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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