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The Navajo Preference in Employment Act. Howard L. Brown, Esq. Honorable Raymond D. Austin Shorall McGoldrick BrinkmannDistinguished Jurist in Residence, 702 North Beaver Street Indigenous Peoples Law and Flagstaff, AZ 86001 Policy Program - PowerPoint PPT Presentation
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The Navajo Preference in Employment Act
The Navajo Preference in Employment Act
Howard L. Brown, Esq. Honorable Raymond D. AustinShorall McGoldrick Brinkmann Distinguished Jurist in Residence, 702 North Beaver Street Indigenous Peoples Law and Flagstaff, AZ 86001 Policy Program928.779.1050 James E. Rogers College of Law fax 928.779.6252 University of Arizona
Tucson, Arizona
BackgroundBackground
How to deal with the “Permanent Issues” of Unemployment and Poverty?
In 1997, 56% of Navajo people lived below the poverty level (Website of 21st N.N. Council)
How to deal with the “Permanent Issues” of Unemployment and Poverty?
In 1997, 56% of Navajo people lived below the poverty level (Website of 21st N.N. Council)
What is the role of attracting employers to the N.N.?
What is the role of the employer who has chosen to locate on the N.N.?
Self-government includes regulation of employment
Is there a pragmatic balance between Ee Rights and a Favorable Biz. Environment?
What is the role of attracting employers to the N.N.?
What is the role of the employer who has chosen to locate on the N.N.?
Self-government includes regulation of employment
Is there a pragmatic balance between Ee Rights and a Favorable Biz. Environment?
History of the NPEAHistory of the NPEA
1/1972: NTC established ONLR and ONLR’s Plan of Operation
Concerns regarding organized labor and large, industrial employers
8/1985: NTC adopted NPEA “to provide employment opportunities for the Navajo Workforce.”
10/1990: Amended the NPEA This is, for the most part, the NPEA we know
today
1/1972: NTC established ONLR and ONLR’s Plan of Operation
Concerns regarding organized labor and large, industrial employers
8/1985: NTC adopted NPEA “to provide employment opportunities for the Navajo Workforce.”
10/1990: Amended the NPEA This is, for the most part, the NPEA we know
today
Overview of the NPEAOverview of the NPEA
Regulates employment on the Navajo Nation
Preferential Treatment for Navajos No At-Will Employment Monitored and Enforced by the ONLR and
NNLC
Regulates employment on the Navajo Nation
Preferential Treatment for Navajos No At-Will Employment Monitored and Enforced by the ONLR and
NNLC
Purpose of the NPEAPurpose of the NPEA1. Provide employment opportunities for the Navajo
work force2. Provide training for the Navajo people3. Promote economic development of the Navajo Nation4. Lessen dependence on off-Reservation employment 5. Foster economic self-sufficiency6. Protect the health, safety & welfare of Navajo workers7. Foster cooperative efforts with employers to assure
expanded employment opportunities for the Navajo work force
1. Provide employment opportunities for the Navajo work force
2. Provide training for the Navajo people3. Promote economic development of the Navajo Nation4. Lessen dependence on off-Reservation employment 5. Foster economic self-sufficiency6. Protect the health, safety & welfare of Navajo workers7. Foster cooperative efforts with employers to assure
expanded employment opportunities for the Navajo work force
Employers Subject to the NPEAEmployers Subject to the NPEA
Applies to “persons, firms, associations, corporations, and the Navajo Nation and all of its agencies and instrumentalities, who engage the services of any person, whether as employee, agent, or servant.” Regardless of number of individuals employed
Applies to “all employers doing business within the territorial jurisdiction (or near the boundaries of) the Navajo Nation, or engaged in any contract with the Navajo Nation.”
Applies to “persons, firms, associations, corporations, and the Navajo Nation and all of its agencies and instrumentalities, who engage the services of any person, whether as employee, agent, or servant.” Regardless of number of individuals employed
Applies to “all employers doing business within the territorial jurisdiction (or near the boundaries of) the Navajo Nation, or engaged in any contract with the Navajo Nation.”
Who is an “Employer”?Largo v. El Paso Natural Gas Co.
(1995)
Who is an “Employer”?Largo v. El Paso Natural Gas Co.
(1995) Co. did not actually hire,
supervise or pay the subject employees Contracted with other entities
in hiring employees Ruling: El Paso had
“ultimate oversight & control” over hiring via testing
“Employer” is defined broadly based on the “actual relations of the parties”
Co. did not actually hire, supervise or pay the subject employees Contracted with other entities
in hiring employees Ruling: El Paso had
“ultimate oversight & control” over hiring via testing
“Employer” is defined broadly based on the “actual relations of the parties”
Cabinets Southwest, Inc. v Navajo Nation Labor Commission (2004)
Cabinets Southwest, Inc. v Navajo Nation Labor Commission (2004)
Entered into a lease with NN on a parcel of land owned in fee by the NN Operated outside NN Lease stated that the employer would abide by all NN
laws and consent to NN jurisdiction Ruling: CSI was a Navajo Corp. and consented
to application of the NPEA “the Navajo Nation has the authority to regulate
Navajo Corporations outside its territory… regardless of the status of the land where the contract is to be performed”
Entered into a lease with NN on a parcel of land owned in fee by the NN Operated outside NN Lease stated that the employer would abide by all NN
laws and consent to NN jurisdiction Ruling: CSI was a Navajo Corp. and consented
to application of the NPEA “the Navajo Nation has the authority to regulate
Navajo Corporations outside its territory… regardless of the status of the land where the contract is to be performed”
Jackson v. BHP World Minerals (2004)
Jackson v. BHP World Minerals (2004)
Employer engaging in operations inside and outside NN
Employee applied for mining position within NN; received training and drug-testing within NN; records maintained within NN Assigned to a mine outside the NN and later
terminated Ruling: There was a sufficient nexus of
activity on NN land (hiring & training) to fall under NN jurisdiction
Employer engaging in operations inside and outside NN
Employee applied for mining position within NN; received training and drug-testing within NN; records maintained within NN Assigned to a mine outside the NN and later
terminated Ruling: There was a sufficient nexus of
activity on NN land (hiring & training) to fall under NN jurisdiction
Employees covered by NPEAEmployees covered by NPEA An “individual employed by an employer”. Does not include ind. contractors.On Its Face
• Act gives certain protections only to enrolled members of NN
• Only Navajos can file charges claiming violation of their rights
• Secondary preference for certain non-Navajo spouses
An “individual employed by an employer”. Does not include ind. contractors.On Its Face
• Act gives certain protections only to enrolled members of NN
• Only Navajos can file charges claiming violation of their rights
• Secondary preference for certain non-Navajo spouses
Staff Relief, Inc. v. Polacca (2000): Expanded the Act to provide that any person alleging a violation can file a charge
Manygoats v. Atkinson Trading Post (2003): Non-Navajos are entitled to the NPEA’s written notice and just cause protections
Safe and Clean Env? Free of Prejudice?
