Oneida Business Committee (2021)

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Oneida Nation

Oneida Business Committee

Legislative Operating Committee

PO Box 365 • Oneida, WI 54155-0365

Oneida-nsn.gov

ONEIDA

LEGISLATIVE OPERATING COMMITTEE MEETING AGENDA

Business Committee Conference Room - 2nd Floor Norbert Hill Center

October 6, 2021

9:00 a.m.

This Legislative Operating Committee meeting will be closed to the public in accordance with Oneida

Business Committee resolution BC-08-03-21-A, Setting Public Gathering Guidelines During Public

Health State of Emergency - COVID-19.

Call to Order and Approval of the Agenda

II.

Minutes to be Approved

1. September 15, 2021 LOC Meeting Minutes (pg. 2)

III.

Current Business

1. Local Land Use Regulation Reimbursement Policy Repeal (pg. 4)

2. Furlough Law Amendments (pg. 7)

IV.

New Submissions

Additions

VI.

Administrative Updates

VII.

Executive Session

VIII. Recess/Adjourn

A good mind. A good heart. A strong fire.

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Oneida Nation

Oneida Business Committee

Legislative Operating Committee

PO Box 365 • Oneida, WI 54155-0365

Oneida-nsn.gov

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ONEIDA

LEGISLATIVE OPERATING COMMITTEE MEETING MINUTES

Oneida Business Committee Conference Room-2nd Floor Norbert Hill Center

September 15, 2021

9:00 a.m.

Present: David P. Jordan, Marie Summers, Kirby Metoxen, Daniel Guzman King, Jennifer

Webster

Others Present: Clorissa N. Santiago, Carmen Vanlanen, Kristal Hill, Brooke Doxtator, Bonnie

Pigman, Denise Vigue, Justin Nishimoto (Microsoft Teams), Barbara Webster (Microsoft Teams),

Michelle Myers (Microsoft Teams), Amy Spears (Microsoft Teams), Rhiannon Metoxen

(Microsoft Teams), Cora Bell (Microsoft Teams), Todd Vandenheuvel (Microsoft Teams), Jennifer

Berg Hargrove (Microsoft Teams)

Call to Order and Approval of the Agenda

David P. Jordan called the September 15, 2021, Legislative Operating Committee meeting

to order at 9:00 a.m.

Motion by Marie Summers to adopt the agenda as is; seconded by Jennifer Webster.

Motion carried unanimously.

II.

Minutes to be Approved

1. September 1, 2021 LOC Meeting Minutes

Motion by Kirby Metoxen to approve the September 1, 2021 LOC meeting minutes and

forward to the Oneida Business Committee; seconded by Marie Summers. Motion carried

unanimously.

III.

Current Business

1. Oneida General Welfare Law Amendments

Motion by Kirby Metoxen to approve the legislative analysis for the Oneida General

Welfare law; seconded by Jennifer Webster. Motion carried unanimously.

Motion by Marie Summers to approve the approve the Oneida General Welfare law public

comment period notice and forward the Oneida General Welfare law to a public comment

period to be held open until October 13, 2021; seconded by Jennifer Webster. Motion

carried unanimously.

IV.

New Submissions

1. Children’s Code Amendments, Guardianship and Adoption Law

Motion by Jennifer Webster to deny the request to add the Children’s Code Amendments,

and the Guardianship law and Adoption law to the Active Files List noting that the

Children’s Code Amendments and the Guardianship law are already currently on the

Active Files List; seconded by Marie Summers. Motion carried unanimously.

Additions

VI.

Administrative Items

A good mind. A good heart. A strong fire.

Legislative Operating Committee Meeting Minutes of September 15, 2021

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ONEIDA

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VII.

Executive Session

VIII. Adjourn

Motion by Marie Summers to adjourn at 9:28 a.m.; seconded by Daniel Guzman King.

Motion carried unanimously.

Legislative Operating Committee Meeting Minutes of September 15, 2021

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Oneida Nation

Oneida Business Committee

Legislative Operating Committee

=DODDOD=

PO Box 365 • Oneida, WI 54155-0365

ONEIDA

Oneida-nsn.gov

Legislative Operating Committee

October 6, 2021

Local Land Use Regulation

Reimbursement Policy Repeal

Submission Date: 7/7/21

Public Meeting: Due to the COVID-19 pandemic, public

LOC Sponsor: Kirby Metoxen

Emergency Enacted: n/a

meetings were suspended by declaration of the Nation’s COVID19 Core Decision Making Team. A public comment period was

still offered in accordance with the Legislative Procedures Act

and held open until 9/16/21.

Summary:

This item was added to the Active Files List on July 7, 2021. The Local Land Use

Regulation Reimbursement Policy directed members of the Nation and non-members subject to the

Nation’s regulation to obtain permits from a municipality under protest if the municipality asserts it has

jurisdiction – the cost of the permits would then be reimbursed by the Nation. Based on the Big Apple Fest

litigation decision that confirmed municipalities have very limited jurisdiction over the Nation and

members of the Nation on the Reservation, the Oneida Law Office has advised that Tribal business units

can move forward with projects with permits from the Nation only. Due to the Big Apple Fest case, the

policy considerations supporting the Local Land Use Regulation Reimbursement Policy no longer exist,

and therefore a repeal of this law is being sought.

7/7/21 LOC:

Motion by Marie Summers to add the Land Use Regulation Reimbursement Policy repeal to

the Active Files List with Kirby Metoxen as the sponsor; seconded by Kirby Metoxen. Motion

carried unanimously.

8/18/21 LOC: Motion by Kirby Metoxen to approve the Local Land Use Regulation Reimbursement Policy

Repeal legislative analysis and public meeting notice, and tentatively schedule a public

meeting for the repeal of the Local Land Use Regulation Reimbursement Policy to be held on

September 9, 2021; seconded by Marie Summers. Daniel Guzman King abstained. Motion

carried.

9/13/21:

Work Meeting. Present: David P. Jordan, Daniel Guzman King, Clorissa N. Santiago, Kristen

Hooker, Carmen Vanlanen, Melinda J. Danforth, Tana Aguirre. This was a work meeting held

through Microsoft Teams. The purpose of this work meeting was to discuss with

Intergovernmental Affairs and Communications their review of the potential repeal of this

law, and input regarding the effects of this repeal on political strategy.

9/16/21:

Public Comment Period Closed. No written comments were received during the public

comment period.

Next Steps:

 Approve the public comment review memorandum.

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Oneida Nation

=DODDOD=

PO Box 365 • Oneida, WI 54115-0365

ONEIDA

Oneida-nsn.gov

TO:

FROM:

DATE:

RE:

Oneida Business Committee

Legislative Operating Committee

Legislative Operating Committee (LOC)

Clorissa N. Santiago, Legislative Reference Office, Senior Staff Attorney

October 6, 2021

Local Land Use Regulation Reimbursement Policy Repeal: Public Comment

Review

On August 18, 2021, the Legislative Operating Committee approved a tentative public meeting

date for the proposed repeal of the Local Land Use Regulation Reimbursement Policy (“the

Policy”) to be held on September 9, 2021, with a public comment period to be held open until

September 16, 2021. A public meeting for the repeal of the Policy was not held due to the COVID19 pandemic, but a public comment period was still held open.

On March 12, 2020, Chairman Tehassi Hill signed a “Declaration of Public Health State of

Emergency” regarding COVID-19 which declared a Public Health State of Emergency for the

Nation until April 12, 2020, and set into place the necessary authority for action to be taken and

allowed the Nation to seek reimbursement of emergency management actions that may result in

unexpected expenses. The Public Health State of Emergency has since been extended until

November 25, 2021, by the Oneida Business Committee through the adoption of resolutions BC03-28-20-A, BC-05-06-20-A, BC-06-10-20-A, BC-07-08-20-A, BC-08-06-20-A, BC-09-09-20A, BC-10-08-20-A, BC-11-10-20-A, BC-12-09-20-D, BC-01-07-21-A, BC-02-10-21-A, BC-0310-21-D, BC-05-12-21-A, BC-06-23-21-B, BC-07-28-21-N, and BC-09-22-21-A.

On March 27, 2020, the Nation’s COVID-19 Core Decision Making Team issued a “Suspension

of Public Meetings under the Legislative Procedures Act” declaration which suspended the

Legislative Procedures Act's requirement to hold a public meeting during the public comment

period, but allowed members of the community to still participate in the legislative process by

submitting written comments, questions, data, or input on proposed legislation to the Legislative

Operating Committee via e-mail during the public comment period.

On August 3, 2021, the Oneida Business Committee adopted resolution BC-08-03-21-A, Setting

Public Gathering Guidelines during Public Health State of Emergency—COVID-19, which

prohibits indoor and outdoor public gatherings when the COVID-19 infection rates within Brown

or Outagamie Counties exceed “Low” as identified by the Wisconsin Department of Health

Services.

In accordance with resolution BC-08-03-21-A, the public meeting was not held due to the infection

rates within Brown and Outagamie Counties exceeding “Low” as identified by the Wisconsin

Department of Health Services. The public comment period for the repeal of the Policy remained

open and the Nation’s COVID-19 Team’s “Suspension of Public Meetings under the Legislative

Procedures Act” declaration took effect.

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Members of the community were provided an opportunity to provide written submissions of

comments or questions to the Legislative Operating Committee through e-mail until September

16, 2021. No written comments were received for the proposed repeal of the Policy.

A good mind. A good heart. A strong fire.

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ONEIDA

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Oneida Nation

Oneida Business Committee

Legislative Operating Committee

PO Box 365 • Oneida, WI 54155-0365

Oneida-nsn.gov

=DODDDD=

ONEIDA

Legislative Operating Committee

October 6, 2021

Amendments to the Furlough Law

Submission Date: 10/7/2020

Public Meetings: n/a

Emergency Enacted: n/a

Expires: n/a

LOC Sponsor: Marie Summers

Summary: This item was added to the Active Files List on October 7, 2020 per the request of

the Legislative Operating Committee to develop amendments to the Nation’s Furlough law to

incorporate Indian preference into the selection/recall process and to provide clarity regarding

certain other furlough procedures that were flagged during the COVID-19 pandemic.

10/7/20 LOC: Motion by Jennifer Webster to add the Furlough Law Amendments to the Active Files List

with Marie Summers as the sponsor; seconded by Daniel Guzman King. Motion carried

unanimously.

10/22/20:

Work Meeting. Present: Marie Summers and Kristen Hooker. This was a work meeting held

through Microsoft Teams. The purpose of this work meeting was to discuss the basis for the

Councilwoman’s request to have amendments to the Furlough law added to the Active Files

List. The next step is for the drafting attorney to schedule a meeting with the workgroup that

was created during this meeting to discuss the Councilwoman’s concerns, as well as any other

concerns/suggestions that the workgroup may have.

11/13/20:

Work Meeting. Present: Eric McLester, Barbara Kolitsch, Geraldine Danforth, Kristen

Hooker. This was a work meeting held through Microsoft Teams. The purpose of this work

meeting was to have a general discussion on needed amendments/updates to the Furlough law.

The drafting attorney went through the law line-by-line with the workgroup to flag where they

believed changes were needed. The next step is for the drafting attorney to update the draft

based on the discussion and schedule a follow-up work meeting with the workgroup for review

and further discussion/revision.

1/26/21:

Work Meeting. Present: Eric McLester, Barbara Kolitsch, Geraldine Danforth, Matt Denny,

Wendy Alvarez, Kristen Hooker. This was a work meeting held through Microsoft Teams.

The purpose of this work meeting was to go through the updated draft of the Furlough law

amendments to discuss any areas of concern or in need of further revision before bringing to

the Legislative Operating Committee for review/consideration.

2/3/21:

Work Meeting. Present: David Jordan, Marie Summers, Daniel Guzman-King, Jennifer

Webster, Rhiannon Metoxen, Kristal Hill, Clorissa Santiago, Kristen Hooker. This was a work

meeting held through Microsoft Teams. The purpose of the work meeting was to update the

LOC on discussions had thus far with the workgroup regarding possible amendments to the

Furlough law. The drafting attorney went through the draft line-by-line with the LOC to highlight where the workgroup was proposing amendments and to have the LOC flag additional

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changes it deems necessary. The next steps are for the drafting attorney to: (1) create a bulletpoint of the initial policy decisions the LOC must make before detailed amendments can be

developed in alignment therewith; and (2) schedule a follow-up meeting with the workgroup

and LOC to afford the LOC an opportunity to hear from the workgroup before making said

policy decisions.

2/17/21:

Work Meeting. Present: David Jordan, Jennifer Webster, Kirby Metoxen, Marie Summers,

Rhiannon Metoxen, Kristal Hill, Kristen Hooker, Matthew Denny, Lucy Neville, Wendy

Alvarez, Geraldine Danforth, Eric McLester (left early). This was a work meeting held

through Microsoft Teams. The purpose of the work meeting was to give LOC an opportunity

to hear from the workgroup regarding amendments to the Furlough law. The goal of the

meeting was to provide the LOC enough information to make certain policy decisions that are

necessary to develop amendments to the law in alignment therewith. The next step is for the

drafting attorney to compile the information/suggestions provided during the meeting and to

present the compilation to the LOC at a future work meeting for further directive.

2/25/21:

Work Meeting. Present: Marie Summers, Kirby Metoxen, Daniel Guzman-King, Jennifer

Webster, Kristal Hill, Clorissa Santiago, Kristen Hooker. This was a work meeting held

through Microsoft Teams. This work meeting was held in follow-up to the February 17, 2021

work meeting the LOC had with the Workgroup regarding possible amendments to the

Furlough law. The purpose of this work meeting was to get directive from the LOC regarding

the policy questions that were discussed on February 17th. The next step is for the drafting

attorney to update the draft amendments to be consistent with the LOC’s directive and to bring

the updated draft back to a future LOC meeting for review and further revision.

4/9/21:

Work Meeting. Present: David Jordan, Kirby Metoxen, Jennifer Webster, Marie Summers,

Daniel Guzman-King, Rhiannon Metoxen, Kristal Hill, Kristen Hooker. This was a work

meeting held through Microsoft Teams. The purpose of this work meeting was to start going

through the updated draft amendments to the Furlough law with the LOC.

4/13/21:

Work Meeting. Present: David Jordan, Kirby Metoxen, Marie Summers, Jennifer Webster,

Daniel Guzman-King, Rhiannon Metoxen, Kristen Hooker. This was a work meeting held

through Microsoft Teams. The purpose of this meeting was to finish going through the initial

draft amendments to the Furlough law before updating the draft for the LOC’s final review

and consideration. The next step will be for the LRO attorney to update the draft based on the

LOC’s decisions/suggestions and to schedule a final meeting with the LOC to review the

updated draft before sending it to a workgroup meeting for review and comment.

