faith complied with the employment eligibility and identity verification requirements of federal law when the employee was hired:
(i) By ensuring the employee completed Section 1 of Form I-9 at the time the employee started to work;
(ii) By reviewing the documents provided by the employee to establish the employee's identity and eligibility to work;
(iii) By making a good faith determination that the documents presented by the employee for employment and identity authorization appeared to relate to the employee, appeared to be genuine and that the documents provided were in the list of acceptable documents on Form I-9; and
(iv) By reverifying the employment eligibility of the employee upon the expiration of the employee's work authorization and by completing Section 3 of Form I-9, if applicable;
(B) The presumption established in subdivision (b)(2)(A) may be rebutted if the employee can show, by a preponderance of the evidence, that the employer had actual knowledge of the ineligible or unauthorized status of the employee at the time of hire or at the time of the injury, or both. If the presumption is rebutted, a sum of up to five (5) times the medical impairment rating determined by the authorized treating physician pursuant to [former] § 50-6-204(d)(3) shall be paid in the following manner:
(i) A sum up to one and one-half (1 ½) times the medical impairment rating shall be paid in a lump sum to the employee, the sum to be paid by the employer's insurer; and
(ii) An additional sum up to three and one-half (3 ½) times the medical impairment rating shall be paid by the employer, in a lump sum into, and shall become a part of, the uninsured employers fund created by § 50-6-801; provided, that the sum shall not be paid by the employer's insurer.
(1) This subsection (a) shall apply to injuries that occur on or after July 1, 2014.
(2) For injuries that occur during the time period set out in subdivision (a)(1), in extraordinary cases where the employee is eligible for increased benefits under § 50-6-207(3)(B), the employee may receive disability benefits of sixty-six and two-thirds percent (66 ⅔%) of the employee's pre-injury average weekly wage or salary for a period not to exceed the two hundred seventy-five (275) weeks inclusive of the benefits provided to the employee under § 50-6-207(3)(A). Benefits may be awarded pursuant to this subsection (a), in lieu of the increased benefits for which the employee is eligible under § 50-6-207(3)(B), if the presiding workers' compensation judge first determines based on clear and convincing evidence that limiting the employee's recovery to the benefits provided by § 50-6-207(3)(B) would be inequitable in light of the totality of the circumstances and the presiding workers' compensation judge makes specific, documented findings that as of the date of the award or settlement the three (3) following facts concerning the employee are true:
(A) The employee has been assigned an impairment rating of at least ten percent (10%) to the body as whole, that has been determined according to the AMA guides as defined by § 50-6-102, by the authorized treating physician;
(B) The authorized treating physician has certified on a form provided by the bureau that due to the permanent restrictions on activity the employee has suffered as a result of the injury the employee no longer has the ability to perform the employee's pre-injury occupation. The authorized treating physician's certification pursuant to this subdivision (a)(2)(B) shall have a presumption of correctness that may be overcome by the presentation of contrary clear and convincing evidence; and
(C) The employee is not earning an average weekly wage or salary that is greater than or equal to seventy percent (70%) of the employee's pre-injury average weekly wage or salary.
(b) For those injuries that occur on or after July 1, 2004 but prior to July 1, 2014, and notwithstanding any provision of this chapter to the contrary and in appropriate cases where the employee is eligible to receive the maximum permanent partial disability award under § 50-6-241(a)(1)(B) or (a)(2), the employee may receive disability benefits not to exceed the appropriate maximum number of weeks as set forth in § 50-6-207 for the type of injury sustained by the employee. In those cases, the court or workers' compensation specialist shall make specific documented findings, supported by clear and convincing evidence, that as of the date of the award or settlement, at least three (3) of the following facts concerning the employee are true:
(1) The employee lacks a high school diploma or general equivalency diploma or the employee cannot read or write on a grade eight (8) level;
(2) The employee is fifty-five (55) years of age or older;
(3) The employee has no reasonably transferable job skills from prior vocational background and training; and
(4) The employee has no reasonable employment opportunities available locally considering the employee's permanent medical condition.
(c) Subsections (a) and (b) shall not apply to injuries sustained on or after July 1, 2009, by an employee who is not eligible or authorized to work in the United States under federal immigration laws.
(a) The bureau shall develop a statistical data form for collecting data relevant to assessing the workers' compensation system. In developing or altering the form, the bureau shall seek written comment from the advisory council on workers' compensation and the administrative office of the courts. The administrator shall submit the proposed form to the commerce and labor committee of the senate, and the commerce committee of the house of representatives, together with any written comments of the advisory council on workers' compensation and the administrative office of the courts, prior to submission of a proposed rule to the attorney general and reporter. The administrator shall promulgate the form by rule, pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
(b)
(1) A statistical data form must be filed for every workers' compensation matter that is concluded by trial or settlement. Settlement includes a settlement for initial benefits, a settlement for increased benefits, and a settlement for closure of future medical benefits that remained open pursuant to a prior order, even if a statistical data form was filed at the time of submission of the prior order.
(2) The bureau shall seek written comment on substantive changes to the statistical data form from the advisory council on workers' compensation. The administrator shall submit the proposed form to the commerce and labor committee of the senate and the commerce committee of the house of representatives, together with any written comments of the advisory council on workers' compensation, thirty (30) days prior to submission of a proposed rule to the attorney general and reporter.
(3) If the administrator or the administrator's designee determines that an employer or employer's agent fails to fully complete and timely file the statistical data form within ten (10) business days of the date of a compensation hearing order, the bureau may assess a civil penalty against the offending party of not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000) per violation.
(c) The clerk of the court shall forward to the administrator of the bureau of workers' compensation, on or before the tenth day of each calendar month, all workers' compensation statistical data forms filed with the clerk during the preceding calendar month.
(d) In cases involving a workers' compensation settlement that is submitted to the bureau for approval, the statistical data form required by this section shall also be completed and submitted to the bureau at the time of the submission of the settlement for approval. A settlement approved by the bureau shall not become final until the statistical data form required by this section is fully completed and received by the bureau.
