KICKAPOO TRADITIONAL TRIBE OF TEXAS (2017)

KICKAPOO TRADITIONAL TRIBE OF TEXAS

CHAPTER 23

LABOR & EMPLOYMENT RIGHTS CODE

TABLE OF CONTENTS

LABOR & EMPLOYMENT RIGHTS CODE

Section 23-101 0... ccssscccsscccsssccsesscessscesseeccscesssccessecsesscesessescesesacecssaeeesssaseesseesecseesesseseasaes 7

Title.........ccsccssssssccsssecsrsssscescecssecstcssssesscessessesenscsescesecessesensenceesacesasersessessecsceescecseesseecseseeseeeees 7

Section 23-102 .......csccsssccssscssccsscessscessccesccessecessceseeecsccessseseesesssecsececseseeseesseseeeseeeesssceeaseeeeeseeees 7

Definitions ............::ccssccsssccsssccssccsscccescssscsesscsnessesecscesensssssecnsessncsesscesscesessecesnececsasecsesesuaseceans 7

Section 23-103 ..........csssccccssssccccsssccsessscccsssscccssseccessscccessscsesssesesscssscesessnsnseessseseesesesesseesssssesonseuees 9

Findings and PUurpose.............cscccssccssssesscsesscesceecescesssessacesseesseesssceacscesesssessseeseseesesescesesossrsoseees 9

Section 23-104 ..........ccsscssssccssscssssccsccssscceseeescsesesesrsessccssrsesssesssaeessecesseeecsessesssessasesessesesessssesonees 10

Effective Date ...........::ccssscssssccsssscssscsnssssscesnessescssssesseeesceesasenceessceeessacesseeeessnsessesersasecsesesseeoess 10

Section 23-105...........sssssecsesseccecesssssssssseeecescescesssseeseceesesesseaes decesesecseneseecceeesessseeeeeceecessnneesecsesees 10

Severability .........ccccccsssccsssccscssscesssceessesessnscesssessescesseeeassdssesseeassseeesssseeessssesessssecssnsessseeessenseas 10

SUBCHAPTER 2: KTTT TERRITORIAL JURISDICTION ..... ec eecseeeereeceeeesessreneoees 1]

Section 23-201 ........cssccssccsscssscesscessccsscssscessceeesscesnesescsecessesseessceseesesseessceesesecsesensessesessesseesoeeeos 1]

OFFENSES ..........cccsccccsesccccsccsscssscsesscssascssscsseecessceseccsassecesenscseseeseseseessesesssesssseseesesssseseesessessnes 11

Section 23-202........cccscccssssccsessscsssccsseccssscesnseceescessaccessscescessscesecensesesscesecessecesseeesessssesesusessnaeens 11

Employmentt............ccsccsccssccsesssscsssssessssssssecsssscescsscssonssncssssssesseacsessessensesentenseseenseaesneesenseenenees 11

Section 23-203..........ccsssscccssssecccssssessessccessnsccssscecsssnccsessscseseseesesecsceesesecsssesecssssesessssessecassssseees 11

Employment Records ...........ccssssssssscessscsesseesscoscsssscscsscssssssssecssseseesssesesenssesseeessenseeeaseneeseaeeees 11

Section 23-204.........ccsssscccesssecccsssrecscssnsccsssnecsscsscessseceeseseesescsseesecsssssscscassesssssvesssseseseneccesseseeens 12

Consent to Authority and Jurisdiction................ccesssessssessseecessscesessssecssessssssesesesersseecessanens 12

Section 23-205.........cccsssscccsscssecesscssccessnsccsssccesseccsssssnsesesssasesessseesessssseecesosseesscoesssesensseeessseneneess 12

Labor and Employment Rights Code

Enacted

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SUBCHAPTER 3: SOVEREIGN IMMUNITY ...........ccssccsscsssscsscssscesssecsscessecsseesseeesseseercesens 12

SECTION 23-301 ee eseesessceseeeeescesccessesesseeseeeeessssessceessessseesesssessesssesssesssessessesssenssensceneenssenes 12

FINdinGS ..........:ccsescccsscccssccscsccsescessseesssccesseeseesasesstceseesoscessesseseesesesseesceeseecessscessesensesessecseatenss 12

Section 23-302..........sccssscccsssscccessccesssscessesessseessssessessessesessssecensesesseeeeessnneesenees reateeesseeeessseecessasess 13

Findings Regarding Federal Laws Applicable to Indian Tribes.................csccsscssscssreesneenes 13

Section 23-303 ........ceeecsssssssessceseseeesessesseseccsssesseeneessscessesscssnessssessceessssessessscecaceeeesesseessseseeeenees 14

Preservation of Sovereign IMmMumity 0.0... ccecccsscessrcesscessscesseecessececsececsseecsseesssesensesessesens 14

Section 23-304... ce seccsssecsseccsscceseccssccceseeescesesssesseseesessneseceserecessnsescaceseceseeraceececeesseeerseeseasee nes 14

Waiver of Sovereign Immunity ...............cccccsccssssccsssccessecesseccssscescsssnceceseceessseeeesseeecesaeseonscees 14

SUBCHAPTER 4: PREFERENTIAL TREATMENT MANDATES ....0. occ eeseceeeeeeeeees 14

Section 23-401 ........ccssscssscsecsscesccssseecesssseesecssesccsecsscsscsesssnseseeeseeeeeceneeseessesessesdsssaaesaseseseseasees 14

Preference ............cccceecsssscesceccssceesecssseecnssesscecascsesssscensssesssecsesessssssessssssseesssescsssesssseosseconseeess 14

Section 23-402..........ccessccscessccssnccesssncessseescesesseeessseesecesssesesessensssesssessecesssceesoseeseosssessssssesoneees 15

Ao) 08 BYc5ot 9 | 0) 8 (0) | EE 15

Section 23-403.........sccecessscssssessessessessececsssssscesecsscesesesseeseenseseeseessneessessssesasessssssesssseenseeseaseesenes 15

Job Criteria .........cccecescccscessecsscsseessccssssescesseesesseseasenscessecsesessesesesoseesssesossessssassueesssessseesenees 15

Section 23-404........ccsccssssssscsssccsscesssesscesccssecesesscesseenesseseseesssesesseseensuesssassssacaesossesssesonsesaseseneees 15

Preferential Treatment in Recruiting .............ccecccescceseeecssceecsrececesesesessesessesesessesessseaseseseees 15

Section 23-405........:ccsssccssccsssccsscccescesssnesnnesesssessecesesessesssesessssscssssacsssuesesseserseeesseesssseceseeeeseerenes 15

Preferential Treatment in Hiring and Promotions ...............:cssccssccsscesserssssssesessseeesesseseseeees 15

Section 23-406.........csscccsscsssccssssssceseceesscsseesesceseaseesseeseesssssssescsssssesesossecsssscsssssssesesenesesseeeetenseens 16

Preferential Treatment in Layoffs and Reductions in Force... cee eeeesesensseeseseeceeeeens 16

Section 23-407.........cccccsssscssssccssssccsssccessceersccesseesesseessdseosesessssessssssensesnssesesessenseeeseseeeeseseeeesenees 16

Collective Bargaining .............cccecsescesecssssessesssssevsscesscssescsessessssesssesesseesecetenteatensseneeseensens 16

Section 23-408.........ccccccsscssscsssccsesssccsnccessseccssceessescessesseneesesesseosscossassssscsescesesesecesseseseanessaeesnees 16

Religious Freedom...........seseseessssseesssscssssssssescssssessesseeeseeaseessseasensesseeseneeneneeseneseesenerseresass 16

Section 23-409.........ccscccccessscsscesssnsccssscccecesseseessnecessasessssessescssacsesossssesesesseeessenseneeesesnasesenseuaeess 16

Discrimination by Tribal Employers and Covered Employer ...........:c:ssssssscessenreseeeseeeeeees 16

Labor and Employment Rights Code

Enacted

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Section 23-410..........ccccccccecccsccccccceccccessesesssssscccssessesssssccssccccsssescescesessnsncccnesecseseseceesesseseecescnsecs 17

Discrimination by Labor Organizations ..............c:ccsccssccssscssccscessecesscessecesscesseceesesecesssensscees 17