6/10/21:

Work Meeting. Present: Kirby Metoxen, Marie Summers, Daniel Guzman-King, Jennifer

Webster, Rhiannon Metoxen, Kristal Hill, Clorissa Santiago, Kristen Hooker. This was a work

meeting held through Microsoft Teams. The purpose of this work meeting was to go through

the updated draft amendments with the LOC before sending it to the workgroup for review

and comment. The next step is for the LRO attorney to update the draft based on the comments

and suggestions from the LOC and to then schedule a meeting with the workgroup to provide

an opportunity for them to comment and make suggestions for the LOC to consider before

approving the draft for the public comment portion of the legislative process.

7/8/21:

Work Meeting. Present: Barbara Kolitsch, Geraldine Danforth, Wendy Alvarez, Matthew

Denny, James Petitjean (left early), Lucy Neville, Jessica Vandekamp, Kristen Hooker. This

was a work meeting held through Microsoft Teams. The purpose of the meeting was to review

the draft Furlough law amendments with the workgroup to see whether the members had any

questions, concerns or suggested changes they wanted the LOC to consider. The next step is

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for the LRO attorney to update the draft with the workgroup’s suggestions and bring it back

to a LOC work meeting for consideration and possible approval to move forward with the

public comment portion of the legislative process.

7/21/21:

Work Meeting. Present: David Jordan, Marie Summers, Jennifer Webster, Justin Nishimoto,

Kristen Hooker. This was a work meeting held through Microsoft Teams. The purpose of the

work meeting was to go through the final draft of the Furlough law amendments and have the

LOC consider the comments/suggestions from the workgroup meeting of July 8, 2021. The

next steps are for the drafting attorney to: (1) update the draft based on the LOC’s decisions

during the meeting; (2) draft a legislative analysis on the amendments to the Furlough law;

(3) draft the materials for the public meeting notice packet for the LOC to review during its

next work meeting; and (4) add the public notice packet for the Furlough law amendments to

the next LOC agenda for consideration and possible approval.

8/4/21 LOC:

Motion by Marie Summers to approve the Furlough law amendments draft and direct that a

legislative analysis be prepared for consideration at the next LOC meeting; seconded by Kirby

Metoxen. Motion carried unanimously.

8/18/21 LOC: Motion by Kirby Metoxen to approve the draft amendments to the Furlough law and

legislative analysis and defer to a work meeting; Seconded by Daniel Guzman-King. Motion

carried unanimously.

8/18/21:

Work Meeting. Present: David Jordan, Marie Summers, Kirby Metoxen, Daniel GuzmanKing, Kristen Hooker, Clorissa Santiago, Kristal Hill, Rhiannon Metoxen. This was a work

meeting held through Microsoft Teams. The purpose of the work meeting was to go through

the legislative analysis with the LOC and to have the LOC make policy decisions regarding

the items listed under the “Other Considerations” section of the analysis. This next step is to

have the Legislative Reference Office attorney put together numerous diagrams to assist the

LOC with making said policy decisions during a follow-up work meeting.

8/26/21:

Work Meeting. Present: David Jordan, Marie Summers, Jennifer Webster, Daniel GuzmanKing, Kristen Hooker, Clorissa Santiago, Kristen Hooker, Carmen VanLanen, Kristal Hill.

This was a work meeting held through Microsoft Teams. The purpose of the work meeting

was to finish going through the legislative analysis with the LOC and to have them make

certain policy decisions regarding portions of the section governing placement of employees

in furlough status that were flagged in the “Consideration” section of the analysis. The next

steps are for the drafting attorney to update the legislative analysis, along with the draft, to

coincide with the LOC’s decisions at the meeting and to prepare the public notice materials

for approval of the LOC at an upcoming LOC meeting.

9/23/21:

Work Meeting. Present: David Jordan, Daniel Guzman-King, Jennifer Webster, Kirby

Metoxen, Clorissa Santiago, Kristen Hooker, Carmen Vanlanen, Kristal Hill, Rhiannon

Metoxen. This was a work meeting held through Microsoft Teams. The purpose of the work

meeting was to go through the changes that were made to the draft amendments following the

LOC work session of August 26, 2021. The next step is for the drafting attorney to prepare

the public meeting notice packet on the amendments to the Furlough law for inclusion on the

next LOC meeting agenda.

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Next Steps:

▪ Approve the Furlough law amendments public comment period packet and forward the

Furlough law amendments to a public comment period to be held open until November 11,

2021.

A good mind. A good heart. A strong fire.

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Title 2. Employment – Chapter 205

[Oneida Language]

[Translation]

FURLOUGH

205.1. Purpose and Policy

205.2. Adoption, Amendment, Repeal

205.3. Definitions

205.4. Application

205.5. Furlough Implementation Plan

205.6. Furlough Implementation

205.7. Placing Employees in Furlough Status

205.8. Furloughed Employees

205.9. Recall of Furloughed Employees

205.10. Direct Report Level and Supervisor Responsibilities

205.11. Appeal

205.1. Purpose and Policy

205.1-1. Purpose. The purpose of this law is to:

(a) Enable the Nation to implement a furlough program in response to an interruption of

governmental revenues or operations, insufficient treasury funds or other emergencies/

unplanned events as determined by the Oneida Business Committee in accordance with

this law;

(b) Establish a consistent and equitable process for implementation of a furlough program;

and

in accordance with this law.

205.1-2. Policy. It is the policy of the Nation to have consistent and standard procedures to

address events and/or incidents that impact employees of the Nation. It is further the policy of the

Nation to incorporate and adhere to Indian preference in all aspects of employment within the

Oneida Nation.

205.2. Adoption, Amendment, Repeal

205.2-1. This law was adopted by the Oneida Business Committee by resolution BC-11-10-15B and amended by resolution BC-__-__-__-_.

205.2-2. This law may be amended or repealed by the Oneida Business Committee and/or the

Oneida General Tribal Council pursuant to the procedures set out in the Legislative Procedures

Act.

205.2-3. Should a provision of this law or the application thereof to 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.

205.2-4. In the event of a conflict between a provision of this law and a provision of another law,

the provisions of this law shall control.

205.2-5. This law is adopted under authority of the Constitution of the Oneida Nation.

205.3. Definitions

205.3-1. This section shall govern the definitions of words or phrases as used within this law. All

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

(a) “Acts of God” means an event or effect that can be neither anticipated nor controlled,

including both acts of nature, such as floods and hurricanes, and acts of people, such as

riots, strikes, and wars.

(b) “Additional duties” means responsibilities of another position within the Nation that is

not within an employee’s current scope of work.

2 O.C. 205 – Page 1

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to develop or assist in developing a furlough implementation plan when the individual

employed in the Direct Report Level position is unavailable or requests such assistance

from that employee.

(d) “Critical position” means a position of employment within the Nation that is crucial to

governmental functions, including, but not limited to, health, safety, regulatory compliance

and/or revenue generation.

(e) “Direct Report Level position” means a position of employment within the Nation that

is the highest level in the chain of command under the Oneida Business Committee and is

responsible for a department and/or division of the Nation.

(f) “Employee” means any individual employed by the Nation, including, but not limited

to, employees of any program or enterprise of the Nation, political appointees, temporary

employees, and employees on probationary status.

(g) “Furlough” means temporary, unpaid time off of work for a specified period of time.

(h) “Indian” means any person, other than an Oneida citizen, who is a citizen of a federally

recognized Indian tribe, other than the Oneida Nation.

(i) “Indian preference” means preference for Indian people, regardless of tribal affiliation,

in all aspects of employment, with Oneida citizens being afforded the highest levels of

preference for purposes of this law.

(j) “Nation” means the Oneida Nation.

(k) “Oneida citizen” means those persons who are enrolled members of the Nation, eligible

for enrollment in the Nation or documented first generation Oneida descendants.

(l) “Supervisor” means an employee of the Nation who directly oversees the work and

performance of an employee on a daily basis.

(m) “Temporary employee” means an employee hired by the Nation for a short-term

assignment and consists of the following classifications:

(1) Emergency/Temporary;

(2) Limited Term;

(3) Seasonal;

(4) Substitute/Relief;

(5) Youth Worker; and

(6) Student/Intern.

205.4. Application

205.4-1. Unless otherwise stated herein, this law shall apply to all employees of the Nation and

all employment decisions of the Nation that are governed, whether in whole or in part, by this law.

205.4-2. Indian Preference. It is the intent of this law, and the policy of the Nation, that no

employee who is Indian shall be furloughed so long as an employee, within the same department/

division and position, who is non-Indian is still employed.

(a) Title VII of the Civil Rights Act of 1964 allows private and government employers on

or near a Federal Trust Indian Reservation to exercise Indian preference in employment.

(b) The Indian Self Determination and Education Act affirms that any tribal employment

or contract preference laws adopted by such tribe shall govern.

2 O.C. 205 – Page 2

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a furlough program shall be administered in a manner that affords preferential treatment to

Oneida citizens and Indians in the following order, starting with those employees to be

given the highest level of preference when applying the provisions of this law:

(1) Enrolled members of the Oneida Nation;

(2) Oneida citizens eligible for enrollment in the Oneida Nation;

(3) Documented first generation Oneida descendants;

(4) Indians; and

(5) Non-Indians.

205.4-3. Equal Opportunity Employer. Notwithstanding section 205.4-2, the Nation is an Equal

Opportunity Employer that prohibits the application of this law and/or the implementation of a

furlough program in a manner that discriminates based on race, color, religion, sex, pregnancy,

age, national origin, citizenship status, veteran status, physical or mental disability, genetic

information and/or any other basis protected by the anti-discrimination provisions of Title VII of

the Civil Rights Act of 1964.

205.4-4. Training on Indian Preference. The Human Resources Department shall be responsible

for introducing new employees of the Nation to the concept of Indian preference, as well as how

it applies to the furlough programs set forth herein, during employee orientation. Such introduction

shall include, at a minimum, coverage of the following topics:

(a) The history behind Indian preference, including the role that the Bureau of Indian

Affairs (“BIA”) had in its development;

(b) The Indian Self-Determination and Education Assistance Act of 1975, as well as the

exception to Title VII of the Civil Rights Act of 1964; and

when deciding which employees of the Nation would be placed in furlough status, as well

as the order in which they would be recalled, using methods to include, but not be limited

to, hypotheticals and charting.

205.4-5. Prohibitions. Any furlough program of the Nation that is initiated in accordance with

this law shall not:

(a) Be used as a means to resolve performance-related problems, grievance issues or to

take the place of disciplinary actions;

(b) Be administered or implemented in violation of this law or any other applicable laws/

policies of the Nation; and/or

Indian preference to the processes set forth herein.

205.5. Furlough Implementation Plan

205.5-1. Implementation Plan. Within a reasonable time after this law goes into effect, all Direct

Report Level positions, or their authorized designees, shall submit a furlough implementation plan

to the Human Resources Department for approval.

(a) The Human Resources Department shall create a standard template that Direct Report

Level positions and/or authorized designees must use when developing their furlough

implementation plan hereunder.

(1) The intent of the standard template shall be to elicit, in advance, information

that will allow the Nation to implement a furlough program in as efficient and

2 O.C. 205 – Page 3

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consistent a manner as possible under the circumstances, the information of which

shall include, but not be limited to:

(A) Which positions within their respective department or division may

qualify as a critical position;

(B) Which employees within their respective department or division may

qualify for Indian preference and the corresponding level of preference that

would apply under section 205.4-2 of this law;

or division may be exempt from the application of Indian preference and

the basis for said exemption;

(D) Whether any employees within their respective department or division

may be interested in volunteering to be placed in furlough status in the event

a furlough program is implemented; and

(E) Whether any positions within their respective department or division

are capable of being adjusted to promote Indian preference when deciding

which employees to place in furlough status.

(2) The Human Resources Department shall submit its standard template to the

Oneida Business Committee for approval by resolution prior to distributing it to the

Direct Report Level positions and/or authorized designees for development in

accordance herewith.

(b) The Human Resources Department shall create a Standard Operating Procedure which

sets forth how a furlough implementation plan shall be processed under this law once the

standard template is approved by the Oneida Business Committee, that shall, at a minimum,

address the following:

(1) Distribution of the standard template to the Direct Report Level positions and/or

their authorized designees;

(2) The process for Direct Report Level positions and/or authorized designees to

follow upon receiving the standard template, including, but not limited to:

(A) How a furlough implementation plan shall be created using the standard

template;

(B) How a furlough implementation plan shall be submitted to the Human

Resources Department for approval; and

authorized designees have to submit their furlough implementation plans to

the Human Resources Department upon receipt of the standard template.

(3) How the Human Resources Department will process furlough implementation

plans for approval upon submission by the Direct Report Level positions and/or

authorized designees; and

(4) How the Human Resources Department will notify the Direct Report Level

positions and/or authorized designees of its decision to approve or reject their

furlough implementation plan and, if rejected, the reason for the rejection and the

process for resubmitting the furlough implementation plan for reconsideration.

Resources Department, as well as the Direct Report Level positions and/or authorized

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designees, consistent with governing law.

205.5-2. Furlough Implementation Plan Updates. The furlough implementation plan, as well as

the standard template upon which it is developed, shall be updated as follows:

(a) Standard Template. Within two (2) years of its initial approval by resolution and then

every two (2) years thereafter, the Human Resources Department shall review its standard

template to assess whether it should be updated to better advance the underlying goals/

policies of this section, as well as the law in general.

(1) Updates to the standard template must be approved by the Oneida Business

Committee in accordance with section 205.5-1 of this law.

(b) Implementation Plan. Within two (2) years of initial approval by the Human Resources

Department and then every (2) years thereafter, the Direct Report Level positions and/or

authorized designees shall review their furlough implementation plan to assess whether it

needs to be updated to account for any relevant changes within their department/division,

including, but not limited to, changes in personnel, changes in positions and/or changes to

any of the job descriptions attached to a position.

(1) Updates to a furlough implementation plan must be processed and approved in

accordance with section 205.5-1 of this law, as well as the Standard Operating

Procedure created by the Human Resources Department in accordance therewith.

template or furlough implementation plan nor the number of times they are reviewed.

205.6. Furlough Implementation

205.6-1. Alternatives to Furlough. Prior to adopting a furlough resolution hereunder, the Oneida

Business Committee shall consider whether any reasonable alternative options to implementation

of a furlough program exist and, if so, exhaust the option or options in advance of implementation

so long as the burden of doing so on the Nation as a whole does not outweigh the benefit to the

employees who may be affected by the implementation of a furlough program.