(e) It is the responsibility of the employer or the employer's agent to complete and file the form required by this section, contemporaneously with the filing of the final order or settlement. The employee and any agent of the employee are required to cooperate with the employer in completing this form.
(f)
(1) If the administrator or the administrator's designee determines that an insurer or self-insured employer fails to complete substantially and file the statistical data forms with such frequency as to indicate a general business practice, the administrator may assess a monetary penalty against the insurance company for the employer or against the employer, if self insured. The amount of the monetary penalty shall not exceed one hundred dollars ($100). For the purposes of this subsection (f), “general business practice” means an insurer or self-insured employer fails to complete substantially and file a statistical data form more than five (5) times.
(2) No monetary penalty may be assessed by the administrator, or the administrator's designee, with respect to a form that has been filed with the bureau of workers' compensation for more than ninety (90) days. No monetary penalty may be assessed for a statistical data form that was not filed with the court clerk more than ninety (90) days from the date of entry of the final order of the court. No monetary penalty may be assessed due to the failure to provide information on the statistical data form that is solely within the knowledge of the employee or due solely to the failure of the employee to sign the form.
(3) An insurance company or self insured employer assessed a monetary penalty by the administrator pursuant to this subsection (f), may appeal the penalty under the Uniform Administrative Procedures Act. The administrator, or an agency member appointed by the administrator, shall have the authority to hear as a contested case an administrative appeal of any monetary penalty assessed pursuant to this subsection (f).
(a) If following a civil action in a workers' compensation case filed pursuant to § 50-6-225, the court enters a judgment or decree that includes multiple findings with separate awards of payment to the employee, the following shall apply:
(1) If the employer, insurer or employee appeals one (1) or more of the findings but not all, any payments owed to the employee as the result of a finding not appealed shall be due and payable to the employee when the time for appealing the judgment or decree has expired;
(2) If the employer, insurer or employee appeals more than one (1) of the findings and the supreme court grants permission to appeal as to at least one (1) of the findings appealed but not all, any payments owed to the employee as the result of a finding not appealed or for which permission to appeal was not granted shall be due and payable to the employee when the time for appealing the judgment or decree has expired.
(b)
(1) When the time for filing an appeal has expired under subdivision (a)(1), the court, unless in its discretion it determines otherwise, shall enter final judgment pursuant to Rule 54.02 of the Rules of Civil Procedure as to all findings not appealed.
(2) When the time for filing an appeal has expired under subdivision (a)(2), the supreme court, unless in its discretion it determines otherwise, shall issue a mandate pursuant to Rule 42 of the Rules of Appellate Procedure as to all findings for which permission to appeal was not granted.
(a) An occupational disease that an employee had on March 12, 1947, shall not be covered under this chapter. An employee has an occupational disease within the meaning of this chapter if the disease or condition has developed to such an extent that it can be diagnosed as an occupational disease. In every suit for compensation benefits, the burden shall be on the employee to prove that the employee did not have, as of that date, the occupational disease for which the employee is seeking compensation.
(b) In considering whether an employee has the occupational disease of coal worker's pneumoconiosis and is totally disabled or dies from coal worker's pneumoconiosis, all the presumptions, criteria and standards contained in or promulgated by reason of the federal Coal Mine Health and Safety Act of 1969 (Pub. L. No. 91-173, compiled in 30 U.S.C. § 901 et seq.), specified as the basis for determining eligibility of applicants for benefits because of the disease or its effects shall be used and be applicable under this chapter, and where in a proceeding under this chapter for benefits it is determined the employee or the employee's dependents would be entitled to benefits under the federal Coal Mine Health and Safety Act of 1969, and the Black Lung Benefits Act of 1972 (Pub. L. No. 92-303, compiled in 30 U.S.C. § 901 et seq.), the employee or the employee's dependents by reason of the determination shall be considered totally disabled from coal worker's pneumoconiosis and its effects, under this chapter the same as if the employee, or the employee's dependents, establishes the right to recover benefits based upon a total disability from coal worker's pneumoconiosis, or death by reason of coal worker's pneumoconiosis under the laws of this state.
(1) When the employer and employee are subject to this chapter, the partial or total incapacity for work or the death of an employee resulting from an occupational disease as defined in [former] § 50-6-301 [Applicable only to injuries occurring prior to July 1, 2014. See the Compiler's Notes.], shall be treated as the happening of an injury by accident or death by accident, and the employee, or in case of the employee's death, the employee's dependents, shall be entitled to compensation as provided in this chapter.
(2) An employee who has an occupational disease shall be entitled to the same hospital, medical and miscellaneous benefits as an employee who has a compensable injury by accident, and, in the event of death, the same funeral benefit shall be paid as in the case of death from a compensable accident.
(b)
(1) An employee totally disabled due to coal workers' pneumoconiosis shall be paid benefits during disability as provided for by the federal Coal Mine Health and Safety Act of 1969 (30 U.S.C. § 901 et seq.).
(2) In accordance with the federal Coal Mine Health and Safety Act of 1969, if the employee has one (1) or more dependents, the payments shall be increased fifty percent (50%) of such payments for the first dependent, seventy-five percent (75%) for two (2) dependents, and one hundred percent (100%) for three (3) or more dependents.
(3) In case of death of an employee receiving benefits under this chapter, benefits shall be paid to that employee's surviving spouse and any dependents in the same manner provided in the federal Coal Mine Health and Safety Act of 1969, as applicable to employees suffering from coal workers' pneumoconiosis.
(4) Benefits paid under this subsection (b) shall not be subject to the maximum compensation limitations set forth in §§ 50-6-205, 50-6-207(1), (3) and (4), 50-6-209, 50-6-210(e)(10) or any other sections of this chapter, but the maximum compensation limitations shall be controlled exclusively by the maximum compensation benefits and limitations established under the federal Coal Mine Health and Safety Act of 1969, as applicable to employees suffering from coal workers' pneumoconiosis.
(5) The minimum compensation limitations for employees suffering from coal workers' pneumoconiosis shall be no less than those set forth in the federal Coal Mine Health and Safety Act of 1969.
When an employee has an occupational disease, the employer in whose employment the employee was last injuriously exposed to the hazards of the disease, and the employer's insurance carrier, if any, at the time of the exposure, shall alone be liable, for the occupational disease, without right to contribution from any prior employer or insurance carrier.
