101 Things is my most popular training sessions.  The written materials are now updated with significantly more detail and analysis.  I wanted to make sure that the session provided the 101 things promised by the title.  After counting, the session provides 128 things, but I like the 101 Things title and will be sticking with that.  Below is a summary of the 128 things your administrators, directors, managers and supervisors should know about working for a tribal employer.  Do they?

Knowledge has value when converted to action.  Manager development through training or reading is just an exercise unless the manager takes what is in the training or book, retains it and applies it to the workplace.  A sightseer enjoys her Sunday afternoon drive by acknowledging the beautiful trees, canyons, mountains, deserts, buildings and the other things noted on the drive.  While recognizing the benefits of a peaceful Sunday drive, spectating in the workplace is not enough for managers.

When managers encounter good ideas in training, simply acknowledging their existence makes the manager a sightseer.  An engaged manager acknowledges the idea and evaluates whether implementation of the idea into the workplace will have the intended benefits and minimal negative consequences.  If the engaged manager determines that the idea will have a meaningful impact on the workplace, the manager will formulate a plan to implement the idea.  When managers read this book or participate in the companion training, sightseeing is not enough and instead managers must be engaged in thinking about the takeaways and implementing those that will make their departments more productive and effective.  The following list summarizes the 128 takeaways in this book and is intended to present an opportunity for managers to reconsider how these takeaways can be used to enhance employee satisfaction and productivity.

Chapter 1 Takeaways-Sovereignty & Immunity

1.  Self-determination is a tribe which defines its own goals, set its own deadlines and plots its own path to achieve those goals.

2.  A manager exercises the tribe’s self determination by creating a strategic plan for her department which is aligned with tribal leadership’s strategic plan.

3.  The exercise of sovereignty includes tribal self-determination, language, culture, self-rule, defining citizenship, addressing disputes, engaging in economic opportunities and much more.

4.  Sovereignty is a tribe which defines its rules in a manner which is consistent with the tribe’s goals, values and traditions.

5.  A manager exercises the tribe’s sovereignty by creating and enhancing her department’s standard operating procedures, department job descriptions and other relevant department rules.

6.  Inherent sovereignty is the recognition that the right of tribal self government is not a gift from the federal or state governments but instead it flows from a preexisting sovereignty which was limited, but not eliminated, by the formation of the United States.

7.  A manager recognizes the tribe’s inherent sovereignty by assuming the tribe’s rules are the primary source of workplace rules.

8.  Immunity of the tribe is a defense to a lawsuit wherein the tribe can refuse to consent to a court’s exercise of power over the tribe.

9.  Immunity for tribal employees, agents and officials is a defense to a lawsuit wherein an employee, agent or official of the tribe refuses to consent to a court’s exercise of power over the employee, agent or official acting within the course of their employment or official duties.

10.  Immunity can be limited if the United States is pursuing a claim against the tribe.

11.  The tribal employer’s rules should apply to all employees and a manager can ensure that the tribal employer’s rules apply to all employees by getting employee written consent to new rules and modified rules.

12.  Due process in the workplace includes clearly communicating employee expectations and standards, holding employees accountable to those expectations and standards in a fair and consistent manner and giving employees an opportunity to tell their side of the story in a formal and informal manner.

13.  Managers deliver due process by updating job descriptions and talking to employees about the expectations defined in the job descriptions.

14.  Managers deliver due process by creating and updating department standard operating procedures, training employees regarding the standards and using the standards to measure employee performance.

15.  Managers deliver due process by creating a work environment wherein subordinate employees have access to the manager if needed and when access is given the manager listens to employee needs and requests.

16.  Managers deliver due process when they are advocates for their employees when appropriate.

17.  Politics is reduced (not eliminated) when managers focus on delivering due process.

Chapter 2 Takeaways-What Law Applies?

18.  Tribal managers should start with the assumption that the tribe’s rules define the terms and conditions of the workplace.

19.  Generally speaking state employment rules do not apply to tribal employers.

20.  Generally speaking state unemployment compensation laws are followed by tribal employers.

21.  Some tribal employers follow tribal worker’s compensation laws and some tribal employers follow state worker’s compensation laws.

22.  Tribes entering into tribal-state gaming compacts under the Indian Gaming Regulatory Act sometimes agree to follow certain state employment standards.

23.  When tribes are engaged in off-reservation activities there is an argument that state employment laws apply to those employees.

24.  Some federal employment laws apply to tribal employers:  Indian Child Protection and Family Violence Prevention Act, ERISA (commercial entities), Indian Civil Rights Act, Affordable Care Act.

25.  Some federal employment laws generally do not apply to tribal employers: Title VII of the Civil Rights Act of 1964, Americans with Disabilities Act.

