Investigations Training
My two day investigations training is scheduled for April 22 and 23 by Zoom. There are available spots if you and your team want to attend. The training costs $495 for each participant. NNAHRA kindly approves this training as credit [...]
Investigations Training
There is interest in my two-day Investigations Training. I have tentatively scheduled the training for April 22 and 23, 2021 (apologize for the short notice). Part of the motivation for the requests for those dates is for THRP recertification. NNAHRA [...]
Posters, Policies & Forms
The first question presented is whether tribal employers should hang posters? Please do not think about posters of sports stars or good looking celebrities, but instead think about the exciting posters summarizing employee rights relating to worker’s compensation, minimum wage [...]
Performance Reviews?
Should employers suspend performance evaluations in 2020 because of COVID? Answer: No. That is my answer but others disagree. In a recent Wall Street Journal article titled Pandemic Produces a Kinder, Gentler Performance Review, the question presented was whether performance [...]
Can Employers Mandate Vaccines?
Can tribal employers compel employees to be vaccinated against COVID-19? My email inbox has received this question numerous times in the last week and therefore I thought it was a good time to address the question. Answer: Yes with some [...]
HR Professional Virtues
As human resources professionals there is a significant range of skills, talents, attributes and virtues needed to navigate the myriad workplace challenges. On the subject of virtues required for human resources professionals, the following article appeared in the Employment & [...]
Do Your Managers Know at Least 101 Things?
101 Things Everyone Should Know About Tribal Employment After discrimination and harassment, our most popular training session is 101 Things Everyone Should Know About Tribal Employment and the materials for that session are now a published book, a power point [...]
NNAHRA Plus Fall Training
NNAHRA I have the privilege of working with the dedicated NNAHRA team this week in preparation for the NNAHRA Conference starting September 28. Part of that preparation has included working with the lawyers who will bring you the annual legal [...]
101 Things Everyone Needs to Know About Tribal Employment
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 [...]
NNAHRA Conference
The NNAHRA Conference is a little more than a month away and I look forward to being both a speaker and a participant at a fantastic virtual conference. The conference agenda includes a really smart mix of COVID related practical [...]
FMLA FORMS CHANGE
Whether the Family & Medical Leave Act applies to tribes is an open question with an argument that it applies and an argument it does not apply. Many tribal employers provide job protected leave which is similar to or the [...]
Drafting Tribal Employment Laws & Handbooks was recently published and is available at Amazon, Barnes & Noble, Xlibris and wherever you purchase books.
Drafting Tribal Employment Laws & Handbooks is a practical guide to drafting comprehensive tribal employment laws and the policies included in tribal government, casino and enterprise handbooks. The book explains why this is important and illustrates how to get these documents [...]
Gratitude & Opportunities
A thank you, a book, investigations, hearings and more articles. First and foremost, I continue to be exceedingly grateful to my colleagues at tribal governments and enterprises for the opportunity to serve during this difficult time. Even though we are [...]
Employer Liability Issues During COVID
Outside of Indian Country, an early May 2020 count revealed dozens of COVID-19 employment related lawsuits in federal courts. Eight lawsuits alleged violations related to leaves of absence, six were for discrimination and harassment, five for wage and hour claims, [...]
Tribal Employer Reopen Policies
Tribal employers are confronted with the difficult decision of inviting employees back to the tribal workplace to provide the needed services to their tribal members and communities and reopen the businesses which fund those governmental programs. When a tribal employer [...]
Three Questions Returning Employees
In this edition three questions are addressed which are relevant to employees returning to work for tribal governments, casinos and other entities. I have benefitted from consulting with NNAHRA President Judy Wright in thinking about these questions. Can a tribal [...]
Tribal Employment News-EEOC Modifies Guidance
EEOC Re-Issues Confusing Guidance As tribal governments, casinos and other entities are reopening, there are many questions in how best to protect returning employees. Even though the federal Equal Employment Opportunity Commission lacks jurisdiction in most instances over tribal [...]
Will your handbook disclaimer be enough?
In a recent state court decision the court evaluated whether the employer's employee handbook created an implied contract, and if it did, could the implied contract be enforced? Contracts can be explicit or can be implied. Explicit contracts, for example, are [...]
Two Parts: (1) Furlough versus Lay-Off (2) More FMLA FAQs
The first portion of this edition of Tribal Employment News addresses the distinction between furlough, lay-off and reduction-in-force. The second portion includes the federal Department of Labor’s expanded FAQs on the modified version of the FMLA. FAQs 40 through [...]