Specific Requirements of the ActSpecific Requirements of the Act
1. Give preference in employment to Navajos and sometimes spouses of Navajos
2. File a written Navajo affirmative action plan with ONLR
3. Navajo employment preference policy statement in job announcements, ads & employer policies
4. Post in a conspicuous place on its premises for its employees and applicants a preference policy notice prepared by ONLR
5. Modify seniority systems to comply with Act
1. Give preference in employment to Navajos and sometimes spouses of Navajos
2. File a written Navajo affirmative action plan with ONLR
3. Navajo employment preference policy statement in job announcements, ads & employer policies
4. Post in a conspicuous place on its premises for its employees and applicants a preference policy notice prepared by ONLR
5. Modify seniority systems to comply with Act
6. Utilize NN employment sources & job services for employee recruitment and referrals (with some exceptions)
7. Advertise & announce all job vacancies in at least one NN newspaper and radio station (with some exceptions)
8. Use non-discriminatory job qualifications & selection criteria in employment
9. Not take any adverse action against employee without just cause & written notice
10. Maintain safe, clean working environment free of prejudice, intimidation & harassment
6. Utilize NN employment sources & job services for employee recruitment and referrals (with some exceptions)
7. Advertise & announce all job vacancies in at least one NN newspaper and radio station (with some exceptions)
8. Use non-discriminatory job qualifications & selection criteria in employment
9. Not take any adverse action against employee without just cause & written notice
10. Maintain safe, clean working environment free of prejudice, intimidation & harassment
12. Training as part of affirmative action plan
13. Cross-cultural programs: educating non-Navajos on Navajo culture
13. Ensure fringe benefits do not discriminate against Navajo religious traditions or cultural beliefs
14. Establish written qualifications for each employment position; provide a copy of these qualifications to each applicant when they express interest in a position
12. Training as part of affirmative action plan
13. Cross-cultural programs: educating non-Navajos on Navajo culture
13. Ensure fringe benefits do not discriminate against Navajo religious traditions or cultural beliefs
14. Establish written qualifications for each employment position; provide a copy of these qualifications to each applicant when they express interest in a position
Preference for Navajos & Spouses of Navajos
Preference for Navajos & Spouses of Navajos
Must hire Navajo applicant who meets the qualifications of the employment position Irrespective of qualifications of non-Navajo applicants
RIFs: A Navajo who meets necessary qualifications must be
retained until all non-Navajos are laid-off Any Navajo who is laid off has the right to displace a
non-Navajo in a position for which the Navajo is qualified
Must hire Navajo applicant who meets the qualifications of the employment position Irrespective of qualifications of non-Navajo applicants
RIFs: A Navajo who meets necessary qualifications must be
retained until all non-Navajos are laid-off Any Navajo who is laid off has the right to displace a
non-Navajo in a position for which the Navajo is qualified
Non-Navajo SpousesNon-Navajo Spouses Entitled to secondary employment
preference Must provide proof of marriage to a Navajo Must reside within territorial jurisdiction of NN
for a continuous 1-year period immediately preceding employment consideration
Secondary Preference Does not have preference over Navajo
applicants
Entitled to secondary employment preference Must provide proof of marriage to a Navajo Must reside within territorial jurisdiction of NN
for a continuous 1-year period immediately preceding employment consideration
Secondary Preference Does not have preference over Navajo
applicants
“Necessary Qualifications”“Necessary Qualifications”
Employers must establish written necessary qualifications & provide a copy for all applicants
Definition Includes speaking/understanding Navajo
language & familiarity with Navajo culture Must be non-discriminatory
Employers must establish written necessary qualifications & provide a copy for all applicants
Definition Includes speaking/understanding Navajo
language & familiarity with Navajo culture Must be non-discriminatory
Necessary Qualifications, cont’dNecessary Qualifications, cont’d Employers are not required to hold
positions open until unqualified Navajos become qualified (Largo v. Gregory & Cook, Inc. (1995))
What the NPEA requires: When there are a number of qualified
candidates, hire the qualified Navajo When there is a pool of qualified Navajo
candidates, hire the most qualified Navajo
Employers are not required to hold positions open until unqualified Navajos become qualified (Largo v. Gregory & Cook, Inc. (1995))
What the NPEA requires: When there are a number of qualified
candidates, hire the qualified Navajo When there is a pool of qualified Navajo
candidates, hire the most qualified Navajo
Stago v. Wide Ruins
Community School (2002)
ONLR & NNLC may over-rule an employer’s determination as to
whether a certain applicant meets the “necessary qualification” and whether one Navajo applicant is more qualified
than another Navajo applicant
Silentman v. Pittsburgh and Midway Coal Mining Company (2003)
The employee has the burden of showing that he/she is qualified for
the position in question
______________________________________________________________________
Practice TipsPractice Tips
1. Be sure to make the written qualifications stringent enough so that anyone who meets the bare minimum can perform the job well
2. Make sure the written qualifications are not unnecessarily demanding or unrelated to the job such that they could be considered discriminatory
3. Include the qualifications in Position Descriptions, give a copy to everyone who expresses an interest & require each person to sign a form acknowledging receipt of the PD
1. Be sure to make the written qualifications stringent enough so that anyone who meets the bare minimum can perform the job well
2. Make sure the written qualifications are not unnecessarily demanding or unrelated to the job such that they could be considered discriminatory
3. Include the qualifications in Position Descriptions, give a copy to everyone who expresses an interest & require each person to sign a form acknowledging receipt of the PD
4. Re-opening a position or canceling a job posting may be suspect
• ONLR interprets this to mean that if a qualified Navajo applies, he/she must be hired
If an employer receives a qualified Navajo applicant, he/she is prohibited from re-opening the position or canceling the job posting
• Recommendations1. “Open until filled”
2. Demanding written qualifications
3. Do not post a position unless you’re sure you need it & can afford it
4. Re-opening a position or canceling a job posting may be suspect
• ONLR interprets this to mean that if a qualified Navajo applies, he/she must be hired
If an employer receives a qualified Navajo applicant, he/she is prohibited from re-opening the position or canceling the job posting
• Recommendations1. “Open until filled”
2. Demanding written qualifications
3. Do not post a position unless you’re sure you need it & can afford it