(a) Within thirty (30) days after the first distinct manifestation of an occupational disease, the employee, or someone in the employee's behalf, shall give written notice thereof to the employer in the same manner as is provided in the case of a compensable accidental injury.
(b) This section shall not apply to claims for total disability or death due to or resulting from an asbestos-related disease or coal worker's pneumoconiosis.
(a) The right to compensation for an occupational disease or a claim for death benefits as a result of an occupational disease shall be forever barred, unless a claim is initiated pursuant to § 50-6-203; provided, however, that the applicable time limitation period or periods shall commence as of the date of the beginning of the incapacity for work resulting from an occupational disease or upon the date death results from the occupational disease; provided, further, that if upon the date of the death of the employee the employee's claim has become barred, the claim of the employee's dependent or dependents shall likewise be barred, and in that case the claim shall be barred whether or not the employer gives the notice required by § 50-6-224(2) [Applicable only to injuries occurring prior to July 1, 2014. See the Compiler's Notes.].
(b) A claim for benefits or death due to coal worker's pneumoconiosis shall be timely filed if the claim is instituted pursuant to § 50-6-203 within three (3) years of the discovery of total disability or the date of death, as the case may be.
(1) When an employee, or prospective employee, though not incapacitated for work, is found to be affected by or susceptible to a specific occupational disease, the employee or prospective employee may, subject to the approval of the workers' compensation bureau of the department of labor and workforce development, be permitted to waive in writing compensation for any aggravation of the employee's or prospective employee's condition that may result from the employee's or prospective employee's working or continuing to work in the same or similar occupation for the same employer or for another employer; provided, that this provision shall not apply to specific occupational diseases on which waivers are prohibited by the federal Coal Mine Health and Safety Act of 1969 (30 U.S.C. § 901 et seq.).
(2) All provisions of this chapter, with respect to accidents shall be applicable to the coverage provided in this part for occupational diseases, except as otherwise provided in this part.
(b) When an employee or prospective employee has a prior history of heart disease, heart attack or coronary failure or occlusion, the employee or prospective employee may be permitted to waive in writing compensation from the employee's or prospective employee's employer or future employer for claims growing out of an aggravation or repetition of the condition, the waiver to be evidenced by filing with the administrator a written instrument to which shall be attached a copy of a medical statement giving the prior history of the condition, and in all those cases claims for workers' compensation benefits growing out of an aggravation or repetition of the condition by the employee or the employee's dependents shall be barred.
(c) No employer shall require the execution of a waiver by any employee who was at work on March 17, 1961, unless the employee subsequently suffers a heart condition.
(A) Every person, partnership, association, organization or corporation, whether organized under the laws of this or any other state or country, that has or may hereafter comply with the laws of this state and is authorized to write accident or indemnity insurance in this state shall be authorized and empowered to write workers' compensation insurance under the terms and provisions of this part, and likewise every reciprocal and mutual insurance association or corporation shall have the same privileges; provided, that any such entity offering workers' compensation insurance shall be required to offer medical benefits coverage for paid-on-call and volunteer firefighters.
(B) For purposes of this subdivision (a)(1), “volunteer firefighter” means any member or personnel of a fire department, volunteer fire department, rescue squad or volunteer rescue squad, including, but not limited to, a junior member, a board member or an auxiliary member of the department or squad.
(2) An entity offering workers' compensation insurance shall offer coverage for members of rescue squads on similar terms and conditions as coverage available to full-time paid firefighters or emergency medical services personnel.
(b)
(1) All insurance carriers provided for by this section shall be subject to a tax of four percent (4%) on premiums collected for workers' compensation insurance, and a surcharge of four-tenths of one percent (0.4%) of the premiums, the surcharge to be earmarked for the administration of the Tennessee Occupational Safety and Health Act, compiled in chapter 3 of this title, and this shall be in lieu of any other tax on premiums for the writing of the business of workers' compensation insurance now provided for by law.
(2) The surcharge of four-tenths of one percent (0.4%) on the tax on workers' compensation insurance premiums levied by this section shall not apply to any employer who employs ten (10) or fewer employees unless the employer is in the business of construction or manufacturing.
(c) Of the funds collected pursuant to subsection (b), a sum sufficient shall be allocated from and equal to an amount not greater than fifty percent (50%) of the revenues derived from the premium tax levied pursuant to this section, and shall be paid into the subsequent injury and vocational recovery fund created in § 50-6-208, to provide payments for the benefits provided in § 50-6-208.
(a) In determining classifications of risks and premiums relating to the classification, the insurer may include allowances of any character made to any employee, only when the allowances are in lieu of wages, and are specified as part of the wage contract.
(b) Before approving any workers' compensation loss cost filing made by the designated rate service organization pursuant to this part or title 56, the commissioner of commerce and insurance shall consult with the advisory council on workers' compensation concerning the filing. The council shall have sixty (60) days to provide written comment on the filing. The council shall meet to provide the comment. The commissioner of commerce and insurance shall approve, disapprove or modify the filing within ninety (90) days of receiving the filing. If the commissioner of commerce and insurance modifies the filing, the modification shall be within the range established by the recommendation of the rate service organization in its filing and the recommendation of the advisory council on workers' compensation. In instances when the commissioner of commerce and insurance modifies the filing, the rate service organization shall develop a plan that reflects the commissioner's modification, unless the organization appeals the modification pursuant to § 56-5-308. The commissioner shall report the action taken on the filing to the commerce and labor committee of the senate, and the commerce committee of the house of representatives and to the speakers of the senate and the house of representatives.
(c) Prior to the commissioner of commerce and insurance establishing the multiplier to be applied to the assigned risk plan, as provided in § 56-5-114(c), the commissioner shall provide notice of the intended action, including supporting rationale for the action, to the advisory council on workers' compensation. The council may, within fifteen (15) days of receipt of the notice, provide written comment and recommendation to the commissioner related to the intended action. After the fifteen-day period has expired, the commissioner shall establish the multiplier, by order, as provided in § 56-5-114(c).
