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 there may, or may not, be defenses to an enforcement action brought by a private person attempting to protect their rights.
Some tribes do not directly follow the FMLA and instead meet FMLA standards through tribal law or policy or both.
Must tribal employers follow the Families First Coronavirus Response Act?
The Families First Coronavirus Response Act (FFCRA) temporally amends the FMLA. If the tribal employer follows the FMLA, or meets FMLA standards under tribal law or policy, there is consistency in following the FFCRA or meeting its standards, however like the FMLA, the FFCRA is silent on its applicability to tribal employers.
Importantly, the FFCRA does not apply to private employers with more than 500 employees.
What is the effective date of the FFCRA?
April 1, 2020.
Therefore any pay, or wage substitutes like paid time off, vacation or sick provided before April 1, appear to have no impact on any pay under the FFCRA.
How do employers determine if there are 500 or less employees?
The FFCRA applies to private employers with 500 or less employees. Since the FMLA applies to government employers without regard to the number of employees (no 50 employee minimum), the impact of the private versus public nature of the FMLA and FFCRA is not addressed in this analysis, but may have an impact on the question. As to the 500 employee threshold, for some employers, the calculation is a simple head count, but for many employers with different entities, the math is not simple. For example, if there are 200 employees working for the tribal government and 400 employees working for the tribal casino, the math generates a sum of 600 employees. A question flows from the math: Does the tribal government and the tribal casino exceed the 500 employee FFCRA threshold?
To answer this question, the federal Department of Labor (DOL) is using the joint employer rule to evaluate the question of whether the tribe is a joint employer when the tribal government employs 200 and the tribal casino employs 400. In this temporary modification of the FMLA, the DOL is using the joint employer rule published under the Fair Labor Standards Act. That rule became effective on March 16, 2020. Since that final rule is a recent rule, make sure you are reviewing the latest version of that rule published as 29 C.F.R. Part 791.
The joint employer rule evaluates who is jointly and severally liable for the employee’s wages. Consider an analogy, joint and several liability is similar to parents with children living in one house with both parents: Mom is 100% responsible for little Johny and Dad is 100% responsible for little Johny. Mom pays little Johny’s allowance in January (Dad is still responsible) and Dad pays the allowance in February (Mom is still responsible). Mom and Dad are jointly and severally liable (responsible) to Johny for allowance installments paid in January and February. Like two parents, can two seemingly separate entities be considered responsible for an employee’s pay?
The rule is not always easy to apply.
In thinking about an employer’s joint responsibility to an employee, the DOL asks employers to determine if there is direct or indirect control over the employee. An employer with direct control over employees working in two locations is a joint employer while an employer with indirect control likely is not a joint employer. The difference between direct and indirect focuses on the following four questions:
Who hires or fires the employee?
Who supervises and controls the employee’s work schedule or conditions of employment to a substantial degree?
Who determines the employee’s rate and method of payment?
Who maintains the employee’s employment records?
Employers should not rely on one question and answer but instead review the answers to all four questions and evaluate whether the answers taken together favor direct or indirect control. If the answers favor direct control, the employer is a joint employer. If the answers favor indirect control, the employer is not.
Typically, since the tribe’s elected officials control employees working for the tribal government, that control is a given. Therefore, in the above scenario, it is a given that tribal government exercises control over government employees. With that premise, the relevant question is whether the tribal government (likely Tribal Council) exercises control over the casino, manufacturing center and convenience store. In applying the DOL’s four questions referenced above, the analysis is not clear for tribal employers as the following hypothetical answers reveal:
Question 1: Who hires or fires the employee?
Answer: The Tribal Council exercises ultimate responsibility for hiring and firing government employees but only hires and fires the casino General Manager and Chief Financial Officer. All the other casino employees are hired and fired by department directors.
Score Question 1: Tribal Council has direct control over 202 employees (200 government employees plus the GM & CFO) and at best indirect control over the other casino employees.
Question 2: Who supervises and controls the employee’s work schedule or conditions of employment to a substantial degree?
Answer: For government employees, the Tribal Council exercises ultimate control over employee schedules and the policies and procedures which define the conditions of employment. Tribal Council expects the casino GM to be available when Council calls, but exercises no meaningful control over the GM’s schedule. On the other hand, the Tribal Council approves the contracts for the GM and all nine directors at the casino.
Score Question 2: Tribal Council has direct control over 210 (200 government employees plus the casino GM and directors) employees and at best indirect control over the other casino employees.
Question 3: Who determines the employee’s rate and method of payment?
Answer: Tribal Council has approved a wage scale for all government employees and for all casino employees. Tribal Council has approved a policy which declares that employees must be paid in a manner which is consistent with the wage scale. With the wage scale as a guide, directors and managers make decisions regarding the specific salary or hourly wage paid.
Score Question 3: Tribal Council exercises direct control over 600 employees.
Question 4: Who maintains the employee’s employment records?
Answer: Government employee records are maintained by the government’s human resources department and casino records are maintained by the casino’s human resources department.
Score Question 4: Tribal Council exercises control over 200 employees.
Conclusion: In response to questions 1, 2 and 4, Tribal Council does not exercise direct control over more than 500 employees. In response to question 3, Tribal Council exercises control over 600 employees. Since more of the answers favor direct control over less than 500 employees, Tribal Council is not a joint employer over both the government and the casino. Since the government has 200 employees (less than 500) and the casino has 400 employees (less than 500), the tribal employer has less than 500 employees for FFCRA purposes.
Recommendation: Evaluate the facts which are relevant to your tribe before analyzing the applicability of the FMLA and FFCRA to a specific tribal employer.