“Any Navajo who demonstrates the necessary qualifications for an employment position shall be selected by the employer”
Affirmative Action PlansAffirmative Action Plans
Act requires all employers to develop Affirmative Action Plans and Timetables Must file with ONLR within 90 days of starting
business within the NN Failure to file an Plan = Violation of Act ONLR is required to assist employers with
development and implementation of plan Will review an employer’s plan & either approve or
disapprove it
Act requires all employers to develop Affirmative Action Plans and Timetables Must file with ONLR within 90 days of starting
business within the NN Failure to file an Plan = Violation of Act ONLR is required to assist employers with
development and implementation of plan Will review an employer’s plan & either approve or
disapprove it
Contents of PlanContents of Plan1. Training2. Employer-sponsored cross-cultural program
• Teaching Navajo culture to non-Navajos
1. Training2. Employer-sponsored cross-cultural program
• Teaching Navajo culture to non-Navajos
2002: Human Services Committee of the NN Counsel adopted regulations that elaborate on the contents
and implementation of these plans:
1.Policy Statement• Indicates employer’s position on Navajo preference• Assigns responsibility for implementing preference• Sets forth a procedure for reporting & monitoring
2. Policy Statement must discuss employment and training for Navajos
3. Policy Statement must state that employment actions will be handled based on the NPEA
4. Management-level employee must be appointed to implement & monitor Affirmative Action Plan
5. Employer must establish goals & timelines
6. Affirmative Action Plan should contain a workforce analysis
2. Policy Statement must discuss employment and training for Navajos
3. Policy Statement must state that employment actions will be handled based on the NPEA
4. Management-level employee must be appointed to implement & monitor Affirmative Action Plan
5. Employer must establish goals & timelines
6. Affirmative Action Plan should contain a workforce analysis
7. “In depth analysis”• Composition of Navajo/Non-Navajo employees• Composition of applicant flow of Navajo/Non-Navajo• Employee retention, promotion, transfer, etc.• Apprentice programs & company training
8. The following require corrective action1. Under-utilization of Navajo employees2. Vertical movement of Navajo employees is less than non-
Navajo employees3. Selection process eliminates significantly more Navajos4. Job descriptions are inaccurate in relation to actual duties
of the job5. Testing has a higher adverse impact rate on Navajos6. Non-support of Company’s Affirmative Action Plan by staff7. No formal criteria for evaluating Affirmative Action Plan
7. “In depth analysis”• Composition of Navajo/Non-Navajo employees• Composition of applicant flow of Navajo/Non-Navajo• Employee retention, promotion, transfer, etc.• Apprentice programs & company training
8. The following require corrective action1. Under-utilization of Navajo employees2. Vertical movement of Navajo employees is less than non-
Navajo employees3. Selection process eliminates significantly more Navajos4. Job descriptions are inaccurate in relation to actual duties
of the job5. Testing has a higher adverse impact rate on Navajos6. Non-support of Company’s Affirmative Action Plan by staff7. No formal criteria for evaluating Affirmative Action Plan
“Termination & Adverse Action”“Termination & Adverse Action” NPEA prohibits adverse action without just cause
& written notice. No At-Will Employment. Adverse action is not defined in the Act Statutory context (“Penalizing, disciplining,
discharging or taking any adverse action…”) Inferred to include employment termination, demotion,
pay reduction, etc. Sells v. Rough Rock Community School (2005)
“if it results in some tangible, negative effect on the Plaintiff’s employment”
Must be an affirmative act by the employer that terminates ongoing employment
NPEA prohibits adverse action without just cause & written notice. No At-Will Employment.
Adverse action is not defined in the Act Statutory context (“Penalizing, disciplining,
discharging or taking any adverse action…”) Inferred to include employment termination, demotion,
pay reduction, etc. Sells v. Rough Rock Community School (2005)
“if it results in some tangible, negative effect on the Plaintiff’s employment”
Must be an affirmative act by the employer that terminates ongoing employment
Goldtooth v. Naa Tsis’Aan Community School
(2005) Non-renewal of term
contract is not adverse action But, cannot use term
contracts to avoid “just cause”
Ex: when an employer uses “unnecessarily short terms for the same employees in a series of contracts”
Goldtooth v. Naa Tsis’Aan Community School
(2005) Non-renewal of term
contract is not adverse action But, cannot use term
contracts to avoid “just cause”
Ex: when an employer uses “unnecessarily short terms for the same employees in a series of contracts”
Milligan v. Navajo Tribal Utility Authority
(2006) Layoffs are
considered adverse action
Milligan v. Navajo Tribal Utility Authority
(2006) Layoffs are
considered adverse action
“Just Cause”“Just Cause”
Employer cannot take adverse action against an employee without just cause
Smith v. Navajo Nation Department of Head Start (2005) Acknowledged a case-by-case analysis “Just cause is a broad concept that involves
unique factual circumstances” Substantial misconduct; not minor neglect of
duty
Employer cannot take adverse action against an employee without just cause
Smith v. Navajo Nation Department of Head Start (2005) Acknowledged a case-by-case analysis “Just cause is a broad concept that involves
unique factual circumstances” Substantial misconduct; not minor neglect of
duty
Examples of Just CauseExamples of Just Cause Etsitty v. Sessa Corp. (1995)
Employee failed to show up for work for several days & did not notify employer
Bitsuie v. Agent Orange Family Assistance Program (1996) Employee’s acts included hanging up on his boss,
failure to turn in his keys & remarks stating that he “did not have to talk to his boss”
Rock V. Redhair (1997) Employee used employer’s credit card for gas for non-
work related travel in her vehicle & deliberately altered a credit card receipt
Etsitty v. Sessa Corp. (1995) Employee failed to show up for work for several days &
did not notify employer Bitsuie v. Agent Orange Family Assistance
Program (1996) Employee’s acts included hanging up on his boss,
failure to turn in his keys & remarks stating that he “did not have to talk to his boss”
Rock V. Redhair (1997) Employee used employer’s credit card for gas for non-
work related travel in her vehicle & deliberately altered a credit card receipt
Blie v. Peabody Western Coal Company (1997) Employee had 2 occasions of sexually harassing
behavior Despite being fully aware of Company’s sexual harassment
policy & being warned that a second infraction would lead to termination
Yazzie v. Navajo Tribal Utility Authority (1997) Employee violated Company’s alcohol policy
Violated the policy several previous times. Employer suspended the employee and warned that future violations could result in termination
Grey v. Barlow (1998) Security guard: Failed to wear company uniform on
the job, wear required number of pepper sprays, comply with patrol procedures, cooperate with co-workers, etc.
