EMPLOYER COMPLIANCE WITH THE NAVAJO PREFERENCE IN EMPLOYMENT ACT: Part 1: Navajo Preference in Hiring

February 18, 2017 § Leave a comment

Employers on the Navajo Nation spend a great deal of time and effort on complying with the Navajo Preference in Employment Act (“NPEA”). The NPEA is an employment-preference law that promotes economic development and jobs for Navajos on tribal land. This overview is the first of three introductory articles on key aspects of the NPEA. The next article will address adverse actions, just cause, and prejudice, intimidation, and harassment issues. The third article will discuss the process for resolving disputes between employees and employers.

These overviews provide only a brief introduction to some of the key rules that employers on the Navajo Nation must comply with under the NPEA. Some employers on the Navajo Nation may also need to comply with federal employment laws in addition to the NPEA. If you have questions about specific issues or a specific employment situation, we recommend that you seek legal advice.

THE HIRING PREFERENCE RULES UNDER THE NPEA

Every employer hires employees and makes employment-related decisions, but the NPEA has some very specific hiring procedures that must be followed. For example, the NPEA has rules that cover advertising, job announcements, and most importantly, the hiring process. The hiring-process rules are important because they require employers to hire the most-qualified applicant after sorting all applicants into three prioritized pools.

Tip #1: Prepare and File an Affirmative Action Plan.

To begin, an employer on the Navajo Nation must have a Navajo affirmative action plan on file with the Office of Navajo Labor Relations (“ONLR”). The NPEA specifically requires the preparation and filing of an affirmative action plan. The plan must establish the employer’s approach to affirmative action in employment that is specific to Navajos. In addition, the plan must include “timetables for all phases of employment to achieve the tribal goals of employing Navajos in all job classifications including supervisory and management positions.” ONLR has specific regulations describing the details that must be covered in the affirmative action plan. A copy of those regulations is available here.

Tip #2: In Job Announcements, State that Preference is Given to Qualified Applicants in Accordance with the Navajo Preference in Employment Act.

Every employer needs to find employees, and to find those employees, the employer typically needs to prepare a job announcement. Under the NPEA, job announcements must state that an employment preference is given to Navajos under the NPEA. For example, the job announcement might say: “[Employer name] gives preference to eligible and qualified applicants pursuant to the Navajo Preference in Employment Act.” Of course, this statement would be in addition to other statements that may be necessary or permitted, such as a preference for veterans.

Tip #3: Advertise Job Openings on Radio Stations and in Newspapers that Will Reach Navajo Job Seekers.

Once the job announcement is written, the employer needs to distribute the announcement where potential job seekers will see or hear about it. Under the NPEA, employers must advertise job openings on radio stations and in newspapers that will reach Navajo job seekers. Employers are not limited to media that will reach Navajo job seekers, but must include radio and newspapers that will reach Navajo job seekers.

Tip #4: After All Applications Have Been Received, Identify the Qualified Applicants.

Once all applications for the job have been received, an employer must first review the applications and screen out any applicants who do not meet the minimum qualifications for the job. The remaining applicants—those who meet the minimum qualifications—may be interviewed and ranked according to their qualifications. To determine how well qualified each candidate is, the employer may use interviewing, credential checking, reference checking, and other hiring techniques. Employers have at least some flexibility in this area as long as the process does not discriminate based on status as a Navajo.

Tip #5: Sort the Applicants into Three Preference Categories:  (1) Navajo Applicants; (2) Non-Navajo Indians and Spouses of Navajos; and (3) All Other Applicants.

Then, hire the most-qualified Navajo, non-Navajo Indian or Spouse of a Navajo, or Other Applicant in that Order of Preference.

After ranking the candidates through interviewing and qualifications, the applicants must be sorted into the following categories, which are listed in order of preference: (1) Navajo applicants; (2) non-Navajo Indians and spouses of Navajos; and (3) all other applicants. The basic rule under the NPEA is that the most-qualified Navajo must be hired, since this category has the highest level of preference. If there are no qualified Navajo applicants, then the employer must hire the most-qualified non-Navajo Indian or spouse of a Navajo. If there are no qualified applicants in this second preference category, then the employer may hire the most qualified of the remaining applicants.

This process for sorting applicants into three prioritized pools and hiring the most-qualified applicant starting with the first pool is a basic requirement of the NPEA. All employers on the Navajo Nation must follow this process although some employers with federal contracts may be required to substitute an Indian preference for the Navajo preference.

