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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 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 [...]

By Richard McGee|All Articles, Harassment & Discrimination|

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 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 [...]

By Richard McGee|All Articles, FLMA|

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 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 [...]

By Richard McGee|All Articles, FLMA|

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 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 [...]

By Richard McGee|All Articles, FLMA|

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 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 [...]

By Richard McGee|All Articles, FLMA|

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 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 [...]

By Richard McGee|All Articles, FLMA|

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 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 [...]

By Richard McGee|All Articles, FLMA|

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 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 [...]

By Richard McGee|All Articles, FLMA|

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 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 [...]

By Richard McGee|All Articles, FLMA|

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 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 [...]

By Richard McGee|All Articles, FLSA|

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 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. [...]

By Richard McGee|All Articles, FLSA|

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 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 [...]

By Richard McGee|All Articles, FLSA|

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 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 [...]

By Richard McGee|All Articles, FLSA|

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 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 [...]

By Richard McGee|All Articles, FLSA|

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 (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 [...]

By Richard McGee|All Articles, FLSA|

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 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 [...]

By Richard McGee|All Articles, FLSA|

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. 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 [...]

By Richard McGee|All Articles, FLSA|

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 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 [...]

By Richard McGee|All Articles, Employment Laws|

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 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, [...]

By Richard McGee|All Articles, Employment Laws|

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 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 [...]

By Richard McGee|All Articles, Employment Laws|

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