(d) The commissioner of commerce and insurance shall report quarterly to the advisory council on workers' compensation concerning all workers' compensation filings made by the designated rate service organization received by the department of commerce and insurance that were not referred to the council as set out in subsection (b) since the last report.
(1) Every insurance company doing a workers' compensation business in this state shall furnish a bond running to the state in the sum of fifty thousand dollars ($50,000) with some surety company authorized to transact business in this state as surety, in the form approved by the commissioner of commerce and insurance, conditioned for the payment of compensation losses on policies issued by the company upon risks located in the state.
(2) Suit may be brought upon the bond by the bureau of workers' compensation for the use and benefit of any party or parties at interest.
(3) The annual license of the company shall not be issued or renewed until it has filed with the commissioner of commerce and insurance a bond as required in subdivision (a)(1).
(4) In lieu of the bond, a deposit of the same amount may be made with the state treasurer in the form of other security satisfactory to the commissioner of commerce and insurance.
(b) The commissioner may, in the commissioner's discretion, accept, in lieu of the bond required in subdivision (a)(1), a certificate from the commissioner of insurance or other corresponding official of the state in which the insurance company is organized and domiciled, that the company has on deposit in such state the sum of not less than one hundred thousand dollars ($100,000) in cash, or its equivalent, which deposit is for the protection of all of its policyholders, ratably.
(a) Every employer under and affected by this chapter, shall:
(1) Insure and keep insured the employer's liability under this chapter in some person or persons, association, organization or corporation authorized to transact the business of workers' compensation insurance in this state; or
(2) Possess a valid certificate of authority from the commissioner of commerce and insurance by furnishing satisfactory proof of the employer's financial ability to pay all claims that may arise against the employer under this chapter and guarantee the payment of the claims in the amount and manner and when due as provided for in this chapter.
(b)
(1) If the employer elects to proceed under subdivision (a)(2), the commissioner of commerce and insurance shall require the applicant to pay a nonrefundable application fee of five hundred dollars ($500) or in an amount the commissioner shall promulgate by rule.
(2) The commissioner of commerce and insurance shall require the applicant to file and maintain with the department of commerce and insurance the following:
(A)
(i) Security, in an amount to be determined by the commissioner of commerce and insurance, but not less than five hundred thousand dollars ($500,000), in any of the following forms, as specified herein: negotiable securities; a surety bond; a certificate of deposit; or a letter of credit;
(ii) The security, or a contract between the self-insured employer, a depository institution and the commissioner of commerce and insurance evidencing the security held in the depository institution for purposes of compliance with this section, shall be held by the commissioner of commerce and insurance and shall be conditioned to run solely and directly for the benefit of the employees of the self-insured employer. Any legal actions to enforce the payment of the security being held for purposes of compliance with this section may be brought by the commissioner of commerce and insurance, or, with the approval of the commissioner of commerce and insurance, the Tennessee self-insurers' guaranty association, or both, for the benefit of the employees of the self-insured employer;
(iii) The security held pursuant to this section may be used for the payment of any and all fees or costs required to administer the disbursement of the proceeds to or for the benefit of the employees;
(iv) The venue for any suit filed by the commissioner of commerce and insurance or the Tennessee self-insurers' guaranty association under this subdivision (b)(2) must be in Davidson County;
(v)
(a) Any security held for purposes of compliance with this section shall be held for a minimum of ten (10) years after the self-insured employer is no longer self-insured and the self-insured employer shall maintain the fair market value of security on deposit at not less than five hundred thousand dollars ($500,000), unless otherwise approved by the commissioner of commerce and insurance or the commissioner's designee;
(b) Any employer that is no longer self-insured pursuant to this section as of December 31, 2004, shall not be subject to subdivision (b)(2)(A)(v)(<em>a</em>);
(vi) All security, and contracts evidencing the security, filed with the commissioner of commerce and insurance shall be in a form substantively that has been previously approved by the commissioner of commerce and insurance. Any security that fails to meet any requirement under this section shall not be considered for purposes of determining a self-insurer's compliance with any of the security maintenance requirements of this section;
(vii) As used in this subdivision (b)(2)(A), “qualified United States financial institution” shall have the meaning assigned by § 56-2-209(a);
(viii) The commissioner of commerce and insurance may by rule establish requirements for securities posted pursuant to this subsection (b). These rules may also prescribe the various types and classes of securities that the commissioner of commerce and insurance will accept under this subsection (b);
(B)
(i) Evidence of the employer's financial ability to pay all claims that may arise against the employer in the form of an annual certified financial statement, including a statement of assets and liabilities and a statement of profit and loss, to be filed no later than the last day of the ninth month after the end of the employer's immediately preceding fiscal year;
(ii) The financial statement is to include a detailed accounting for reserves for losses outstanding incurred in connection with workers' compensation self-insurance. The employer's losses and adequacy of reserves shall be certified annually by an actuary qualified under rules established by the commissioner of commerce and insurance for the filing of statements by insurance companies.
(3)
(A) Filings pursuant to this subsection (b) shall be kept confidential by the commissioner of commerce and insurance and shall not be construed to be a public record pursuant to title 10, chapter 7.
(B) Notwithstanding subdivision (b)(3)(A), the commissioner of commerce and insurance may provide the filings received pursuant to this subsection (b) to the Tennessee self-insurers' guaranty association, which shall keep the filings and information in the filings confidential until made public by the commissioner.
(4) The commissioner of commerce and insurance may assess a civil penalty of one hundred dollars ($100) per day for each day any self-insured employer has failed to comply with any financial record filing requirement. The civil penalty assessed under this subdivision (b)(4) shall be cumulative and in addition to any other civil penalty or remedy available to the commissioner. No civil penalty shall be assessed against any political subdivision of the state.
(5) For employers electing to self-insure pursuant to subdivision (a)(2), the commissioner of commerce and insurance shall consider all available information when making the determination as to both the adequacy of all security deposits, letters of credit, negotiable securities, or bonds held by the commissioner and whether an employer has the ability to pay all claims that may arise.
