Oneida Business Committee (2022)

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Oneida Nation

Oneida Business Committee

Legislative Operating Committee

PO Box 365 • Oneida, WI 54155-0365

Oneida-nsn.gov

ONEIDA

LEGISLATIVE OPERATING COMMITTEE MEETING AGENDA

Business Committee Conference Room - 2nd Floor Norbert Hill Center

February 2, 2022

9:00 a.m.

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

Business Committee resolution BC-12-08-21-B, Updating Public Gathering Guidelines During Public

Health State of Emergency - COVID-19.

Call to Order and Approval of the Agenda

II.

Minutes to be Approved

1. January 19, 2022 LOC Meeting Minutes (pg. 2)

III.

Current Business

1. Furlough Law Amendments (pg. 4)

IV.

New Submissions

Additions

VI.

Administrative Updates

1. Legislative Operating Committee Fiscal Year 2022 First Quarter Report (pg. 61)

VII.

Executive Session

VIII. Recess/Adjourn

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

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Oneida Nation

Oneida Business Committee

Legislative Operating Committee

PO Box 365 • Oneida, WI 54155-0365

Oneida-nsn.gov

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ONEIDA

LEGISLATIVE OPERATING COMMITTEE MEETING MINUTES

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

January 19, 2022

9:00 a.m.

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

Summers (Microsoft Teams)

Others Present: Clorissa N. Santiago, Kristen Hooker, Carmen Vanlanen, Kristal Hill, Brooke

Doxtator, Lawrence Barton, Rhiannon Metoxen (Microsoft Teams), Justin Nishimoto (Microsoft

Teams), Rae Skenandore (Microsoft Teams), Amy Spears (Microsoft Teams), Eric Boulanger

(Microsoft Teams), Katsitsiyo Danforth (Microsoft Teams), Chad Fuss (Microsoft Teams), Tina

Jorgensen (Microsoft Teams), Shannon Davis (Microsoft Teams), Joy Salzwedel (Microsoft

Teams)

Call to Order and Approval of the Agenda

David P. Jordan called the January 19, 2022, 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. December 15, 2021 LOC Meeting Minutes

Motion by Marie Summers to approve the minutes of December 15, 2021 and forward to

the Oneida Business Committee for consideration; seconded by Jennifer Webster. Motion

carried unanimously.

III.

Current Business

1. Oneida Nation Arts Board Bylaws Amendments

Motion by Jennifer Webster to accept the Oneida Nation Arts Board bylaws amendments

and legislative analysis and forward the Oneida Nation Arts Board bylaws amendments to

the Oneida Business Committee for consideration; seconded by Kirby Metoxen. Motion

carried unanimously.

2. Oneida Nation Emergency Planning Committee Bylaws Amendments

Motion by Kirby Metoxen to remove the Oneida Nation Emergency Planning Committee

bylaws amendments from the Active Files List; seconded by Jennifer Webster. Motion

carried unanimously.

IV.

New Submissions

Additions

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

Legislative Operating Committee Meeting Minutes of January 19, 2022

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VI.

Administrative Items

VII.

Executive Session

VIII. Adjourn

Motion by Marie Summers to adjourn at 9:17 a.m.; seconded by Daniel Guzman King.

Motion carried unanimously.

Legislative Operating Committee Meeting Minutes of January 19, 2022

Page 2 of 2

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Oneida Nation

Oneida Business Committee

Legislative Operating Committee

PO Box 365 • Oneida, WI 54155-0365

Oneida-nsn.gov

=DODDDD=

ONEIDA

Legislative Operating Committee

February 2, 2022

Amendments to the Furlough Law

Submission Date: 10/7/2020

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

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 11/11/21.

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

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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

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.

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

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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

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.

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10/6/21 LOC: Motion by Marie Summers to approve the Furlough law amendments public comment period

notice and forward the Furlough law amendments to a public comment period to be held open

until November 11, 2021; Seconded by Jennifer Webster. Motion carried unanimously.

11/11/21:

Public Comment Period Closes. The public comment period for the permanent adoption of

the amendments to the Furlough law closed on November 11, 2021. No written submissions

of comments were received during this public comment period.

11/17/21 LOC: Motion by Marie Summers to accept the public comment period review memorandum;

Seconded by Kirby Metoxen. Motion carried unanimously.

12/1/21 LOC: Motion by Jennifer Webster to approve the updated draft, legislative analysis, and the fiscal

impact statement request memorandum and forward to the Finance Department directing that

a fiscal impact statement be prepared and submitted to the LOC by December 15, 2021;

Seconded by Marie Summers. Motion carried unanimously.

12/1/21:

Work Meeting. Present: David Jordan, Kirby Metoxen, Daniel Guzman King, Marie Summers,

Jennifer Webster, Rhiannon Metoxen, Clorissa Santiago, Carmen Vanlanen, Kristen Hooker.

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

discuss the email from the Human Resources Department regarding the training requirements

being proposed in the amendments to the Furlough law.

12/14/21:

Fiscal Impact Statement Received. The Finance Department provided the fiscal impact

statement for the proposed amendments to the Furlough law, with the impact being found to

be “Indeterminate”.

12/15/21:

Work Meeting. Present: David Jordan, Marie Summers, Jennifer Webster, Daniel GuzmanKing, Kristal Hill, Clorissa Santiago, Kristen Hooker, Carmen Vanlanen. This was a work

meeting held through Microsoft Teams. The purpose of this meeting was to discuss the request

from the Finance Department to either have an additional six (6) weeks to complete the fiscal

impact statement on the proposed amendments to the Furlough law or to accept the finding of

“Indeterminate” as set forth in the fiscal impact statement that the Finance Department

provided to the LOC on December 14, 2021. The next step is for the drafting attorney to send

a follow-up communication to the Finance Department, informing it of the LOC’s decision to

grant it an additional six (6) weeks to complete the fiscal impact statement.

Next Steps:

▪ Approve the Furlough law amendments adoption packet and forward to the Oneida Business

Committee for consideration.

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

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ONEIDA

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Oneida Nation

(H]QOOO

PO Box 365 • Oneida, WI 54155-0365

ONEIDA

Oneida-nsn.gov

TO:

FROM:

DATE:

RE:

Oneida Business Committee

Legislative Operating Committee

Oneida Business Committee

David P. Jordan, LOC Chairperson

February 9, 2022

Adoption of the Amendments to the Furlough Law

Please find the following attached backup documentation for your consideration of the proposed

amendments to the Furlough law:

Resolution: Amendments to the Furlough Law

Statement of Effect: Amendments to the Furlough Law

Furlough Law Amendments Legislative Analysis

Furlough Law Amendments (Redline Draft)

Furlough Law Amendments (Clean Draft)

Furlough Law Amendments Fiscal Impact Statement

Overview

The Nation's Furlough Policy, which will be referred to as the Furlough law ("Law") upon

adoption of the proposed amendments, was established by the Oneida Business Committee

("OBC") on November 10, 2015, through adoption of resolution BC-11-10-15-B, to enable the

Nation to implement a furlough as a tool to remedy an operating 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].

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. This will be the first time

that the Law has been amended since its adoption in 2015; thus, along with the more substantive

changes referenced above, the Law was updated to reflect the Nation's current legislative practices

and customs that are less substantive in nature, such as replacing the word "Tribe" with "Nation"

and re-formatting portions of the Law to comply with the requirements of the Legislative

Procedures Act.