26.  There is a third category of federal employment laws where there is an argument the laws apply and an argument the law does not apply:  Family & Medical Leave Act, Fair Labor Standards Act, Occupational Health & Safety Act, Employee Retirement Income Security Act (non-commercial), National Labor Relations Act.

27.  As to the argument that some federal laws apply and some do not, the answer to the question is influenced by numerous factors (commercial versus non-commercial activity, the federal circuit court hearing the case and other factors).

28.  Because the federal law applicability question can be confusing, tribes generally select one of three options:  (1) follow federal employment laws; (2) do not follow federal law but meet the federal standards through tribal law or policy; (3) reject federal law and define tribal employment standards.

29.  The Tribe’s receipt of federal funds oftentimes includes strings attached requiring compliance with a range of laws.  Managers have to be aware of the those requirements and work with human resources to determine if the tribe’s policies and practices are impacted.

30.  Law trumps regulation and regulation trumps policy and policy trumps verbal directives.

31.  When managers draft department policies there has to be an awareness of tribal law, regulation and policy which control the manager’s department policy.

32.  Employee handbooks typically apply to all departments in a tribal government or casino while standard operating procedures are typically focused on the practices within specific departments.

33.  Managers should utilize their expertise by drafting and updating standard operating procedures within the manager’s department.

34.  Tribes are equal opportunity employers when clear law and policy define the protected traits and characteristics which are not used in making employment decisions.

35.  The protected traits and characteristics are typically race, religion, national origin, sex, disability, age, sexual orientation and pregnancy.

36.  The employer’s promise of equal opportunity in employment is not meaningful unless managers uphold and enforce the standards.

37.  Managers should extend human resources training on the topic of equal opportunity in employment by communicating with subordinate employees about the policy and the manager’s willingness to enforce the policy.

38.  If managers see or hear a violation of the tribe’s discrimination, harassment or bullying policy, the manager must do something about it whether the perpetrators are in the manager’s department or another department.

39.  Managers must be aware of the potential for retaliation in the tribal workplace and if witnessed the manager must address it.

40.  The official files of the employer maintained by human resources include personnel files, I-9 compliance files, medical files and employee misconduct investigation files.

41.  Ghost files are the label for the files maintained by managers to document when employees exceed manager expectations and do not meet manager expectations but are not serious enough to place in the employee’s “official” personnel file.

42.  Managers should use the ghost files to help the manager capture 11 months of employee behavior, and with the information in the personnel file, provide a fair overview of the employee’s performance in the performance evaluation.

43.  When using ghost files managers must be careful to document employee behavior in a factual manner and with the same professionalism a manager would use in documenting employee behavior in the “official” personnel file.

44.  Ghost files do not belong to managers.  They are employer property.  If there is a lawsuit regarding an employee, the employee will ask to review ghost files as part of the legal proceeding.

Chapter 3 Takeaways-Hiring

45.  Being prepared to hire an employee means the job description is updated to reflect the skills and talents the manager seeks and the manager has communicated what she seeks to the human resources team.

46.  Managers understand their scope of authority as to who has the power to hire in a tribal organization.  Sometimes the authority to hire belongs to the manager and sometimes it belongs to tribal council, a general manager or a personnel committee.

47.  There are at least eight criteria to consider in hiring: qualifications and experience, preference, work history, personality and fit, career progression, reason for leaving previous jobs, job hopping and important omissions.

48.  Preference is frequently required by tribal law and almost always reinforced by tribal policy.

49.  Native preference is preferring a Native person over a non-Native person in hiring and other employment decisions.

50.  Tribe-specific preference is preferring a member of the employer tribe over non-members.

51.  Preference has been challenged as a race based and national origin based violation of federal law but those challenges have not undermined the conclusion reached by the United States Supreme Court in declaring that preference is based on a political affiliation and not a racial classification.

52.  Managers should understand the scope of the tribe’s preference.  Whether preference is limited t0 hiring or expanded to promotions, training, lay-offs and other aspects of employment addresses the scope question.

53.  Managers must understand how preference is applied.  There is typically a list which provides persons at the top of the list more opportunity and persons at the bottom of the list less opportunity.

54.  Finally, managers must grasp whether the tribe uses the minimum qualifications, break-the-tie or other tests in applying preference to eligible candidates for hire or promotion.

55.  Managers do not use race, religion, national origin, sex and other protected traits and characteristics as a consideration in the hiring process.

56.  Managers avoid nepotism by focusing on the skills and talents they seek and measure candidates by those standards and not by family relationship or friendship.

