Drafting Tribal Employment Laws & Handbooks: A Practical Guide to Drafting Tribal Employment Laws and the Policies Included in Government and Enterprise Employee Handbooks for Tribal Leaders, Administrators, Lawyers, Directors, and Managers

By Richard G. McGee

Drafting Tribal Employment Laws & Handbooks is a practical guide to drafting comprehensive tribal employment laws and the policies included in tribal government, casino and enterprise handbooks. The book explains why this is important and illustrates how to get these documents created and accepted. The book will help tribal leaders, administrators, lawyers, directors and managers either create these laws and policies or improve the laws and policies presently on the books. Drafting Tribal Employment Laws & Handbooks complements Mr. McGee’s previous book A Guide to Tribal Employment (Xlibris 2008).

• Language: English
• Publisher: Xlibris US
• Release date: Jun 10, 2020
• ISBN: 9781984581457

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Copyright © 2020 by Richard G. McGee.

All rights reserved. No part of this book may be reproduced or transmitted

in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system,

without permission in writing from the copyright owner.

This publication is designed to provide accurate information regarding the subject covered but is not an exhaustive statement of the law. It is sold with the understanding that the author and publisher are not engaged in rendering legal, accounting or other professional services. If legal advice or other expert assistance is required, the services of a competent professional should be sought.

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Rev. date: 06/10/2020

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CONTENTS

Introduction

Chapter 1 Tribal Employment Laws

101 Why draft a tribal employment law?

102 When drafting the law, what label should be used as a title?

103 In drafting an employment law, what influences should be taken into account?

104 What impact does the tribe’s values have on drafting law?

105 What are the tribe’s goals in enacting a tribal employment law?

106 What is the influence federal employment laws have on tribal employers?

107 What is the influence of state law on tribal employers?

108 What is the impact of federal funds on tribal employers?

109 Whether the tribal employer is engaged in commerce or performing an essential government function?

110 What is the tribe’s risk tolerance?

111 What are typical subtopics addressed by tribal employment laws?

112 Why does the sample employment law utilize federal legal standards when those standards do not apply (Title VII) and may not apply (FMLA)?

113 Will a strong tribal employment code fix the tribe’s employment-related challenges?

114 How to draft an employment law?

115 Can a questionnaire help a tribe gather answers to essential questions that will define the employment law and assist drafters create a first draft?

116 What does a sample employment law look like?

Chapter 2 Sample Tribal Employment Code

Introduction

ABC Tribe Fair Employment Practices Code

Chapter 3 Purpose of an Employee Handbook

301 Why should tribal governments and enterprises create employee handbooks?

302 Must tribal employers have an employee handbook?

303 Does an employee handbook have an impact on the employees’ perception of the tribe as an employer?

304 How does an employee handbook fit into the other documents that may define or influence the terms and conditions of employment?

305 Should employers consider making fundamental changes in the way their employer documents are organized?

306 Does it matter if we call a collection of policies a handbook or P&Ps?

307 Are employers held accountable for the promises made in employee handbooks?

308 What role does the employee handbook have regarding sovereignty?

309 What role does the employee handbook have regarding sovereign immunity?

310 What role does an employee handbook have regarding tribal jurisdiction?

311 What role does the employee handbook have in employee performance evaluations?

312 What role does the employee handbook have in the delivery of due process?

313 Can an employee handbook have a positive impact on limiting politics?

314 Is an employee handbook enough to manage people?

315 Are there policies in an employee handbook employers should brag about?

316 What are the terms and conditions of employment?

317 Can the policies included in employee handbooks cover all the terms and conditions of employment?

318 Does the employee handbook delegate authority to individual actors?

319 Can you create a supervisor handbook and hold nonsupervisors accountable to those rules if they are not included in the employee handbook?

320 In addition to employees, who else will scrutinize your employee handbook?

321 Since it is called an employee handbook, is it written by employees?

Chapter 4 Preparing to Draft or Modify an Employee Handbook

401 How often should tribal employers modify their employee handbooks?

402 Is it a good idea to draft a policy on policy before you create or modify policies to be included in the handbook?

403 If a handbook already exists, should I modify the handbook or start from scratch?

404 Should a tribal employer adopt vanilla policies that do not reflect the uniqueness and values of the tribe?

405 What influences should have an impact on tribal employment policies?

406 What is the influence of a tribe’s traditions and customs on policies in a handbook?

407 By agreeing to follow federal or state laws in a tribe’s handbook, can a tribe be sued if the employer fails to follow that law?