This resolution adopts amendments to the Furlough law which will:

■

Incorporate Indian preference into the Law and require that it be applied to the Nation's

furlough programs in accordance therewith [2 O.C. 205.1-1 (c)J;

■

Add priority levels to govern the order for placing into furlough status and recalling back

to work those employees who remain after the application of Indian preference [2 0. C.

205. 7-3];

■

Clarify the process for preparing, initiating and implementing a furlough program by, in

pertinent part:

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•

■

Setting conditions and clear procedures, as well as express prohibitions, for when

and how a furlough program may be initiated by the OBC [2 O.C. 205.5];

• Setting conditions and clear procedures for how a furlough program will be

implemented by the Nation, once initiated [2 0. C. 205. 6]; and

• Assigning responsibilities to specific persons/entities for carrying out certain

activities in accordance with the Law [2 0. C. 205.10].

Require that a furlough be initiated as either an emergency or administrative program and

then carried out in accordance therewith [2 0. C. 205. 6-3];

Allow the OBC to establish an ad hoc committee, made up of employees of the Nation, to

assist in the implementation of a furlough program [2 0. C. 205. 6-2]; and

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 [2 0. C. 205. 6-3];

• Requiring the Human Resources Department to add training on Indian preference

to its employee orientation program 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 [2 O.C. 205.4-4].

• Requiring Direct Report Level positions/supervisors, who are responsible under the

Law for carrying out some or all of a furlough program, to undergo training on the

application of the Law every two (2) years [2 O.C. 205.10-1]; and

• • Broadening the scope of claims that an employee placed in furlough status can bring

on appeal under the Law [2 0. C. 205.11].

The LOC developed the amendments to the Law through collaboration with representatives from

the Human Resources Department, General Manager - Retail, Employee Relations Department

and Gaming Employee Services. The LOC held sixteen (16) work meetings on the development

of this Law.

A public meeting, in accordance with the Legislative Procedures Act, was not held for the Law

due to the COVID-19 pandemic. On March 12, 2020, Chairman Tehassi Hill signed a "Declaration

ofPublic Health State ofEmergency" regarding the COVID-19 pandemic 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 allows 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 by the OBC until March 22, 2022, through the adoption of

resolutions BC-03-28-20-A, BC-05-06-20-A, BC-06-10-20-A, BC-07-08-20-A, BC-08-06-20-A,

BC-09-09-20-A, BC-10-08-20-A, BC-11-10-20-A, BC-12-09-20-D, BC-01-07-21-A, BC-02-1021-A, BC-03-10-21-D, BC-05-12-21-A, BC-06-23-21-B, BC-07-28-21-N, BC-09-22-21-A, BC11-24-21-F and BC-01-12-22-B.

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

during Public Health State of Emergency-COVID-19, 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. During the time of the

development of this Law the infection rates within Brown and Outagamie Counties exceeded

"Low." The Nation's COVID-19 Core Decision Making Team addressed the issue of not being

able to safely hold public meetings through its March 27, 2020, declaration titled "Suspension of

Public Meetings under the Legislative Procedures Act". This declaration suspended the Legislative

Procedures Act's requirement to hold a public meeting during the public comment period, but

allows 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.

Although no public meeting for the proposed Law was held in person, the public comment period

was still held open until November 11, 2021, for the submission of written comments. No written

comments were received during the public comment period.

Requested Action

Adopt the Resolution: Amendments to the Furlough Law

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ONEIDA

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Oneida Nation

Post Office Box 365

Phone: (920)869-2214

Oneida, WI 54155

BC Resolution # _____________

Amendments to the Furlough Law

WHEREAS,

the Oneida Nation is a federally recognized Indian government and a treaty tribe

recognized by the laws of the United States of America; and

WHEREAS,

the Oneida General Tribal Council is the governing body of the Oneida Nation; and

WHEREAS,

the Oneida Business Committee has been delegated the authority of Article IV, Section 1,

of the Oneida Tribal Constitution by the Oneida General Tribal Council; and

WHEREAS,

the Nation’s Furlough Policy, which will be referred to as the Furlough law (“Law”) upon

adoption of the proposed amendments, was established by the Oneida Business

Committee (“OBC”) on November 10, 2015, through adoption of resolution BC-11-10-15B, 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; and

WHEREAS,

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 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;

and

WHEREAS,

the LOC worked collaboratively with representatives from the Human Resources

Department, General Manager – Retail, Employee Relations Department and Gaming

Employee Services to develop the amendments to this Law; and

WHEREAS,

the amendments to this Law incorporate Indian preference into the Law and require that it

be applied to the Nation’s furlough programs in accordance therewith; and

WHEREAS,

the amendments to this Law add priority levels to govern the order for placing into furlough

status and recalling back to work those employees who remain after the application of

Indian preference; and

WHEREAS,

the amendments to this Law clarify the process for preparing, initiating and implementing

a furlough program, by, in pertinent part:

• Setting conditions and clear procedures, as well as express prohibitions, for when

and how a furlough program may be initiated by the OBC;

• Setting conditions and clear procedures for how a furlough program should be

implemented by the Nation, once initiated; and

• Assigning responsibilities to specific persons/entities for carrying out certain

activities in accordance with the Law.

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BC Resolution # _______

Amendments to the Furlough Law

Page 2 of 2

WHEREAS,

the amendments to this Law require that a furlough be initiated as either an emergency or

administrative program and then carried out in accordance therewith; and

WHEREAS,

the amendments to this Law allow the OBC to establish an ad hoc committee, made up of

employees of the Nation, to assist in the implementation of a furlough program; and

WHEREAS,

the amendments to this Law add more due process to the furlough programs 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 program;

• Requiring Direct Report Level positions/supervisors, who are responsible under

the Law for carrying out some or all of 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 appeal under the Law.

WHEREAS,

in accordance with the Legislative Procedures Act, a legislative analysis and fiscal impact

statement were developed for the amendments to this Law; and

WHEREAS,

a public meeting on the proposed amendments to this Law was not held in accordance

with the Legislative Procedures Act due to the COVID-19 pandemic; and

WHEREAS,

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, which was then subsequently extended by the OBC until

March 22, 2022, through the adoption of resolutions BC-03-28-20-A, BC-05-06-20-A, BC06-10-20-A, BC-07-08-20-A, BC-08-06-20-A, BC-09-09-20-A, BC-10-08-20-A, BC-11-1020-A, BC-12-09-20-D, BC-01-07-21-A, BC-02-10-21-A, BC-03-10-21-D, BC-05-12-21-A,

BC-06-23-21-B, BC-07-28-21-N, BC-09-22-21-A, BC-11-24-21-F and BC-01-12-22-B; and

WHEREAS,

resolution BC-08-03-21-A titled, Setting Public Gathering Guidelines during Public Health

State of Emergency—COVID-19, 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; and

WHEREAS,

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 for the duration of the Public Health State of Emergency, but

allows 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; and

WHEREAS,

although a public meeting was not held on the proposed amendments to this Law, the

public comment period was still held open until November 11, 2021, for the submission of

written comments and no individuals submitted written comments during the public

comment period; and

NOW THEREFORE BE IT RESOLVED, that the amendments to the Furlough law are hereby adopted and

shall become effective on February 23, 2022.

