GM 11-103

New Mexico Court Orders Tribal Casino to Rehire Worker in Retaliation Case

In August, the New Mexico Court of Appeals ruled that in Martinez v. Projoque Gaming, Inc. a tribal casino must rehire an employee who was fired in retaliation for filing an injury claim. But in order for the controversial ruling to take effect, the worker would first have to obtain a license from the tribe’s gaming commission, which has sovereign immunity and lies outside the court’s jurisdiction. The gaming commission continues to refuse to issue a license to the fired worker. The case presents a clear conflict between the doctrine of tribal sovereign immunity and a state’s interest in enforcing its employment laws.

The worker originally filed his claim with the New Mexico Workers’ Compensation Administration (WCA) in 2006 for injuries he sustained to his foot while moving a money cart. In addition to the casino, the worker sued the tribal gaming commission and other tribal entities. A judge for the WCA ruled that the worker deserved compensation for his injuries. Days after the ruling, the tribal gaming commission suspended the worker’s gaming license and banned the worker from the casino. The casino fired the worker after he lost his license.

In 2007, the worker filed a retaliation complaint against the tribe, casino, and gaming commission for firing him. The WCA dismissed the complaint against the tribe and gaming commission on sovereign immunity grounds but allowed the complaint against the casino to proceed because the casino had waived its immunity by participating in all of the earlier proceedings and consenting to an order. The WCA, however, did not follow a New Mexico state law which requires employers who fire an employee in retaliation to rehire that employee. The WCA felt that it could not direct the casino to rehire the worker because that would require a gaming license and the WCA had no power to compel the gaming commission to issue a license.

In 2009, the New Mexico Court of Appeals agreed that the casino had waived its sovereign immunity and that the gaming commission had not. The Court held that New Mexico law on retaliation was clear – the WCA must order the casino to rehire the worker, regardless of whether the gaming commission refused to issue the worker a license. On remand, the WCA refused to order the casino to rehire the worker.

The worker appealed and the Court of Appeals ruled that the WCA’s failure to follow its order was wrong, and the WCA must order the casino to rehire the worker. The court said the while there are many possible reasons for an employee to not rehire a worker – including the lack of available positions – that allowing them to do so would open a floodgate of excuses and allow them to avoid sanctions.

While the WCA may finally issue an order to the tribal casino directing it to rehire the worker, it is likely that the casino will refuse to do so on the grounds that it cannot comply without the worker first obtaining a gaming license which the gaming commission will not grant. This sets up a scenario where there may simply be a “right without a remedy” or possibly a situation where the state will attempt to enforce a ruling on a tribal casino despite a tribe’s sovereign immunity.

We will continue to monitor the case and report on the outcome of the conflict between the state’s interest in labor relations policy and tribal sovereign immunity.