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 or policy manual should be secured in the first few days of the employer-employee relationship.

The following consent language is written from the first-person perspective to be executed as a separate writing:

“As an employee of the ABC Tribe (the “Tribe”), I consent to the exclusive jurisdiction of the Tribe, these Handbook rules and the Tribal Court for any and all disputes in connection with my employment with the Tribe.  I also consent to the application of Tribe’s law, both substantive and procedural, regarding any and all proceedings, matters and things relating to my employment relationship with the Tribe.”

To make consent clearer to employees, is there a better way to draft this policy?

Yes.  One option might include the following language:

“As an employee of the ABC Tribe (the “Tribe”) I agree to follow the laws, regulations and policies of the Tribe.  I understand I may review the Tribe’s laws, regulations and policies at any time by going to the Tribe’s website.  If I have a complaint regarding decisions affecting my employment, I can ask the Tribe for an opportunity to tell my side of the story by completing the complaint form in the human resources office.  I agree to use the complaint process instead of going to court.  Since the Tribe is giving me an opportunity to make a claim within the Tribe’s system, I will not pursue employment related disputes in the courts of the State of Oklahoma or the United States.  I understand there is a ten day deadline for filing a complaint.”

Including consent language in employment related documents is important.  The clarity of that language will define whether the consent is meaningful.  Courts will define clarity by determining whether the average employee understands the consent.  Do you have consent language which is better than the two above examples?

Recommendation:  Employee consent to employer rules is important.  Employers should clearly define fair rules and get employees to sign a written consent to those rules.

About the Author:

Richard McGee is a lawyer in Minneapolis, Minnesota who focuses his practice on gaming, gaming regulation, tribal employment and litigation in tribal, state and federal courts.  Richard has the privilege of working with tribes and tribal organizations on Human Resources matters including training.  Additionally, tribes ask Richard to address specific topics while incorporating the tribe’s related laws and policies into the sessions.  This is an invitation to engage Richard to produce and facilitate training for your tribe.