Does the change to the FMLA apply to tribal employers?
This question requires a couple step analysis. Must tribal employers follow the FMLA? There is an argument the FMLA applies to tribal employers and an argument it does not. There is not one answer to this question and therefore tribal [...]
Legal Update
The metaphor “drinking water out of a firehose” is meaningful to tribal leaders and their human resources team because the daily deluge of workplace issues does not allow for idle hands in tribal council chambers nor the human resources [...]
A Preference Challenge
Whether preferring a Native person over a non-Native person is an unlawful use of race was settled over 40 years ago in Morton v. Mancari when the United States Supreme Court declared that choosing a Native person in hiring was not based [...]
Service Animal Rules For Tribal Employers
There is an increase in the number of service and comfort or emotional support animals appearing with their companions at restaurants, shops and airplanes. There appears to be a line between the public’s acceptance of service animals which necessarily [...]
Analysis Regarding Social Media Policies
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 [...]
Employee Immunity Challenged by Court
Yesterday the United States Supreme Court ruled against tribal interests in the employee sovereign immunity decision titled Lewis v. Clarke. Recall that Mr. Clarke operated a Mohegan Sun limousine wherein he allegedly crashed into the Lewis's causing property damage [...]
Do tribal employers have control over the immunity of tribal officials and employees?
Yes. Immunity is a defense to a lawsuit wherein the tribal government asserts that the court does not possess power or jurisdiction over the tribal defendant without the defendant’s consent. There is a debate, and therefore risk to tribal employers, [...]
Consent After Dollar General
Last month the United States Supreme Court Court heard arguments in the tragic case titled Dollar General v. Mississippi Band of Choctaw Indians. In that case a retailer locates a store on tribal land and consents to the tribe's [...]
Preference Policy Best Practices
The use of preference in tribal employment is a widespread practice which incorporates many policy variations. There are at least three elements to a strong preference policy. The first element addresses what category or categories of people are preferred, [...]
What is the news relating to tribe-specific preference?
Last week a federal court dismissed Equal Employment Opportunity Commission v. Peabody Coal and Navajo Nation in a long awaited judgment reaffirming the legality of utilizing tribe-specific preference in hiring. Many tribal governments offer government and enterprise jobs first [...]
Must tribal employers cash out vacation upon termination?
Must tribal employers pay employees for unused vacation or paid time off (PTO) upon termination? The answer depends on the answer to another question: Has the tribal employer promised to pay employees for unused vacation or PTO? If the answer [...]
Are you reading the script?
Tribal employers provide an abundance of due process in the workplace. As part of that process, tribal employers frequently give employees an opportunity to grieve a wide range of workplace disputes. Whether grievance hearings are formal or informal, hearing [...]
Have you included a “Get Along With Others” policy in your handbook?
In some instances, it may not be a good idea to use the hostile work environment policy when addressing hostility in the workplace. Hostile work environment is a subset of sexual harassment. If employees are displaying hostile behavior in [...]
Should employers promulgate a fraternization policy?
Yes. Workplace camaraderie is beneficial for employers but Friday night frat-house behavior is counterproductive, ruins office furniture and may get you sued. Can employers draw the line between the workplace and the frat-house? One tool many employers use in [...]
What are the fingerprints of government?
In considering whether federal employment laws apply to tribal employers, some courts are drawing a distinction between tribal government operations and tribal enterprises. The federal employment laws in question are the laws addressing minimum wage, overtime, leave, unions, safety, [...]
Does your employee handbook include the right ingredients?
Employee handbooks serve to define employee success and failure in the workplace. Employers express their definition of success and failure in the workplace by affirming some behavior and prohibiting other behavior. On the affirmative side, employers reward productive practices [...]
Drug and Alcohol Policy Best Practices
Tribal governments and their enterprises address the use and possession of drugs and alcohol in the workplace, and the external use impacting the workplace, with policies defining the relevant rules and practices. If your policy has not been updated [...]
Have you reviewed your domestic violence policy?
Domestic violence is a serious problem for society and since Human Resources interacts with all aspects of society, addressing domestic violence in the workplace must be an aspect of our roles. The United States Department of Justice reports: "According [...]
What Tribal Employers Should Know About Defamation?
Tribal employers should be aware of the potential for defamation claims from both the perspective of the tribal employer and from the perspective of tribal officials and employees. Since both the tribal employer, and the officials and employees acting [...]
Should tribal employers require employees to consent to tribal rules?
