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Private businesses in Tennessee can fire employees for exercising their right to petition the government

4/3/25

By: J. Cole Dowsley, Jr.

In Smith v. BlueCross BlueShield of Tennessee, the Tennessee Supreme Court rejected a retaliatory discharge claim based on an employee’s exercise of a constitutional right to petition. 

Smith was an at-will BlueCross BlueShield (BCBS) employee. She emailed several Tennessee state legislators to complain about BCBS’s vaccine mandate. The emails were read in a legislative session and made their way back to BCBS. BCBS warned Smith that her emails violated company policy. When Smith sent a second similar email to legislators, BCBS terminated her employment for violating the company’s social media policy.  

Smith sued BCBS for wrongful termination and common law retaliatory discharge in Tennessee state court. She alleged that her communications with legislators were protected by her right to petition under the Tennessee Constitution, and the termination violated Tennessee’s public policy based on the right to petition. 

BCBS filed a motion to dismiss for failure to state a claim arguing that the termination was lawful under Tennessee’s employment at-will doctrine. BCBS argued that the right to petition protects employees from government action but does not control a private, at-will employment relationship. 

The trial court granted BCBS ’s motion to dismiss because it believed it did not have the authority to recognize new exceptions to the at-will employment doctrine. The Tennessee Court of Appeals reversed, holding that the right to petition is a strong public policy exception and that Smith should have an opportunity to prove her claim. The Tennessee Supreme Court, holding that the right to petition is not an exception to the employment at-will doctrine, reversed the Court of Appeals and affirmed the trial court’s dismissal of the Smith complaint.  

Under Tennessee’s employment at-will doctrine, employment may be terminated by the employer or employee at any time, for any reason, or for no reason at all. One exception to this doctrine is common law retaliatory discharge which generally means that an employer cannot fire an employee for attempting to exercise a statutory or constitutional right. In this decision, the Tennessee Supreme Court made clear that the constitutional right to petition is not enforceable against private employers. The court recognized that “[f]or hundreds of years, the constitutional right to petition has been considered a bulwark against government oppression, not a constraint on private parties.”  Because the constitutional right to petition only constrains government action, an employer does not violate public policy for terminating an employee exercising her right to petition. This is in line with most states that have addressed this issue. 

This decision is notable in our politically charged culture where employees may use social media or other outlets to express opinions about their employers or even engage in political activity in the name of or adverse to their employer’s business interests. The Tennessee Supreme Court seized the opportunity to reinforce their state’s strong doctrine of at-will employment, clarifying that the constitutional right to petition simply does not apply in the private sector. Tennessee employers remain free to protect their business interests through personnel policies restricting an employee’s use of email or social media for political purposes.  

For more information or for advice regarding wrongful discharge claims or related employment policies, please reach out to Cole Dowsley or your local FMG attorney.