SUBCHAPTER 5: TRIBAL EMPLOYERS ............cccssccssestecssecsscesesessseessteesseecssesseenteesseeeseees 17

Section 23-501 oo... ses cessssssesecsssecseccsseesceeesssesseecsececcesenssesesnessnsesceessssecearsseseeesssesessnecssneesenss 17

Employment at Will... eeescesessensenseesenseeeeseesensensseesneneceacenesecessnssevassaseaseaseaseeseesneoaes 17

SeCtION 23-502... eeseesseseccssescecsseeseeseecascseencsenscneessensessenensesesenseessecsseneecsseesesenseaeessessesaneoes 18

Condition Precedent to Submission of Complaint to CommisSion...............:ccssccescceereeesceees 18

SUBCHAPTER 6: COVERED EMPLOYERS ........ cee eeccssseseceseeseseeeeceesseeeaeeseaeecaeesneseseeeeseoes 18

Section 23-601 0... ecesescssssteessseceesecesssscessncesseeesssceeseecesseeessceecssecessseacesessesasesesseceseesssseeeseseees 18

Applicability .......... cc ecseccsssccesscetssessesesssessnscssescsesesssscneeceeecsseeceesecsseesssssnsesessseeaseesonsesoueeess 18

Section 23-602........:ccssccsssssssessscssscssccsscesscesscssccsssesecesscesssensesacesscessceesaeeseesensesseesesseseesecensessesaees 18

Eligibility to Work 1n U.S.0... eee cesseeseceeeeceeseeeseeeecececeesseensceneseseeressssesseeosessssssssseesseseeeos 18

Section 23-603 ...........ccccssssccssssccessscceeessssscceseesessceseessesseceesscessssessssssscesseseceseeesessessoonesessesseseaees 18

COMPEeNsatiOn ..........ccccssccesseecensesceeseesesenceseessessessesssssesssessesssesssonseessseescasonsecensensseseeessonasents 18

Section 23-604........ccsccssssssseessccsscscesscsesccssesscessceseeenscesscsessenseesseesseseneseesasesdsassesesssvedsonessseseeess 19

Concerted Activity ..........cccsccsscssesseesessseseeseeseaseseesesssnsescessesesesssnesssesssssssssscsssesesessesseseseessees 19

Section 23-605...........cccssccsssssccesssccessccecsseeesssccesneeseseecsseesseasessceesesssseseseesesesaesosseeessssssssessoassesens 19

Safe Workplace............cccccssscscsessecsecescessceseeseacsscessecneseasssssessesssssesssnssesscsssesseeescsesensonseeeeeoes 19

Section 23-606...........:cccssescccsssecesssccssssecseccessccesscessseceessacsessesesseeeessscesesssasosssssscsseecsvssnecosseesenses 19

Discrimination ..............ccccessccssssccssscecesrscceccssscecseccessecsesssssescesecsanesecsssesesessecesssssscessecoessnesonses 19

Section 23-607.........ccccsccssscesssccsssscssscesnsccsscessesssecssccessessnseeseeesseessecessessossssossssesssesossascnseseesseees 20

Family & Medical Leave... esssssessscsscsscsscssecsssssssssssssscscessessessesseeneessaesssasensessesneeneeeees 20

Section 23-608.........ccsscccsssecsssescescscsscssccssencesscesceseseessassseessesceeessscecsseesssssssssseaesneseseeceneesenaseeeas 24

Parental Leave ............c:scsssssccsssssccssccssnecesscesesseessessessessessesssseessnssesossnscsvesssseesnesessenescessneeeseues 24

Section 23-609..........ccccscsccssssscsssscssssscesescessecesssscessnsesseesesscasessesssseeesssseeesoosesecseessenseeseessenecsesees 24

Military Leave ...........ccscsscsseseesesesssssesssscessesssscnscssssssssssssssssesssesssesessesaessrsssesseensesseneeneeeneeneey 24

SUBCHAPTER 7: RIGHT TO WORK 1.0... ccc cescsseesessssseseessaccseessssssssscseeeesesesseesereseeeseeeesness 26

Section 23-701 seecessesssssssssssssssssssssssssssssssssssssssssssssssssssussssssssssssssnssnsecsececeeseceeeeeeeessuseeetennennee 26

Prohibited Conditions to Employment .............ccscsssssssssssssscesseneeceeesessesenseeesseecessessasensnoenes 26

Labor and Employment Rights Code

Enacted

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Prohibited Conduct... eeessecsscssssssescscessescssesssssessssessssessssssaecasssesasessenessesesseessesseeuesesscseees 27

Section 23-703 .......secssccssccecesscscccsccsscessessesseenesssesseneesseeseeseessessecssessacesscessseesessecaecsscesecesceneseees 27

Unlawful Contracts 0... seeeseeccscsescessesnesseeseessesesescssssncenesaccsscesseeessessssscessesesesaeseeeeeseeees 27

SUBCHAPTER 8: TRIBAL EMPLOYMENT RIGHTS COMMISSION .........c ce eeeeeeees 27

Section 23-801 oo... cece sssscessccscccsscescecesceescesnesseeenecssscscesessenessensesaeesseeessesseceseeeseseeseeseneesnseeeeees 27

CLeALION .......cscceseccessccessccecsncesnscensesesscessnsesssensesssesenssessecessasensesenseseceasessesesseeessasossaesssessaserees 27

Section 23-802..........secccsecccssscessecesceessccessesseesssscessesenesessesessescaseesscsecenecesaeeeraeserssecosesessesesssssaees 27

Membership ............::cccccssssscecssssccsssseceesssssessssceeseseeescsseacesssceessecsesesssesssnesesessseeesssssaceeeseseesessos 27

Section 23-803 ..........sccccsssccssssccessscccssscessssccseccesseceesecesssccesssceessesecssscessrsceeescaceesessecececessessesaseeeens 28

Chair 0.0.0... ccccccsscscssccessccsescessecesseecsnsesseessscesececseensceseeasessaenecasessaeassceesseescseessseeesssesosseecees 28

Section 23-804.........ccsscssccssscssccescssccssecsssesseceeessssenseessecsesessesseeessessesesesessssesssssssseesossssosessseseneess 28

QUOLUIM .........csscccssscccesscccssscceceseccessecesnessssceesscsesseeseeetersecessseseseeeasesseesessesessssesessscescosesoseaseses 28

Section 23-805........:cccsscccssccsssecessssescessecsescesscessasenscessesesssesseevsnsesecsecsseeessesessesecsssssusasssseassuasosees 28

POWETS ....ccccccssessscessscscccessscecesssssecsssssecsscascsssasecseascessaacessnsnecesoscnesessesaeseseseceedssssossesesssoneesenes 28

Section 23-806.........c:ccssssccssssccesscccsseccessccessseecssceesseesesssessseeassceasssseseseseesscseuecscsssesscnssssnsssseseesens 28

Limitation On POWETS..........:cccsccsssscesecercsesscessceseesesseesseseassesseseseceseseessssesessessvnssserssssssonsseaness 28

Section 23-807.........ccssccccessseecesssnscesssneccesstcessecceesseesessceseeseseaceesseesesessseeessssesecsessssssescssaussesenes 29

ASSISTANCE .......0ccceesccssscecsscecescesscceseessecessecssusesscessaasecsecsasesceassesscseeessaseceseasessassasansusseseeseseesess 29

Section 23-808.........:cccsesccessesesssseeceseesceseesenseesees Leteesssteeeceeecssseccsacecesscacessacaesesaneessceecesseeesesseoes 29

Commission Member Conflicts...............:cccsssssssssesessccessecsseccsseesssssssssseseeseveeseeseeeesareenseesnees 29

SUBCHAPTER 9: COMPLAINT PROCEDURES BEFORE TRIBAL EMPLOYMENT

RIGHTS COMMISSION ...........c:ccsscssscsscsescssceseesencsceceseessesesecssescessssesossssssesseesssceseeeseeeeseeseeensens 30

Section 23-90 1......ccessscsssscssssecsssessrecsssssseccssscesseseeesesseessesenseessesessssessssveseesensesonseeeesssesseeseenersares 30