205.6-2. Furlough Resolution. If the Oneida Business Committee has identified the need for a

furlough program, a directive by resolution shall be given to the appropriate Direct Report Level

positions, authorized designees, and any other individual or entity deemed necessary by the Oneida

Business Committee.

(a) The resolution shall include the following:

(1) The basis for implementing the furlough program;

(2) Whether it is being implemented as an administrative or emergency furlough

program;

(3) If feasible under the circumstances and to the extent of such feasibility so long

as not less than is required under this law for the particular furlough program being

implemented, the beginning and ending dates of the furlough program;

(4) If feasible under the circumstances and to the extent of such feasibility, which

areas within the Nation will be subject to the furlough program and which positions,

if any, are considered critical positions exempt from being placed in furlough status;

and

(5) Whether an ad hoc committee will be established pursuant to this section to

assist in the implementation of the furlough program.

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(b) Ad Hoc Committee. The Oneida Business Committee may, in its discretion, establish

an ad hoc committee to assist in the implementation of a furlough program by, among other

actions, helping to identify which areas of the Nation should be subject to the furlough

program and which positions, if any, should be deemed critical, when directed to by the

Oneida Business Committee.

(1) The ad hoc committee shall be made up of employees of the Nation, identified

by the Oneida Business Committee within the furlough resolution or through a

subsequent resolution or motion, who possess an expertise commensurate with the

type and severity of the event giving rise to the need for the implementation of a

furlough program.

(2) The ad hoc committee shall meet as necessary and at the request of the Oneida

Business Committee to carry out its responsibilities per the directive of the Oneida

Business Committee and in a manner consistent with this law.

(3) The ad hoc committee shall not be subject to the Boards, Committees and

Commissions law and employees shall not be entitled to stipends or any additional

form of compensation for serving on an ad hoc committee established hereunder.

(4) The ad hoc committee shall dissolve upon conclusion of the furlough program

for which it was established or on an early date as determined by the Oneida

Business Committee, subject to the following:

(A) The ad hoc committee shall prepare, as well as present, a close-out

report, in accordance with the Oneida Business Committee’s directive; and

(B) The ad hoc committee shall forward all materials and records that were

used and/or created to carry out its responsibilities hereunder to the Human

Resources Department for storage/disposal in accordance with governing

law.

205.6-3. Furlough Programs. A furlough program shall be characterized as either an emergency

or an administrative program in the furlough resolution and then carried out in accordance with

the portions of this section that apply to such characterization.

(a) In General. The following shall apply to all furlough programs implemented hereunder,

regardless of their characterization.

(1) Notice of the implementation of a furlough program shall be provided to

employees in writing and, along with information relevant to the furlough program

being implemented, include the following:

(A) Fair warning regarding the employee’s failure to respond to a notice of

recall as set forth in section 205.9-2 of this law; and

(B) A directive that it is the responsibility of the employee to ensure that

the Nation has his or her most current contact information.

(2) Written notice shall be sent to employees via the outlet(s) deemed most capable

of reaching them in as efficient a manner as possible under the circumstances.

(A) In the event that the Nation develops a formal process to provide mass

notifications to employees for events such as the implementation of a

furlough program, such process shall be deemed the most capable outlet

hereunder and used to provide written notice to employees for purposes

hereof.

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(b) Emergency Furlough Program. An emergency furlough program may be initiated by

the Oneida Business Committee when in the best interest of the Nation due to Acts of God

that require immediate curtailment of activities within the organization.

(1) Notice. Employees shall be notified of the Oneida Business Committee’s

decision to implement an emergency furlough program as far in advance of the

program’s implementation date as is reasonably possible under the circumstances.

(A) If circumstances do not allow for the Oneida Business Committee to

set a specific date upon which the emergency furlough program will end

within the furlough resolution, notice of the anticipated end date shall be

provided as soon thereafter as is reasonably possible, consistent with section

205.6-3 of this law.

(2) Duration. No emergency furlough program implemented hereunder shall last

for longer than twenty-six (26) weeks from the date of implementation, unless

extended by the Oneida Business Committee through a subsequent resolution.

initiated by the Oneida Business Committee in response to a foreseeable event that is likely

to result in a temporary reduction in revenue/funding or some other organizational issue

when the intent is to recall employees back to work once the event has subsided.

(1) Notice. Employees shall be notified of the Oneida Business Committee’s

decision to implement an administrative furlough program at least five (5) business

days in advance of the program’s implementation date.

(2) Duration. The beginning and ending dates of the administrative furlough

program shall be specified within the furlough resolution.

(A) An administrative furlough program shall end on the date specified

within the furlough resolution, unless revised or extended by the Oneida

Business Committee through a subsequent resolution.

(B) Notice of a revised or extended end date for an administrative furlough

program shall be provided as soon as reasonably possible in advance of the

original end date, consistent with section 205.6-3 of this law.

(3) If the intent to bring employees back is not present or is improbable at the time

employee reductions are deemed necessary, employees shall be selected for layoff,

as opposed to placement in furlough status, consistent with the laws and policies of

the Nation governing employee layoffs.

205.7. Placing Employees in Furlough Status

205.7-1. This section shall govern the manner in which employees of the Nation are selected to

be placed in furlough status following the adoption of a resolution triggering the implementation

of a furlough program.

205.7-2. Critical Positions. Except as otherwise stated herein, employment positions identified

as critical pursuant to this section of the law shall be exempt from placement into furlough status

during the specific furlough program for which the position was deemed critical.

(a) Critical positions shall be identified by the Oneida Business Committee, or ad hoc

committee upon the Oneida Business Committee’s directive and subject to its approval,

within the furlough resolution referenced in section 205.6-2 of this law or as soon thereafter

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as is reasonably possible under the circumstances in a subsequent resolution or motion.

(1) Amendments. The Oneida Business Committee, with assistance from the ad hoc

committee if so requested, may amend the list of identified critical positions as it

deems necessary under the circumstances.

(A) Direct Report Level positions or their authorized designees may submit

requests for amendments to the list of identified critical positions under their

direction to the Oneida Business Committee for consideration.

(b) Exception. The Oneida Business Committee may, when deemed necessary, direct that

reductions be made to positions initially identified as critical under this section, through

adoption of a subsequent resolution.

(1) Employees within the same critical position who become subject to a reduction

hereunder, shall be placed in furlough status pursuant to the order of preference and

priority established in section 205.7, and recalled back to work pursuant to the order

of preference and priority established in section 205.9, of this law.

205.7-3. Non-Critical Positions. Directives from the Oneida Business Committee regarding

employee furlough reductions, as set forth in the initial resolution or a subsequent resolution

related thereto, shall be carried out by the Direct Reports Level position/authorized designee of the

affected department/division in a manner that furthers the policy behind Indian preference to the

greatest extent possible without rendering the affected department/division inoperable or unable

to reasonably conduct business.

(a) Placing Employees in Furlough Status. Unless otherwise stated herein, the following

order shall be adhered to when placing non-critical position employees within the same

department or division in furlough status.

(1) Temporary Employees. Temporary employees within a department or division

shall be the first category of employees to be placed in furlough status.

(2) Volunteer Employees. Following the placement of temporary employees in

furlough status, eligible employees who volunteer for said placement shall be the

next category of employees to be placed in furlough status, subject to the following:

(A) Employees who volunteer to be placed in furlough status must sign a

form, created by the Human Resources Department, confirming that:

(i) They volunteered to be placed in furlough status notwithstanding

any preference or eligibility for retention that they may have;

(ii) Their decision to volunteer was not coerced or based on any

promises of compensation or other consideration; and

(iii) They understand that they are not guaranteed a recall back to

work and, as a result, could be terminated from their employment

with the Nation.

(B) Once signed, the employee shall be provided with a copy for his or her

records and the Human Resources Department shall retain the original copy

in a manner consistent with the Nation’s Open Records and Open Meetings

law and/or any other applicable laws of the Nation.

the rights afforded under, as well as be subject to, the recall process set forth

in section 205.9 of this law.

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(3) Indian Preference. Absent an express exception and after application of subsections (1) and (2), above, when the remaining number of employees in the same

position within a department or division exceeds the number of said employees to

be placed in furlough status, the order of placement shall occur in the following

order, beginning with the first category:

(A) Non-Indians;

(B) Indians;

(D) Oneida citizens eligible for enrollment in the Oneida Nation; and

(E) Enrolled members of the Oneida Nation.

(i) Exceptions for Grant Positions. Employment positions within

the Nation that are funded, in whole or part, by appropriations from

outside of the Nation, which prohibit, as a condition of receiving

said funds, the application of Indian preference in employment

practices, shall be exempt from the requirements of section 205.7-3

of this law.

(ii) Other Exceptions. Where it would violate an applicable federal

law, including any regulations related thereto, or the terms of an

applicable loan, memorandum of understanding, contract or other

agreement for which the Nation is a party, the requirements of

section 205.7-3 shall not apply.

(4) Other Priorities. If, following application of Indian preference, employees

subject to placement in furlough status within the same preference category still

remain, priority shall be given to their retention in the following order, beginning

with the first category:

(A) Seniority. Employees who have served the Nation as a regular status

employee without a break in employment for the longest amount of time

shall be afforded the highest level of retention priority.

(B) Veteran Status. If employees remain after applying the priority for

seniority, employees with veteran status shall be afforded the next level of

retention priority over the other employees who remain within the same

preference category; and

priority for veterans, employees with a more favorable performance

evaluation shall be afforded retention priority over the employees with a

less favorable performance evaluation who remain within the same

preference category.

(i) The most current performance evaluation in existence on the date

the Oneida Business Committee adopts the furlough resolution at

issue shall be the evaluation that is used when assessing priority

hereunder.

205.8. Furloughed Employees

205.8-1. Employees shall not perform any work for the Nation when off of work due to being

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placed in furlough status, which includes, but is not limited to, responding to work-related e-mail

and voicemail, as well as traveling on behalf of the Nation.

(a) Employees within the Nation’s Gaming Operations who are placed in furlough status,

shall continue to adhere to the “Who May Not Play Policy” throughout the furlough period.

205.8-2. Continuous Employment. Being placed in furlough status shall not be considered a

break in continuous service under the Nation’s Personnel Policies and Procedures law or any other

governing law of the Nation that contemplates continuous employment therein.

205.8-3. Unemployment. Employees placed in furlough status shall be responsible for contacting

the State of Wisconsin Department of Workforce Development to determine if they qualify for

unemployment insurance benefits.

(a) Eligibility for unemployment insurance benefits shall be determined by the State of

Wisconsin.

205.8-4. Benefits. Employees placed in furlough status shall not use or accrue personal or

vacation time for the time that they are off of work as a result of said placement.

(a) To the extent feasible and subject to the policy of insurance or contractual agreement

governing the specific benefit at issue, employees placed in furlough status shall continue

to receive other benefits for which they were entitled to before the implementation of the

furlough program throughout the period of time in which the furlough program is in place.

205.8-5. Overtime and Additional Duty Pay. Unless otherwise approved by the Oneida Business

Committee on a case-by-case basis, when a furlough program is implemented in a department or

division, no employee in that department or division shall be eligible for:

(a) Overtime during the same pay period that another employee from the same department

or division is placed in furlough status; or

(b) Additional duty pay for performing duties for other employees in his or her department

or division who have been placed in furlough status.

205.8-6. Back Pay. Except as provided for in section 205.11 of this law, employees placed in

furlough status shall not be eligible for back pay upon their return to work.

205.8-7. Outside Employment. Employees placed in furlough status shall be allowed to obtain

outside employment while in furlough status but shall remain subject to the recall provisions of

section 205.9 of this law.

(a) Employees who obtain outside employment shall continue to adhere to any existing

policies of the Nation that govern their positions of employment with the Nation, including,

but not limited to, employee confidentiality and social media use, while in furlough status.

205.9. Recall of Furloughed Employees

205.9-1. The following shall be adhered to when deciding the order in which employees placed

in furlough status are recalled back to work at the end of a furlough program.

(a) Order for Employee Recall. If every employee placed in furlough status is unable to be

recalled back to work at the same time, or at all, the order of employee recall shall be as

follows:

(1) Indian Preference. Indian preference shall be applied to the recall process in

the following order, with the first category of employees receiving the greatest level

of preference:

(A) Enrolled members of the Oneida Nation;

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(B) Oneida citizens eligible for enrollment in the Oneida Nation;

(D) Indians; and

(E) Non-Indians.

(2) Other Priorities. If, following application of Indian preference, employees

subject to placement in furlough status within the same preference category still

remain, priority shall be given to the recall of those remaining employees in the

following order, beginning with the first category:

(A) Seniority. Employees who have served the Nation as a regular status

employee without a break in employment for the longest amount of time

shall be given recall priority first;

(B) Veteran Status. If employees remain after applying the priority for

seniority, the remaining employees with veteran status shall be given recall

priority over those with a more favorable performance evaluation; and

priority for veterans, the remaining employees with a more favorable

performance evaluation shall be given recall priority over those with a less

favorable performance evaluation.

(i) The most current performance evaluation in existence on the date

the Oneida Business Committee adopts the furlough resolution at

issue shall be the evaluation that is used when assigning priority

hereunder.

(b) Volunteers. Except as stated herein, employees who qualify for Indian preference and

volunteered to be placed in furlough status shall retain said preference rights during the

recall process, regardless of volunteering, and be recalled consistent therewith.

(1) A volunteer employee in the same Indian preference category as an employee,

who did not volunteer to be placed in furlough status and has no other priority over

the volunteer employee, shall be recalled before the non-volunteer employee.

205.9-2. Notice of Recall and Responses.

(a) Employees shall be provided with written notice of their recall from placement in

furlough status, using a method that can accurately determine the date of the employee’s

receipt of said notice.

(1) Along with information relevant to the employee’s recall back to work, the

written notice of recall shall include the language of subsection (b), below, in its

entirety.

(b) Failure to Respond. A failure to respond to the notice of recall, in the manner indicated,

within ten (10) business days of the employee’s receipt thereof shall be interpreted to mean

that the employee does not intend to return on the date of his or her recall and treated as a

resignation of employment by that employee per the governing laws and policies of the

Nation.

205.9-3. Separation in Lieu of Recall. Employees placed in furlough status who are not recalled

at the end of the furlough program shall be terminated from their employment with the Nation in

accordance with the governing laws/policies of the Nation.

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205.10. Responsibilities of Direct Report Level and Supervisor Positions

205.10-1. Generally. Persons employed in Direct Report Level and supervisory positions with

the Nation, along with any of their authorized designees, shall be responsible for familiarizing

themselves with this law, including any policies or procedures promulgated thereunder.

