CHAPTER 22-2
EMPLOYMENT ADMINISTRATION

22-2-1 Administration and Personnel Policies.

(A)    Tribal Government General Manager to Manage Tribal Government Employment Except Judicial Council and Gaming Commission. Except as otherwise provided by action of the Tribal Council, including but not limited to Section 22-2-2, the General Manager of the Nation’s tribal government is authorized to hire, promote, discipline, supervise and discharge employees of the Nation’s tribal government except the Judicial Council and the Gaming Commission. The Tribal Council desires to leave all tribal government personnel matters to the General Manager, intervening only when all other means of resolving personnel issues have failed.

(B)    Tribal Government Personnel Manual and Policy. The Tribal Council adopts the Tribal Government Personnel Manual as developed by its Human Resources Department to establish policy and procedure for employment with the tribal government, with the exception of the Gaming Commission. The Tribal Government Personnel Manual is subject to modification from time to time as deemed appropriate by a majority vote of the Tribal Council. The Judicial Council and various departments, commissions and other entities of the tribal government may supplement the provisions of the Tribal Government Personnel Manual with certain provisions only applicable to that entity, upon prior written approval by resolution of the Tribal Council.

(Amended by PBP TC No. 2007-157, August 15, 2007; amended by PBP TC No. 2016-422, December 15, 2016)

22-2-2 Tribal Council Approval of Tribal Government Employment.

The Tribal Council shall approve all new employment positions proposed for the tribal government, and shall have final authority over all new and renewal employment contracts with the tribal government prior to the effective date of such employment. No approval of employment for tribal government shall be given unless the Tribal Council has pre-approved, or concurrently approved, any necessary funding for the position or term or condition. Under no circumstances shall inaction by the Tribal Council be considered to create an implied contract or contract by acquiescence.

(Amended by PBP TC No. 2004-125, July 30, 2004; amended by PBP TC No. 2007-216, November 20, 2007; amended by PBP TC No. 2016-422, December 15, 2016)

22-2-3 Tier 1 and Tier 2 Employment.

(A)    All employers shall designate each job position as a Tier 1 or Tier 2 position. All positions are presumed to be Tier 1 positions unless designated as a Tier 2 position. To designate any position as a Tier 2 position, an employer must document the reason for designating a position Tier 2.

(B)    All employers shall develop and maintain policies and procedures pursuant to this section.

(Amended by PBP TC No. 2007-216, November 20, 2007; amended by PBP TC No. 2016-422, December 15, 2016)

22-2-4 Preference.

(A)    Who Is Entitled to Preference. It is the responsibility of the job applicant or employee to provide sufficient evidence to the employer that he or she qualifies as a preference candidate. The Nation’s tribal government and Nation’s enterprises shall give preference to individuals to the extent required pursuant to subsection (B) of this section in the following defined order as provided in this section:

(1)    PBPN tribal member;

(2)    Spouse, parent or child of a PBPN tribal member;

(3)    Other Indian;

(4)    Descendant of a PBPN tribal member.

(B)    When Is Preference Provided. When an employer conducts an employment action, it shall be subject to this section. Employment actions subject to preference are hiring, transfer, promotion and layoffs.

(1)    Tier 1 Positions – Required Job Qualifications. Preference shall be given in the defined order for Tier 1 positions when the employer determines, based upon the employer’s due diligence, that one or more preference candidates meets the required qualifications.

(2)    Tier 2 Positions – Equal Qualifications. Preference shall only be given in the defined order for Tier 2 Positions when the employer determines, based upon the employer’s due diligence, that the top two (2) or more candidates for an employment action meet the required qualifications and otherwise possess comparable qualifications.

(3)    Preference Not Required. An employer is not required to extend preference to a candidate for an employment action who was terminated by any former employer in the twelve (12) month period prior to their application.

(C)    Notice of Preference Requirement. Employers subject to the requirements of this code shall communicate in a summary manner compliance with this code when seeking candidates for open employment positions.

(Amended by PBP TC No. 2016-422, December 15, 2016)

22-2-5 Administrative Review of Denial of Preference.

(A)    Administrative Review. An employee or job applicant who applied for an employment action and was denied the employment action and who believes they were not provided preference pursuant to Section 22-2-4 may seek an administrative review of the employer’s decision.

(B)    Standing. A person with standing pursuant to this section shall be referred to as the “applicant” in the remainder of this section.

(C)    Scope of Review.

(1)    An administrative review shall be based solely on the allegation that Section 22-2-4 was not followed by the employer.

(2)    An administrative review shall be a review of the written record and shall not include witness testimony.

(D)    Filing for Administrative Review.

(1)    An applicant may seek administrative review by filing a written appeal with the tribal government Human Resources Department.

(2)    The appeal shall be in writing and shall include only the applicable facts and law as provided by this code.

(3)    The appeal shall be submitted to the tribal government Human Resources Department within seven (7) business days of the applicant’s receipt of the employer’s final decision on the employment action.

(4)    The applicant’s failure to file the appeal within seven (7) business days shall waive the right to appeal.

(5)    The tribal government Human Resources Department shall notify the employer that an applicant has filed an appeal pursuant to this section within two (2) business days of receipt of the appeal.

(E)    Hearing Officer – Administrative Review Procedure. A designated Hearing Officer shall conduct an administrative review pursuant to this section.

(1)    The tribal government Human Resources Department shall send the applicant’s appeal to the Hearing Officer within two (2) business days of the date of its submission.

(2)    The Hearing Officer shall request the employer’s written record of the employment action process as it pertains to the applicant.

(3)    The employer shall provide the written record to the Hearing Officer within five (5) business days of the request.

(F)    Hearing Officer. The Hearing Officer shall review the employer’s written record and the applicant’s written appeal in a timely manner. The Hearing Officer may request supplemental information as necessary from the employer in the sole discretion of the Hearing Officer.

(G)    Burden of Proof. The employer has the burden of proof to show that their employment action decision is compliant with Section 22-2-4 as supported by a preponderance of the evidence.

(H)    De Novo Review.

(1)    The Hearing Officer shall defer to the factual findings provided by the employer. In the event the Hearing Officer finds no factual basis in the written record to support the factual findings, the Hearing Officer shall disregard such findings.

(2)    The Hearing Officer shall conduct a de novo review of the legal basis for the employment action.

(I)    Decision of the Hearing Officer.

(1)    The Hearing Officer shall issue a written decision within seven (7) business days of receiving the written record from the employer.

(2)    The Hearing Officer’s decision shall state whether or not the employer complied with Section 22-2-4 in their final decision on the employment action appealed by the applicant.

(3)    If the employer is determined to be noncompliant the matter shall be remanded to the employer for review.

(4)    The Hearing Officer shall have discretion to provide directions or other guidance to the employer.

(5)    The Hearing Officer shall not award monetary damages or make an employment decision on behalf of an employer.

(6)    The decision of the Hearing Officer is final.

(J)    Confidentiality. The applicant and all parties involved in the administrative review shall refrain from discussing confidential information with parties outside of the administrative review process.

(K)    Limitations of Actions. The administrative review outlined in this section shall constitute the sole redress for an applicant who appeals a denial of preference in an employment action.

(Amended by PBP TC No. 2016-422, December 15, 2016)

22-2-6 Retaliation.

No employer shall punish, terminate, harass or otherwise retaliate against any employee or person who has exercised his or her rights under this code or has assisted another to do so.

(Amended by PBP TC No. 2016-422, December 15, 2016)