408 What impact does a tribe’s receipt of monies from other sovereigns have on the employee handbook?

409 Should tribes create more than one employee handbook?

410 What are the fingerprints of government, and how can you include them in the employee handbook?

411 Can a policy in an employee handbook be inconsistent with an applicable law or regulation?

412 Who should be involved in drafting or revising an existing handbook?

Chapter 5 Drafting or Modifying an Employee Handbook

501 Should employees be given a voice in suggesting changes to an employee handbook?

502 What does it mean to draft the employee handbook with the users in mind?

503 If an employee handbook needs modification, should you make all the modifications at once?

504 Should employee handbooks be divided into chapters or sections?

505 Should policies in a handbook be organized in a system of numbers?

506 Should an employee handbook include a detailed table of contents?

507 Should an employee handbook be paginated?

508 Should employee handbooks include an index?

509 What is external consistency?

510 What is internal consistency?

511 What are the best practices in drafting policy?

512 Can policies be too detailed?

513 If a tribal employer changes a rule, can the employer apply the new rule tomorrow?

514 Should so-called contract employees have to follow the rules in the employee handbook?

515 Should independent contractors have to follow the rules in the employee handbook?

516 Should tribes draft employee handbooks in the tribe’s language?

517 Do present employees have to follow modified rules, or are present employees grandfathered into the previous rule?

518 How should tribal employers think about at-will or for-cause standards?

519 What are the best practices in drafting a harassment, discrimination, and bullying policy?

520 Should harassment policies address more than the law?

521 Are there preference policy best practices?

522 Are there best practices in drafting a social media policy?

523 Who should be involved in approving a new policy or policy modification?

524 Give policy three minutes a week.

Chapter 6 Sample Employee Handbook

To Richard and Mary Anne McGee.

INTRODUCTION

Drafting Tribal Employment Laws & Handbooks is intended to provide a practical perspective on drafting tribal employment laws and employee handbooks, which define the unique rules that establish the relationship between tribal employers and employees. The book is divided into two main themes. First, the book addresses the fundamentals of drafting tribal employment laws through which a tribe can exercise its sovereignty by defining the terms and conditions of employment for employers within the tribe’s jurisdiction. Second, the book addresses a range of frequently asked questions related to creating or modifying policy and procedure in the tribal workplace. Those policies and procedures are oftentimes collectively referred to as a handbook. After addressing the FAQs, there is a sample handbook.

Drafting Tribal Employment Laws & Handbooks is written to complement A Guide to Tribal Employment. A Guide to Tribal Employment, published in 2008, evaluates the unique and challenging aspects confronted by tribal employers. The book addresses the influences of the state and federal sovereigns on tribal employers, the risks of litigation, and unique issues confronted by tribal casino employers and summarizes policy best practices.

Drafting Tribal Employment Laws & Handbooks extends that analysis by providing a sample employment law and policies. The sample policies are not designed to provide the final word on policies that may be adopted by tribal employers, but instead, provide the start of a conversation in tailoring policies that reflect the uniqueness of individual tribes. In other words, there is no uniform set of policies for tribal governments or enterprises since each tribal government and casino are unique. Drafting Tribal Employment Laws & Handbooks respects the uniqueness of tribes while recognizing the merit in providing a structure upon which tribes can draft strong and effective laws and policies.

Any beneficial content in this book comes from what I have learned from the dedicated employees working for tribal governments, organizations, and businesses. I greatly admire the tribal leaders insisting that their tribes define ethical employment standards and demand fair and consistent enforcement. And to the dedicated people in tribal human resources, thank you for the education and guidance. An organization that is at the forefront of meeting and exceeding the needs of tribal employers is the National Native American Human Resources Association (NNAHRA). NNAHRA’s board and staff tirelessly advocate for tribal employers, and as an educator, NNAHRA is the best. I am grateful to the present and previous board members who created NNAHRA and continue to insist that NNAHRA serve its members without compromise.

Should you rely on this book as legal advice?

No.

This book does not provide legal advice and does not form a relationship between client and lawyer. Do not rely on any aspect of this book without first seeking competent legal advice.

CHAPTER 1

Tribal Employment Laws

101 Why draft a tribal employment law?

Tribes are sovereign, and an aspect of sovereignty is a government that defines its own rules. Of course, sovereignty is more than promulgating ordinances, resolutions, regulations, and employee handbooks; but even though sovereignty encompasses more than defining the rules, defining the rules is an aspect of sovereignty. When tribes define employment-related rules to reflect the tribe’s unique values and objectives, the tribe is exercising its sovereignty.

Rules come in many forms, including constitutions, ordinances, resolutions, regulations, policies, procedures, and internal controls. These many sources of rules create a hierarchy since some of these rules are more powerful than other rules. The law is superior to policy. If a law declares the sky is blue and a policy declares the sky is pink, blue wins. Law trumps policy. Therefore, drafting employment laws before drafting an employee handbook presents an opportunity to first declare the law of the tribe’s jurisdiction, and thereafter, the human resources professionals can draft policies that are aligned with the tribe’s employment laws. In addition to getting the sequence correct (draft law before policy), there are at least¹ seven reasons to draft tribal employment laws:

1. Sovereignty

2. Competition with the other sovereigns

3. Federal funds

4. Tribal council clarity on important tribal values

5. Meaningful remedies

6. Union organizing

7. Due process

8. Law reflects the uniqueness of the tribe

First, tribes exercise sovereignty by defining the relevant rules. In the employment context, the relevant rules are memorialized by defining employment law, employee handbooks, standard operating procedures, and job descriptions. As discussed below, it all starts with clear employment law that can further be defined by policy and procedure. Therefore, the tribe’s employment law lays the foundation for many of the employment practices exercised by the tribe. For example, if the tribe wants to promote the importance of preference, defining preference rules through the law lays the foundation for drafting policies and procedures to meet, and hopefully exceed, the tribe’s preference goals.