CONCLUSION

Complying with the NPEA can take a great deal of time and effort, especially in the areas of hiring and discipline, but the risk of financial liability can be reduced by focusing on the employer’s key legal obligations. This brief article is the first of three articles on some of the basic rules of the NPEA. The hiring process rules discussed in this first article provide a basic introduction, but employers can still face difficult situations and may need assistance sorting through facts, policies, legal obligations. I and other attorneys at Mangum, Wall, Stoops & Warden have the knowledge and expertise to advise employers in those situations.

If you have any questions about this overview, or need assistance with an employment matter under the NPEA, please contact me at Mangum, Wall, Stoops & Warden by using the contact information provided below. I can also be available to give presentations on the NPEA.

James D. Griffith is an Associate Attorney at Mangum, Wall, Stoops & Warden, PLLC. He is licensed as an attorney in Arizona, the Navajo Nation, and the Hopi tribal courts. For more information on the legal services offered by Mr. Griffith, please call (928) 779-6951 or toll free at (800) 514-6064 or through the “Contact Us” page at the website for Mangum, Wall, Stoops & Warden.

Recent Amendment to the Navajo Preference in Employment Act

April 24, 2016 Comments Off on Recent Amendment to the Navajo Preference in Employment Act

The Navajo Nation recently amended its Navajo Preference in Employment Act (the “NPEA”) to cover sexual harassment claims and to slightly shift the burden of proof in all cases. These amendments to the NPEA were passed by the Tribal Council on March 23, 2016 and signed into law by President Begaye on April 6, 2016.[1]

Amendment to Cover Sexual Harassment Claims.

Prior to this amendment, employers doing business on the Navajo Nation were required to provide a work environment free of prejudice, intimidation, and harassment, but the NPEA had been interpreted to exclude employee-to-employee sexual harassment claims.[2] Under the amendment, however, the statute clearly states that an employer’s obligation to provide a work environment free of harassment includes an obligation to provide an environment that is free of sexual harassment.[3]

The amendment also states that, in all claims involving prejudice, intimidation, or harassment, the burden is on the employee to show a violation of the NPEA by a preponderance of the evidence.[4] In other words, the employee must show that it is more likely than not that prejudice, intimidation, or harassment occurred.

Burden of Proof in All Other Claims.

The NPEA has also been changed to state that, when a case goes to a hearing, the burden of proof will be on the employee to show a violation by a preponderance of the evidence.[5] Although the employee must carry this burden of proof at the hearing, the Tribal Council also stated that this change was intended to make the employee and employer share the burden equally.[6]

The effect of this change is not entirely clear, but it seems intended to put more pressure on employees at the hearing stage, while maintaining considerable pressure on employers before the hearing. In other words, employers still carry the burden to show that they have not violated the NPEA before an employment claim has reached a hearing at the Navajo Nation Labor Commission. As such, employers still carry the burden of proof when an employee charge has been filed with the Office of Navajo Labor Relations, and when a complaint has been filed with the Navajo Nation Labor Commission, but before the hearing takes place. Apparently, the employee carries the burden of proof only if the hearing occurs.

Conclusion.

The full effect of these amendments is not entirely clear, and they may not change much about the day-to-day relationship between employees and employers. Nonetheless, the changes are apparently intended to make clear that, at the hearing, employees must be prepared to back up their claims with evidence.

James D. Griffith is an Associate Attorney with Mangum, Wall, Stoops & Warden, PLLC. He is licensed as an attorney in Arizona, the Navajo Nation, and the Hopi tribal courts.  For more information on the legal services offered by Mr. Griffith , please call (928) 779-6951 or toll free at (800) 514-6064 or use the “Contact Us” page.

Endnotes

[1] Navajo Nation Tribal Resolution CMA-13-16.

[2] 15 N.N.C. § 604(B)(9); Yazzie v. Navajo Sanitation, No. SC-CV-16-06, 2007 Navajo Sup. LEXIS 4 (Jul. 11, 2007). Title 15 of the Navajo Nation Code is available at this link, followed by a word search for “Title 15.”

[3] Navajo Nation Tribal Resolution CMA-13-16 (see Section Two on Amendments to Title 15 of the Navajo Nation Code).

[4] Id. (see Section Two on Amendments to Title 15 of the Navajo Nation Code).

[5] Id. (see Section Two on Amendments to Title 15 of the Navajo Nation Code).

[6] Id. at Section I(H).

Employers and Drug-Testing Policies under Arizona Law

February 7, 2016 Comments Off on Employers and Drug-Testing Policies under Arizona Law

Under Arizona law, an employer may adopt and implement a policy for drug and alcohol testing of employees and job applicants. These employer policies may require drug and alcohol testing for any job-related purpose (for example, after a workplace accident) and may require random drug and alcohol testing if applied equally to all employees, officers, and supervisors.

To assist employers, this post answers some basic questions on employer drug-testing policies, the risks of liability from employee lawsuits, and the impact of Arizona’s medical marijuana law. (For purposes of this post, the term “drug testing” includes testing for alcohol consumption.)

What Must be Included in an Employer’s Drug and Alcohol Testing Policy under Arizona Law?

In Arizona, an employer’s drug-testing policy must include the following:

  • The employer’s policy on drug and alcohol use by employees.
  • Which employees and prospective employees are subject to testing.
  • The circumstances under which drug testing may be required.
  • The substances for which testing may be required.
  • The testing methods and collection procedures that the employer may use.
  • The consequences for refusing to participate in drug testing.
  • Any negative personnel action that the employer may take based on the testing procedure or results.
  • The right of an employee, on request, to obtain the written test results.
  • The right of an employee to explain, in a confidential setting, a positive test result.
  • The employer’s policy regarding the confidentiality of the test results.

When Can an Employer Require Drug Testing of Employees?

In general, an employer may require the collection of samples and drug or alcohol testing for any job-related purpose. Common examples include:

  • Investigation of an employee for possible impairment (on the job).
  • Investigation of a workplace accident (if the test is administered as soon as possible after the accident and given to employees who reasonably may have been involved).
  • Maintenance of safety for employees, customers, clients, and the general public.
  • Maintenance of productivity, quality products and services, and security of property or information.
  • Reasonable suspicion that an employee is using drugs and the use is negatively affecting performance or the work environment.

Are There Any Limitations on an Employer’s Legal Right to Adopt and Implement a Drug-Testing Policy?

Yes. The Arizona Supreme Court has ruled that an employer’s drug-testing policy cannot be justified solely on a generalized and unsubstantiated interest in preventing drug and alcohol use by its employees. In other words, an employer’s drug testing will be unconstitutional if the testing is both random and without suspicion, or if the testing is not relate to a legitimate job-related function.

Is an Employer Required to Keep an Employee’s Test Results Confidential?

Yes. In general, all communications and test results related to a drug or alcohol test must be kept confidential and may only be disclosed as permitted by law or in an employment-related grievance or lawsuit. But the employer must provide a copies to the employee on request and may provide test results and related information to a person hired to evaluate the test results or an employee’s explanation.

What Employment-Related Action Can an Employer Take under a Drug-Testing Policy?

An employer may take actions based on a positive drug test that can negatively affect employment or hiring. In the case of a job applicant, an employer may refuse to hire the applicant, but only as the result of a positive drug test (does not apply to positive alcohol tests).

In the case of either an employee or a job applicant, the employer may impose discipline or require participation in rehabilitation services after a positive drug test or refusal to consent to a drug test (although the possible discipline or rehabilitation options must be stated in the drug-testing policy). Common examples of discipline include suspension with or without pay and termination, and rehabilitation typically requires counseling.

As the Employer, What is the Risk of Liability from Employee Lawsuits Related to Drug Testing?

Under Arizona law, an employer can be sued based on the employer’s disciplinary action or rehabilitation requirements if the employee can show two things. First, the employee must show that the employer’s discipline or rehabilitation was imposed based on a false positive. Second, the employee must show that the employer knew or should have known of the false positive and recklessly, maliciously, or willfully disregarded the false positive. From the employer’s perspective, this means that an employer will not be liable merely because the employer imposed discipline or rehabilitation based on a false positive.

Does Arizona Law Provide Employers with Any Protection from Lawsuits?

Yes. Although not immune from all lawsuits, an employer is protected from certain lawsuits (including some by third parties) if the employer has implemented a drug-testing policy. A lawsuit cannot be maintained if (a) the employer followed its drug-testing policy, and (b) the employer:

  • Acted in good faith based on a positive drug or alcohol test.
  • Did not test for drugs or alcohol or for a specific drug or controlled substance.
  • Did not test for or detect a drug, medical condition, or mental or psychological disorder.
  • Terminated or suspended a drug-prevention or drug-testing program or policy.
  • Acted on a good-faith belief that an employee used or possessed any drug in the workplace or during work hours.
  • Acted on a good-faith belief that an employee was impaired while in the workplace or during work hours.
  • Prevented an employee from performing safety-sensitive work based on a good-faith belief that the employee was using any drug (including prescription drugs) if the drug could impair the employee’s performance.

