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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 [...]

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, [...]

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 [...]

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 [...]

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 [...]

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. [...]

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, [...]

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 [...]

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 [...]

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 [...]

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 [...]

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 [...]

What are the fingerprints of government?

In considering whether federal employment laws apply to tribal employers, some courts are drawing a distinction between tribal government operations and tribal enterprises. The federal employment laws in question are the laws addressing minimum wage, overtime, leave, unions, safety, age discrimination and others.  For tribal government operations like education, health care, and the delivery of clean water, these courts are agreeing with tribes in declaring that some federal employment laws do not apply to [...]

Does your employee handbook include the right ingredients?

Employee handbooks serve to define employee success and failure in the workplace.  Employers express their definition of success and failure in the workplace by affirming some behavior and prohibiting other behavior.  On the affirmative side, employers reward productive practices like timely reporting to work and dressing in a professional manner.  On the negative side, employers discipline harassment, retaliation and unlawful touching.  By defining these important positive and negative policies, by defining the terms and [...]

Drug and Alcohol Policy Best Practices

Tribal governments and their enterprises address the use and possession of drugs and alcohol in the workplace, and the external use impacting the workplace, with policies defining the relevant rules and practices.  If your policy has not been updated for awhile, here are some thoughts regarding some, but certainly not all, of the best practices used by tribes. Consent.    Before the specific best practices of drug and alcohol policies are addressed, determine whether the [...]

Have you reviewed your domestic violence policy?

Domestic violence is a serious problem for society and since Human Resources interacts with all aspects of society, addressing domestic violence in the workplace must be an aspect of our roles.  The United States Department of Justice reports: "According to Amnesty International  “violence against women is one of the most pervasive human rights abuses. It is also one of the most hidden. It takes place in intimate relationships, within the family and at the [...]

What Tribal Employers Should Know About Defamation?

Tribal employers should be aware of the potential for defamation claims from both the perspective of the tribal employer and from the perspective of tribal officials and employees.  Since both the tribal employer, and the officials and employees acting for the tribal employer, can get sued for defamation, looking at this risk from both perspectives is prudent. The specific standards for defamation vary from jurisdiction to jurisdiction, but generally to establish a claim an employee [...]

Should tribal employers require employees to consent to tribal rules?

Yes. The courts have made it more difficult for tribal employers to require employees to follow the rules.  To reduce this difficulty, tribal employers should clearly define the rules, obtain employee consent before application of the rules, train employees to understand the rules, and enforce the rules through fair processes.  A significant portion of employee rules are contained in the employee handbook or policy manual and employee consent to the rules in the handbook [...]