The first question presented is whether tribal employers should hang posters? Please do not think about posters of sports stars or good looking celebrities, but instead think about the exciting posters summarizing employee rights relating to worker’s compensation, minimum wage and union organizing. Some laws require that employers hang posters in workplace common areas to inform employees of their rights and the employer’s responsibilities. Whether tribal employers should hang the federal posters depends on whether federal employment laws apply to tribal employers. The answer to that question is yes, no and maybe.
Yes. The Indian Child Protection and Family Violence Prevention Act (PL 101-630), the Indian Civil Rights Act (ICRA), the Affordable Care Act (ACA) and the Employee Retirement Income Security Act (ERISA) apply to tribal employers. More specifically ERISA applies to tribal commercial employers and may, or may not, apply to tribal non-commercial employers.
No. Generally, Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act do not apply to tribal employers.
Maybe. There are different arguments in the various federal courts as to whether the following federal employment laws apply to tribal employers: Fair Labor Standards Act (FLSA), Family & Medical Leave Act (FMLA), Occupational Safety & Health Act (OSHA), National Labor Relations Act (NLRA) and the Age Discrimination in Employment Act (ADEA).
Three Answers. Because the state of the law generates more questions than clear answers, tribes generally respond in one of three ways. Some tribes accept federal laws, others reject most federal laws and the third option is to create tribal standards that likely comply with federal employment standards. Of course that last sentence overly generalizes responses from tribes since each tribe decides for itself the approach that it takes but for the purpose of this conversation, those three options are explored.
Posters. Answer: Be consistent. If the tribal employer follows federal employment laws, the tribal employer should hang the federal posters. On the other hand, if the tribe does not follow those laws, but likely follows its own standards (which may or may not meet the federal standards) the tribe should hang its own poster.
There is risk in inconsistency since posters are promises. The federal or state poster is promising tribal employees that the employer is following the federal and state laws. The posters are also giving the federal agencies an argument that the tribal employer agrees that the federal laws that are silent on applicability do apply to tribes.
Beyond posters, consider reviewing tribal policy and procedure for language that makes promises to follow federal laws when the tribe has not made that decision. Beyond policy, review the forms used by the tribal employer. For example, review the forms used when employees exercise their right to the tribe’s version of family and medical leave. Does that form bear the seal of the federal Department of Labor, wage and hour division? By using that form (without removing the seal) is that an invitation for the DOL to argue that the tribal employer concedes the argument on whether the federal FMLA applies?
Respectful Recommendation. Tribes should decide whether to accept or reject federal employment standards that are silent on applicability. From that decision, the tribe should make a consistent choice of whether to hang the poster prescribed by federal law or a poster aligned with tribal law or policy.
Call me at 612-812-9673 or write at firstname.lastname@example.org to discuss posters and the law.