The Crow Nation Workforce Protection Act: A Tribal Law Perspective and Update

1. The Crow Nation Workforce Protection Act:A Tribal Law Perspective and Update Council for Tribal Employment Rights 2010 Tribal Employment Law & Legal Update Conference

2. Background of the Crow WPA Initially began as an update and revision of the Crow Tribe’s original TERO ordinance, which had been in place since the 1970s, based on 9th Circuit cases regarding tribal versus Indian preference Dawavendewa v. Salt River Project,154 F.3d 1117 (9th Cir. 1998); 276 F.3d 1150 (9th Cir. 2002) Employment preference (by private employers) based on tribal membership constitutes national origin discrimination thereby violating Title VII of the Civil Rights Act of 1964 However, the case was dismissed because the court held that (1) the tribe was a necessary party to suit; (2) the tribe could not be joined as party, since it enjoyed tribal sovereign immunity; and (3) the tribe was an indispensable party, whose absence required dismissal of the suit. EEOC v. Peabody Western Coal Co., 400 F.3d 774 (9th Cir. 2005) A tribe can be joined as a party to a suit against an employer, who is located on a reservation, for violating Title VII based on a tribal preference for employment Employment preference cannot be tribal specific (for example, Crow), but must apply to all Indians who are members of a federally recognized tribe who live on or near the reservation. However, tribal governments, as employers, are exempt from Title VII requirements and may therefore use tribal preference instead of Indian preference.

3. Background of Crow WPA (continued) Vision of late Chairman Carl Venne, supported by current Chairman (then Vice-Chairman) Cedric Black Eagle Employment protections to promote stable government, predictability, protect employees Crow Legislature Concerns about overtime, minimum wage, politics affecting hiring and terminations Crow WPA was introduced by the Executive Branch in January 2009 Crow legislative session. It was unanimously passed by the Crow Legislature and became effective on April 1, 2009. In May 2009, CTER presented a training workshop on the Crow WPA at Crow Agency, which included sessions for the tribal Executive, Legislative, and Judicial branches, tribal departments and employees, contractors and businesses, as well as the general public.

4. Summary of the Crow WPA Crow WPA is based on CTER’s model WPA but tailored to Crow (e.g. added MSHA section, added limited waiver of tribal sovereign immunity under enforcement section) and incorporated provisions of Tribe’s previous TERO ordinance Summary of provisions in the Crow WPA Expanded tribal employment laws from the Tribe’s original TERO ordinance (which primarily dealt with Indian employment and contracting preference) to include a comprehensive set of tribal employment laws The Crow WPA is comprised of the following: (1) TERO; (2) prohibition of employment discrimination; (3) employee wage and hour; (4) family/medical/cultural leave; (5) occupational safety and health; and (6) mine safety and health

5. Summary of the Crow WPA (continued) Prohibition of employment discrimination based on race, color, religion, national origin, sex, age, or political affiliation This provision also requires employers to make reasonable accommodations to persons who are pregnant, disabled or need to observe a religious obligation, so long as such accommodation does not conflict with business necessity. The absence of all of these protections for Indians working on their reservations and for non-Indians working for tribal offices, enterprises or subsidiaries is a gap that has the potential to become a political and public relations problem for tribes, as more and more such employees file complaints and find they have no legal remedy. Employee wage and hour Establishes a minimum wage requirement for the reservation, in order to cover those jobs that are not considered to be in interstate commerce and therefore not subject to the Federal Fair Labor Standards Act. This section also implements new Davis-Bacon Act authority of tribes under the Native American Housing and Self-Determination Act (NAHASDA). Section 4114(b)(3) of that Act provides tribes the right to set their own minimum wage rates for construction funded under NAHASDA, rather than being bound by the rates established by the Department of Labor (DOL) under the Davis-Bacon Act.

6. Summary of the Crow WPA (continued) Family, medical, and cultural leave Grants employees within tribal jurisdiction the same rights to unpaid leave for family medical problems that are provided under Federal law for employees. It also provides leave for certain tribal-specific cultural events. It requires an employer to reinstate an employee at the end of the leave period (e.g. 12 weeks), and to enable the employee, at his or her own cost, to maintain health insurance and other fringe benefits. Occupational Safety and Health Adopts the Federal Occupational Safety and Health Act (OSHA) and its implementing regulations and standards, and makes it applicable to those entities over which the tribe has jurisdiction. However, it should be noted that the scope of a tribe’s jurisdiction over occupational safety and health is uncertain. OSHA makes it clear that it preempts any state laws regulating occupational safety and health and preempts enforcement authority by a state in most cases. Mine Safety and Health Adopts the Federal Mine Safety and Health Act (MSHA) and its implementing regulations and standards, and makes it applicable to those entities over which the tribe has jurisdiction.