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Oneida Nation

Oneida Business Committee

Legislative Operating Committee

PO Box 365 • Oneida, WI 54155-0365

Oneida-nsn.gov

ONEIDA

Statement of Effect

Amendments to the Furlough Law

Summary

This resolution adopts the amendments to the Nation’s Furlough law.

Submitted by: Kristen M. Hooker, Staff Attorney, Legislative Reference Office

Date: February 9, 2022

Analysis by the Legislative Reference Office

The Nation’s Furlough Policy, which will be referred to as the Furlough law (“Law”) upon

adoption of the proposed amendments, was established by the Oneida Business Committee

(“OBC”) on November 10, 2015, through adoption of resolution BC-11-10-15-B, to enable the

Nation to implement a furlough as a tool to remedy an operating 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].

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. This will be the first time

that the Law has been amended since its adoption in 2015; thus, along with the more substantive

changes referenced above, the Law was updated to reflect the Nation’s current legislative practices

and customs that are less substantive in nature, such as replacing the word “Tribe” with “Nation”

and re-formatting portions of the Law to comply with the requirements of the Legislative

Procedures Act.

This resolution adopts amendments to the Law which will:

▪ Incorporate Indian preference into the Law and require that it be applied to the Nation’s

furlough programs in accordance therewith [2 O.C. 205.1-1(c)];

▪ Add priority levels to govern the order for placing into furlough status and recalling back

to work those employees who remain after the application of Indian preference [2 O.C.

205.7-3];

▪ Clarify the process for preparing, initiating and implementing a furlough program by, in

pertinent part:

• Setting conditions and clear procedures, as well as express prohibitions, for when

and how a furlough program may be initiated by the OBC [2 O.C. 205.5];

• Setting conditions and clear procedures for how a furlough program will be

implemented by the Nation, once initiated [2 O.C. 205.6]; and

• Assigning responsibilities to specific persons/entities for carrying out certain

activities in accordance with the Law [2 O.C. 205.10].

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▪

Require that a furlough be initiated as either an emergency or administrative program and

then carried out in accordance therewith [2 O.C. 205.6-3];

Allow the OBC to establish an ad hoc committee, made up of employees of the Nation, to

assist in the implementation of a furlough program [2 O.C. 205.6-2]; and

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 [2 O.C. 205.6-3];

• Requiring the Human Resources Department to add training on Indian preference

to its employee orientation program 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 [2 O.C. 205.4-4].

• Requiring Direct Report Level positions/supervisors, who are responsible under the

Law for carrying out some or all of a furlough program, to undergo training on the

application of the Law every two (2) years [2 O.C. 205.10-1]; and

• Broadening the scope of claims that an employee placed in furlough status can bring

on appeal under the Law [2 O.C. 205.11].

The Legislative Procedures Act (“the LPA”) was adopted by the General Tribal Council for the

purpose of providing a process for the adoption or amendment of laws of the Nation. [1 O.C.

109.1-1]. The LPA requires that for all proposed legislation both a legislative and fiscal analysis

be developed. [1 O.C. 109.6 and 109.7]. The Furlough law amendments comply with these

requirements.

The LPA also requires that there be an opportunity for public review during a public meeting and

public comment period. [1 O.C. 109.8]. A public meeting for the amendments to the Law was not

held due to the COVID-19 pandemic. In accordance with the Emergency Management and

Homeland Security law, 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. [3 O.C. 302.8-1]. The Public Health State of

Emergency for the Nation has since been extended until March 22, 2022, by the Oneida Business

Committee through the adoption of resolutions BC-03-28-20-A, BC-05-06-20-A, BC-06-10-20A, BC-07-08-20-A, BC-08-06-20-A, BC-09-09-20-A, BC-10-08-20-A, BC-11-10-20-A, BC-1209-20-D, BC-01-07-21-A, BC-02-10-21-A, BC-03-10-21-D, BC-05-12-21-A, BC-06-23-21-B,

BC-07-28-21-N, BC-09-22-21-A, BC-11-24-21-F and BC-01-12-22-B.

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

during Public Health State of Emergency—COVID-19, 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. During the time of the

development of the amendments to this Law, the infection rates within Brown and Outagamie

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Counties exceeded “Low.” The Nation’s COVID-19 Core Decision Making Team addressed the

issue of not being able to safely hold public meetings through its March 27, 2020, declaration titled

“Suspension of Public Meetings under the Legislative Procedures Act”. This declaration

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

comment period, but allows 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.

Although a public meeting for the Furlough law amendments was not held, the public comment

period was still held open until November 11, 2021. The Legislative Operating Committee did not

receive any written submissions of comments during the public comment period.

Adoption of this resolution complies with the process and procedures of the LPA as it has been

modified by the COVID-19 Team’s “Suspension of Public Meetings under the Legislative

Procedures Act” declaration.

This resolution provides that the amendments to the Furlough law would become effective on

February 22, 2022, in accordance with the LPA. [1 O.C. 109.9-3].

Conclusion

Adoption of this resolution would not conflict with any of the Nation’s laws, as it complies with

the Legislative Procedures Act as it has been modified by the COVID-19 Core Decision Making

Team’s “Suspension of Public Meetings under the Legislative Procedures Act” declaration.

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FURLOUGH LAW AMENDMENTS

LEGISLATIVE ANALYSIS

SECTION 1. EXECUTIVE SUMMARY

Analysis by the Legislative Reference Office

Intent of the

Amendments

Purpose

Affected

Entities and

Individuals

Legislation

▪ To incorporate Indian preference into the Furlough law (“Law”) and require that it be

applied to the Nation’s furlough programs 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, in pertinent part:

• 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 a furlough program;

▪ 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 program 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

under the Law for carrying out some or all of 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; 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.

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Public Meeting

Fiscal Impact

A public comment period was held open until November 11, 2021. A public meeting

was not held in accordance with the Nation’s COVID-19 Core Decision Making Team’s

declaration titled, Suspension of Public Meetings under the Legislative Procedures Act.

The Finance Department provided a fiscal impact statement on December 15, 2021.

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 the OBC on November 10, 2015, through resolution BC-11-10-15B. [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 the

amendments to this Law and the legislative analysis:

▪ 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 [1 O.C. 105]; Open Records and Open Meetings

[1 O.C. 107]; Legislative Procedures Act [1 O.C. 109]; Budget Management and Control [1 O.C. 121];

Layoff Policy [2 O.C. 207]; Conflict of Interest [2 O.C. 217]; Emergency Management [3 O.C. 302];

Oneida Nation Gaming Ordinance [5 O.C. 501]; Indian Preference in Contracting [5 O.C. 502]; and

the Nation’s Personnel Policies and Procedures.

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. The amendments to this Law have followed the process as set forth in the Legislative Procedures Act

(“LPA”).

▪ On October 7, 2020, the Legislative Operating Committee added the Law to its Active Files List.

▪ On August 4, 2021, the Legislative Operating Committee approved the draft amendments to the

Law and directed that a legislative analysis be prepared for consideration at the next LOC

meeting.

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On August 18, 2021, the Legislative Operating Committee approved the draft amendments to the

Law, along with the legislative analysis.

▪ On October 6, 2021, the Legislative Operating Committee approved the Furlough law

amendments public comment period notice and forwarded the Furlough law amendments to a

public comment period to be held open until November 11, 2021.

▪ On November 11, 2021, the public comment period closed. No written submissions of comments

were received during this public comment period.

▪ On November 17, 2021, the Legislative Operating Committee accepted the public comment

period review memorandum recognizing no comments were received.