Yes. The courts have made it more difficult for tribal employers to require employees to follow the rules. To reduce this difficulty, tribal employers should clearly define the rules, obtain employee consent before application of the rules, train employees [...]
Are there bullies in your workplace?
If the world wide web provides realistic feedback, one of three employees have been bullied by other employees and of those bullies, 60% are men and of those men, they are equal opportunity bullies by bullying men as often [...]
Is BYOD a good idea?
Human Resource professionals toss around acronyms which shorten conversations about laws, best practices and hardware. In this example, the BYOD acronym references hardware, which is short for Bring Your Own Device. In other words, employees already own sophisticated mobile [...]
Which is better…at-will or for cause?
In representing tribes and enterprises in court, the issue of at-will employment is frequently a factor in my cases and a recent case for a tribe generates my interest in this topic. In court, I like employment at-will because [...]
Can a state worker’s compensation court hear a dispute involving an injury incurred by a worker while assisting with the expansion of an on-reservation casino?
Recently, the Minnesota Supreme Court said that Minnesota worker's compensation courts have the power (jurisdiction) to hear disputes when the worker is injured in connection with a casino expansion project located on tribal lands. The employer was an enrolled [...]
Do nonunion employees possess Weingarten rights?
Weingarten is a city in southern Germany, a famous piano player, and a grocery store dispute generating a 1975 United States Supreme Court decision wherein employees fought for and won the right to have a union representative present at [...]
What are your answers to 18 questions regarding termination?
As a human resources employee, tribal council member or department director, have you witnessed an employee termination and thought the tribe should have done more to keep the employee? There are times when an employee is not interested in [...]
Should tribal employers define what is contained in a personnel file?
Yes. Defining the required contents of personnel files is beneficial to tribal employers for numerous reasons. First, by defining the contents of a personnel file, the employer defines what is included and just as importantly what is not included [...]
Personal Conduct Policy
When employers define workplace rules through employee handbooks and policy manuals there are some rules included which reach beyond the workplace and extend to conduct while employees are off the clock. My mind brings ambivalence to recommending these policies because, [...]
Leadership
There are relevant questions of leadership in the news everyday. Tribal leaders and powerful citizen voices are challenging the status quo at the DAPL, President Obama is passing the baton to a new group and the human resources team is [...]
What are the ingredients of a job description which exceeds expectations?
Here are the dozen reasons to update job descriptions to the reality of the workplace in 2016. 1. Checklist for Hiring A well drafted job description should serve as the primary measuring stick in evaluating whether a candidate for [...]
What Best Practices Define Successful Investigations of Employee Conduct?
Tribal employers define workplace rules with the expectation that employees will follow the rules and in most instances good behavior is the result, but there are times when employees fall short of the mark. In those instances when employees [...]
Should human resources directors be part of the executive team?
On the tribal government side of the street, the executive team is frequently comprised of the tribal administrator, assistant administrator, finance director, and Council liaison. On the other side of the street, the casino's executive team includes the general [...]
10 Things HR Needs to Know About Gaming
Human Resources needs to know a lot about all of the acronyms (FLSA, FMLA, NLRA and more) and the numbers (I-9, 638 funds and PL 101-630), and for those HR professionals serving tribal casinos, in addition to the acronyms [...]
Employees Playing Football
The NFL ended its season with an exciting Super Bowl proving the league continues to popular, but some of its employment practices are at odds with the best practices endorsed by tribal employers. Comparing and contrasting the employment practices [...]
What is the role of casino employer in performing due diligence in evaluating prospective employees?
Where a clear and limited delegation of authority is granted to the gaming commission, the employment function is the exclusive province of the tribal casino. Accordingly, tribal casinos have a duty to perform the full range of employment functions [...]
How to Best Document Employee Behavior?
The line between good documentation which serves the employer’s interests and documentation which does not is driven by numerous elements which are discussed below. Before addressing the ingredients which are evident in good documentation, an examination of why employers [...]
Can employees sue in tribal court when they are defamed?
Yes. Last month a tribal court stated that an employee of the tribe could sue when a pamphlet was circulated at tribal meetings stating that the employee was terminated by the tribe because she lost millions of dollars in [...]
Should employment at-will be part of a supervisor’s typical conversation with an employee?
Answer: No. As a general rule directors, managers and supervisors should not discuss employees’ at-will status with employees they supervise. I do not object to a conversation about at-will, but oftentimes, I object to the purpose for having the [...]