(6) No employer shall self-insure its workers' compensation liabilities without a certificate of authority issued by the commissioner of commerce and insurance. It shall be unlawful for any employer to self-insure its liabilities for workers' compensation without first obtaining a duly issued certificate of authority from the commissioner of commerce and insurance. Whenever an employer has complied with subdivisions (a)(2) and (b)(2)(A) and (B), the commissioner of commerce and insurance, or the commissioner's designee, may issue to the employer a certificate of authority allowing the employer to self-insure under this section. Notice of this authorization shall be sent to the administrator of the bureau of workers' compensation.
(7) If an authorized self-insured employer fails to furnish the commissioner of commerce and insurance the requirements delineated in subdivisions (a)(2) and (b)(2)(A) and (B), or if the Tennessee self-insurers' guaranty association recommends revocation or suspension of an authorized self-insured employer's certificate of authority, then the commissioner may, after giving written notice and an opportunity for a hearing to the affected party or parties within thirty (30) days, suspend or revoke the certificate authorizing the employer to self-insure granted under this section. The commissioner may, without prior notice and if it appears in the commissioner's discretion that the continuation of the certificate would be clearly hazardous to the employees of the self-insurer or to the public generally, summarily suspend an authorized self-insurer's certificate before a hearing is commenced and in that event shall immediately notify the self-insurer, and the notice shall include a statement to the effect that the commissioner's action is subject to review. All hearings conducted under this section shall comply with the contested case provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
(8) Any hearing under this section shall be requested in writing by the self-insured employer within fifteen (15) days of receiving written notification from the commissioner of commerce and insurance or the commissioner's designee. In any proceeding in which the self-insured employer's certificate of authority is suspended or revoked, the self-insured employer shall pay all costs associated with the proceeding. The commissioner may serve a notice, order, petition or complaint in any action arising under this section by certified mail to the self-insured employer at the address of record in the files of the department. Notwithstanding any law to the contrary, service in the manner set forth in this subdivision (b)(8), shall be deemed to constitute actual service on the self-insured employer.
(9) The commissioner of commerce and insurance or the commissioner's designee shall immediately notify the administrator of the bureau of workers' compensation of any decision to suspend or revoke a certificate authorizing an employer to self-insure.
(10) The commissioner of commerce and insurance or the commissioner's designee has the authority to examine and investigate any self-insured employer whenever the commissioner deems it prudent to do so. The purposes and scope of the examinations and the commissioner's powers shall be set forth in title 56, chapter 1, part 4, pertaining to examinations of insurance companies.
(11) The commissioner of commerce and insurance may promulgate rules and regulations, including emergency rules and regulations, necessary for the administration of this section and shall conduct all rulemaking in accordance with the Uniform Administrative Procedures Act.
(c)
(1) With the permission of a trade or professional association board of directors, ten (10) or more employers of the same group may enter into agreements to pool their liabilities under this chapter for the purpose of qualifying as self-insurers. The trade or professional association shall have been in active existence in Tennessee for at least five (5) years and the association shall:
(A) Have a constitution or bylaws;
(B) Have members that support the association by regular payment of dues on an annual, semiannual, quarterly or monthly basis; and
(C) Be created in good faith for purposes other than that of creating workers' compensation self-insurer pools. The commissioner of commerce and insurance has the authority to promulgate rules and regulations deemed necessary to provide for the solvency, administration and enforcement of the pooling agreements. To the extent deemed necessary by the commissioner of commerce and insurance, each employer member of the approved group shall be classified as a self-insurer as otherwise provided in this chapter.
(2) Notwithstanding any other law or rule to the contrary, funds not needed for current obligations may be invested by the board of trustees in Tennessee securities as defined in § 56-4-210(a). The board of trustees of each workers' compensation pool shall adopt an investment policy. The policy shall address credit, quality of investments, maximum maturity of investments and other matters the board deems appropriate. Real estate investments must be undertaken with the approval of the commissioner of commerce and insurance.
(3)
(A) Each group of employers qualifying as self-insurers pursuant to this subsection (c) shall submit to the commissioner of commerce and insurance a statement of financial condition audited by an independent certified public accountant on or before the last day of the sixth month following the end of the group's fiscal year. A thirty-day extension of the financial statement filing requirement shall be granted by the commissioner upon receipt of a request, via certified mail, by a group. The request shall be submitted to the commissioner not less than thirty (30) days prior to the date the financial statement is due to be filed.
(B) Notwithstanding subdivision (c)(3)(A), a qualified self-insured trust that has entered into a self-insurance loss portfolio transfer agreement approved by the commissioner of commerce and insurance with an insurer licensed in this state pursuant to which all of the liabilities and obligations pooled by the group of employers of the self-insured trust for their workers' compensation and employers' liability losses, including all existing and incurred but not reported claims, is not required to annually submit a statement of financial condition audited by an independent certified public accountant; provided, that the commissioner of commerce and insurance has granted a request filed by the self-insured trust for exemption from the annual submission of an audited statement of financial condition.
(4)
(A) At the request of a group of employers qualifying as self-insurers pursuant to this subsection (c), the commissioner of commerce and insurance, in the commissioner's sole discretion, may grant additional thirty-day extensions to the financial statement filing requirements for acts of God, public enemies, fire, flood, storms or similar events constituting force majeure that cause the group to require more time to meet the filing requirements.
(B) The commissioner of commerce and insurance, after notice and an opportunity for a hearing, may revoke the certificate of approval of a group of employers qualifying as self-insurers pursuant to this subsection (c) if the group fails to comply with this subsection (c) or any rules promulgated under this subsection (c). In addition to or in lieu of revoking a certificate of approval, the commissioner may assess a civil penalty of one hundred dollars ($100) per day for failure to timely meet the filing requirements set forth in this subsection (c). All hearings under this subsection (c) shall be conducted pursuant to the Uniform Administrative Procedures Act.
