Oneida Business Committee (2024)

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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

March 6, 2024

9:00 a.m.

Call to Order and Approval of the Agenda

II.

Minutes to be Approved

1. February 21, 2024 LOC Meeting Minutes (pg. 2)

III.

Current Business

1. Back Pay Law Amendments (pg. 4)

IV.

New Submissions

1. Conflict of Interest Law Amendments (pg. 34)

2. Budget and Finances Law Amendments (pg. 42)

Additions

VI.

Administrative Updates

1. April 2, 2024 LOC Community Work Session Notice (pg. 55)

2. Certification of Amendments to Leasing Law Rule No. 6 – Homeownership by Independent

Purchase (HIP) Program (pg. 56)

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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mooao

ONEIDA

LEGISLATIVE OPERATING COMMITTEE MEETING MINUTES

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

February 21, 2024

9:00 a.m.

Present: Jameson Wilson, Kirby Metoxen, Jonas Hill

Excused: Jennifer Webster [Approved Travel], Marlon Skenandore [Personal Time Off]

Others Present: Clorissa N. Leeman, Grace Elliott, Keith Doxtator, Maureen Perkins, Bonnie

Pigman, Lawrence Barton, Shannon Davis

Others Present on Microsoft Teams: Michelle Braaten, Justin Nishimoto, Rhiannon Metoxen,

Reynold Danforth, Mark A. Powless Sr., Carolyn Salutz, Eric Boulanger, Fawn Billie, Jeremy

King, Diana Wilson, Kristal Hill, Tavia Charles, Connie Herlache, Jeremy King, Fawn Cottrell,

Todd Vanden Heuvel, Rae Skenandore, Brandon Yellowbird Stevens, Matt Denny

Call to Order and Approval of the Agenda

Jameson Wilson called the February 21, 2024, Legislative Operating Committee meeting

to order at 9:03 a.m.

Motion by Jonas Hill approve the agenda; seconded by Kirby Metoxen. Motion carried

unanimously.

II.

Minutes to be Approved

1. February 7, 2024 LOC Meeting Minutes

Motion by Kirby Metoxen to approve the February 7, 2024, LOC meeting minutes;

seconded by Jonas Hill. Motion carried unanimously.

III.

Current Business

IV.

New Submissions

1. Pardon and Forgiveness Screening Committee Bylaws Amendments

Motion by Kirby Metoxen to add the Pardon and Forgiveness Screening Committee bylaws

amendments to the Active Files List with Jonas Hill as the sponsor; seconded by Jonas

Hill. Motion carried unanimously.

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

Legislative Operating Committee Meeting Minutes of February 21, 2024

Page 1 of 2

ONEIDA

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2. Landlord Tenant Law Amendments

Motion by Kirby Metoxen to add the Landlord Tenant law amendments to the Active Files

List with Jonas Hill as the sponsor; seconded by Jonas Hill. Motion carried unanimously.

Additions

VI.

Administrative Items

1. Budget and Finances Law One Year Review Memorandum

Motion by Kirby Metoxen to approve the Budget and Finances Law One Year Review

Memorandum and forward to the Oneida Business Committee; seconded by Jonas Hill.

Motion carried unanimously.

VII.

Executive Session

VIII. Adjourn

Motion by Kirby Metoxen to adjourn at 9:13 a.m.; seconded by Jonas Hill. Motion carried

unanimously.

Legislative Operating Committee Meeting Minutes of February 21, 2024

Page 2 of 2

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Oneida Nation

Oneida Business Committee

Legislative Operating Committee

=DODDOO

PO Box 365 • Oneida, WI 54155-0365

ONEIDA

Oneida-nsn.gov

Legislative Operating Committee

March 6, 2024

Back Pay Law

Amendments

Submission Date: 9/21/22

LOC Sponsor: Jonas Hill

Public Meeting: 12/13/22

Emergency Enacted: N/A

Summary: This item was carried over from last term. On August 14, 2022, during executive session,

the Oneida Business Committee requested that the Legislative Operating Committee add the Back Pay law

to the Active Files List, and to release the confidential memo to the Legislative Reference Office as a

confidential document.

9/14/22 OBC: Motion by Jennifer Webster to request the Legislative Operating Committee to add the

Backpay Policy to the active files agenda and to release the confidential memo to the

Legislative Reference Office as a confidential document, seconded by David P. Jordan.

Motion carried.

9/21/22 LOC: Motion by Jennifer Webster to add the Back Pay Law Amendments to the Active Files List

with Marie Cornelius as the sponsor; seconded by Kirby Metoxen. Motion carried

unanimously.

9/29/22:

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

Cornelius, Clorissa N. Leeman, Carolyn Salutz, Grace Elliott, Kristal Hill. This was a work

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

discuss the proposed draft of amendments to the Back Pay law.

10/5/22 LOC: Motion by Jennifer Webster to approve the draft of the proposed amendments to the Back Pay

law and direct that a legislative analysis be completed; seconded by Daniel Guzman King.

Motion carried unanimously.

10/13/22:

Work Meeting. Present: David P. Jordan, Daniel Guzman King, Marie Cornelius, Clorissa N.

Leeman, Carolyn Salutz, Kristal Hill. This was a work meeting held through Microsoft Teams.

The purpose of this work meeting was to review and discuss an additional proposed

amendments to the law.

10/19/22 LOC: Motion by Jennifer Webster to approve the updated draft and legislative analysis; seconded

by Marie Cornelius. Motion carried unanimously.

11/2/22 LOC: Motion by Kirby Metoxen to approve the public meeting packet and forward the Back Pay

law amendments to a public meeting to be held on December 13, 2022; seconded by Marie

Cornelius. Motion carried unanimously.

12/13/22:

Public Meeting Held. Present: Kirby Metoxen, Clorissa N. Santiago, Carolyn Salutz, Brooke

Doxtator, David P. Jordan (Microsoft Teams), Carrie Lindsey (Microsoft Teams), Joy

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

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Salzwedel (Microsoft Teams), Justin Nishimoto (Microsoft Teams), Rachel Fitzpatrick

(Microsoft Teams), Tina Jorgensen (Microsoft Teams), Melanie Burkhart (Microsoft Teams),

Grace Elliot (Microsoft Teams), Brenda Haen (Microsoft Teams), Debra Santiago (Microsoft

Teams), Kristal Hill (Microsoft Teams), Matt Denny (Microsoft Teams), Ronald Vanschyndel

(Microsoft Teams), Wendy Alvarez (Microsoft Teams), Stefanie Reinke (Microsoft Teams),

Jay Kennard (Microsoft Teams), Sidney White (Microsoft Teams). The public meeting for the

Back Pay law amendments was held in person in the Norbert Hill Center and on Microsoft

Teams. No individuals provided public comment during the public meeting.

12/20/22:

Public Comment Period Closed. One (1) submission of written comments were received

during the public comment period.

2/1/23 LOC:

Motion by Maire Cornelius to accept the public comments and the public comment review

memorandum and defer to a work meeting for further consideration; seconded by Daniel

Guzman King. Motion carried unanimously.

2/1/23:

Work Meeting. Present: David P. Jordan, Marie Cornelius, Danie Guzman King, Clorissa N.

Leeman, Carolyn Salutz, Grace Elliott. The purpose of this work meeting was to review and

consider the public comments received.

2/15/23 LOC: Motion by Jennifer Webster to accept the updated public comment review memorandum;

seconded by Marie Cornelius. Motion carried unanimously.

3/14/23:

Work Meeting. Present: David P. Jordan, Marie Cornelius, Jennifer Webster, Clorissa N.

Leeman, Grace Elliott, Kristal Hill, Todd Vandenheuvel, Matt Denny, Josh Cottrell. This was

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

review and consider the concerns brought up by HRD in their public comments.

10/4/23 LOC: Motion by Jennifer Webster to add the Back Pay Law Amendments to the Active Files List

with Jonas Hill as the sponsor; seconded by Marlon Skenandore. Motion carried unanimously.

1/3/24:

Work Meeting. Present: Jameson Wilson, Marlon Skenandore, Jennifer Webster, Jonas Hill,

Kirby Metoxen Clorissa Leeman, Carolyn Salutz, Kristal Hill, Maureen Perkins, Fawn

Cottrell. The purpose of this work meeting was for the LOC to review the draft of proposed

amendments that went to public meeting and the corresponding comments that were received,

and discuss and determine any revisions needed to the draft and the next steps for moving this

legislative item forward.

