# Oneida Business Committee (2021) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/tribal%3Aoneida_nation%3A3cbad6f393e8032a ## Record - **Collection:** Tribal code - **Document type:** Tribal code ## Text 1 of 53 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. I. 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 V. Additions VI. Administrative Updates VII. Executive Session VIII. Recess/Adjourn A good mind. A good heart. A strong fire. 2 of 53 Oneida Nation Oneida Business Committee Legislative Operating Committee PO Box 365 • Oneida, WI 54155-0365 Oneida-nsn.gov r'\ mooao 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) I. 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. V. Additions VI. Administrative Items A good mind. A good heart. A strong fire. Legislative Operating Committee Meeting Minutes of September 15, 2021 Page 1 of 2 ~ ONEIDA 3 of 53 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 Page 2 of 2 4 of 53 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. Page 1 of 1 A good mind. A good heart. A strong fire. 5 of 53 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. Page 1 of 2 A good mind. A good heart. A strong fire. 6 of 53 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. Page 2 of 2 ~ ONEIDA 7 of 53 r'\. 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 Page 1 of 4 A good mind. A good heart. A strong fire. 8 of 53 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 A good mind. A good heart. A strong fire. Page 2 of 4 ~ ONEIDA 9 of 53 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. A good mind. A good heart. A strong fire. Page 3 of 4 ~ ONEIDA 10 of 53 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. Page 4 of 4 ~ ONEIDA 11 of 53 Draft 1 – PM Draft 2021 10 06 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 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 31 32 33 34 35 36 37 205.7. 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 (c) Incorporate Indian preference into the furlough program and require that it be applied 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 12 of 53 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 Draft 1 – PM Draft 2021 10 06 (c) “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. (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. (c) In accordance with this section and subject to any express exceptions set forth herein, 2 O.C. 205 – Page 2 13 of 53 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 Draft 1 – PM Draft 2021 10 06 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 (c) Examples of how Indian preference would apply in the event of a furlough program 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 (c) Be implemented in a manner that requires interdepartmental transfers when applying 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 14 of 53 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 156 157 158 159 160 161 162 163 164 165 166 167 168 169 Draft 1 – PM Draft 2021 10 06 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; (C) 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; (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 (C) The amount of time the Direct Report Level positions and/or their 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. (c) Copies of approved furlough implementation plans shall be retained by the Human Resources Department, as well as the Direct Report Level positions and/or authorized 2 O.C. 205 – Page 4 15 of 53 Draft 1 – PM Draft 2021 10 06 170 171 172 173 174 175 176 177 178 179 180 181 182 183 184 185 186 187 188 189 190 191 192 193 194 195 196 197 198 199 200 201 202 203 204 205 206 207 208 209 210 211 212 213 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. (c) Nothing in this section shall be interpreted to prohibit an earlier review of the standard 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. 2 O.C. 205 – Page 5 16 of 53 214 215 216 217 218 219 220 221 222 223 224 225 226 227 228 229 230 231 232 233 234 235 236 237 238 239 240 241 242 243 244 245 246 247 248 249 250 251 252 253 254 255 256 257 Draft 1 – PM Draft 2021 10 06 (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. 2 O.C. 205 – Page 6 17 of 53 258 259 260 261 262 263 264 265 266 267 268 269 270 271 272 273 274 275 276 277 278 279 280 281 282 283 284 285 286 287 288 289 290 291 292 293 294 295 296 297 298 299 300 301 Draft 1 – PM Draft 2021 10 06 (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. (c) Administrative Furlough Program. An administrative furlough program may be 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 2 O.C. 205 – Page 7 18 of 53 302 303 304 305 306 307 308 309 310 311 312 313 314 315 316 317 318 319 320 321 322 323 324 325 326 327 328 329 330 331 332 333 334 335 336 337 338 339 340 341 342 343 344 345 Draft 1 – PM Draft 2021 10 06 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. (C) 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. 2 O.C. 205 – Page 8 19 of 53 346 347 348 349 350 351 352 353 354 355 356 357 358 359 360 361 362 363 364 365 366 367 368 369 370 371 372 373 374 375 376 377 378 379 380 381 382 383 384 385 386 387 388 389 Draft 1 – PM Draft 2021 10 06 (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; (C) Documented first generation Oneida descendants; (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 (C) 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. (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 2 O.C. 205 – Page 9 20 of 53 390 391 392 393 394 395 396 397 398 399 400 401 402 403 404 405 406 407 408 409 410 411 412 413 414 415 416 417 418 419 420 421 422 423 424 425 426 427 428 429 430 431 432 433 Draft 1 – PM Draft 2021 10 06 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; 2 O.C. 205 – Page 10 21 of 53 434 435 436 437 438 439 440 441 442 443 444 445 446 447 448 449 450 451 452 453 454 455 456 457 458 459 460 461 462 463 464 465 466 467 468 469 470 471 472 473 474 475 476 477 Draft 1 – PM Draft 2021 10 06 (B) Oneida citizens eligible for enrollment in the Oneida Nation; (C) Documented first generation Oneida descendants; (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 (C) Performance Evaluation. If employees remain after applying the 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. 2 O.C. 205 – Page 11 22 of 53 Draft 1 – PM Draft 2021 10 06 478 479 480 481 482 483 484 485 486 487 488 489 490 491 492 493 494 495 496 497 498 499 500 501 502 503 504 505 506 507 508 509 510 511 512 513 514 515 516 517 518 519 520 521 205.10. 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. (c) The Direct Report Level position and/or authorized designee may make a decision 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. 2 O.C. 205 – Page 12 23 of 53 Draft 1 – PM Draft 2021 10 06 522 523 524 525 526 527 528 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 13 24 of 53 Draft 1 (Redline to Current) 2021 08 18 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 I 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 31 32 33 34 35 36 205.5. 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 (c) Incorporate Indian preference into the furlough program and require that it be applied 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 - 2 O.C. 205 – Page 1 25 of 53 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 Draft 1 (Redline to Current) 2021 08 18 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. (c) “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. (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 2 O.C. 205 – Page 2 26 of 53 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 Draft 1 (Redline to Current) 2021 08 18 205.4-1. 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. (c) In accordance with this section and subject to any express exceptions set forth herein, 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 (c) Examples of how Indian preference would apply in the event of a furlough program 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 2 O.C. 205 – Page 3 27 of 53 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 156 157 158 159 160 161 162 163 164 165 166 167 168 Draft 1 (Redline to Current) 2021 08 18 (c) Be implemented in a manner that requires interdepartmental transfers when applying 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; (C) 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; (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 2 O.C. 205 – Page 4 28 of 53 169 170 171 172 173 174 175 176 177 178 179 180 181 182 183 184 185 186 187 188 189 190 191 192 193 194 195 196 197 198 199 200 201 202 203 204 205 206 207 208 209 210 211 212 Draft 1 (Redline to Current) 2021 08 18 (C) The amount of time the Direct Report Level positions and/or their duly 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. (c) Copies of approved furlough implementation plans shall be retained by the Human 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. (c) Nothing in this section shall be interpreted to prohibit an earlier review of the standard 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: 2 O.C. 205 – Page 5 29 of 53 Draft 1 (Redline to Current) 2021 08 18 213 214 215 216 217 218 219 220 221 222 223 224 225 226 227 228 229 230 231 232 233 234 235 236 237 238 239 240 241 242 243 244 245 246 247 248 249 250 251 252 253 254 255 256 (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 2 O.C. 205 – Page 6 30 of 53 Draft 1 (Redline to Current) 2021 08 18 257 258 259 260 261 262 263 264 265 266 267 268 269 270 271 272 273 274 275 276 277 278 279 280 281 282 283 284 285 286 287 288 289 290 291 292 293 294 295 296 297 298 299 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. (c) Administrative Furlough Program. The Oneida Business Committee may initiate an 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. 2 O.C. 205 – Page 7 31 of 53 300 301 302 303 304 305 306 307 308 309 310 311 312 313 314 315 316 317 318 319 320 321 322 323 324 325 326 327 328 329 330 331 332 333 334 335 336 337 338 339 340 341 342 343 Draft 1 (Redline to Current) 2021 08 18 (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: 2 O.C. 205 – Page 8 32 of 53 344 345 346 347 348 349 350 351 352 353 354 355 356 357 358 359 360 361 362 363 364 365 366 367 368 369 370 371 372 373 374 375 376 377 378 379 380 381 382 383 384 385 386 387 Draft 1 (Redline to Current) 2021 08 18 (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 (C) 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) 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. (c) Indian Preference. Absent an express exception and upon application of (a) and (b), 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 2 O.C. 205 – Page 9 33 of 53 388 389 390 391 392 393 394 395 396 397 398 399 400 401 402 403 404 405 406 407 408 409 410 411 412 413 414 415 416 417 418 419 420 421 422 423 424 425 426 427 428 Draft 1 (Redline to Current) 2021 08 18 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. 2 O.C. 205 – Page 10 34 of 53 Draft 1 (Redline to Current) 2021 08 18 429 430 431 432 433 434 435 436 437 438 439 440 441 442 443 444 445 446 447 448 449 450 451 452 453 454 455 456 457 458 459 460 461 462 463 464 465 466 467 468 469 470 471 472 205.5 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; (C) Documented first generation Oneida descendants; (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 (C) Performance Evaluation. If employees remain after applying the 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 2 O.C. 205 – Page 11 35 of 53 473 474 475 476 477 478 479 480 481 482 483 484 485 486 487 488 489 490 491 492 493 494 495 496 497 498 499 500 501 502 503 504 505 506 507 508 509 510 511 512 513 514 515 Draft 1 (Redline to Current) 2021 08 18 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 2 O.C. 205 – Page 12 36 of 53 Draft 1 (Redline to Current) 2021 08 18 516 517 518 519 520 521 522 523 524 525 526 527 528 529 530 531 532 533 534 535 536 537 538 539 540 541 542 543 544 545 546 547 548 549 550 551 552 553 554 555 556 557 558 559 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. (c) the estimated number of employees affected; and (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. (c) Notify the Human Resources Department of the chosen employees and their furlough 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. (c) The Direct Report Level position and/or duly authorized designee may make a decision 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. 2 O.C. 205 – Page 13 37 of 53 Draft 1 (Redline to Current) 2021 08 18 560 561 562 563 564 565 566 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 38 of 53 Analysis to Draft 1 – PM Draft 2021 10 06 FURLOUGH LAW AMENDMENTS LEGISLATIVE ANALYSIS SECTION 1. EXECUTIVE SUMMARY Analysis by the Legislative Reference Office Intent of the Amendments Purpose Affected Entities and Individuals Related 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. Page 1 of 14 39 of 53 Analysis to Draft 1 – PM Draft 2021 10 06 Fiscal Impact 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 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 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. Page 2 of 14 40 of 53 Analysis to Draft 1 – PM Draft 2021 10 06 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 ▪ ▪ ▪ ▪ ▪ ▪ ▪ ▪ ▪ ▪ ▪ ▪ 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: o ▪ Page 3 of 14 41 of 53 Analysis to Draft 1 – PM Draft 2021 10 06 104 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 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 144 145 ▪ ▪ 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: Page 4 of 14 42 of 53 Analysis to Draft 1 – PM Draft 2021 10 06 146 147 148 149 150 151 152 153 154 155 156 157 158 159 160 161 162 163 164 165 166 167 168 169 170 171 172 173 174 175 176 177 178 179 180 181 182 183 184 185 186 187 188 189 190 191 192 193 194 195 196 197 o o o 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 Page 5 of 14 43 of 53 Analysis to Draft 1 – P [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/tribal%3Aoneida_nation%3A3cbad6f393e8032a. Public record. Not legal advice.