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KLAMATH TRIBAL CODE

Title 6 Chapter 41

Adopted January 26, 2019

General Council Resolution 2019-001

EMPLOYMENT ORDINANCE

KLAMATH TRIBAL CODE

Title 6 Chapter 41

41.01

41.02

41.03

41.04

41.05

41.06

41.07

41.08

41.09

41.10

41.11

41.12

41.13

41.14

41.15

41.16

41.17

41.18

41.19

TABLE OF CONTENTS

EMPLOYMENT DISCRIMINATION

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FAMILY MEDICAL LEAVE

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Family Medical Leave Requirement........

Employee Benefits Protection...............

Effect on Existing Employee Benefits

Construction of Rights in Accordance with Federal Law

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41.20

41.21

41.22 Lee

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41.30 Enforcement ..18

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ENFORCEMENT

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41.36 Limited Waiver of Sovereign Immumity................ccccceeecneeceeeecseecueeesesereceeees sens 20

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EMPLOYMENT DISCRIMINATION

41.01 Findings. The Klamath Tribes find as follows:

(a) The Tribes have a primary interest in exercising their inherent sovereign authority to

provide for a fair and productive working environment for employers and employees within the

territorial jurisdiction of the Klamath Tribes.

(b) As a sovereign government, the Klamath Tribes find that it is in the Tribes” best interest

to govern employment relations within the Tribes’ territorial jurisdiction to ensure fair and

productive working environments, and, to that end, to protect against employment discrimination

in accordance with the Tribes’ unique public policy values.

to ensure fair and productive working environments within their jurisdiction.

(d) The Tribes wish to exercise their sovereign authority to address allegations of workplace

discrimination occurring within their jurisdiction without interference by outside authorities and,

to that end, enact this law to govern workplace discrimination in accordance with their unique public

policy values.

41.02 Purpose. The purpose of this sub-chapter is to establish laws to protect against, and

provide remedies for, employment discrimination on the basis of unlawful classifications in

accordance with the Tribes’ public policy values.

41.03 Definitions. As used in this sub-chapter, unless the context indicates otherwise, the

following words have the following meanings:

(a) “Direct threat” means a significant risk to the health or safety of employees or others

that cannot be eliminated by reasonable accommodation.

(b) “Disability” means a physical or mental impairment of an individual which substantially

limits one or more of that person’s major life activities or the state of being regarded as having such

an impairment.

(1) “Physical or mental impairment” means (a) any physiological disorder or condition,

cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as

neurological, musculoskeletal, special sense organs, respiratory (including speech organs),

cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin,

and endocrine; or (b) any mental or psychological disorder, such as an intellectual disability

(formerly termed “mental retardation”), organic brain syndrome, emotional or mental illness, and

specific learning disabilities.

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(2) “Major life activities” means functions such as caring for one’s self, performing

manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.

(3) “Being regarded as having an impairment” means having (a) a physical or mental

impairment that does not substantially limit major life activities but is treated by an employer as

constituting such a limitation, (6) a physical or mental impairment that substantially limits major

life activities only as a result of the attitudes of others toward that impairment; or (c) having none

of the impairments defined in Subsection KTC 41.03(c)(1) but being treated by an employer as

having such an impairment and as being substantially limited by that impairment in one or more

major life activities.

Subsection KTC 41.05(a) as it relates to an individual with a disability, “discriminate” means:

(1) Limiting, segregating, or classifying a job applicant or employee in a way that

adversely affects the opportunities or status of the applicant or employee because of the disability

of the applicant or employee;

(2) Not making reasonable accommodations to the known physical or mental limitations

of an otherwise qualified individual with a disability who is an applicant or employee, unless the

employer can demonstrate that the accommodation would impose an undue hardship on the

employer’s business operation;

(3) Denying employment opportunities to a job applicant or employee who is an

otherwise qualified individual with a disability, if the denial is based on the employer’s need to

make reasonable accommodation to the physical or mental impairments of the employee or

applicant;

(4) Using qualification standards, employment tests, or other selection criteria that

screen out or tend to screen out an individual with a disability or a class of individuals with

disabilities unless the standard, test, or other selection criteria, as the employer uses it, is shown to

be job-related for the position in question and is consistent with business necessity; and

(5) Failing to select and administer tests concerning employment in the most effective

manner to ensure that, when the test is administered to a job applicant or employee who has a

disability that impairs sensory, manual, or speaking skills, the test results accurately reflect the

skills, aptitude or any other factor of the applicant or employee that the test is designed to measure,

rather than reflecting the impaired sensory, manual, or speaking skills of the employee or applicant

(except when such skills are the factors that the test is designed to measure).

