TRIBAL EMPLOYMENT PREFERENCE AND EMPLOYEE PROTECTION LAWS
| Jurisdiction | United States |
(Mar 2011)
TRIBAL EMPLOYMENT PREFERENCE AND EMPLOYEE PROTECTION LAWS
Modrall Sperling
Albuquerque, New Mexico
BRIAN K. NICHOLS is an attorney at Modrall Sperling in Albuquerque. Brian's practice is primarily litigation, with focuses on natural resources and Indian law. Brian has worked closely with two BHP Billiton subsidiaries, BHP Navajo Coal Company and San Juan Coal Company, in areas of federal compliance, labor, employment, contracts, employment and relationships with the Navajo Nation and individual Navajos. He has been involved in several areas of litigation, including employment, complex contracts, the priority of coal mining and MSHA related matters. Related to natural gas, Brian has defended "company men" against personal injury claims. In the area of royalty payments, Brian has represented Vulcan Material Company in a lengthy dispute regarding the amount of royalties due to the Pala Band of Indians in California. As a member of the Navajo Nation Bar, he has represented businesses such as Chevron USA, Four Corners Giant (Western) and the BHP subsidiaries in the courts and agencies of the Navajo Nation, particularly the Navajo Nation Labor Commission. Brian also assists businesses doing or considering commerce with the Navajo Nation, providing legal advice about legal issues such as Dineh Fundamental Law, the Nation's policy regarding graves (Jishchaa), compensation to individual Navajos for takings, and property issues. Clients include Sempra Energy, Peabody Energy, Transwestern Pipeline Company, El Paso Natural Gas, Citation Oil & Gas, Nacogdoches Oil & Gas and Siemens IT. He has also appeared on behalf of or consulted with businesses and state governmental entities regarding litigation in the courts of other tribal nations such as the Pueblo de Cochiti and Jicarilla Apache Nation.
Table of Contents
I. INTRODUCTION
II. A BRIEF SURVEY OF TRIBAL EMPLOYMENT RIGHTS ORDINANCES
III. THE NAVAJO PREFERENCE IN EMPLOYMENT ACT
A. Selected Provisions of the NPEA Statute
B. Selected Navajo Cases Interpreting the NPEA
IV. JURISDICTION
A. Federal Law Regarding Tribal Jurisdiction
B. Navajo Law Regarding Its Jurisdiction
C. The Application of Federal & State Employment Law
D. Conflicts Between Federal & Tribal Employment Law
1. Indian, Tribal and Spousal Preference
2. Seniority and Indian Preference
V. CONCLUSION
I. INTRODUCTION
The topic of this paper is tribal employment laws. It is a broad topic. There are well over 500 federally recognized tribal nations. According to research, several, possibly most, have employment laws. In addition, several coalitions or agencies provide advice to tribal nations about "Tribal Employment Rights Ordinance," or "TEROs." There are several model, or proposed, TEROs available on the internet. A survey of internet materials conducted during the Fall of 2010 and Winter of 2011 uncovered various laws and materials which seemed to change.
As a result, this paper should be viewed as a list of topics to consider when researching the employment issues particular to any tribal nation. The topics reviewed in this paper are:
• A survey of common provisions in Tribal Employment Rights Ordinances.
• A selected review of the Navajo Preference in Employment Act, both provisions in the statute and case law.
• An initial analysis of jurisdiction issues and potential conflicts between tribal and federal employment law.
II. A BRIEF SURVEY OF TRIBAL EMPLOYMENT RIGHTS ORDINANCES
This section provides a list of common topics in TEROs. With the exception of Navajo law, citations are not provided because tribal nations were not contacted to confirm documents found on the internet. This section is only a survey of what an employer may find when researching a particular nation's employment laws. An employer should conduct its own research with regard to the tribal nation, including speaking with representatives of that nation, to ensure that the most current laws are known to the employer.
