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.
Deciding which employees will return to work
For returning workers, the threshold question here is whether workers were furloughed, laid off or terminated. A furloughed worker typically remained in employment status during the furlough. On the other hand, a terminated worker is not an employee and there is no legal obligation to return that worker. Typically, a laid off worker is terminated, but many employers are using the term “laid off” the same as the term “furloughed worker.” Therefore, employers should closely examine what was communicated to employees when the tribal government or casino temporarily suspended certain operations.
For furloughed workers employers use the word furlough to describe their status and likely continued health care benefits. For terminated employees, employers use the word termination or discharge, ended health care benefits and sent the former employee a COBRA notice. The employer’s actions and words at the time the employees were sent home help define the worker’s status today. Depending on the worker’s status (furloughed, laid off, terminated) there may be different levels of risk depending on how the employer decides to return, or not return, certain workers to the tribal workplace.
Most tribal employers will return employees in phases. Some employees will not receive an invitation to return. When tribal employers select employees to return or not there are at least two things shaping those decisions:
1. How can the tribal employer best follow its preference protocols?
2. What business reasons are used to select Shirley over Sam?
When tribal employers select Shirley instead of Sam, the selection should be supported by a legal basis. A legal basis for selecting Shirley over Sam is Shirley’s membership in the tribe making that selection. The law refers to that choice as tribe-specific preference. Another legal basis to choose Shirley over Sam is Shirley has 9 more years of experience, she is the department’s director or myriad other legal justifications for that selection.
When tribal employers lack a business reason (legal justification) for a decision, those not selected may suggest they were rejected because of retaliation for recently complaining about harassment or discrimination based on race, religion, national origin, age, pregnancy, gender or other alleged illegal basis. In my experience, tribal employers do not tolerate retaliation or discrimination in the workplace, and by having clearly documented reasons for selecting Shirley over Sam, the tribal employer can do the right thing and limit allegations of doing the wrong thing.
There are many workers’ compensation insurance systems which are codified by tribal and state sovereigns, so therefore the general rules discussed herein may, or may not, apply in your jurisdiction.
Workers’ compensation insurance typically replaces the right of workers to sue for damages through the courts for work related injuries. Workers’ compensation is called an exclusive remedy meaning that employees can only make a workers’ compensation claim for workplace injuries and illnesses. Said another way, an injured worker must present a claim to the workers’ compensation system instead of presenting a claim in court seeking a range of damages. As with most general rules, the exclusive remedy rule has exceptions. A notable exception is an intentional injury caused by fellow employees or third parties when the intentional act is not connected to employment. That intentional act exclusion likely has no impact on COVID-19 related claims.
Workers’ compensation benefits employers by capping damages to predictable monetary tables whereas a negligence action in a court is far less predictable for all parties. Moreover, in theory, workers’ compensation reduces the uncertainty of outcome, attorney’s fees and costs associated with negligence actions in court.
If an employee can convince a court that she has an action beyond the exclusive remedy provided via workers’ compensation, it will likely be characterized as a negligence action. What is the nature of a negligence action?
Negligence actions require a couple ingredients (1) the employer has a duty to protect employees; (2) the employer failed in its duty to protect employees; and (3) the employee was harmed. In describing an employer’s duty to protect employees, lawyers discuss the standard of care or the reasonable person standard. In a steel mill, it is reasonable for employers to require or supply sturdy boots to prevent foot injuries caused by the steel making process and if the employer does not require or provide the boots, that breaches the employer’s duty, and if an employee sustains a foot injury because of the failure to wear boots, the employee may possess a negligence action against the employer.
Now the employer will respond that the negligence action cannot proceed because workers’ compensation is an exclusive remedy foreclosing negligence actions. In many jurisdictions the employer’s argument will prevail. But in the event the exclusive remedy defense does not work, how should employers think about protecting themselves from negligence actions?
Answer: Do the reasonable thing.
Since employers, including tribal employers, did not have policies and procedures with reasonable standards baked in prior to the pandemic, what reasonable standards should tribal employers consider in defining prudent COVID policies and procedures? With an abundance of respect for tribal sovereignty wherein the tribal employer defines its own standards, in these unusual times, looking to the federal and state sovereigns and evaluating their defined standards, and when it makes sense, incorporating those standards into the tribal employer’s policy makes sense.
The federal sovereign has, through agencies like the CDC, OSHA, EEOC and DOL defined numerous employment practices which are reasonable. Again, whether those agencies have any authority to impose their standards on tribes is a different question. The focus here is whether the standards the agencies have defined are reasonable? If the standards are reasonable, and as tribal employers those standards are implemented and followed, the tribal employer minimizes its risks of a negligence action.