Employer took corrective actions & warned that continued misconduct could lead to termination
Blie v. Peabody Western Coal Company (1997) Employee had 2 occasions of sexually harassing
behavior Despite being fully aware of Company’s sexual harassment
policy & being warned that a second infraction would lead to termination
Yazzie v. Navajo Tribal Utility Authority (1997) Employee violated Company’s alcohol policy
Violated the policy several previous times. Employer suspended the employee and warned that future violations could result in termination
Grey v. Barlow (1998) Security guard: Failed to wear company uniform on
the job, wear required number of pepper sprays, comply with patrol procedures, cooperate with co-workers, etc.
Employer took corrective actions & warned that continued misconduct could lead to termination
Cly v. Kayenta Trading Post (1998) 12 days of unauthorized sick leave in a 4 month period,
refused assigned tasks Arrived late and & left early without authorization Employer gave written and verbal warnings
Smith v. Navajo Nation Department of Head Start (2005) Employee failed to call or report to a supervisor for 3
days Violated clear rule in employer’s personnel policies
Kesoli v. Anderson Security Agency (2005) Employee engaged in a pattern of shouting at his
subordinates
Cly v. Kayenta Trading Post (1998) 12 days of unauthorized sick leave in a 4 month period,
refused assigned tasks Arrived late and & left early without authorization Employer gave written and verbal warnings
Smith v. Navajo Nation Department of Head Start (2005) Employee failed to call or report to a supervisor for 3
days Violated clear rule in employer’s personnel policies
Kesoli v. Anderson Security Agency (2005) Employee engaged in a pattern of shouting at his
subordinates
“Just Cause” for layoffs“Just Cause” for layoffs Milligan v. Navajo Tribal Utility Authority (2006)
“just cause” for layoffs does not require “substantial misconduct” of employees; layoff may be made when necessary to promote financial viability or operational efficiency
Davis v. Lukachukai Community School (2008) To have “just cause,” must follow layoff procedures Also, must justify layoffs as necessary to promote
financial viability or operational efficiency
Milligan v. Navajo Tribal Utility Authority (2006) “just cause” for layoffs does not require “substantial
misconduct” of employees; layoff may be made when necessary to promote financial viability or operational efficiency
Davis v. Lukachukai Community School (2008) To have “just cause,” must follow layoff procedures Also, must justify layoffs as necessary to promote
financial viability or operational efficiency
An Aside on TrainingAn Aside on Training Toledo v. Bashas’ Dine Market (2006)
Employee touched anther employee’s breast = Just Cause for the touching employee to be terminated
A terminated employee may rebut the employer’s “just cause” by arguing the employee was not properly trained
Smith v. Navajo Nation Department of Head Start (2005) “an ambiguous policy, in the absence of training to
inform employees of what that policy means, cannot justify termination”
Employers must insure proper training on their policies
Toledo v. Bashas’ Dine Market (2006) Employee touched anther employee’s breast = Just
Cause for the touching employee to be terminated A terminated employee may rebut the employer’s “just
cause” by arguing the employee was not properly trained
Smith v. Navajo Nation Department of Head Start (2005) “an ambiguous policy, in the absence of training to
inform employees of what that policy means, cannot justify termination”
Employers must insure proper training on their policies
Written Notice of Just CauseWritten Notice of Just Cause Employer cannot take adverse action against
an employee without just cause and a written notice
Contents of Written Notice Explanation of Just Cause Smith v. Red Mesa Unified School District (1995): “reasons for
terminating an employee’s employment so employee may pursue legal remedies”
Dilcon Navajo Westerner/True Value Store v. Jensen (2000): written notification must be reasonably clear, with facts that support the adverse action Notice must be provided contemporaneously with adverse action to
avoid “ad hoc justifications” Jackson v. BHP World Minerals (2004): Meaningfulness
depends on whole context of employment relationship, not just the bare language in a vacuum.
Employer cannot take adverse action against an employee without just cause and a written notice
Contents of Written Notice Explanation of Just Cause Smith v. Red Mesa Unified School District (1995): “reasons for
terminating an employee’s employment so employee may pursue legal remedies”
Dilcon Navajo Westerner/True Value Store v. Jensen (2000): written notification must be reasonably clear, with facts that support the adverse action Notice must be provided contemporaneously with adverse action to
avoid “ad hoc justifications” Jackson v. BHP World Minerals (2004): Meaningfulness
depends on whole context of employment relationship, not just the bare language in a vacuum.
Practice TipsPractice Tips MUST HAVE JUST CAUSE MUST PROVIDE EMPLOYEE WITH WRITTEN NOTICE Precautionary measures
1. Document details of each incident when they occur2. Use progressive discipline when appropriate
– Smith v. Red Mesa Unified School District No 27 (1995): Court refused petitioner’s claim that the employer must offer an “improvement plan” or progressive discipline. Nonetheless, employers are advised to use such methods when appropriate.
3. Set forth standards for employee conduct & procedures for disciplining employees
– Document that employees have read & understand policies & received training on policies
4. Apply policies with uniformity
MUST HAVE JUST CAUSE MUST PROVIDE EMPLOYEE WITH WRITTEN NOTICE Precautionary measures
1. Document details of each incident when they occur2. Use progressive discipline when appropriate
– Smith v. Red Mesa Unified School District No 27 (1995): Court refused petitioner’s claim that the employer must offer an “improvement plan” or progressive discipline. Nonetheless, employers are advised to use such methods when appropriate.