(a) Within a reasonable time after this law goes into effect, and then every two (2) years

thereafter, the Direct Report Level and supervisory positions, along with any of their

authorized designees, who would be subject to one (1) or more of the responsibilities set

forth within this law in the event of a furlough program implementation, shall be required

to attend training on the application of this law, as well as the programs to be implemented

hereunder.

(1) The Human Resources Department shall be responsible for the creation and

administration of the training required herein.

(b) Failure to adhere to the requirements or processes set forth within this law may result

in disciplinary action or other consequences consistent with the Nation’s employment laws.

205.10-2. Direct Report Level Positions. Upon the passage of a resolution directing a furlough be

implemented, all Direct Report Level positions and/or authorized designees shall immediately

carry out the directive consistent with the resolution; this law, including the Standard Operating

Procedure created by the Human Resources Department in accordance therewith; and the furlough

implementation plan that was approved for their respective department or division.

205.10-3. Supervisor Responsibilities. Upon directive from the appropriate Direct Report Level

positions and/or authorized designees, supervisors shall be responsible to provide notice to those

employees within their respective department or division as required under section 205.6-3 of this

law and provide copies of such notice to the Human Resources Department to maintain in

accordance with governing law.

(a) Supervisors shall ensure that job descriptions within their respective departments or

divisions are accurately maintained and up-to-date.

205.11. Appeal

205.11-1. An employee who has been placed in furlough status under this law may only appeal

said placement if based on a claim that it occurred in violation of this law.

(a) A written appeal must be submitted to the Direct Report Level position and/or

authorized designee within ten (10) business days of the employees receipt of the notice

under section 205.6 of this law.

(b) The burden for showing that the employee was placed in furlough status in violation

of this law is on the employee appealing the placement.

based on the written appeal alone.

(1) The Direct Report Level position and/or authorized designee shall provide a

written decision on the matter to the employee and the employee’s supervisor

within ten (10) business days of receiving the written appeal unless for good cause

an extension is necessary.

(2) This decision is final and cannot be appealed.

205.11-2. An employee who has been placed in furlough status does not have any other right to

appeal a furlough decision under any law, policy or the personnel grievance process of the Nation.

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End.

Emergency Adoption – BC-10-15-13-A

Emergency Adoption Extension – BC-04-09-14-D

Adoption – BC-11-10-15-B

Adoption – BC-__-__-__-_

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Title 2. Employment – Chapter 205

[Oneida Language]

[Translation]

FURLOUGH POLICY

205.1. Purpose and Policy

205.2. Adoption, Amendment, Repeal

205.3. Definitions

205.4 Furlough. Application

205.5 Furlough Plans

205.6 Supervisor Responsibilities

205.7. Appeal

205.5. Furlough Implementation Plan

205.6. Furlough Implementation

205.7. Placing Employees in Furlough Status

205.8. Furloughed Employees

205.9. Recall of Furloughed Employees

205.10. Direct Report Level and Supervisor Responsibilities

205.11. Appeal

205.1. Purpose and Policy

205.1-1. Purpose. The purpose of this Policylaw is to enable:

(a) Enable the TribeNation to implement a furlough as a toolprogram in response to

remedy an operating budget deficit.interruption of governmental revenues or operations,

insufficient treasury funds or other emergencies/ unplanned events as determined by the

Oneida Business Committee in accordance with this law;

205.1-2. Policy. This Policy shall apply to all employees of the Tribe. To utilize a furlough, a

decrease or lapse of revenue or funding and/or any other budget situation warranting an unpaid

leave shall be identified.

(b) Establish a consistent and equitable process for implementation of a furlough program;

and

in accordance with this law.

205.1-2. Policy. It is the policy of the Nation to have consistent and standard procedures to

address events and/or incidents that impact employees of the Nation. It is further the policy of the

Nation to incorporate and adhere to Indian preference in all aspects of employment within the

Oneida Nation.

205.2. Adoption, Amendment, Repeal

205.2-1. This Policylaw was adopted by the Oneida Business Committee by resolution BC-1110-15-B. and amended by resolution BC-__-__-__-_.

205.2-2. This Policylaw may be amended or repealed by the Oneida Business Committee and/or

the Oneida General Tribal Council pursuant to the procedures set out in the Legislative Procedures

Act.

205.2-3. Should a provision of this Policylaw or the application thereof to any person or

circumstances be held as invalid, such invalidity shall not affect other provisions of this policylaw

which are considered to have legal force without the invalid portions.

205.2-4. In the event of a conflict between a provision of this Policylaw and a provision of

another policylaw, the provisions of this Policylaw shall control.

205.2-5. This Policylaw is adopted under authority of the Constitution of the Oneida Tribe of

Indians of WisconsinNation.

205.3. Definitions

205.3-1. This section shall govern the definitions of words or phrases as used within this

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

(a) “Direct report level

“Additional duties” means responsibilities of another

position” means within the Nation that is not within an employee’s current scope of work.

(b) “Authorized designee” means an employee identified by a Direct Report Level position

to develop or assist in developing a furlough implementation plan when the individual

employed in the Direct Report Level position is unavailable or requests such assistance

from that employee.

governmental functions, including, but not limited to, health, safety, regulatory compliance

and/or revenue generation.

(d) “Direct Report Level position” means a position of employment within the Nation that

is the highest level in the chain of command under the Oneida Business Committee and

who is responsible for a Tribal Departmentdepartment and/or Divisiondivision

of the

Nation.

(be) “Employee” means any individual who is employed by the Tribe and is subject to the

direction and control of the Tribe with respect to the material details of the work performed,

or who has the status of an employee under the usual common law rules applicable to

determining the employer-employee relationship. “Employee” includes, but is not limited

to, an individual employed by the Nation, including, but not limited to, employees of any

program or enterprise of the Tribe andNation, political appointees, but does not include

elected or appointed officialstemporary employees and employees on probationary status.

(cf) “Furlough” means a temporary, unpaid leave fromtime off of work for a specified

period of time.

(d) “(g) “Indian” means any person, other than an Oneida citizen, who is a citizen of a

federally-recognized Indian tribe, other than the Oneida Nation.

(h) “Indian preference” means a preference granted to retain an Oneida member employee

over other non-member employees. for Indians, regardless of tribal affiliation, in all aspects

of employment, with Oneida citizens receiving the highest levels of preference for purposes

of this law.

(e) i) “Nation” means the Oneida Nation.

(j) “Oneida citizen” means those persons who are enrolled members of the Nation, eligible

for enrollment in the Nation or documented first generation Oneida descendants.

(k) “Supervisor” means a personan employee of the Nation who directly oversees the work

and performance of an employee on a daily basis.

(f) “Tribe” or “Triball)

“Temporary employee” means an employee hired by the

Nation for a short-term assignment and consists of the following classifications:

(1) Emergency/Temp;

(2) Limited Term;

(3) Seasonal;

(4) Substitute/Relief;

(5) Youth Worker; and

(6) Student/Intern.

205.4. Application

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205.4-1. Unless otherwise stated herein, this law shall apply to all employees of the Nation and

all employment decisions of the Nation that are governed, whether in whole or in part, by this law.

205.4-2. Indian Preference. It is the intent of this law, and the policy of the Nation, that no

employee who is Indian shall be furloughed so long as an employee, within the same department/

division and position, who is non-Indian is still employed.

(a) Title VII of the Civil Rights Act of 1964 allows private and government employers on

or near a Federal Trust Indian Reservation to exercise Indian preference in employment.

(b) The Indian Self Determination and Education Act affirms that any tribal employment

or contract preference laws adopted by such tribe shall govern.

a furlough program shall be administered in a manner that affords preferential treatment to

Oneida Tribe ofcitizens and Indians of Wisconsin.in the following order, starting with

those employees to be given the highest level of preference when applying the provisions

of this law:

(1) Enrolled members of the Oneida Nation;

(2) Oneida citizens eligible for enrollment in the Oneida Nation;

(3) Documented first generation Oneida descendants;

(4) Indians; and

(5) Non-Indians.

205.4-3.

205.4Equal Opportunity Employer. Notwithstanding section 205.4-2 above, the Nation is an Equal

Opportunity Employer that prohibits the application of this law and/or the implementation of a

furlough program in a manner that discriminates based on race, color, religion, sex, pregnancy,

age, national origin, citizenship status, veteran status, physical or mental disability, genetic

information and/or any other basis protected by the anti-discrimination provisions of Title VII of

the Civil Rights Act of 1964.

205.4-4. Training on Indian Preference. The Human Resources Department shall be responsible

for introducing new employees of the Nation to the concept of Indian preference, as well as how

it applies to the furlough program set forth herein, during employee orientation. Such introduction

shall include, at a minimum, coverage of the following topics:

(a) The history behind Indian preference, including the role that the Bureau of Indian

Affairs (“BIA”) had in its development;

(b) The Indian Self-Determination and Education Assistance Act of 1975, as well as the

exception to Title VII of the Civil Rights Act of 1964; and

when deciding which employees of the Nation would be placed in furlough status, as well

as the order in which they would be recalled, using methods to include, but not be limited

to, hypotheticals and charting.

205.4-5. Prohibitions. Any furlough program of the Nation that is initiated in accordance with

this law shall not:

(a) Be used as a means to resolve performance-related problems, grievance issues or to

take the place of disciplinary actions;

(b) Be administered or implemented in violation of this law or any other applicable laws/

policies of the Nation; and/or

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Indian preference to the processes set forth herein.

205.5. Furlough Implementation Plan

205.4-1. 205.5-1.

Implementation Plan. Within a reasonable time after this law goes into

effect, all Direct Report Level positions, or their duly authorized designees, shall submit a furlough

implementation plan to the Human Resources Department for approval.

(a) The Human Resources Department shall create a standard template that Direct Report

Level positions and/or duly authorized designees must use when developing their furlough

implementation plan hereunder.

(1) The intent of the standard template shall be to elicit, in advance, information

that will allow the Nation to implement a furlough program in as efficient and

consistent a manner as possible under the circumstances, the information of which

shall include, but not be limited to:

(A) Which positions within their respective department or division may

qualify as a critical position;

(B) Which employees within their respective department or division may

qualify for Indian preference and the corresponding level of preference that

would apply under section 205.4-2 of this law;

or division may be exempt from the application of Indian preference and

the basis for said exemption;

(D) Whether any employees within their respective department or division

may be interested in volunteering to be placed in furlough status in the event

a furlough program is implemented; and

(E) Whether any positions within their respective department or division

are capable of being adjusted to promote Indian preference when deciding

which employees to place in furlough status.

(2) The Human Resources Department shall submit its standard template to the

Oneida Business Committee for approval by resolution prior to distributing it to the

Direct Report Level positions and/or duly authorized designees for development in

accordance herewith.

(b) The Human Resources Department shall create a Standard Operating Procedure which

sets forth how a furlough implementation plan shall be processed under this law once the

standard template is approved by the Oneida Business Committee, that shall, at a minimum,

address the following:

(1) Distribution of the standard template to the Direct Report Level positions and/or

their duly authorized designees;

(2) The process for Direct Report Level positions and/or duly authorized designees

to follow upon receiving the standard template, including, but not limited to:

(A) How a furlough implementation plan shall be created using the standard

template;

(B) How a furlough implementation plan shall be submitted to the Human

Resources Department for approval; and

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authorized designees have to submit their furlough implementation plans to

the Human Resources Department upon receipt of the standard template.

(3) How the Human Resources Department will process furlough implementation

plans for approval upon submission by the Direct Report Level positions and/or

duly authorized designees; and

(4) How the Human Resources Department will notify the Direct Report Level

positions and/or duly authorized designees of its decision to approve or reject their

furlough implementation plan and, if rejected, the reason for the rejection and the

process for resubmitting the furlough implementation plan for reconsideration.

Resources Department, as well as the Direct Report Level positions and/or duly authorized

designees, consistent with governing law.

205.5-2. Furlough Implementation Plan Updates. The furlough implementation plan, as well as

the standard template upon which it is developed, shall be updated as follows:

(a) Standard Template. Within two (2) years of its initial approval by resolution and then

every two (2) years thereafter, the Human Resources Department shall review its standard

template to assess whether it should be updated to better advance the underlying goals/

policies of this section, as well as the law in general.

(1) Updates to the standard template must be approved by the Oneida Business

Committee in accordance with section 205.5-1 of this law.

(b) Implementation Plan. Within two (2) years of initial approval by the Human Resources

Department and then every (2) years thereafter, the Direct Report Level positions and/or

duly authorized designees shall review their furlough implementation plan to assess

whether it needs to be updated to account for any relevant changes within their department/

division, including, but not limited to, changes in personnel, changes in positions and/or

changes to any of the job descriptions attached to a position.

(1) Updates to a furlough implementation plan must be processed and approved in

accordance with section 205.5-1 of this law, as well as the Standard Operating

Procedure created by the Human Resources Department in accordance therewith.

template or furlough implementation plan nor the number of times they are reviewed.

205.6. Furlough Implementation

205.6-1. Alternatives to Furlough. Prior to adopting a furlough resolution hereunder, the Oneida

Business Committee shall consider whether any reasonable alternative options to implementation

of a furlough program exist and, if so, exhaust the option or options in advance of implementation

so long as the burden of doing so on the Nation as a whole does not outweigh the benefit to the

employees who may be affected by the implementation of a furlough program.

205.6-2. Furlough Resolution. If the Oneida Business Committee has identified the

necessityneed for a furlough program, a directive by resolution shall be given to the appropriate

Direct Report Level positions., duly authorized designees, and any other individual or entity

deemed necessary by the Oneida Business Committee.

(a) The resolution shall directinclude the following:

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(1) The basis for implementing the furlough program;

(2) Whether it is being implemented as an administrative or emergency furlough

program;

(3) If feasible under the circumstances and to the extent of such feasibility so long

as not less than is required under this law for the particular furlough program being

implemented, the beginning and ending dates of the furlough. program;

(4) If feasible under the circumstances and to the extent of such feasibility, which

areas within the Nation will be subject to the furlough program and which positions,

if any, are considered critical positions exempt from being placed in furlough status;

and

(5) Whether an ad hoc committee will be established pursuant to this section to

assist in the implementation of the furlough program.

(b) Ad Hoc Committee. The Oneida Business Committee may, in its discretion, establish

an ad hoc committee to assist in the implementation of a furlough program by, among other

activities, helping to identify which areas of the Nation should be subject to the furlough

program and which positions, if any, should be deemed critical, including the number of

those critical positions to be retained, when directed to by the Oneida Business Committee.

(1) The ad hoc committee shall be made up of employees of the Nation, identified

by the Oneida Business Committee within the furlough resolution or through a

subsequent resolution or motion, who possess an expertise commensurate with the

type and severity of the event giving rise to the need for the implementation of a

furlough program.

