woman wage dataIn only 18 months, federal contractors and subcontractors with 100 or more employees will be forced to report wage data to the EEOC via the new EEO-1 report, in order to show that there is no discrimination in pay. While this seems a long way away, employers whose data may not be so kind to

Native AmericanI’m proud to have graduated from the University of Tulsa College of Law, home of the Native American Law Center. Because of TU’s deep commitment to the study of of Indian law issues, I certainly developed an appreciation to this specialized practice of law and its unique history. On Thursday, September 15, Minnesota swore in its first Native American Justice to our Supreme Court – Justice Anne K. McKeig, as reported by KSTP. Justice McKeig descends from the White Earth Tribe Ojibwe.

Naturally, I knew I just had to find a way to tie in this monumental event with my wage and hour blog. Thus, I felt it appropriate to explore whether the FLSA applies to Native American tribes. There are actually two very distinct issues in that single question: (1) whether the FLSA applies to the Tribe’s business; and (2) whether the Tribe has sovereign immunity with respect to the FLSA. Thus, even if the FLSA does apply to a Tribe, it may have immunity from a private suit for violation of the FLSA, though the courts tend to blur the two together often. This is admittedly a horribly long blog…I admit I may have gotten a bit carried away. However, because of how the courts don’t distinguish the two issues well, I just couldn’t find a good way to make this a two-parter. So, here we go!

Does the Federal Fair Labor Standards Act (FLSA) Apply to a Tribe’s Business?

Maybe.  If you were to Google that question, you’ll see a 9th Circuit Court of Appeals case from 2009 (Solis v. Matheson) flood your screen with various degrees of interpretation of the opinion. The 9th Circuit decided that the FLSA does apply to a “retail business located on an Indian reservation and owned by Indian tribal members”. However, this is not super helpful to us here in the Midwest, for several reasons. First, we (MN, AR, IA, MO, SD, ND, NE) are in the 8th Circuit Court of Appeals. We don’t have to follow the 9th Circuit interpretations of the law (for those of you unaware, that includes the state of California and is often 180 degrees different from many other circuits on the same issue). The 8th Circuit only defers to the precedent set by the U.S. Supreme Court, though it certainly can – and will – analyze and rely upon other courts. Thus, as I am always saying, you have to dig deeper (and then dig some more).

For example, in Costello v. Seminole Tribe of Florida (2010), the Middle District of Florida, Tampa Division, held that the FLSA does apply to a Tribe, but doesn’t expressly abrogate its sovereign immunity (the second question). Thus, the Court noted that the Tribe retains immunity absent an effective waiver. In Reich v. Great Lakes Indian Fish and Wildlife Commission (1993), the 7th Circuit Court of Appeals held that Tribal policemen are exempt from the FLSA, but that may not be the case with other employees of Indian agencies (hinting that policemen are different from employees who are engaged in a commercial or service character versus government character). Accordingly, this is not a simple question to answer.

Has The Tribe Waived Its Sovereign Immunity As to the FLSA?

As happened with a prevailing wage case I handled several years ago, a Tribe can actually chose to follow a federal or state law, removing all doubt as to whether sovereign immunity applies. Accordingly, the first thing to do, would be to determine whether your Tribe has indeed waived sovereign immunity as to a FLSA-based claim in its constitution, general administrative policies and procedures, handbook (for example, does it use words like “exempt” and “non-exempt” and/or reference state and/or federal wage and hour laws, or does it have its own wage and hour ordinances?), or other contract. For example, in 2007, the Tribal Court of the Little Traverse Bay Bands of Odawa Indians (LTBB) held in Harrington v. The Little Traverse Bay Bands of Odawa Indians, that the members of the LTBB could have voted for such inclusive waiver of rights in the LTBB Constitution, but did not do so. In Mitchell v. Pequette, (2008), the employee argued to the Leech Lake Band of Ojibwe Tribal Court that the General Administrative Policies and Procedures state the Band “may apply” the FLSA “when applicable”. However, the Tribal Court held that it is permissive rather than mandatory (“shall”), and thus, did not serve to waive its sovereign immunity.