Leadership
Lots of people like the convenience, selection and efficiency of buying things from Amazon. You know Amazon, the Seattle based company not the rainforest near the equator filled with snakes and bugs. Tribal Human Resources is in the business [...]
22 Ways to Keep Human Resources Out of Trouble
How can the Tribe actively minimize liability to employee claims and what role can the human resources team serve? Is the tribal employer playing litigation lottery or taking the steps necessary to minimize employment related claims? Please consider trading [...]
Striving to Understand Sexual Harassment
In harassment, discrimination and bullying training, after recognizing I have significant room for improvement, I ask managers to place themselves in the alleged victim’s shoes in treating him or her with dignity and the seriousness with which the circumstances deserve. [...]
Think a Second Time About Discrimination in the Workplace
All responsible tribal employers take unlawful discrimination seriously by defining those characteristics which will not be utilized in making workplace decisions. Those things are almost always defined as race, religion, national origin, gender, age, disability, sexual orientation, pregnancy, marital [...]
Will there be an increase in gender based discrimination claims?
Is harassment based on a failure to conform to gender stereotypes a potential legal claim? In the December 2013 edition of Corporate Counsel there is an excellent summary of a federal court case which evaluated whether someone can pursue [...]
Addressing retaliation in the workplace
Earlier this year the United States Supreme Court ruled that when an employee filed sex discrimination charges against her employer, the employer could not retaliate against her by firing her fiance. The precedent will certainly deter employers from terminating [...]
What is, and is not, a hostile work environment?
Hostile work environment is frequently misunderstood by employees. Employees working for tribal employers are just as confused as employees working for non-Native organizations. Sometimes an employee's confusion regarding what is, and what is not, a hostile work environment, influences [...]
Sexual Harassment Best Practices
The spotlight on sexual harassment has generated an abundance of employer introspection. For tribal employers, what should that introspection include? Since the late 1980s when the United States Supreme Court engaged the sexual harassment conversation through several important cases, [...]
Are grumpy employees creating a hostile work environment which is actionable under the law?
Grumpy workers (even hostile workers) do not necessarily create the circumstances for an employment related court action. On the one hand, if the grumpy worker is grumpy with everyone, the employer should certainly manage the grumpy employee toward respectful [...]
Why is specificity necessary for tribes to define equal opportunity in employment?
Unless modified through a compact, agreement or waiver, federal anti-discrimination law does not apply to on-reservation tribal employment practices. Additionally, in most circumstances state human rights laws do not apply to tribal employers. Since both the federal and state [...]
Should tribal employers use arrest and conviction records in hiring and retention decisions?
Yes. Due diligence in hiring and retaining good employees is consistent with sound managerial and legal practices. Criminal background checks, reference checks, interviews and scrutiny of employment applications comprise some of the due diligence performed by prudent employers. Once [...]
Will the recent U.S. Supreme Court decisions impact tribal employers?
Yes. Let's discuss three United States Supreme Court decisions which generated lots of press and may have an impact on your work as a tribal employer. Same Sex Marriage In United States v. Windsor the Supreme Court struck down [...]
Managing FMLA
Whether the Family & Medical Leave Act applies to tribal employers is an open question, but if a tribal employer applies the law, or adopts a law or policy which is similar to the FMLA, here are some management recommendations [...]
FMLA Recommendations
I like a blog called FMLA Insights published by the law firm Franczek Redelet and a recent post included recommendations for reviewing an employer's FMLA practices. Some of the following is based on recommendations from that blog. Employers should evaluate [...]
What’s up with the FMLA?
The Family and Medical Leave Act is a difficult law to apply for any employer and the complexity increases for tribal employers. There is more complexity for tribal employers for at least two reasons. First, whether the FMLA applies [...]
Controlling FMLA Abuse
Most employees using the myriad benefits of the Family & Medical Leave Act are honest, deserving and exercising good faith. On the other hand, some employees are abusing FMLA. Are there some techniques tribal employers can implement to minimize [...]
Should Employees Work While Out on FMLA?
No. If tribal employers follow the Family & Medical Leave Act (FMLA) or meet its minimum standards, does it violate the law if an employee is working while out on job protected leave? The law does not explicitly prohibit [...]
Do employees lose ground when they take time off for childbirth?
When female employees take time off to recover from giving birth to a child and bonding with the newborn, is there potential liability if the employee does not receive a bonus or is penalized for failing to be as [...]
Does the FMLA extend job protected leave for the care of an employee’s adult child?