(2) The ad hoc committee shall meet as necessary and at the request of the Oneida Business

Committee to205.4-2. Implementation of Furlough Plans. Upon the passage of a resolution

directing that a furlough be implemented, all Direct Report Level positions shall immediately carry

out the furlough plans for his or her respective departments or agencies. An employee shall be

furloughed on days that the employee is normally scheduled to work or on holidays recognized by

the Tribe, whether the employee is normally scheduled to work or not.

carry out its responsibilities per the directive of the Oneida Business Committee

and in a manner consistent with this law.

(3) The ad hoc committee shall not be subject to the Boards, Committees and

Commissions law and employees shall not be entitled to stipends or any additional

form of compensation for serving on an ad hoc committee established hereunder.

(4) The ad hoc committee shall dissolve upon conclusion of the furlough program

for which it was established or on an early date as determined by the Oneida

Business Committee, subject to the following:

(A) The ad hoc committee shall prepare, as well as present, a close-out

report, in accordance with the Oneida Business Committee’s directive; and

(B) The ad hoc committee shall forward all materials and records that were

used and/or created to carry out its responsibilities hereunder to the Human

Resources Department for storage/disposal in accordance with governing

law.

205.6-3. Furlough Programs. A furlough program shall be characterized as either an emergency

or an administrative program in the furlough resolution and then carried out in accordance with

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the portions of this section that apply to such characterization.

(a) In General. The following shall apply to all furlough programs implemented hereunder,

regardless of their characterization.

(1) 205.4-3.

Notice.

A supervisor shall give an

employee of the implementation of a furlough program shall be provided to

employees in writing and, along with information relevant to the furlough program

being implemented, include the following:

(A) Fair warning regarding the failure to respond to a notice of recall as set

forth in section 205.9-2 of this law; and

(B) A directive that it is the employee’s responsibility to ensure that the

Nation has his or her most current contact information.

(2) Written notice shall be sent to employees via the outlet(s) deemed most capable

of reaching them in as efficient a manner as possible under the circumstances.

(A) In the event that the Nation develops a formal process to provide mass

notifications to employees for events such as the implementation of a

furlough program, such process shall be deemed the most capable outlet

hereunder and used to provide written notice to employees for purposes

hereof.

(b) Emergency Furlough Program. An emergency furlough program may be initiated by

the Oneida Business Committee on an emergency basis when in the best interest of the

Nation due to acts of God or sudden emergencies requiring immediate curtailment of

activities.

(1) Notice. Employees shall be notified of the Oneida Business Committee’s

decision to implement an emergency furlough program as far in advance of the

program’s implementation date as is reasonably possible under the circumstances.

(A) If circumstances do not allow for the Oneida Business Committee to

set a specific date upon which the emergency furlough program will end

within the furlough resolution, notice of the anticipated end date shall be

provided as soon thereafter as is reasonably possible, consistent with section

205.6-3 of this law.

(2) Duration. No emergency furlough program implemented hereunder shall last

for longer than twenty-six (26) weeks from the date of implementation, unless

extended by the Oneida Business Committee through a subsequent resolution.

administrative furlough in response to a foreseeable event that is likely to result in a

temporary reduction in revenue/funding or some other organizational issue where the intent

is to recall employees back to work once the event has subsided.

(1) Notice. Employees shall be notified of the Oneida Business Committee’s

decision to implement an administrative furlough program at least five (5) business

days prior to a furlough being implemented in advance of the program’s

implementation date.

(2) Duration. The beginning and ending dates of the administrative furlough

program shall be specified within the furlough resolution.

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(A) An administrative furlough program shall end on the date specified

within the furlough resolution, unless revised or extended by the Oneida

Business Committee through a subsequent resolution.

(B) Notice of a revised or extended end date for an administrative furlough

program shall be provided as soon as reasonably possible in advance of the

original end date, consistent with section 205.6-3 of this law.

205.7. Placing Employees in Furlough Status

205.7-1. This section shall govern the manner in which employees of the Nation are selected to

be placed in furlough status following the adoption of a resolution triggering the implementation

of a furlough program.

205.7-2. Critical Positions. Except as otherwise stated herein, employment positions identified

as critical pursuant to this section of the law shall be exempt from placement into furlough status

during the specific furlough program for which the position was deemed critical.

(a) Critical positions, as well as the requisite number thereof, shall be identified by the

Oneida Business Committee, or ad hoc committee upon directive of the Oneida Business

Committee and subject to its approval, within the furlough resolution referenced in section

205.6-2 of this law or as soon thereafter as is reasonably possible under the circumstances

in a subsequent resolution or motion.

(1) Number of Critical Positions. If the number of individuals employed in the

same position within a department or division that is deemed critical exceeds the

maximum number directed to be retained, employees within that same position will

be retained in accordance with the order of preference and priority provided in

section 205.9-1 of this law.

(A) Critical position employees who are not retained hereunder shall be

placed in furlough status and subject to recall in accordance with section

205.9 of this law.

(2) Amendments. The Oneida Business Committee, in its discretion, and if so

desired with assistance from the ad hoc committee, may amend the list of identified

critical positions as it deems necessary under the circumstances.

(A) Direct Report Level positions or their duly authorized designees may

submit requests for amendments to the list of identified critical positions

within their department or division to the Oneida Business Committee for

consideration.

205.7-3. Order for Placement in Furlough Status. Unless otherwise stated herein, the following

order shall be adhered to when placing non-critical position employees within the same department

or division in furlough status.

(a) Temporary Employees. Temporary employees within a department or division shall be

the first category of employees to be placed in furlough status.

(b) Volunteer Employees. Following the placement of temporary employees in furlough

status, eligible employees who volunteer for said placement shall be the next category of

employees to be placed in furlough status, subject to the following:

(1) Employees who volunteer to be placed in furlough status must sign a form,

created by the Human Resources Department, confirming that:

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(A) They volunteered to be placed in furlough status, notwithstanding any

preference or eligibility for retention that they may have;

(B) Their decision to volunteer was not coerced or based on any promises

of compensation or other consideration; and

as a result, could be terminated from their employment with the Nation.

(2) Once signed, the employee shall be provided with a copy for his or her

positionrecords and the Human Resources Department shall retain the original copy

in a manner consistent with the Nation’s Open Records and Open Meetings law

and/or any other applicable laws of the Nation.

205.4-4.

Continuous Service. A (3) Employees who volunteer to be placed

in furlough status shall retain the rights afforded under, as well as be subject to, the

recall process set forth in section 205.9 of this law.

above, when the remaining number of employees in the same position within a department

or division exceeds the number of said employees to be placed in furlough status, the order

of placement shall occur in the following order, beginning with the first category:

(1) Non-Indians;

(2) Indians;

(3) Documented first generation Oneida descendants;

(4) Oneida citizens eligible for enrollment in the Oneida Nation; and

(5) Enrolled members of the Oneida Nation.

(A) Exceptions.

(i) Grant Positions. Employment positions within the Nation that

are funded, in whole or part, by appropriations from outside of the

Nation, which prohibit, as a condition of receiving said funds, the

application of Indian preference in employment practices, shall be

exempt from the requirements of section 205.7-3 of this law.

(ii) Other Exceptions. Where it would violate an applicable federal

law, including any regulations related thereto, or the terms of an

applicable loan, memorandum of understanding, contract or other

agreement for which the Nation is a party, the requirements of

section 205.7-3 shall not constituteapply.

(d) Other Priorities. If, following application of Indian preference, employees subject to

placement in furlough status within the same preference category still remain, priority shall

be given to their retention in the following order, beginning with the first category:

(1) Seniority. Employees who have served the Nation as a regular status employee

without a break in continuous service. employment for the longest

amount of time shall be retained first;

(2) Veteran Status. If employees remain after applying the priority for seniority, the

remaining employees with veteran status shall be retained over those with a more

favorable performance evaluation; and

(3) Performance Evaluation. If employees remain after applying the priority for

veterans, the remaining employees with a more favorable performance evaluation

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shall be retained over those with a less favorable performance evaluation.

(A) The most current performance evaluation in existence on the date the

furlough resolution is adopted by the Oneida Business Committee shall be

the evaluation that is used when assessing priority hereunder.

205.8. Furloughed Employees

205.8-1. Employees shall not perform any work for the Tribe while furloughed.

This includes Nation when off of work due to being placed in furlough status, which

includes, but is not limited to, responding to work-related e-mail and voice mailvoicemail, as

well as traveling on behalf of the Tribe.Nation.

205.4-5. (a) Employees within the Nation’s Gaming Operations who are placed in furlough

status, shall continue to adhere to the “Who May Not Play Policy” throughout the furlough period.

205.8-2. Continuous Employment. Being placed in furlough status shall not be considered a

break in continuous service under the Nation’s Personnel Policies and Procedures law or any other

governing law of the Nation that contemplates continuous employment therein.

205.8-3. Unemployment. Furloughed employeesEmployees placed in furlough status shall be

responsible for contacting the State of Wisconsin Department of Workforce Development to

determine if they qualify for unemployment insurance benefits. Eligibility for unemployment

insurance benefits is determined by the State of Wisconsin.

(a) Eligibility for unemployment insurance benefits shall be determined by the State of

Wisconsin.

205.8-4-6..

Benefits. Employees placed in furlough status shall not use or accrue personal or

vacation time when on furlough. Employees for the time that they are off of work as a result of

said placement.

(a) To the extent feasible and subject to the policy of insurance or contractual agreement

governing the specific benefit, employees placed in furlough status shall continue to

receive other benefits during a furloughfor which they were entitled to prior to the

implementation of the furlough program throughout the period of time in which the

furlough program is in place.

205.4-7.8-5.

Overtime and Additional Duty Pay. When a furlough Unless otherwise

approved by the Oneida Business Committee on a case-by-case basis, when a furlough program is

implemented in a department or agencydivision, no employee in that department or agencydivision

shall be eligible for:

(a) overtimeOvertime during the same pay period that another employee from the same

department or agencydivision is onplaced in furlough status; or

(b) additional Additional duty pay for performing duties for other employees in his or her

department or agencydivision who are onhave been placed in furlough status.

205.4-8.-6.

Back Pay. Employees on furlough Except as provided for in section 205.11 of this

law, employees placed in furlough status shall not be eligible for back pay awards upon their return

to work.

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205.5 Furlough Plans

205.5-1. Furlough Plans. The 205.8-7.

Outside Employment. Employees placed in furlough

status shall be allowed to obtain outside employment while in furlough status but shall remain

subject to the recall provisions of section 205.9 of this law.

(a) Employees who obtain outside employment shall continue to adhere to any existing

policies of the Nation that govern their positions of employment with the Nation, including,

but not limited to, employee confidentiality and social media use, while in furlough status.

205.9. Recall of Furloughed Employees

205.9-1. The following shall be adhered to when deciding the order in which employees placed

in furlough status are recalled back to work at the end of a furlough program.

(a) Order for Employee Recall. If every employee placed in furlough status is unable to be

recalled back to work at the same time, or at all, employees shall be recalled as follows:

(1) Indian Preference. Indian preference shall be applied to the recall process in

the following order, with the first category of employees receiving the greatest level

of preference:

(A) Enrolled members of the Oneida Nation;

(B) Oneida citizens eligible for enrollment in the Oneida Nation;

(D) Indians; and

(E) Non-Indians.

(2) Other Priorities. If, following application of Indian preference, employees

subject to placement in furlough status within the same preference category still

remain, priority shall be given to the recall of those remaining employees in the

following order, beginning with the first category:

(A) Seniority. Employees who have served the Nation as a regular status

employee without a break in employment for the longest amount of time

shall be given recall priority first;

(B) Veteran Status. If employees remain after applying the priority for

seniority, the remaining employees with veteran status shall be given recall

priority over those with a more favorable performance evaluation; and

priority for veterans, the remaining employees with a more favorable

performance evaluation shall be given recall priority over those with a less

favorable performance evaluation.

(i) The most current performance evaluation in existence on the

date the furlough resolution was adopted by the Oneida Business

Committee shall be the evaluation that is used when assigning

priority hereunder.

(b) Volunteers. Except as stated herein, employees who qualify for Indian preference and

volunteered to be placed in furlough status shall retain said preference rights during the

recall process, regardless of volunteering, and be recalled consistent therewith.

(1) A volunteer employee in the same Indian preference category as an employee,

who did not volunteer to be placed in furlough status and has no other priority over

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the volunteer employee, shall be recalled before the non-volunteer employee.

205.9-2. Notice of Recall and Responses.

(a) Employees shall be provided with written notice of their recall from placement in

furlough status, using a method that can accurately determine the date of the employee’s

receipt of said notice.

(1) Along with information relevant to the employee’s recall back to work, the

written notice of recall shall include the language of subsection (b), below, in its

entirety.

(b) Failure to Respond. A failure to respond to the notice of recall, in the manner indicated

within the writing, within ten (10) business days of the employee’s receipt thereof shall be

interpreted to mean that the employee does not intend to return on the date of his or her

recall and treated as a resignation of employment by that employee per the governing laws

and policies of the Nation.

205.9-3. Separation in Lieu of Recall. Employees placed in furlough status who are not recalled

at the end of the furlough program shall be terminated from their employment with the Nation in

accordance with the governing laws/policies of the Nation.

205.10.

Responsibilities of Direct Report Level

positions shall develop

furlough plansand Supervisor Positions

205.10-1. Generally. Persons employed in Direct Report Level and supervisory positions with

the Nation, along with any of their duly authorized designees, shall be responsible for familiarizing

themselves with this law, including any policies or procedures promulgated thereunder.

(a) Within a reasonable time after this law goes into effect, and then every two (2) years

thereafter, the Direct Report Level and supervisory positions, along with any of their duly

authorized designees, who would be subject to one (1) or more of the responsibilities set

forth within this law in the event of a furlough program implementation, shall be required

to attend training on the application of this law, as well as the programs to be implemented

hereunder.

(1) The Human Resources Department shall be responsible for the creation and

administration of the training required herein.

(b) Failure to adhere to the requirements or processes set forth within this law may result

in disciplinary action or other consequences consistent with the Nation’s employment laws.

205.10-2. Direct Report Level Positions. Upon the passage of a resolution directing a furlough be

implemented, all Direct Report Level positions and/or duly authorized designees shall immediately

carry out the directive consistent with the resolution; this law, including the Standard Operating

Procedure created by the Human Resources Department in accordance therewith; and the furlough

implementation plan that was approved for their respective departments and agencies.department

or division.

