The New Tennessee “Employee Online Privacy Act of 2014” Takes Effect Today (Preventing Employers from Obtaining Access to Personal Internet Accounts Like Facebook)

I previously blogged on the new Tennessee Employee Online Privacy Act of 2014.  The full blog post on this new statute can be found here.  This new statute basically prevents an employer from taking any adverse employment action against an employee for failure to provide access to a “personal internet account” (which basically includes any type of internet account including Facebook or other similar services).  This statute goes into effect today, January 1, 2015.

Employers need to keep this new statute in mind as they venture more and more into the online existence of their employees (or potential employees).  Tennessee has attempted, with this new statute, to protect employees by preventing mandatory access by an employer to an employee’s online information.  Employers can no longer demand access in certain situations covered by the statute.  Employers need to make sure they review and implement policies that comply with this new statute.

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Tennessee Legislature Adds New Cause of Action to Fight Individuals who Illegitimately Threaten Patent Litigation

Tennessee recently established new statutory protections for individuals and companies that are illegitimately threatened with patent infringement claims.  This has been a growing problem across America including in Tennessee.  The 2014 Tennessee Legislature passed Public Chapter No. 879 which created a new series of statutes found in T.C.A. § 29-40-101 – § 29-40-104 (effective on May 18, 2014) in order to try to combat this problem.  The stated purpose of these new statutes is to prevent small and medium sized companies from alleged patent infringement claims from third parties that are unsubstantiated and meritless.  Patent litigation can be extremely expensive and the Tennessee Legislature was concerned about the abuse of patent litigation in Tennessee.  As a result, this new statute provides a new cause of action with enhanced damages to use against those who improperly threaten unsubstantiated patent litigation.  This cause of action allows for the recovery of attorney’s fees, costs, actual damages and punitive damages in an amount equal to three times the actual damages. 

New Key Statutory Language (T.C.A. § 29-40-102(a)):

The main provision in the new statute is found in T.C.A. § 29-40-102(a).  This part of the statute identifies the key acts that violate the statute.  It is hard to find this statutory language online currently so I will post this entire section for your convenience (although you can see it officially in the link to Public Chapter No. 879).  This portion of the statute provides as follows:

(a) It is a violation of this chapter for a person, in connection with the assertion of a United States patent, to send, or cause any person to send, any written or electronic communication that states that the intended recipient or any...

2014 Tennessee Legislature Makes Judgments Permanent if Injury or Death Caused by Criminal Conduct

Analysis:  The Tennessee Legislature made an interesting change to the typical rule in Tennessee that judgments are only good for ten years unless renewed (See T.C.A. § 28-3-110 and Tennessee Rule of Civil Procedure 69.04).  The Tennessee Legislature in the 2014 Tennessee legislative session passed Public Chapter No. 596 which was signed into law by Governor Bill Haslam on March 28, 2014.  This statute essentially allows a party to make a judgment permanent (as opposed to the current law where it expires after 10 years unless renewed) if the injury or death was caused by criminal conduct.  This act applies to any civil judgments that go into effect after July 1, 2014.  Additionally, there is actually a way for this act to apply to judgments entered before July 1, 2014, if a specific procedure is followed.

The new T.C.A. § 28-3-110(B)(1) provides as follows:

(b)(1) Notwithstanding the provisions of subsection (a), there is no time within which a judgment or decree of a court of record entered on or after July 1, 2014, must be acted upon in the following circumstances:

(A) The judgment is for the injury or death of a person that resulted from the judgment debtor's criminal conduct; and

(B) The judgment debtor is convicted of a crim...

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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