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The Navajo Preference in Employment Act
The Navajo Preference in Employment Act
Updated 7/2014Updated 7/2014
Howard L. Brown, Esq. 702 North Beaver StreetShorall McGoldrick Brinkmann Flagstaff, AZ 86001 attorneys • phoenix • flagstaff 928.779.1050
fax 928.779.6252
Law Review Articleswith Justice Raymond D. Austin
Law Review Articleswith Justice Raymond D. Austin
New Mexico Law Review, v. 40, Winter 2010
New Mexico Law Review, v. 43, Fall 2013
New Mexico Law Review, v. 40, Winter 2010
New Mexico Law Review, v. 43, Fall 2013
Summary of Today’s Presentation
Summary of Today’s Presentation
Background, Overview and Purposes Who is Covered by the Act? What are the Requirements of the Act? Monitoring and Enforcement of the Act Navajo Common Law Title VII
Background, Overview and Purposes Who is Covered by the Act? What are the Requirements of the Act? Monitoring and Enforcement of the Act Navajo Common Law Title VII
Background: Indian Nation Authority
Background: Indian Nation Authority
Indian Nations Independent entities with inherent powers of self-government Tribal courts exercise civil & criminal jurisdiction Power to regulate & tax members
Sometimes nonmembers, too.
Indian Nations Independent entities with inherent powers of self-government Tribal courts exercise civil & criminal jurisdiction Power to regulate & tax members
Sometimes nonmembers, too.
Navajo Nation One of the largest federally-recognized tribe in US
250,000 + members 25,000 square miles
Executive, Legislative, & Judicial Branch
Integral part of our cultural, economic & political life
Navajo Nation One of the largest federally-recognized tribe in US
250,000 + members 25,000 square miles
Executive, Legislative, & Judicial Branch
Integral part of our cultural, economic & political life
Background: NPEABackground: NPEA History
1972: NTC created ONLR and Plan of Operation
1985: NTC adopted NPEA (15 NNC §601) 1990: NNC adopted substantive amendments 1998: NNC adopted additional amendments
Intent Addressing unemployment and poverty
1997: 56% of population lived below the poverty level
History 1972: NTC created ONLR and Plan of
Operation 1985: NTC adopted NPEA (15 NNC §601) 1990: NNC adopted substantive amendments 1998: NNC adopted additional amendments
Intent Addressing unemployment and poverty
1997: 56% of population lived below the poverty level
Overview of the NPEAOverview of the NPEA
Regulates employment on the Navajo Nation, from hiring to firing
Preferential treatment for Navajos and spouses of Navajos
No at-will employment for most employees 1998 amendment exempted NN employees
with statutory “at the pleasure of” employment and certain other NN employees
Monitored and enforced by ONLR and NNLC
Regulates employment on the Navajo Nation, from hiring to firing
Preferential treatment for Navajos and spouses of Navajos
No at-will employment for most employees 1998 amendment exempted NN employees
with statutory “at the pleasure of” employment and certain other NN employees
Monitored and enforced by ONLR and NNLC
Purposes (15 NNC §602)Purposes (15 NNC §602)
1. Provide employment opportunities for the Navajo work force
2. Provide training for the Navajo people
3. Protect the health, safety & welfare of Navajo workers
4. Foster economic self-sufficiency of Navajo families
1. Provide employment opportunities for the Navajo work force
2. Provide training for the Navajo people
3. Protect the health, safety & welfare of Navajo workers
4. Foster economic self-sufficiency of Navajo families
Purposes, cont’d (15 NNC §602)
Purposes, cont’d (15 NNC §602)
5. Promote economic development of the Navajo Nation
6. Lessen Navajo Nation’s dependence on off-Rez employment, income, goods and services
7. Foster cooperative efforts with employers to assure expanded employment opportunities for the Navajo work force (#7 was added in 1990)
5. Promote economic development of the Navajo Nation
6. Lessen Navajo Nation’s dependence on off-Rez employment, income, goods and services
7. Foster cooperative efforts with employers to assure expanded employment opportunities for the Navajo work force (#7 was added in 1990)
Employers Subject to the NPEAEmployers Subject to the NPEA Employer defined as persons, firms, entities and
the NN who engage the services of any person for compensation
NPEA 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.”
Gatekeepers of employment (Largo v El Paso) Entity that retains control over hiring by its
subcontractors
Employer defined as persons, firms, entities and the NN who engage the services of any person for compensation
NPEA 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.”
Gatekeepers of employment (Largo v El Paso) Entity that retains control over hiring by its
subcontractors
Employers Subject to the NPEAEmployers Subject to the NPEA
Grant Schools?
What about School Districts and other subdivisions of the State?
Waivers for schools?
Grant Schools?
What about School Districts and other subdivisions of the State?
Waivers for schools?