57.  The opposite is true as well.  Managers do not discount a candidate because they are from a specific family.

58.  Pre-hire due diligence is typically performed by human resources and includes background checks, reference checks, employment verification, interviews and in some instances testing.

59.  For gaming employees, the tribe’s gaming commission is an independent regulator which makes a decision to either license an employee or not.  The standard for licensure is broad and includes both criminal background investigations and an assessment of the candidate’s character.

60.  Not all employees working for tribal casinos must be licensed under federal law, but more importantly, the tribe’s law may require licensure of all employees.

61.  The gaming commission will require employee-licensees to renew the license every one or two years.

62.  The gaming commission can suspend or revoke a license for licensee misconduct or for issues with the licensees’ character.  If an employee’s license is revoked the employee’s job will be lost (in most instances).

63.  Interview best practices include verifying that the candidate can perform the job and behavior based questions which present the candidate with an opportunity to summarize candidate experience in performing tasks which may predict success in the candidate performing the job.

64.  There are numerous questions which should not be asked in an interview and those seek information related to the candidate’s protected traits or characteristics which the employer promises are not relevant in making a hiring decision.

65.  Selecting candidates to employ returns the manager to the criteria discussed above (qualifications, experience, preference, work history, etc,) and taking the information gathered about the candidates and making the best decision for the employer.

66.  Managers must participate in on-boarding new employees through a second orientation which can range from a meeting, to the use of checklists or tests.

67.  Persons not hired may have legal rights secured by tribal law or policy.  Those laws and policies vary from tribe to tribe therefore managers should discuss this issue with their chain of command.

Chapter 4 Takeaways-Managing

68.  Employee satisfaction is more about the employee’s relationship with their supervisor than it is about the employee’s relationship with human resources, the tribal administrator or tribal council.

69.  Because employee satisfaction is about their relationship with their manager, managers must work hard at generating a relationship which is conducive to a productive employee.

70.  Managers who invest time, energy and brain power into better knowing and understanding their employees, create an atmosphere where employees are generally more satisfied and more productive.

71.  People do not like to be managed and instead people want to be led.

72.  Managers must clearly communicate expectations to employees through updated job descriptions and department standard operating procedures in at least two ways.  When employees are new to a department the manager must spend time reviewing the job description and procedures.  Thereafter, department policies and procedures must be part of on-going manager training.

73.  Managers must hold subordinates accountable to the employer’s defined standards in a fair and consistent manner.

74.  The fair and consistent application of defined standards can occur after the manager understands the truth regarding an alleged violation of workplace rules.

75.  Precedent is the reliance on previous employer decisions in similar circumstances to today’s decision.  Consistency comes, in part, from relying on the influence, not control, of employer precedent and human resources likely best understands the employer’s precedent.

76.  Managers understand the fiduciary duty requires managers to place the employer’s interests first.

77.  Managers must understand the tribal employer’s policy regarding the receipt of gifts.

78.  Because of their power, perceived or real, managers understand that their words, mood, attitude and myriad other ingredients are amplified and enlarged in the workplace and are careful in choosing their words and conveying mood or attitude.

79.  Managers are not bullies and do not tolerate bullies in the workplace.

80.  Managers must enforce the rules and lead their subordinate employees.  The book discussed this as the green box (rules enforcement) and blue box (leadership).

81.  Managers document positive and negative employee behavior because it provides a record, sends the correct signal, reduces manager confusion, forces more objectivity and impresses grievance panels and courts.

82.  Documentation best practices include good timing, specific dates and times, place, knowledge of the audiences, proper employee notice, factual, comprehensive and defines present and future consequences.

83.  Managers have a role in employee misconduct investigations by recognizing when an investigation is necessary and, if consistent with protocol, communicate with human resources.

84.  Oftentimes early in an investigation the alleged perpetrator should be separated from the victim and there is a range of options to consider.

85.  If the manager is not the investigator of employee misconduct the manager can be a valuable source of relevant information and shall cooperate in the investigation.

86.  At the conclusion of the investigation, the manager should be a participant in evaluating and administering any consequences which range from education to discipline to termination.

87.  Managers must be aware of the potential for retaliation during and after employee misconduct investigations.

88.  Employers have access to the computers, laptops, phones, tablets, desks and storage lockers owned by the employer.  Managers should understand the policy and apply it in a fair manner.

89.  When the employer’s or the department’s rules change, managers should communicate the change and the purpose behind the change, facilitate training on the new rule if necessary and give employees some time to adjust to the change before enforcing the rule with discipline.

90.  Performance evaluation best practices include an awareness of potential liability, use of defined standards and a failure of consistency.

