EMPLOYER COMPLIANCE WITH THE NAVAJO PREFERENCE IN EMPLOYMENT ACT: Part 3: The Complaint Process and Litigation under the NPEA

May 5, 2017 Comments Off on EMPLOYER COMPLIANCE WITH THE NAVAJO PREFERENCE IN EMPLOYMENT ACT: Part 3: The Complaint Process and Litigation under the NPEA

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 third of three overviews of key aspects of the NPEA, and it focuses on complaints filed with the Office of Navajo Labor Relations and litigation before the Navajo Nation Labor Commission. Part 1 discussed the hiring process under the NPEA, and Part 2 discussed adverse action, just cause, and prejudice, intimidation, and harassment in the workplace.

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 COMPLAINT PROCESS AND LITIGATION UNDER THE NPEA

The NPEA follows a two-step process for resolving employment-related disputes and establishes two different governmental agencies—one for each step in the process. The Office of Navajo Labor Relations (“ONLR”) is responsible for processing “charges” filed by employees against employers. The Navajo Nation Labor Commission (“Labor Commission”) is responsible for processing disputes that were not resolved by ONLR, but its procedure is more like formal litigation in a court. Overall, this process for dispute resolution requires the employee and the employer to meet certain deadlines, and if the employee or employer do not meet the deadlines, a claim or a defense can be lost. The starting point for these deadlines is the event or situation that the employee believes violated the NPEA or affects his or her employment status.

ONLR and Employee Charges

When an event occurs that relates to an employment relationship or a workplace, and an employee believes that the event negatively affects his or her employment, the employee has one year from the date of the event to file a charge with ONLR. If the situation involves a series of events, the employee has one year from the last event to file a charge with ONLR. The employee is not required to complete the employer’s grievance process before filing with ONLR.

The employee’s charge must raise all issues or potential NPEA violations that the employee can claim within the one-year period. An employee can amend his or her charge to add new issues or potential violations if asserted within the one-year period, but if not raised at the ONLR stage within the one-year period, the employee may not assert them at all.

Once the employee has filed a charge, ONLR must give written notification to the employer and has six months to investigate the charge. ONLR is authorized to assist the employee and employer in resolving the dispute. Typically, however, ONLR investigates the charge, and the employer or an attorney acting for the employer responds to a request from ONLR for information and documents.

If the case cannot be resolved, ONLR’s investigation will result in one of four possible outcomes, but regardless of the outcome, the employee then gets the right to file a complaint with the Labor Commission. The possible outcomes include: (a) dismissal of the charge without issuance of a right-to-sue letter; (b) issuance of a probable cause notice and a right-to-sue letter; (c) issuance of a right-to-sue letter, but based only on ONLR’s inability to complete the investigation within six months; or (d) ONLR does nothing and a right-to-sue letter is issued.

Again, no matter which of the four outcomes occurs, the employee then has the right to file a complaint with the Labor Commission—even if no right-to-sue letter is issued. ONLR’s dismissal without a right-to-sue letter is not common, but may indicate that the employee’s case is weak.

The Labor Commission and Hearings on Alleged Violations of the NPEA

After the ONLR process is completed, the employee may file a complaint with the Labor Commission. The complaint must be filed within 360 days after the date the employee’s charge was filed with ONLR. The 360-day period does not run from the date a right-to-sue letter is issued or the date the process at ONLR is completed, but instead starts on the day the ONLR charge is filed. The 360-day period can be extended by the Labor Commission if the employee can show unusual circumstances that delayed his or her filing with the Labor Commission.

The Labor Commission has sixty days from the date the complaint is filed to issue a notice of hearing. The hearing does not need to take place within sixty days, but the notice setting the date and time for the hearing must be issued within sixty days. The notice of hearing and a copy of the complaint are then sent to the employer by certified mail.

The employer must file an answer within twenty days of receipt of the complaint and, in certain limited situations, may file a motion to dismiss. We recommend that an employer hire an attorney or advocate who is admitted to practice law in the Navajo Nation to represent him or her when responding to a complaint. Under Navajo case law, the employer must hire an attorney or advocate admitted in the Navajo Nation if the employer is a business entity.

Pre-hearing activities, such as depositions, are permitted but discouraged by the Labor Commission. In other words, the Labor Commission prefers that the employee and employer move ahead with the hearing rather than time-consuming depositions and other fact investigations. About two weeks before the hearing, the parties must file copies of any documents they intend to use at the hearing and a list of witnesses they intend to call at the hearing.

The hearing itself is a formal meeting of the Labor Commission. At least three commissioners must be present for a quorum, and those commissioners will listen to the case presented by each party and decide the case. Even if represented by an attorney or advocate, both the employee and the employer (or an authorized employee of the employer) must attend the hearing in person. If either the employee or employer do not attend the hearing, the Labor Commission will rule in against of the side that did not attend.

On the day of the hearing, the commissioners often ask the parties to discuss settlement. If a settlement is reached, the parties return to the hearing room and inform the commissioners of the terms of the settlement. The commissioners may refuse to accept the settlement if they do not consider the terms reasonable. If a settlement is not reached, the hearing goes forward and follows a format that is similar to a court case.

In the hearing, each side has an opportunity to take testimony from witnesses, present evidence, and cross-examine the other side’s witnesses. The burden of proof is shared equally by the employee and the employer. The employee must prove a violation of the NPEA by a “preponderance,” which means it must be “more likely than not” that the employer violated the NPEA. But the employer then has the burden of proof to present evidence that overcomes the employee’s evidence.

After each side has presented its case, the commissioners will consider all of the evidence presented and decide whether the employer is liable for a violation of the NPEA. This decision, however, relates only to whether the employer has violated the NPEA and does not determine the “remedy” or dollar amount that the employer must pay to the employee. Instead, the Labor Commission will set another hearing to consider the remedy or amount that will appropriately compensate the employee.

Once it has determined the remedy or dollar amount that should be paid, the Labor Commission will enter a judgment. A party may appeal the judgment to the Navajo Nation Supreme Court within ten days of receipt, but if it is not appealed, the judgment becomes final. If a final judgment against an employer is not paid or “satisfied,” the employee may file a case in the Navajo Nation District Court to collect the amount due.

CONCLUSION

Complying with the NPEA can take a great deal of time and effort, but the risk of financial liability can be reduced by focusing on the employer’s key legal obligations. This third of three articles provides only a brief overview of the complaint and litigation process under the NPEA, 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, PLLC 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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