Employees Covered by NPEAEmployees Covered by NPEA
Employee is defined as an “individual employed by an employer” SCOTUS in reference to ERISA’s definition of
employee: “completely circular and explains nothing”
Does not cover independent contractors “Control Test” Plus
Etsitty v. Dine’ Bii Ass’n for Disable Citizens (Nav. Sup. Ct. 2005)
Employee is defined as an “individual employed by an employer” SCOTUS in reference to ERISA’s definition of
employee: “completely circular and explains nothing”
Does not cover independent contractors “Control Test” Plus
Etsitty v. Dine’ Bii Ass’n for Disable Citizens (Nav. Sup. Ct. 2005)
Employees Covered by NPEAEmployees Covered by NPEA
Navajos are entitled to preference in employment
Spouses of Navajos are entitled to secondary preference under certain circumstances
All employees are entitled to many of the Act’s other protections Just cause and written notice for adverse actions Safe and clean working environment Workplace free of prejudice and harassment
Navajos are entitled to preference in employment
Spouses of Navajos are entitled to secondary preference under certain circumstances
All employees are entitled to many of the Act’s other protections Just cause and written notice for adverse actions Safe and clean working environment Workplace free of prejudice and harassment
Requirements of the NPEARequirements of the NPEA
• Preference: Employer must give preference in employment to Navajos and spouses of Navajos (under certain circumstances)
• No At Will Employment: Employer must not take adverse action against employee without just cause & written notice of the cause
• Preference: Employer must give preference in employment to Navajos and spouses of Navajos (under certain circumstances)
• No At Will Employment: Employer must not take adverse action against employee without just cause & written notice of the cause
Requirements of the NPEARequirements of the NPEA
• Non-Discriminatory Job Qualifications: Use non-discriminatory job qualifications & selection criteria in employment
• Written Job Qualifications: Establish written qualifications for each employment position and provide a copy of the qualifications to each applicant who expresses interest in the position
• Non-Discriminatory Job Qualifications: Use non-discriminatory job qualifications & selection criteria in employment
• Written Job Qualifications: Establish written qualifications for each employment position and provide a copy of the qualifications to each applicant who expresses interest in the position
Requirements of the NPEA, cont’d
Requirements of the NPEA, cont’d
• Working Environment: Maintain safe, clean working environment free of prejudice, intimidation & harassment
• Affirmative Action Plan: File a written Navajo affirmative action plan with ONLR
• Training/AAP: Include training as part of the affirmative action plan
• Working Environment: Maintain safe, clean working environment free of prejudice, intimidation & harassment
• Affirmative Action Plan: File a written Navajo affirmative action plan with ONLR
• Training/AAP: Include training as part of the affirmative action plan
Requirements of the NPEA, cont’d
Requirements of the NPEA, cont’d
• Employment Sources: Utilize NN employment sources & job services for employee recruitment and referrals (except when a current Navajo employee is selected)
• Advertising: Advertise & announce all job vacancies in at least one NN newspaper and radio station (except when a current Navajo employee is selected)
• Employment Sources: Utilize NN employment sources & job services for employee recruitment and referrals (except when a current Navajo employee is selected)
• Advertising: Advertise & announce all job vacancies in at least one NN newspaper and radio station (except when a current Navajo employee is selected)
Requirements of the NPEA, cont’d
Requirements of the NPEA, cont’d
• Ads/Preference Notice: Include Navajo employment preference policy statement in job announcements, ads & policies
• Preference Notice: Post in a conspicuous place a preference policy notice prepared by ONLR
• Ads/Preference Notice: Include Navajo employment preference policy statement in job announcements, ads & policies
• Preference Notice: Post in a conspicuous place a preference policy notice prepared by ONLR
Requirements of the NPEA, cont’d
Requirements of the NPEA, cont’d
• Cross-cultural Programs: Educating non-Navajos on Navajo culture
• Fringe Benefits: Ensure fringe benefits do not discriminate against Navajo religious traditions or cultural beliefs
• Seniority Systems: Modify seniority systems to comply with NPEA
• Cross-cultural Programs: Educating non-Navajos on Navajo culture
• Fringe Benefits: Ensure fringe benefits do not discriminate against Navajo religious traditions or cultural beliefs
• Seniority Systems: Modify seniority systems to comply with NPEA
Preference: NavajosPreference: Navajos Must hire the Navajo applicant/candidate who
demonstrates the necessary qualifications of the employment position Irrespective of qualifications of non-Navajo applicants
Among a pool of qualified candidates, hire the most qualified Navajo candidate
Compare other preference systems Points for preferred category Among equally qualified candidates, choose the
member of the preferred category
Must hire the Navajo applicant/candidate who demonstrates the necessary qualifications of the employment position Irrespective of qualifications of non-Navajo applicants
Among a pool of qualified candidates, hire the most qualified Navajo candidate
Compare other preference systems Points for preferred category Among equally qualified candidates, choose the
member of the preferred category
Preference: Non-Navajo Spouses
Preference: Non-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 Only Does not create 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 Only Does not create preference over Navajo
applicants
Preference: Reductions in Force
Preference: Reductions in Force
Navajos who demonstrate necessary qualifications must be retained until all non-Navajos are laid-off
Navajos who are laid off have the right to displace non-Navajos in positions for which the Navajos are qualified
Secondary spousal preference?