▪ On December 1, 2021, the Legislative Operating Committee approved updated drafts of the

proposed amendments and legislative analysis. Additionally, the LOC approved the fiscal impact

statement request memorandum for forwarding on to the Finance Department, directing that a

fiscal impact statement be prepared and submitted to the LOC by December 15, 2021.

▪ The Finance Department provided a fiscal impact statement on December 14, 2021, finding the

impact “Indeterminate” due to a lack of sufficient timing to perform a full assessment. The

Finance Department indicated that it would need approximately six (6) more weeks to perform

the full assessment, which the LOC granted on December 15, 2021, giving the Finance

Department until January 26, 2022, to submit an updated fiscal impact statement.

B. 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.

▪ 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.

▪ December 1, 2021, a work meeting was held with the LOC.

▪ December 15, 2021, a work meeting was held with the LOC.

C. COVID-19 Pandemic’s Effect on the Legislative Process. The world is currently facing a pandemic

of COVID-19. The COVID-19 outbreak originated in Wuhan, China and has spread to many other

countries throughout the world, including the United States. The COVID-19 pandemic has resulted in

high rates of infection and mortality, as well as vast economic impacts including effects on the stock

market and the closing of all non-essential businesses. A public meeting for the proposed amendments

to the Law was not held due to the COVID-19 pandemic, but a public comment period for the

submission of written comments was held open.

▪ Declaration of a Public Health State of Emergency.

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

of Emergency” regarding the COVID-19 pandemic 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 allows the Nation to seek reimbursement of emergency

management actions that may result in unexpected expenses.

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The Public Health State of Emergency has since been extended until March 22, 2022, by

the Oneida Business Committee through the adoption of resolutions: BC-03-28-20-A, BC05-06-20-A, BC-06-10-20-A, BC-07-08-20-A, BC-08-06-20-A, BC-09-09-20-A, BC-1008-20-A, BC-11-10-20-A, BC-12-09-20-D, BC-01-07-21-A, BC-02-10-21-A, BC-03-1021-D, BC-05-12-21-A, BC-06-23-21-B, BC-07-28-21-N, BC-09-22-21-A, BC-11-24-21F and BC-01-12-22-B.

COVID-19 Core Decision Making Team Declaration: Suspension of Public Meetings under

the Legislative Procedures Act.

o 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 allows 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 email during the public comment period.

Oneida Business Committee Resolution BC-08-03-21-A, Setting Public Gathering Guidelines

during Public Health State of Emergency – COVID-19.

o On August 3, 2021, the Oneida Business Committee adopted resolution BC-08-0321-A titled, Setting Public Gathering Guidelines during Public Health State of

Emergency – COVID-19, which provides that indoor and outdoor events shall be

canceled when the infection rates within Brown or Outagamie Counties exceed “Low”

as identified by the Wisconsin Department of Health Services. Both Brown and

Outagamie Counties were and continue to be experiencing “High” rates of COVID19 infections.

Conclusion.

o Although a public meeting was not held on the proposed amendments to the Law, a

public comment period was still held open until November 11, 2021, in accordance

with resolution BC-08-03-21-A and the Legislative Procedures Act as modified by the

COVID-19 Core Decision Making Team’s “Suspension of Public Meetings under the

Legislative Procedures Act” declaration. No public comments were received during

this public comment period.

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

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▪

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:

Highest Preference Level

Enrolled Members of the Oneida Nation

Oneida Citizens Eligible for Enrollment in

the Oneida Nation

Documented First Generation

Oneida Descendants

Indians

Non-Indians

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▪

Lowest Preference Level

[2 O.C. 205.4-2(c)].

Definitions. To ensure consistency in the application of Indian preference to the Nation’s furlough

programs, the following definitions were added to the Law to help clarify where employees of the

Nation fall within the preference spectrum:

o Indian preference – means preference for Indian people, regardless of tribal affiliation, in

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

preference for purposes of this law. [2 O.C. 205.3-1(h)];

o Indian – means any person, other than an Oneida citizen, who is a citizen of a federallyrecognized Indian tribe, other than the Oneida Nation. [2 O.C. 205.3-1(g)]; and

o Oneida citizen – means those persons who are enrolled members of the Nation, eligible for

enrollment in the Nation or documented first generation Oneida descendants. [2 O.C.

205.3-1(j)].

Effect. By adding Indian preference into the Law and, absent an exception, requiring that it be

applied to give preference according to the above diagram, with the highest level of preference

being afforded to the top category of employees, no employee of the Nation who is an Oneida

citizen or an Indian person, as defined within the Law, shall be placed in furlough status so long as

an employee, within the same department or division and position, who is non-Indian remains

employed. [2 O.C. 205.4-2].

B. Application [2 O.C. 205.4]. Section 205.4 of the proposed amendments titled, Application, replaces

section 205.4 of the current Law titled, Furlough. This section was added, not only to publicly declare

the incorporation of Indian preference into the Nation’s furlough programs (as discussed above), but to

clarify and/or mandate the following with respect to the application of this Law:

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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:

o Used to resolve performance-related issues, grievances or to take the place of disciplinary

actions [2 O.C. 205.4-5(a)];

o 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

o 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:

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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

o Whether any positions within their respective department or division are capable of being

adjusted to promote Indian preference when deciding which employees to place in furlough

status [2 O.C. 205.5-1(a)(1)(E)].

• Point of Clarification. The purpose of section 205.5-1(a)(1)(E) is to have Direct

Report Level positions/authorized designees explore whether a position or position

description, within their department/division, can be adjusted to better advance the

goal of Indian preference – not to require Direct Report Level positions/authorized

designees to consider the transfer of employees from one department/division to

another since, as indicated above, section 205.4-5(c) prohibits the application of

Indian preference to occur in such manner.

That, the HRD shall create a Standard Operating Procedure (“SOP”) setting forth how a furlough

implementation plan shall be processed under the Law once the standard template is approved by

the OBC, which must, at a minimum, address:

o How the standard template will be distributed to the Direct Report Level positions or their

authorized designees [2 O.C. 205.5-1(b)(1)];

o The process for Direct Report Level positions and/or authorized designees to follow upon

receiving the standard template, including:

• How to create a furlough implementation plan using the standard template [2 O.C.

205.5-1(b)(2)(A)]; and

• How to submit a furlough implementation plan to the HRD for approval and how

long the Direct Report Level positions/authorized designees have to submit their

plans to the HRD after receiving the standard template [2 O.C. 205.5-1(b)(2)(B)

and 205.5-1(b)(2)(C)].

o How the HRD will process furlough implementation plans for approval upon submission

by the Direct Report Level positions/authorized designees [2 O.C. 205.5-1(b)(3)]; and

o How the HRD will notify the Direct Report Level positions/authorized designees of its

decision to approve or reject their furlough implementation plan and, if rejected, the reason

for the rejection and the process for resubmitting the furlough implementation plan for

reconsideration [2 O.C. 205.5-1(b)(4)].

And that, both the HRD and Direct Report Level positions/authorized designees shall review their

standard template and furlough implementation plan, respectively, every two (2) years to assess

whether they need to be updated to better advance the underlying goals/policies of the Law or

account for any relevant changes within departments/divisions or the organization in general. [2

O.C. 205.5-2].

o Any changes to either the standard template or furlough implementation plan must go

through the same approval process as the original versions. [2 O.C. 205.5-2(a) & (b)].