Second, by defining the employment rules through the law (and policy), the tribe is leveling the argument of what rules apply with other sovereigns. If a tribe is challenged by a (federal) Department of Labor audit, the tribe is in a better position to argue that its laws apply as opposed to the application of federal employment laws. The DOL has a long history of asserting that its federal employment laws apply as a replacement for tribal employment laws. If presented with this challenge, since law trumps policy, better to argue tribal law against federal law instead of tribal policy versus federal law.

Third, the United States has made numerous promises to tribes, and some of those promises include financial support for tribal programs. The United States fulfills its responsibility to the tribes, in part, through the Indian Self-Determination and Education Assistance Act of 1975 (Public Law 93-638, or ISDA). The ISDA requires the government agencies dispensing funds to the tribes to defer to the tribe’s insights regarding the best use of those funds.² Despite the ISDA’s admonition to defer to the tribal recipient’s insight, the federal agencies dispensing the funds frequently condition the receipt of those monies on an agreement to follow certain federal standards. When those federal agencies are too zealous in insisting on the application of federal, instead of tribal, standards, the tribe can challenge the federal agency under the law. Moreover, when the agency insists on the application of federal employment laws as a condition for the receipt of federal ISDA funds, the tribe is in a better position to argue that federal employment laws are not a reasonable condition for receipt of the funds since the tribe has employment laws that oftentimes provide equal to greater benefits than the federal law.

Fourth, when tribes promulgate employment laws, it gives tribal council an opportunity to be clear about important goals like preference, whistleblower protection, the exercise of a tribal religion, the definition of harassment and equal rights, cultural leave, bereavement leave, and the enhancement of due process. Tribal councils are under enormous pressure to advance laws, policies, and programs that benefit the tribe’s membership. It is difficult to provide an example of an issue more meaningful to a typical member than full-time employment for the tribe or one of its entities. When tribal councils promulgate preference laws, requiring the tribal government and the other entities of the tribe (housing, health care, convenience stores, and casinos) to leverage the talent within tribal membership first, those tribal councils make a significant impact on the health and welfare of its tribal members.

Fifth, through tribal employment laws, leadership can provide meaningful remedies if a decision maker makes a decision that violates a law or policy. For example, if a director terminated an employee without reasonable justification, a tribe’s employment law could define a path to justice (remedy) for that employee. Those remedies may include reinstatement, back pay, preservation of seniority, and correction of a personnel file. Remedies are an important aspect of delivering the promise of fairness (due process) to employees of the tribe. Consider the promise made in an employee handbook wherein the employer declares:

Slippery Slots Casino does not discriminate on the basis of race, religion, national origin, gender, disability, age, pregnancy, marital status, or sexual orientation.

That promise, or something similar, is made by most tribal employers, but if a rogue supervisor terminates the pregnant employees in her department on a Tuesday afternoon, the above promise by Slippery Slots Casino lacks substance unless there is a corresponding right to a remedy. The obvious remedy is reinstatement of those pregnant employees to their positions and reimbursement of any pay missed as a consequence of a decision that violates the tribal employer’s rules. A right (no discrimination) without a meaningful remedy (reinstatement and back pay) is not enough, and a tribal employment that provides both rights and remedies is a partial cure.

Sixth, union organizers sometimes argue that tribal employers do not provide due process or fairness in the workplace. Whether the federal union law, the National Labor Relations Act, applies to tribal employers is a contested issue without a clear answer. Tribes argue that the NLRA’s failure to declare applicability to tribal employers means it does not apply, while the National Labor Relations Board, charged with enforcing the NLRA, declares the NLRA applies to most tribal employers. Because this argument generates ambiguity, confusion, and lack of clarity, some union organizers argue that tribal employers do not offer fundamentally fair employment practices to tribal employees.³ One way of minimizing that argument is to provide meaningful due process to employees through tribal law.

Seventh, due process, at a minimum, requires employers to (1) clearly define employee expectations through the law, regulation, and policy; (2) hold employees accountable to those defined standards; and (3) give employees a meaningful opportunity to be heard in a formal (grievance or appeal) and informal (real relationship with managers) manner. Tribes deliver the ingredients of due process by drafting clear law and policy, by training their managers to apply the law and policy in a consistent manner, and by including in the law and policy a judicial or administrative process to challenge an employer decision in a forum that is fair, knowledgeable, and just.

Eighth, fairness in the tribal workplace is consistent with