Navajos who demonstrate necessary qualifications must be retained until all non-Navajos are laid-off
Navajos who are laid off have the right to displace non-Navajos in positions for which the Navajos are qualified
Secondary spousal preference?
Preference: Waivers for SchoolsPreference: Waivers for Schools 2005 Navajo Sovereignty in Education Act The local school board may waive the
requirements “of this section” by a formal vote
Waiver applies to employment, retention and promotion decisions, but only a case-by-case basis
Must make a written record of the waiver and include in minutes of meeting As a practical matter, the written record
should include justification
2005 Navajo Sovereignty in Education Act The local school board may waive the
requirements “of this section” by a formal vote
Waiver applies to employment, retention and promotion decisions, but only a case-by-case basis
Must make a written record of the waiver and include in minutes of meeting As a practical matter, the written record
should include justification
Preference: Waivers for Schools (cont’d)
Preference: Waivers for Schools (cont’d)
Called into question by recent case? (Iina’ Ba’, Inc. v. Navajo Business
Regulatory (2014))
Called into question by recent case? (Iina’ Ba’, Inc. v. Navajo Business
Regulatory (2014))
Necessary QualificationsNecessary Qualifications
Employers must establish written necessary qualifications for each position
Employers must provide a copy of necessary qualifications to all applicants
Qualifications must be job-related and essential to performance of basic responsibilities for the position, including education, training and job-related experience.
Employers must establish written necessary qualifications for each position
Employers must provide a copy of necessary qualifications to all applicants
Qualifications must be job-related and essential to performance of basic responsibilities for the position, including education, training and job-related experience.
Necessary Qualifications, cont’dNecessary Qualifications, cont’d
Includes speaking/understanding Navajo language & familiarity with Navajo culture
Non-discriminatory Demonstrated ability to perform essential
and basic functions = satisfaction of necessary qualifications
Includes speaking/understanding Navajo language & familiarity with Navajo culture
Non-discriminatory Demonstrated ability to perform essential
and basic functions = satisfaction of necessary qualifications
Necessary Qualifications: Holding Positions Open
Necessary Qualifications: Holding Positions Open
Employers are not required to hold positions open until unqualified Navajos become qualified.
Remember, the NPEA requires: Hire the Navajo who demonstrates necessary
qualifications Among a pool of qualified candidates, hire the
most qualified Navajo
Employers are not required to hold positions open until unqualified Navajos become qualified.
Remember, the NPEA requires: Hire the Navajo who demonstrates necessary
qualifications Among a pool of qualified candidates, hire the
most qualified Navajo
Necessary Qualifications: Who Decides?
Necessary Qualifications: Who Decides?
The ONLR may disagree and NNLC may overrule an employer’s determination as to whether a certain applicant meets the necessary qualifications and whether one Navajo applicant is more qualified than another
But … the employee/candidate has the burden of showing that he/she is qualified
The ONLR may disagree and NNLC may overrule an employer’s determination as to whether a certain applicant meets the necessary qualifications and whether one Navajo applicant is more qualified than another
But … the employee/candidate has the burden of showing that he/she is qualified
Necessary Qualifications:Practice Tips
Necessary Qualifications:Practice Tips
1. Be sure to make the written qualifications stringent enough so that anyone who meets the bare minimum can be expected to perform the job well
2. But, 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 written 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 be expected to perform the job well
2. But, 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 written 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 after receiving one or more applications from Navajo applicants may be suspect
• Query: If an employer receives a qualified Navajo applicant, is the employer prohibited from re-opening the position or canceling the job posting?
• Recommendations1. “Open until filled”
2. Demanding (but non-discriminatory) 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 after receiving one or more applications from Navajo applicants may be suspect
• Query: If an employer receives a qualified Navajo applicant, is the employer prohibited from re-opening the position or canceling the job posting?
• Recommendations1. “Open until filled”
2. Demanding (but non-discriminatory) 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”
Preference & Qualifications: Hypothetical
Preference & Qualifications: Hypothetical
Joe Yazzie – Navajo; meets, but does not exceed, the necessary qualifications of the position.
Robert Smith - Non-Navajo; exceeds the necessary qualifications for the position and is currently an employee of your company.
Sharon Belone - Non-Navajo; married to a Navajo; has resided on the Navajo Nation for two years; most qualified.
