The Navajo Preference in Employment Act

The Navajo Preference in Employment Act Howard L. Brown, Esq.Honorable Raymond D. Austin Shorall McGoldrick Brinkmann Distinguished Jurist in Residence, 702 North Beaver Street Indigenous Peoples Law and Flagstaff, AZ 86001 Policy Program 928.779.1050 James E. Rogers College of Law fax 928.779.6252 University of Arizona Tucson, Arizona

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? Background

History 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

Overview 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

Purpose of the NPEA • Provide employment opportunities for the Navajo work force • Provide training for the Navajo people • Promote economic development of the Navajo Nation • Lessen dependence on off-Reservation employment • Foster economic self-sufficiency • Protect the health, safety & welfare of Navajo workers • Foster cooperative efforts with employers to assure expanded employment opportunities for the Navajo work force

Employers 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.”

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”

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”

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

Employees 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 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 Act • Give preference in employment to Navajos and sometimes spouses of Navajos • File a written Navajo affirmative action plan with ONLR • Navajo employment preference policy statement in job announcements, ads & employer policies • Post in a conspicuous place on its premises for its employees and applicants a preference policy notice prepared by ONLR • Modify seniority systems to comply with Act

Utilize NN employment sources & job services for employee recruitment and referrals (with some exceptions) • Advertise & announce all job vacancies in at least one NN newspaper and radio station (with some exceptions) • Use non-discriminatory job qualifications & selection criteria in employment • Not take any adverse action against employee without just cause & written notice • Maintain safe, clean working environment free of prejudice, intimidation & harassment

Training as part of affirmative action plan • Cross-cultural programs: educating non-Navajos on Navajo culture • Ensure fringe benefits do not discriminate against Navajo religious traditions or cultural beliefs • 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 • 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 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

“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

Necessary 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

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 • Stago v. Wide Ruins • Community School (2002) ______________________________________________________________________ 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 Tips • Be sure to make the written qualifications stringent enough so that anyone who meets the bare minimum can perform the job well • Make sure the written qualifications are not unnecessarily demanding or unrelated to the job such that they could be considered discriminatory • 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

“Any Navajo who demonstrates the necessary qualifications for an employment position shall be selected by the employer” • 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 • Recommendations • “Open until filled” • Demanding written qualifications • Do not post a position unless you’re sure you need it & can afford it

Affirmative 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

Contents of Plan • Training • 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: • Policy Statement • Indicates employer’s position on Navajo preference • Assigns responsibility for implementing preference • Sets forth a procedure for reporting & monitoring

Policy Statement must discuss employment and training for Navajos • Policy Statement must state that employment actions will be handled based on the NPEA • Management-level employee must be appointed to implement & monitor Affirmative Action Plan • Employer must establish goals & timelines • Affirmative Action Plan should contain a workforce analysis

“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 • The following require corrective action • Under-utilization of Navajo employees • Vertical movement of Navajo employees is less than non-Navajo employees • Selection process eliminates significantly more Navajos • Job descriptions are inaccurate in relation to actual duties of the job • Testing has a higher adverse impact rate on Navajos • Non-support of Company’s Affirmative Action Plan by staff • No formal criteria for evaluating Affirmative Action Plan

“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

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

“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

Examples 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

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

“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

An 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

Written 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.

Practice Tips • MUST HAVE JUST CAUSE • MUST PROVIDE EMPLOYEE WITH WRITTEN NOTICE • Precautionary measures • Document details of each incident when they occur • 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. • Set forth standards for employee conduct & procedures for disciplining employees • Document that employees have read & understand policies & received training on policies • Apply policies with uniformity

Prohibition 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”

Union 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

Prevailing 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

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?

Contract 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

Polygraph 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

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.

Breast 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

Breast 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

Breast 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

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).

ONLR, 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: • Dismiss for lack of probable cause & issue “right to sue” letter to employee • Issue a “probable cause determination” • Certify it will be unable to complete the steps in 180 days and issue “right to sue” letter

Navajo 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

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 • 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 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

The Navajo Preference in Employment Act