3. Set forth standards for employee conduct & procedures for disciplining employees
– Document that employees have read & understand policies & received training on policies
4. Apply policies with uniformity
Prohibition Against HarassmentProhibition Against Harassment “all employers shall provide employment conditions
free of prejudice, intimidation and harassment.” Toledo v. Bashas’ Dine’ Market (2006)
Harassment, including sexual, can be “just cause” for termination (see also Kesoli v. Anderson Security Agency (2005))
Yazzie v. Navajo Sanitation (2007) Act does not authorize employee to file a claim with NNLC
against the employer for sexual harassment Davis v. Lukachukai Community School (2008)
(unpublished decision) An employer cannot be held strictly liable if it responds to
allegations of harassment with “swift action”
“all employers shall provide employment conditions free of prejudice, intimidation and harassment.”
Toledo v. Bashas’ Dine’ Market (2006) Harassment, including sexual, can be “just cause” for
termination (see also Kesoli v. Anderson Security Agency (2005))
Yazzie v. Navajo Sanitation (2007) Act does not authorize employee to file a claim with NNLC
against the employer for sexual harassment Davis v. Lukachukai Community School (2008)
(unpublished decision) An employer cannot be held strictly liable if it responds to
allegations of harassment with “swift action”
Union ActivitiesUnion Activities Navajo workers have the right to organize,
bargain collectively, strike & peacefully picket Right to strike & picket does not apply to
employees of NN, its agencies or enterprises July 25, 1994
Regulations adopted authorizing the ONLR to certify unions through a petition and voting process
Navajo workers have the right to organize, bargain collectively, strike & peacefully picket
Right to strike & picket does not apply to employees of NN, its agencies or enterprises
July 25, 1994 Regulations adopted authorizing the ONLR to
certify unions through a petition and voting process
Prevailing WagePrevailing Wage
Act directs ONLR to establish a prevailing wage rate for each employee classification with respect to construction projects occurring within the NN
Exempt construction projects: Certain types, including those under
$20,000.00 & those subject to the Davis-Bacon Act
Act directs ONLR to establish a prevailing wage rate for each employee classification with respect to construction projects occurring within the NN
Exempt construction projects: Certain types, including those under
$20,000.00 & those subject to the Davis-Bacon Act
Health and Safety of Navajo Workers
Health and Safety of Navajo Workers
“All employers must maintain a safe and clean working environment”
“adopt and implement work practices which conform to occupational safety and health standards imposed by law”
Issue: Does OSHA apply in Indian County?
“All employers must maintain a safe and clean working environment”
“adopt and implement work practices which conform to occupational safety and health standards imposed by law”
Issue: Does OSHA apply in Indian County?
Contract ComplianceContract Compliance
All transaction documents must contain provisions by which the employer and other contracting parties agree to abide by requirements of the Act
Also applies to: Bid Solicitations Requests for Proposals Notice & advertisement pertaining to contracts to be
performed within NN
All transaction documents must contain provisions by which the employer and other contracting parties agree to abide by requirements of the Act
Also applies to: Bid Solicitations Requests for Proposals Notice & advertisement pertaining to contracts to be
performed within NN
Polygraph TestingPolygraph Testing
Employers are prohibited from issuing polygraphs to employees or applicants
Employers are prohibited from terminating/disciplining an employee for failing or refusing a test
Does not apply to federal or state employees on NN
Employers are prohibited from issuing polygraphs to employees or applicants
Employers are prohibited from terminating/disciplining an employee for failing or refusing a test
Does not apply to federal or state employees on NN
Breast Feeding in the Workplace
Breast Feeding in the Workplace
Navajo Nation Healthy Start Act of 2008. Not codified as part of the NPEA, but
creates new rights for certain employees on the Navajo Nation, it incorporates certain definitions from the NPEA and it is enforced by the ONLR and the NNLC.
Navajo Nation Healthy Start Act of 2008. Not codified as part of the NPEA, but
creates new rights for certain employees on the Navajo Nation, it incorporates certain definitions from the NPEA and it is enforced by the ONLR and the NNLC.
Breast Feeding, cont’dBreast Feeding, cont’d
Employers doing business within Navajo Nation, or engaged in any contract with Navajo Nation, shall provide to each working mother opportunities to engage in breast-feeding of their infant child, or use of a breast pump at the workplace
Employers doing business within Navajo Nation, or engaged in any contract with Navajo Nation, shall provide to each working mother opportunities to engage in breast-feeding of their infant child, or use of a breast pump at the workplace
Breast Feeding, cont’dBreast Feeding, cont’d
Employer must provide (1) “a clean and private area or other enclosure near the employee’s workspace, and not a bathroom, to engage in breast-feeding or use of a breast pump” and (2) “a sufficient number of unpaid and flexible breaks within the course of the workday to allow a working mother to engage in breast-feeding or use of a breast-pump.”
Employers are required to file with the ONLR a written plan to provide working mothers with such opportunities
Employer must provide (1) “a clean and private area or other enclosure near the employee’s workspace, and not a bathroom, to engage in breast-feeding or use of a breast pump” and (2) “a sufficient number of unpaid and flexible breaks within the course of the workday to allow a working mother to engage in breast-feeding or use of a breast-pump.”
Employers are required to file with the ONLR a written plan to provide working mothers with such opportunities
Breast Feeding, cont’dBreast Feeding, cont’d No exceptions/defenses for “undue burden” Failure to comply =
adverse action, failure to provide a safe and clean working
environment, and a failure to provide employment free of prejudice,
intimidation and harassment ONLR monitors/enforces; NNLC conducts
hearings
No exceptions/defenses for “undue burden” Failure to comply =
adverse action, failure to provide a safe and clean working
environment, and a failure to provide employment free of prejudice,
intimidation and harassment ONLR monitors/enforces; NNLC conducts
hearings
Monitoring & Enforcement of the Act: The ONLR
Monitoring & Enforcement of the Act: The ONLR
Office of Navajo Labor Relations Monitors and enforces the Act Person may file charges with the ONLR or ONLR may
file charges on its own initiative All charges must be filed with the ONLR within 1 year
after the accrual of the claim Accrual: the date of the alleged violation, or when the
employee reasonably should have known of the violation Employee’s participation in employer’s internal grievance
process does not change the time. Moore v. BHP Billiton (2007).
Office of Navajo Labor Relations Monitors and enforces the Act Person may file charges with the ONLR or ONLR may
file charges on its own initiative All charges must be filed with the ONLR within 1 year
after the accrual of the claim Accrual: the date of the alleged violation, or when the
employee reasonably should have known of the violation Employee’s participation in employer’s internal grievance
process does not change the time. Moore v. BHP Billiton (2007).