Delores Begay – Navajo; exceeds the necessary qualifications for the position.
Ted Yellowhair – Navajo; does not meet the necessary qualifications; says he can meet the necessary qualifications if you just give him a chance.
Joe Yazzie – Navajo; meets, but does not exceed, the necessary qualifications of the position.
Robert Smith - Non-Navajo; exceeds the necessary qualifications for the position and is currently an employee of your company.
Sharon Belone - Non-Navajo; married to a Navajo; has resided on the Navajo Nation for two years; most qualified.
Delores Begay – Navajo; exceeds the necessary qualifications for the position.
Ted Yellowhair – Navajo; does not meet the necessary qualifications; says he can meet the necessary qualifications if you just give him a chance.
Preference & Qualifications: Hypothetical - Answer
Preference & Qualifications: Hypothetical - Answer
1) Delores Begay – Navajo; exceeds the necessary qualifications for the position.
2) Joe Yazzie – Navajo; meets, but does not exceed, the necessary qualifications of the position.
3) Sharon Belone - Non-Navajo; married to a Navajo; has resided on the Navajo Nation for two years; most qualified.
4) Robert Smith - Non-Navajo; exceeds the necessary qualifications for the position and is currently an employee of your company.
5) Ted Yellowhair – Navajo; does not meet the necessary qualifications; says he can meet the necessary qualifications if you just give him a chance.
1) Delores Begay – Navajo; exceeds the necessary qualifications for the position.
2) Joe Yazzie – Navajo; meets, but does not exceed, the necessary qualifications of the position.
3) Sharon Belone - Non-Navajo; married to a Navajo; has resided on the Navajo Nation for two years; most qualified.
4) Robert Smith - Non-Navajo; exceeds the necessary qualifications for the position and is currently an employee of your company.
5) Ted Yellowhair – Navajo; does not meet the necessary qualifications; says he can meet the necessary qualifications if you just give him a chance.
Termination and Adverse ActionTermination and Adverse Action
Employer cannot take ADVERSE ACTIONS against an employee ….
without JUST CAUSE … and WRITTEN NOTICE.
This requirement applies to ALL employees, not just Navajos (except employees exempted in the Act itself)
Employer cannot take ADVERSE ACTIONS against an employee ….
without JUST CAUSE … and WRITTEN NOTICE.
This requirement applies to ALL employees, not just Navajos (except employees exempted in the Act itself)
Termination & Adverse Action: What is Adverse Action?
Termination & Adverse Action: What is Adverse Action?
Adverse action is not defined in the NPEA Statutory context (“Penalizing, disciplining,
discharging or taking any adverse action…”) employment termination, demotion, pay reduction, etc.
Sells v. Rough Rock Community School Adverse = “if it results in some tangible, negative effect
on the Plaintiff’s employment” Action = an affirmative act by the employer
Adverse action is not defined in the NPEA Statutory context (“Penalizing, disciplining,
discharging or taking any adverse action…”) employment termination, demotion, pay reduction, etc.
Sells v. Rough Rock Community School Adverse = “if it results in some tangible, negative effect
on the Plaintiff’s employment” Action = an affirmative act by the employer
Termination & Adverse Action: What is Adverse Action?
Termination & Adverse Action: What is Adverse Action?
Expiration or automatic 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”
Industry standards?
Layoffs are considered adverse action, but require a different type of adverse action
Expiration or automatic 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”
Industry standards?
Layoffs are considered adverse action, but require a different type of adverse action
Termination & Adverse Action: What is Just Cause?
Termination & Adverse Action: What is Just Cause?
Employer cannot take adverse action against an employee without just cause and written notice of the just cause 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 and written notice of the just cause Case-by-case analysis “Just cause is a broad concept that involves
unique factual circumstances” Substantial misconduct; not minor neglect of
duty
Termination & Adverse Action: Examples of Just Cause
Termination & Adverse Action: Examples of Just Cause
Employee used employer’s credit card for gas for non-work related travel in her vehicle & deliberately altered a credit card receipt
Employee’s acts included hanging up on his boss, failing to turn in his keys & stating that he “did not have to talk to his boss”
Employee failed to show up for work for several days & did not notify employer
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
Employee used employer’s credit card for gas for non-work related travel in her vehicle & deliberately altered a credit card receipt
Employee’s acts included hanging up on his boss, failing to turn in his keys & stating that he “did not have to talk to his boss”
Employee failed to show up for work for several days & did not notify employer
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
Examples of Just Cause, cont’dExamples of Just Cause, cont’d
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
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
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
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
Examples of Just Cause, cont’dExamples of Just Cause, cont’d
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
Employee failed to call or report to a supervisor for 3 days Violated clear rule in employer’s personnel policies
Employee engaged in a pattern of shouting at his subordinates
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
Employee failed to call or report to a supervisor for 3 days Violated clear rule in employer’s personnel policies
Employee engaged in a pattern of shouting at his subordinates
Examples of Just Cause, cont’dExamples of Just Cause, cont’d
Employee engaged in “persistent violations, despite … months of meetings and emails initiated by the employer,” as well as “extensive in-house training.” Violations included “sending emails containing sexually offensive matters, making demeaning comments about other staff and clients[,] undermining staff morale and office decorum, being rude and unhelpful to visitors and clients, and failing to perform assigned tasks properly.”
