Can you be fired in Tennessee for petitioning your state lawmaker? Appeals court weighs in
Angele LathamThe Tennessee Court of Appeals has ruled on behalf of a Tennessee resident who was fired after contacting her state House representative regarding an ultimatum presented by her employer — a decision that carves out a rare exception in the state’s at-will employment by citing the right to petition in the state constitution.
Heather Smith, an East Tennessee resident and former employee of Blue Cross Blue Shield, was fired in late 2021 after she sent an email to Rep. John Ragan, R-Oak Ridge, detailing her opposition to her employer’s vaccine mandate.
Her email, which Ragan read aloud during a special session at the Tennessee General Assembly, asked for “legislative protection for … individual liberties and rights relating to vaccine mandates.”
Less than a week later, according to the lawsuit, Smith was fired for appealing to her lawmakers. Following this, Smith lost her first wrongful termination lawsuit in a Hamilton County court before appealing in the Tennessee Court of Appeals.
Like the First Amendment, the state constitution provides a right to petition the government.
“We hold that…the Tennessee Constitution, which guarantees the right of citizens to petition the government, is a clear and unambiguous statement of public policy representing an exception to the doctrine of employment-at-will,” Appeals Court Judge D. Michael Swiney stated in the court’s decision. “The Tennessee Constitution is unambiguous on this point: citizens have a right ‘to instruct their representatives, and to apply to those invested with the powers of government for redress of grievances, or other proper purposes, by address or remonstrance.’”
Swiney went on to quote a scholarly analysis that called the right to petition “an ancient right” and “the cornerstone of the Anglo-American constitutional system.’”
Steve Duggins, Smith’s lawyer, called the decision one that “goes to the fundamental issue of how our democratic republic works, how it functions, and why it has to have freedom for regular folks to communicate with their legislative body.”
“Ultimately, (petition) is what our form of government is built upon,” Duggins said. “We have a representative form of government, but if our people do literally nothing but vote for a representative, it is a stunted representative form of government. But if they are free, as the Court of Appeals says they are, to communicate with their legislature, it is a far more representative form of government.
“So the right to petition is one of those very fundamental rights that goes to the core of our existence as a democratic republic. And I think it's one of those rights that is not exercised nearly as much as it should be.”
‘A bridge too far,’ court says
The Chancery Court for Hamilton County dismissed the case on the grounds that the court could not carve out exceptions in the employment at-will policy.
That court had determined that — while “the right to communicate with elected representatives is a fundamental and clearly established public policy and that the public policy exception to at-will employment should include protection against employers terminating or otherwise retaliating against employees for exercising that right” — the court simply could not make decisions that were not already “expressly recognized” by the Tennessee Court of Appeals or Tennessee Supreme Court.
“Our position that was recognized by the Court of Appeals was that the Tennessee Constitution has some very clear language establishing that right of petition,” Duggins said. “So it has to trump more generic at-will-employment laws.”
The appeals court called the firing over her right to petition “a bridge too far” because it interfered with her right as a citizen, not just as an employee.
“Firing an at-will employee merely for writing to the Tennessee General Assembly is a bridge too far,” Swiney wrote. “It unduly interferes with the employee as citizen. Unlike other examples of constitutional provisions which, as BlueCross rightly points out, are not extended to private employers, the right to petition goes to a cornerstone of how employees, as citizens, can reach their government. While an at-will employee may not reasonably expect the full panoply of constitutional rights from a private employer, he must have recourse to the very people who make law.”
Additionally, the court said, if they accepted BlueCross Blue Shield’s position that Smith’s petition was a terminable offense, this would mean that an employer could fire an at-will employee for “any communication to the legislature, whatever the content.”
“While Smith’s grievances happened to concern vaccine mandates, any number of scenarios can be visualized,” the court said. “An at-will employee could write the General Assembly about workplace safety issues, wages, or other labor conditions. An at-will employee could write the General Assembly on a matter totally unrelated to her employment. Under BlueCross’s stance, no matter the scenario, there is no public policy protection from termination for an at-will employee for exercising her constitutional right to petition.”
In closing, the court agreed with Duggins’ assertion that more citizens should utilize their right to petition.
“Blue Cross argues that recognizing a public policy exception for the right to petition will create a ‘flood of litigation,’” Swiney wrote. “Respectfully, this is the least persuasive of Blue Cross’ arguments. It is exceedingly unlikely that courthouses in Tennessee will overflow with litigants suing their former employers for firing them for writing to the General Assembly. Such an effusion of civic-mindedness, were it to occur, would in any event be grounds for commendation, not scorn.”
Blue Cross Blue Shield of Tennessee spokesperson Dalya Qualls White said in a statement the company works to "follow the evolving legal and regulatory requirements to keep our members safe."
"The vaccine requirement was the best decision for the health and safety of our employees, provider partners, members – some of whom are the most vulnerable in the state – and our communities," she said. "We appreciate our former employees’ service to our members and communities throughout their time with BlueCross."
Now that the judgment of the trial court was reversed, Blue Cross Blue Shield will have 60 days to appeal the decision. If they do not, the case will go back to the Chancellor/trial court level, where Duggins and Smith will prepare for a trial.
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Have a story to tell? Reach Angele Latham by email at [email protected], by phone at 731-343-5212, or follow her on Twitter at @angele_latham