(d) “Employee” means an individual an employer employs. “Employee” does not include

(1) volunteers for employers, (2) independent contractors, or (3) appointed or elected public

officials of the Tribes, including but not limited to, Tribal Council members and their appointees,

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Tribal Court judges, or any board, commission, or tribal regulatory body, that the Tribal Council

has appointed.

(e) “Employer” means any entity located within the jurisdictional boundaries of the

Klamath Tribes and employing any number of individuals. The term “employer” will not be

construed to encompass an individual.

(f) “Family member” or “covered family member” includes, for the purposes of Family

Medical Leave, KTC 41.10-41.19, an employee’s parent, grandparent, child, grandchild, spouse

and parent-in-law.

(1) “Parent” means a biological parent of an employee or an individual that stands or

stood in loco parentis to an employee when the employee was a child. In loco

parentis refers to a situation in which the individual day-to-day responsibility for the

care and financial support of a child or, in the case of an employee, who had such

responsibility for the employee when the employee was a child. A biological or

legal relationship is not necessary.

(2) “Grandparent” means the parent of the employee’s parent.

(3) “Child” means the employee’s biological, adopted, or foster child; a stepchild; a

legal ward; or a child of a person standing in loco parentis who is under 18 years of

age or older and incapable of self-care because of a mental or physical disability and

requires active assistance or supervision to provide daily self-care in several of the

activities of daily living. This would include activities such as grooming and

hygiene, bathing, dressing, eating, cooking, cleaning, shopping, using public

transportation, paying bills, maintaining a residence, using telephones and

directories, and using a post office.

(4) “Grandchild” means a child of the employee’s child.

(5) “Spouse” means the employee’s husband or wife as recognized under Tribal or state

law for purposes of marriage, including common law marriage. In addition, the

Tribes recognize non-traditional relationships where an individual is related by

blood or affinity whose close association with the employee is the equivalent of a

spousal relationship.

(6) “Parent-in-law” means the parent of the employee’s spouse.

(g) “Gender” means a person’s sex as male or female, including person’s identification of

one self as male or female regardless of such person’s transition to a male or female identity.

(h) “Klamath Tribes” or the “Tribes” means the Klamath Tribes.

(i) “Qualified individual with a disability” means an individual with a disability who

satisfies the requisite skill, experience, education, and other job-related requirements of the

employment position that individual holds or desires and, with or without reasonable

accommodation, can perform the essential functions of the position that the individual holds or

desires. For the purposes of this sub-chapter, consideration will be given to the employer’s judgment

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as to what functions of a job are essential, and if an employer has prepared a written description

before advertising or interviewing applicants for the job, this description will be considered

evidence of the job-related requirements and the job’s essential functions.

(j) “Reasonable accommodation” means: (1) modifications or adjustments to a job

application process that enable a qualified applicant with a disability to be considered for the

position that qualified applicant desires; or (2) modifications or adjustments to the work

environment, or to the manner or circumstances under which the position held or desired is

customarily performed, that enable an individual with a disability who is qualified to perform that

position’s essential functions; or (3) modifications or adjustments that enable a covered entity’s

employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by

its other similarly situated employees without disabilities. “Reasonable accommodation” does not

include making changes that would conflict with the application of the Tribes’ policies or laws

providing employment preferences for members of the Tribes, descendants of members of the

Tribes, or members of other federally recognized Indian tribes. In addition, it is not a violation of

this sub-chapter to fail to provide a reasonable accommodation if the employer can demonstrate

that the accommodation would impose an undue hardship on the employer’s business operation.

(k) “Supervisory employee” or “supervisor” means any person who has authority, in an

employer’s interest, to hire, transfer, suspend, lay off, promote, discharge, assign, reward, adjust

grievances, or discipline other employees through the exercise of independent judgment, or who

has the authority to effectively recommend such action, providing that the authority is not of a

merely routine or clerical nature.

(1) “Tribal Employer” means the Klamath Tribes and any department, agency,

instrumentality of the Tribes, including any corporation or other business entity imbued with the

sovereign immunity of the Tribes, when employing any number of employees within the territorial

jurisdiction of the Tribes.

(m) “Undue Hardship”

(1) In_ General. The term “undue hardship” means an action requiring significant

difficulty or expense, when considered in light of the factors set forth in Subsection KTC

41,.03(m)(2) below.

(2) Factors to be Considered. In determining whether an accommodation would impose

an undue hardship on an employer, factors to be considered include:

(A) The nature and cost of the accommodation;

(B) The overall financial resources of the facility or facilities involved in providing

the reasonable accommodation, the number of persons employed at that facility, the effect on

expenses and resources, or the impact otherwise of the accommodation upon the facility’s

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operation; and

(3) Harm to Public Revenue. Given the importance of Tribal Employers’ revenues to

support the Tribes’ governmental services, accommodations are only required if they do not create

an undue financial impact on a Tribal Employer, accounting for the net revenues that are used to

support tribal government.

