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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. [...]

By Richard McGee|Employment Laws|

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 reopens those governmental operations (essential government functions and enterprises) are there policies which should be created or modified to address these unique times? The answer is yes and here are some draft policies for your [...]

By Richard McGee|All Articles, Policies|

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 employer discipline an employee for refusal to work generated by fears about contracting COVID-19 at work? Can a tribal employer terminate an employee who refuses to return to work because of lack of childcare? If [...]

By Richard McGee|All Articles, Management|

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 [...]

By Richard McGee|All Articles, Employment Laws|

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 paper contracts which when signed by the parties to the contract are enforceable. In other words, paper contracts if broken can be the subject of a lawsuit and the court can force the breaching party [...]

By Richard McGee|All Articles, Policies|

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 [...]

By Richard McGee|All Articles, Employment Laws|

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 [...]

By Richard McGee|All Articles, Employment Laws|

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 [...]

By Richard McGee|All Articles, Employment Laws|

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 on race but instead based on the candidates connection to their Tribal Nation. The Morton precedent is being challenged, not in employment cases, but in child welfare cases under the Indian Child Welfare Act. On August 9, [...]

By Richard McGee|All Articles|

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 [...]

By Richard McGee|All Articles, Employment Laws|

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 [...]

By Richard McGee|All Articles, Employment Laws|

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 and personal injuries. The case challenges the application of tribal sovereign immunity for the protection from a lawsuit for an employee of a tribal enterprise. The case is an appeal of a ruling by the Connecticut [...]

By Richard McGee|All Articles, Sovereignty|

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, of whether explicit or implied consent is necessary to reach consent, but that debate is for another day. Tribal employers can raise the defense of immunity if the tribe is sued. Accordingly the tribal employer [...]

By Richard McGee|All Articles, Sovereignty|

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 rules until an employee of the store allegedly molests a young trainee. When the issue goes to tribal court the retailer argues that the court did not have the power (jurisdiction) to hear the case. [...]

By Richard McGee|All Articles, Sovereignty|

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, the second element directs when preference is used and the third element defines scope. Element 1-Lists Preference policies can simply articulate Native preference wherein the employer prefers a Native applicant over a non-Native applicant. Alternatively, [...]

By Richard McGee|All Articles, Preference|

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 to qualified members of the tribe before offering the job to members of other tribes and the courts have characterized that hiring process as tribe-specific preference, but a cloud of litigation has raised questions regarding [...]

By Richard McGee|All Articles, Preference|

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 to that second question is yes...the tribal employer should fulfill the promise. If the answer to that question is no, there is less risk in denying a request to cash out. The assumption in that [...]

By Richard McGee|All Articles, Policies|

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 procedures provide the architecture for a balanced process. If you use hearing procedures in the grievance process, would a script help the grievance panel uniformly deliver a fair and consistent hearing? A failure to use [...]

By Richard McGee|All Articles, Policies|

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 the workplace, but the hostility is not targeted against a protected class, the offensive behavior might not be a violation of your harassment policy. Even though the behavior may not violate your harassment policy, you [...]

By Richard McGee|All Articles, Policies|

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 defining that line is a fraternization policy. Of course not all or even most romantically involved coworkers violate the twin constraints of employer policy or good taste, but for those employees who are overly enthusiastic [...]

By Richard McGee|All Articles, Policies|

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