TEROs generally define "employer" broadly. See, e.g., 15 N.N.C. § 603(C) (the Navajo Preference in Employment Act defines employer as "all persons, firms...who engage the
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services of any person for compensation."). TEROs are applied to employers meeting certain criteria. The criteria include one of the following (most TEROs include more than one of these criteria, in the alternative): those employing tribal members, those with a contract with the tribal nation, those doing business with a tribal nation or on a reservation or within another area, those subject to a tribal nation's jurisdiction, or those with a certain number of employees.1
TEROs always include a preference in employment, including hiring, training, promotion, lay-offs and reductions in force. However, the specific preference varies. Alternatives include: members of a specific tribe, persons living on a reservation, Indians living on a reservation, "local" Indians (which may be defined as Indians "on or near a reservation," mirroring Title VII; see section IV.D.1 under "Jurisdiction" infra), spouses, parents or children of Indians, and an enrolled member of a federally recognized tribal nation. TEROs seem to be divided about equally between those with one "tier" of preference and those with multiple tiers of preference. For instance, first preference may be for a specific tribe and a second preference for all Indians living on the tribe's reservation. The preference in hiring usually extends to the tribe as employer, but not the federal government.
Most TEROs address job qualifications. Usually, the TERO simply states that qualifications may not be used to avoid a preference, and that an applicant or employee with "minimum" or "necessary" qualifications must be deemed qualified. A few TEROs require submission of job qualifications to the enforcing entity for approval.
Some TEROs suggest or require an employer to advise the enforcing entity of employment needs and then it will suggest or require a quota. This is usually styled a "compliance plan." Some tribal nations maintain "skill books," "hiring halls" or "indexes" of persons who are eligible for a preference in hiring and their qualifications. Others require certain advertising or notices to notify Indians of employment opportunities. Ongoing reports to the enforcing entity are
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commonly required. Sometimes this requires only a statement of policy compliant with the TERO. In other tribal nations, specific data about employment is required.
Two types of training may be required under TEROs. First, there may be training in job skills for persons within the preferred class. This training seems to be more common in those tribal nations which maintain a list of persons eligible for preference in hiring and aimed at increasing the qualifications of Indians for future employment. Second, some TEROs require cross-cultural training for non-Indians. The goal seems to be employment policies which take into account Indian traditions, and to increase retention of Indians in jobs they acquire. Sometimes these goals are regulated directly, requiring the modification of employment policies to accommodate traditional tribal culture. Such provisions are commonly styled as "freedom of religion" or "accommodation of religion" provisions.
It is also quite common for TEROs to require a preference in contracting. The preference in contracting commonly is two-tiered, first companies owned by a particular tribe and then companies owned by Indians, and then all other companies. All TEROs reviewed that include a preference in contracting also have a tribal certification process by which a company is certified as eligible for a contracting preference. It is a common TERO provision that contracts between private entities must include terms incorporating the TERO, including employment preferences, or at least notify the subcontractor of the TERO.
TEROs may provide substantive employment requirements. It is common to prohibit retaliation against "whistle-blowers" and employees enforcing their rights under the TERO. A few prohibit discrimination, largely along the lines of Title VII. A few address whether employment is "at-will" or is restricted by law and address other wage and hour regulations.
Regulating union activity is common in TEROs. Generally, TEROs require unions to agree to an Indian preference in order to be present on the tribal nation. Unions and business agents commonly have to register with the tribal nation. Registration will include an affirmative statement to the tribal nation endorsing Indian preference in employment. Alternatively, a few TEROs simply state that seniority may not defeat the required Indian preference. Collective
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bargaining agreements are often required to include a preference for Indians, by agreement of the parties or operation of law.
TEROs also may regulate the relationship between Indian workers and unions. Right to work provisions are common, and some state that an Indian worker may not be required to pay dues or join a union. However, there is considerable variation in whether an Indian worker outside the union retains the benefits of the union, including those under a collective bargaining agreement. Some TEROs provide that Indians outside the union will receive cash in lieu of any union benefits. Others state that Indians outside the union receive no benefits except the wage scale. A prohibition on strikes, as to tribal employers and tribal enterprises, is also common.
Enforcement of TEROs is through an independent agency or commission, or within a department or division of the executive branch. The enforcing entity has the authority to create rules governing its procedures, and sometimes to supplement or interpret the TERO. The entity has the ability to conduct hearings, including trials. Less common, the entity...
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