(C) Financial statements filed pursuant to this subsection (c), individual member financial statements, work papers, notes, internal documents generated by the department of commerce and insurance or any other information obtained by or disclosed to the commissioner of commerce and insurance pursuant to this chapter or any regulations promulgated under this chapter, shall be confidential and shall not be disclosed to the public. This provision, however, shall not apply to the examination report prepared by the commissioner of commerce and insurance, nor to any rebuttal to the examination reports submitted by or on behalf of the group examined. However, nothing contained in this subdivision (c)(4)(C) shall be construed as prohibiting the commissioner of commerce and insurance from disclosing the information listed in this subdivision (c)(4)(C), or any matters relating to that information, to state agencies of this or any other state, or to law enforcement officials of this or any other state or agency of the federal government at any time.
(D) Upon receipt of a request from any approved authorized agent of a group of employers qualifying as self-insurers pursuant to this subsection (c), the group shall provide a copy of the annual statement of financial condition. The agent, however, shall not further disseminate the information except for purposes of obtaining errors and omission insurance or in the exercise of due diligence of the agent on behalf of the agent's client seeking admission to the group. Further, any individual or entity obtaining a copy of the statement shall hold the information confidential and shall not share or disclose the information to any other individual or entity.
(5) All groups pooling their liabilities pursuant to this subsection (c) shall pay premium tax and surcharges at the rates set forth in § 56-4-206. Each group's premium tax and surcharge payments shall be due on or before the last day of the sixth month following the end of the group's fiscal year. Any group failing to timely pay the taxes and surcharges shall be subject to the penalties and sanctions set forth in § 56-4-216.
(6) The sponsoring trade association may determine whether or not the pool shall remain in existence, subject to the approval of the commissioner.
(7) The pool shall provide to the sponsoring trade association all information requested by the association, other than a member's financial information.
(8) The sponsoring association shall not be liable or responsible for any act or omission of the pool.
(9) The commissioner of commerce and insurance has the authority to promulgate rules and regulations that would provide for civil penalties for violations of this subsection (c) or rules promulgated under this subsection (c).
(d)
(1) It is an offense for any employer whose employee is entitled to the benefits of this chapter:
(A) To require such employee to pay any portion of the insurance premium paid by the employer; or
(B) To deduct any portion of such premium from the wages or salary of such employee.
(2) A violation of subdivision (d)(1) is a Class C misdemeanor.
(3)
(A) In addition to any criminal penalty assessed for a violation of subdivision (d)(1), the administrator of the bureau of workers' compensation is authorized to impose a civil penalty of up to an amount equal to the amount of premiums deducted from such employee’s wages or salary.
(B) If a civil penalty is assessed pursuant to subdivision (d)(3)(A), the administrator of the bureau of workers' compensation shall assess the penalty in a specific dollar amount to be paid directly to the employee.
(e) If at any time the commissioner of commerce and insurance deems the security or bond inadequate or unsafe, the commissioner shall require adequate bond or security.
(f) The commissioner of commerce and insurance may require the employer to secure excess catastrophe reinsurance coverage.
(g) This part shall not apply to policies of insurance against loss from explosions of boilers or flywheels or other similar single catastrophe hazards.
(h) The commissioner of commerce and insurance may issue rules, regulations and orders necessary to properly administer the deposits, bonds and financial evidence as required in this part.
(i) It is the duty of the commissioner of commerce and insurance and the administrator of the bureau of workers' compensation to interchange information as to matters of mutual interest under this chapter.
(j) Any employer of a construction services provider, as defined in § 50-6-901, shall, upon request by the bureau, provide proof of valid workers' compensation insurance coverage at the employer's place of business and at job sites where the employer is providing construction services. Failure to provide proof of valid workers' compensation insurance coverage within one (1) business day of the request may result in a penalty of not less than fifty dollars ($50.00) nor more than five hundred dollars ($500) per violation for any initial violation at the discretion of the administrator or administrator's designee, and not less than fifty dollars ($50.00) nor more than five thousand dollars ($5,000) per violation for subsequent violations. The administrator has discretion in determining acceptable proof of coverage, including electronic proof of coverage, taking into account standard insurance industry practices. Insurers shall advise policy holders who are construction services providers regarding the availability of electronic downloads of policy information to facilitate field inspection of proof of workers' compensation coverage.
(k)
(1) An employer who elects to self-insure under subdivision (a)(2) and is deemed eligible by the Tennessee self-insurers' guaranty association for participation in the risk-based security program:
(A) Must satisfy the employer's security requirements through the program; and
(B) Is only subject to the requirements of subdivisions (b)(1) and (2) as outlined in the association's plan of operation.
(2) Subdivision (k)(1) does not apply to:
(A) Self-insured groups organized pursuant to subsection (c); or
(B) Governmental entities that have not elected to be a member of the Tennessee self-insurers' guaranty association pursuant to § 50-6-1004(e).
(a) Every employer, or the employer's insurance carrier unless the employer is self-insured, subject to this chapter, shall file evidence of its compliance with § 50-6-405 with the bureau of workers' compensation on a form prescribed by the administrator, within thirty (30) days after procurement or renewal of suitable workers' compensation insurance or qualification as a self-insurer.
(b) If an employer fails to comply with § 50-6-405, then during the continuance of the failure, the employer shall be liable to an injured employee either for compensation as provided in this chapter to be recovered in an action brought in a court of competent jurisdiction for that purpose, or for damages to be recovered as if this chapter had not been enacted, as the employee may elect; and in the case suit for damages is brought instead of a suit to recover compensation under this chapter, the employer, when sued, shall not be allowed to set up as a defense to the action that the employee was negligent, or that the injury was caused by negligence of a fellow servant or fellow employee, or that the employee had assumed the risk of the injury.
(c) Claim of compensation made under this chapter shall be deemed a waiver of the right to sue for damages, and the institution and prosecution to final judgment of a suit for damages shall be deemed a waiver of a right to claim compensation under this chapter.
Every individual, firm, association, or corporation using the services of one (1) or more persons for pay shall post and maintain in a conspicuous place on the business premises a printed notice regarding workers' compensation as prescribed by the administrator of the bureau of workers' compensation. The notice shall include, at a minimum, a general description of the duties and obligations of both the employer and the employee under the law; the name, address and telephone number of the individual to notify in the event of a work-related injury; a toll-free number and address for the department of labor and workforce development at which employers or employees may obtain additional information; and the name, address and telephone number of a representative of the employer who can confirm whether the individual, firm, association, or corporation is subject to this chapter; and other information required through rules promulgated by the administrator of the bureau of workers' compensation.