7. Significance of the Crow WPA The expansion of tribal employment laws is important and essential for protecting against the application of federal laws to tribal employment matters and for strengthening tribal sovereignty – the Crow WPA fills the void in employment law within Crow tribal jurisdiction Example – National Labor Relations Act (NLRA) D.C. Circuit Court of Appeals – has held that the NLRB had jurisdiction over a tribal casino enterprise operating on tribal land - San Manuel Indian Bingo and Casino v. NLRB, 475 F.3d 1306 (D.C. Cir. 2007). Court affirmed NLRB and held that National Labor Relations Act (NLRA) applies to tribal commercial enterprises Court made distinction between “governmental functions” and “commercial activities” – court held that NLRA applies to “commercial activities,” but not “governmental functions”

8. Significance of the Crow WPA (continued) Protects employment rights of all employees within tribal jurisdiction, including tribal government employees Positive impact on economic development Provides stability and predictability for building and maintaining business relationships for economic development on the reservation Provides consistency for tribal employees to carry out governmental functions that are necessary for establishing economic ventures and business relationships

9. Update and Next Steps Amendments to the Crow WPA passed by the Crow Tribal Legislature and Crow Executive Branch – effective May 2010 Addition of Secondary Veterans preference “Secondary preference in employment shall be given to military veterans who have received an honorable or general discharge. After the application of Indian preference, or tribal preference for the Crow Tribal government, covered employers shall give preference to veterans in hiring, promotion, training, and other aspects of employment, provided these individuals have the necessary qualifications. Under no circumstances shall a non-Indian veteran receive preference over an Indian who possesses the necessary qualifications.” Differentiation between WPA protections for employees versus political appointments “Individuals may be selected by tribal officials to serve as political appointments on a non-competitive basis. Political appointments differ from employees in that they serve at the pleasure of the appointing tribal official and may be removed upon notice without violating the provisions of this Chapter. Political appointments shall be limited to cabinet members and committee members of Executive Branch advisory committees, pursuant to Article IV, Section 5 of the 2001 Crow Constitution.”

10. Update and Next Steps (continued) Inclusion of prohibition against retaliatory actions for exercising rights under the Crow WPA “It shall be a violation of this Act for any person, employee, employer, entity or other party subject to this Act to engage in any act of retaliation against any party who is seeking or has sought to enforce any right or protection provided to that party under this Act.” “A person, employer, entity or other party that is found to have engaged in retaliation, in addition to being subject to the actions provided for in subsection (B) above, may be subject to punitive damages if the TERO Commission or the Tribal Court determines it is necessary to discourage such actions in the future.” Amendment to “Right to Work” provision to include and allow for Tribal Project Labor Agreements (TPLAs) The provisions of this Chapter shall not apply to a Tribal Project Labor Agreement ("TPLA") that is entered into by mutual agreement of the Tribe and a labor union for the purpose of providing valuable union-sponsored training or apprenticeship opportunities; provided, that the Tribal Project Labor Agreement explicitly acknowledges the sovereign authority of the Tribe, and is consistent with the policy and purpose of the Act to increase employment opportunities and skills training available for tribal members.

11. Update and Next Steps (continued) Inclusion of specialized Oil & Gas provisions (fee arrangement and key/permanent employees) “A permanent employee is one who is and has been on the employer's or sub-contractor's annual payroll or is the owner of the firm (as opposed to one who is hired on a project-by-project basis). A key employee is one who is in a top supervisory position or who performs a critical function such that an employer would risk likely financial damage or loss if that task were assigned to a person unknown to the employer. Key employees include superintendents and persons with specialized technical or other skills that are critical to the firm’s operation. . . . Upon the approval of each key or permanent employee requested by the employer, the TERO Director shall issue a permit to that worker.” “Within 60 days after a covered entity’s lease or other authorization to engage in oil and/or gas development has been approved, the entity shall meet with the TERO Director to develop a Compliance Plan for the development activity authorized by the lease or other authorizing agreement that is specifically tailored to the unique nature of that oil and/or gas development project, while still maximizing the utilization of Indian workers and Indian-certified firms.” Reduction of fees applied to sub-contractors for exempt entities (education, health, religious, government, non-profit) “The permits and fees imposed in [this Act] shall not apply to education, health, religious, governmental, or non-profit entities or employers. However, a reduced contracting fee of 1.5% shall apply to contractors hired by such employers.”

12. Update and Next Steps (continued) Update and revise Crow Tribal Government Personnel Policies & Procedures to be consistent with the Crow WPA Appoint and confirm TERO Commission; draft and adopt TERO Regulations consistent with the Crow WPA Training for new TERO Commissioners with John Barkley, NCCI Director of Field Operations Discuss addition of a tribal labor ordinance as a counterpart to the tribal employment laws in the Crow WPA Focus on tribal workforce development NCCI Training program held in spring/summer 2010 at Crow Agency, MT – trainees renovated a house under the instruction of Dan St. John and oversight by John Barkley Most of the graduates were hired and are still working for the Crow Tribe Housing Authority Visit by Asst. Secretary, Larry Echohawk in May 2010 near completion of project Tribal Project Labor Agreements (TPLA) Review upcoming construction projects on the reservation for possible TPLA

13. NCCI Project – Crow Agency, MT May 2010

14. NCCI Project – Crow Agency, MT May 2010