Complaint Requirement ..............eesscsssssscssesseeessescsscensensesseseessesenesesessresssesseseseeessnesanereeoes 30

Section 23-902.........cccccssscccsssecessececenscesscecssecessseeseneessnsessscsssssesscssscescasessceneeseesssesenaseneneeseseneees 30

Immediate Dismissal and Notification ...............csccssccssssessesssoseescsceessscesecessesseeeseneeneeneaes 30

Section 23-903 .........eccsssccesssccessccesseecsssecssceessaccesseseseceessseecsssacsssseeseesseecesseesesseesenseseseeneeseneeees 31

Notice of Complaint 2.0.0.0... ccccecessessecsscesesessnssessesssesenesesssensecssseeseessnsessessesesacengs deteeeesseeeeeees 31

Section 23-904 ....cccccccessccssssessscesssceseccsssecsscsescesseessesesscessssesssssssssssssconssceesseseseesensesseaseseseesnneesags 31

Labor and Employment Rights Code

Enacted

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INVEStiQatiONnS............:cccssscceecsececcescccsscesssscescesssceessesscescaccsssecssseessascesssessnsessseessstessaneceanereneecess 31

SECTION 23-905......cesscssccsscsscsscsssesessssesseeseessessessesssenseeessecssceseesseessssessseeseseesecsesensesaeessesanesensens 32

AttOINGYS ........:cessscccessceesseccesssccssseccsesscesseeeessecesescessssessesesssesesesueccsessesessesseceuesesssnseessasesesees 32

SECON 23-906... secssssessecesssecsecenseesssseessevsnsesssecseessessesessesessesesssesesseceeseserseseseeeessesesseseesees 32

Determinations. .............ssscccsscesscscsresssscessesenceesscessescnesesseessescscecesseseseesranecesseccssecessesesseresserenes 32

Section 23-907.........ccsecssscsssescceccsscsscceesseccscesesssessscseccessesssecsscceeseeeasenaeoasersesanecsesessesesesseesserass 32

Power to Review and Require Testimony and Production of Records ............scssseeseeeeees 32

Section 23-908..........scsssscsscessccsscesesesscessesssssssssssessseseeseceesesseessseessssesssesasoseeseeseseessseseseassesecenees 33

Bond .........cesccsssscesscccsssscccescccsescceesecesscecesenecsescssssesescccesucceceaceeseseeeesacescesaneeseseesecsseersoseneeeseeens 33

Section 23-909.........cccscccsscccssecessecesseececcesseseesssesesesaesscsessesessescseescssessseeesssesoseeccsssssoessaseseaseeasees 33

Confidentiality ...............ccccccscssssssscesscssceseccsecceccescesscscsseescenseseceessceesssessasesssssesosscossscosescsnaseees 33

Section 23-910 .........ccsscssccescsscessccescssessccesssssesesenseessessecesssecesssessasessesesstesessssessscsessssssesensseesanes 33

Letter of Determination against Applicant or Employee... eesescecsecesesseseneessssesesesenees 33

Section 23-91 Liu... ccssccssscsssssssecssccssccscessceseeceesenssescesseeseseeasesssseseecesessesessccssesessessssensssaseseseeeseees 34

Letter of Determination in Favor of Employee ............ccccccscssssesssseccsssseensseeenenaseseeeseeseeers 34

SUBCHAPTER 10: COMPLAINT APPEALS BEFORE THE TRIBAL COURT.......ssssssesee0 34

Section 23-1001 ..........cssscssssssssccssscesscessecsnceesseessecesseesseeessessssessssssssscssssssesecsseseesssesenseseseeensers 34

Appeal of Dismissal of Complaint 00.0.0... cccsssssssssscsssereeseseessteesenetseeensesesssnereereseeeseseesenees 34

Section 23-1002..........ccssscsssscccesssccsesscsssnesessceseccessnesesneessneeessesessssasascssscevsrseceesseesessaseneneesenennees 34

Appeal of Determination Against Applicant or Empl0yee ..............:ccscesescesessenseeseesnesnereees 34

Section 23-1003 ...........ccsscccesssccesssccsssseesssecseccesseccssseeseeecsseceessesesnssesscssescsesseseesseseenseseasseneeeeaeees 35

Appeal of Determination in Favor of Applicant or Employee ............:csssseseeeenerereeeeneneseeees 35

Section 23-1004... ccccsecsccsscesescsssessecessssscessesssesseensceeeeessecseassescnscesersssssensseseeesereegseseneesnsesseens 35

Standard of Review of Determination by COMMISSION.............:ccssscssseseesteeseeenseeeeeeeseeseenes 35

SUBCHAPTER 11: POSTING OF NOTICES... cscsssessscssessssseesecereesesesseseeeseesseesenengs 35

SUBCHAPTER 12: PROHIBITED CONDUCT. .....cccccccssccsceneeeceseseeresnesnnesnesenesseesaes 35

Section 23-1201 ........ccesesesesecesrecssscsscssssssesessesecessenseessseesseesesennsenneesaes seeseeeesscssssesssassesssesseenees 35

Rights Provided by this Subchapter...............cscscsessesssresseseseseeecesesessesesesssesessevarensesessseseenens 35

Section 23-1202........cccsescsccsstccssscssescesscceesesseessesecesossscssensssssesesceaeeeessessssesesesensesenssesnssesosnessees 36

Labor and Employment Rights Code

Enacted

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Proceedings in the Commission or Tribal Court .............cc:cccescsssscessscsssscssssscssrecssrscessesssecens 36

SUBCHAPTER 13: CIVIL LIABILITY o.0...esscsssccsseessesssceececsseesssecsscensesseseseeseseeasenss 36

SUBCHAPTER 14: CRIMINAL RESPONSIBILITY ......... cc ccssccssessteesesesssssssssssesseeeeseceseees 36

Section 23-1401 oe eessssessesseseeseescessesccscescescescesnessessssnsseesetsesesseesesaeeseesssesesatseseesesesssatees 36

Preferential Treatment ............. ce scesscsscsecseecesecsscessescseesseessecsscesaecsessenaeesescessesessscsesesecensesees 36

Section 23-1402... ee sesessecessecesrevsscersesseseesscesscsssesssscsessecsacensscessaeecessesessesesseeeseseessseessesenses 37

COMPeMsatiOn ............:ccsssccessecessceneccsssceseeseseeecsscsacssessesscessaccesceesscesssseceseeseseneesseeseeeseseeensaeeees 37

Section 23-1403... esseessscessscessessscessecesceesseesseesssccesscessscessscescessseceseacesseeecssesessecessesesseeeees 37

Complaint..............ccssccssssccsscccssccsseccesceeseccesecesscessceescesssccessccessesescesecsseesscesessesersesersesevereseseres 37

Section 23-1404... ecssscccssnccesseccessccesscccsscceseccesssccessscesencesscecsssecesensessesceeeesenseeeseseaseseseseeses 37

Obstruction of Investigations.............:ccsccsscsssccsreecsecsecsnccseeesssesessaessasensaceessseeseseeseseeseseeens 37

Section 23-1405........ccessscsssseccessscessnceseceessecessecessseesesseecsereecseseessnessesseesesessesesessessssesesceasesenaes 38

PUNISHMENE ............csessccsscsescscseccecsecesscsscsssseccsscescenscsseenscecsessssnsseesnsecacereeseessecsessessecceaseenease 38

SUBCHAPTER 15: EFFECTIVE DATE; REPEAL... cccccssesscsesseeeeesesesessenesesseasesaseeeees 38

Section 23-1501 oc... cceescccsssscssssecssnsccsecccsssccessccesseccesceesscessescessceceecceesesseeessesesesassssesseseeeeces 38

Effective Date ...........ccssccccssscccsseccssssccsssceessecssscesssseesescesssceescaseeseseascsscassssscessonssecscssevseseeeees 38

Section 23-1502 .........ccsssccssccssecssscessccesseessesesscecseessseessssecsnsecsseessesosesassaesesesovssecossesonrssonseesens 38

Repeal of Prior Versions. ...........cscscecesscsssssssesssssssssssesssssssssssscssenssesrensesasensensensseaasnseneeaees 38

Labor and Employment Rights Code

Enacted

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SUBCHAPTER 1: GENERAL PROVISIONS

Section 23-101

Title

This law shall be entitled the “Labor & Employment Rights Code.”