41.04 Unlawful Discrimination: General Rule. Except when based on a bona fide

occupational qualification or in furtherance of the employer’s employment preference policies, it

is unlawful employment discrimination, in violation of this sub-chapter:

(a) For any employer to fail or refuse to hire or otherwise discriminate against any

applicant for employment because of race, color, national origin, religion, age, gender, sexual

orientation, or disability, or because of those reasons, to discharge an employee or discriminate

with respect to hire, tenure, promotion, transfer, compensation, terms, conditions, or privileges of

employment, or any other matter directly or indirectly related to employment; or, in recruiting

individuals for employment or in hiring them, to use any employment agency that the employer

knows or has reasonable cause to know discriminates against individuals because of their race,

color, national origin, religion, age, sex, gender, sexual orientation, or disability; or

(b) For an employer to discriminate in any manner against employees because they have

opposed a practice that would be a violation of this sub-chapter or because they have made a

charge, testified or assisted in any investigation, proceeding or hearing under this sub-chapter our

pursuant to its enforcement provisions.

(1) Overt Discrimination: An intentional, purposeful act of discrimination, such as

direct epithets aimed at an individual because of race, color, national origin, religion, age, sex,

gender, sexual orientation, or disability, resulting in adverse employment action.

(2) Harassment (including Sexual Harassment):

(A) Unwelcome sexual advances, requests for sexual favors, and other verbal or

physical conduct of a sexual nature as well as unwelcome comments, jokes, acts and other verbal

or physical conduct related to race, color, national origin, religion, age, sex, gender, sexual

orientation, or disability constitute unlawful workplace harassment when:

(i) Submission to such conduct is made either explicitly or implicitly a term

or condition of an individual’s employment;

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(ii) Submission to or rejection of such conduct by an individual is used as

the basis for employment decisions affecting that individual; or

Gii) Such conduct has the purpose or effect of substantially interfering with

an individual’s work performance or creating an intimidating, hostile, or offensive working

environment.

(B) Anemployer is responsible for its acts and those of its supervisory employees

with respect to the types of harassment described in Subsection KTC 41.04(c)(2)(A), subject to an

affirmative defense to liability or damages by proving by a preponderance of the evidence:

(i) That the employer exercised reasonable care to prevent or promptly

correct the harassing behavior, and

(ii) That the employee unreasonably failed to take advantage of any

preventive or corrective opportunities the employer provided or to avoid harm otherwise.

Subsection KTC 41.04(c)(2)(B), an employer is responsible for acts of workplace harassment only

where the employer, or its supervisory employees, knows or should have known of the conduct.

An employer may rebut apparent liability for such acts by showing that it took timely and

appropriate corrective action.

(3) Unequal or Disparate Treatment: Treating persons in a different and less favorable

manner than other similarly situated individuals on account of race, color, national origin,

religion, age, sex, gender, sexual orientation, or disability.

(4) Disparate Impact: Conduct that, although applied equally to all, has an adverse

effect on persons because of their race, color, national origin, religion, age, sex, gender, sexual

orientation, or disability as compared to the effect on other persons.

41.05 Disability Discrimination.

(a) General Rule. An employer may not discriminate against a qualified individual with a

disability because of that disability in regard to terms, conditions, and privileges of employment

such as job application procedures; the hiring, advancement or discharge of employees; employee

compensation; or job training. Except as permitted by Subsection KTC 41.05(b), an employer may

not use medical examinations or inquiries to determine (1) whether a job applicant or employee is

an individual with a disability or (2) the nature or severity of a disability; provided however, that

an employer may always inquire into the ability of an individual to perform job-related functions.

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(b) Medical Examinations and Inquiries.

(1) Job Applicants. An employer may ask a job applicant about the applicant’s ability

to perform job-related functions with or without reasonable accommodations and to describe or

demonstrate such performance. An employer may not conduct a medical examination or make

inquiries of a job applicant as to whether that applicant is an individual with a disability or as to the

nature or severity of that disability.

(2) Prospective Employees. An employer may require a medical examination after an

offer of employment has been made to a job applicant and before the applicant’s employment duties

begin, and may condition an offer of employment on the results of that examination if:

(A) All entering employees are subjected to such an examination regardless of

disability;

(B) The results of that examination are used only in accordance with Subsection

KTC 41.05(b).