ONLR, cont’dONLR, cont’d 20 days after the charge is filed ONLR must notify
employer ONLR is required to investigate as to whether
there is probable cause Subpoenas, Interviews, Interrogatories Generally, ONLR will issue a letter describing the
charge & will request responses to inquiries & copies of documents
180 days after charge is filed:1. Dismiss for lack of probable cause & issue “right to sue”
letter to employee2. Issue a “probable cause determination” 3. Certify it will be unable to complete the steps in 180
days and issue “right to sue” letter
20 days after the charge is filed ONLR must notify employer
ONLR is required to investigate as to whether there is probable cause
Subpoenas, Interviews, Interrogatories Generally, ONLR will issue a letter describing the
charge & will request responses to inquiries & copies of documents
180 days after charge is filed:1. Dismiss for lack of probable cause & issue “right to sue”
letter to employee2. Issue a “probable cause determination” 3. Certify it will be unable to complete the steps in 180
days and issue “right to sue” letter
Navajo Nation Labor CommissionNavajo Nation Labor Commission
After receiving “right to sue” or expiration of 180 days after charge was filed: Employee may file written complaint with NNLC Complaint must be filed within 360 after charge
was filed with ONLR & signed by ONLR employee
NNLC is required to schedule a hearing within 60 days of the filing of complaint
After receiving “right to sue” or expiration of 180 days after charge was filed: Employee may file written complaint with NNLC Complaint must be filed within 360 after charge
was filed with ONLR & signed by ONLR employee
NNLC is required to schedule a hearing within 60 days of the filing of complaint
Rules of Procedures for Proceedings Before the Navajo Nation Labor Commission Require employer to file a written answer to the
complaint within 20 days after receipt of the notice of hearing
NNLC has subpoena power Not bound by formal rules of evidence Parties have the right to:
Legal Counsel Present witnesses Cross-examine witnesses
Employer has the burden of proof to show by a preponderance of the evidence that it complied with the Act. Manygoats v. Cameron Trading Post (2000).
Rules of Procedures for Proceedings Before the Navajo Nation Labor Commission Require employer to file a written answer to the
complaint within 20 days after receipt of the notice of hearing
NNLC has subpoena power Not bound by formal rules of evidence Parties have the right to:
Legal Counsel Present witnesses Cross-examine witnesses
Employer has the burden of proof to show by a preponderance of the evidence that it complied with the Act. Manygoats v. Cameron Trading Post (2000).
Exhaustion of Employer’s Internal Remedies
Exhaustion of Employer’s Internal Remedies
Taylor v. Dilcon Community School (2005) Exhaustion is not required. The only prerequisite to filing an NNLC
Complaint is the statutory ONLR Charge process.
Taylor v. Dilcon Community School (2005) Exhaustion is not required. The only prerequisite to filing an NNLC
Complaint is the statutory ONLR Charge process.
Res JudicataRes Judicata
Peabody Western Coal Company v. NNLC & Edward Silverhatband (2003): Employee barred by res judicata from bringing claim to NNLC
Claim had already been adjudicated by an arbitrator 4 elements for res judicata:
– Parties in 2nd action must be same as parties in 1st action
– Cause of action must be the same or arise from same transaction/event
– Must have been a final decision in 1st action– 1st decision must have been on the merits
– No jurisdiction over claims outside the Act– NNLC must dismiss entire complaint, including NPEA claims
Peabody Western Coal Company v. NNLC & Edward Silverhatband (2003): Employee barred by res judicata from bringing claim to NNLC
Claim had already been adjudicated by an arbitrator 4 elements for res judicata:
– Parties in 2nd action must be same as parties in 1st action
– Cause of action must be the same or arise from same transaction/event
– Must have been a final decision in 1st action– 1st decision must have been on the merits
– No jurisdiction over claims outside the Act– NNLC must dismiss entire complaint, including NPEA claims
Remedies & ReliefRemedies & Relief May be awarded against an employer who
violated the Act directed hiring, reinstatement, back-pay, front-pay,
etc. If NNLC finds the violation intentional, it may
impose civil fines Liability for compensatory damages shall not
accrue from a date that is more than 2 years prior to the date of filing of the ONLR charge
May be awarded against an employer who violated the Act directed hiring, reinstatement, back-pay, front-pay,
etc. If NNLC finds the violation intentional, it may
impose civil fines Liability for compensatory damages shall not
accrue from a date that is more than 2 years prior to the date of filing of the ONLR charge
Yazzie v. Navajo Sanitation (2007) Certain remedies are not reasonably tied to making a
person whole - (firing an employee based on the complaint by another employee)
Does not compensate claimant; punishes other employees
ONLR v. West World (1994) Damages are calculated differently depending on
whether the employee was hired on a definite or indefinite basis
Yazzie v. Navajo Sanitation (2007) Certain remedies are not reasonably tied to making a
person whole - (firing an employee based on the complaint by another employee)
Does not compensate claimant; punishes other employees
ONLR v. West World (1994) Damages are calculated differently depending on
whether the employee was hired on a definite or indefinite basis
Definite basis:
• Measure of the damages is the unpaid balance of salary less the sums earned or could have been earned during the remainder of the contract period
Indefinite basis
• Measure of damages runs from the date of discharge to the time of judgment
Attorneys Fees and CostsAttorneys Fees and Costs
If NNLC find that the ER’s “position” was “not substantially justified,” it can award costs and attorney’s fees
Goldtooth II (2009) Position: The overall conduct of the Er, including pre-
litigation conduct, to be reviewed under a reasonable person standard
Substantially Justified: 1) the employee’s pleading or document was not submitted in good faith, or that it contains material misstatement of fact or law, or that it is not made upon adequate investigation or research or 2) that the employee failed to participate in the proceedings.
If NNLC find that the ER’s “position” was “not substantially justified,” it can award costs and attorney’s fees
Goldtooth II (2009) Position: The overall conduct of the Er, including pre-
litigation conduct, to be reviewed under a reasonable person standard
Substantially Justified: 1) the employee’s pleading or document was not submitted in good faith, or that it contains material misstatement of fact or law, or that it is not made upon adequate investigation or research or 2) that the employee failed to participate in the proceedings.
