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 those trends or recent announcements which will impact the tribal employer’s policies and protocols.
The federal government is significantly increasing enforcement actions against employers which fail to follow immigration rules for employees. The U.S. Immigration and Customs Enforcement (ICE) audits employer I-9 practices among other enforcement activities. In fiscal year 2018, ICE opened 6,848 worksite investigations compared to 1,691 in fiscal year 2017. In fiscal year 2018 ICE initiated 5,981 I-9 audits compared to 1,360 in 2017.
Tribal employers should review their I-9 protocols to ensure compliance with technical standards which are not always intuitive.
In April 2017 the United States Supreme Court did not extend sovereign immunity to a tribal employee who allegedly caused a car accident. That case, Lewis v. Clarke, settled for recently without further guidance from the courts regarding the nature and extent of immunity for tribal employees. There are better odds that courts will protect tribal employees when those employees are acting within the scope of the employee’s duties. An employee’s duties likely are defined by employee handbooks, standard operating procedures, internal controls, job descriptions and myriad written and verbal directives. Since these documents play a role in protecting tribal employees, it is prudent to update those documents, train and re-train employees on those standards and enforce them.
Previously, careful advice forced lawyers to consider common ownership as the most important factor in evaluating whether two employers were one in evaluating certain employment related questions. For example, Shirley works 36 hours for the tribal government and deals cards for 8 hours at the tribal government’s casino on Saturdays. Does the additional 8 hours of non-exempt work generate an overtime obligation of the tribe? The careful answer was yes. Under proposed rules the answer likely is no.
On April 1, 2019, the federal Department of Labor (DOL) proposed a four-factor test for determining joint employment under the Fair Labor Standards Act. Under this proposed rule, the DOL will consider whether the potential joint employer actually exercises the power to: (1) hire or fire the employee; (2) supervise and control the employee’s work schedules or conditions of employment; (3) determine the employee’s rate and method of payment; and (4) maintain the employee’s employment records. The proposed rule would also consider additional factors to determine joint employer status, but only if they are indicative of whether a potential joint employer is exercising significant control over the terms and conditions of the employee’s work or otherwise acting directly or indirectly in the interest of the employer in relation to the employee.
If these rules are implemented, consider re-evaluating the pay practices used for tribal employees performing multiple jobs.
Non-exempt employees are overtime eligible and exempt employees are not. The rules surrounding which employees may be classified as exempt from the overtime requirements of the FLSA will change January 1, 2020. There will be an increase in the minimum pay for exempt employees from $455 ($23,660) a week to $684 ($35,568) a week. Remember the right answer to all three questions move a presumptively non-exempt worker from non-exempt to exempt (1) How much pay? (2) How do you pay? Answer: Salary Basis Test and (3) Is the employee performing exempt duties? The answer to this question requires significant analysis which is beyond the scope of this article.
Review exempt employee classifications to determine whether the exempt employee meets all three tests. For those employees earning $30,000 today (for example) an exempt classification will not be proper January 1, 2020. If the presently exempt employee is re-classified as non-exempt, a manager should have a clear conversation with the now non-exempt employee regarding the different pay practices which apply.
Tribal employers use sex and gender in their policies which address harassment and discrimination in the workplace. There is a national conversation about the breadth of the definitions for sex and gender. For example, does gender only protect a woman from offensive touching in the workplace or does it also protect her if she is transitioning from a woman to a man? The national conversation has found its way to the United States Supreme Court which has accepted cases which assert that Title VII protects employees based on their sexual orientation and transition from male to female or female to male. Even if Title VII does not generally apply to tribal employers, this national conversation will likely start conversations within the tribal workplace. Has the tribe considered these questions and provided training for managers encountering these questions in the workplace?
Service animals are important components of treatment for, or coping with, mental and physical health issues. Employers should consider defining reasonable rules for service animals in the workplace. For tribal employers, a threshold question is whether the federal government’s rules apply. Among other things, the Americans with Disabilities Act (ADA) addresses employment and public accommodations. The employment aspect of the ADA does not apply to tribal employers. The public accommodation aspect of the ADA is not as clear. If tribes use the ADA as a guide in this area, there are some common sense rules: (1) A service animal is limited to a dog or horse. 28 C.F.R. Section 36.104. (2) A service animal is trained to perform tasks for a person with a disability. 28 C.F.R. Section 36.302(c)(9). (3) Emotional support or companion dogs do not qualify under the federal rules. 28 U.S.C. Section 36.104. (4) The definition of public areas is broad. See 28 C.F.R. Section 36.201(a). Public areas may include the gaming floor, restaurants, bars, hotels and conference centers. Should the tribal employer offer an accommodation at the casino buffet through an employee guiding the patron instead of the dog? (5) Can the tribe ask patrons questions regarding the service animal? Yes, but the questions are narrow: Is this a service animal that is required because of a disability? What work or tasks has the animal been trained to perform? Do not ask for proof of training, disability or certification. 28 C.F.R. Section 36.302(c)(6). (6) Under the federal rules, the employer can deny access when the animal is out of control, not housebroken or poses a direct threat to the health or safety of others. 28 C.F.R. Section 36.302(c)(2)(4)(9). (7) Risk of non-compliance? Immunity to private suits? More risks to suits initiated by a federal agency.