1/17/24:

Work Meeting. Present: Marlon Skenandore, Jennifer Webster, Jonas Hill, Kirby Metoxen

Clorissa Leeman, Carolyn Salutz (Microsoft Teams), Maureen Perkins (Microsoft Teams).

The purpose of this work meeting was for the LOC to review the updated draft of proposed

amendments; and determine next steps for moving this legislative item forward. LOC decided

that a work meeting should be scheduled with HRD, Oneida Law Office, and General

Managers to review the updated language, and that an additional public meeting should be

held.

2/1/24:

Work Meeting. Present: Jameson Wilson, Jennifer Webster, Jonas Hill, Kirby Metoxen

Clorissa Leeman, Carolyn Salutz, Kristal Hill, Maureen Perkins, Fawn Cottrell. The purpose

of this work meeting was for the LOC to review the memorandum received the Oneida Law

Office regarding their question on statistics on the use of back pay in the Nation, and the

question of whether to exclude wages earned from a back pay award is typical.

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

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ONEIDA

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2/20/24:

Work Meeting. Present: Jameson Wilson, Jonas Hill, Kirby Metoxen Clorissa Leeman, Kristal

Hill, Maureen Perkins, Fawn Cottrell, Todd Vanden Heuvel, Wendy Alvarez, Whitney

Wheelock, Marie Cornelius, Dana Thyssen, Matt Denny, Mark Powless, Peggy Van Gheem,

Jeri Bauman. The purpose of this work meeting was for the LOC to review the updated

proposed amendments to the Bay Pay law with HRD, the Oneida Law Office, and the general

managers.

Next Steps:

 Approve the updated materials contained in the public meeting packet for the Back Pay Law

Amendments, and forward the Back Pay Law Amendments to a public meeting to be held on

April 12, 2024.

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

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ONEIDA

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Title 2. Employment – Chapter 206

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back pay law

BACK PAY AND REINSTATEMENT

206.1. Purpose and Policy

206.2. Adoption, Amendment, Appeal

206.3. Definitions

206.4. Holding a Position Pending Appeals and Reinstatement

206.5. Back Pay Calculation

206.6. Back Pay Process

206.1. Purpose and Policy

206.1-1. Purpose. The purpose of this law is to set forth standards used in the reinstatement of a

wrongfully terminated employee, and the calculation of back pay for all employees of the Nation

in accordance with the Nation’s law.

206.1-2. Policy. It is the policy of the Nation to have consistent and standard procedures for the

management of employee reinstatement and back pay.

206.2. Adoption, Amendment, AppealRepeal

206.2-1. This law was adopted by the Oneida Business Committee by resolution BC-5-24-06-PP

and amended by resolutions BC-06-23-10-F, BC-08-13-14-C, BC-10-26-16-A, and BC-__-__-____.

206.2-2. This law may be amended or repealed by the Oneida Business Committee or the Oneida

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

206.2-3. 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.

206.2-4. 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.

206.2-5. This law is adopted under authority of the Constitution of the Oneida Nation.

206.3. Definitions

206.3-1. This section shall govern the definitions of words and phrases used within this law. All

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

(a) “Appellate Court” means the branch of the Nation’s Judiciary delegated the authority

of final appeals within the Nation’s Judiciary, as authorized by Oneida General Tribal

Council resolution GTC-03-19-17-A in accordance with Article V of the Constitution and

Bylaws of the Oneida Nation.

(b) “Advocate” means a non-attorney person as provided by law and other person who is

admitted to practice law and is presented to the court as the representative or advisor to a

party.

compensate the employee as determined by the formulas set forth within this law.

(d) “Consequential damages” means damages that are not a direct and immediately result

of an act, but a consequence of the initial act, including but not limited to penalties on early

withdrawal of retirement account.

(e) “Earnings” includes vacation or personal time, shift differential, holiday pay, merit

2 O.C. 206 – Page 1

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increases, bonuses and incentives, employment benefits and income received during the

back pay period.

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

direction and control of the Nation 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 any program or enterprise of the Nation but

does not include elected or appointed officials, or individuals employed by a Tribally

Chartered Corporation. For purposes of this law, individuals employed under an

employment contract as a limited term employee are employees of the Nation, not

consultants.