All policies insuring the payment of compensation under this chapter, including all contracts of mutual, reciprocal, or interinsurance, must contain a clause to the effect that:
(1) As between the employer and the insurer or insurers, the notice of or knowledge of the occurrence of the injury on the part of the insured employer shall be deemed notice or knowledge, as the case may be, on the part of the insurer or insurers;
(2) Jurisdiction of the insured for the purpose of this chapter shall be jurisdiction of the insurer or insurers; and
(3) The insurer or insurers shall in all things be bound by and subject to the awards, orders, judgments or decrees rendered against the insured employer, whether a formal party to the proceedings or not.
(a) No policy of insurance against liability arising under this chapter, shall be issued unless it contains an express agreement of the insurer that it will promptly pay to the person entitled to them all benefits conferred by this chapter and all installments of the compensation that may be awarded or agreed upon, and that this obligation shall not be affected by any default of the insured for the injury or by any default in the giving of any notice required by the policy or otherwise.
(b) The agreement shall be construed to be a direct promise by the insurer to the person entitled to compensation under this chapter, and may be enforced directly by that person in that person's name, and the failure, if any, of the insured to comply with any provisions of the policy regarding notice of injury, and such matters shall not be a defense in a suit on the policy by the insured employee or the insured employee's dependents or representatives, unless it can be shown that the insured employee or the insured employee's representatives or dependents aided and abetted in seeking to mislead or defraud the insurer.
The grand jury of every county in the state is given inquisitorial power over all violations of § 50-6-405 relating to employers insuring their compensation liability under this chapter, and is required to inquire into all such violations and to present them to the court by indictment or presentment.
(1) In order to carry out the purposes of this chapter, the administrator or the administrator's designee, upon receipt of sufficient information to give reasonable cause that an employer may be in violation of the insurance requirements of this chapter and upon the compliance specialist presenting appropriate credentials to the owner, operator, or agent in charge, is authorized:
(A) To inspect and investigate the places of employment and pertinent conditions; business records, including complete payroll and tax information; certificates of insurance; sign in and sign out sheets for jobsites; and vendor lists; and
(B) To question privately an employer, owner, operator, agent, worker, or employee.
(2) The administrator or the administrator's designee may request, and the general contractor shall provide, a list of amounts paid by the general contractor to subcontractors on the jobsite.
(b) The administrator or the administrator's designee shall designate representatives who may serve subpoenas and other process of the bureau issued under this chapter.
(c)
(1) For the purposes of workers' compensation insurance compliance investigations, the administrator or administrator's designee may issue and serve subpoenas:
(A) For the attendance of witnesses at administrative hearings; and
(B) For the production of books, documents, or other tangible things that may be relevant, or reasonably calculated, to lead to the discovery of relevant information necessary to determine whether the employer is subject to this chapter held by the employer or third parties, including, but not limited to, general contractors, subcontractors, intermediate contractors, accountants and tax preparers, insurance agents and carriers, and banking institutions.
(2)
(A) Information requested in a subpoena under subdivision (c)(1)(B) must be submitted to the bureau within twenty-one (21) calendar days of service of the subpoena.
(B) If an employer or entity wishes to dispute the subpoena, then the employer or entity shall submit that dispute with particularity, in writing, to the administrator or the administrator's designee within ten (10) calendar days of service of the subpoena.
(C) Failure to timely comply with the subpoena issued and served under subdivision (c)(1)(B) may result in an assessment by the bureau of civil penalties against the employer and third-party holder of information relevant to the bureau's investigation. The penalties, if assessed by the bureau, may be in an amount not less than fifty dollars ($50.00) per day per subpoena until the requested information is provided, or five thousand dollars ($5,000) per subpoena, whichever is less.
(3)
(A) In addition to civil penalties, if a person refuses to obey a subpoena to appear for an administrative hearing or to produce evidence requested by the administrator or the administrator's designee, then the administrator or the administrator's designee may seek an order requiring compliance with the subpoena in the chancery court where the person named in the subpoena resides. The chancery court may find a person who refuses to obey an order requiring compliance with a subpoena in contempt.
(B) In addition to civil penalties, the person who refuses to comply with a subpoena under this section shall pay costs, including reasonable attorneys' fees, court costs, and court reporter attendance and transcription costs, incurred by the administrator or the administrator's designee in obtaining an order to enforce the subpoena.
(4) An employer or entity who is aggrieved pursuant to this section may appeal under the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
(d) Penalties assessed pursuant to this section must be deposited in the employee misclassification education and enforcement fund established by § 50-6-913 to be administered by the administrator.
(a) The administrator of the bureau of workers' compensation or the administrator's designee has the authority to issue a subpoena to require an employer doing business in the state to produce any and all books, documents or other tangible things that may be relevant to or reasonably calculated to lead to the discovery of relevant information necessary to determine whether an employer is subject to this chapter, or has secured payment of compensation pursuant to this chapter, and to determine the amount of any monetary penalty that is required to be assessed against an employer for failure to secure payment of compensation pursuant to this chapter.
(b)
(1) All monetary penalties assessed pursuant to this section that are based on the average yearly workers' compensation premium shall be calculated by utilizing the appropriate assigned risk plan advisory prospective loss cost and multiplier for the employer as of the date of determination that the employer is subject to this chapter, and has not secured payment of compensation pursuant to this chapter.
(2) If the administrator or administrator's designee determines the period of noncompliance with this chapter, is less than one (1) year, any assessed monetary penalty shall be prorated; however, the monetary penalty shall not be less than an amount equal to one (1) month's premium of the average yearly workers' compensation premium for the employer based on the appropriate assigned risk plan advisory prospective loss cost and multiplier.