91.  Managers should be aware of the halo principle wherein a poorly performing employee is given a higher score than earned in the performance evaluation with the belief that the employee will live up to the praise provided.  Experience teaches this does not work and will backfire if the employee is terminated for poor performance when the performance evaluation grades the employee exceeding expectations.

92.  Independent contractors are not employees.  Independent contractors, properly classified, can reduce employer costs and potential liability.

93.  Independent contractors, improperly classified, can generate claims under the Fair Labor Standards Act which may, or may not, apply to tribal employers.

94.  Contract employees are not independent contractors.  Contract employees are employees with a “paper” contract.  The employer’s rules apply to contract employees.

95.  Managers must be aware of the benefits provided by the employer to recognize when employees may be requesting certain benefits.

96.  For some employer benefits the manager’s primary role is a referral of the request to human resources (think FMLA).

97.  For some employer benefits the manager’s primary role is deciding whether to approve of a benefit request (think vacation).

98.  The Family & Medical Leave Act may, or may not, apply to tribal employers.  Managers must read the employer’s policy on this question.

99.  Employees are not eligible to use FMLA during their first year of employment with the employer.  Before an employee is eligible for FMLA, they have to work 1,250 hours in the year prior to requesting or using the job protected leave.

100.  There are four reasons employees can ask for FMLA job protected leave: (1) birth or placement of a child with the employee; (2) a serious health condition of the employee or the employee’s parent, spouse or child; (3) military preparation; (4) injured service member.

101.  A serious health condition is an illness, injury, impairment or physical or mental condition that involves inpatient care or continuing treatment.

102.  Human resources is responsible for administering the FMLA including the medical analysis of a serious health condition.  The medical analysis is called certification and the manager is not permitted to participate in certification.

103.  There is a maximum of 12 weeks of leave in a year in most instances.

104.  Managers must listen to employees regarding FMLA because an employee request does not have to include specific words.

105.  FMLA is generally unpaid under the law but oftentimes paid through the employer’s discretionary policies like vacation or paid time off.

106.  Employees off from work on job protected leave shall do no work.

107.  Employees out on job protected leave are entitled to a continuation of employer sponsored health care coverage.

108.  Employees returning to work from job protected leave shall get their job back or an equivalent job.  If the same job is not available, the manager should consult with human resources regarding an equivalent job.

109.  Managers should consult with human resources in properly managing intermittent leave.

110.  The Fair Labor Standards Act may, or may not, apply to tribal employers.  Managers must read the employer’s policy on this question.

111.  If the employer is complying with the FLSA the employer must pay the minimum wage of $7.25 to employees for all hours worked.

112.  Non-exempt employees are entitled to overtime compensation.

113.  Exempt employees are not entitled to overtime compensation.

114.  Overtime is paid for all hours worked in excess of 40 hours in a workweek defined by the employer.

115.  Overtime is paid at 1.5 times the employee’s regular rate of pay.

116.  Some tribal employers use compensatory time or comp time in satisfying the employer’s overtime obligation to employees.  Managers must understand the employer’s policy regarding the existence of comp time and the rules which apply to its use.

117.  All employees are presumed to be non-exempt.  To move an employee from non-exempt to exempt status, the employer must evaluate whether the employee earns more than $684 a week, is paid on a salary basis and perform exempt work.

118.  Managers should require employees to follow the rules for recording time on a time clock or by other methods.  Since employees are paid for all hours worked, managers should not reduce the number of accurately recorded hours on a timesheet.

119.  There are rules which provide additional protections for workers younger than 18 years.  Managers should consult with human resources if this circumstance arises.

120.  When employees travel during the workday or overnight, managers should consult with human resources on the rules regarding pay in these circumstances.

121.  The National Labor Relations Act may, or may not, apply to tribal employers.  Managers must read the employer’s policy on this question.

122.  Poor management (and manager) practices sometimes lead to union organizing.  Managers must have enough insight on their negative impact on the workplace and correct it.

123.  Managers should be aware of union organizing in the tribal workplace and report any organizing to human resources.

124.  Employees may have limited freedom of speech in the tribal workplace and the manager must be aware of the tribe’s policy regarding this right.

Chapter 5 Takeaways-Termination

125.  Managers understand that at-will employment allows both the employee and the employer to terminate the employment relationship at any time and for any reason, and except for the employer, the reason cannot violate the law.

126.  Managers know that for-cause employment allows employees to terminate the employment relationship at any time but the employer may only terminate the relationship if it has a fair reason and evidence to support the reason.

127.  Regardless of the employment standard, at-will or for-cause, effective managers focus on leadership.

128.  Prior to terminating an employee, managers ask a range of fairness questions and are satisfied with the answers.

Please call or write to Richard McGee at 612-812-9673 or richard@richardmcgeelaw.com.