Employee engaged in “persistent violations, despite … months of meetings and emails initiated by the employer,” as well as “extensive in-house training.” Violations included “sending emails containing sexually offensive matters, making demeaning comments about other staff and clients[,] undermining staff morale and office decorum, being rude and unhelpful to visitors and clients, and failing to perform assigned tasks properly.”
Examples of Just Cause, cont’dExamples of Just Cause, cont’d
Pattern of misconduct or multiple infractions Each violation “may not have been so serious” but the
“cumulative effect” constituted substantial misconduct
Repeated violations do not constitute just cause simply because of their repetitive nature. The repeated violations must rise to substantial misconduct.
Consider a policy that addresses repetitive misconduct
The crucial factor was that the employee “had been conveyed the critical importance to the employer’s business of her conforming her conduct to the policies.”
Pattern of misconduct or multiple infractions Each violation “may not have been so serious” but the
“cumulative effect” constituted substantial misconduct
Repeated violations do not constitute just cause simply because of their repetitive nature. The repeated violations must rise to substantial misconduct.
Consider a policy that addresses repetitive misconduct
The crucial factor was that the employee “had been conveyed the critical importance to the employer’s business of her conforming her conduct to the policies.”
Termination & Adverse Action:The Importance of Training
Termination & Adverse Action:The Importance of Training
Smith v. Navajo Nation Department of Head Start and Toledo v. Bashas’ Dine Market “An ambiguous policy, in the absence of training to
inform employees of what that policy means, cannot justify termination”
A terminated employee may rebut the employer’s “just cause” by arguing the employee was not properly trained
Employers must insure proper training on their policies(and should document that training)
“Common sense” exception: Don’t need training to know that some things are wrong.
Smith v. Navajo Nation Department of Head Start and Toledo v. Bashas’ Dine Market “An ambiguous policy, in the absence of training to
inform employees of what that policy means, cannot justify termination”
A terminated employee may rebut the employer’s “just cause” by arguing the employee was not properly trained
Employers must insure proper training on their policies(and should document that training)
“Common sense” exception: Don’t need training to know that some things are wrong.
Termination & Adverse Action:Just Cause for Layoffs
Termination & Adverse Action:Just Cause for Layoffs
Milligan v. Navajo Tribal Utility Authority “Just cause” for layoffs does not require “substantial
misconduct” Layoff may be made when necessary to promote
financial viability or operational efficiency Davis v. Lukachukai Community School
To have “just cause,” employer must follow its own layoff procedures
Also, employer must justify layoffs as necessary to promote financial viability or operational efficiency
Milligan v. Navajo Tribal Utility Authority “Just cause” for layoffs does not require “substantial
misconduct” Layoff may be made when necessary to promote
financial viability or operational efficiency Davis v. Lukachukai Community School
To have “just cause,” employer must follow its own layoff procedures
Also, employer must justify layoffs as necessary to promote financial viability or operational efficiency
Termination & Adverse Action: Just Cause for ReorganizationTermination & Adverse Action: Just Cause for Reorganization
Lessons from Elsie Rose Albert v. Ch’ooshgai Community School Board of Education, Inc., No NNLC 2010-026 (NNLC October 27, 2010)
■ The School was proactive in notifying employees of the upcoming reorganization and that they would have to re-apply
■ The School was exceedingly fair in developing and implementing a re-hiring process
Lessons from Elsie Rose Albert v. Ch’ooshgai Community School Board of Education, Inc., No NNLC 2010-026 (NNLC October 27, 2010)
■ The School was proactive in notifying employees of the upcoming reorganization and that they would have to re-apply
■ The School was exceedingly fair in developing and implementing a re-hiring process
Termination & Adverse Action: Written Notice of Just Cause
Termination & Adverse Action: Written Notice of Just Cause
Employer cannot take adverse action against an employee without just cause and written notice of the just cause
Employer cannot take adverse action against an employee without just cause and written notice of the just cause
Termination & Adverse Action: Written Notice of Just Cause
Termination & Adverse Action: Written Notice of Just Cause
Reasons for the adverse action Reasonably clear language and meaningful explanation
so employee can pursue legal remedies Meaningfulness depends on whole context of
employment relationship, not just the bare language in a vacuum, including what the employee actually knew
Must be contemporaneous with the action to avoid “ad hoc justifications” Can add additional reasons if (1) employer did not know the
additional reasons before issuing the original notice and (2) the additional reasons are provided before employee pursues legal remedies.