(3) If any monetary penalty assessed against an employer is held in abeyance pursuant to this section, the period of abeyance shall be two (2) years. Any abated penalty becomes void upon the expiration of the two-year period; provided, that the employer remained subject to this chapter, during the two-year period and continuously secured payment of compensation as required by law. Any abated penalty becomes voidable, if within the two-year period, the employer provides notice to the administrator that the employer is no longer subject to this chapter and upon concurrence of the administrator that the employer is no longer subject to this chapter, the penalty shall become void. Any abated penalty shall become due and payable immediately if, within the two-year period, the employer continues to be subject to this chapter and fails to secure payment of compensation as required by law.
(4) The administrator shall advise an employer of the amount of any assessed monetary penalty in writing and shall include the date on which the monetary penalty shall be due and payable.
(c)
(1) When the records of the bureau of workers' compensation indicate, or when the bureau's investigation of an employer indicates, that an employer is subject to this chapter, and has failed to secure payment of compensation as required by this chapter, the bureau shall so notify the employer by certified letter, return receipt requested.
(2) The bureau shall require the employer to provide, within fifteen (15) calendar days of the receipt of the certified letter, either proof that the employer had secured payment of compensation as required by this chapter or a verifiable sworn affidavit, with supporting documentation, that the employer is exempt from this chapter.
(3) The certified letter shall also advise the employer of the monetary penalties that may be assessed against the employer if it is determined by the administrator or the administrator's designee that the employer has failed to secure payment of compensation as required by this chapter and shall advise the employer of the criminal penalties to which the employer may be subject for the failure.
(d)
(1) If the employer responds to the certified letter within fifteen (15) calendar days of its receipt and the administrator or the administrator's designee determines that the employer has secured payment of compensation as required by this chapter, or that the employer is not subject to this chapter, no monetary penalty shall be assessed.
(2) If the employer responds to the certified letter within fifteen (15) calendar days of its receipt and the administrator or the administrator's designee determines that the employer is subject to this chapter and that the employer has secured the payment of compensation since the date of receipt of the certified letter, the administrator or the administrator's designee shall issue a decision assessing a monetary penalty to the employer equal to one and one-half (1½) times the average yearly workers' compensation premium, or if the employer is engaged in the construction industry, as defined in § 50-6-901, the greater of one thousand dollars ($1,000) or one and one-half (1½) times the average yearly workers' compensation premium.
(e)
(1)
(A) If the employer fails to respond to the certified letter within fifteen (15) calendar days of its receipt or the employer responds to the certified letter but does not provide a verifiable sworn affidavit of exemption, the administrator or the administrator's designee shall issue a decision assessing two (2) penalties. The administrator or administrator's designee shall send the decision to the employer by certified mail, return receipt requested, to the employer's last known address, according to the bureau's records.
(B) The first monetary penalty shall be equal to one and one-half (1½) times the average yearly workers' compensation premium, or if the employer is engaged in the construction industry, as defined in § 50-6- 901, the greater of one thousand dollars ($1,000) or one and one-half (1½) times the average yearly workers' compensation premium.
(C) The second monetary penalty shall be equal to the average yearly workers' compensation premium for such employer.
(2) The administrator's or administrator's designee's decision shall notify the employer of all monetary penalties that have been assessed against the employer and the criminal penalties to which the employer may be subject.
(3) The administrator's or administrator's designee's decision shall advise the employer that it may request a contested case hearing to show cause why it should not have been assessed penalties for failure to comply with the workers' compensation law or to challenge the amount of the penalties assessed. Such a request must be made to the bureau in writing within fifteen (15) calendar days of receipt of the administrator's or administrator's designee's decision assessing monetary penalties. If such request is not timely made, the decision becomes final.
(4) The employer has the burden of proof at the contested case hearing and shall produce documentary evidence that the penalties should be reduced, that the employer is not subject to this chapter, or that the employer was in compliance with this chapter.
(5) The contested case hearing shall be scheduled to be heard in a timely manner, not to exceed forty-five (45) calendar days from the date of the employer's timely written request for a contested case hearing pursuant to subdivision (e)(3).
(f)
(1) If the administrator or the administrator's designee determines at the contested case hearing that the employer is not subject to this chapter, or that the employer had secured and continues to secure payment of compensation as required by this chapter, all monetary penalties shall be void.
(2) If the administrator or the administrator's designee determines at the contested case hearing that the employer is subject to this chapter and that the employer has come into compliance with this chapter by securing payment of compensation prior to the date of the contested case hearing, the first monetary penalty equal to one and one-half (1½) times the average yearly workers' compensation premium, or if the employer is engaged in the construction industry, as defined in § 50-6-901, the greater of one thousand dollars ($1,000) or one and one-half (1½) times the average yearly workers' compensation premium shall be due; however, the second monetary penalty equal to the average yearly workers' compensation premium shall be held in abeyance.
(3) If the administrator or the administrator's designee determines at the contested case hearing that the employer is subject to this chapter and that the employer has failed to secure payment of compensation as required by this chapter, the employer shall be ordered to procure workers' compensation insurance coverage and to provide the bureau with proof of coverage within five (5) days of the issuance of the order, excluding Saturdays, Sundays and holidays. If the employer obtains workers' compensation insurance coverage and provides the bureau with proof of coverage as ordered, the first monetary penalty equal to one and one-half (1½) times the average yearly workers' compensation premium, or if the employer is engaged in the construction industry, as defined in § 50-6-901, the greater of one thousand dollars ($1,000) or one and one-half (1½) times the average yearly workers' compensation premium shall be due; however, the second monetary penalty equal to the average yearly workers' compensation premium shall be held in abeyance.
(4) If the employer fails to obtain workers' compensation insurance coverage as ordered by the administrator or administrator's designee within the required time period, all monetary penalties, totaling two and one-half (2½) times the average yearly workers' compensation premium, or if the employer is engaged in the construction industry, as defined in § 50-6-901, the greater of two thousand dollars ($2,000) or two and one-half (2½) times the average yearly workers' compensation premium, shall be immediately due and payable.
(g) [Deleted by 2021 amendment.]
(h)
(1) In the event an employer engaged in the construction industry, as defined in § 50-6-901, fails to comply with the requirements of this chapter, by failing to secure payment two (2) or more times within a five-year period, then the administrator shall issue a monetary penalty against the employer that is the greater of three thousand dollars ($3,000) or three (3) times the average yearly workers' compensation premium for each s