Employees have almost no rights to freedom of speech in the workplace. That statement assumes (1) there is no collective bargaining agreement; (2) there are no speech rights in the tribe’s constitution, laws or handbook. Employers do not over emphasize this reality because it would undermine employee workplace morale. Also, the sentence declares no right to a freedom of speech in the workplace, but that does not mean that employers should mute their employees. Employers do not want to mute their employees because communication is one of the keys to a successful organization.
What may impact the general rule of limited or no freedom of speech in the workplace?
The primary exception to the general rule is a speech right secured by tribal law or policy. The tribe may have free speech provisions in a constitution or other law. Additionally, the Indian Civil Rights Act declares that “No Indian tribe in exercising powers of self-government shall…abridge the freedom of speech…” Section 1302(a)(1) of the Indian Civil Rights Act. The impact of that section on tribal policies addressing social media is not developed law. In other words the courts have not evaluated ICRA’s free speech protection in the context of the tribal workplace.
The next exception to the general rule is the application of the National Labor Relations Act’s Section 7. The NLRA is silent on applicability to tribal employers; accordingly there is an argument it applies and an argument it does not apply. The federal courts cannot agree on the applicability of the NLRA to tribal commercial employers (casinos) and therefore tribal employers must get familiar with the relevant circuit court decisions. An aspect of the courts’ reasoning on applicability is whether the tribal employer is commercial in nature or performs an essential government function. In sum the courts will more likely apply the NLRA to a commercial entity of a tribe then it will to the tribe’s government. This commercial-government distinction will have an impact on the social media policy adopted by a tribe. In short, a social media policy for employees of a tribal government can be more restrictive than a social media policy for employees of a casino or convenience store.
What is the status of Section 7 in 2019?
The law has not changed but the federal government’s appetite for enforcing the law has changed. The National Labor Relations Board enforces the NLRA. Under the Obama Administration the NLRB was very aggressive in enforcing freedom of speech in the workplace, and those enforcement actions reached language in employee handbooks. The Trump administration’s NLRB is far less aggressive in enforcing Section 7 rights. Less enforcement likely means less risk for an alleged violation of Section 7 at least for now.
What is Section 7’s reach?
There is no protection of employee speech which threatens violence, is engaged in harassment or discrimination or is a true breach of confidentiality. There is also the distinction regarding working and non-working time. When a dealer is on the casino floor the dealer cannot criticize her employer and claim Section 7 protection. When the dealer is in the break room, the dealer can criticize her employer. Note the test is not focused on whether the employee is on paid time (she is).
Beyond employees, what is the impact of the social media policy on tribal members who are also employees? I would seek leadership’s assistance in better understanding the tribe’s perspective on whether a tribal member sacrifices their right to compliment and criticize tribal leadership when the member accepts an offer of employment from the tribe or a tribal entity? Like all other employees, tribal member employees cannot threaten violence and call it protected speech, but on the other hand, there is a reasonable argument that members should be able to compliment and criticize leadership when they are not at work.
Where does leadership want to be on the spectrum of risk? If leadership wants to limit speech in the tribal workplace whether it is a commercial entity or governmental entity, that will impact the language in the social media policy. On the other hand, if leadership wants to reduce its risk of a union or NLRB complaint, some freedom of speech when an employee is not engaged in work might be permitted. That choice impacts the language in the social media policy drafted.
Discrimination, Harassment & Bullying Train the Trainer
Best Western Plus MOA, Bloomington, MN
This training will help you be more effective in addressing discrimination, harassment and bullying in the tribal workplace by analyzing three critical questions: (1) Is your policy effective; (2) Is your training meaningful; (3) Are you serious about enforcing the policy in a fair manner? Because the training materials include a practical how to approach in responding to each question, you will emerge from this session with new skills. Moreover, the training material includes a presentation and other resources you will use at your tribe to deliver similar training.
Tribal Employment Law & Standards for Tribal Leaders, Executives, Administrators & Directors
Best Western Plus MOA, Bloomington, MN
This session addresses the impact of self-determination, sovereignty, immunity, jurisdiction, federal funds, federal and state law, tradition and custom on tribal employment practices. Moreover, the session addresses the important questions. Do tribal employers have to follow state employment laws? What about federal employment laws? How does preference really work? How does TERO impact preference? Can tribal employers define the terms and conditions of employment and how is that done? What is at-will employment? What is for-cause employment? Can tribal employees say impolite things on social media and be held accountable? What are the fundamentals of those federal laws which tribes most likely follow? How do employee references work? What is the federal background law? What are harassment, discrimination and protected class and how are they related?
Standard Operating Procedures Workshop
August 1 & 2
Pala Casino Spa & Resort, Pala, CA
This workshop on the practical development of department standard operating procedures is important for all directors and managers including Human Resources. Tribal Administrators will also benefit from this class. The first phase addresses and defines the range of employer documents and provides a practical approach in writing SOPs. The second phase is a workshop wherein the participants engage in the SOP drafting process. Make sure your department directors and managers attend this training workshop.
Drafting Employment Codes & Handbooks
October 10 & 11
Gila River’s Vee Quiva Hotel & Casino, Laveen, AZ
This session addresses the best practices for creating a system of laws, policies and procedures which best serve the tribal employer and employees. The session provides respectful suggestions for defining the terms and conditions of employment through an employment code and employee handbook. Sample language for a tribal employment code and comprehensive policies are included in the materials.
Each class has a detailed agenda. Please let us know if you are interested in attending.
Law Office of Richard G. McGee, LLC
P.O. Box 47068, Plymouth, Minnesota 55447