Reasons for the adverse action Reasonably clear language and meaningful explanation
so employee can pursue legal remedies Meaningfulness depends on whole context of
employment relationship, not just the bare language in a vacuum, including what the employee actually knew
Must be contemporaneous with the action to avoid “ad hoc justifications” Can add additional reasons if (1) employer did not know the
additional reasons before issuing the original notice and (2) the additional reasons are provided before employee pursues legal remedies.
Termination & Adverse Action: Practice Tips
Termination & Adverse Action: Practice Tips
MUST HAVE JUST CAUSE
MUST PROVIDE EMPLOYEE WITH WRITTEN NOTICE OF JUST CAUSE
MUST HAVE JUST CAUSE
MUST PROVIDE EMPLOYEE WITH WRITTEN NOTICE OF JUST CAUSE
Termination & Adverse Action: Practice Tips (cont’d)
Termination & Adverse Action: Practice Tips (cont’d)
Precautionary measures
Document details of each incident when they occurUse progressive discipline and PIPs when appropriate
– Not required, but certainly recommended– Not required to take action after each incident
Clear Policies + Training– Document that employees have read & understand policies
& received training on policies
Apply policies with uniformity
Precautionary measures
Document details of each incident when they occurUse progressive discipline and PIPs when appropriate
– Not required, but certainly recommended– Not required to take action after each incident
Clear Policies + Training– Document that employees have read & understand policies
& received training on policies
Apply policies with uniformity
Termination & Adverse Action: Practice Tips (cont’d)
Termination & Adverse Action: Practice Tips (cont’d)
Precautionary measures (cont’d)
Use k’e mechanisms: Restoring the relationship and fixing problems through talking things out, accountability, self-correction, withholding punishment, etc.
DOCUMENT, DOCUMENT, DOCUMENT
Precautionary measures (cont’d)
Use k’e mechanisms: Restoring the relationship and fixing problems through talking things out, accountability, self-correction, withholding punishment, etc.
DOCUMENT, DOCUMENT, DOCUMENT
Termination & Adverse Action: Hypothetical
Termination & Adverse Action: Hypothetical
Arizona corporation, with office on NN Louis Barley – Non-Navajo employee,
working on NN Louis left work early, reported late, hung-
over Can we fire Louis?
Arizona corporation, with office on NN Louis Barley – Non-Navajo employee,
working on NN Louis left work early, reported late, hung-
over Can we fire Louis?
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”
“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”
Prohibition Against HarassmentProhibition Against Harassment
“All employers shall provide employment conditions free of prejudice, intimidation and harassment.”
Harassment, including sexual, can be “just cause” for termination of the harasser
NPEA does not authorize action by victim against employer for sexual harassment by co-worker
“All employers shall provide employment conditions free of prejudice, intimidation and harassment.”
Harassment, including sexual, can be “just cause” for termination of the harasser
NPEA does not authorize action by victim against employer for sexual harassment by co-worker
Harassment: Federal Standard
Harassment: Federal Standard
Conduct that is so severe and pervasive to alter the terms of employment
Objectively and subjectively objectionable Based on or because of the victim’s
protected status Unwelcomed But, Title VII is not a general civility code
Conduct that is so severe and pervasive to alter the terms of employment
Objectively and subjectively objectionable Based on or because of the victim’s
protected status Unwelcomed But, Title VII is not a general civility code
Harassment: Navajo Nation Standard
Harassment: Navajo Nation Standard
“A broad term encompassing all forms of conduct that unreasonably interfere with an individual’s work performance or create an intimidating, hostile, or offensive work environment”
Pattern of shouting at subordinates Local standards? Is the NPEA a general civility code?
“A broad term encompassing all forms of conduct that unreasonably interfere with an individual’s work performance or create an intimidating, hostile, or offensive work environment”
Pattern of shouting at subordinates Local standards? Is the NPEA a general civility code?