There is an argument the Family & Medical Leave Act applies to tribal employers and an argument it does not apply. When tribal employers follow the FMLA standards, make sure your decision-makers are listening to employees describe why they cannot return to work. If the employee qualifies for FMLA (12 months work and 1,250 hours) and they are describing one of the reasons for job protected leave, human resources should get involved to assess the matter.
Remember there is an argument the Fair Labor Standards Act applies and an argument it does not apply. If tribal employers follow the FLSA or meet its standards, non-exempt employees shall be paid for all time worked whether that time is in the tribal office or while the employee works off-site. It is imperative that non-exempt employees track their working time (in and out of the office) and report it to the employer. The policy which addresses this requirement should compel employees to record hours worked every day (contemporaneous record-keeping) which includes recording break times and meal times. The policy should require employees to perform no work during break and meal periods. If the employer requires pre-approval for employees working overtime, the policy should address that as well.
For exempt employees, the salary basis test requires employers to not penalize a paycheck when employees are not working parts of workdays, but that general rule has several exceptions. Generally speaking, if an exempt employee works part of a day the employee receives a full day’s pay, but if an exempt employee misses a full day or more, in some instances the employer is not required to pay the exempt employee for the time missed. Now if the employee misses a full day’s work because of illness, the employee is still paid from a wage substitute like PTO or sick pay. This summary does not address all the nuances of exempt employee pay.
Hazard Pay & Overtime
This may or may not be a typical policy issue but it is a compliance issue to be aware of if the tribal employer pays hazard pay. If hazard pay is provided, it impacts the regular rate calculation for overtime compensation for non-exempt employees. Here is a portion of 29 C.F.R. Section 778.207(b):
Nonovertime premiums. The Act requires the inclusion in the regular rate of such extra premiums as nightshift differentials (whether they take the form of a percent of the base rate or an addition of so many cents per hour) and premiums paid for hazardous, arduous or dirty work.
Putting on and taking off protective equipment
Over the years there has been bountiful litigation outside Indian Country wherein plaintiffs have challenged employers for failing to pay employees for the time spent before a shift and after a shift putting on and taking off protective equipment. In FLSA parlance, putting on and taking off a uniform (including protective equipment) is called donning and doffing. Instead of developing detailed pay policies regarding the donning and doffing of an employee uniform, the respectful recommendation is to simply pay employees for that time. It is difficult to be sued or audited by the DOL by paying employees too much compensation.
In my experience tribal leaders, employees and other decision-makers have used the mantra “Do the right thing” to guide their thinking at this difficult time. If mistakes are made in reopening tribal governments and enterprises too quickly or without sufficient protections, union organizers could leverage those circumstances with another mantra of “Tribal employers do not care enough.” Effective employers explain what they are doing and why and that critical “why” is important always and even more important when anxious employees are returning to work.
Immunity of the tribe and you
Sovereign immunity is a defense to a lawsuit wherein the tribal employer, and its officers, employees and agents, assert that the court lacks power or jurisdiction over the tribe and therefore cannot adjudicate (hear and decide) the dispute. As a general rule, the tribe’s sovereign immunity is unconditional when private parties (think employees) sue the tribe. In contrast, the immunity which protects tribal employees, agents and officials is conditional.
Employee, agent and official immunity is conditioned on an employee acting within the course and scope of their duties to the tribe. For employees, the course and scope of employment is defined by the handbook, standard operating procedures (department procedures), job descriptions and other ways employers delegate authority to employees and define their expectations. Therefore, in response to the pandemic, employers should supplement policy and procedure in a reasonable way to protect returning employees. For a definition of reasonable see the negligence conversation above.
To apply this doctrine of sovereign immunity, consider a tribe’s tribal administrator who terminates an employee’s employment because of an expressed directive from tribal council. The termination is based on the employee failing to timely report to work 21 days in a row. The employer documented the employee’s multiple infractions, followed its progressive discipline policy which eventually generated the termination. If the employee sues the tribal administrator for her role in the termination, absent facts which are not recited above, the tribal administrator was acting within the course and scope of her employment and the immunity which protects the tribe also protects the tribal administrator.
On the other hand, consider an employee sexually harassing another employee which is investigated and admitted. When the victim of the harassment sues the perpetrator of the harassment, the perpetrator will not be protected by the tribe’s cloak of immunity since the employee handbook expressly prohibits sexual harassment in the tribal workplace.
In the April 25, 2017 United States Supreme Court decision titled Lewis v. Clarke, generated questions regarding the legal test which determines when and if a tribal employee is protected by immunity. The decision shows that acting within the course and scope of job duties, depending on the facts and circumstances, may not be enough to successfully raise the immunity defense. On the other hand courts are still applying the course and scope test and absent further caselaw tribal employers should consider the merit in clearly defining reasonable standards, training employees on those standards and holding employees accountable to the same.