Labor law said to favor tribes over competitors

Monday, Sept. 20, 2004 | 10:42 a.m.

A California attorney said it would take an act of Congress to even the playing field between commercial casinos and those operated by Indian tribes when it comes to labor law.

Michael Harrison, a gaming attorney based in Visalia, Calif., said tribal casinos enjoy several advantages in employment law because tribes are not subject to state labor laws and regulations. In addition, several labor-relations issues are governed by compacts tribes make with state governments.

An attorney who represents tribes who operate casinos in California said the playing field isn't as uneven as Harrison made it out to be.

Harrison made his remarks Friday in a lightly attended session of a Southern Nevada Human Resources Association seminar at the Stardust.

Harrison said inconsistency is one of the hallmarks of federal labor law in tribal casinos, since casinos in various parts of the country use different court interpretations from different appeals courts to determine whether federal law or tribal sovereignty prevails.

He said tribes in different parts of the country have followed various court rulings in their application of the federal Occupational Safety and Health Act, the Age Discrimination and Employment Act, the Family Medical Leave Act and the Fair Labor Standards Act, among others.

Tribes are exempt from some federal laws, Harrison said. They're exempt from Title VII -- the Civil Rights Act of 1964 -- as well as the Americans With Disabilities Act. The exemption from Title VII gives tribes the ability to give hiring preference to tribal members, spouses of tribal members and Indians from other tribes.

And, because tribes consider themselves sovereign entities that aren't subject to state laws, tribal casinos don't have to follow the same sets of rules commercial casinos, card rooms and race tracks must abide by.

Harrison said the only way to require tribes to conform to the same sets of rules that commercial casinos abide by would be for a change in philosophy that would require new federal legislation. And, because of the revenue tribes generate for states, Harrison believes there wouldn't be much appetite for lawmakers to change the rules.

"Tribes generate huge amounts of income, so how heavily are they going to bite the hand that feeds them?" Harrison asked.

Meanwhile an attorney who represents eight California Indian tribes said although it appears tribes get several breaks when it comes to labor law, the playing field isn't as uneven as it appears because of other rules tribes must adhere to.

George Forman of Forman & Prohaska, a San Rafael, Calif., law firm, said tribes are at an immediate disadvantage with competitors because of those other rules.

Forman said, for example, tribes must establish themselves with compacts before they can even open a casino.

Those compacts guarantee a percentage of proceeds to the state government and they restrict where they can build.

Another law, the Indian Gaming Regulatory Act, also establishes how tribes can even enter compacts and further restricts the types of games tribes can offer.

Union negotiations are an area in which the rules are different from those used by commercial casinos.

Compact rules established in 1999 allow unions to give up their right to strike in exchange for an agreement that they would be recognized as a collective bargaining agent through a card-check process and not a secret ballot process.

Casinos must remain neutral in the union recognition process and in the event of a dispute, a binding arbitrator would write the contract.

In response to the Title VII exemption afforded tribes, Forman said Indian hiring preference isn't based on racial guidelines, but on political status. An individual's membership in a tribe has been upheld by courts as a means for determining hiring preference, he said.