Affirmative Action PlansAffirmative Action Plans
Act requires all employers to develop Affirmative Action Plans and Timetables to achieve the goal of employing Navajos in all job classifications
Human Services Committee regulations (2002)
Act requires all employers to develop Affirmative Action Plans and Timetables to achieve the goal of employing Navajos in all job classifications
Human Services Committee regulations (2002)
Affirmative Action PlansAffirmative Action Plans
ONLR is required to assist employers with development and implementation of AAP Upon request, ONLR will review employer’s
AAP & either approve or disapprove it
Must be filed with the ONLR
ONLR is required to assist employers with development and implementation of AAP Upon request, ONLR will review employer’s
AAP & either approve or disapprove it
Must be filed with the ONLR
Affirmative Action Plans: Contents of Plan
Affirmative Action Plans: Contents of Plan
1. Training2. Policy Statement3. Management-level employee to implement &
monitor Affirmative Action Plan4. Goals & timelines5. Employer-sponsored cross-cultural program,
including teaching Navajo culture to non-Navajos
6. Workforce analysis
1. Training2. Policy Statement3. Management-level employee to implement &
monitor Affirmative Action Plan4. Goals & timelines5. Employer-sponsored cross-cultural program,
including teaching Navajo culture to non-Navajos
6. Workforce analysis
Affirmative Action Plans: Contents of Plan, cont’d
Affirmative Action Plans: Contents of Plan, cont’d
7. “In depth analysis”• Composition of Navajo/Non-Navajo employees• Composition of applicant flow of Navajos/Non-
Navajos• Employee retention, promotion, transfer, etc.• Apprentice programs & company training
7. “In depth analysis”• Composition of Navajo/Non-Navajo employees• Composition of applicant flow of Navajos/Non-
Navajos• Employee retention, promotion, transfer, etc.• Apprentice programs & company training
Affirmative Action Plans: Contents of Plan, cont’d
Affirmative Action Plans: Contents of Plan, cont’d
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 the AAP by staff7. No formal criteria for evaluating the AAP
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 the AAP by staff7. No formal criteria for evaluating the AAP
Advertising VacanciesAdvertising Vacancies
At least one newspaper and one radio station serving the Navajo Nation (Navajo Nation Times & KTNN) Exception: When current Navajo employee is
selected Navajo employment preference statement
in announcements, ads, and policies On-site posting of ONLR Notice Tip: Save all ads and postings
At least one newspaper and one radio station serving the Navajo Nation (Navajo Nation Times & KTNN) Exception: When current Navajo employee is
selected Navajo employment preference statement
in announcements, ads, and policies On-site posting of ONLR Notice Tip: Save all ads and postings
Polygraph TestingPolygraph Testing
Employers are prohibited from requiring polygraphs of employees or applicants
Employers are prohibited from terminating/disciplining an employee for failing or refusing a test
By NPEA, provision does not apply to federal or state employees
Employers are prohibited from requiring polygraphs of employees or applicants
Employers are prohibited from terminating/disciplining an employee for failing or refusing a test
By NPEA, provision does not apply to federal or state employees
Breast FeedingBreast Feeding
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 to 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 to 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, 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, failure to provide employment free of
prejudice, intimidation and harassment ONLR monitors/enforces; NNLC conducts
hearings
Monitoring & Enforcement: The ONLR
Monitoring & Enforcement: The ONLR
Office of Navajo Labor Relations (ONLR) Monitors compliance and enforces the NPEA Person may file charges with the ONLR (Individual
Charge) or ONLR may file charges on its own initiative (ONLR Charge)
All Charges must be filed 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
May be tolled for special circumstances Employee’s participation in employer’s internal grievance
process does not change the time
Office of Navajo Labor Relations (ONLR) Monitors compliance and enforces the NPEA Person may file charges with the ONLR (Individual
Charge) or ONLR may file charges on its own initiative (ONLR Charge)
All Charges must be filed 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
May be tolled for special circumstances Employee’s participation in employer’s internal grievance
process does not change the time
Monitoring & Enforcement: The ONLR, cont’d
Monitoring & Enforcement: The ONLR, cont’d
ONLR must notify employer within 20 days after the Charge is filed
ONLR is required to investigate 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
ONLR must notify employer within 20 days after the Charge is filed
ONLR is required to investigate 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
Monitoring & Enforcement: The ONLR, cont’d
Monitoring & Enforcement: The ONLR, cont’d
Within 180 days after Charge is filed, ONLR must:
Dismiss for lack of probable cause, petitioner’s failure to file timely, petitioner’s failure to cooperate with ONLR, or petitioner’s failure to accept an approved settlement (and issue Right to Sue) or
Issue a probable cause determination, triggering conciliation, and issuance of Right to Sue if conciliation fails or
Certify it will be unable to complete the steps in 180 days and therefore issue a Right to Sue
Within 180 days after Charge is filed, ONLR must:
Dismiss for lack of probable cause, petitioner’s failure to file timely, petitioner’s failure to cooperate with ONLR, or petitioner’s failure to accept an approved settlement (and issue Right to Sue) or
Issue a probable cause determination, triggering conciliation, and issuance of Right to Sue if conciliation fails or
Certify it will be unable to complete the steps in 180 days and therefore issue a Right to Sue
Monitoring & Enforcement: The NNLC
Monitoring & Enforcement: The NNLC
After receiving Right to Sue or expiration of 180 days after Charge was filed: Employee may file written complaint with the
Navajo Nation Labor Commission (NNLC) Complaint must be filed within 360 days after
charge was filed with ONLR Allegations asserted in ONLR Charge define the
scope of the allegations in the NNLC Complaint
After receiving Right to Sue or expiration of 180 days after Charge was filed: Employee may file written complaint with the
Navajo Nation Labor Commission (NNLC) Complaint must be filed within 360 days after
charge was filed with ONLR Allegations asserted in ONLR Charge define the
scope of the allegations in the NNLC Complaint
Monitoring & Enforcement: The NNLC, cont’d
Monitoring & Enforcement: The NNLC, cont’d
NNLC is required to schedule a hearing within 60 days of the filing of complaint
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 NPEA. Manygoats v. Cameron Trading Post.