Section 23-102

Definitions

Terms contained in this Labor & Employment Rights Code are defined as follows:

a)

b)

c)

d)

e)

f)

g)

I)

“Age” as used in this Code means 40 or more years of age.

“Applicant” means an applicant for employment with a Tribal Employer or Covered

Employer.

“Code” or “LERC” shall mean this Labor & Employment Rights Code.

“Commission” or “TERC” shall mean the Tribal Employment Rights Commission.

TERC Director” shall mean the director of Tribal Employment Rights Commission.

“Covered Employer” means any person with two or more employees, which employs

employees within KTTT Territorial Jurisdiction. The term “Covered Employer” is different

from, and specifically excludes, any Tribal Employer.

“Employee” means an employee of either a Tribal Employer or Covered Employer, and

includes full- time, part-time, temporary, seasonal, leased and shared employees.

‘‘Native American” means an enrolled member of a federally recognized Indian tribe other

than KTTT.

“KTTT” means the Kickapoo Traditional Tribe of Texas, a federally recognized Indian tribe.

“KTTT Member” means a KTTT tribal member.

“KTTT Reservation” means that area of land reserved for KTTT under federal law as a

permanent KTTT homeland, which the federal government holds title in trust for KTTT.

“KTTT Territorial Jurisdiction” means the KTTT Reservation and KTTT Tribal Land located

in the United States of America.

Labor and Employment Rights Code

Enacted

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m) “KTTT Tribal Employer” means KTTT and every entity organized under Tribal Law with a

P)

q)

t)

principal place of business within the United States of America and which is wholly owned

by KTTT. “KTTT Tribal Employer” specifically includes the Kickapoo Lucky Eagle Casino,

LLC, Kickapoo Empire LLC, and Kickapoo Convenience Store, LLC.

“Kickapoo” means an enrolled member of KTTT, the Kickapoo Tribe of Oklahoma or the

Kickapoo Tribe of Kansas.

“KTTT Tribal Land” means that area of land held in fee by KTTT which is not part of the

KTTT Reservation.

“Labor Organization” means (i) an organization, (ii) agency, (iil) union, or (iv) employee

representation committee that exists, in whole or in part, to assist employees in negotiating

with employers concerning grievances, labor disputes, wages, rates of pay, or other terms or

conditions of employment.

“Offense” is an act committed or omitted in violation of Tribal Law forbidding or

commanding it, and to which criminal punishments attach upon conviction.

“Person” means one or more individuals, Labor Organizations, partnerships, corporations,

joint ventures, associations, agency, trusts or any other natural or artificial organization. The

term “person” is intended to be as broad and encompassing as possible to ensure this Code’s

coverage as to all employment within KTTT Territorial Jurisdiction, and the term shall be so

interpreted by the Commission and the Tribal Court.

“Qualified Native American” means a Native American who, with or without reasonable

accommodation, meets the minimum qualifications for, and can perform the essential

functions of the employment position that the Indian holds or desires. A Tribal Employer or

Covered Employer may adopt reasonable promotion policies which reward employees who

perform at higher levels of performance. Under these circumstances, a “Qualified Native

American” means a Native American who, with or without reasonable accommodation,

meets the higher performance requirements set out in the promotion criteria of the personnel

policy.

“Qualified KTTT Member” means a KTTT Member who, with or without reasonable

accommodation, meets the minimum qualifications for, and can perform the essential

functions of the employment position that the KTTT Member holds or desires. A Tribal

Employer or Covered Employer may adopt reasonable promotion policies which reward

employees who perform at higher levels of performance. Under these circumstances, a

“Qualified KTTT Member” means a KTTT Member who, with or without reasonable

accommodation, meets the higher performance requirements set out in the promotion criteria

of the personnel policy.

u) “School” means any (i) public school, (ii) private church school, church of religious charter,

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or nonpublic school that regularly provides a course of grade school (pre-k-12) instruction,

(iii) preschool, and (v) child care facility.

v) “Human Resources” means the Senior H.R. Director or Human Resource.

w) “Tribal Council” means the KTTT Tribal Council.

x) “Tribal Court” means the KTTT Tribal Court.

1. “Tribal Jail’ means the KTTT Tribal Jail.

ii. “Tribal Law” means the KTTT Constitution and the KTTT Tribal Code.

ili. “Tribal Leave” means leave from work approved by the Tribal Council for KTTT

religious or cultural activities.

Section 23-103

Findings and Purpose

A. Findings

1. KTTT is a federally recognized tribe. 25 U.S.C. § 1300b-11.

2. Federally recognized Indian tribes “remain a separate people with the power of regulating

their internal and social relations, . . . making their own substantive law in internal

matters, . . . and [enforcing] that law in their own forums [.]” See Santa Clara Pueblo v.

Martinez, 436 U.S. 49, 55-56 (1978).

3. A federally recognized tribe has the “general authority, as sovereign, to control economic

activity within its jurisdiction.” See Merrion v. Jicarilla Apache Tribe, 455 U.S. 130,

141-44 (1982).

4, Federally recognized Indian tribes also retain the inherent sovereign power to “exercise

civil authority over the conduct of non-Indians on fee lands within its reservation when

that conduct threatens or has some direct effect on the political integrity, the economic

security, or the health and welfare of the tribe. . .” See Montana v. U.S., 450 U.S. 544,

564-65 (1981).

5. A federally recognized Indian tribe “may regulate the activities of non-members who

enter into consensual relationships with the tribe or its members through . . . contracts.”

See Montana v. U.S., 450 U.S. 544, 564-65 (1981).

6. A federally recognized Indian tribe retains “the power to exclude non-Indians from

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Indian lands.” See Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 141-44 (1982).

The KTTT Reservation is an “Indian reservation” within the meaning of Section 703(i) of

Title VII which provides: “Nothing in this subchapter shall apply to any business or

' enterprise on or near an Indian reservation with respect to any publicly announced

employment practice of such business or enterprise under which a preferential treatment

is given to any individual because he is an Indian living on or near a reservation.” 42

U.S.C. § 2000e-2(i).

B. Purposes

This Labor and Employment Rights Code is enacted:

1.

In conjunction with KTTT’s sovereign authority to control economic activity within

KTTT Territorial Jurisdiction to the benefit of KTTT and KTTT Members;

In conjunction with KTTT’s sovereign authority as to internal matters to define the rights

and obligations of Employees of Tribal Employers regardless of the location of such

employment;

In conjunction with KTTT’s sovereign authority over KTTT Territorial Jurisdiction to

define the rights and obligations of KTTT Member and Non-Members regarding

employment by Covered Employers and Tribal Employers located in or on KTTT

Territorial Jurisdiction; and

To provide preferential employment opportunities and benefits to Qualified KTTI

Members and Qualified Native Americans in employment by Tribal Employers and

Covered Employers.

Section 23-104

Effective Date

This Code shall take effect immediately upon approval of the Tribal Council.

Section 23-105

Severability

If any

provision of this Code, an amendment made by this Code, or the application of such

provision or amendment to any person or circumstance is held to be unconstitutional or

preempted by federal law, the remainder of this Code, the amendments made by this Code, and

the application of such provisions to any person or circumstance shall not be affected thereby.

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SUBCHAPTER 2: KTTT TERRITORIAL JURISDICTION

Section 23-201

Offenses

An Offense is committed under this Code by a person’s own conduct or the conduct of another

for whom he is criminally responsible if:

a) The conduct or a result that it is an element of the conduct occurs inside KTTT Territorial

Jurisdiction;

b) The conduct outside KTTT Territorial Jurisdiction constitutes an attempt to commit an

Offense inside KTTT Territorial Jurisdiction; or

c) The conduct outside KTTT Territorial Jurisdiction constitutes a conspiracy to commit an

Offense in KTTT Territorial Jurisdiction, and an act in furtherance of the conspiracy

occurs inside KTTT Territorial Jurisdiction.

