The Importance of a Tribal Worker Benefits Code
A Code of Compensation Benefits may not be a frequently discussed topic, but is nevertheless an important subject that should be addressed thoroughly by every tribe. Many tribes already have their own codes of benefits and subsequent dispute forums in place. In those cases, regular reviews of due process provisions and forums for administration, benefits, and benefit eligibility are an excellent best practice.
However, if these matters have not been reviewed in recent memory, or if these measures have never been implemented at all, it is an issue well worth returning to. For those tribes that have not implemented a Code of Compensation Benefits, clarifying exactly what Codes of Compensation Benefits are and highlighting their importance to tribal operations is an essential first step. In light of recent court rulings, this is a subject that could adversely affect tribal sovereignty if left unaddressed.
A Tribal Worker Benefits Code functions as the tribal equivalent of a state workers’ compensation statute. It is well established that tribes have the right to adopt their own laws governing their reservation. By adopting a Tribal Worker’s Benefits Code, a tribe can establish eligibility requirements and benefits for employees who suffer on-the-job injuries. They can also establish their own tribal forum to resolve any claims disputes.
By exercising their tribal sovereignty in this way, a tribe can avoid having state law and state courts determine what benefits are available for their tribal employees in the event of an employee injury. In addition, claims that are made under a Tribal Worker’s Benefits Code can generally be resolved more quickly and more cost effectively than claims made under state law, due to a lack of outside attorneys, lower administrative costs, and the avoidance of litigation and jury verdicts.
Related: Reducing tribal workforce on-the-job injuries
There are many benefits to establishing a Tribal Worker’s Benefits Code, including:
- Determining which employees are eligible for benefits
- Defining benefits for on-the-job injuries
- Designating a specific person to fill the role of the Tribal Worker’s Benefits administrator with the authority to determine an employee’s eligibility and benefit levels
- Establishing a tribal forum and appeal process to allow an employee to challenge the administrator’s decisions on eligibility and benefits
- Authorizing and limiting attorney’s fees with regards to claims
- Exercising and protecting tribal sovereignty by:
- Establishing tribal law governing the benefits available to tribal employees injured on the job
- Establishing a tribal forum to resolve claims disputes, which prevents the application of state workers’ compensation laws when a claim arises
The most important of these benefits is the last – protection of tribal sovereignty:
Tribes without a code of benefits already in place are at risk of having to submit to the state’s worker’s compensation statute and state courts to determine benefits available to an injured tribal employee.
In the past six years, we have seen two state appellate courts rule that the state has jurisdiction over the worker’s compensation claims filed by a tribal employee in cases where the tribe did not have its own law governing benefits for on-the-job injuries of tribal employees, or a tribal forum to adjudicate claim disputes.
On the other hand, courts have repeatedly ruled that the state has no jurisdiction over a tribal employee’s worker’s compensation claim where the tribe has already established their own law and process for such claims. Either of these outcomes imply serious ramifications, either positive or negative, on tribal jurisdiction in these areas, making it crucial for each tribe to have its own Tribal Worker’s Benefits Code in place before any events leading to a court ruling of this nature can occur.
Related: How effective is your tribal return-to-work program?
There are several options available to tribes who want to establish their own code of benefits. The first is to create their own from scratch, or to tailor one that has already been developed. The Arrowhead Tribal program provides a sample copy of a Tribal Worker’s Benefit Code here: Tribal Worker’s Benefit Code.
Another option is for the tribe to adopt as tribal law the worker’s compensation benefits provided under state law and establish a tribal forum to determine a tribal employee’s eligibility for and scope of such benefits.
We strongly urge each tribe to either review its current law governing benefits for tribal employees injured while on the job or consider establishing a Tribal Worker’s Benefits Code to protect tribal employers, tribal employees, and tribal sovereignty. Addressing this issue in advance can reduce exposure to the potential erosion of sovereignty in this matter.
For more information on this important issue, please contact either your broker or Mark Sherwood at msherwood@chooseclear.com or 800.407.2027.