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.

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.

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

February 18, 2017 Comments Off on EMPLOYER COMPLIANCE WITH THE NAVAJO PREFERENCE IN EMPLOYMENT ACT: Part 1: Navajo Preference in Hiring

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).

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