Under a recent Department of Labor interpretation of the Family and Medical Leave Act, the DOL interpreted the law to provide job protected leave to employees for the care of the employee's adult child. Whether the FMLA applies to [...]
Can employers make partial day deductions from discretionary benefits due exempt employees?
The Fair Labor Standards Acts is a federal overtime law which may, or may not, apply to tribal employers. If the FLSA applies to tribes, care in applying the rules to exempt (not overtime eligible employees) is a difficult [...]
Should non-exempt employees be issued cell phones by their employers?
The short answer for many employers is no. No is not the only answer but it should be a consideration for managers in evaluating what appears to be a neutral or risk free business decision. If the Fair Labor [...]
Meal Periods
A Fair Labor Standards Act case involving angry prison guards reminds me of a dispute in the courts regarding the correct rule to apply in determining whether employers are required to pay employees for meal periods. Remember whether the [...]
Are the tribal government and casino one employer or two for overtime purposes?
Under the Fair Labor Standards Act, if an employee works 36 hours a week for the tribal government, the employer is not required to pay overtime since employers are only required to pay overtime if the employee works more [...]
Must interns be paid?
In the summer, tribal employers give interns a chance to expand their skills and understand the important work of tribal governments and enterprises. For interns, these real life experiences may be a fair substitute for wages and the intern [...]
Non-exempt and exempt: What do these terms mean and why does it matter?
In eight months the way tribal employers pay their workers will likely change because of a change in the way the law’s regulations interpret which workers must be eligible for overtime compensation (non-exempt) and which workers are not entitled [...]
Under the law, are employees entitled to double time or triple time when they work on the weekend or during holidays?
No. An overview of an employer's overtime practices almost always raises a question regarding premium pay and here is the standard answer. If the Fair Labor Standards Act applies to tribal employers, non-exempt employees are entitled to overtime compensation [...]
What is an FLSA self-audit?
Last week's newsletter addressed whether employers may deduct from discretionary leave banks (PTO) for the partial day absences of exempt employees. To continue that conversation, this week's newsletter provides a self-audit tool to evaluate whether an employee is exempt. [...]
What is the Uniformed Services Employment and Reemployment Rights Act?
The acronym USERRA is the shortcut label for a federal law which provides rights and benefits for employees and applicants who have served the United States in the military or other forms of protected service. The law's primary purpose [...]
Can unions organize your workers under federal law?
The answer is not satisfactory since there is not a clear answer. The lack of clarity in the law reveals a legal argument which declares that the federal union law, the National Labor Relations Act, does not apply to [...]
Should tribes define employment rules through the law?
Yes. I endorse tribes promulgating employment laws for the following four reasons. First, tribes exercise sovereignty by defining the relevant rules. In the employment context, the relevant rules are memorialized by defining employment law, employee handbooks, standard operating procedures and [...]
Independent Contractor or Employee…does it matter?
Yes, it matters. President Obama says it matters. Last year he promised increased enforcement of the rules which limit when employers may designate a worker an independent contractor. Both the law and the President assert that some employers are [...]
What are the practical requirements of the Drug-Free Workplace Act for tribal employers?
The Drug-Free Workplace Act of 1988 (Public Law 100-690) requires that organizations receiving grants from any federal agency agree to maintain a drug-free workplace. Most tribes exercise their right to receive federal grants and therefore comply with the Act. [...]
NLRB Decisions
Whether the federal union law, the National Labor Relations Act (NLRA), applies to tribes is an open question without a certain answer. The conversation around this open question just became even more interesting with the decision of the National [...]
Can employers use age as a factor in making employment related decisions?
Generally, the answer is no. The Age Discrimination in Employment Act of 1967 (ADEA) limits an employer's use of age as a factor in employment related decisions. Whether the ADEA applies to tribal employers is an open question as [...]
What should you know about the federal age discrimination law?
What is the federal age discrimination law? The Age Discrimination in Employment Act or ADEA. Does the ADEA apply to tribal employers? There is no single correct answer to this question. There are arguments that the ADEA applies to [...]
How can the tribal casino actively minimize liability to employee claims?
Is the tribal casino employer playing litigation lottery or taking the steps necessary to minimize employment related claims? Please consider trading in the “I hope we do not get sued” philosophy for a proactive strategy in minimizing employee workplace [...]
How to minimize risk when immunity is challenged?
Sovereign immunity protects governments from lawsuits to which the government does not consent. Tribal governments, of course, possess immunity from lawsuits unless, according to the United States, the United States is the party presenting a claim against the tribal [...]