(3) Current Employees, A covered entity may not require a medical examination and

may not make inquiries of an employee as to whether that employee is an individual with a disability

or as to the nature or severity of the disability, unless that examination or inquiry is shown to be

job-related and consistent with business necessity. An employer may make inquiries into an

employee’s ability to perform job-related functions.

individual’s medical condition or history must be (1) collected and maintained on separate forms

and in separate medical files, (2) treated as a confidential medical record, and (3) used only in

accordance with this Section, except that:

(1) Supervisors and managers may be informed regarding necessary restrictions on the

work or duties of the individual and necessary accommodations;

(2) First aid and safety personnel may be informed, when appropriate, if the disability

might require emergency treatment; and

(d) Drug, Alcohol, and Marijuana Use.

(1) Medical Tests. For purposes of Subsection KTC 41.05(b), a test to determine illegal

drug use or abuse of alcohol or marijuana is not considered a medical examination.

(2) Rules of Construction.

(A) The term “qualified individual with a disability” as used in Subsection KTC

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41.05(a) does not include any employee or applicant who is currently engaging in the use of

marijuana or the illegal drug use or the improper use of prescription drugs or alcohol when the

employer acts on the basis of such use.

(B) Nothing in Subsection KTC 41.05(a) will be construed to exclude as a

qualified individual with a disability an individual who:

(i) Has successfully completed a supervised drug or alcohol rehabilitation

program and is no longer engaging in illegal drug use or improper use of prescription drugs or

alcohol, or has otherwise been rehabilitated successfully and is no longer engaging in such use, or

Gi) Is participating in a supervised rehabilitation program and is no longer

engaging in such use.

(3) It is not a violation of this sub-chapter for an employer to adopt or administer

reasonable policies or procedures, including but not limited to drug or alcohol testing, designed to

ensure that an individual described in Subsections KTC 41.05(d)(2)(B)G) or (ii) is no longer

engaging in illegal drug use or improper use of prescription drugs or alcohol. Nor is it a violation

of this sub-chapter for an employer to discipline an employee for a drug or alcohol policy violation

occurring before an employee asserts that the employee is in need of accommodation to undergo

treatment for marijuana, alcohol, or drug abuse.

(4) Authority of Employers. An employer may:

(A) Decide not to hire an individual who tests positive for marijuana use.

(B) Prohibit illegal drug use and the use of alcohol or marijuana at the workplace

by all employees at all times;

marijuana or be engaging in or under the influence of illegal drugs at the workplace;

(D) Require that employees behave in conformance with the requirements

established under the federal Drug-free Workplace Act of 1988, 41 U.S.C. § 701 et seq.;

(E) Hold an employee who engages in the use of drugs, marijuana, or alcohol to

the same qualification standards for employment or job performance and behavior to which that

entity holds other employees, even if any unsatisfactory performance or behavior is related to the

drug or alcohol use, regardless of whether or not the employee’s drug or alcohol use causes the

employee to be disabled; provided that an employer may be required to make a reasonable

accommodation for an otherwise qualified individual with a disability to seek treatment in a

supervised drug, marijuana or alcohol rehabilitation program.

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(F) Adopt written policies or procedures that allow for the use of preemployment, random, reasonable suspicion, post-accident, and follow-up testing that does not

violate the protections set forth in this sub-chapter.

(e) Defenses,

(1) General Provisions. Qualification standards, tests, or selection criteria that screen

out or tend to screen out or otherwise deny a job or benefit to a qualified individual with a disability,

as defined in Subsection KTC 41.03(i), will not constitute discrimination under this sub-chapter if

shown to be job-related and consistent with business necessity.

(2) Qualification Standards Defined. For this section’s purposes, the term

“qualification standards” may include a requirement that an individual does not pose a direct threat

to the health or safety of individuals in the workplace.

(3) Disability. This sub-chapter does not prohibit an employer from discharging or

refusing to hire an individual with a disability, or subject an employer to any legal liability resulting

from the refusal to employ or the discharge of an individual with a disability, if the individual,

because of the disability, is unable to perform the essential functions of the employment position

that the individual holds or desires, or is unable to perform the essential functions of that position

in a manner that would not endanger the health or safety of the individual or others, or is unable to

be at, remain at or go to or from the place where the employment duties are to be performed.

41.06 Proof of Unlawful Employment Discrimination. Unlawful employment discrimination

exists if a complainant shows that the complainant’s race, color, national origin, religion, age,

gender, sexual orientation or disability, even if not the sole factor, was more likely than not the

substantial factor motivating the employer’s action.

41.07 Not Unlawful Employment Discrimination.

(a) Employment Preference. Nothing in this sub-chapter may be construed to prohibit any

action to provide employment preferences in accordance with an employer’s Indian or tribal

preference policies.

