Do I Have Workplace Rights If I Work In An Indian Casino?

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An AOL Jobs reader asks:

I work security at an Indian Casino in California. I'm not sure how state overtime laws apply to Indian Casinos, but my workplace requires me to arrive early, get in uniform and clock in before I'm scheduled to start (no more than seven minutes prior to start). And if we're more than one minute late, we're penalized. What can be done?

I get questions about liability of tribal casinos a lot because my office is just a few miles from a major one here in Florida. In general, Native American reservations are considered to be on sovereign soil, and therefore the tribes are usually not subject to U.S. employment laws. The tribes have sovereign immunity, the same as if they were a foreign country. Tribes can waive sovereign immunity in contracts, so if you have an employment contract it's possible, but not very likely, that you have a waiver of immunity in your contract.

Some states have specifically negotiated contracts with tribes giving the states jurisdiction over issues involving casino employees. Michigan is an example of a state that has jurisdiction over casino employees.

Another way tribes waive sovereign immunity is in contracts with governments or corporations. If the tribe is getting federal funding for their casino or a project in the casino, then they might have waived immunity.

Some courts have ruled that certain U.S. employment laws apply to Indian tribes. For instance, the National Labor Relations Board will hear claims regarding certain labor law violations by companies owned by tribes, but not the tribes themselves and tribes.

One of the laws some courts have held the tribes are subject to is the Fair Labor Standards Act, which applies to issues of getting paid for all hours worked. If you are required to clock in early then you need to be paid for the time actually worked. Whether you should be paid for the time it takes to get into your uniform is also covered by this law (they probably don't have to pay for this time, but it depends on the facts of your specific situation).

Other laws that courts have found to apply to tribes are the Family and Medical Leave Act, OSH Act (Occupational Safety and Health Act) and ERISA (covering employee benefits). However, applicability of these statutes to tribal employees is still in dispute, so you may or may not be covered.

Congress has specifically exempted tribes from discrimination laws such as Title VII and the Americans With Disabilities Act, as well as from the WARN Act requiring notice for layoffs. Interestingly, the Age Discrimination in Employment Act does not exempt tribes, so that issue is up in the air.

Another place you could look to for a remedy is the tribal courts. You can appeal termination, wage and discrimination issues to the courts for your employer's tribe. Each tribal court has its own procedures, and truthfully a remedy there is unlikely. It could be worth a shot.

In general, working for tribes is risky because you have so few legal rights. In this case, I suggest contacting the Department of Labor or an employment lawyer in your state to find out about your rights.




If you need legal advice, it's best to talk to an employment lawyer in your state, but if you have general legal issues you want me to discuss publicly here, whether about discrimination, working conditions, employment contracts, medical leave, or other employment law issues, you can ask me at AOL Jobs.

Please note: Anything you write to me may be featured in one of my columns. I won't be able to respond individually to questions.
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