Saturday, September 21, 2019

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"Can I Sue the Tribe for Violation of Labor and Employment Laws?"

Answer: Maybe. The circuits are split regarding the application of federal regulatory employment laws to tribal employers. The Ninth Circuit has applied the Occupational Safety and Health Act (OSHA) and the Employee Retirement Income Security Act (ERISA) to tribes, reasoning that such statutes of general applicability govern tribal employment activity because Indian tribes are not explicitly exempted from the laws. The Seventh and Second Circuits have adopted the Ninth Circuit's rationale and also applied OSHA and ERISA to tribes, and the Seventh Circuit leans toward application of Fair Labor Standards Act (FLSA) to tribal employers.

Conversely, the Tenth and Eight Circuits have refused to apply to tribes such laws as OSHA, ERISA, FLSA, and the National Labor Relations Act (NLRA), because doing so would encroach upon well-established principles of tribal sovereignty and tribal self-governance. While the Ninth Circuit's rulings that apply federal employment statutes of general applicability to tribes are binding in Idaho, and the decisions of the Seventh and Second Circuits serve as persuasive precedent, state labor laws and workers' compensation statutes remain inapplicable to tribal businesses.

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Vernellia R. Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law

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