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D. Furlough Implementation [2 O.C. 205.6]. This section was added to govern the implementation of a

furlough program, starting with its inception, causing the current section 205.6 titled, Supervisor

Responsibilities, to be moved to a later section within the Law. Under the proposed amendments, a

furlough program must still be initiated through a directive by resolution of the OBC, as is currently

required. [2 O.C. 205.4-1; Proposed Law 2 O.C. 205.6-2]. However, the following provisions were

added for purposes of clarity, due process and consistency:

▪ Alternatives to Furlough. Prior to initiating a furlough program through adoption of a resolution,

the OBC will now be required to consider whether any reasonable alternative(s) to a furlough exist

and, if so, must exhaust said alternative(s) before initiating the furlough, so long as the burden of

doing so on the Nation as a whole does not outweigh the benefit to the employees who may be

affected by the furlough program at issue. [2 O.C. 205.6-1].

▪ Contents of the Furlough Resolution. In addition to the directive and the furlough dates that are

already required in the current Law [2 O.C. 205.4-1], under the proposed amendments, the furlough

resolution will also have to include the following:

o The OBC’s basis for implementing the furlough program at issue [2 O.C. 205.6-2(a)(1)];

o Whether the furlough is being implemented as an administrative or emergency program [2

O.C. 205.6-2(a)(2)];

• Program Distinctions. In the proposed Law, a furlough must be characterized as

either an emergency or administrative program and then carried out in accordance

with said characterization. [2 O.C. 205.6-3]. The basis for adding this distinction

and its impact upon implementation are discussed further below.

o If feasible under the circumstances and then to the extent thereof, the beginning and ending

dates of the furlough program [2 O.C. 205.6-2(a)(3)];

o If feasible under the circumstances and then to the extent thereof, which areas within the

Nation will be subject to the furlough program and which positions, if any, are considered

critical positions exempt from placement in furlough status [2 O.C. 205.6-2(a)(4)]; and

o Whether an ad hoc committee will be established to assist in the implementation of the

furlough program [2 O.C. 205.6-2(a)(5)].

▪ Ad Hoc Committee. Under the proposed Law, the OBC may, in its discretion, establish an ad hoc

committee to assist with the implementation of a furlough program by, including, but not limited

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

as well as which positions, if any, should be deemed critical, and thus, exempt from placement in

furlough status. [2 O.C. 205.6-2(b)]. If established, the ad hoc committee:

o Must be made up of employees of the Nation, identified by the OBC within the furlough

resolution or through a subsequent resolution/motion, who possess an expertise relative to

the type and severity of the event giving rise to the furlough at issue [2 O.C. 205.6-2(b)(1)];

• Note. Although the proposed Law requires the OBC to state whether it intends to

establish an ad hoc committee in the furlough resolution, it gives the OBC a little

more flexibility with respect to identifying committee members by allowing the

identification to occur within the furlough resolution or a subsequent resolution/

motion.

o Must meet as necessary and at the request of the OBC to carry out the OBC’s directives

consistent with the Law [2 O.C. 205.6-2(b)(2)];

o Is not subject to the Boards, Committees and Commissions law and members of the ad hoc

committee are not entitled to receive stipends or any other form of compensation, other

than their employee pay, for serving on the committee [2 O.C. 205.6-2(b)(3)]; and

o Will dissolve upon conclusion of the furlough program for which it was established or on

an early date determined by the OBC [2 O.C. 205.6-2(b)(4)].

▪ Furlough Programs. Under the proposed amendments, a furlough must be implemented as either

an administrative or emergency program upon initiation and then carried out in accordance with

the portions of section 205.6 that apply to such characterization. [2 O.C. 205.6-3].

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Applicable to Both Programs. In addition to the provisions that will govern the specific

furlough program being initiated, the following will apply to either program, regardless of

characterization during the implementation phase:

• That, employees must receive notice of the implementation of a furlough in writing

and the notice must contain, at a minimum:

➢ Advanced warning that, if recalled back to work, the failure to respond to

the recall within ten (10) business days of receiving the written notice of

recall will be treated as a resignation of employment by that employee per

the governing laws of the Nation [2 O.C. 205.6-3(a)(1)(A)]; and

➢ A directive that it is the employee’s responsibility to ensure that the Nation

has his or her most up-to-date contact information throughout the furlough

period [2 O.C. 205.6-3(a)(1)(B)].

• That, the written notice shall be sent to employees using the outlet or outlets

deemed most capable of reaching them in as efficient a manner as possible under

the circumstances. [2 O.C. 205.6-3(a)(2)].

Emergency Furlough Programs. Under the proposed amendments, the OBC may initiate a

furlough program on an emergency basis when in the best interest of the Nation due to Acts

of God that require an immediate curtailment of activities within the organization. [2 O.C.

205.6-3(b)].

• A definition for “Acts of God” was added to the Law to mean “an event or effect

that can be neither anticipated nor controlled, including both acts of nature, such

as floods and hurricanes, and acts of people, such as riots, strikes, and wars.” [2

O.C. 205.3-1(a)].

• Effect. More flexibility is given to the Nation when initiating an emergency versus

an administrative furlough program since, by its very title/definition, the event

giving rise to the need for an emergency furlough program will be unexpected

and/or unpredictable. As such, if the OBC cannot accurately determine the start or

end date of the emergency furlough program being implemented, the Law allows

for it to provide said dates with as much advanced notice as is reasonably possible

under the circumstances. [2 O.C. 205.6-3(b)(1)].

➢ Although the LOC wanted to offer some flexibility when it comes to

emergency furlough programs, it also wanted to ensure that employees

affected by the implementation of an emergency furlough program were

not in a state of limbo for an indeterminate amount of time. Thus, the LOC

added a provision stating: “No emergency furlough program implemented

hereunder shall last for longer than twenty-six (26) weeks from the date

of implementation unless extended by the OBC through a subsequent

resolution.” [2 O.C. 205.6-3(b)(2)].

Administrative Furlough Programs. Unlike emergency furlough programs, administrative

furlough programs would be initiated by the OBC in response to a foreseeable event that

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

issue where the intent is to recall employees back to work once the event has subsided. [2

O.C. 205.6-3(c)]. With administrative furloughs, a minimum of five (5) business days of

advance notice to employees is required, as well as specific dates in which the program

will begin and end. [2 O.C. 205.6-3(c)(1) & 2].

• Effect. The basis for including the language “where the intent is to recall employees

back to work once the event has subsided” is to create a definitive line for when a

furlough may be used in place of a layoff. For example, if the event is likely to

result in a reduction of revenue, but is not temporary in nature, the requirement

that there be intent to recall employees back to work would be missing, and thus,

a layoff of the employees affected would be the more appropriate and equitable

avenue. [See 2 O.C. 205.6-3(c)(3)(“If the intent to bring employees back is not

present or is improbable at the time employee reductions are deemed necessary,

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employees shall be selected for layoff, as opposed to placement in furlough status,

consistent with the laws and polices of the Nation governing employee layoffs.”)].

