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The Navajo Preference in Employment Act. Updated 7/2014. Howard L. Brown, Esq. 702 North Beaver Street Shorall McGoldrick Brinkmann Flagstaff, AZ 86001 attorneys • phoenix • flagstaff 928.779.1050 fax 928.779.6252.

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The Navajo Preference in Employment Act

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The navajo preference in employment act

The Navajo Preference in Employment Act

Updated 7/2014

Howard L. Brown, Esq. 702 North Beaver Street

Shorall McGoldrick Brinkmann Flagstaff, AZ 86001 attorneys • phoenix • flagstaff 928.779.1050 fax 928.779.6252


Law review articles with 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


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 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.

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: Indian Nation Authority


Background npea

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


Overview of the npea

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


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


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)


Employers subject to the npea

Employers 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


Employers subject to the npea1

Employers Subject to the NPEA

  • Grant Schools?

  • What about School Districts and other subdivisions of the State?

  • Waivers for schools?


Employees covered by npea

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 (Nav. Sup. Ct. 2005)


Employees covered by npea1

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


Requirements of the npea

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


Requirements of the npea1

Requirements 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


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


Requirements of the npea cont d1

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)


Requirements of the npea cont d2

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


Requirements of the npea cont d3

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


Preference navajos

Preference: 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


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


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?


Preference waivers for schools

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 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))


Necessary qualifications

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.


Necessary qualifications cont d

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


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


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


Necessary qualifications practice tips

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 such that they could be considered 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


The navajo preference in employment act

  • 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?

    • 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”


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.


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.


Termination and adverse action

Termination 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)


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


Termination adverse action what is adverse action1

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


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


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


Examples of just cause cont d

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


Examples of just cause cont d1

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


Examples of just cause cont d2

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.”


Examples of just cause cont d3

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.”


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.


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


Termination adverse action just cause for reorganization

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


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


Termination adverse action written notice of just cause1

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.


Termination adverse action practice tips

Termination & Adverse Action: Practice Tips

  • 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 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


Termination adverse action practice tips cont d1

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


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?


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”


Prohibition against harassment

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


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


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?


Affirmative action plans

Affirmative 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)


Affirmative action plans1

Affirmative 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


Affirmative action plans contents of plan

Affirmative Action Plans: Contents of Plan

  • Training

  • Policy Statement

  • Management-level employee to implement & monitor Affirmative Action Plan

  • Goals & timelines

  • Employer-sponsored cross-cultural program, including teaching Navajo culture to non-Navajos

  • Workforce analysis


Affirmative action plans contents of plan cont d

Affirmative Action Plans: Contents of Plan, cont’d

  • “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 d1

Affirmative Action Plans: Contents of Plan, cont’d

8.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 the AAP by staff

  • No formal criteria for evaluating the AAP


Advertising vacancies

Advertising 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


Polygraph testing

Polygraph 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


Breast feeding

Breast 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


Breast feeding cont d

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 to use of a breast pump at the workplace


Breast feeding cont d1

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 d2

Breast 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


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


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


Monitoring enforcement the onlr cont d1

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


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


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.


Remedies relief

Remedies & 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


Remedies relief cont d

Remedies & 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


Remedies relief cont d1

Remedies & 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)


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


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.


The navajo preference in employment act

  • 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.


The navajo preference in employment act

  • 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 cases

NCL 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.


The navajo preference in employment act

  • “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.


The navajo preference in employment act

  • 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.


The navajo preference in employment act

  • 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: Seee.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 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


The navajo preference in employment act

The Navajo Preference in Employment Act

Howard L. Brown, Esq.

Shorall McGoldrick Brinkmann 702 North Beaver Street

attorneys • phoenix • flagstaff Flagstaff, AZ 86001

928.779.1050

fax 928.779.6252


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