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1 THE NAVAJO NATION LEGISLATIVE BRANCH INTERNET PUBLIC REVIEW PUBLICATION LEGISLATION NO: _ SPONSOR: Dwight Witherspoon TITLE: Law And Order, Health, Education And Human Services, And Naabik'iyati' Committees And The Navajo Nation Council; Amending The Navajo Preference In Employment Act At 15 N.N.C. 604, 611 And 614 Date posted: December 22, 2015 at 4:42pm Digital comments may be ed to Written comments may be mailed to: Executive Director Office of Legislative Services P.O. Box 3390 Window Rock, AZ (928) Comments may be made in the form of chapter resolutions, letters, position papers, etc. Please include your name, position title, address for written comments; a valid address is required. Anonymous comments will not be included in the Legislation packet. Please note: This digital copy is being provided for the benefit of the Nav, ajo Nation chapters and public use. Any political use is prohibited. All written comments received become the property of the Navajo Nation and will be forwarded to the assigned Navajo Nation Council standing committee(s) and/or the Navajo Nation Council for review. Any tampering with public records are punishable by Navajo Nation law pursuant to 17 N.N.C. 374 et. seq.

2 LEGISLATIVE SUMMARY SHEET Tracking No. Q4 \ot-\5 DATE: December 16, TITLE OF RESOLUTION: AN ACTION RELATING TO LAW AND ORDER, HEALTH, EDUCATION AND HUMAN SERVICES, AND NAABIK'iYATI' COMMITTEES AND NAVAJO NATION COUNCIL; AMENDING THE NAVAJO PREFERENCE IN EMPLOYMENT ACT AT 15 N.N.C. 604, 611 AND 614 PURPOSE: This resolution, if approved, will amend the NPEA to provide a shared burden of proof in cases filed by Navajo Nation government employees under the NPEA. This written summary does not address recommended amendments as may be provided by the standing committee. The Office of Legislative Counsel requests each committee member to review the proposed resolution in detail. OLC No

3 5-DAY BILL H LD PERIOD: \ I Q A k1 Website Posti g Time/Date: l) Law & Order Posting End te: '< I 41 \ )N\ 5 Eligible for Ac ion: ' :r \4:'6 \~\. S PROPOSED NAVAJO NATION COUNCIL RESOLU~ Education&Human rct NAVAJO NATION COUNCIL -- First Year, 2015 INTRODUCED BY (Prime Sponsor) Naa'bik'iyati' mittee THENCE ~Navajo Nat on Council 7 8 TRACKING NO. 0'-\\q- \CQ 9 10 AN ACTION 11 RELATING TO LAW AND ORDER, HEALTH, EDUCATION AND HUMAN 12 SERVICES, AND NAABIK'IYATI' COMMITTEES AND NAVAJO NATION 13 COUNCIL; AMENDING THE NAVAJO PREFERENCE IN EMPLOYMENT ACT AT N.N.C. 604,611 AND BE IT ENACTED: 17 Section One. Findings 18 A. The Navajo Nation empowered the Navajo Nation Law and Order Committee to 19 review and recommend proposed Navajo Nation Code enactments and amendments N.N.C. 601(B)(14)(2012); see also CJA B. The Health, Education and Human Services Committee exercises oversight over 22 employment matters. 2 N.N.C. 401(C)(6)(2012). 23 C. The Navajo Nation Council Speaker shall assign "[a] proposed resolution that requires 24 final action by the Navajo Nation Council to... the Naabik'iyati' Committee"; this 25 resolution proposes a positive law amendment and requires the Navajo Nation Council's 26 approval. 2 N.N.C. 164 (A) (9) (20 12) and 2 N.N.C. 164 (A) (20 12) see also C D. Currently, the general burden under the Navajo Preference in Employment Act ("NPEA") 29 is on the employer to prove by a preponderance of the evidence that the law was not 30 violated. 15 N.N.C. 611(B). Preponderance ofthe evidence is defined as "just enough I of4 No

