EMPLOYER COMPLIANCE WITH THE NAVAJO PREFERENCE IN EMPLOYMENT ACT: Part II: Adverse Action, Just Cause, and Prejudice, Intimidation, and Harassment

April 6, 2017 Comments Off on EMPLOYER COMPLIANCE WITH THE NAVAJO PREFERENCE IN EMPLOYMENT ACT: Part II: Adverse Action, Just Cause, and Prejudice, Intimidation, and Harassment

The purpose of the Navajo Preference in Employment Act (“NPEA”) is to promote economic development and jobs for Navajos on tribal land. Most employers on the Navajo Nation follow the requirements of the NPEA carefully, but compliance with the NPEA can involve considerable time and effort. This post is the second of three overviews of key aspects of the NPEA, and it focuses on adverse actions, just cause, and prejudice, intimidation, and harassment issues. Part 1 discussed the hiring process under the NPEA, and Part 3 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.

ADVERSE ACTION AND JUST CAUSE UNDER THE NPEA

A basic requirement of the NPEA is a rule that prevents employers from taking any adverse action against an employee unless the employer has just cause. This general rule is often summed up in the catch phrase, “No adverse action without just cause.” This rule usually applies in situations where discipline or termination is involved, but it can apply to any adverse action against an employee.

This requirement of the NPEA is very different from state law. Under Arizona law, most employment arrangements are considered “at-will employment,” and both the employee and the employer may terminate the employment at any time. It is generally thought that the NPEA prohibits at-will employment since ending the employment arrangement without just cause would be an adverse action.

So, what exactly are “adverse action” and “just cause”?

What is “adverse action”?

Under Navajo case law, the term “action” refers to almost any act by an employer that relates to the employment relationship with an employee. An employment action is “adverse” if the result of the action has some tangible, negative effect on the employee’s employment. For example, an action is likely adverse if an employer puts an employee on an improvement plan since a failure to improve work performance could result in termination.

What is “just cause”?

The term “just cause” is not defined in the NPEA, and the case law discussing the term considers just cause to be a broad concept that must be evaluated on a case-by-case basis. But the Navajo Nation Supreme Court has stated that just cause must be substantial and cannot be based on small or minor problems. For example, an employer will not have just cause for an adverse action if the action is based on an employee’s minor neglect of duty, an excused absence, a minor false statement, or mere rudeness.

Here are some tips for complying with the adverse action/just cause requirements:

Tip #1: Use and Follow Written Employment Policies and Procedures.

Just cause for an adverse action can be easier to support if the employer relies on written policies and procedures and a written job description. Under Navajo law, an employee manual creates obligations or rules that both the employer and the employee are expected to follow. Employers must recognize that employees have a reasonable expectation that employers will follow their own written policies and procedures. By closely following written policies and procedures, an employer has a better chance of showing just cause when an employee does not follow policy.

Tip #2: Always Notify the Employee in Writing when Just Cause is Substantial and Include a Clear Statement of the Facts.

The NPEA requires that employees be notified in writing when just cause exists for adverse action. Although a verbal warning may be appropriate for minor problems, an employer must provide written notification when an employee’s work performance is below expectations or an employee’s conduct is a significant violation of policy. In addition, the written notice must include specific facts that are the basis for the adverse action. The facts must be reasonably clear and specific because the facts will be relied upon to show how just cause exists by comparing the facts to the employer’s written policies and/or the job description.

Tip #3: Improvement Plans and Progressive Discipline May Help Minimize Claims.

Many employers on the Navajo Nation use progressive discipline and improvement plans, which can be helpful in minimizing employee claims under the NPEA. Progressive discipline and improvement plans involve an approach that gives an employee a second chance while also protecting the employer since everything about the adverse action is documented. If the employee again violates the employer’s policies or continues work performance that is below expectations, then the employer can take additional steps to help an employee meet expectations under the employer’s policies. If termination becomes necessary after a second or third chance, the written notifications (and following all policies and procedures) can be used as evidence that the employer made a strong effort work with the employee, but the employee did not adjust to required standards of conduct and/or meet work performance expectations.

Tip #4: “Term” Contracts Do Not Violate the NPEA.

Under the NPEA, a “term” contract may be used to create an employment arrangement. A “term” contract is a contract that is effective only for a specific time period (the “term” of the contract). Under a term contract, the contract ends when the term has been completed, and there is no contractual obligation to renew or continue the arrangement after the contract has ended. If an employment contract simply ends because the contract was written that way, and if the employer does nothing to extend the contract or replace it with another, then the employer has not taken any adverse action. Thus, an employer can use a term contract, let the contract expire at the end of the term, and the employment arrangement will end, but the employer remains in compliance with the NPEA. Even so, an employer cannot use a term contract if, at the time the contract was entered, it was structured to avoid compliance with the NPEA.

PREJUDICE, INTIMIDATION, AND HARASSMENT UNDER THE NPEA

The NPEA also places an obligation on employers to prevent prejudice, intimidation, and harassment against employees. This obligation covers employer-initiated situations as well as employee-on-employee prejudice, intimidation, and harassment. Although sexual harassment was not originally covered, the NPEA was amended in the spring of 2016 to include sexual harassment as a prohibited form of harassment. Employees often make claims of prejudice, intimidation, and harassment, especially when they believe the employer is not following its own policies or others in the workplace are being treated differently.

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 second of three articles provides only a brief overview of common claims that an employee can make against an employer, and 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 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.

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