205.5-2. The furlough plans shall set forth how each department or agency intends to implement

a furlough. The plan shall include, but not be limited to, the following:

(a) an explanation of how employees will be selected;

(1) Temporary employees shall be furloughed first, followed by employees who

volunteer to be furloughed. All other employees shall then be eligible to be

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furloughed.

(b) a tentative schedule for a furlough;

(1) Furloughs shall be scheduled in a way that allows the departments to continue

to provide a basic level of service.

(d) a summary of how the furlough will relieve budgetary shortfalls.

205.510-3. Disciplinary Furlough. Furloughs shall not be used for disciplinary reasons.

205.5-4. Indian Preference. Indian preference may not be used as a consideration in identifying

employees to be furloughed.

205.5-5. All furlough plans shall be kept on file with the Human Resources Department.

205.6 Supervisor Responsibilities

. 205.6-1. Upon notificationdirective from the appropriate Direct Report Level position that

furloughs are necessary, a supervisor shall:

(a) Identifypositions and/or duly authorized designees, supervisors shall be responsible to

provide notice to those employees who will be furloughed.

(b) Notify those employees that they will be furloughed and within their furlough dates;respective

department or division as required under section 205.6-3 of this law and provide copies of such

notice to the Human Resources Department to maintain in accordance with governing law.

dates.

(a) Supervisors shall ensure that job descriptions within their respective departments or

divisions are accurately maintained and up-to-date.

205.711. Appeal

205.711-1. An employee who has been furloughedplaced in furlough status under this Policylaw

may only appeal a furlough that is said placement if based on disciplinary reasons.a claim that it

occurred in violation of this law.

(a) A written appeal must be submitted to the Direct Report Level position and/or duly

authorized designee within ten (10) business days fromof the notificationemployees receipt

of the furlough.notice under section 205.6 of this law.

(b) The burden for showing that the employee was placed in furlough status in violation

of this law is based on disciplinary reasons rests on the employee. appealing the placement.

based on the written appeal alone.

(1) The Direct Report Level position and/or duly authorized designee shall provide

a written decision on the matter to the employee and the supervisor.employee’s

supervisor within ten (10) business days of receiving the written appeal unless for

good cause an extension is necessary.

(2) This decision is final and cannot be appealed.

205.711-2. An employee who has been furloughedplaced in furlough status does not have any other

right to appeal a furlough decision under any Tribal law, policy or the personnel grievance process

of the Nation.

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End.

Emergency Adoption – BC-10-15-13-A

Emergency Adoption Extension – BC-04-09-14-D

Adoption – BC-11-10-15-B

Adoption – BC-__-__-__-_

2 O.C. 205 – Page 14

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FURLOUGH LAW AMENDMENTS

LEGISLATIVE ANALYSIS

SECTION 1. EXECUTIVE SUMMARY

Analysis by the Legislative Reference Office

Intent of the

Amendments

Purpose

Affected

Entities and

Individuals

Legislation

Public Meeting

▪ To incorporate Indian preference into the Furlough law (“Law”) and require that it be

applied to the Nation’s furlough process in accordance therewith;

▪ To add priority levels to govern the order for placing in furlough status and recalling

back to work those employees who remain after the application of Indian preference;

▪ To clarify the process for preparing, initiating and implementing a furlough program,

by:

• Setting conditions and clear procedures, as well as express prohibitions, for

when and how a furlough program may be initiated by the Oneida Business

Committee (“OBC”);

• Setting conditions and clear procedures for how a furlough program will be

implemented by the Nation, once initiated; and

• Assigning responsibilities to specific persons/entities for carrying out certain

activities in accordance with the Law.

▪ To require a furlough be initiated as either an emergency or administrative program

and then implemented in accordance therewith;

▪ To allow the OBC to establish an ad hoc committee, made up of employees of the

Nation, to assist in the implementation of furlough programs;

▪ To add more due process to the Law by:

• Specifying how notice must be provided to employees of the Nation who are

subject to a furlough program;

• Requiring the Human Resources Department to add training on Indian

preference to its employee orientation that includes, at a minimum:

o The history behind Indian preference, including the role the Bureau

of Indian Affairs (“BIA”) had in its development;

o The Indian Self-Determination and Education Assistance Act of

1975, as well as the exception to Title VII of the Civil Rights Act of

1964 for Indian preference; and

o Examples of how Indian preference would apply to a furlough

program using methods such as hypotheticals and charting.

• Requiring Direct Report Level positions/supervisors, who are responsible for

implementing a furlough program, to undergo training on the application of

the Law every two (2) years; and

• Broadening the scope of claims that an employee placed in furlough status

can bring on an appeal under the Law.

To enable the Nation to implement a furlough as a tool to remedy an operating budget

deficit when a decrease or lapse of revenue or funding and/or any other budget situation

warranting an unpaid leave is identified. [2 O.C. 205.1-1 and 205.1-2].

Employees of the Oneida Nation; Human Resources Department; the Oneida Business

Committee, Oneida Nation employees in Direct Report Level and supervisory positions,

along with their authorized designees;

Legislative Procedures Act, Layoff Policy; Open Records and Open Meetings law;

Budget Management and Control law; Boards, Committees and Commissions law;

Personnel Policies and Procedures law.

A public meeting has not yet been held.

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Fiscal Impact

A fiscal impact statement has not yet been requested.

SECTION 2. LEGISLATIVE DEVELOPMENT

A. The Furlough Policy, which will be referred to as the Furlough law upon adoption of the proposed

amendments, was first adopted by OBC on November 10, 2015, through resolution BC-11-10-15-B. [2

O.C. 205.2-1]. The Law was established to enable the Nation to implement a furlough as a tool to

remedy an operating budget deficit when a decrease or lapse of revenue or funding and/or any other

budget situation warranting an unpaid leave is identified. [2 O.C. 205.1-1; 2 O.C. 205.1-2].

B. On October 7, 2020, the Legislative Operating Committee (“LOC”) added this item to the Active Files

List to incorporate Indian preference into the Law, as well as to provide clarity regarding certain other

processes within the Law that were flagged for review following the recent furlough program that was

implemented in response to the COVID-19 pandemic.

C. This will be the first time that the Law has been amended since its adoption in 2015; thus, along with

the substantive amendments that resulted from the collaboration referenced further herein, the Law was

updated to reflect the Nation’s current legislative practices/customs that are less substantive in nature

(e.g., replacing the word “Tribe” with “Nation” and re-formatting per the Legislative Procedures Act).

SECTION 3. CONSULTATION AND OUTREACH

A. Departments. Representatives from the following departments participated in the development of this

Law:

▪ Human Resources Department

▪ General Manager - Retail

▪ Employee Relations Department

▪ Gaming Employee Services

B. Laws of the Nation. The drafting of this legislative analysis included a review of the following laws

of the Nation: Boards, Committees and Commissions law [1 O.C. 105]; Open Records and Open

Meetings law [1 O.C. 107]; Legislative Procedures Act [1 O.C. 109]; Budget Management and Control

law [1 O.C. 121]; Layoff Policy [2 O.C. 207]; Conflict of Interest law [2 O.C. 217]; Emergency

Management law [3 O.C. 302]; Oneida Nation Gaming Ordinance [5 O.C. 501]; Indian Preference in

Contracting law [5 O.C. 502]; and Personnel Policies and Procedures law.

C. Area and Tribal Laws. The following federal, state and tribal laws were also reviewed in the

development of this legislative analysis:

▪ Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e;

▪ The Indian Self Determination and Education Assistance Act of 1975, 25 U.S.C. § 450(c);

▪ Federal and state laws related to labor and employment standards for exempt and non-exempt

employees;

▪ Unemployment insurance benefits laws of the State of Wisconsin;

▪ Stockbridge-Munsee Tribal Law, Chapter 54 – Employee Preference Policy Ordinance;

▪ Coquille Indian Tribal Code, Chapter 188, Part 1 – General Governmental Affairs – Tribal

and Indian Preference in Employment; and

▪ Nez Perce Tribe’s Human Resources Manual.

SECTION 4. PROCESS

A. Thus far, the amendments to this Law have followed the process set forth in the Legislative Procedures

Act (“LPA”).

B. The Law was added to the Active Files List on October 7, 2020.

C. The following work meetings were held by the Legislative Reference Office in the development of the

amendments to this Law:

▪ October 22, 2020, a meeting was held with Councilwoman, Marie Summers, to briefly discuss

her basis for requesting that the Furlough law be added to the Active Files List.

▪ November 13, 2020, a work meeting was held with representatives from the Human Resources

Department (“HRD”) and Retail.

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January 26, 2021, a work meeting was held with representatives from the HRD and Retail.

February 3, 2021, a work meeting was held with the LOC.

February 17, 2021, a work meeting was held between the LOC and representatives from the

HRD, Gaming Employee Services and Retail.

February 25, 2021, a work meeting was held with the LOC.

April 9, 2021, a work meeting was held with the LOC.

April 13, 2021, a work meeting was held with the LOC.

June 10, 2021, a work meeting was held with the LOC.

July 8, 2021, a work meeting was held with representatives from the HRD, Gaming Employee

Services and Retail.

July 21, 2021, a work meeting was held with the LOC.

August 18, 2021, a work meeting was held with the LOC.

August 26, 2021, a work meeting was held with the LOC.

September 23, 2021, a work meeting was held with the LOC.

SECTION 5. CONTENTS OF THE LEGISLATION

A. Indian Preference. Currently, the Law does not allow Indian preference to be used as a consideration

in identifying which employees of the Nation to place in furlough status upon the implementation of a

furlough program. [2 O.C. 205.5-4]. The proposed amendments will incorporate Indian preference into

the Nation’s furlough programs and require that it be applied when deciding the order in which

employees of the Nation are placed in furlough status, upon initiation of a furlough program, as well as

recalled back to work when the program ends. [2 O.C. 205.1-1(c); 2 O.C. 205.4-2].

▪ Basis for Preference. Federal laws have been adopted by the United States Congress to combat

employment and economic discrimination that remains from the forcible removal of Indigenous

people from their homelands.

o Indian Self-Determination and Education Assistance Act of 1975. Through the Indian SelfDetermination and Education Assistance Act of 1975 (“ISDEAA”), tribes are authorized

to provide their own services created by the federal trust responsibility. ISDEAA allows

tribes to assume administrative responsibility for federally funded programs designed for

their benefit, primarily services which are administered by the BIA and the Indian Health

Service. [25 U.S.C. § 5130].

Title VII of the Civil Rights Act of 1964. Title VII of the Civil Rights Act of 1964 (“Title

VII”) prohibits preferential employment practices that are based on race, religion, color,

sex or national origin. However, Title VII contains an exception for Indian preference that

reads: “nothing contained in this title shall apply to any business or enterprise on or near

an Indian Reservation with regard to any publicly announced employment practice of such

business or enterprise under which preferential treatment is given to an individual because

he or she is Indian.” [42 U.S.C. § 2000e-2(i)(emphasis added.)].

By adding Indian preference to the Law, the Nation is exercising its sovereign power to help protect

the gainful employment of its members and eradicate discrimination against Indian people in the

workforce. Also, it is fulfilling the prerequisite to Title VII’s exception by publicly announcing that

the Nation intends to afford preferential treatment to its citizens and citizens of other federally

recognized Indian tribes when implementing a furlough program under the Law.

Applying Preference Levels. Under section 205.4-2 of the proposed amendments and subject to

any exceptions set forth within the Law, the Nation’s furlough programs will now be administered

in a manner that affords preferential treatment to Indian people in the following order, starting with

the category of employees to be given the highest level of preference:

▪

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Highest Preference Level

Enrolled Members of the Oneida Nation

Oneida Citizens Eligible for Enrollment in

the Oneida Nation

Documented First Generation

Oneida Descendants

Indians

Non-Indians

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Lowest Preference Level

[2 O.C. 205.4-2(c)].

Definitions. To ensure consistency in the application of Indian preference to the Nation’s furlough

programs, the following definitions were added to the Law to help clarify where employees of the

Nation fall within the preference spectrum:

o Indian preference – means preference for Indian people, regardless of tribal affiliation, in

all aspects of employment, with Oneida citizens being afforded the highest levels of

preference for purposes of this law. [2 O.C. 205.3-1(h)];

o Indian – means any person, other than an Oneida citizen, who is a citizen of a federallyrecognized Indian tribe, other than the Oneida Nation. [2 O.C. 205.3-1(g)]; and

o Oneida citizen – means those persons who are enrolled members of the Nation, eligible for

enrollment in the Nation or documented first generation Oneida descendants. [2 O.C.

205.3-1(j)].

Effect. By adding Indian preference into the Law and, absent an exception, requiring that it be

applied to give preference according to the above diagram, with the highest level of preference

being afforded to the top category of employees, no employee of the Nation who is an Oneida

citizen or an Indian person, as defined within the Law, shall be placed in furlough status so long as

an employee, within the same department or division and position, who is non-Indian remains

employed. [2 O.C. 205.4-2].

B. Application [2 O.C. 205.4]. Section 205.4 of the proposed amendments titled, Application, replaces

section 205.4 of the current Law titled, Furlough. This section was added, not only to publicly declare

the incorporation of Indian preference into the Nation’s furlough programs (as discussed above), but to

clarify and/or mandate the following with respect to the application of this Law:

▪ That, unless otherwise stated, the Law applies to all employees, as well as employment decisions,

of the Nation that are governed, whether in whole or part, thereby [2 O.C. 205.4-1];

▪ That, but for Indian preference, the Nation is an Equal Opportunity Employer that prohibits the

application of this Law and/or the implementation of a furlough program to occur in a manner that

discriminates based on race, color, religion, sex, pregnancy, age, national origin, citizenship status,

veteran status, physical or mental disability, genetic information and/or any other basis protected

by the anti-discrimination provisions of Title VII [2 O.C. 205.4-3];

▪ That, the HRD will be responsible for introducing new employees of the Nation to the concept of

Indian preference, as well as how it applies to the Nation’s furlough programs, during its employee

orientation training [2 O.C. 205.4-4]; and

o Goal for Orientation. During the development of these amendments, the LOC wanted to

ensure that new employees of the Nation were familiar with the concept of Indian

preference, as well as the history behind it, and how it would be applied to one or more

departments/divisions of the Nation during a furlough program before it happened, as

opposed to first learning about the process during an actual program implementation.

▪ That, furlough programs shall not be:

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Used to resolve performance-related issues, grievances or to take the place of disciplinary

actions [2 O.C. 205.4-5(a)];

Administered or implemented in violation of the Law or any other applicable laws/policies

of the Nation [2 O.C. 205.4-5(b)]; and

Implemented in a manner that requires interdepartmental transfers when applying Indian

preference to the processes set forth within the Law [2 O.C. 205.4-5(c)].

