Most companies doing business on the Navajo reservation know the Navajo Preference in Employment Act (NPEA) is a unique statute. Unlike almost all other jurisdictions in the United States, the Navajo Nation does not recognize at-will employment. Employees covered by the NPEA can only be terminated for just cause. That means that, in a termination or discipline dispute on the Navajo reservation, the burden is on the employer to prove it had a good reason to take action against an employee.
Given that burden and the just cause standard, one naturally would conclude that, to discipline or terminate employees on the Navajo reservation, the employer needs to engage in progressive discipline. Not so fast. In a recent decision the Navajo Supreme Court ruled that an employer had just cause to terminate an employee even though it had not walked through the routine progressive discipline process – oral warning, written warning, written suspension and termination. Rosenfelt & Buffington v. Johnson, SC-CV-34-08, Nav. Sup. Ct. (Oct. 2011). Granted, the employee involved in that case was no model employee; she had a series of minor violations but had no major infractions. The notable part of the decision, however, is how the Court dealt with the progressive discipline and personal responsibility.
The Court described the employer’s repeated meetings with the employee to encourage her to perform her assigned duties or perform those duties in a more exemplary manner. The Court also noted the employee’s repeated failure to take responsibility for her own activities and observed such conduct was inconsistent with Navajo culture and expectations. Untroubled by the employer’s lack of a progressive discipline system, the Court ruled an employee cannot expect to retain a job if she fails to take personal responsibility and perform the duties she was hired to do.
Finding that Navajo common law demands accountability and personal responsibility, the Court concluded the employer’s policy of talking to the employee about her misconduct and giving her time to self-correct was an acceptable manner of disciplining the employee. For those employers in federal, state and tribal courts, one can only hope federal and state court judges may, in the right case, embrace this type of reasoning. Finally, while this decision represents a positive development for employers, it does not change the NPEA’s just cause standard; and, even if an employer opts to skip progressive discipline, it is still good practice that the employer document in writing the reasons for discipline and discharge.