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 to tribal employers is an open question. There is an argument the FMLA applies and there is an argument the FMLA does not apply. Second the definition of family in the FMLA is more restrictive [...]
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 FMLA abuse by those employees who may be tempted to cut some corners? Yes. Permission Get employees to complete a leave request for any and all kinds of leave requested. Employees can provide verbal notice [...]
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 employees working while out on job protected leave, but the employee could argue that the employer, overtly or not, expected the employee to continue to perform some work. From there the employee will argue that [...]
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 productive as other employees? I have at least three lines of thought in response to this question. First, beyond what the law requires, tribal employers should take the steps necessary to ensure that policies and practices reduce [...]
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 tribal employers is an open question, but if it does, the circumstances giving cause for leave is an important aspect of the law. The FMLA entitles an eligible employee to job protected leave to care [...]
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 and necessary aspect of compliance with an eye toward minimizing employer risk. Employers recognize that since exempt employees are not entitled to overtime compensation, the bargain is that employers must not, in most instances, reduce [...]
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 Standards Act applies (an open question), non-exempt employees shall be paid for all hours worked regardless of place or time. Accordingly if your non-exempt workers are working off the clock, they are entitled to pay. [...]
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 FLSA applies to tribal employers is an open question generating an argument that it applies and the opposite argument that it does not apply. If the FLSA applies, or if your tribe meets the requirements of [...]
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 than 40 hours in a workweek. If the tribal government employee supplements her livelihood with 8 additional hours of work for the gaming enterprise, is any part of that 8 hours considered overtime? First, the [...]
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 may agree to no pay. But even with the intern's consent, do employers have risks in no-pay internships? The threshold question is whether the federal wage law, the Fair Labor Standards Act, applies to tribal [...]
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 (exempt). Those employees who are eligible for overtime compensation will increase. Statistics suggest 1 in 4 employees will move to overtime eligible so therefore this is a good time to evaluate whether your present system [...]
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 measured at 1.5 times the employee's regular rate. The FLSA requires the payment of overtime to non-exempt employees for all hours worked in excess of 40 hours in a work week. However, the FLSA does [...]
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. Remember, the designation of an exempt employee starts with the presumption that the employee is not exempt. The law presumes that employees are entitled to overtime compensation and to overcome that legal presumption, the employer [...]
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 is to protect the jobs of military personnel who leave to serve and return to the job they left. Are tribal employers obligated to follow USERRA? There is a dispute regarding the applicability of USERRA [...]
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 tribal governments and their enterprises. The other legal argument asserts the opposite which is the NLRA applies to tribes. As a result of these competing legal arguments there are at least three practical options. First, [...]
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 job descriptions. As discussed below, it all starts with clear employment law which can further be defined by policy and procedure. Second, by defining the employment rules through the law (and policy) the tribe is leveling [...]
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 misclassifying workers in an effort to reduce employer costs and liability. Of course there are other employers misclassifying workers from lack of insight on the issue but whether the misclassification is intentional or innocent, getting [...]
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. The Act requires grant recipients to perform certain specific functions and the Act makes room for recipients to exercise a fair amount of discretion in performing other tasks. What are those specific tasks? In complying [...]
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 Labor Relations Board (NLRB) to forego its jurisdiction over a gaming enterprise owned and operated by the Chickasaw Nation. In light of the NLRB's assertion of jurisdiction over gaming enterprises owned by the Little River [...]
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 there is an argument it applies and there is an argument it does not apply. As an exercise of the tribe's sovereignty, tribes choose whether to follow the ADEA, create tribal law which meets the [...]