The Navajo Preference in Employment Act

1. The Navajo Preference in Employment Act August 29, 2014 Howard L. Brown, Esq. 702 North Beaver Street Shorall McGoldrick Brinkmann Flagstaff, AZ 86001 attorneys • phoenix • flagstaff 928.779.1050 fax 928.779.6252

3. Additional Resources • New Mexico Law Review, v. 40, no. 1 (2010), w/ Justice Raymond D. Austin • New Mexico Law Review, v. 43, no. 2 (2013), w/ Justice Raymond D. Austin • Emerging Issues in Tribal-State Relations (2014), re: jurisdiction over State school districts

4. 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

5. Background: 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

6. Overview 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

7. 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

8. Purposes, cont’d (15 NNC §602) 5. Promote economic development of the Navajo Nation 6. Lessen Navajo Nation’s dependence on off-Reservation 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)

9. Employers Subject to the NPEA • 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.” • Employer defined as persons, firms, entities and the NN who engage the services of any person for compensation • Gatekeepers of employment (Largo v El Paso) • Entity that retains control over hiring by its subcontractors

10. Employees 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’ BiiAss’n for Disable Citizens 2005)

11. Employees 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

12. Requirements 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

13. Requirements of the NPEAcont’d • 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

14. 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

15. 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)

16. 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

17. Requirements of the NPEA, cont’d • Cross-cultural Programs: Educate 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 • Non-Retaliation: May not take adverse action because person has opposed an NPEA-related practice, filed a Charge, etc.

18. Preference: Navajos • Must hire the Navajo applicant/candidate who demonstrates the necessary qualifications for 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

19. 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

20. 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?

21. Preference: 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 on 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

22. Preference: Waivers for Schools (cont’d) • Called into question by recent case? Iina’ Ba’, Inc. v. Navajo Business Regulatory (2014)

23. Necessary 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.

24. Necessary 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

25. 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

26. 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

27. Necessary Qualifications:Practice Tips • 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 • But, make sure the written qualifications are not unnecessarily demanding or unrelated to the job and that they are not discriminatory • 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

28. Re-opening a position or canceling a job posting after receiving one or more applications from qualified Navajo applicants may be suspect • Recommendations • “Open until filled” • Demanding (but non-discriminatory) written qualifications • 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”

29. 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.

30. 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.

31. Termination and Adverse Action • Employer cannot take ADVERSE ACTION 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)

32. 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

33. 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

34. 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

35. 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

36. Examples 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

37. Examples 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

38. Examples 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.”

39. Examples 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.”

40. 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.

41. 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

42. Termination & 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

43. 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

44. 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.

45. Termination & Adverse Action: Practice Tips • MUST HAVE JUST CAUSE • MUST PROVIDE EMPLOYEE WITH WRITTEN NOTICE OF JUST CAUSE

46. Termination & Adverse Action: Practice Tips (cont’d) • Precautionary measures Document details of each incident when they occur Use 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

47. 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

48. 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?

49. 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”

50. Prohibition 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