NNLC is required to schedule a hearing within 60 days of the filing of complaint
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 NPEA. Manygoats v. Cameron Trading Post.
Remedies & ReliefRemedies & Relief Remedial relief, including directed hiring,
reinstatement, displacement of non-Navajo employees, back-pay (up to two years prior to filing of Charge), front-pay, injunctive relief, action to cure violation
If NNLC finds the violation intentional, it may impose civil fines as a remedial order; cannot be punitive and must be proportionate to the other relief granted
Attorneys fees if employer’s position was not substantially justified
Remedial relief, including directed hiring, reinstatement, displacement of non-Navajo employees, back-pay (up to two years prior to filing of Charge), front-pay, injunctive relief, action to cure violation
If NNLC finds the violation intentional, it may impose civil fines as a remedial order; cannot be punitive and must be proportionate to the other relief granted
Attorneys fees if employer’s position was not substantially justified
Remedies & Relief, cont’dRemedies & Relief, cont’d
Emotional distress is not a separate claim under the NPEA
Some types of emotional distress damages may be permitted if the NPEA violation caused the distress, damages are necessary to cure the violation (or are remedial in nature), and the amount of damages is reasonably tied to efforts to treat the distress “Remedial, with a goal to cure” the NPEA violation
No tort-like damages; must be remedial
Emotional distress is not a separate claim under the NPEA
Some types of emotional distress damages may be permitted if the NPEA violation caused the distress, damages are necessary to cure the violation (or are remedial in nature), and the amount of damages is reasonably tied to efforts to treat the distress “Remedial, with a goal to cure” the NPEA violation
No tort-like damages; must be remedial
Remedies & Relief, cont’dRemedies & Relief, cont’d
Bee K’endzisdlii’
Requires the NNLC to hold the Employer and the Employee accountable for their actions when crafting remedies to restore the relationship, including Peacemaking (if both parties are willing)
Bee K’endzisdlii’
Requires the NNLC to hold the Employer and the Employee accountable for their actions when crafting remedies to restore the relationship, including Peacemaking (if both parties are willing)
Enforcement & Appeals of NNLC Decisions
Enforcement & Appeals of NNLC Decisions
NNLC’s decisions may be enforced bythe District Courts of the Navajo Nation
Appeals Any party can appeal a NNLC decision
directly to the Navajo Nation Supreme Court Must file a written appeal within 10 days after
receipt of NNLC’s decision
NNLC’s decisions may be enforced bythe District Courts of the Navajo Nation
Appeals Any party can appeal a NNLC decision
directly to the Navajo Nation Supreme Court Must file a written appeal within 10 days after
receipt of NNLC’s decision
Navajo Common Law (NCL)(credit: Justice Raymond Austin)
Navajo Common Law (NCL)(credit: Justice Raymond Austin)
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
[NNLC, 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
[NNLC, 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 Prohibits discrimination on basis of race, color,
religion, sex, or national origin Does not apply to Indian Nations (therefore, Indian
Nation can apply tribal preference without issue) 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 Prohibits discrimination on basis of race, color,
religion, sex, or national origin Does not apply to Indian Nations (therefore, Indian
Nation can apply tribal preference without issue) Contains an exception for employers located “on or
near” Indian Reservations, who may give “Indian preference” pursuant to publicly announced employment practice
NPEA & Title VII of the Civil Rights Act (cont’d)NPEA & Title VII of the Civil Rights Act (cont’d)
Issue: Can employers on or near the Navajo Nation grant Navajo preference without violating Title VII?
Much litigation, including by the EEOC Political classification vs. national origin
classification In flux, but currently, I believe that Navajo
preference is permitted
Issue: Can employers on or near the Navajo Nation grant Navajo preference without violating Title VII?
Much litigation, including by the EEOC Political classification vs. national origin
classification In flux, but currently, I believe that Navajo
preference is permitted
The Navajo Preference in Employment Act
The Navajo Preference in Employment Act
Howard L. Brown, Esq.Howard L. Brown, Esq.
Shorall McGoldrick Brinkmann 702 North Beaver Streetattorneys • phoenix • flagstaff Flagstaff, AZ 86001
928.779.1050 fax 928.779.6252