E. Placing Employees in Furlough Status [2 O.C. 205.7]. This section was added to the Law to provide

more direction on how employees of the Nation are to be selected for placement in furlough status upon

the implementation of a program to ensure more consistency, regardless of department/division, in the

application of this Law. [2 O.C. 205.7-1]. According to this section, once a furlough program is initiated

and the appropriate Direct Report Level positions/authorized designees are notified of the same,

employees within a department/division impacted by the program will be retained and placed in

furlough status as follows:

▪ Critical Positions. If the OBC, or the ad hoc committee per the OBC’s request and subject to its

approval, has identified critical positions within an affected department/division, those positions

would be exempt from placement into furlough status during the specific furlough program for

which the position was deemed critical. [2 O.C. 205.7-2].

o Exception. If, after the initial identification of critical positions occurs, the OBC determines

that it is necessary to cut some or all of a position within a department/division that is

deemed critical, it may do so through adoption of a subsequent resolution. [2 O.C. 205.72(b)]. Employees within the same critical position that are later subject to reduction per

this exception shall be placed in furlough status pursuant to the order of preference and

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

preference and priority established in section 205.9 of the Law. [2 O.C. 205.7-2(b)(1)].

▪ Non-Critical Positions. When deciding the order for placing non-critical positions in furlough

status, the proposed Law states, generally, that “[d]irectives from the Oneida Business Committee

regarding employee furlough reductions … shall be carried out by the Direct Reports Level position

/authorized designee of the affected department/division in a manner that furthers the policy behind

Indian preference to the greatest extent possible without rendering the affected department/division

inoperable or unable to reasonably conduct business.” [2 O.C. 205.7-3]. And specifically, it dictates

that, absent an exception, the following order shall be adhered to when placing non-critical position

employees within the same department or division in furlough status:

o Temporary Employees. Temporary employees within a department or division that is

affected by a furlough program implementation shall be the first category of employees to

be placed in furlough status. [2 O.C. 205.7-3(a)].

• A temporary employee is defined as an employee hired by the Nation for a shortterm assignment and consists of the following classifications: (1) Emergency/

Temporary; Limited Term; Seasonal; Substitute/Relief; Youth Worker and Student

/Intern. [2 O.C. 205.3-1(a)(l)].

o Volunteer Employees. Following the placement of temporary employees in furlough status,

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

employees to be placed in furlough status. [2 O.C. 205.7-3(b)].

• In order to ensure that any employee who volunteers for placement in furlough

status does so of his or her own free will, the following was added to the Law to

govern this category of employees:

➢ That, employees who volunteer to be placed in furlough status must sign

a form, created by the HRD, confirming as follows:

1. They volunteered to be placed in furlough status notwithstanding

any preference or eligibility for retention that they may have;

2. Their decision to volunteer was not coerced or based on any

promises of compensation or other consideration; and

3. They understand that they are not guaranteed a recall back to

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

with the Nation. [2 O.C. 205.7-3(a)(2)(A)(i)-(iii)].

o Indian Preference. Absent an express exception and following placement of the first two

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

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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 Order for Placement in Furlough Status (First to Last)

Non-Indians

Indians

Documented First Generation

Oneida Descendants

Oneida Citizens Eligible

for Enrollment in the

Oneida Nation

Enrolled Members

of the Oneida

Nation

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Illustrative Hypothetical: Following a tornado, a portion of Department A’s building suffers structural

damage that makes it impossible for all its employees to conduct business therein. The damage will

take approximately six (6) weeks to repair. In response, the OBC implements an administrative furlough

program, through adoption of a resolution that instructs the Direct Report Level position for Department

A to place half of its non-critical employees in furlough status until the repairs are done. Department A

has thirty (30) employees who incumbent (3) positions as follows:

Department A

(30 Total Employees)

Position #1

(6 Employees)

Critical

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Position #2

Position #3

(10 Employees)

(14 Employees)

Scenario Based on Hypothetical: Position #1 is deemed critical, and thus, exempt from placement

in furlough status. [2 O.C. 205.7-2]. This leaves Positions #2 and #3 subject to placement in

furlough status per the OBC’s directive. In accordance with the general requirement that placement

in furlough status occur in a manner that adheres to Indian preference to the greatest extent without

rendering Department A inoperable or unable to reasonably conduct business, the Direct Reports

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Level position decides to cut five (5) employees from Position #2 and seven (7) employees from

Position #3.

Position #2: Of the ten (10) employees in Position #2, three (3) of the employees are NonIndian, two (2) of the employees are Indian, and the remaining five (5) employees are a

combination of Nation Members or Documented First Generation Descendants of the

Nation. Result – The three (3) Non-Indian employees and two (2) Indian employees will

be placed in furlough status, while the remaining five (5) employees, who are either

Members of the Nation or Documented First Generation Descendants, will remain

working.

Position #3: Of the fourteen (14) employees in Position #3, four (4) of the employees are

Non-Indian and the remaining ten (10) employees are Members of the Nation. Result –

The four (4) Non-Indian employees will be placed in furlough status, leaving three (3) of

the remaining ten (10) employees in the same preference category – i.e., Members of the

Nation – subject to placement in furlough status. In order to decide which three (3) of the

ten (10) Members to place in furlough status, the Direct Reports Level position would have

to look to section 205.7-3(a)(4) of the Law, which lays out how to prioritize the retention

of employees who remain in the same preference category, following application of Indian

preference. Section 205.7-3(a)(4) provides as follows:

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

without a break in employment for the longest amount of time shall be afforded

the highest level of retention priority;

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

employees with veteran status shall be afforded the next level of retention

priority over the other employees who remain within the same preference

category; and

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

veterans, employees with a more favorable performance evaluation shall be

afforded retention priority over the employees with a less favorable

performance evaluation who remain within the same preference category.

❖ Note: The Law requires that the most current performance

evaluation in existence on the date the OBC adopts the furlough

resolution at issue shall be the evaluation that is used when assessing

priority under this last category. [2 O.C. 205.7-3(a)(4)(C)(i)].

G. Furloughed Employees [2 O.C. 205.8]. This section of the Law was amended to allow for the OBC to

continue providing certain benefits to employees placed in furlough status on a case-by-case basis,

subject to budgetary constraints, as well as any governing policies or agreements underlying said

benefits. In addition, overtime and additional duty pay may be offered on a case-by-case basis, subject

to approval by the OBC. [2 O.C. 205.8-4; 2 O.C. 205.8-5].

▪ Effect. Under the current law, employees placed in furlough status were not entitled to benefits,

such as medical insurance. Under the proposed amendments, if the Nation is able, both financially

and contractually, employees will continue to receive benefits while in furlough status. And, if the

employees who remain working are accruing a significant amount of overtime or taking on a

substantial number of additional duties, the OBC now has the authority to approve overtime and

extra duty pay on a case-by-case basis.

H. Recall of Furloughed Employees [2 O.C. 205.9]. This section of the Law provides more guidance on

the process for recalling back to work those employees who were placed in furlough status. With respect

to the order for recalling back to work, Indian preference is applied in the reverse order as set forth in

section 205.7 of the Law and contains the same priority requirements to be applied when the number

of employees who remain in the same preference category exceeds the number to be recalled upon the

close of the furlough program at issue.

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2 Order for Recall Back from Placement in Furlough Status (First to Last)

Enrolled Members of the Oneida Nation

Oneida Citizens Eligible for

Enrollement in

the Oneida Nation

Documented First Generation

Oneida Descendants

Indians

Non-Indians

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This section of the Law was further amended to provide additional direction regarding the following:

▪ Volunteers. With respect to those employees who volunteered for placement in furlough status, the

proposed Law makes clear that those employees who qualify for the preference and priority as set

forth within this section will retain such preference/priority regardless of volunteering and will be

given additional priority over others within the same preference and priority category who did not

volunteer. [2 O.C. 205.9-1(b)].

▪ Notice of Recall and Responses. With respect to what is expected of employees placed in furlough

status who are recalled back to work, the proposed Law now states:

o A failure to respond to the notice of recall within ten (10) business days of the employee’s

receipt thereof shall be interpreted to mean that the employee does not intend to return on

the date of his or her recall and treated as a resignation of employment by that employee

per the governing laws and policies of the Nation. [2 O.C. 205.9-2(b)].

I. Responsibilities of Direct Report Level and Supervisor Positions [2 O.C. 205.10]. This section of the

Law was amended to include a requirement that persons employed in Direct Reports Level and supervisory

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

training, provided by the HRD, on the application of the Law, as well as the programs to be implemented

thereunder. [2 O.C. 205.10-1(a)].

J. Appeal [2 O.C. 205.11]. The proposed amendments to the Law expand the basis upon which an

employee can file an appeal from claims that a placement in furlough status was based on a disciplinary

reason to claims that a placement in furlough status occurred in violation of the Law. [2 O.C. 205.11-1].

SECTION 6. RELATED LEGISLATION

A. Reference to Other Laws. The following laws of the Nation are referenced in the proposed Law, and

thus, are required to be followed absent a legislative exception, or were contemplated during the

development of the proposed amendments or this legislative analysis.

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▪

Open Records and Open Meetings [1 O.C. Chapter 107]. This law sets the requirements for how

meetings of the Nation’s governmental bodies shall be conducted, as well as how materials from

that meeting shall be maintained and made available to the public. [1 O.C. 107.1 & 107.12]. Section

107.9 of the Open Records and Open Meetings law governs the retention of records that are

produced in the course of governmental business. [1 O.C. 107.9-1]. It provides, in pertinent part,

that “[u]nless an alternate retention period is approved by the Oneida Business Committee for

specific records and except as otherwise provided by law, all records shall be retained at least seven

(7) years before destruction.” [1 O.C. 107.9-4]. The proposed amendments do not conflict with the

portion of the Open Records and Open Meetings law that governs the release and retention of

records.

Social Media Policy [2 O.C. Chapter 218]. This law regulates social media accounts, including

how content is managed and published on behalf of the Nation. [2 O.C. 218.1-1]. Employees who

obtain outside employment while in furlough status under a program governed by the proposed

Law will be required to still adhere to the social media requirements that apply to employees of the

Nation pending their recall back to work. There are no conflicts between the proposed amendments

and the Nation’s Social Media Policy.

Computer Resources Ordinance [2 O.C. Chapter 215]. This law regulates the use of computer

resources that are owned and operated by the Nation and, among other individuals, applies to

employees of the Nation. [2 O.C. 215.1-1 & 215.3-1]. Employees who obtain outside employment

while in furlough status under a program governed by the proposed Law will be required to still

adhere to the provisions of this law that apply to employees of the Nation pending their recall back

to work. There are no conflicts between the proposed amendments and the Nation’s Computer

Resources Ordinance.

Conflict of Interest [2 O.C. Chapter 217]. This law establishes specific limitations on the handling,

as well as sharing, of information/materials that are confidential in nature or could be used by the

Nation’s competitors and providers during negotiations to the Nation’s detriment. [2 O.C. 217.11]. It applies to the Nation’s employees, contractors, elected officials, officers, political appointees

and appointed/elected members of the Nation’s boards, committees and commissions. [2 O.C.

217.1-1]. Employees who obtain outside employment while in furlough status under a program

governed by the proposed Law will be required to still adhere to the provisions of this law that

apply to employees of the Nation pending their recall back to work. There are no conflicts between

the proposed amendments and the Nation’s Conflict of Interest law.

Layoff Policy [2 O.C. Chapter 207]. This law establishes a fair, respectful policy for employee

layoff and recall which enables Oneida Nation programs and enterprises to operate effectively and

efficiently in varying economic conditions within the parameters of Oneida Nation Seventh

Generation Mission, Priorities and Objectives. [2 O.C. 207.1-1]. There are no conflicts between

the proposed amendments and the Nation’s Conflict of Interest law.

o It is worth noting that the Layoff Policy is on the LOC’s Active Files List for amendment

this term. Any gaps in the law or provisions that could be interpreted to conflict with the

proposed amendments to this Law will be amended accordingly and consistently with the

LOC’s policy/basis for placing both the Layoff Policy and Furlough Policy on the Active

Files List for amendment.

Personnel Policies and Procedures. The Personnel Policies and Procedures law provides employees

with a ready source of information about employee related Oneida Nation polices and procedures

that apply to all employees. [PPP, Section 1]. There are no conflicts between the proposed

amendments and the Nation’s Personnel Policies and Procedures law.

SECTION 7. OTHER CONSIDERATIONS

A. Fiscal Impact.

▪ Under the Legislative Procedures Act, a fiscal impact statement is required for all legislation

except emergency legislation. [1 O.C. 109.6-1].

▪ Oneida Business Committee resolution BC-10-28-20-A titled, “Further Interpretation of

‘Fiscal Impact Statement’ in the Legislative Procedures Act,” provides further clarification on

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▪

who the Legislative Operating Committee may direct complete a fiscal impact statement at

various stages of the legislative process, as well as timeframes for completing the fiscal impact

statement.

On December 15, 2021, the Legislative Operating Committee received a fiscal impact

statement for this Law from the Finance Department.

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Title 2. Employment – Chapter 205

FURLOUGH POLICY

205.1. Purpose and Policy

205.2. Adoption, Amendment, Repeal

205.3. Definitions

205.4 Furlough. Application

205.5 Furlough Plans

205.6 Supervisor Responsibilities

205.7. Appeal

205.5. Furlough Implementation Plan

205.6. Furlough Implementation

205.7. Placing Employees in Furlough Status

205.8. Furloughed Employees

205.9. Recall of Furloughed Employees

205.10. Direct Report Level and Supervisor Responsibilities

205.11. Appeal

205.1. Purpose and Policy

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

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

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

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

Oneida Business Committee in accordance with this law;

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

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

leave shall be identified.

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

and

in accordance with this law.

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

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

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

Oneida Nation.

205.2. Adoption, Amendment, Repeal

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

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

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

Act.

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

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

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

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

another policylaw, the provisions of this Policylaw shall control.

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

Indians of WisconsinNation.

205.3. Definitions

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

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

(a) “Direct report levelActs of God” means an event or effect that can be neither anticipated

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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” means within the

Nation that is not within an employee’s current scope of work.

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

who is responsible for a Tribal Departmentdepartment and/or Divisiondivision

of the

Nation.

(bf) “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.

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

period of time.

(d) “(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 a preference granted to retain an Oneida member employee

over other non-member employees. 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.

(e) 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 a personan employee of the Nation who directly oversees the work

and performance of an employee on a daily basis.

(f) “Tribe” or “Tribalm)

“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.

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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.

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.

205.4

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

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

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

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

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

the Civil Rights Act of 1964.

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

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

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

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

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

Affairs (“BIA”) had in its development;

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

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

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

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

to, hypotheticals and charting.

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

this law shall not:

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

take the place of disciplinary actions;

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

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policies of the Nation; and/or

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 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

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

shall include, but not be limited to:

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

qualify as a critical position;

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

qualify for Indian preference and the corresponding level of preference that

would apply under section 205.4-2 of this law;

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

the basis for said exemption;

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

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

a furlough program is implemented; and

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

are capable of being adjusted to promote Indian preference when deciding

which employees to place in furlough status.