Section 23-202

Employment

This Code governs services by an Employee performed inside KTTT Territorial Jurisdiction and

services outside KTTT Territorial Jurisdiction if:

a) The services are performed for a Tribal Employer;

b) The services are directed or controlled from KTTT Territorial Jurisdiction; or

c) The services are ancillary to services primarily provided by the Employee inside KTTT

Territorial Jurisdiction.

Section 23-203

Employment Records

KTTT does not recognize the jurisdiction of any court or agency outside KTTT Territorial

Jurisdiction to subpoena employment records maintained on or in KTTT Territorial Jurisdiction.

Only the Commission, the Tribal Court and the Tribal Council have the subpoena power to

compel the production of employment records maintained on or in KTTT Territorial Jurisdiction.

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Section 23-204

Consent to Authority and Jurisdiction

As a condition to working in and on KTTT Territorial Jurisdiction, every Employee consents to

the authority and jurisdiction of the Commission and Tribal Court. As a condition to employing

Employees in and on KTTT Territorial Jurisdiction, every Tribal Employer and Covered

Employer consents to the authority and jurisdiction of the Commission and Tribal Court for the

limited purpose of enforcement by the Commission and the Tribal Court of the provisions of this

Code applicable to such employers.

Section 23-205

Banishment

Notwithstanding any other provision of this Code, an individual may, upon approval by a

recorded vote by the Tribal Council, be banished from KTTT Territorial Jurisdiction, with or

without cause.

SUBCHAPTER 3: SOVEREIGN IMMUNITY

Section 23-301

Findings

Regarding Federal and Texas Employment Laws KTTT makes the following findings as to

federal, state, and local employment laws:

a) As an “Indian tribe,” KTTT is excluded entirely from coverage under Title VII of the

Civil Rights Act of 1964 (“Title VII’). 42 U.S.C. § 2000e(b).

b) As an “Indian tribe,” KTTT is excluded entirely from coverage under the Genetic

Information Nondiscrimination Act of 2008. 42 U.S.C. § 2000ff.

c) As an “Indian tribe,” KTTT is excluded entirely from coverage under the Americans with

Disabilities Act. 42 U.S.C. § 12111.

d) There is federal jurisprudence to support the conclusion that, as “a federally recognized

Indian tribe,” KTTT (i) is excluded entirely from coverage under the Age Discrimination in

Employment Act, 29 U.S.C. § 621, et seq., see EEOC v. Fond duLac Heavy Equip. & Constr.

Co., Inc., 986 F.2d 246, 25-51 (8th Cir. 1993), and (ii) has sovereign immunity to claims

under the Act regarding internal employment matters. See Garcia v. Akwasasne Hous. Auth.,

268 F.3d 76, 86 (2nd Cir. 2001).

e) There is federal jurisprudence to support the conclusion that, as “a federally recognized

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g)

h)

j)

Indian tribe”, KTTT (4) is excluded entirely from coverage under the Civil Rights Act of

1866, 42 U.S.C. § 1981, and (ii) has sovereign immunity from claims under the Act

regarding internal employment matters. See Zaylor v. Alabama Intertribal Council IV

J.T.P.A., 261 F.3d 1032, 1035-36 (11th Cir. 2001).

There is federal jurisprudence to support the conclusion that, as “a federally recognized

Indian tribe”, KTTT has sovereign immunity from claims under the Fair Labor Standards

Act, 29 U.S.C. § 201 ef seg., regarding internal employment matters. See Lobo v.

Miccosukee Tribe Indians of Florida, 279 Fed. Appx. 926, 927 (1 1th Cir. 2008).

There is federal jurisprudence to support the conclusion that, as “a federally recognized

Indian tribe,” KTTT has sovereign immunity from claims under the Family & Medical

Leave Act, 29 U.S.C. § 2601, et seqg., regarding internal employment matters. See Chayoon

v.Chao, 355 F.3d 141 (2nd Cir. 2004).

There is federal jurisprudence to support the conclusion that, “as a federally recognized

Indian tribe,” KTTT has sovereign immunity from inspections under the Occupational Safety

& Health Act, regarding internal employment matters. See Donovan v. Navajo Forest

Products, Indus., 692 F.2d 709, 710 (10th Cir. 1982).

To the full extent authorized under federal law, KTTT maintains that, “as a federally

recognized Indian tribe,” it has sovereign immunity from investigations or claims under

other federal employment laws not specifically identified here.

There is authority to support the conclusion that, as “a federally recognized Indian tribe,”

KTTT has sovereign immunity from claims under state and local labor and employment

laws. See FELIX S. COHEN, COHEN’S HANDBOOK OF FEDERAL INDIAN LAW

(1982 ed.) at 259 (state civil laws are “generally not applicable to Indian affairs within

the territory of an Indian Tribe, absent the consent of Congress”).

Section 23-302

Findings Regarding Federal Laws Applicable to Indian Tribes

Notwithstanding Section 23-301, KTTT acknowledges the obligations placed upon Tribal

Employers and Covered Employers (as applicable) under the following laws:

a)

The Indian Self-Determination and Education Assistance Act, 25 U.S.C. § 450e(b),

requires that preference be given to Indians in employment, training and subcontracting

under certain categories of contracts; and

b) The Indian Child Protection and Family Violence Prevention Act, 25 U.S.C. § 3201 et seq.,

which may require that an Employee be denied employment or continued employment ina

position which regularly works with Indian children if the Employee is convicted of any

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felony, or two or more misdemeanor offenses, under federal, state or Tribal Law

involving crimes of violence, sexual assault, molestation, exploitation, contact or

prostitution, crimes against persons, or offenses committed against children.

Section 23-303

Preservation of Sovereign Immunity

To the extent KTTT or a Tribal Employer has sovereign immunity under federal, state or local

employment laws, including without limitation the laws referenced in Section 23-301 of this

Code, nothing contained in this Code shall be construed as waiving such sovereign immunity.

All inherent sovereign rights of KTTT and each Tribal Employer are hereby expressly reserved,

except as expressly provided herein.

Section 23-304

Waiver of Sovereign Immunity

a) No Employee of KTTT or any Tribal Employer has the right or authority to waive

sovereign immunity, if any, under any federal, state or local employment law, or consent

to investigation or suit under federal, state or local employment law. Neither waiver of

sovereign immunity nor consent to investigation or suit under federal, state or local

employment law can he accomplished absent a recorded vote approving such action by

the Tribal Council.

b) By the adoption of this Code, the KTTT Tribal Council hereby waives the sovereign

immunity of each Tribal Employer for the limited purpose of enforcement by the

Commission and the Tribal Court of the provisions of this Code applicable to such

employers. The sovereign immunity of each Tribal Employer is hereby expressly

reserved with respect to any employment or other matters that do not directly arise from

the provisions of this Code.

SUBCHAPTER 4: PREFERENTIAL TREATMENT MANDATES

Section 23-401

Preference

a) KTTT Tribal Employers and Covered Employers shall give preference to available and —

Qualified KTTT Members in recruitment, hiring, promotions, layoffs and reductions in

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force.

b) Except as to available and Qualified KTTT Members, Tribal Employers and Covered

Employers shall give preference to available and Qualified Native Americans in

recruitment, hiring, promotions, layoffs and reductions in force.

Section 23-402

Job Descriptions

For every position of employment with a Tribal Employer or Covered Employer that has an

applicable written job description, reference shall be made therein to the preferential treatment

mandates for Qualified KTTT Members and Qualified Native Americans.

Section 23-403

Job Criteria

It shall be unlawful for a Tribal Employer or Covered Employer to adopt or use any job criterion

or qualification for a position of employment which (a) has an adverse impact upon the

employment opportunities of Qualified KTTT Members or Qualified Native Americans, and (b)

is not shown by the Tribal Employer or Covered Employer to have a demonstrable relationship

to the requirements of the position.

Section 23-404

Preferential Treatment in Recruiting

Prior to filling any open position of employment, a Tribal Employer or Covered Employer shall

first post such a position for a period of ten (10) days in media readily accessible to KTTI

Members and Native Americans.

Section 23-405

Preferential Treatment in Hiring and Promotions

For any open position of employment, a Tribal Employer or Covered Employer shall hire or

promote a Qualified KTTT Member if available. A Tribal Employer or Covered Employer shall

not refuse to hire or promote an available Qualified KTTT Member on the basis that another

candidate, who is not a KTTT Member, is more qualified for the position.