Enforcement & Appeals of NNLC Decisions
Enforcement & Appeals of NNLC Decisions
Commission’s decisions may be enforced in the District Courts of the Navajo Nation
Appeals Any party can appeal a NNLC decisions
directly to the Supreme Court of the NN Must file a written appeal within 10 days after
receipt of NNLC’s decision
Commission’s decisions may be enforced in the District Courts of the Navajo Nation
Appeals Any party can appeal a NNLC decisions
directly to the Supreme Court of the NN Must file a written appeal within 10 days after
receipt of NNLC’s decision
Navajo common Law (NCL)Navajo common Law (NCL) NCL - Values, customs & traditions found in
Navajo culture, spirituality, language & sense of place (includes Fundamental Laws)
Duty to Use NCL - 7 NNC sec. 204(A) & (B): Use NCL to interpret Navajo statutory laws and
regulations; Apply NCL whenever Navajo statutes or
regulations are silent on matters in dispute; Knowledgeable Navajos can advise Court [labor
commission too] on NCL.
NCL - Values, customs & traditions found in Navajo culture, spirituality, language & sense of place (includes Fundamental Laws)
Duty to Use NCL - 7 NNC sec. 204(A) & (B): Use NCL to interpret Navajo statutory laws and
regulations; Apply NCL whenever Navajo statutes or
regulations are silent on matters in dispute; Knowledgeable Navajos can advise Court [labor
commission too] on NCL.
Rule on adoption of bilagaana law: Non-Navajo law must be compatible with fundamental Navajo values. Goldtooth, 8 Nav. R. 682, 691 (2005).
Fundamental Navajo postulates Navajo dispute resolution model: hozho anahooti
hozho (harmony problem harmony). Goals: restore parties, clan, community etc. to hozho; mend/heal relationships
Hozho: Gloss as a state/condition where everything is in its proper place and functioning in harmonious relationship to everything else. Witherspoon, Navajo Kinship & Marriage (1975). Hozho is not blackletter law that applies to a legal issue.
Rule on adoption of bilagaana law: Non-Navajo law must be compatible with fundamental Navajo values. Goldtooth, 8 Nav. R. 682, 691 (2005).
Fundamental Navajo postulates Navajo dispute resolution model: hozho anahooti
hozho (harmony problem harmony). Goals: restore parties, clan, community etc. to hozho; mend/heal relationships
Hozho: Gloss as a state/condition where everything is in its proper place and functioning in harmonious relationship to everything else. Witherspoon, Navajo Kinship & Marriage (1975). Hozho is not blackletter law that applies to a legal issue.
Fundamental Navajo postulates cont. ... K’e: Gloss as unity through positive values
such as respect, kindness, cooperation, friendliness, reciprocal relations & love. K’e is not blackletter law; it guides relationships & interactions in Navajo society so people can live in hozho.
K’ei: Navajo clan system Nalyeeh: Traditional remedy (uses apology,
forgiveness & restitution/compensation) to heal & restore relationships & to make injured party whole.
Fundamental Navajo postulates cont. ... K’e: Gloss as unity through positive values
such as respect, kindness, cooperation, friendliness, reciprocal relations & love. K’e is not blackletter law; it guides relationships & interactions in Navajo society so people can live in hozho.
K’ei: Navajo clan system Nalyeeh: Traditional remedy (uses apology,
forgiveness & restitution/compensation) to heal & restore relationships & to make injured party whole.
NCL in NPEA casesNCL in NPEA cases “Words are Sacred” (WAS) Principle:
Navajo belief: “Words are powerful” so they can be used to heal, destroy, persuade, etc.
WAS principle is tool naat’aanii uses to lead. In Kesoli v. Anderson Sec. Agcy, 8 Nav. R. 724 (2005), a supervisor (cast as naat’aanii) violated “WAS” principle when he shouted at subordinates (harassment). Harassment is “just cause” for his termination. A naat’aanii is held to high standards in traditional Navajo society which fits with hazho’ogo (responsible use of freedoms) principle.
“Words are Sacred” (WAS) Principle: Navajo belief: “Words are powerful” so they can be
used to heal, destroy, persuade, etc. WAS principle is tool naat’aanii uses to lead. In
Kesoli v. Anderson Sec. Agcy, 8 Nav. R. 724 (2005), a supervisor (cast as naat’aanii) violated “WAS” principle when he shouted at subordinates (harassment). Harassment is “just cause” for his termination. A naat’aanii is held to high standards in traditional Navajo society which fits with hazho’ogo (responsible use of freedoms) principle.
“WAS” principle cont.... WAS used to construe contract (lease). ONLR, ex rel Bailon, 8
Nav. R. 501 (2004) – New Mex explicitly agreed to give Navajos job preference in 1st provision of lease. Using 2nd general provision, NM argues it would violate state & fed laws prohibiting racial/national origin discrimination if it gave Navajos job preference. Court uses WAS principle to hold that 1st provision, as the explicit provision, controls the second (general provision). According to WAS principle, “a party cannot give their word in one section [of lease] and take it back in the next.” Id. at 506.
WAS used to enforce employment contract. In Smith v. NN Dept. of Head Start, 8 Nav. R. 709 (2005), worker was fired for violating personnel manual. Supreme Court uses WAS principle to find “just cause” to fire worker: Manual is contract between worker and employer w/expectations that both will follow it to have hozho in workplace. Words in contract are sacred and never frivolous & promises made must be fulfilled. Id. at 714-15.
“WAS” principle cont.... WAS used to construe contract (lease). ONLR, ex rel Bailon, 8
Nav. R. 501 (2004) – New Mex explicitly agreed to give Navajos job preference in 1st provision of lease. Using 2nd general provision, NM argues it would violate state & fed laws prohibiting racial/national origin discrimination if it gave Navajos job preference. Court uses WAS principle to hold that 1st provision, as the explicit provision, controls the second (general provision). According to WAS principle, “a party cannot give their word in one section [of lease] and take it back in the next.” Id. at 506.
WAS used to enforce employment contract. In Smith v. NN Dept. of Head Start, 8 Nav. R. 709 (2005), worker was fired for violating personnel manual. Supreme Court uses WAS principle to find “just cause” to fire worker: Manual is contract between worker and employer w/expectations that both will follow it to have hozho in workplace. Words in contract are sacred and never frivolous & promises made must be fulfilled. Id. at 714-15.
WAS cont. ... WAS principle used to find binding contract.