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

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

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

accordance herewith.

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

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

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

address the following:

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

their authorized designees;

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

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

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

template;

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

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Resources Department for approval; and

authorized designees have to submit their furlough implementation plans to

the Human Resources Department upon receipt of the standard template.

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

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

authorized designees; and

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

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

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

process for resubmitting the furlough implementation plan for reconsideration.

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

designees, consistent with governing law.

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

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

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

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

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

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

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

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

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

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

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

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

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

any of the job descriptions attached to a position.

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

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

Procedure created by the Human Resources Department in accordance therewith.

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

205.6. Furlough Implementation

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

Business Committee shall consider whether any reasonable alternative options to implementation

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

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

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

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

necessityneed 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.

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(a) The resolution shall directinclude 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.

(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 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

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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) 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 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.

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

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

that require immediate curtailment of activities within the organization.

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

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

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

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

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

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

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

205.6-3 of this law.

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

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

extended by the Oneida Business Committee through a subsequent resolution.

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

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

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

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

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

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

implementation date.

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

program shall be specified within the furlough resolution.

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

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

Business Committee through a subsequent resolution.

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

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

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

(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

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 Report 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

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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

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 (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.

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

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

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

order, beginning with the first category:

(A) Non-Indians;

(B) Indians;

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

(E) Enrolled members of the Oneida Nation.

(i) Exceptions for Grant Positions. Employment positions within

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

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

said funds, the application of Indian preference in employment

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

of this law.

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

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

applicable loan, memorandum of understanding, contract or other

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

section 205.7-3 shall not constituteapply.

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

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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 continuous service. employment for

the longest amount of time shall be afforded the highest level of retention

priority.

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

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

retention priority over the other employees who remain within the same

preference category; and

priority for veterans, employees with a more favorable performance

evaluation shall be afforded retention priority over the employees with a

less favorable performance evaluation who remain within the same

preference category.

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

the Oneida Business Committee adopts the furlough resolution at

issue shall be the evaluation that is used when assessing priority

hereunder.

205.8. Furloughed Employees

205.8-1. Employees shall not perform any work for the 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 at issue, employees placed in furlough status shall continue

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to receive other benefits during a furloughfor 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.

205.4-7.8-5.

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 may be 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.

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, 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;

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

(D) Indians; and

(E) Non-Indians.

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

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

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

following order, beginning with the first category:

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

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

shall be given recall priority first;

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

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

priority over those with a more favorable performance evaluation; and

priority for veterans, the remaining employees with a more favorable

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

favorable performance evaluation.

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

the Oneida Business Committee adopts the furlough resolution at

issue shall be the evaluation that is used when assigning priority

hereunder.

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

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

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

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

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

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

205.9-2. Notice of Recall and Responses.

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

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

receipt of said notice.

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

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

entirety.

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

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

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

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

Nation.

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

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

accordance with the governing laws/policies of the Nation.

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 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

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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 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

furloughed.

(b) a tentative schedule for a furlough;

(1) Furloughs shall be scheduled in a way that allows the departments to continue

to provide a basic level of service.

(d) a summary of how the furlough will relieve budgetary shortfalls.

205.510-3. Disciplinary Furlough. Furloughs shall not be used for disciplinary reasons.

205.5-4. Indian Preference. Indian preference may not be used as a consideration in identifying

employees to be furloughed.

205.5-5. All furlough plans shall be kept on file with the Human Resources Department.

205.6 Supervisor Responsibilities

. 205.6-1. Upon notificationdirective from the appropriate Direct Report Level position that

furloughs are necessary, a supervisor shall:

(a) Identifypositions and/or authorized designees, supervisors shall be responsible to

provide notice to those employees who will be furloughed.

(b) Notify those employees that they will be furloughed and within their furlough dates;respective

department or division as required under section 205.6-3 of this law and provide copies of such

notice to the Human Resources Department to maintain in accordance with governing law.

dates.

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

divisions are accurately maintained and up-to-date.

205.711. Appeal

205.711-1. An employee who has been furloughedplaced in furlough status under this Policylaw

may only appeal a furlough that is said placement if based on disciplinary reasons.a claim that it

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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 fromof the notificationemployees receipt

of the furlough.notice under section 205.6 of this law.

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

of this law is based on disciplinary reasons rests on the employee. appealing the placement.

based on the written appeal alone.

(1) The Direct Report Level position and/or 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.

End.

Emergency Adoption – BC-10-15-13-A

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

Adoption – BC-11-10-15-B

Adoption – BC-__-__-__-_

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Title 2. Employment – Chapter 205

FURLOUGH

205.1. Purpose and Policy

205.2. Adoption, Amendment, Repeal

205.3. Definitions

205.4. Application

205.5. Furlough Implementation Plan

205.6. Furlough Implementation

205.7. Placing Employees in Furlough Status

205.8. Furloughed Employees

205.9. Recall of Furloughed Employees

205.10. Direct Report Level and Supervisor Responsibilities

205.11. Appeal

205.1. Purpose and Policy

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

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

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

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

this law;

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

and

in accordance with this law.

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

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

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

Oneida Nation.

205.2. Adoption, Amendment, Repeal

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

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

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

Act.

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

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

to have legal force without the invalid portions.

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

the provisions of this law shall control.

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

205.3. Definitions

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

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

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

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

riots, strikes, and wars.

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

not within an employee’s current scope of work.

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

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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.

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

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

(1) Enrolled members of the Oneida Nation;

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

(3) Documented first generation Oneida descendants;

(4) Indians; and

(5) Non-Indians.

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

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

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

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

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

the Civil Rights Act of 1964.

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

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

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

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

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

Affairs (“BIA”) had in its development;

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

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

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

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

to, hypotheticals and charting.

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

this law shall not:

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

take the place of disciplinary actions;

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

policies of the Nation; and/or

Indian preference to the processes set forth herein.

205.5. Furlough Implementation Plan

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

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

to the Human Resources Department for approval.

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

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

implementation plan hereunder.

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

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

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

shall include, but not be limited to:

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

qualify as a critical position;

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

qualify for Indian preference and the corresponding level of preference that

would apply under section 205.4-2 of this law;

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

the basis for said exemption;

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

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

a furlough program is implemented; and

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

are capable of being adjusted to promote Indian preference when deciding

which employees to place in furlough status.

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

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

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

accordance herewith.

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

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

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

address the following:

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

their authorized designees;

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

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

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

template;

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

Resources Department for approval; and

authorized designees have to submit their furlough implementation plans to

the Human Resources Department upon receipt of the standard template.

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

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

authorized designees; and

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

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

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

process for resubmitting the furlough implementation plan for reconsideration.

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

designees, consistent with governing law.

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

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

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

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

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

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

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

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

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

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

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

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

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

any of the job descriptions attached to a position.

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

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

Procedure created by the Human Resources Department in accordance therewith.

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

205.6. Furlough Implementation

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

Business Committee shall consider whether any reasonable alternative options to implementation

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

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

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

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

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

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

Business Committee.

(a) The resolution shall include the following:

(1) The basis for implementing the furlough program;

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

program;

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

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

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

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

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

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

and

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

assist in the implementation of the furlough program.

(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

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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.

(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

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