What Have the Federal Courts Ruled on this Issue?

If no waiver is clear, then you’d look to common law (how the courts interpret the law).
Continue Reading Are Native American Tribes Subject to the Fair Labor Standards Act?

Dollars 2As I wrote about in April, on February 1, 2016, the EEOC proposed revisions to add wage and hour information to employers’ yearly EEO-1 report.  The EEO-1 report is required by the EEOC, pursuant to its authority in Title VII of the Civil Rights Act of 1964 (Title VII), and requests submission of information aimed

Kenney Equal Pay ActThe EEOC issued new resource documents today in connection with its White House United State of Women Summit. The EEOC issued the following:

As with its earlier

swimmer-802890The U.S. Equal Employment Opportunity Commission (EEOC) issued a new resource document today titled: Employer-Provided Leave and the Americans with Disabilities Act.  A few weeks ago, I wrote about the Department of Labor’s new guide: The Employer’s Guide to The Family and Medical Leave Act. The EEOC’s document, however, is general guidance for

There are three demands former Minnesota-based employees can make post-termination that should send all kinds of red flags to an employer.  They are often made via email and seem like innocent enough requests. Not so!  Fun fact: terminated employees are entitled to demand three things post-termination: (1) a copy of their personnel file; (2) a

logo-markOn Wednesday, April 27, 2016, Seaton, Peters & Revnew will be hosting its 11th Annual Upper Midwest Labor Law Forum from 8:15 a.m. – 4:30 p.m at the Doubletree – Bloomington – Minneapolis South (yes, same place the DOL’s prevailing wage seminar is taking place in May).  We anticipate another great turnout and hope you can make it!  It has been approved for Minnesota and Iowa CLE credits as well as HRCI credits.  The agenda is below…notably, yours truly will be presenting the Hot Topics in Employment Law session (and do my best to keep everyone awake after lunch).

If you are interested in attending you can find more information and how to sign up here.

PROGRAM AGENDA:

Continue Reading Join Me at the Upper Midwest Labor Law Forum – April 27, 2016

Yesterday was “Equal Pay Day” – this is the day that the average pay for women catches up to the average pay for men from the preceding year alone.  I had no idea until I received an EEOC email update proclaiming this to be true.   For what it’s worth, apparently today is National Make Lunch Count Day, National Scrabble Day, National Peach Cobbler Day, National Thomas Jefferson Day and, my favorite, National Bookmobile Day.  All worthy causes, to be certain.  On to the EEOC’s latest administrative burden on employers.

EEOC Seeks Revisions to EEO-1 Survey.

On February 1, 2016, the EEOC proposed revisions to add wage and hour information to employers’ yearly EEO-1 report.  This is old news, of course, but as the comment period closed on April 1, 2016, and the EEOC sent me the email of what’s on its radar, I thought it might not be bad to revisit what is likely coming down the pipeline.  The EEO-1 report is required by the EEOC, pursuant to its authority in Title VII of the Civil Rights Act of 1964 (Title VII), and sets forth information aimed at detecting discriminatory practices.  The proposed revision is the recommendation of a 2010 Equal Pay Task Force between the EEOC, DOL and the President’s National Equal Pay Task Force.

Who Cares?

The EEO-1 survey is used by the EEOC and the OFCCP (Office of Federal Contract Compliance Programs) to analyze and enforce non-discriminatory employment (such as a contractor who hires no minorities).  The EE0-1 survey must be filled out by all employers subject to Title VII with 100 or more employees (this includes corporate enterprises and/or shared ownership) and federal contractors / first-tier subcontractors subject to Executive Order 11246 (government contract over $10,000) with 50 or more employees and a prime contract or first-tier subcontract of $50,000 or more.

However, the EEOC has taken mercy – not all employers will have this additional pay and hours worked data burden (now called “Component 2” of the EEO-1).   
Continue Reading Happy (Belated) Equal Pay Day! EEOC’s Proposed Amendment to the EEO-1 – Requiring Pay Data