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, three for workplace safety, three for constitutional and civil rights and two for labor issues.  As tribal employers return employees to the workplace, here is a brief overview of potential issues which may generate litigation. [...]

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 employers, the rules it is articulating in this difficult time can influence a tribal employer’s thinking in defining tribal rules.  EEOC modified its guidance to address those employees who have medical conditions that make them [...]

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 62 were added over the weekend. Furlough versus Lay-Off versus Reduction-in-Force Generally speaking a furlough is a non-disciplinary suspension from work without pay for a specific length of time.  Employers are also using the term temporary lay-off [...]

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 employers answer this question with the guidance of tribal leadership, human resources professionals and lawyers.  If a tribe, through a gaming compact or funding agreement, consents to application of the FMLA, the law applies, but [...]

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 director’s office.  In addition to addressing those important daily issues, keeping up with the latest legal trends is yet another job which the calendar offers no time.  Therefore, through short summaries, here are some of [...]

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 assist people navigate public obstacles (a blind person utilizing a dog) or a Veteran with post traumatic stress.  On the other hand, the public is less tolerant of accepting comfort or emotional support animals in [...]

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 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 [...]

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 [...]

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, [...]

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 [...]

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 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 [...]

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.  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 [...]

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 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 [...]

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 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 [...]

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 tribal employers and there are arguments it does not apply.  Like the federal overtime, union, leave and safety laws, this debate will persist and each tribe should evaluate the options and make a choice which [...]