In Goldtooth v. NTA Comty Sch, 8 Nav. R. 628 (2005), school’s exec director, w/o school board approval, offered employment contract to worker who accepted. School board later invalidated contract. Court found valid contract because exec director had apparent authority to bind school board. Court used WAS and naat’aanii principles as rationale: Exec director was a naat’aanii w/authority to offer employment contracts and, as such, his words carried great weight within the community.
WAS cont. ... WAS principle used to find binding contract.
In Goldtooth v. NTA Comty Sch, 8 Nav. R. 628 (2005), school’s exec director, w/o school board approval, offered employment contract to worker who accepted. School board later invalidated contract. Court found valid contract because exec director had apparent authority to bind school board. Court used WAS and naat’aanii principles as rationale: Exec director was a naat’aanii w/authority to offer employment contracts and, as such, his words carried great weight within the community.
Nalyeeh in NPEA cases: Tso v. NHA, No. SC-CV-20-06 (Dec. 6, 2007):
Judgment entered v. employer who claims it cannot be forced to use federal $$ to pay judgment. Court holds that NHA must pay judgment using non-federal funds because “there are central principles of … the Navajo Life Way … that affirmatively require the NHA to satisfy the judgment. The important thing is that the NHA have respect for others and for decisions made by the Labor Commission, the lower court and this Court. Dine’ bi’o oo’ iil recognizes our relationships to each other and the responsibilities that those relationships create.”
Although Court has not expressly said so, attorney’s fees and costs are likely recoverable under nalyeeh principle: See e.g. Goldtooth v. NTA Comty Sch., No. SC-CV-12-06 (April 16, 2001).
Nalyeeh in NPEA cases: Tso v. NHA, No. SC-CV-20-06 (Dec. 6, 2007):
Judgment entered v. employer who claims it cannot be forced to use federal $$ to pay judgment. Court holds that NHA must pay judgment using non-federal funds because “there are central principles of … the Navajo Life Way … that affirmatively require the NHA to satisfy the judgment. The important thing is that the NHA have respect for others and for decisions made by the Labor Commission, the lower court and this Court. Dine’ bi’o oo’ iil recognizes our relationships to each other and the responsibilities that those relationships create.”
Although Court has not expressly said so, attorney’s fees and costs are likely recoverable under nalyeeh principle: See e.g. Goldtooth v. NTA Comty Sch., No. SC-CV-12-06 (April 16, 2001).
NPEA & Title VII of the Civil Rights Act
NPEA & Title VII of the Civil Rights Act
NPEA provides for “tribal preference” (as opposed to “Indian preference”)
Title VII Does not apply to Indian Nations (therefore can apply
tribal preference without issue) Prohibits discrimination on basis of race, color, religion,
sex, or national origin Contains an exception for employers located “on or near”
Indian Reservations, who may give “Indian preference” pursuant to publicly announced employment practice
NPEA provides for “tribal preference” (as opposed to “Indian preference”)
Title VII Does not apply to Indian Nations (therefore can apply
tribal preference without issue) Prohibits discrimination on basis of race, color, religion,
sex, or national origin Contains an exception for employers located “on or near”
Indian Reservations, who may give “Indian preference” pursuant to publicly announced employment practice
Under Title VII, is an Employer Permitted to Grant Tribal Preference?
Under Title VII, is an Employer Permitted to Grant Tribal Preference?
Dawavendewa I (9th Cir., 1998) Ruling: Navajo preference required by the NPEA
constitutes illegal national origin discrimination under Title VII
Employers on or near the NN have to choose between complying with NPEA and Title VII
Dawavendewa II (9th Cir., 2002) Dawa I was denied cert. by Supreme Court &
remanded to Federal District Court On remand, case was dismissed for failure to join NN
as a necessary & indispensable party (procedural issue). Dismissal was appealed to 9th Cir.
On appeal, the 9th Cir. affirmed the dismissal
Dawavendewa I (9th Cir., 1998) Ruling: Navajo preference required by the NPEA
constitutes illegal national origin discrimination under Title VII
Employers on or near the NN have to choose between complying with NPEA and Title VII
Dawavendewa II (9th Cir., 2002) Dawa I was denied cert. by Supreme Court &
remanded to Federal District Court On remand, case was dismissed for failure to join NN
as a necessary & indispensable party (procedural issue). Dismissal was appealed to 9th Cir.
On appeal, the 9th Cir. affirmed the dismissal
How to Reconcile Dawa I and Dawa II
How to Reconcile Dawa I and Dawa II
Does the 9th Circuit’s decision on the procedural issue in Dawa II do away with the 9th Circuit’s decision on the substantive issue in Dawa I?
Or, does the Dawa I holding disallowing tribal preference stand?
Does the 9th Circuit’s decision on the procedural issue in Dawa II do away with the 9th Circuit’s decision on the substantive issue in Dawa I?
Or, does the Dawa I holding disallowing tribal preference stand?
EEOC v. Peabody Western Coal Co. (2004) District Court: Employer cannot be
prosecuted for violating Title VII when that employer is in compliance with NPEA
Appeal to the 9th Circuit: Reversed on procedural grounds (joinder of the NN)
Peabody Western appealed to Supreme Court but cert was denied
NN then filed a Motion to Dismiss, which was granted.
EEOC has appealed the dismissal to the 9th Circuit, where it is pending.
EEOC v. Peabody Western Coal Co. (2004) District Court: Employer cannot be
prosecuted for violating Title VII when that employer is in compliance with NPEA
Appeal to the 9th Circuit: Reversed on procedural grounds (joinder of the NN)
Peabody Western appealed to Supreme Court but cert was denied
NN then filed a Motion to Dismiss, which was granted.
EEOC has appealed the dismissal to the 9th Circuit, where it is pending.
Cont’dCont’d
EEOC has filed yet another case, this one involving Bashas. Stayed, pending Peabody
Current status or tribal preference under Title VII?
EEOC has filed yet another case, this one involving Bashas. Stayed, pending Peabody
Current status or tribal preference under Title VII?
The Navajo Preference in Employment Act
The Navajo Preference in Employment Act
Howard L. Brown, Esq. Honorable Raymond D. AustinShorall McGoldrick Brinkmann Distinguished Jurist in Residence, 702 North Beaver Street Indigenous Peoples Law and Flagstaff, AZ 86001 Policy Program928.779.1050 James E. Rogers College of Law fax 928.779.6252 University of Arizona
Tucson, Arizona