Except where a Qualified KTTT Member is available, as to any open position of employment, a

Tribal Employer shall hire or promote a Qualified Native American if available. A Tribal

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Employer shall not refuse to hire or promote an available Qualified Native American on the basis

that another candidate, who is not a Native American, is more qualified for the position.

Section 23-406

Preferential Treatment in Layoffs and Reductions in Force

In a layoff or reduction in force which requires a retention selection decision between a Qualified

KTTT Member and an Employee who is not a KTTT Member, a Tribal Employer or Covered

Employer shall retain the Qualified KTTT Member. A Tribal Employer or Covered Employer

shall not refuse to retain a Qualified KTTT Member on the basis that another candidate, who is

not a KTTT Member, is more qualified for the position.

In a layoff or reduction in force which requires a retention selection decision between a Qualified

Native American and an Employee who is not a Native American, a Tribal Employer or Covered

Employer shall retain the Qualified Native American. A Tribal Employer or Covered Employer

shall not refuse to retain a Qualified Native American on the basis that another candidate; who is

not a Native American, is more qualified for the position.

Section 23-407

Collective Bargaining

Modification of the preferential treatment mandates set forth in this Code to the detriment of

Qualified KTTT Members and Qualified Native American is not a permissible subject of

collective bargaining as to employment with a Tribal Employer or Covered Employer. It is

unlawful for a Labor Organization to seek to enforce, and for a Tribal Employer or Covered

Employer to enforce any provision in a collective bargaining agreement which is contrary or

restrictive as to the preferential treatment mandates in this Code.

Section 23-408

Religious Freedom

Tribal Employers, Covered Employers and Labor Organizations shall make reasonable

accommodations to the religious beliefs of Employees who are Kickapoo or Native American.

This duty of reasonable accommodation includes granting Tribal Leave for KTTT Members,

Kickapoos and other Native Americans.

Section 23-409

Discrimination by Tribal Employers and Covered Employers

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Itshall be unlawful for a Tribal Employer or Covered Employer to:

a)

b)

Discriminate against any Qualified KTTT Member or Qualified Native American because

such Qualified KTTT Member or Qualified Native American has been provided preferential

treatment under this Code;

Fail or refuse to hire or to discharge any Qualified KTTT Member or Qualified Native

American, or otherwise discriminate against any Qualified KTTT Member or Qualified

Native American with respect to the compensation, terms, conditions or privileges of

employment of the Employee, because such individual is a KTTT Member or Native

American; or

Limit, segregate, or classify Employees of the Tribal Employer or Covered Employer in any

way which deprives or tends to deprive any Qualified KTTT Member or Qualified Native

American of employment opportunities or otherwise adversely affects the individual’s status

as an Employee, because such individual is a KTTT member or Native American.

Section 23-410

Discrimination by Labor Organizations

It shall be unlawful for a Labor Organization to:

a)

b)

Exclude or expel from its membership or otherwise discriminate against any individual

because such individual is a KTTT Member or Native American; |

To limit, segregate, or classify its membership or applicants for membership, or to classify or

fail or refuse to refer for employment any individual, in any way which would deprive or

tend to deprive any individual of employment opportunities, or would limit such employment

opportunities or otherwise adversely affect his/her status as an Employee or as an Applicant

for employment, because such individual is a KTTT Member or Native American; or

To cause or attempt to cause a Tribal Employer or Covered Employer to discriminate against

an individual in violation of this Subchapter.

SUBCHAPTER5: TRIBAL EMPLOYERS

Section 23-501

Employment at Will

Absent a collective bargaining agreement or a written employment agreement approved by a

recorded vote of the Tribal Council, all employment with Tribal Employers is “at will”, which

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means that both the Employee and the Tribal Employer have the contractual right to terminate

the employment relationship at any time, with or without cause, with or without notice.

Section 23-502

Condition Precedent to Submission of Complaint to Commission

Before an Employee of a Tribal Employer submits a complaint to the Commission under

Section 23-901 of this Code, the Employee must first exhaust the grievance and appeals process

provided in, and within the time allowed by, the Tribal Employer’s employee handbook.

SUBCHAPTER 6: COVERED EMPLOYERS

Section 23-601

Applicability

This Subchapter applies only to Covered Employers.

Section 23-602

Eligibility to Work in U.S.

Covered Employers shall not knowingly hire or employ any individual who is not legally eligible

to work in the United States. Covered Employers must verify the employment eligibility of all

workers through an employment verification process which culminates in the completion of the

1-9 Employment Eligibility Verification Form published by the Department of Homeland

Security, U.S. Citizenship and Immigration Services.

Section 23-603

Compensation

a) Covered Employers shall pay Employees for hours worked at a rate not less than $7.25 per

hour.

b) Except as to any Employee in a bona fide executive, administrative, professional capacity,

in the capacity of an outside sales Employee, or as a computer analyst, computer

programmer software engineer or similarly skilled worker, no Covered Employer shall

employ any Employee for a workweek longer than 40 hours unless the Employee receives

compensation for such employment at a rate not less than one and one-half times the

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regular rate at which the Employee is employed.

c) Covered Employers shall pay all wages due their Employees on paydays designated in

advance by the Covered Employer which shall be at least once during each calendar

month. These wages shall be paid (i) in U.S. currency, (ii) by a written instrument issued by

or on behalf of the Covered Employer that is negotiable on demand at full face value for

US. currency, or (iii) by the electronic transfer of funds. A Covered Employer may not

withhold or divert any part of an Employee’s wages unless it is (i) ordered to do so by a

court of competent jurisdiction, (ii) authorized to do so by federal law, or (iii) has written

authorization from the Employee to deduct part of the wages for a lawful purpose.

d) Notwithstanding any language of this Section to the contrary, commission and bonus

payments may be made in accordance with the timetable of a written agreement between

the Employee and Covered Employer.

Section 23-604

Concerted Activity

Employees of Covered Employers shall have the right to self-organization, to form, join, or assist

Labor Organizations, to bargain collectively through representatives of their own choosing, and

to engage in other concerted activities for the purpose of collective bargaining or other mutual

aid or protection, and shall also have the right to refrain from any or all of such activities.

Section 23-605

Safe Workplace

Each Covered Employer shall provide its Employees employment and a place of employment

which are free from recognized hazards that cause or are likely to cause death or serious physical

harm.

Section 23-606

Discrimination

With the exceptions of the preferential treatment mandates for Qualified KTTT Members and

Qualified Native Americans, it is unlawful for a Covered Employer:

a) To fail or refuse to hire or to discharge any individual, or otherwise discriminate against

any individual, with respect to the compensation, terms, conditions or privileges of

employment, because of such individual’s race, color, national origin, citizenship, ancestry,

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religion, gender (including pregnancy), sexual orientation, marital status, age, disability,

genetic information, political views or military service;

b) To limit, segregate, or classify Employees in any way which deprives or tends to deprive

any individual of employment opportunities or otherwise adversely affect the individual’s

status as an Employee, because of such individual’s race, color, national origin,

citizenship, ancestry, religion, gender (including pregnancy), sexual orientation, marital

status, age, disability, genetic information, political views or military service; and

c) To discharge or otherwise discriminate against an Employee (i) for reporting a

work-related injury or illness, or (ii) who, with no reasonable alternative, refuses in good

faith to expose him/herself to a hazard that is likely to cause death or serious physical

harm to him/herself or another Employee.

Section 23-607

Family & Medical Leave

Subject to the following conditions set forth below, Employees of Covered Employers with fifty

(50) or more Employees within seventy-five (75) miles of KTTT Territorial Jurisdiction may be

entitled to Family & Medical Leave.

a) Basic Leave Entitlement

Eligible Employees are entitled to up to 12 weeks of unpaid, job protected leave in a

twelve-month period for the following reasons:

1. The birth of a child and to care for the newborn child within one year of birth;

2. The placement with the Employee of a child for adoption or foster care and to care for

the newly placed child within one year of placement;

3. To care for the Employee’s spouse, son, daughter or parent (but not in-law) who has a

serious health condition; or

4. For a serious health condition that makes the Employee unable to perform the

essential functions of the Employee’s job.

When both spouses are employed by the employer, they are together entitled to a combined total

of 12 workweeks of Family & Medical Leave within the designated 12-month period for the

birth, adoption or foster care placement of a child with the Employees, for aftercare of the

newborn or newly placed child, and to care for a parent (but not in-law) with a serious health

condition. Each spouse may be entitled to additional Family & Medical Leave for other

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qualifying reasons (i.e., the difference between the leave taken individually for any of the above

reasons and 12 workweeks, but not more than a total of 12 workweeks per person).

b) Military Family Leave Entitlements

1.

Eligible Employees whose spouse, son, daughter or parent is on military active duty

or called to military active duty status may use their 12-week leave entitlement to

address certain qualifying exigencies. Qualifying exigencies may include attending

certain military events, arranging for alternative childcare, addressing certain financial

and legal arrangements, attending certain counseling sessions, and attending postdeployment reintegration briefings. ’

Eligible Employees may also take up to 26 weeks of leave to care for a military

service member during a single 12-month period. A military service member is:(i) a

current member of the Armed Forces, including a member of the National Guard or

Reserves, who is undergoing medical treatment, recuperation or therapy, is otherwise in

outpatient status, or is otherwise on the temporary disability retired list, for a serious

injury or illness; or (ii) a veteran who was discharged or released under conditions other

than dishonorable at any time during the five-year period prior to the first date the

eligible Employee takes Family & Medical Leave to care for the covered veteran, and

who is undergoing medical treatment, recuperation, or therapy for a serious injury or

illness.

c) Benefits and Protections

l.

During Family & Medical Leave, a Covered Employer must maintain the Employee’s

health coverage under any group health plan on the same terms as if the Employee had

continued work.

Upon return from Family & Medical Leave, an Employee must generally be restored to

the Employee’s original or equivalent position with equivalent pay, benefits, and other

employment terms.

Before an Employee returns to work from Family & Medical Leave for his/her own

serious health condition, the Employee may be required to submit a fitness for duty

certification from the Employee’s health care provider, with respect to the condition for

which the leave was taken, stating the Employee is able to resume work. A return to work

may be delayed or denied if the appropriate documentation is not provided in a timely

manner.

An Employee is entitled to reinstatement following Family & Medical Leave only if the

Employee would have continued to be employed had such leave not been taken. Thus, an

Employee is not entitled to reinstatement if, because of a layoff, reduction in force or

other reason (e.g., misconduct during leave), the Employee would not be employed at the

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time job restoration is sought.

5. A Covered Employer may lawfully deny reinstatement to a salaried, eligible Employee

who is among the highest paid 10 percent of its Employees if such denial is necessary to

prevent substantial and grievous economic injury to the Covered Employer’s operations.

d) Eligibility Requirements

Employees are eligible for Family & Medical Leave if they have worked for a Covered

Employer for at least 12 months and have 1,250 hours of service in the previous

12 months.

e) Serious Health Condition

A serious health condition is an illness, injury, impairment, or physical or mental condition that

involves either an overnight stay in a medical care facility, or continuing treatment by a health

care provider for a condition that either prevents the Employee from performing the functions of

the Employee’s job, or prevents the qualified family member from participating in school or

other daily activities. Subject to certain conditions, the continuing treatment requirement may be

met by a period of incapacity of more than 3 consecutive calendar days combined with at least

two visits to a health care provider or one visit and a regimen of continuing treatment, or

incapacity due to pregnancy, or incapacity due to a chronic condition. Other conditions may meet

the definition of continuing treatment.

f) Use of Leave

An eligible Employee does not need to use Family & Medical Leave in one block. Leave

can be taken intermittently or on a reduced leave schedule when medically necessary.

Employees must make reasonable efforts to schedule leave for planned medical treatment so

as not to unduly disrupt the employer’s operations. Leave due to qualifying exigencies may

also be taken on an intermittent basis.

g) Substitution of Paid Leave for Unpaid Leave

An eligible Employee may choose or a Covered Employer may require use of accrued paid

leave while taking Family & Medical Leave. In order to use paid leave for Family & Medical

Leave, an eligible Employee must comply with the Covered Employer’s normal paid leave

policies.

h) Employee Responsibilities

1. Eligible Employees must provide 30-days advance notice of the need to take Family &

Medical Leave when the need is foreseeable. When 30-days notice is not possible, the

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Employee must provide notice as soon as practicable.

Employees must provide sufficient information for a Covered Employer to determine if

the leave may qualify for Family & Medical Leave protection and the anticipated timing

and duration of the leave.

i. When leave is taken to care for a family member, the requisite documentation may

include proof of a family relationship (e.g., birth certificate or court document);

li. | The requisite documentation may include a medical certification from a health care

provider of the serious health condition of the Employee or family member of the

Employee; and

iii. If a Covered Employer has reason to doubt the Employee’s initial medical

5.

certification, the Covered Employer may (A) with the Employee’s permission, have

a designated health care provider contact the Employee’s health care provider in an

effort to clarify or authenticate the initial medical certification; and/or (B) require

the Employee to obtain a second opinion by an independent Covered Employerdesignated provider at the Covered Employer’s expense. If the initial and second

medical certifications differ, the Covered Employer may, at its expense, require the

Employee to obtain a third, final and binding certification from a jointly selected

health care provider.

. As part of any request for Family & Medical Leave, an Employee also must inform the

Covered Employer if the requested leave is for a reason for which Family & Medical

Leave was previously taken or certified.

During Family and Medical Leave, an Employee may be required to provide

recertification supporting the need for leave.

No Employee shall retain secondary employment while on Family & Medical Leave.

i) Employer Responsibilities

1.

Covered Employers must inform Employees requesting leave whether they are eligible

for Family & Medical Leave. If they are, the notice must specify any additional

information required as well as the Employee’s rights and responsibilities. If they are

ineligible, the Covered Employer must provide a reason for the ineligibility.

Covered Employers must inform Employees if leave will be designated as Family &

Medical Leave and the amount of leave counted against the Employee’s leave

entitlement. If the Covered Employer determines that the leave is not protected Family &

Medical Leave, it shall so notify the Employee.

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Section 23-608

Parental Leave

Covered Employers shall grant four hours of leave with pay per calendar year to any Employee

who is a parent, guardian, or person standing in loco parentis of a school- aged child so that the

Employee may attend or otherwise be involved at that child’s school. Any leave under this

Subchapter, however, is subject to the following conditions:

a) The leave will be at a mutually agreed upon time and date;

b) The Employee may be required to provide a written request for leave at least 48 hours before

the time requested for leave; and

c) The Employee may be required to furnish written verification from the child’s school that the

Employee attended or was otherwise involved at the school during the time of leave.

Section 23-609

Military Leave

Employees of Covered Employers must be granted an unpaid leave of absence for military

service, training or related obligations.

a) Military Service

An Employee is eligible for Military Leave if the Employee is a member of the following

services: (1) United States Army and its reserves; (2) United States Navy and its reserves; (3)

United States Air Force and its reserves; (4) United States Marines and its reserves; (5) United

States Coast Guard and its reserves; (6) National Guard; (7) Public Health Service; or (8) Texas

State Guard.

b) Reason for Leave

Military Leave must be provided for the following reasons: (1) voluntary and involuntary

active duty; (2) active duty for training; (3) initial active duty for training; (4) inactive duty

training; (5) full-time National Guard duty; and (6) examinations to determine fitness for military

duty.

c) Continuation of Group Health Insurance

1. For a Military Leave of less than 30 days, an Employee is entitled to continued group

health insurance coverage under the same conditions as if the Employee had continued

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work.

2. For a Military Leave in excess of 30 days, an Employee may elect to continue group

health insurance coverage for up to 18 months of Military Leave, but may be required to

pay for the premium for the continuation coverage.

d) Employee Notification Requirements

An Employee who fails to obey certain notification requirements is subject to being

terminated or ineligible for reemployment following Military Leave:

1. Where reasonably possible, an Employee must give advance notice he/she will be taking

Military Leave.