(b) Infectious and Communicable Diseases. Assignment of individuals with an infectious

or communicable disease is governed by the following:

(1) In any case in which an individual has an infectious or communicable disease that

poses a significant risk to the health or safety of the employee or others in the workplace, an

employer may refuse to assign or continue to assign the individual to perform work, unless the risk

can be eliminated by reasonable accommodation.

(2) Nothing in this sub-chapter may be construed to preempt, modify or amend any

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tribal law applicable to food handling that is designed to protect the public health from individuals

who pose a significant risk to the health or safety of others, which cannot be eliminated by

reasonable accommodation, as set out in the list of infectious or communicable diseases and the

modes of transmissibility published by the United States Secretary of Health and Human Services.

41.08 Posting of General Rights and Obligations. Employers must post in a prominent and

accessible location in the workplace a poster summarizing the employee rights and employer

obligations under this sub-chapter in a form the employer’s legal department has approved.

41.09 Enforcement. This sub-chapter may be enforced under the provisions of the Enforcement

sub-chapter (KTC 41.31-41.35).

FAMILY MEDICAL LEAVE

41.10 Findings. The Klamath Tribes find as follows:

(a) The Tribes have a primary interest in exercising their inherent sovereign authority to

provide for a fair and productive working environment for employers and employees within the

territorial jurisdiction of the Klamath Tribes.

(b) As a sovereign government, the Klamath Tribes find that it is in the Tribes’ best interest

to govern employment relations within its territorial jurisdiction to ensure fair and productive

working environments, and, to that end, to provide job security, in accordance with the unique

public policy values of the Tribes, for those employees who must take time off from work as a result

of their own serious health condition, to care for a family member with a serious health condition,

for the birth or adoption of a child, or to care for a covered service member.

to ensure fair and productive working environments within their jurisdiction.

(d) The Tribes exercise their inherent sovereign authority to address family medical leave

for employees in a manner that is effective and efficient and, to that end, as far as the legal standards

of other jurisdictions correspond with the Tribes’ public policy values, and without in any way

compromising their own inherent sovereign authority, the Tribes may choose to adopt the standards

of other jurisdictions as the law of the Tribes.

41.11 Purpose. The purpose of this sub-chapter is to establish employees’ legal rights to family

medical leave in accordance with the Tribes’ public policy values.

41.12 Definitions. Unless otherwise provided in this sub-chapter, or context shows otherwise,

the definitions of Subsections KTC 41.03(d), (e), (g), (i), and (1) are incorporated in this sub-chapter.

41.13 Family Medical Leave Requirement. Eligible employees are generally entitled to up to

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twelve (12) work weeks of unpaid family medical leave in the 12-month period the employer

designates. An eligible employee is an employee of a covered employer who: (1) Has been in the

employer’s employ for at least twelve (12) months, and (2) has been employed for at least one

thousand two hundred fifty (1,250) hours of service during the 12-month period immediately before

the leave begins, and (3) Is employed at a worksite where the employer employs fifty (50) or more

employees within seventy-five (75) miles of that worksite. Nothing in this sub-chapter prevents an

employer from setting eligibility criteria that are less strict than those this sub-chapter provides.

The following conditions apply to family medical leave granted under this sub-chapter:

(a) The employee must give at least thirty (30) days’ written notice of the intended date

upon which family medical leave will begin and end, unless medical emergency prevents the

employee from giving that notice; or as soon as practicable under the circumstances if thirty (30)

days’ notice is not possible.

(b) The employer may require medical certification from a health care provider or other

documentation to support the need for leave.

Family medical leave granted under this sub-chapter is unpaid leave unless the employee

is otherwise eligible for paid leave under employer policies, disability insurance, or workers”

compensation. If the employee is eligible for paid leave for part of the leave time granted by this

sub-chapter, any remaining leave time will be unpaid. An eligible employee may elect, or an

employer may require the employee, to use accrued paid vacation leave, personal leave, sick leave,

or family leave concurrently with leave provided under this sub-chapter unless the employee is

receiving pay through workers’ compensation or disability insurance.

41.14 Employee Benefits Protection.

(a) Restoration. Any employee who exercises the right to family medical leave under this

sub-chapter, upon expiration of the leave, is entitled to be restored by the employer to the position

the employee held when the leave began or to an equivalent position with equivalent employee

benefits, pay and other terms and conditions of employment, provided that an employee who would

not be entitled to continue employment without having taken family medical leave is not entitled to

such restoration.