State Minimum Wage
State minimum wage laws do not control the minimum wage of tribal employers but they impact the marketplace for employees. To attract and retain talented employees, tribal employers are mindful of the minimum wage laws imposed by area states and cities.
Tribal employers receiving federal funds are required to address drugs in the workplace. Drug Free Workplace Act (DFWA). While requiring tribal employers to address drugs in the workplace, the DFWA does not require implementation of specific policies or positions. Therefore the tribal employer has discretion to take a wide range of positions in addressing drugs in the workplace. Some tribal employers test candidates for employment and some do not. With the significant increase in state laws allowing the consumption of marijuana for medical and recreational purposes, tribal employers are confronted with the marijuana question.
Generally speaking tribal employers are not required to follow state employment laws. Worcester v. Georgia (1832). On the other hand, the possession of marijuana on federal trust lands violates federal law.
The reaction of tribal employers to these state laws is primarily driven by the realities of the marketplace. Those tribal employers struggling to find enough talent to fill open positions have relaxed testing standards if the tribal employer perceives testing is creating a hardship in attracting candidates for open positions.
Can employees utilize the benefits provided by the Family & Medical Leave Act (FMLA) when employees choose to utilize the benefit or are employers required to force employees to take FMLA job protected leave if and when it is determined the employee qualifies for the leave? The answer appears to be employers are required to force the leave if and when employers determine the employee qualifies. In a March 14, 2019 Guidance letter, the DOL has addressed the amount of flexibility employers can offer to employees. “An employer may not delay the designation of FMLA-qualifying leave…”
As a result of this guidance, if tribal employers seek to meet or exceed the federal FML standards, the employer should modify their policies and procedures to reflect the requirements of this guidance.
Is Native Preference a race based practice or a practice based on the employee’s connection to a tribe? The United States Supreme Court answered that question in Morton v. Mancari (1974) and declared that preference is not based on race but instead based on the candidate’s connection to their tribe. That precedent is under assault and the 5th Circuit Court of Appeals, in Brakeen v. Bernhardt (August 9, 2019), reversed a district court judge who declared that ICWA unlawfully makes racial classifications. The 5th Circuit, in other words, reinforced the legitimacy of preference articulated by the Morton decision.
Several years ago the Equal Employment Opportunity Commission (EEOC) took the position that background checks unintentionally generated race based employer decisions because persons of color are arrested and convicted of crimes at a greater rate than persons not of color. For that reason the EEOC asserts that employers should reduce the frequency and depth of background checks. That rule is at odds with a Texas law which precludes hiring persons with felonies and Texas sued the EEOC. The EEOC’s admonition regarding the use of background investigations is tempered by the 5th Circuit Court of Appeals. See State of Texas v. EEOC (August 6, 2019 5th Circuit).
In addition to the inapplicability of EEOC rules on tribal employers, and because tribal employers are required to evaluate the background of employees working with children (Indian Child Protection & Family Violence Prevention Act) and employees working for tribal casinos pursuant to the Indian Gaming Regulatory Act, the EEOC’s view of limiting background checks has been rejected by tribal employers.
A question presented is whether tribal employers are calculating overtime correctly if the FLSA regulations apply to tribal employers. If the FLSA applies (open argument) the rules regarding the calculation of overtime pay will likely change early in 2020. For example, if an employee receives a bonus from the employer, is the bonus payment included in calculating the employee’s overtime compensation? Remember, overtime is calculated using the regular rate (which may include the bonus payment) not the employee’s hourly rate. Tribal employers should be aware of a March 28, 2019 DOL notice of modified proposed regulations (29 CFR 778) which, if adopted, will bring more clarity regarding what may be excluded in the regular rate when calculating overtime compensation. The new regulation appears to be clearer regarding the exclusion of discretionary bonuses from the regular rate computation.
Tribal payroll employees should be aware of the present regulations and anticipate the likely changes in the near future.
Drafting Employment Codes & Handbooks
October 10 & 11
Gila River’s Vee Quiva Hotel & Casino, Laveen, AZ
This session addresses the best practices for creating a system of laws, policies and procedureswhich best serve the tribal employer and employees. The session provides respectful suggestions for defining the terms and conditions of employment through an employment code and employee handbook. Sample language for a tribal employment code and comprehensive policies are included in the materials.
Each class has a detailed agenda. Please let us know if you are interested in attending.
Law Office of Richard G. McGee, LLC
P.O. Box 47068, Plymouth, Minnesota 55447