Workers Comp and Tribal Immunity Revisited--What a Tangled Web

As discussed in a previous blog, in 2010, the New Mexico Court of Appeals concluded that the Workers Compensation Administration does not have jurisdiction where a Worker is injured in the course of employment at a business  wholly owned and operated by a federally recognized Indian tribe, if the Tribe has not expressly waived sovereign immunity.  See Antonio v. Inn of the Mountain Gods Resort and Casino, 2010-NMCA-077, cert. den.  

However, recent cases highlight that there can be quite a bit of parsing between tribal business entities, and as to whether which if any have waived tribal immunity

Employee Deemed Constructively Discharged After Successful Mediation

In a recent employment law case, the New Mexico Court of Appeals affirmed a jury verdict awarding an NMSU employee almost $125,000 in damages for retaliation and constructive discharge claims. The decision was largely unremarkable in its analysis and discussion:  that actions occurring before the statute of limitations can be considered under the continuing violation doctrine; and that the sufficiency of evidence is a high standard of review under which the appellate courts will not substitute their judgment for that of the fact-finder.

Far more intriguing to me, however, what was left unsaid in the decision:  how the Court came to conclude that an employee was constructively discharged in spite of obtaining an apparently successful and agreeable settlement through mediation that altered the original, offenses conditions of employment.

Retaliation Claims Up and Robust, Discrimination/Harassment Claims Struggling

In the June 2011 issue of the ABA Journal, David L. Huston Jr. observes a trend of the U.S. Supreme Court being more favorably inclined to employment retaliation claims, than underlying discrimination claims.  Of all discrimination-related charges filed in 2010, retaliation charges were up to 36.3 percent, from 27.1 percent in 2000.  Some recent retaliation highlights: