Oneida Tribe of Indians of Wisconsin

Tribal code

Ask Donna

What actually matters in this document.

Text

BUSINESS COMMITTEE

Oneidas bringing several

hundred bags of corn to

Washington's starving army

at Valley Forge, after the

colonists had consistently

refused to aId them.

P.O. Box 365· Oneida, WI 54155

Telephone: 920-869-4364 • Fax: 920-869-4040

UGWA DEMOLUM YATEHE

Because of the help of

this Oneida Chief in

cementing a friendship

between the six nations

and the colony of

Pennsylvania, a new

nation, the United States

was made possible.

BC Resolution # 10-24-07-E

Adoption ofMilitary Service Employee Protection Act

WHEREAS, the Oneida Tribe of Indians of Wisconsin is a federally recognized Indian

government and a treaty tribe recognized by the laws of the United States of

America; and

WHEREAS, the Oneida General Tribal Council is the governing body of the Oneida Tribe of

Indians of Wisconsin; and

WHEREAS, the Oneida Business Committee has been delegated the authority ofArticle IV ofthe

Oneida Tribal Constitution by the Oneida General Tribal Council; and

WHEREAS, the Tribe believes that it is in the best interest of the Tribe and its employees to be a

competitive and model employer; and

WHEREAS, the Tribe wants to ensure that Tribal employees who serve in the uniformed services

are treated fairly and equally by the Tribe; and

WHEREAS, the current Tribal policy regarding military leave for the Tribe's employees is

incomplete; and

WHEREAS, a comprehensive law is needed to regulate the procedures for the employment and

re-employment of employees who are members ofthe uniformed services; and

WHEREAS, a public hearing was held on June 12, 2007 in accordance with the Administrative

Procedures Act (APA); and

WHEREAS, the current APA authorizes the Oneida Business Committee to enact legislation on

an emergency basis, to be in effect for a period of six (6) months, renewable for an

additional six (6) months; and

WHEREAS, the Oneida Business Committee finds that adopting amendments to the Personnel

Policies and Procedures to address the employment and re-employment ofemployees

who are members ofthe uniformed services is an emergency situation which requires

the immediate passage ofamendments to the Personnel Policies and Procedures; and

Resolution # 10-24-07-£

Page 2

WHEREAS, emergency adoption ofthe amendments to the Personnel Policies and Procedures is

•

necessary for the preservation of the public health, safety, or general welfare of the

reservation population, and that observance of the regular APA adoption

requirements for passage of laws would be contrary to public interest.

NOW THEREFORE BE IT RESOLVED, that the attached Military Service Employee Protection

Act is hereby adopted.

NOW THEREFORE BE IT FURTHER RESOLVED, that the following amendments to the

Personnel Policies and Procedures are hereby made on an emergency basis:

COMPENSATION AND BENEFITS

D.LEAVES

5. Military Leave

a. In addition to the following provisions, the Tribe's Military Service Employee Protection Act shall

govern Military Leave.

b. A Military Leave of Absence is afforded employees entering active duty without accumulation

of holiday, vacation or personal time during the period of leave. Any accumulated benefits prior to

leave will be maintained for the employee.

c. Time offfor.inactive duty training, examinations to determine fitness for duty, and funeral honors

duty shall be afforded to employees without the accumulation or loss of holiday, vacation or

personal time. An employee will receive pay from the Tribe for any hours work that the employee

. was required to miss due to reservist training.

1) Any pay received for performing any of the above duties shall be deducted from the

employee's pay.

•

CERTIFICATION

I, the undersigned, as Secretary of the Oneida Business Committee, hereby certify that the Oneida

Business Committee is composed of 9 members of whom 5 members constitute a quorum.-2

members were present at a meeting duly called, noticed and held on the 24th day of October ,2007;

that the foregoing resolution was duly adopted at such meeting by a vote of2.- members for; .JL

members against; and _0_ members not voting; and that said resolution has not been rescinded or

amended in any way.

*According to the By-Laws, Article I, Section 1, the Chair votes "only in the case of a tie."

•

Chapter 97

Military Service Employee Protection Act

97-7.

97-8.

Reemployment Positions

Benefits of Persons Absent from Employment for Military

Service

97-9. Health Plans

97-10. Retirement Plans

97-11. Enforcement of Employrnent or Reemployment Rights

97-1. Purpose and Policy

97-2. Adoption, Amendment, Repeal

97-3. Definitions

97-4. Charac.ter of Service

97-5. Discrimination Against Persons Who Serve in the Military

Prohibited

97-6. Reemployment Rights of Persons who Serve in the Military

97.1. Purpose and Policy.

97.1-1. Purpose. The purposes of this law are:

(a) to minimize the disruption to the lives of Tribal employees serving in the military as well

as to the Tribe by providing for the prompt reemployment of such persons upon completion

of such service; and

(b) to prohibit discrimination against people because they serve in the military.

97.1-2. Policy. It is the policy of the Oneida Tribe to reemploy persons who return from military

service in the same position, or a substantially similar position, ofemployment the person held prior

to leaving for military service.

97.2. Adoption, Amendment, Repeal.

97.2-1. This law was adopted by the Oneida Business Committee by resolution BC-1O-24-07-E.

97.2-2. This law may be amended pursuant to the procedures set out in the Oneida Administrative

Procedures Act by the Oneida Business Committee or the Oneida General Tribal Council.

97.2-3. Should a provision of this law or the application thereofto any person or circumstances be

held as invalid, such invalidity shall not affect other provisions of this law which are considered to

have legal force without the invalid portions.

97.2-4. Any law, policy, regulation, rule, resolution, or motion, or portion thereof, which directly

conflicts with the provisions of this law is hereby repealed to the extent that it is inconsistent with

or is contrary to this law.

97.2-5. This law is adopted under authority of the Constitution of the Oneida Tribe ofIndians of

Wisconsin.

97.3. Definitions.

97.3-1. This section shall govern the definitions of words and phrases used within this law. All

words not defined herein shall be used in their ordinary and everyday sense.

(a) "Area Manager" means the supervisor ofthe supervisor of an employee who is protected

under this law, or, in other words, two levels of supervision in the chain of command above

the protected employee, or an individual designated to be the Area Manager by the Division

Director (or, in divisions where there is no director, the General Manager) and approved by the

Human Resources Department Manager (or designee).

(b) "Benefit" means any advantage, profit, privilege, gain, or interest (other than wages or

salary) that accrues by reason of an employment agreement or an employer policy, plan, or

practice and includes rights and benefits under a retirement plan, a health plan, insurance

coverage, incentives, unemployment benefits, vacations, and the opportunity to select work

97-1

hours or location of employment.

(d) "Health plan" means an insurance policy or contract or other arrangement under which

health services for individuals are provided or the expenses of such services are paid.

(e) "Military" means the Armed Forces, the Army National Guard and the Air National Guard

when engaged in active duty for training, inactive duty training, or full-time National Guard

duty, the commissioned corps ofthe Public Health Service, and any other category of persons

designated by the President in time of war or national emergency.

(f) "Qualified," with respect to an employment position, means having the ability to perform

the essential tasks of the position.

(g) "Reasonable efforts", in the case of actions required of the Tribe under this law, means

actions, including providing training, that do not place an undue hardship on the Tribe.

(h) "Seniority" means longevity in employment together with any benefits of employment

which accrue with, or are determined by, longevity in employment.

(i) "Service" or "service in the military" means the performance of duty on a voluntary or

involuntary basis in a branch of the military and includes active duty, active duty for training,

initial active duty for training, inactive duty training, full-time National Guard duty, the time

a person is absent from a position of employment for the purpose of an examination to

determine the fitness ofthe person to perform any such duty, and the period for which a person

is absent from employment for the purpose of performing funeral honors duty.

G) "Tribe" means the Oneida Tribe ofIndians ofWisconsin as employer through its divisions,

departments, programs, enterprises or other subdivisions of the Tribe.

(k) "Undue hardship", in the case of actions taken by the Tribe, means actions requiring

significant difficulty or expense, when considered in light of:

(1) the nature and cost of the action needed under this Law;

(2) the overall financial resources ofthe department involved in the proyision ofthe

action; the number of persons employed within the department; the effect on

expenses and resources, or the overall impact of such action upon the operation of

the department;

(3) the financial resources of the Tribe; the size of the Tribe with respect to how

many employees and departments it has; and

(4) the type of operation(s) of the Tribe, including the composition, structure, and

functions of the work force of its departments.

97.4. Character of Service.

97.4-1. Those who serve in the military are ineligible to receive benefits under this law if they:

(a) receive a dishonorable discharge or a bad conduct discharge; or

(b) receive a dismissal from a general court-martial, or by order of the President; or

(1) absent without authority for at least three months; or

(2) sentenced by a court-martial to confinement for more than six (6) months and

have served at least six (6) months; or

(3) sentenced to confinement in a penitentiary or correctional institution after having

been found guilty of an offense by a court other than a court-martial or other military

97-2

•

court, and whose sentence has become final.

97.5. Discrimination Against Persons Who Serve in the Military Prohibited.

97.5-1. The Tribe shall not deny employment, reemployment, retention in employment, promotion,

or any benefit of employment on the basis of a person's membership, application for membership,

performance of service, application for service, or obligation to perform service in the military.

97.5-2. The Tribe may not discriminate in employment against or take any adverse employment

action against anyone because such person has exercised a right or taken an action to enforce a

protection afforded under this law, has testified or otherwise made a statement in or in connection

with any proceeding under this law, or has participated in an investigation under this law.

97.5-3. The Tribe shall not be considered to have engaged in a prohibited action ifthe same action

would have been taken regardless of an employee's military status.

97.5-4. Sections 97.5-1 and 97.5-2 shall apply to any position of employment, including a position

that is described in 97.6-4(c).

97.6. Reemployment Rights of Persons Who Serve in the Military.

97.6-1. Any person who takes a leave of absence from an employment position to serve in the

military shall be entitled to the reemployment benefits and other employment benefits ofthis law if:

(a) the Tribe receives advance written notice of such service as soon as practicable after the

employee receives notice;

(b) the cumulative length ofthe absence and of all previous absences with the Tribe by reason

of service in the military does not exceed five (5) years; and

97.6-2. No notice is required under 97.6-1 (a) ifit is precluded by military necessity or, under all of

the relevant circumstances, the giving of notice is otherwise impossible or unreasonable.

97.6-3. When calculating the length of absence under 97.6-1(b) the Tribe shall not include any

servIce:

(a) that is required, beyond five (5) years, to complete an initial period of obligated service;

(b) during which such person was unable to obtain orders releasing such person from a period

of service in the military before the expiration of such five (5) year period and such inability

was through no fault of such person;

members;

(d) performed by a member of the military service who is:

(1) ordered to or retained on active duty involuntarily during domestic emergency

or national security related situations;

(2) ordered to or retained on active duty under any provision oflaw because ofa war

or national emergency declared by the President ofthe United States or the Congress;

(3) ordered to active duty in support of an "operational mission", without his or her

consent;

(4) ordered to active duty in support of a "critical mission or requirement" in times

other than war or national emergency and when no involuntary call up is in effect; or

(5) called into Federal service by the President as a member ofthe National Guard

to suppress an insurrection, repel an invasion, or execute the laws of the United

97-3

States.

97.6-4. Tribe's Right to Not Reemploy. The Tribe is not required to reemploy a person under this

law if:

(a) circumstances have so changed as to make such reemployment impossible or unreasonable;

(b) in the case of a person entitled to reemployment under 97.7-1(c), (d), or 97.7-2, such

employment would impose an undue hardship on the Tribe; or

seasonal, temporary, limited term) and there is no reasonable expectation that such

employment will continue indefinitely or for a significant period.

(d) the Tribe shall have the burden of proving the impossibility or unreasonableness, undue

hardship, or the brief or nonrecurrent nature of the employment.

97.6-5. Except as provided under 97.6-6, an employee referred to in 97.6-1 shall notify the Tribe of

the person's intent to return to a position of employment within ninety (90) days of separation of

active duty service and within thirty-one (31) days from completion of training for reservists. The

Tribe shall, as soon as practicable after receiving notice, make arrangements with the employee for

an employment return date.

97.6-6. A person who is hospitalized for, or recovering from, an illness or injury incurred in, or

aggravated during, the performance of service in the military shall, at the end of the period that is

necessary for the person to recover from such illness or injury notify the Tribe ofthe person's intent

to return to a position ofemployment. Such period ofrecovery may not exceed two (2) years, unless

the minimum time required to accommodate the circumstances beyond such person's control is

longer than two years, making reporting within the period specified impossible or unreasonable.

97.6-7. A person who fails to report for reemployment within the appropriate period shall not

automatically forfeit such person's entitlement to the benefits referred to in section 97.6-1 but shall

be subjectto the Tribe's policies and procedures pertaining to discipline with respectto absence from

scheduled work.

97.6-8. A person who has notified the Tribe of the person's intent to return to a position of

employment in accordance with section 97.6-5 shall, upon the request of the Tribe, provide

documentation to establish that:

(a) the notification is timely;

(b) the time limits in section 97.6-1 (b) have not been exceeded, except as permitted under

section 97.6-3; and

97.6-9. The timing, frequency, and duration of a person's training or service, or the nature of such

training or service (including voluntary service) in the military, shall not be a basis for denying

protection ofthis law ifthe service does not exceed the limitations set forth under section 97.6-3 and

the notice and notification requirements established in this section are met.

97.6-10. The Human Resources Department shall inform employees of their rights, benefits, and

obligations under this law and shall provide assistance to employees with respect to the employment

and reemployment benefits to which they are entitled under this law.

97.7. Reemployment Positions.

97.7-1. A person entitled to reemployment under section 97.6 shall be promptly reemployed in a

position of employment in accordance with the following order of priority:

97-4

•

(a) In the case of a person whose period of service in the military was for less than ninety-one

(91) days:

(1) in the position which the person would have been employed if the continuous

employment of such person had not been interrupted by such service, the duties of

which the person is qualified to perform; or

(2) in the position which the person was employed on the date ofthe commencement

ofthe service in the military, only if the person is not qualified to perform the duties

of the position referred to under section 97.7-1(a)(1) after reasonable efforts by the

Tribe to qualify the person.

(b) In the case of a person whose period of service in the military was for more than ninety

(90) days:

(1) in the position which the person would have been employed if the continuous

employment of such person had not been interrupted by such service, or a position

of like seniority, status and pay, the duties of which the person is qualified to

perform; or

(2) in the position which the person was employed on the date ofthe commencement

of the service, or a position oflike seniority, status and pay, the duties of which the

person is qualified to perform, only ifthe person is not qualified to perform the duties

of the position referred to under section 97.7-1(b)(1) after reasonable efforts by the

Tribe to qualify the person.

after reasonable efforts by the Tribe to accommodate the disability, is not qualified due to such

disability to be employed in the position ofemployment in which the person would have been

employed ifthe continuous employment ofsuch person with the Tribe had not been interrupted

by such service:

(1) in any other position which is equivalent in seniority, status, and pay, the duties

of which the person is qualified to perform or can become qualified to perform with

reasonable efforts by the Tribe; or

(2) in a position which is the nearest approximation to a position referred to in (1)

in terms of seniority, status, and pay consistent with such person's case.

(d) In the case ofaperson who is not qualified to become reemployed under 97.7-1(a) - (c) and

cannot become qualified, even with reasonable efforts by the Tribe, in any other position which

is the nearest approximation to a position which such person is qualified to perform, with full

seniority.

97.7-2. Iftwo or more persons are entitled to reemployment in the same position and more than one

of them has reported for reemployment, the person who left the position first shall have the prior

right to reemployment in that position.

97.7-3. A person entitled to reemployment who is not reemployed because of section 97.7-2 shall

be entitled to reemployment in any other position referred to in section 97.7-1, remaining consistent

with the circumstances of such person's case, in the order of priority set out in the appropriate

section, with full seniority.

97.8. Benefits of Persons Absent from Employment for Military Service.

97.8-1. A person who is reemployed under this law is entitled to the seniority and other benefits

97-5

determined by seniority that the person had on the date of the commencement of service in the

military plus the additional seniority and benefits that such person would have attained ifthe person

had remained continuously employed.

97.8-2. A person who is absent from a position of employment by reason of service in the military

shall be:

(a) deemed to be on a leave of absence while performing such service; and

(b) entitled to other benefits not determined by seniority as are generally provided by the Tribe

to employees having similar seniority, status, and pay who are on leave of absence under a

contract, agreement, policy, practice, or plan in effect at the commencement of such service

or established while such person performs such service.

97.8-3. A person who

(a) is absent from an employment position because of service in the military, and

(b) knowingly provides written notice of intent not to return to a position of employment after

service in the military, is not entitled to benefits under this section.

The Tribe has the burden of proving that a person knowingly provided written notice of intent not

to return to a position after service in the military and was aware of the specific benefits to be lost.

97.8-4. A person on leave of absence for military service shall not be entitled to any benefits to

which the person would not otherwise be entitled ifthe person had remained continuously employed.

97.8-5. A person may be required to pay the Tribe's cost, if any, of any funded benefit continued

to the extent other employees on leave of absence are so required.

97.8-6. A person who is reemployed under this law shall only be terminated in accordance with the

Oneida Personnel Policies and Procedures.

97.8-7. Any person whose employment is interrupted by military service shall be permitted to use,

during such period of service, any vacation or personal time accrued by the person before the

commencement of such service. The Tribe may not require any person to use vacation or personal

time during such period of service.

97.8-8. The Tribe shall grant an employee who is a reserve member an unpaid temporary leave of

absence in order to perform funeral honors duty. Employees may use vacation or personal time to

perform funeral honors duty if eligible.

97.9. Health Plans.

97.9-1. Ifa person, or a person's dependents, has coverage under a health plan through the Tribe and

such person is on a leave ofabsence for military service, the plan shall provide that the coverage may

be continued. The maximum period of coverage of a person and the person's dependents shall be

the lesser of:

(a) the eighteen (18) month period beginning on the date on which the person's absence

begins; or

(b) the day after the date on which the person fails to return to a position of employment, as

determined under section 97.6-5.

97.9-2. A person who elects to continue health-plan coverage may be required to pay not more than

the amount paid by other employees who take a leave of absence, except that in the case of a person

who serves in the military for less than thirty-one (31) days, such person may not be required to pay

more than the employee share, if any, for such coverage.

97.9-3. Ifa person's health plan is terminated by reason ofmilitary service, an exclusion or waiting

97-6

•

period may not be imposed in connection with the reinstatement of such coverage upon

reemployment if an exclusion or waiting period would not have been imposed had coverage of such

person not been terminated as a result of such service.

(a) This shall apply to the person who is reemployed and to his or her dependents who are

covered under the plan with the reinstatement of coverage of such person.

(b) This shall not apply to the coverage of any illness or injury incurred in, or aggravated

during, performance of service in the military.

97.10. Retirement and Pension Plans.

97.10-1. Each period served by a person in the military shall, upon reemployment, be deemed to

constitute service for the purpose of determining the nonforfeitability of the person's accrued

benefits and for the purpose of determining the accrual of benefits under a retirement or pension

plan.

(a) When a person is absent from a position ofemployment for more than ninety (90) days and

is reemployed, the Tribe may require documentation before treating the person as not having

incurred a break in service for retirement or pension plan purposes under this section.

97.10-2. A person reemployed under this law shall be entitled to accrued benefits that are contingent

on the making of, or derived from, employee contributions or elective deferrals if the person makes

payment to a retirement or pension plan with respect to such contributions or deferrals. If the

employee makes up the contributions, the Tribe shall make up any required matching contributions.

No such payment may exceed the amount the person would have been permitted or required to

contribute had the person remained continuously employed by the Tribe throughout the period of

service. Any payment to a retirement or pension plan shall be made during the period beginning with

the date of reemployment and whose duration is three (3) times the period of the person's service

in the military, such payment period not to exceed five (5) years.

97.10-3. For purposes of computing the Tribe's liability or the employee's contributions, the

employee's compensation during the period of service shall be computed:

(a) at the rate the employee would have received but for the period of service;

(b) in the case that the determination of such rate is not reasonably certain, on the basis ofthe

employee's average rate of compensation during the twelve (12) month period immediately

preceding such period (or, if shorter, the period of employment immediately preceding such

period).

97.10-4. Pension Plan. When a person who participates in a pension plan is reemployed after a

period of military service, the Tribe shall be liable to the pension plan for funding any obligation to

provide the benefits the employee would have received had they not taken a leave of absence. The

Tribe shall allocate the amount of the Tribal contribution for the person in the same manner and to

the same extent the allocation occurred for other employees eligible for the pension plan during the

period ofservice. For purposes ofdetermining the amount ofsuch liability and any obligation ofthe

pension plan, earnings and forfeitures shall not be included.

97.11. Enforcement of Employment or Reemployment Rights.

97.11.1. The Tribe shall notify, in writing, any person who has been denied employment,

reemployment, or benefits under this law.

97.11-2. A person may file a complaint whenever such person claims that:

97-7

(a) he or she is entitled to employment or reemployment rights or benefits with respect to

employment by the Tribe; or

(b) the Tribe has failed or refused to comply with the provisions of this law.

97.11-3. Such complaint shall be in writing, contain a summary ofthe allegations that form the basis

for the complaint and be filed with the person's area manager and the Oneida Human Resources

Manager (or designee) within ten (10) working days from the day the person received a denial of

employment and/or benefits by the Tribe.

97.11-4. Ifthe area manager determines that the action alleged in such complaint occurred, the area

manager shall attempt to resolve the complaint by making reasonable efforts to ensure that the person

or entity named in the complaint complies with the provisions of this law.

97.11-5. Ifthe efforts ofthe area manager do not resolve the complaint within ten (10) working days

from the receipt ofthe employee's complaint, the complainant shall be notified ofthe results of the

area manager's investigation and the complainant's entitlement to refer the complaint to the Oneida

Personnel Commission. One extension of no more than five (5) working days may be requested of

and granted by the Oneida Human Resources Manager (or designee) at his or her discretion.

97.11-6. If an employee appeals the area manager's decision, the appeal must be filed with the

Oneida Personnel Commission within ten (10) working days of the employee's receipt of the Area

Manager's decision. The Commission shall notify the Human Resources Manager (or designee)

within one (1) business day when an employee files an appeal.

97.11-7. Remedies. In any action relating to this law, relief may be awarded as follows:

(a) Require the Tribe to comply with the provisions of this law; and/or

(b) Require the Tribe to compensate the person for any loss of wages or benefits suffered by

reason of the Tribe's failure to comply with the provisions of this law.

97.11-8. Any compensation awarded shall be in addition to, and shall not diminish, any ofthe other

benefits provided for under this law.

•

End

Adopted - BC-1O-24-07-E

97-8

•

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.