• Effect. When adding Indian preference into the Law, a discussion took place on

whether to require interdepartmental transfers of employees when deciding the

order for placement into furlough status, as well as for recall back to work. Workgroup members, specifically those from the Nation’s revenue generating areas,

raised concerns over how disruptive it could be to have to train an employee from

another department to replace an existing, already trained, employee just to adhere

to the requirements of Indian preference. Section 205.4-5(c) was added to clarify

that interdepartmental transfers are not required when applying Indian preference

during a furlough program.

C. Furlough Implementation Plan [2 O.C. 205.5]. The current section 205.5 of the Law, titled, Furlough

Plans, was retitled, Furlough Implementation Plan, and revised to include certain steps that now must

be taken before a furlough program is even implemented, the goal being for the implementation process

to unfold in a more efficient, organized and consistent manner upon initiation by the OBC. [2 O.C. 205.

5-1(a)(1)]. These pre-implementation activities include:

▪ That, within a reasonable time after the amendments to the Law are adopted, all Direct Report Level

positions, or their authorized designees, are required to submit a furlough implementation plan to

the HRD for approval. [2 O.C. 205.5-1].

o “Authorized designee” is defined in the Law as “an employee identified by a Direct Report

Level position to develop or assist in developing a furlough implementation plan when the

individual employed in the Direct Report Level position is unavailable or requests such

assistance from that employee.” [2 O.C. 205.3-1(b)].

• Effect. By allowing authorized designees to act in the place of a Direct Report

Level position, the Law now addresses situations where a Direct Report Level

position is vacant or subject to placement in furlough status at the time of program

implementation.

▪ That, the HRD shall be required to create the standard template, subject to approval by the OBC,

for the Direct Report Level positions/authorized designees to use when creating their department’s

or division’s furlough implementation plan for approval, the goal of the template being to elicit, at

a minimum, the following information from Direct Report Level positions/authorized designees:

o Which positions within their respective department or division may qualify as a critical

position [2 O.C. 205.5-1(a)(1)(A)];

• “Critical position” is now defined in the Law as “a position of employment within

the Nation that is crucial to governmental functions, including, but not limited to,

health, safety, regulatory compliance and/or revenue generation.” [2 O.C. 205.3-1

(c)]. How critical positions are determined and treated during a furlough program

is discussed further below in this analysis.

o Which employees within their respective department or division may qualify for Indian

preference and the corresponding level of preference that would apply under section 205.4

of the Law [2 O.C. 205.5-1(a)(1)(B)];

o Which positions and/or employees within their respective department or division may be

exempt from the application of Indian preference and the basis for said exemption [2 O.C.

205.5-1(a)(1)(C)];

o Whether any employees within their respective department or division may be interested

in volunteering to be placed in furlough status if a furlough program were implemented [2

O.C. 205.5-1(a)(1)(D)]; and

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Whether any positions within their respective department or division are capable of being

adjusted to promote Indian preference when deciding which employees to place in furlough

status [2 O.C. 205.5-1(a)(1)(E)].

• Point of Clarification. The purpose of section 205.5-1(a)(1)(E) is to have Direct

Report Level positions/authorized designees explore whether a position or position

description, within their department/division, can be adjusted to better advance the

goal of Indian preference – not to require Direct Report Level positions/authorized

designees to consider the transfer of employees from one department/division to

another since, as indicated above, section 205.4-5(c) prohibits the application of

Indian preference to occur in such manner.

That, the HRD shall create a Standard Operating Procedure (“SOP”) setting forth how a furlough

implementation plan shall be processed under the Law once the standard template is approved by

the OBC, which must, at a minimum, address:

o How the standard template will be distributed to the Direct Report Level positions or their

authorized designees [2 O.C. 205.5-1(b)(1)];

o The process for Direct Report Level positions and/or authorized designees to follow upon

receiving the standard template, including:

• How to create a furlough implementation plan using the standard template [2 O.C.

205.5-1(b)(2)(A)]; and

• How to submit a furlough implementation plan to the HRD for approval and how

long the Direct Report Level positions/authorized designees have to submit their

plans to the HRD after receiving the standard template [2 O.C. 205.5-1(b)(2)(B)

and 205.5-1(b)(2)(C)].

o How the HRD will process furlough implementation plans for approval upon submission

by the Direct Report Level positions/authorized designees [2 O.C. 205.5-1(b)(3)]; and

o How the HRD will notify the Direct Report Level positions/authorized designees of its

decision to approve or reject their furlough implementation plan and, if rejected, the reason

for the rejection and the process for resubmitting the furlough implementation plan for

reconsideration [2 O.C. 205.5-1(b)(4)].

And that, both the HRD and Direct Report Level positions/authorized designees shall review their

standard template and furlough implementation plan, respectively, every two (2) years to assess

whether they need to be updated to better advance the underlying goals/policies of the Law or

account for any relevant changes within departments/divisions or the organization in general. [2

O.C. 205.5-2].

o Any changes to either the standard template or furlough implementation plan must go

through the same approval process as the original versions. [2 O.C. 205.5-2(a) & (b)].

D. Furlough Implementation [2 O.C. 205.6]. This section was added to govern the implementation of a

furlough program, starting with its inception, causing the current section 205.6 titled, Supervisor

Responsibilities, to be moved to a later section within the Law. Under the proposed amendments, a

furlough program must still be initiated through a directive by resolution of the OBC, as is currently

required. [2 O.C. 205.4-1; Proposed Law 2 O.C. 205.6-2]. However, the following provisions were

added for purposes of clarity, due process and consistency:

▪ Alternatives to Furlough. Prior to initiating a furlough program through adoption of a resolution,

the OBC will now be required to consider whether any reasonable alternative(s) to a furlough exist

and, if so, must exhaust said alternative(s) before initiating the furlough, so long as the burden of

doing so on the Nation as a whole does not outweigh the benefit to the employees who may be

affected by the furlough program at issue. [2 O.C. 205.6-1].

▪ Contents of the Furlough Resolution. In addition to the directive and the furlough dates that are

already required in the current Law [2 O.C. 205.4-1], under the proposed amendments, the furlough

resolution will also have to include the following:

o The OBC’s basis for implementing the furlough program at issue [2 O.C. 205.6-2(a)(1)];

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Whether the furlough is being implemented as an administrative or emergency program [2

O.C. 205.6-2(a)(2)];

• Program Distinctions. In the proposed Law, a furlough must be characterized as

either an emergency or administrative program and then carried out in accordance

with said characterization. [2 O.C. 205.6-3]. The basis for adding this distinction

and its impact upon implementation are discussed further below.

o If feasible under the circumstances and then to the extent thereof, the beginning and ending

dates of the furlough program [2 O.C. 205.6-2(a)(3)];

o If feasible under the circumstances and then to the extent thereof, which areas within the

Nation will be subject to the furlough program and which positions, if any, are considered

critical positions exempt from placement in furlough status [2 O.C. 205.6-2(a)(4)]; and

o Whether an ad hoc committee will be established to assist in the implementation of the

furlough program [2 O.C. 205.6-2(a)(5)].

Ad Hoc Committee. Under the proposed Law, the OBC may, in its discretion, establish an ad hoc

committee to assist with the implementation of a furlough program by, including, but not limited

to, helping the OBC identify which areas of the Nation should be subject to the furlough program,

as well as which positions, if any, should be deemed critical, and thus, exempt from placement in

furlough status. [2 O.C. 205.6-2(b)]. If established, the ad hoc committee:

o Must be made up of employees of the Nation, identified by the OBC within the furlough

resolution or through a subsequent resolution/motion, who possess an expertise relative to

the type and severity of the event giving rise to the furlough at issue [2 O.C. 205.6-2(b)(1)];

• Note. Although the proposed Law requires the OBC to state whether it intends to

establish an ad hoc committee in the furlough resolution, it gives the OBC a little

more flexibility with respect to identifying committee members by allowing the

identification to occur within the furlough resolution or a subsequent resolution/

motion.

o Must meet as necessary and at the request of the OBC to carry out the OBC’s directives

consistent with the Law [2 O.C. 205.6-2(b)(2)];

o Is not subject to the Boards, Committees and Commissions law and members of the ad hoc

committee are not entitled to receive stipends or any other form of compensation, other

than their employee pay, for serving on the committee [2 O.C. 205.6-2(b)(3)]; and

o Will dissolve upon conclusion of the furlough program for which it was established or on

an early date determined by the OBC [2 O.C. 205.6-2(b)(4)].

Furlough Programs. Under the proposed amendments, a furlough must be implemented as either

an administrative or emergency program upon initiation and then carried out in accordance with

the portions of section 205.6 that apply to such characterization. [2 O.C. 205.6-3].

o Applicable to Both Programs. In addition to the provisions that will govern the specific

furlough program being initiated, the following will apply to either program, regardless of

characterization during the implementation phase:

• That, employees must receive notice of the implementation of a furlough in writing

and the notice must contain, at a minimum:

➢ Advanced warning that, if recalled back to work, the failure to respond to

the recall within ten (10) business days of receiving the written notice of

recall will be treated as a resignation of employment by that employee per

the governing laws of the Nation [2 O.C. 205.6-3(a)(1)(A)]; and

➢ A directive that it is the employee’s responsibility to ensure that the Nation

has his or her most up-to-date contact information throughout the furlough

period [2 O.C. 205.6-3(a)(1)(B)].

• That, the written notice shall be sent to employees using the outlet or outlets

deemed most capable of reaching them in as efficient a manner as possible under

the circumstances. [2 O.C. 205.6-3(a)(2)].

o Emergency Furlough Programs. Under the proposed amendments, the OBC may initiate a

furlough program on an emergency basis when in the best interest of the Nation due to Acts

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of God that require an immediate curtailment of activities within the organization. [2 O.C.

205.6-3(b)].

• A definition for “Acts of God” was added to the Law to mean “an event or effect

that can be neither anticipated nor controlled, including both acts of nature, such

as floods and hurricanes, and acts of people, such as riots, strikes, and wars.” [2

O.C. 205.3-1(a)].

• Effect. More flexibility is given to the Nation when initiating an emergency versus

an administrative furlough program since, by its very title/definition, the event

giving rise to the need for an emergency furlough program will be unexpected

and/or unpredictable. As such, if the OBC cannot accurately determine the start or

end date of the emergency furlough program being implemented, the Law allows

for it to provide said dates with as much advanced notice as is reasonably possible

under the circumstances. [2 O.C. 205.6-3(b)(1)].

➢ Although the LOC wanted to offer some flexibility when it comes to

emergency furlough programs, it also wanted to ensure that employees

affected by the implementation of an emergency furlough program were

not in a state of limbo for an indeterminate amount of time. Thus, the LOC

added a provision stating: “No emergency furlough program implemented

hereunder shall last for longer than twenty-six (26) weeks from the date

of implementation unless extended by the OBC through a subsequent

resolution.” [2 O.C. 205.6-3(b)(2)].

Administrative Furlough Programs. Unlike emergency furlough programs, administrative

furlough programs would be initiated by the OBC in response to a foreseeable event that

is likely to result in a temporary reduction in revenue/funding or some other organizational

issue where the intent is to recall employees back to work once the event has subsided. [2

O.C. 205.6-3(c)]. With administrative furloughs, a minimum of five (5) business days of

advance notice to employees is required, as well as specific dates in which the program

will begin and end. [2 O.C. 205.6-3(c)(1) & 2].

• Effect. The basis for including the language “where the intent is to recall employees

back to work once the event has subsided” is to create a definitive line for when a

furlough may be used in place of a layoff. For example, if the event is likely to

result in a reduction of revenue, but is not temporary in nature, the requirement

that there be intent to recall employees back to work would be missing, and thus,

a layoff of the employees affected would be the more appropriate and equitable

avenue. [See 2 O.C. 205.6-3(c)(3) “If the intent to bring employees back is not

present or is improbable at the time employee reductions are deemed necessary,

employees shall be selected for layoff, as opposed to placement in furlough status,

consistent with the laws and polices of the Nation governing employee layoffs.”].

E. Placing Employees in Furlough Status [2 O.C. 205.7]. This section was added to the Law to provide

more direction on how employees of the Nation are to be selected for placement in furlough status upon

the implementation of a program to ensure more consistency, regardless of department/division, in the

application of this Law. [2 O.C. 205.7-1]. According to this section, once a furlough program is initiated

and the appropriate Direct Report Level positions/authorized designees are notified of the same,

employees within a department/division impacted by the program will be retained and placed in

furlough status as follows:

▪ Critical Positions. If the OBC, or the ad hoc committee per the OBC’s request and subject to its

approval, has identified critical positions within an affected department/division, those positions

would be exempt from placement into furlough status during the specific furlough program for

which the position was deemed critical. [2 O.C. 205.7-2].

o Exception. If, after the initial identification of critical positions occurs, the OBC determines

that it is necessary to cut some or all of a position within a department/division that is

deemed critical, it may do so through adoption of a subsequent resolution. [2 O.C. 205.7-

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▪

2(b)]. Employees within the same critical position that are later subject to reduction per

this exception shall be placed in furlough status pursuant to the order of preference and

priority established in section 205.7 and recalled back to work pursuant to the order of

preference and priority established in section 205.9 of the Law. [2 O.C. 205.7-2(b)(1)].

Non-Critical Positions. When deciding the order for placing non-critical positions in furlough

status, the proposed Law states, generally, that “[d]irectives from the Oneida Business Committee

regarding employee furlough reductions … shall be carried out by the Direct Reports Level position

/authorized designee of the affected department/division in a manner that furthers the policy behind

Indian preference to the greatest extent possible without rendering the affected department/division

inoperable or unable to reasonably conduct business.” [2 O.C. 205.7-3]. And specifically, it dictates

that, absent an exception, the following order shall be adhered to when placing non-critical position

employees within the same department or division in furlough status:

o Temporary Employees. Temporary employees within a department or division that is

affected by a furlough program implementation shall be the first category of employees to

be placed in furlough status. [2 O.C. 205.7-3(a)].

• A temporary employee is defined as an employee hired by the Nation for a shortterm assignment and consists of the following classifications: (1) Emergency/

Temporary; Limited Term; Seasonal; Substitute/Relief; Youth Worker; and

Student/Intern. [2 O.C. 205.3-1(a)(l)].

o Volunteer Employees. Following the placement of temporary employees in furlough status,

eligible employees who volunteer for said placement shall be the next category of

employees to be placed in furlough status. [2 O.C. 205.7-3(b)].