(g) “Extreme financial distress” means a situation in which an entity cannot generate

sufficient revenues or income, making it unable to meet or pay its financial obligations,

due to situations including, but is not limited to:

(1) natural or human-made disasters;

(2) United States Government shutdown;

(3) emergency proclamations; and

(4) economic downturn.

(g)(h) “Involuntarily separated” means an employee removed from employment through

whatever means, other than a layoff, by the employer. This shall include, but is not limited

to investigative leave, suspension or termination.

(h)(i) "Judiciary" means Oneida Nation Judiciary, which is the judicial system that was

established by Oneida General Tribal Council resolution GTC-01-07-13-B, and then later

authorized to administer the judicial authorities and responsibilities of the Nation by

Oneida General Tribal Council resolution GTC-03-19-17-A in accordance with Article V

of the Constitution and Bylaws of the Oneida Nation.

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

(j)(k) “Punitive damages” means monetary compensation awarded to an injured party that

goes beyond that which is necessary to compensate the individual for losses and that is

intended to punish the other party.

(k)(l) “Reviewing party” means the area manager or the Trial Court.

(l)(m) “Trial Court” means the Trial Court of the Oneida Nation Judiciary authorized to

administer the judicial authorities and responsibilities of the Nation by Oneida General

Tribal Council resolution GTC-03-19-17-A in accordance with Article V of the

Constitution and Bylaws of the Oneida Nation.

206.4. Holding a Position Pending Appeals and Reinstatement

206.4-1. Reinstatement to the Position the Employee was Terminated From. Should an employee's

appeal of a termination result in the termination being overturned, the reviewing party shall order

the employee be reinstated to the position from which the employee was wrongfully terminated.

(a) In accordance with section 206.4-3, in the event the position the employee was

terminated from has been eliminated or the employee is no longer eligible for the position

the employee was terminated from based on amendments to the position description, the

reviewing party shall order reinstatement to a position within the same division of the

organization the employee was terminated from that is comparable in wage to the position

the employee was terminated, to the extent it is available at the time of the reviewing party's

decision.

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(b) Any order requiring the employee to be reinstated to a position comparable to the

position the employee was terminated from shall note the requirement that the Human

Resources Department shall make the determination that the employee is eligible for a

comparable position.

the employee was terminated from that are comparable in wage to the position the

employee was terminated from, or if the employee is not eligible for the comparable

position, the order to reinstate shall be deemed satisfied and the back pay end date shall be

the date of the reviewing party's decision.

206.4-2. Requirement to Hold the Position Pending Litigation. When an employee is

terminatedinvoluntarily separated and thereafter appeals said terminationinvoluntarily separation,

the disciplining supervisor may only fill the employee's former position with an interim or

temporary employee until the appeal has fully run its course, which includes any appeal timelines

to the area manager, the Trial Court, or the Appellate Court.

206.4-32. Amending the Position Description or Eliminating the Position Pending an Employee

Appeal. Notwithstanding the requirement to hold the terminatedan employee's position pending

an employee's appeal of their termination as provided in section 206.4-21, a supervisor or business

unit may amend the affected position description or eliminate the affected position while an

employment appeal is pending where such actions are required to meet the Nation's business and

employment needs.to respond to extreme financial distress that could negatively impact the

Nation.

(a) The determination to amend an affected position description or eliminate an affected

position shall be approved by the Human Resources Executive Director and either the

General Manager, Gaming General Manager, Retail General Manager, or the highest

position in the employee’s chain of command for non-divisional employees.:

(1) General Manager;

(2) Gaming General Manager;

(3) Retail General Manager; or

(4) the highest position in the employee’s chain of command for non-divisional

employees.

206.4-3. Reinstatement to the Position the Employee was Involuntarily Separated From. Should

an employee's appeal of an involuntarily separation result in the involuntarily separation being

overturned, the reviewing party shall order the employee be reinstated to the position from which

the employee was involuntarily separated.

(a) In the event the position the employee was involuntarily separated from has been

eliminated, or the employee is no longer eligible for the position based on amendments to

the position description, the order to reinstate shall be deemed satisfied and the back pay

end date shall be the date of the reviewing party's decision.

206.5. Back Pay Calculation

206.5-1. Back Pay Limitations. Back pay calculations shall be made using the employee's last

wage in the position which they were terminatedinvoluntarily separated from. Back pay, in all

circumstances, shall be limited to the calculation set forth in this section. Back pay shall include

and be subject to the following as it is related to the employee:

(a) Vacation and Personal Time Accrual. Employees shall receive prorated credit for

vacation and personal time which would have accrued during the back pay period.

(1) Reinstated employees shall be credited for vacation and personal time. If the

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crediting of vacation and personal time would result in the employee exceeding the

accrual cap pursuant to the Nation’s laws, rules and policies, then any amount over

that cap shall be provided as a cash payout. Non-reinstated employees shall be paid

out vacation and personal time in lieu of crediting personal and vacation time.

(b) Shift Differential. Shift differential shall be included in the back pay amount to the

extent it is a part of the employee’s regularly scheduled hours.

shall be included in the total back pay amount at the same tip rate that other employees in

the same position and on the same shift received on the same dates.

(1) If the employee received individual tips at the time of involuntary separation,

the employee shall be ineligible for tips during the back pay period.

(d) Holiday Pay. Holiday pay shall be included in the back pay amount to the extent the

employee would have received such pay if the employee had not been involuntarily

separated.

(e) Merit Increases. The hourly rate used to calculate back pay shall be increased

according to the merit increase system or standard used by the employee’s supervisor

during the back pay period and shall include any increases from Oneida Business

Committee or General Tribal Council directives.

(1) The effective date of the employee’s merit increase shall be the same as the

effective date for other employees in the same department. Retroactive increases

shall be calculated back to the retroactive date used for other employees in the same

department.

(2) The most recent performance review issued to the employee prior to being

involuntarily separated shall be used to determine the level of merit increase.

However, if the employee appealed the performance review to the Human Resource

Department Manager prior to involuntary separation, a method under the Nation’s

laws, rules and policies shall be used to determine the merit increase.

(f) Bonuses and Incentives. All bonus and incentive payments for which the employee

would have been eligible during the back pay period shall be included in the total back pay

amount, except for non-monetary gifts distributed by the Nation to all employees (e.g.

winter gift) or other non-monetary benefits, such as clothing allowance.

(g) Employment Benefits. Employee benefits shall be subject to the provisions in this

section.

(1) Insurance Benefits. Coverage by the Nation for health insurance, dental

insurance, vision insurance, life insurance, long-term disability and short-term

disability coverage shall continue during an involuntary separation, except in the

event of a termination where the coverage shall discontinue. The Nation shall

deduct the employee’s share of premiums paid from any back pay award.

(A) If the employee’s circumstances have changed during the back pay period

and such circumstances affect the employee’s insurance needs, the employee

shall notify the Nation of such changes at the time of reinstatement.

(B) An employee who is reinstated shall sign a waiver from Purchased

Referred Care authorizing a review of the back pay period to determine if

Purchased Referred Care services were rendered. If Purchased Referred Care

determines services were rendered during the back pay period, an employee

shall timely submit insurance information to Purchased Referred Care in

order for Purchased Referred Care to retroactively bill the insurance provider

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to recoup funds for those services rendered during the back pay period.

Referred Care, the employee shall not be eligible to receive any back pay

award.

(2) Flexible Benefit Plan Contributions. If a terminated employee was contributing

to the Nation’s flexible benefit plan at the time of termination, the status of the

employee’s flex benefit plan shall be subject to the provisions of the Internal

Revenue Code.

(3) Retirement Benefit Contributions. In the event the employee was participating

in the Nation’s retirement plan at the time of involuntary separation, the employee

shall be responsible for contacting the retirement plan administrator and

reactivating contributions.

(A) The employee may choose whether to have the employee’s contribution

to the retirement plan that would have been made during the back pay period

deducted from the total back pay amount and deposited into the employee’s

retirement account.

(B) If the employee was eligible for employer matching contributions at the

time of involuntary separation and the employee chooses to make a

contribution through back pay, the Nation shall contribute the employer

match into the employee’s retirement account.

chooses not to make contributions through the back pay process, then the

Nation shall not make employer match contributions into the employee’s

retirement account.

(h) Income Received During the Back Pay Period.

(1) Unemployment Benefits. Depending upon the unemployment compensation

financing option elected by the Nation, either:

(A) Any unemployment compensation paid by the Nation to the State of

Wisconsin for an involuntarily separated employee shall be deducted from

the employee’s back pay award; or

(B) The employee is directly responsible for the reimbursement to the State

of Wisconsin. The Nation shall send a copy of the completed and signed

settlement agreement to the appropriate state department. The state then may

determine the amount, if any, of unemployment compensation benefits

received during the back pay period should be repaid.

(2) Income Received Through Employment. Except as provided in section 206.51(h)(2)(B), income earned by an employee during the back pay period shall be

deducted from the total back pay amount.

(A) The employee shall provide information to verify the amount of or lack

of earned income and sign an affidavit attesting to the amount of or lack of

earned income.

(B) If the employee worked an additional job prior to being involuntarily

separated and continued working in the same capacity, the income earned

from that employment shall not be deducted from the total back pay amount

to the extent that the income is consistent with pre-involuntary separation

earnings. Where the employee worked the additional job, the employee shall

provide information from the employer to verify the income earned before

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and during the back pay period.

206.5-2. Payments Not Allowed. The Nation shall not include the following in any back pay

amount:

(a) Punitive damages;

(b) Consequential damages;

(d) Time when the employee would not have been eligible to work. An employee is not

eligible to work in circumstances including, but not limited to, the following:

(1) When an employee is on layoff or furlough status at the time of

terminationinvoluntary separation;

(2) When a position is eliminated or inactive as part of the Nation’s response to

aextreme financial force majeure event including, but not limited to:distress;

(A) responses to war;

(B) global health pandemics; and

(3) When an employee would have been on medical leave at the time of involuntary

separation; and

(4) When an employee would otherwise not be eligible to work in the position from

which they were terminatedseparated from in accordance with the position

description based on:

(A) applicable grant requirements when the position is grant funded;

(B) applicable laws of the Nation including, but not limited to, the Vehicle

Driver Certification and Fleet Management law; and

(e) Monies normally paid for additional duties while working where an alternate employee

assumed that function while the employee was involuntarily separated, unless the

additional duties are a part of such involuntarily separated employee’s regular schedule.

206.5-3. Back Pay Period. Calculation of back pay begins on the day the employee is

involuntarily separated and ends on the day the employee is reinstated.

(a) If the employee is reinstated but refuses to return to work, the back pay period ends on

the date reinstatement would have taken effect, but was refused by the employee.

(b) Back pay shall be calculated by taking the employee’s average hours worked during

the fifty-two (52) week period immediately preceding the date of the involuntary separation

and divide that amount by the number of weeks worked.

(1) If the employment prior to the involuntary separation was less than fifty-two

(52) weeks, the back pay shall be calculated by taking the employee’s average hours

worked and divide that amount by the number of weeks worked.

(2) If the involuntary separation period involves a fractional week, the indemnity

shall be paid for each day of a fractional week at the rate of the average number

of hours worked per day immediately prior to the involuntary separation. For the

purposes of this section, immediately prior means the twelve (12) full work weeks

immediately preceding the involuntary separation. Provided that, under extenuating

circumstances related to business needs of the Nation wherein the Oneida Law

Office determines that considering hours worked per day immediately prior would

be unfair, an alternative reasonable timeframe may be used.

206.6. Back Pay Process

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206.6-1. The Oneida Law Office shall develop necessary forms and procedures for the purpose of

implementing this law.

206.6-2. Internal departments shall cooperate as necessary with the Oneida Law Office in

providing information needed to assemble and prepare the back pay agreement.

206.6-3. A reasonable effort shall be made to complete the back pay agreement within thirty (30)

calendar days, starting the day after the party to the grievance action provides to the Oneida Law

Office a judgment ordering back pay or the results of an investigation or test showing the employee

is cleared of any wrongdoing.

206.6-4. An employee not receiving back pay in accordance with the back pay agreement may

seek enforcement by the Judiciary.

End.

Adopted - BC-05-24-06-PP

Amended - BC-06-23-10-F

Amended - BC-08-13-14-C

Amended - BC-10-26-16-A

Amended – BC-__-__-__-__

2 O.C. 206 – Page 7

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ONEIDA NATION PUBLIC MEETING NOTICE

FRIDAY, APRIL 12, 2024, 12:15 pm

Find Public Meeting Materials at

Oneida-nsn.gov/government/register/public meetings

Send Public Comments to

Norbert Hill Center-Business Committee Conference Room

N7210 Seminary Rd., Oneida, Wisconsin

LOC@oneidanation.org

Ask Questions here

LOC@oneidanation.org

920-869-4417

BACK PAY LAW AMENDMENTS

The purpose of the Back Pay law is to set forth standards used in the reinstatement of an employee and the calculation of back pay for all employees of the Nation in accordance with the

Nation’s law .