2. Upon return from Military Leave, an Employee must provide notice of or submit an

application reemployment in according with the following schedule:

i.

li.

ill.

Service of 30 days or Less: The returning Employee must report on the first full

regularly scheduled work period on the first full calendar day following completion

of the service, plus eight hours. If it is impossible or unreasonable for the remaining

Employee to report within that period through no fault of his/her own, he/she must

report as soon as possible. This reporting period also applies to a returning Employee

who is absent from work for an examination to determine his/her fitness for military

service.

Service of 31 to 180 Days: The returning Employee must apply for reemployment no

later than 14 days after military service ends, or, if it is impossible or unreasonable

for the returning Employee to report within that period through no fault of his/her

own, on the next calendar day on which it is possible.

Service of More than 180 Days: The returning Employee must apply for

reemployment within 90 days of the end of the military service.

3. A returning Employee whose military service was for more than 30 days must

provide documentation within two weeks of his/her return (unless such documentation

does not yet exist or is not readily available) showing the following:

lil.

The application for reemployment is timely (i.e., submitted within the required

time period);

The period of military service has not exceeded five years; and

The returning Employee received an honorable or general discharge.

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e) Reemployment Following Military Leave

The type of position to which a returning Employee will be reinstated depends on the period

of service and on the returning Employee’s abilities at the time of reinstatement.

l.

Service of 90 days or less. The returning Employee will be reemployed in the position

he/she would have held if he/she had continued in employment without interruption for

military service, as long as he/she is qualified for that position. If the returning Employee

would have been promoted if he/she had continued in employment but cannot be

qualified for that new position after reasonable efforts by the employer, he/she may be

employed in the position he/she held when military service began.

Service of 91 days or more. The returning Employee will be reemployed in the position

he/she would have held except for the interruption for military service, or in a position of

like seniority, status, and pay, if qualified for that position. If the returning Employee

would have been promoted if he/she had continued in employment but cannot be

qualified for either that new position or an equivalent one despite the employer’s

reasonable efforts, he/she will be reemployed in the position he/she held when the period

of service began or in a position of like seniority, status, and pay.

Returning Employees who cannot be qualified for the job. If the returning Employee

cannot be qualified for the job he/she would have held or the position he/she formerly

held after the employer’s reasonable efforts, and his/her inability to qualify is not related

to a service-incurred or aggravated disability, he/she will be reemployed in any position

of lower status and pay for -which he/she is qualified, but with full seniority.

A disabled returning Employee whose disability was incurred or aggravated by military

service and who cannot perform the job he/she would have held even after reasonable

accommodation by the employer will be reemployed in: (1) any other position of

equivalent seniority, status, and pay for which he/she is qualified or could become

qualified through the employer’s reasonable efforts; or (2) in the nearest approximation to

an equivalent position consistent with the returning Employee’s circumstances.

SUBCHAPTER 7: RIGHT TO WORK

Section 23-701

Prohibited Conditions to Employment

No individual or entity may require an individual to, as a condition of employment or continued

employment with a Tribal Employer or Covered Employer to:

a) become or remain a member of a Labor Organization;

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b) pay dues, fees, assessments, or other charges of any kind or amount to a Labor Organization;

or

c) pay to a charity or third party any amount that is equivalent to or a pro rata part of dues, fees,

assessments, or other charges required of members of a Labor Organization.

Section 23-702

Prohibited Conduct

It is unlawful for a Tribal Employer or Covered Employer to deny employment to an individual

based upon failure to satisfy a condition that violates Section 23-701 of this Subchapter.

Section 23-703

Unlawful Contracts

A contract, agreement, understanding or practice, written or oral, expressed or implied between a

Tribal Employer or Covered Employer and a Labor Organization that violates Section 23-701 of

this Subchapter is unlawful and void.

SUBCHAPTER 8: TRIBAL EMPLOYMENT RIGHTS COMMISSION

Section 23-801

Creation

There is hereby created a Commission to be known as the Tribal Employment Rights

Commission, which shall be comprised of five members.

Section 23-802

Membership

Members of the Commission shall be appointed by the Tribal Council for a term of four years

according to such terms of compensation, if any, as determined by the Tribal Council. At least

three members of the Commission shall be KTTT Members. Any individual chosen to fill a

vacancy shall be appointed for the unexpired term of the member whom he/she shall succeed.

Members of the Commission shall be reimbursed for expenses in accordance with the policies

and procedures set forth in the KTTT Employee Handbook.

a) The Tribal Council shall have exclusive authority to appoint, direct, suspend or remove the

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Director of the Commission.

b) The Director shall have such administrative ability, education and training as the Tribal

Council determines. He/she may be removed by the Tribal Council for cause.

Section 23-803

Chairman

The Tribal Council shall designate one member to serve as Chairman of the Commission.

Section 23-804

Quorum

A vacancy in the Commission shall not impair the rights of the remaining members to exercise

all powers of the Commission and three members thereof shall constitute a quorum.

Section 23-805

Powers

The Commission shall have the power and authority to:

a) Receive, investigate, dismiss, and issue determinations as to any timely complaints filed as to

a Tribal Employer, Covered Employer or Labor Organization alleging any violation of this

Code;

b) Receive, investigate, and issue determinations as to any employment matter referred to the

Commission by the Tribal Council; and

c) Petition the Tribal Court for interim and permanent orders consistent with the

aforementioned powers. '

Section 23-806

Limitation on Powers

The Commission shall only receive and dismiss a complaint:

a) Which is not timely filed within the deadlines prescribed by this Code;

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b) By an Employee of a Tribal Employer who has not exhausted the grievance and appeals

process provided in, and within the time allowed by, the Tribal Employer’s employee

handbook; or

c) Which alleges a right not protected by this Code.

The Commission has no power or authority to investigate criminal conduct in violation of

Subchapter 14 of this Code.

Section 23-807

Assistance

The Commission may be assisted in the performance of any function under this Subchapter

by:

a) Legal counsel employed or contracted by KTTT;

b) Existing Employees of Tribal Employers, as approved by the Human Resources Director; or

c) New employment positions, as approved by the Tribal Council.

Only Commission members, however, may issue dismissals and determinations.

Section 23-808

Commission Member Conflicts

The Commission shall recuse a member from participating in an investigation and making a

determination if:

a) The Commission member is an immediate family member or significant other of the

Employee who filed a Complaint with the Commission; or

b) The Commission member was involved in the incident which gave rise to the Employee’s

Complaint.

Immediate family members include a spouse, parent, sibling, or child. Either the Employer or the

Employee may ask the Commission to recuse a Commission member if it is believed that either

of the above criteria under this Section is met. In the event a quorum cannot be established due to

more than one recusal of a Commission member, the Director, with the approval of the Tribal

Council, will select a temporary alternate Commission member.

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SUBCHAPTER 9: COMPLAINT PROCEDURES BEFORE TRIBAL EMPLOYMENT

RIGHTS COMMISSION

Section 23-901

Complaint Requirements

To be eligible for consideration by the Commission, a complaint as to a Tribal Employer,

Covered Employer or Labor Organization must:

a) Be in writing;

b) Be filed within sixty (60) days of the act or omission of the Tribal Employer, Covered

Employer or Labor Organization that is the subject of the complaint;

c) Provide the identity and current e-mail or mailing address of the Applicant or Employee

making the complaint;

d) Provide the date, place and nature of the complaint;

e) Provide the general factual basis for the complaint (a complainant need not marshal all of its

evidence in providing this general factual basis); and

f) .As to Employees of Tribal Employers only, set forth the date, manner and outcome of the

grievance and appeals process provided in the Tribal Employer’s employee handbook.

Section 23-902

Immediate Dismissal and Notification

Within ten (10) days of receipt of a complaint under Section 23-901, the Commission shall

determine whether the complaint shall be dismissed. The Commission shall dismiss a complaint

if:

a) The complaint is untimely under Section 23-901 of this Subchapter;

b) The complaint does not relate to a Tribal Employer, Covered Employer or Labor

Organization;

c) The Commission determines that the complaint fails to allege a violation of this Code;

d) As to Employees of Tribal Employers only, the Commission determines that the complaint

fails to allege facts sufficient to establish that the Employee exhausted the grievance and

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