• In order to ensure that any employee who volunteers for placement in furlough

status does so of his or her own free will, the following was added to the Law to

govern this category of employees:

➢ That, employees who volunteer to be placed in furlough status must sign

a form, created by the HRD, confirming as follows:

1. They volunteered to be placed in furlough status notwithstanding

any preference or eligibility for retention that they may have;

2. Their decision to volunteer was not coerced or based on any

promises of compensation or other consideration; and

3. They understand that they are not guaranteed a recall back to

work and, as a result, could be terminated from their employment

with the Nation. [2 O.C. 205.7-3(a)(2)(A)(i)-(iii)].

o Indian Preference. Absent an express exception and following placement of the first two

categories, when the remaining number of employees in the same position within a

department or division exceeds the number of said employees to be placed in furlough

status, the order of placement shall occur in the following order, beginning with the first

category:

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1 Order for Placement in Furlough Status (First to Last)

Non-Indians

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Oneida Descendants

Oneida Citizens Eligible

for Enrollment in the

Oneida Nation

Enrolled Members

of the Oneida

Nation

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Illustrative Hypothetical: Following a tornado, a portion of Department A’s building suffers structural

damage that makes it impossible for all its employees to conduct business therein. The damage will

take approximately six (6) weeks to repair. In response, the OBC implements an administrative furlough

program, through adoption of a resolution that instructs the Direct Report Level position for Department

A to place half of its non-critical employees in furlough status until the repairs are done. Department A

has thirty (30) employees who incumbent (3) positions as follows:

Department A

(30 Total Employees)

Position #1

(6 Employees)

Critical

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Position #2

Position #3

(10 Employees)

(14 Employees)

Scenario A: Position #1 is deemed critical, and thus, exempt from placement in furlough status. [2

O.C. 205.7-2]. This leaves Positions #2 and #3 subject to placement in furlough status per the

OBC’s directive. In accordance with the general requirement that placement in furlough status

occur in a manner that adheres to Indian preference to the greatest extent without rendering

Department A inoperable or unable to reasonably conduct business, the Direct Reports Level

position decides to cut five (5) employees from Position #2 and seven (7) employees from Position

#3.

Position #2: Of the ten (10) employees in Position #2, three (3) of the employees are NonIndian, two (2) of the employees are Indian, and the remaining five (5) employees are a

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combination of Nation Members or Documented First Generation Descendants of the

Nation. Result – The three (3) Non-Indian employees and two (2) Indian employees will

be placed in furlough status, while the remaining five (5) employees, who are either

Members of the Nation or Documented First Generation Descendants, will remain

working.

Position #3: Of the fourteen (14) employees in Position #3, four (4) of the employees are

Non-Indian and the remaining ten (10) employees are Members of the Nation. Result –

The four (4) Non-Indian employees will be placed in furlough status, leaving three (3) of

the remaining ten (10) employees in the same preference category – i.e., Members of the

Nation – subject to placement in furlough status. In order to decide which three (3) of the

ten (10) Members to place in furlough status, the Direct Reports Level position would have

to look to section 205.7-3(a)(4) of the Law, which lays out how to prioritize the retention

of employees who remain in the same preference category, following application of Indian

preference. Section 205.7-3(a)(4) provides as follows:

1. Seniority. Employees who have served the Nation as a regular status employee

without a break in employment for the longest amount of time shall be afforded

the highest level of retention priority;

2. Veteran Status. If employees remain after applying the priority for seniority,

employees with veteran status shall be afforded the next level of retention

priority over the other employees who remain within the same preference

category; and

3. Performance Evaluation. If employees remain after applying the priority for

veterans, employees with a more favorable performance evaluation shall be

afforded retention priority over the employees with a less favorable

performance evaluation who remain within the same preference category.

❖ Note: The Law requires that the most current performance

evaluation in existence on the date the OBC adopts the furlough

resolution at issue shall be the evaluation that is used when assessing

priority under this last category. [2 O.C. 205.7-3(a)(4)(C)(i)].

G. Furloughed Employees [2 O.C. 205.8]. This section of the Law was amended to allow for the OBC to

continue providing certain benefits to employees placed in furlough status on a case-by-case basis,

subject to budgetary constraints, as well as any governing policies or agreements underlying said

benefits. In addition, overtime and additional duty pay may be offered on a case-by-case basis, subject

to approval by the OBC. [2 O.C. 205.8-4; 2 O.C. 205.8-5].

▪ Effect. Under the current law, employees placed in furlough status were not entitled to benefits,

such as medical insurance. Under the proposed amendments, if the Nation is able, both financial

and contractually, employees will continue to receive benefits while in furlough status. And, if the

employees who remain working are working a significant amount of overtime or taking on a

substantial number of additional duties, the OBC now has the authority to approve overtime and

extra duty pay on a case-by-case basis.

H. Recall of Furloughed Employees [2 O.C. 205.9]. This section of the Law provides more guidance on

the process for recalling back to work those employees who were placed in furlough status. With respect

to the order for recalling back to work, Indian preference is applied in the reverse order as set forth in

section 205.7 of the Law and contains the same priority requirements to be applied when the number

of employees who remain in the same preference category exceeds the number to be recalled upon the

close of the furlough program at issue.

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Enrolled Members of the Oneida Nation

Oneida Citizens Eligible for

Enrollement in

the Oneida Nation

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Oneida Descendants

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Non-Indians

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This section of the Law was further amended to provide additional direction regarding the following:

▪ Volunteers. With respect to those employees who volunteered for placement in furlough status, the

proposed Law makes clear that those employees who qualify for the preference and priority as set

forth within this section will retain such preference/priority regardless of volunteering and will be

given additional priority over others within the same preference and priority category who did not

volunteer. [2 O.C. 205.9-1(b)].

▪ Notice of Recall and Responses. With respect to what is expected of employees placed in furlough

status who are recalled back to work, the proposed Law now states:

o That, a failure to respond to the notice of recall within ten (10) business days of the

employee’s receipt thereof shall be interpreted to mean that the employee does not intend

to return on the date of his or her recall and treated as a resignation of employment by that

employee per the governing laws and policies of the Nation. [2 O.C. 205.9-2(b)].

I. Responsibilities of Direct Report Level and Supervisor Positions [2 O.C. 205.10]. This section of the

Law was amended to include a requirement that persons employed in Direct Reports Level and supervisory

positions with the Nation, along with any of their authorized designees, shall be responsible for undergoing

training, provided by the HRD, on the application of the Law, as well as the programs to be implemented

thereunder. [2 O.C. 205.10-1(a)].

J. Appeal [2 O.C. 205.11]. The proposed amendments to the Law expand the basis upon which an

employee can file an appeal from claims that a placement in furlough status was based on a disciplinary

reason to claims that a placement in furlough status occurred in violation of the Law. [2 O.C. 205.11-1].

SECTION 6. RELATED LEGISLATION

A. Reference to Other Laws. The following laws of the Nation are referenced in the proposed Law, and

thus, are required to be followed absent a legislative exception, or were contemplated during the

development of the proposed amendments or this legislative analysis.

▪ Open Records and Open Meetings [1 O.C. Chapter 107]. This law sets the requirements for how

meetings of the Nation’s governmental bodies shall be conducted, as well as how materials from

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that meeting shall be maintained and made available to the public. [1 O.C. 107.1 & 107.12]. Section

107.9 of the Open Records and Open Meetings law governs the retention of records that are

produced in the course of governmental business. [1 O.C. 107.9-1]. It provides, in pertinent part,

that “[u]nless an alternate retention period is approved by the Oneida Business Committee for

specific records and except as otherwise provided by law, all records shall be retained at least seven

(7) years before destruction.” [1 O.C. 107.9-4]. The proposed amendments do not conflict with the

portion of the Open Records and Open Meetings law that governs the release and retention of

records.

▪

Social Media Policy [2 O.C. Chapter 218]. This law regulates social media accounts, including

how content is managed and published on behalf of the Nation. [2 O.C. 218.1-1]. Employees who

obtain outside employment while in furlough status under a program governed by the proposed

Law will be required to still adhere to the social media requirements that apply to employees of the

Nation pending their recall back to work. There are no conflicts between the proposed amendments

and the Nation’s Social Media Policy.

▪

Computer Resources Ordinance [2 O.C. Chapter 215]. This law regulates the use of computer

resources that are owned and operated by the Nation and, among other individuals, applies to

employees of the Nation. [2 O.C. 215.1-1 & 215.3-1]. Employees who obtain outside employment

while in furlough status under a program governed by the proposed Law will be required to still

adhere to the provisions of this law that apply to employees of the Nation pending their recall back

to work. There are no conflicts between the proposed amendments and the Nation’s Computer

Resources Ordinance.

▪

Conflict of Interest [2 O.C. Chapter 217]. This law establishes specific limitations on the handling,

as well as sharing, of information/materials that are confidential in nature or could be used by the

Nation’s competitors and providers during negotiations to the Nation’s detriment. [2 O.C. 217.11]. It applies to the Nation’s employees, contractors, elected officials, officers, political appointees

and appointed/elected members of the Nation’s boards, committees and commissions. [2 O.C.

217.1-1]. Employees who obtain outside employment while in furlough status under a program

governed by the proposed Law will be required to still adhere to the provisions of this law that

apply to employees of the Nation pending their recall back to work. There are no conflicts between

the proposed amendments and the Nation’s Conflict of Interest law.

▪

Layoff Policy [2 O.C. Chapter 207]. This law establishes a fair, respectful policy for employee

layoff and recall which enables Oneida Nation programs and enterprises to operate effectively and

efficiently in varying economic conditions within the parameters of Oneida Nation Seventh

Generation Mission, Priorities and Objectives. [2 O.C. 207.1-1]. There are no conflicts between

the proposed amendments and the Nation’s Conflict of Interest law.

o It is worth noting that the Layoff Policy is on the LOC’s Active Files List for amendment

this term. Any gaps in the law or provisions that could be interpreted to conflict with the

proposed amendments to this Law will be amended accordingly and consistently with the

LOC’s policy/basis for placing both the Layoff Policy and Furlough Policy on the Active

Files List for amendment.

▪

Personnel Policies and Procedures. The Personnel Polices and Procedures law provides employees

with a ready source of information about employee related Oneida Nation polices and procedures

that apply to all employees. [PPP, Section 1]. There are no conflicts between the proposed

amendments and the Nation’s Personnel Policies and Procedures law.

SECTION 7. OTHER CONSIDERATIONS

A. Added Points of Clarification/Processes.

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▪

The LOC may want to consider adding a provision within the law that addresses what happens

to the Nation’s temporary employees once placed in furlough status (e.g., is there a possibility

for recall or are they just termed earlier than anticipated in accordance with the governing

process).

▪ Section 205.11 of the proposed Law provides, without exception, that the decision of the Direct

Report Level position/authorized designee on appeal is final, and thus, not subject to further

review by the Judiciary or any other agency. The LOC may want to consider whether any

exception to this provision should be added when, for example, the decision of the Direct

Report Level position/authorized designee is egregious or in contradiction of governing law.

B. Fiscal Impact.

▪ Under the Legislative Procedures Act, a fiscal impact statement is required for all legislation

except emergency legislation. [1 O.C. 109.6-1].

▪ Oneida Business Committee resolution BC-09-25-19-A requires that when developing a fiscal

impact statement for the adoption of proposed legislation by the Oneida Business Committee

the Finance Department shall, within ten (10) business days of final approval of draft legislation

by the Legislative Operating Committee, provide a fiscal impact statement to the Legislative

Operating Committee.

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ONEIDA NATION PUBLIC COMMENT

PERIOD NOTICE

Due to the COVID-19 Public Health Emergency

Only Written Comments Will Be Accepted Until:

THURSDAY, November 11, 2021

Find Public Meeting Materials at

Oneida-nsn.gov/government/register/public meetings

Send Public Comments to

LOC@oneidanation.org

Ask Questions here

LOC@oneidanation.org

FURLOUGH LAW AMENDMENTS

The purpose of this law is to enable the Nation to implement a furlough as a tool to remedy an

operating budget deficit when a decrease or lapse of revenue or funding and/or any other

budget situation warranting an unpaid leave is identified.

The Amendments to the Furlough law will:

1. Incorporate Indian preference into the law and require that it be applied to the Nation’s furlough process in accordance therewith;

2. Add priority levels to govern the order for placing in furlough status and recalling back to

work those employees who remain after the application of Indian preference;

3. Clarify the process for preparing, initiating, and implementing a furlough program;

4. Require that a furlough be initiated as either an emergency or administrative program and

then be implemented in accordance with such characterization;

5. Allow the Oneida Business Committee to establish an ad hoc committee, made up of employees of the Nation, to assist in the implementation of furlough programs; and

6. Add more due process and training requirements to the law.

For more information on the Amendments to the Furlough law please review the public comment packet at oneida-nsn.gov/government/register/public meetings.

PUBLIC COMMENT PERIOD CLOSES THURSDAY, NOVEMBER 11, 2021

*In accordance with Oneida Business Committee resolution BC-08-03-21-A, Setting Public Gathering Guide-

lines during Public Health State of Emergency—COVID-19, indoor and outdoor gatherings are prohibited

when the COVID-19 infection rates within Brown or Outagamie Counties exceed “Low” as identified by the

Wisconsin Department of Health Services. Although an in-person public meeting will not be held for this

item, a public comment period will still remain open in accordance with the Nation’s COVID-19 Team’s

March 27, 2020 declaration titled “Suspension of Public Meetings under the Legislative Procedures Act”

which provides that the Legislative Procedures Act’s requirement to hold a public meeting during the public

comment period is suspended due to the COVID-19 public health emergency, but individuals can still participate in the legislative process by submitting written comments, questions or other input via e-mail to

LOC@oneidanation.org.

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October 2021

November 2021

SuMo TuWe Th Fr Sa

1 2

3 4 5 6 7 8 9

10 11 12 13 14 15 16

17 18 19 20 21 22 23

24 25 26 27 28 29 30

1 2 3 4 5 6

7 8 9 10 11 12 13

14 15 16 17 18 19 20

21 22 23 24 25 26 27

28 29 30

SUNDAY

MONDAY

TUESDAY

WEDNESDAY

THURSDAY

FRIDAY

SATURDAY

Sep 26

Oct 1

8:30am LOC Prep

(BC_Conf_Roo

m) - Clorissa

9:00am LOC

Meeting

(BC_Conf_Roo

1:30pm Oneida

Personnel

Policies and

Procedures

Emergency

Amendments

9:30am LOC

Work Session

(Microsoft

Teams

Meeting) Clorissa N.

8:30am LOC Prep

(BC_Conf_Roo

m) - Clorissa

9:00am LOC

Meeting

(BC_Conf_Roo

9:30am LOC

Work Session

(Microsoft

Teams

Meeting) Clorissa N.

LOC

Nov 1

10/1/2021 1:39 PM

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.