(b) Maintenance of Employee Benefits. During any family medical leave taken under this

sub-chapter, the employer will maintain health insurance coverage at the level and under the

conditions coverage would have been provided if the employee had continued in employment,

provided that the employee will still be required to pay his or her portion of the health insurance

premiums as applicable under the employer’s policy. If the employee does not return to work after

taking family medical leave under this sub-chapter, the employee may be required to pay the

employer for the cost of health insurance the employer incurred while the employee was on such

leave if the employee does not return to work for a reason other than the serious health condition of

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the employee or the employee's covered family member, a covered service member’s serious injury

or illness, or another reason beyond the employee's control.

benefits or conditions of employment under this sub-chapter than if the employee had been

continuously employed during the leave time taken. The employer has the burden to show that the

employee would not otherwise have been employed or entitled to the benefits at the time

reinstatement is requested in order to deny that reinstatement.

(d) Certification. As a condition of restoration to employment, the employer may require

the employee to provide health care provider certification that the employee is able to resume work

and safely perform his or her job functions. Nothing in this sub-chapter prohibits an employer from

requiring an employee on leave to report periodically to the employer on the status and intention of

the employee to return to work.

41.15 Effect on Existing Employee Benefits.

(a) Benefit Accrual. Taking family medical leave under this sub-chapter will not result in

the loss of any employee benefit accrued before the date on which the leave began. With the

exception of health insurance benefits, the accrual of other benefits during any unpaid leave period

will be governed by the employer policies and practices applicable to employees on other similar

unpaid leaves of absence.

(b) Limitations. Nothing in this sub-chapter entitles any restored employee to the accrual

of any seniority or employment benefits during any period of leave or to any right, benefit, or

position of employment other than any right, benefit, or position to which the employee would have

been entitled had the employee not taken the leave.

41.16 Construction of Rights in Accordance with Federal Law. In the exercise of its inherent

sovereign authority and without in any way compromising its sovereign authority to determine the

standards and conditions under which family medical leave may be granted and protected within

the Tribes’ territorial jurisdiction, until such time as the Tribes may choose to enact further or

amended provisions of this Chapter, employees’ rights and benefits to family medical leave under

this sub-chapter should be construed in accordance with the federal Family Medical Leave Act

(FMLA), provided, however, that, with respect to the application of this sub-chapter to Tribal

Employers, if there is any conflict between the terms of this sub-chapter and the FMLA, this subchapter controls.

41.17 No Consent to Applicability of Federal Law or Waiver of Sovereign Immunity. The

Tribes’ decision to construe rights and benefits under this Chapter in accordance with the FMLA

as provided in Subsection KTC 41.16 will not be construed as a consent to the application of the

FMLA to the Tribes or to any Tribal Employer or as any waiver of sovereign immunity from suit.

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41.18 Prohibited Acts.

(a) Unlawful Interference with or Denial of Rights. An employer may not interfere with,

restrain or deny the lawful exercise of or the attempt to exercise any right this sub-chapter provides.

(b) Unlawful Discrimination Against Exercise _of Rights. An employer may not

discriminate against any employee for lawfully exercising any right this sub-chapter provides.

against any employee for lawfully opposing any practice this sub-chapter makes unlawful.

41.19 Enforcement. This Chapter may be enforced according to the provisions of the

Enforcement sub-chapter (KTC 41.31-41.35).

EMPLOYEE WAGES AND HOURS

41.20 Findings. The Klamath Tribes find as follows:

(a) The Tribes have a primary interest in exercising their inherent sovereign authority to

provide for a fair and productive working environment for employers and employees within the

territorial jurisdiction of the Klamath Tribes.

(b) As a sovereign government, the Klamath Tribes find that it is in the Tribes’ best interest

to govern employment relations within its territorial jurisdiction to ensure fair and productive

working environments, and, to that end, to establish standards and rules governing minimum hourly

wages and overtime pay.

within their jurisdiction.

(d) The Tribes exercise their inherent sovereign authority to address minimum wages and

overtime in a manner that is effective and efficient and, to that end, as far as the legal standards of

other jurisdictions correspond with the Tribes’ public policy values, and without in any way

compromising their own inherent sovereign authority, the Tribes may choose to adopt the standards

of other jurisdictions as the law of the Tribes.

41.21 Purpose. The purpose of this sub-chapter is to establish legal rights of employees to

minimum wages and overtime in accordance with the Tribes’ public policy values.

41.22 Definitions. Unless otherwise provided in this sub-chapter, or context shows otherwise,

the definitions of Subsection KTC 41.03 are incorporated in this sub-chapter.

41.23 Minimum Wage. Employees will be paid an hourly wage of not less than the minimum

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wage established by federal law by the authority of the federal Fair Labor Standards Act of 1938,

Title 29 of the United States Code, Sections 201 et seq., as amended (“FLSA”) and U.S. Department

of Labor regulations concerning the FLSA. The Tribal Council may adopt a Tribal specific wage

scale that is higher than the FLSA wage requirement.

