A.
Minimum wage. Any employee within the jurisdiction of the Band shall
be paid an hourly wage of not less than the minimum wage as that is
established pursuant to the Fair Labor Standards Act of 1938 (hereafter
the "FLSA"), 29 U.S.C. § 201 et seq., as amended, and regulations
implementing the FLSA promulgated by the US Department of Labor. The
minimum wage established under this provision may be changed by vote
of the Tribal Council; provided that the Tribal Council will not set
a minimum wage that is below that established under the FLSA.
B.
Maximum hours. No employer shall employ any of its employees for
a workweek longer than forty (40) hours unless such employee receives
compensation for the employee's employment in excess of the hours
above specified at a rate not less than one and one-half (1 1/2)
times the regular rate at which the employee is employed. For purposes
of this section, a workweek is a period of one hundred sixty-eight
(168) hours during seven (7) consecutive twenty-four-hour periods.
It may begin on any day of the week and at any hour of the day established
by the employer.
C.
Exemptions. The provisions in Subsections A and B of this section shall not apply with respect to any employee employed in a bona fide executive, administrative, or professional capacity, any exemption determined by the Tribe to be necessary to the furtherance of tribal sovereignty or treaty reserved rights, or any other exemption category outlined in the federal FLSA and regulations concerning the FLSA promulgated by the US Department of Labor.
D.
Private right of action. Any individual aggrieved under this section
may seek retroactive payment of unpaid minimum wages or unpaid overtime
compensation against an employer in the Tribal Court.
E.
Statute of limitations. Any action to secure unpaid minimum wages
or unpaid overtime compensation must be commenced within two (2) years
after the date on which such wages or overtime compensation should
have been included in an employee's paycheck.
F.
Guidance. For the purposes of interpreting and enforcing this section only, the Tribal Court may look to the FLSA and regulations thereunder as well as relevant case law for guidance; provided, however, that nothing in this Article IX shall be construed as an adoption by the Band of the FLSA, nor a waiver of sovereign immunity from suit for any claims or process under the FLSA.
G.
Waiver of sovereign immunity. The sovereign immunity of the Band is hereby waived for any civil actions brought in the Tribal Court pursuant Subsection D of this section, except immunity shall not be waived if the claimant has filed a claim, arising out of the same circumstances, in any other forum other than the Tribal Court.
A.
Adoption of federal standards. The provisions of the Occupational
Safety and Health Act of 1970, Title 29 of the United States Code,
§ 651 et seq., as amended (OSHA), are adopted as the law
of the Band and apply to all employers within the jurisdiction of
the Band; provided, however, that the Band does not waive its sovereign
immunity from suit for any claims or process in any federal forum
under OSHA.
|
§ 5.2-39 Commentary
The Band can agree to adopt the laws of another sovereign as
its own without establishing that it is subject to suit in the courts
of the other sovereign. R.J. Williams Co. v. Ft. Belknap Housing Authority,
719 F.2D 979 (9th Cir. 1983). "There is a difference between the right
to demand compliance with state laws and the means available to enforce
them." Kiowa Band v. Manufacturing Techs., 523 U.S. 751, 755 (1998).
|
B.
Duty to report unsafe working condition. Employees shall be required
to report all unsafe tools, unsafe equipment, hazardous conditions,
or procedures which come to their attention to their supervisor's
and/or to the Human Resources Department as soon as possible or to
the attention of a person having supervisory authority with the employer
to allow the employer a reasonable opportunity to correct that violation,
condition or practice. Employees are also responsible for reporting
all workplace accidents or near-accidents which occur to or involve
them in the performance of assigned duties.
C.
Judicial enforcement.
(1)
A civil action may be brought in the Tribal Court by an employee
against any employer to enforce this section. The Court may enjoin
any act or practice that violates or may violate this section and
may order any other equitable relief that is necessary and appropriate
to redress the violation or to enforce the requirements of this section.
(3)
Limitation on remedies. The Tribal Court shall not have the authority
to award monetary damages for violations of this section; provided
that nothing shall prohibit the Tribe from imposing civil fines through
any administrative enforcement mechanism that might be created under
tribal law.
D.
Waiver of sovereign immunity. The sovereign immunity of the Band is hereby waived for any civil actions brought in the Tribal Court pursuant § 5.2-39B, except immunity shall not be waived if the claimant has filed a claim, arising out of the same circumstances, in any other forum other than the Tribal Court.
