HIGHLIGHTS:

  • Tribal leaders and human resource managers have many things to consider when implementing balanced employer policies and practices that promote tribal sovereignty, fairness and employee morale, as well as minimize the risk of employment-related lawsuits.
  • This alert provides a number of considerations for implementing effective tribal labor and employment practices in the year ahead.

Tribal leaders and human resource managers have many things to consider when implementing balanced employer policies and practices that 1) promote tribal sovereignty, 2) promote fairness and employee morale, and 3) minimize employment-related lawsuits. Below are six considerations for implementing effective tribal labor and employment practices:

  1. Determine What Federal, Tribal, and/or State Labor and Employment Laws Apply

As a preliminary step, tribal leaders and human resources managers should determine what federal, tribal and/or state labor and employment laws apply to the tribe and tribal enterprises, and to which types of employees. This crucial step involves a review of any tribal codes, ordinances, constitutions, employment contracts, government contracts, vendor contracts, employee benefit plans, tribal-state compacts and tribal-county memoranda of understanding for any employment-related laws and regulations. Specifically, look for any law, regulation or contract which might make applicable certain federal and/or state labor and employment laws to the tribe, tribal enterprise and certain types of employees. Also look for any limited waivers of sovereign immunity for employment-related lawsuits. Tribal leaders and human resource managers should be keenly sensitive and proactive when identifying applicable labor and employment legal obligations, given that there are a wide variety of sources that may impose those obligations.

  1. Follow Relevant Labor and Employment Case Law

Keep up-to-date on federal, tribal and state case law regarding the applicability of federal, tribal and state labor and employment laws to tribes and tribal commercial enterprises. Whether an employee's place of work is located on or off the tribe's land and whether the employee at issue is an Indian or a non-Indian have been relevant factors for some courts that examine the applicability of federal labor and employment laws to tribes and tribal enterprises.

  1. Track Federal Legislation

Keep up-to-date on federal legislative developments relating to tribal labor and employment law, such as the pending Tribal Labor Sovereignty Act of 2015, which, if enacted, would clarify that Indian tribes and certain tribal enterprises are exempt from the provisions of the National Labor Relations Act.

  1. Review and Update Employee Handbooks

To ensure that all policies are up to date, it is important to regularly review tribal government and tribal enterprise employee handbooks to ensure they reflect current tribal law, regulations, policies and practices, as well as current legal developments.

  1. Train Supervisors on Policies and Practices

Not only is it important to create, review and implement policies, but it is equally as important to ensure that supervisors are aware of, and are trained to comply with, current tribal policies and practices relating to any procedures for employee discipline, termination and grievance procedures. Failure to properly train supervisors could lead to unintended violations of tribal policies and procedures, which may expose the tribe or tribal enterprise to costly employment-related lawsuits.

  1. Employment Contracts that Support the Needs of the Tribe and Tribal Enterprise

Consider preparing employment contracts that support the specific needs of the tribe and tribal enterprise, such as protecting trade secrets, confidential information, personal property and customer relationships, while also preserving tribal sovereignty to the fullest extent necessary.