41.24 Maximum Hours. Except as otherwise provided in this sub-chapter, no employer may

employ any of its employees for a workweek longer than forty (40) hours unless that employee

receives compensation for hours worked in excess of forty (40) hours at a rate not less than one and

one-half (1 and 1/2) times the regular rate at which the employee is employed. In determining

whether or not an employee has been employed for a workweek longer than forty (40) hours, only

hours the employee has actually worked are considered; hours paid but not worked (e.g. vacation,

holidays, and sick time) are not counted.

41.25 Exemptions. The provisions in sections KTC 41.23 and 41.24 do not apply to any

categories of employees that the Tribal Council designates as exempt. Nor do sections KTC 41.23

and 41.24 apply to employees employed in a bona fide executive, administrative, or professional

capacity, and these exemptions will be construed as provided by Subsection KTC 41.27. Nor do the

provisions in Sections KTC 41.23 and 41.24 apply with respect to other employees exempt from

either minimum wages or overtime according to the FLSA.

41.26 Compensatory Time. Tribal Employers may offer employees the option of receiving

compensatory time off at the rate of one and one half (1 and 1/2) hours in place of overtime pay

after that employee has worked forty (40) hours within a work week, provided that such

compensatory time shall accumulate to no more than 240 hours total.

41.27 Construction of Rights in Accordance with Federal Law. In the exercise of its inherent

sovereign authority and without in any way compromising its sovereign authority to determine the

standards and conditions under which minimum wages, compensatory time, and overtime pay may

be required and protected within the Tribes’ territorial jurisdiction, until such time as the Tribes

may choose to enact further or amended provisions of this sub-chapter, the rights of employees with

respect to minimum wages, maximum hours, compensatory time, and overtime pay under shall be

construed in accordance with the FLSA and cases and regulations under the FLSA, provided,

however, that, with respect to the application of this sub-chapter to Tribal Employers, if there is any

conflict between the terms of this sub-chapter and the FLSA, this sub-chapter shall control.

41.28 No Consent to Applicability of Federal Law or Waiver of Sovereign Immunity. The

Tribes’ decision to construe rights and benefits under this sub-chapter in accordance with the FLSA

as provided in Subsection KTC 41.27 will not be construed as a consent to the FLSA’s application

to the Tribes or to any Tribal Employer or as any waiver of sovereign immunity from suit.

41.29 Prohibited Acts. The following acts are prohibited:

(a) To transport, offer for transportation, ship, deliver, or sell in commerce, or to ship,

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deliver, or sell with knowledge that shipment or delivery or sale of goods in commerce is intended,

any goods in the production of which any employee was employed in violation of sections KTC

41.23 and 41.24;

(b) to violate any of the provisions of sections KTC 41.23 and 41.24, above;

employee has filed any complaint or instituted or caused to be instituted any proceeding under or

related to this sub-chapter, or has testified or is about to testify in any such proceeding;

(d) to violate any of the child labor provisions of the FLSA;

(e) to violate the recordkeeping provisions of the FLSA.

41.30 Enforcement. This sub-chapter may be enforced according to the Enforcement Section

(KTC 41.31-41.35).

ENFORCEMENT

41.31 Findings. The Klamath Tribes find as follows:

(a) The Tribes have a primary interest in exercising their inherent sovereign authority to

provide for a fair and productive working environment for employers and employees within the

territorial jurisdiction of the Klamath Tribes.

(b) As a sovereign government, the Klamath Tribes find that it is in the Tribes’ best interest

to govern employment relations within its territorial jurisdiction to ensure fair and productive

working environments, and, to that end, to establish enforcement provisions for its law governing

labor and employment.

governing labor and employment relations within their jurisdiction.

41.32 Purpose. The purpose of this sub-chapter is to establish remedies, authorities, and

procedures for the enforcement of the rights provided by KTC Title 6 Chapter 41.

41.33 Definitions,

(a) Unless otherwise provided in this sub-chapter, or context shows otherwise, the

definitions of Subsection KTC 41.03 are incorporated in this sub-chapter.

(b) “Elements of a prima facie case” means, with respect to claims of unlawful

discrimination under the Employment Discrimination sub-chapter (KTC 41.01-09), the following:

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(1) evidence of overt discrimination as set forth in Subsection KTC 41.04(c)(1),

(2) evidence of harassment as set forth in Subsection KTC 41.04(c\(2),

(3) evidence of unequal or disparate treatment as set forth in Subsection KTC 41.04(c)(3),

(4) evidence of disparate impact as set forth in Subsection KTC 41.04(c)(4); and

(5) in the case of claims of disability discrimination, evidence of discrimination on the

basis of disability as set forth in Subsection KTC 41.05(a).

