1. CTER Employment Law Update December 2014
Richard McGee

2. Agenda Self Determination, sovereignty, jurisdiction, immunity
Applicability of tribal, state and federal law
Preference, freedom of speech in the workplace, independent contractors, minimum wage, changing exemptions, EEOC MOU

3. Facilitator Richard G. McGee Minneapolis, Minnesota
A Guide to Tribal Employment (Xlibris 2008).

4. What is self determination?
Government which defines its goal, path and timeline.
Many questions…not one.
There are no 100% self determined governments.

5. What is sovereignty?
Government which defines the rules and applies those rules to people, places and things.
Sovereignty in the employment context.
Intersection between self-determination and sovereignty.

6. What is inherent sovereignty?
Assumption that the power to define the rules comes from the tribe (its citizens) and not another sovereign.
Is inherent sovereignty exercised by all sovereigns?

7. What is sovereign immunity?
Tribe does not consent to suit.
May employees, agents and officials use it?
What is “course and scope” and how is it defined?
Maxwell (2012), Bay Mills (2014) and Mendoza (2011).

8. Defining the rules-jurisdiction
Defining, interpreting and enforcing the rules.
Civil (member and non-member) v. criminal (Indian and non-Indian). Oliphant v. Suquamish Indian Tribe (1978)…criminal
Montana v. United States (1981)…civil
Nonmember consent to the rules.
What is consent?
Implied and explicit consent.

9. Can tribes assume that they can exercise inherent sovereignty
Can tribes assume that they can exercise inherent sovereignty? What is the impact, if any, of the other sovereigns?
Tribes to states (inherent sovereignty and Worcester v. Georgia).
Tribes to the federal government (plenary power).

10. Do federal employment laws apply to tribal employers?
Has the federal government utilized its plenary power to define employment rules for tribal employers?

11. No
Title VII of the Civil Rights Act of 1964 (race, religion, national origin, gender).
Americans with Disabilities Act (public accommodation).
Equal Employment Opportunity Commission (MOU).
Discuss EEOC v. Forest County Potawatomi 2014 (ADEA subpoena enforced).

12. Yes Indian Child Protection and Family Violence Prevention Act. ICRA
ERISA (commercial)

13. Indian Civil Rights Act
Due process and equal protection.
Santa Clara Pueblo v. Martinez.
Dry Creek Lodge.
Tribal use of ICRA standards.

14. It depends
FLSA, FMLA, NLRA, OSHA, ERISA (unless commercial), ADEA

15. Silent on applicability
Tuscarora (laws of general applicability).
Donovan (treaties, what did congress intend, essential government function).
Is there a government-business distinction in how the rules are applied?.
Net: no, yes, maybe, maybe not.

16. Under what circumstances might federal and state employment laws apply to tribal employers?
Compacts.
Contracts (strings).
Voluntarily.
Outside tribal lands.
Promise it. (Bodi v. Shingle Springs 2014)(individual defendants not dismissed when employer provided FMLA benefits to employee and employee terminated)
Handbooks and laminated posters. Gilbertson v. Quinault Indian Nation (9th Cir. 2012)(inclusion of Title VII in handbook is not a waiver).

17. Has the Supreme Court addressed preference?
Morton v. Mancari (1974).

18. Two questions
Who is on your list?
What test is best?

19. Lists ABC member Spouse of a member Non-member Indian Non-Indian
Is this list enough in defining preference?

20. What test applies to your list?
minimum qualifications
mandatory
break-the-tie

21. Has tribe-specific been challenged in court?
Dawavendewa & Peabody Coal.

22. How far does preference extend?
Hiring.
Promotion.
Training.
Lay off.
Consider promulgating law and policy.
Consider a regulator to enforce preference.

23. Employees and social networks
Preemployment use of social networks.
For employees, the use of off the clock behavior in evaluating employees.
What are section 7 rights?
Does the NLRA apply?
What are the terms and conditions of employment?

24. FMLA updates
Forms
United States v. Windsor (2013).

25. FLSA Updates
independent contractors
modified exemptions

26. Questions and Answers