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 and numbers, insight regarding gaming is a prerequisite to success. Here is a list of ten things HR needs to know about gaming to navigate some of the unique aspects of the relevant rules. Actually, [...]
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 of the NFL and Tribes is an interesting, and may be, a useful exercise. There is a lot of touching in the NFL which would not be endorsed in a tribal workplace. In the NFL it appears [...]
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 which include hiring, firing, disciplining and coaching employees. The only role of the gaming commission in the employment process is, for some or all of the employees of the tribal casino, a license from the [...]
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 document is necessary. Why document employee behavior? Provide Managers with a record. In the absence of perfect memory, managers need to document the good behavior and the behavior needing improvement. And in those instances when [...]
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 third party billings and after she was fired she violated the nepotism policy by getting her family to intervene and return her to her job. Unfortunately for defendants, none of these allegations were true. Please [...]
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 conversation. On the one hand, if an employee seeks a better understanding of at-will, supervisors should discuss the policy and its application. No objection. On the other hand, in my experience, conversations about at-will are [...]
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 of customer service and upon examination, the principles of leadership, if applied, embraced and practiced will assist Human Resources in delivering the best customer service. Here are those principles with color commentary. Customer Obsession Leaders start with [...]
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 in the “I hope we do not get sued” philosophy for a proactive strategy in minimizing employee workplace claims. Some of the suggestions in this list may assist in reducing liability. In addition to the [...]
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. To reinforce this respectful request, I include the following powerful quote from a 1991 discrimination case: "Because women are disproportionately the victims of rape and sexual assault, women may have a stronger incentive to be [...]
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 status, political affiliation, veteran status, military leave and other categories. Once defined, responsible employers enforce the policies necessary to send a clear message that discrimination will not be tolerated. The question is whether this is [...]
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 a harassment claim when employees get singled out when they do not fit in. In this gender stereotyping case, the construction worker who sued did not fit in at the workplace because he was perceived [...]
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 or harassing family members as a means of retaliating against an employee for challenging the employer or a specific supervisor. In a related analysis, Equal Employment Opportunity Commission statistics reveal that retaliation claims have increased [...]
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 the way employers address the behavior in the workplace. Employers which improperly label hostile workplace behavior as a subset of sexual harassment likely will increase the perception of risk within the tribal organization. Those misperceptions [...]
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, the conventional wisdom for employers included three recommendations: (1) prohibit sexual harassment in a clear policy; (2) train employees on the policy; (3) enforce the policy. That three-part recommendation may have helped employers sell their [...]
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 workplace behavior, but there is little risk of a lawsuit. On the other hand, if an employee is selective in their grumpy behavior and targets a particular gender ("Women should be at home not in [...]
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 sovereigns have not or cannot define equal opportunity in employment for tribes, it is important for tribes to define equal opportunity in employment in a manner which reflects the tribe's unique traditions, customs, values and [...]
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 the employer performs the due diligence and gathers the facts, are there limits on the use of those facts in making employment related decisions? Of course there are limits on the use of the facts [...]
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 or invalidated a portion of the Defense of Marriage Act. DOMA declared that marriage for federal government purposes was a union between a man and a woman. The Supreme Court ruled that a portion of [...]
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 from FMLA Insights the blog authored by Jeff Nowak. Under the FMLA, employees are not required to specific words in requesting job protected leave, but instead the law requires employees to provide sufficient information for [...]
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 whether to follow the FMLA Since there is an argument that the FMLA applies to tribal employers and an argument it does not, whether the FMLA applies to tribal employers is an open question. This [...]