Does Arizona’s Medical Marijuana Act Impact an Employer’s Drug-Testing Policy and Legal Rights?

Yes. In general, the Arizona Medical Marijuana Act (“AMMA”) places certain limits on the actions an employer can take against an employee who holds a valid medical marijuana card.

Under the AMMA, an employer cannot discriminate in hiring, firing, or any condition of employment (including drug testing) based on a person’s status as a holder of a valid medical marijuana card. The AMMA prohibits an employer from imposing discipline or rehabilitation if the employee has a valid medical marijuana card and tests positive for marijuana—unless the employee used, possessed, or was impaired by marijuana at work or during work hours.

In addition, an employer cannot require drug testing of an employee, and cannot search an employee or his or her property based solely on the employee’s status as a holder of a medical marijuana card or possession of an application for a medical marijuana card.

The impact of the AMMA on an employer’s actions under a drug-testing policy can vary depending on the facts of the situation. An employer should consult with an attorney if a specific situation arises involving employee drug testing and an employee with a medical marijuana card.

Are There Any Other Considerations that May Affect an Employer’s Drug-Testing Policy and Employment-Related Actions?

Yes. Some employers may have an obligation to report a positive drug test under laws that govern an employee’s professional or business license.

A teacher, for example, must be “certificated” (licensed) under state education law. The statutes also require school superintendents to report a reasonable suspicion of teacher drug use at any time and a reasonable suspicion of being under the influence of alcohol on school grounds or during a school event.

As another example, individuals who hold a commercial driver’s license, including school bus drivers, are subject to state and federal laws that require drug and alcohol testing. An employer that employs drivers and transportation-related workers must comply with those laws and may be obligated to report positive drug tests to state and federal licensing authorities.

Conclusion.

Overall, the laws related to the testing of employees for drug and alcohol use are complex and range from general laws applicable to all employers to detailed regulations that affect employers of individuals licensed under state or federal law. The answers given above provide only a general overview of the employee drug-testing laws in Arizona. If you are an employer, and you have specific questions or would like to adopt a drug-testing policy, the best approach is to contact an employment-law attorney.

James D. Griffith is an Associate Attorney with Mangum, Wall, Stoops & Warden, PLLC. He is licensed as an attorney in Arizona, the Navajo Nation, and the Hopi tribal courts.

The Power of Cultural Teachings for Native American At-Risk Youth

January 24, 2016 Comments Off on The Power of Cultural Teachings for Native American At-Risk Youth

The White Earth Nation is taking a “no more” stand against substance abuse by using Anishinaabe culture as the basis for an integrated rehabilitation program for youth in the juvenile justice system. The White Earth Tribal Council commissioned a video to show that the program has been very effective in turning around the lives of at-risk youth in the White Earth Nation. As the introduction states:

Impacts of drug abuse are being felt in our homes, schools, workplaces, and in our daily lives. The devastation from this drug abuse is fragmenting our families, contributes to the neglect of our children and threatens to destroy our communities. Our culture is a guide and a source of security in good times and in bad. Many of our teachings handed down from our elders are in danger of being lost, but through our cultural teachings we as people gain strength and understanding. Watch how a determined effort by the White Earth Nation is making a positive change in our community and a difference in the lives of at risk youth.

The White Earth Nation’s reservation is in present-day Minnesota, and the tribe is culturally Anishinaabe—also known as Ojibwe or Chippewa. The Anishinaabeg (plural) describes the tribes aboriginal to the Great Lakes area and speaking an Algonquin dialect.

Please note that Minnesota is a Public Law 280 state, which means that the state has criminal and civil jurisdiction over most tribal lands. The video includes interviews with state-court judges, prosecutors, and public defenders because the state has jurisdiction over juvenile justice matters on the White Earth Naton’s reservation, even if the White Earth Nation has its own tribal police.

Although it focuses on a culturally based program within the juvenile justice system, the video also emphasizes the role of schools in educating the tribe’s youth in Anishinaabe culture in developing values and a way of life based on respect and self-esteem.

Link to video here.

James D. Griffith is an Associate Attorney with Mangum, Wall, Stoops & Warden, PLLC. He is licensed as an attorney in Arizona, the Navajo Nation, and the Hopi tribal courts.

Native American Business Incubator Network Promotes Indian-Owned Businesses

December 27, 2015 Comments Off on Native American Business Incubator Network Promotes Indian-Owned Businesses

Native American Business Incubator Network (“NABIN”) assists Indian-owned businesses grow and prosper. According to recent census data, the number of Indian-owned businesses grew by 15% between 2007 and 2012. See Mark Fogerty, Indian-Owned Business Grew by 15%, Indian Country Today Media Network (Dec. 24, 2015). NABIN helps promote this trend in Indian-owned businesses by helping Native American entrepreneurs and businesses with training, business counseling, mentorship, and other support. If you’re a Native American entrepreneur or businesses owner, NABIN may be able to assist you with overcoming the challenges involved in starting and growing your business. See NABIN on Facebook here.

Update: KJZZ recently aired a story on the challenges faced by Native American entrepreneurs and how NABIN has helped, but also reports that NABIN is about to lose its grant funding and is seeking other funding. See Native American Entrepreneurs Face Unexpected Challenges.

James D. Griffith is an Associate Attorney with Mangum, Wall, Stoops & Warden, PLLC. He is licensed as an attorney in Arizona, the Navajo Nation, and the Hopi tribal courts. He can assist business clients with contracts, regulatory issues, DBE certification, Indian arts and crafts protection, and other matters.

GAO Report on Ongoing Systemic Challenges with Interior’s Bureau of Indian Education

April 26, 2015 Comments Off on GAO Report on Ongoing Systemic Challenges with Interior’s Bureau of Indian Education

The Washington Post recently published an article on a report from the U.S. Government Accountability Office that found mismanagement, staffing problems, and inconsistent financial accounting in the Bureau of Indian Education (“BIE”). The BIE was created about thirteen years ago (it had formerly operated under Interior’s Bureau of Indian Affairs). The agency has responsibility for operating, funding, and overseeing schools on or near tribal lands and has struggled since its formation to develop and implement an effective and efficient agency capable of fulfilling that mission. As a result, the approximately 185 schools that are operated or funded by BIE suffer from problems such as recently installed roofs that leak and drinking fountains with undrinkable water.

Although the challenge of overseeing Indian schools is formidable because of the rural and remote locations of many BIE schools, the problems with BIE and the consequences for the education of Indian children have continued despite White House initiatives to improve Indian education. As far back at the Clinton administration, U.S. presidents have sought to improve the educational opportunities and outcomes for American Indian children. Under Executive Order 13592 signed December 2011, President Obama established the White House Initiative on American Indian and Alaska Native Educational Opportunities. See also here and here. Among other things, the Initiative calls for the U.S. Department of Education and BIE to work together to develop policies on Indian education and the implementation of government programs to improve Indian education.

In its 2014 Native Youth Report (published December 2014), the Initiative stated that:

[O]ver the last six years, the Administration has created new programs (in ED and BIE) to support building tribal sovereignty over education. BIE and ED entered a Memorandum of Agreement to improve two-way communications between the two agencies and address common issues affecting [American Indian / Alaska Native] students. In addition, ED increased the emphasis in its Title VII formula grants, on the need for school districts to provide culturally-relevant education for Indian students.

In pursuit of this policy, BIE has developed a “Blueprint for Reform” (see also here) and is currently engaged in tribal consultations, but it remains to be seen whether BIE can develop and implement a consistent, workable plan for fulfilling its mission. The “Consultation Booklet” for the current round of tribal consultations is available here.

James D. Griffith is an Associate Attorney with Mangum, Wall, Stoops & Warden, PLLC in Flagstaff, Arizona. Jim provides legal services in a variety of areas, including Indian and tribal law, education law, employment matters, and municipal law.

NCAIED Helps Navajo Nation Businesses with Government Contracting Process

February 16, 2015 Comments Off on NCAIED Helps Navajo Nation Businesses with Government Contracting Process

Many Navajo- and Indian-owned ventures face challenges finding business opportunities and surviving the bidding process for government contracts. Fortunately, the National Center for American Indian Enterprise Development offers workshops that can help Indian-owned businesses win tribal and other government contracts, either as a contractor or a sub-contractor. A recent article suggests just how beneficial NCAIED’s workshops have been for Navajo business and can be for any Indian-owned venture. For more information, see NCAIED’s Procurement Technical Assistance Center, which helps Indian-owned business with the government-contracting process.

James D. Griffith is an Associate Attorney with Mangum, Wall, Stoops & Warden, PLLC in Flagstaff, Arizona. Jim provides legal services in a variety of areas, including Indian and tribal law, education law, employment matters, and municipal law.