4 evidence to make it more likely than not that the fact the claimant seeks to prove is true." 2 See /legal-dictionary. thefreedictionary.com 3 E. When an employee makes a grievance under 15 N.N.C. 604(B)(9) specifically claiming 4 harassment, the burden of proof is unclear. 5 F. Under current Labor Commission rules, the employee alleging harassment has the burden 6 to establish first that the employer harassed him or her. See Labor Commission Rules 7 attached as Exhibit A. 8 G. The proposed revision to 15 N.N.C. 604(B)(9) would make it clear that in harassment 9 cases the employee has the burden to establish the violation based on the unique nature o 10 such a claim. 11 H. The proposed revision to 15 N.N.C. 611(B) would shift the burden of proof from the 12 respondent to a burden of proof that both parties - petitioner and respondent - share 13 equally. 14 I. The proposed revision to 15 N.N.C. 614 would apply the same shared burden of proof 15 to cases filed by Navajo Nation Government Employees Section Two. Amendments to Title 15 of the Navajo Nation Code The Navajo Nation hereby amends the Navajo Nation Code, Title 15, 604, 611 and as follows: 21 TITLE 15. LABOR 22 CHAPTER 5. NAVAJO PREFERENCE IN EMPLOYMENT ACT *** Navajo employment preference 26 *** 27 B. Specific requirements for Navajo preference: 28 *** All employers shall maintain a safe and clean working environment and provide 30 employment conditions which are free of prejudice, intimidation and harassment. The 2 of4 No

5 employee alleging a violation of this subsection shall have the burden of proof to show 2 that violation by a preponderance of the evidence. 3 4 *** Hearings 6 *** 7 B. Burden of proof. In any compliance revievr, complain proceeding, investigation or 8 hearing, the burden of proof shall be upon the respondent to show compliance 'Nith the 9 provisions of this Act by a preponderance of the evidence. Except as otherwise provided I 0 in this Act, the parties shall share the burden of proof in any hearing before the II Commission. 12 *** Grievance Procedure for Navajo Nation Government Employees 14 A. An employee of the Navajo Nation Executive or Legislative Branch or a non-local 15 Governance Act Certified Chapter, or applicant for employment with the Navajo 16 Nation Executive or Legislative Branch or non-local Governance Act Certified 17 Chapter, who alleges a violation of this Act shall file a grievance as provided by the 18 Navajo Nation Personnel Policies Manual. The hearing officer may award the 19 employee or applicant any remedy authorized by Section 612(A) of this Act. 20 B. Any employee ofthe Navajo Nation Judicial Branch or an applicant for employment 21 with the Navajo Nation Judicial Branch who alleges a violation of the Act shall file a 22 grievance as provided by the Judicial Branch Employee Policies & Procedures. The 23 hearing board may award the employee or applicant any remedy authorized by 24 Section 612(A) ofthis Act. 25 C. Except as otherwise provided in this Act, the parties will share the burden of proof in 26 any hearing for grievances filed under Subsections (A) or (B) of this Section. 27 G.- D. Any party to the grievance may appeal a final decision of the hearing officer or 28 hearing board to the Navajo Nation Supreme Court within ten (1 0) calendar days of 29 receipt of the decision. The employee or applicant shall file a notice of appeal with 30 the Navajo Nation Supreme Court and the hearing officer or hearing board. 3 of4 No

6 *** 2 Section Three. Effective Date 3 The Navajo Nation Code amendment enacted herein shall be effective pursuant to 2 4 N.N.C. 221(B). 5 6 Section Four. Codification 7 The provisions of this Act which amend or adopt new sections of the Navajo Nation 8 Code shall be codified by the Office of Legislative Counsel. The Office of Legislative 9 Counsel shall incorporate such amended provisions in the next codification of the Navajo 10 Nation Code Section Five. Savings Clause 13 Should any provisions of this ordinance be determined invalid by the Navajo Nation 14 Supreme Court, or the District Courts of the Navajo Nation, without appeal to the Navajo 15 Nation Supreme Court, those portions of this ordinance which are not determined invalid 16 shall remain the law of the Navajo Nation of4 No