A prima facie case cannot rest upon assertions that do not constitute employment

discrimination according to Subsection KTC 41.07.

41.34 Complaints Against Tribal Employers; Exhaustion of Grievance within Tribal

Employers to Manager; Filing Deadline. Any employee of a Tribal Employer who believes that

he or she has been subjected to unlawful employment discrimination, unlawful denial of family

medical leave protection, or unlawful denial of minimum wages, compensatory time, or overtime

pay under this Chapter or otherwise suffered retaliation in violation of this Chapter may file a

complaint with the Tribal Court. For complaints against Tribal Employers, the complaint must

allege (and the employee must establish) that the employee filed and completed a grievance with

respect to the alleged unlawful conduct with management within the Tribal Employer in accordance

with the employer’s grievance procedure. Complaints against Tribal Employers must be filed no

later than 90 days after the completion of that grievance process. Complaints against employers

other than Tribal Employers must be filed in the Tribal Court no later than 90 days after the conduct

asserted to constitute a violation of this Chapter.

41.35 Proceedings Before the Tribal Court.

(a) Preliminary Conference. After receiving a Complaint, the Tribal Court shall promptly

convene a conference with the claimant and a representative of the employer to informally discuss

the claims, prospects for settlement, and if settlement is not possible, the scheduling of a hearing.

(b) Hearings. Hearings on alleged violations of this Chapter shall be scheduled to

accommodate the parties and their witnesses. Telephonic testimony may be permitted. The hearing

will be recorded in such manner that a complete and accurate transcript of the proceedings can be

made,

(1) Ifa party fails to appear for hearing, the Tribal Court may enter a default order that

may include one or more remedies in Subsection KTC 41.35(c).

(2) A claimant who asseris employment discrimination under KTC 41.01-09 must

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present evidence to establish the elements of a prima facie case. If claimant asserting employment

discrimination under KTC 41.01-09 fails to present evidence to establish the elements of a prima

facie case, the Tribal Court shall dismiss the complaint.

(3) Promptly after the hearing, the Tribal Court shall issue written order, setting forth

its findings of fact and conclusions of law. The order must include a determination of whether the

preponderance of the evidence on the record supports the employee’s claim. If the Court finds that

the employee’s claim is supported by a preponderance of the evidence on the record, the Court shall

order remedies in accordance with Subsection KTC 41.35(c). If the Court finds that the claim is

not supported by a preponderance of the evidence on the record, the Court shall enter an order of

dismissal.

following remedies:

(1) An order to cease and desist from the unlawful practice(s) specified in the order;

(2) Where an employee has been wrongfully separated from employment or not

properly reinstated to an employment position:

(A) An order to employ or reinstate the employee to the same or equivalent

position;

(B) An order to restore the employee’s back pay and benefits;

(3) In acase where reinstatement would be an appropriate remedy, but it is not feasible,

an order of payment in place of reinstatement not to exceed twelve (12) weeks of pay;

(4) An order restoring wages, overtime pay or benefits wrongfully withheld or not paid;

(5) In the case of unlawful disability discrimination, an order to provide reasonable

accommodations for an employee’s disability.

(6) An amount of up to $5,000 for compensatory damages (i.e. emotional pain and

suffering).

(d) Additional Remedies Prohibited. The Court lacks jurisdiction to award any other

remedies.

(e) Notice to Parties and Clerk, The Court shall mail a copy of any notice or decision

affecting a party to that party’s last known address and, when a party’s email address is known to

the Court, to the party’s email address.

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41.36 Limited Waiver of Sovereign Immunity. The sovereign immunity of Tribal Employers

is hereby waived for the purpose of proceedings before the Tribal Court under KTC 41.35, and the

enforcement of remedies issued by order of the Tribal Court under KTC 41.35.

Certification

We, the undersigned, Tribal Council Chairman and Secretary of the Klamath Tribes, do hereby

certify that at a Special General Council meeting held on the day of _\\ La rTUgryy

2019, with a quorum present, the General Council took action and duly adopted this Ordinance

by a vote of “44 for. __/ opposed, and 7 _ abstentions by General Council Resolution

7) —

uA A Hibiita Lg

Donald C. Gentry Roberta Frost

Chairman Secretary

The Klamath Tribes The Klamath Tribes

Legislative History:

Originally adopted by the Klamath Tribes General Council on January 26, 2019 pursuant to

General Council Resolution 2019-001.

Date Adopted: 1/26/2019 Recent Amendment:

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.