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 [...]

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 [...]

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 [...]

Are there bullies in your workplace?

If the world wide web provides realistic feedback, one of three employees have been bullied by other employees and of those bullies, 60% are men and of those men, they are equal opportunity bullies by bullying men as often as they bully women.  On the other hand, when women bully in the workplace, women predominantly bully other women.  Do these generalizations ring true? Whether the statistics are true or not, anecdotal evidence reveals that [...]

Is BYOD a good idea?

Human Resource professionals toss around acronyms which shorten conversations about laws, best practices and hardware.  In this example, the BYOD acronym references hardware, which is short for Bring Your Own Device.  In other words, employees already own sophisticated mobile devices (which we used to call telephones) and is there a way to leverage these devices while employers save money and employees receive reimbursement for some or all of their device related costs?  The answer [...]

Which is better…at-will or for cause?

In representing tribes and enterprises in court, the issue of at-will employment is frequently a factor in my cases and a recent case for a tribe generates my interest in this topic.  In court, I like employment at-will because it makes my job easier and protects my tribal employer. Your employees like the for cause standard because it makes it more difficult for you to terminate them and it increases your exposure to liability. [...]