Five Tips for Tribal Employers to Reduce Liability
By Procopio Associate Racheal M. White Hawk
Employment law claims have been on the rise as employers grapple with changes in the workforce due to the COVID-19 pandemic. Tribes act as employers in various capacities, but this article focuses on tribal gaming enterprises as employers. The following are five employment law tips to help tribal gaming operators reduce their employment law liability.
- Although many federal and state employment laws may not apply to tribes or tribal entities, a tribe might agree that its gaming operation will follow certain laws under the tribe’s gaming compact with the state, such as the Fair Labor Standards Act or federal or state anti-discrimination laws. The gaming compact will usually set forth the specific laws that must be followed, the tribal entity that must follow such laws, the remedies required, and whether the tribal entity must provide a limited waiver of sovereign immunity for enforcement of such laws. Understanding a gaming compact’s requirements is the first step in determining a tribal gaming operator’s potential liability.
- A tribe might be required under its gaming compact to enact an ordinance, code, or other law permitting certain employment law claims to be heard against a tribal entity. Such ordinances should be clearly drafted to ensure that (a) all of the terms that the gaming compact requires to be included in the ordinance are indeed included in the ordinance; (b) that claimants understand the claims process and their available remedies and any limitations; and (c) that the applicable court or dispute resolution forum is able to clearly interpret the ordinance. Employment law ordinances may need to be updated over time to account for compact amendments, changes in the law, or changes in best practices. A well-drafted employment law ordinance can help reduce liability.
- Pursuant to the gaming compact, employment law ordinances may need to be sent to the state upon enactment or amendment, may need to be posted in various locations at the tribal entity’s place of business or on a website, and may need to be made available to employees at specific times (such as when an employee presents a claim). Tribal employers should review whether they have complied with any notice and posting requirements under the gaming compact, including whether the tribal entity has procedures in place to provide notices to employees if required to do so under the gaming compact.
- If a tribe has adopted certain federal and/or state laws as a matter of tribal law pursuant to a gaming compact, the overall intent of such laws should be reflected in the tribal gaming operator’s employment policies and trainings, such as the employee handbook, to ensure compliance. However, the tribal entity should avoid unnecessarily citing specific laws in its policies when possible and should consider including non-waiver of sovereign immunity language in its policies. If the tribe has agreed to waive sovereign immunity under the gaming compact for certain employment law claims, the waiver should be carefully drafted to limit liability (while also complying with the gaming compact) and should be included only in the specific tribal law that effectuates the waiver and not restated in the tribal entity’s policies.
- Finally, tribal employers should consider the process they will follow for investigating employee claims, such as a process for receiving and documenting claims, interviewing any witnesses, determining when it may be appropriate to hire an outside investigator, and documenting resolution of the claims in writing. The tribal entity should also consider what employment practices liability insurance may be available for various employment law claims, or consider obtaining such insurance if the tribal entity does not already have such insurance.
Procopio attorneys are well versed in tribal employment law issues and can guide tribal employers in complying with the above legal requirements, including complying with gaming compact requirements, drafting clear tribal employment law ordinances, hiring investigators to gather evidence and resolve tribal employment law claims, and drafting clear tribal employment law policies, such as employee handbooks. If litigation becomes necessary, Procopio attorneys can guide tribal employers through the claims process as well.
Racheal M. White Hawk is an Associate in Procopio’s Native American Law Practice Group and an enrolled member of the Rosebud Sioux Tribe of South Dakota. Racheal is admitted to practice in the Intertribal Court of Southern California, the courts of California and Arizona, and the U.S. Court of Appeals for the Ninth Circuit. She focuses her practice on federal Indian law. Before joining Procopio, Racheal clerked at the U.S. Court of Appeals for the Ninth Circuit and the Arizona Supreme Court. Connect with Racheal at firstname.lastname@example.org and 619.906.5654.