The Back Pay law amendments will:

 Include a new section in the law which provides for the reinstatement of employee who

had an involuntary separation overturned and addresses such issues as:

 requirement to hold a position pending litigation;

 amending the position description or eliminating the position pending an employee

appeal; and

 reinstatement of an employee to the position the employee was involuntarily separated from;

 Clarify that back pay calculations shall be made using the employee’s last wage in the

position which they were involuntarily separated from.

 Clarify the circumstances in which an employee is not eligible to work, and therefore is

not eligible for back pay.

Individuals may attend the public meeting for the proposed Back Pay law amendments in person at the Norbert Hill Center, or virtually through Microsoft Teams. If you wish to attend the

public meeting through Microsoft Teams please contact LOC@oneidanation.org.

PUBLIC COMMENT PERIOD CLOSES FRIDAY, APRIL 19, 2024

During the public comment period, anyone may submit written comments, questions or input. Comments may be submitted to the Oneida

Nation Secretary’s Office or the Legislative Reference Office in person,

by U.S. mail, interoffice mail, or e-mail.

For more information on the proposed Back Pay law amendments please review the public meeting packet at

oneida-nsn.gov/government/register/public meetings.

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BACK PAY LAW AMENDMENTS

LEGISLATIVE ANALYSIS

SECTION 1. EXECUTIVE SUMMARY

Intent of the

Proposed Amendments

Purpose

Affected Entities

Public Meeting

Fiscal Impact

Analysis by the Legislative Reference Office

 Include a new section in the law which provides for the reinstatement of

employee who had involuntary separation overturned and addresses such

issues as:

 Requirement to hold a position pending litigation [2 O.C. 206.4-1];

 amending the position description or eliminating the position pending

an employee appeal [2 O.C. 206.4-2];

 Reinstatement to the position the employee was involuntarily

separated from [2 O.C. 206.4-3];

 Clarify that back pay calculations shall be made using the employee’s last

wage in the position which they were terminated from [2 O.C. 206.5-1];

 Clarify the circumstances in which an employee is not eligible to work,

and therefore is not eligible for back pay [2 O.C. 206.5-2(d)].

The purpose of this law is to set forth standards used in the reinstatement of

an employee and the calculation of back pay for all employees of the Nation

in accordance with the Nation’s law. [2 O.C. 206.1-1].

Oneida Law Office, General Manager, Gaming General Manager, Retail

General Manager, Human Resources Department Executive Director, Oneida

Nation Judiciary, Employees of the Nation

A public meeting was held on December 13, 2022, with a public comment

period held open until December 20, 2022.

A fiscal impact statement has not yet been requested.

SECTION 2. LEGISLATIVE DEVELOPMENT

A. Background. The Back Pay law was originally adopted by the Oneida Business Committee in 2006

through resolution BC-05-24-06-PP, and then amended through resolutions BC-06-23-10-F, BC-0813-14-C, and BC-10-26-16-A. The purpose of the Back Pay law is to set forth standards used in the

reinstatement of an employee and the calculation of back pay for all employees of the Nation in

accordance with the Nation’s law. [2 O.C. 206.1-1]. It is the policy of the Nation to have consistent

and standard procedures for the management of employee reinstatement and back pay. [2 O.C. 206.12].

B. Request for Amendments. On the September 14, 2022, the Oneida Business Committee adopted a

motion to request the Legislative Operating Committee consider amendments to the Back Pay law. The

Legislative Operating Committee added this legislative item to its Active Files List on September 21,

2022.

SECTION 3. CONSULTATION AND OUTREACH

A. Representatives from the following departments or entities participated in the development of the

amendments to the Back Pay law and this legislative analysis:

 Oneida Law Office;

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 Human Resources Department;

 General Manager; and

 Gaming Employee Services.

B. The following laws were reviewed in the drafting of this analysis:

 Back Pay law;

 Oneida Personnel Policies and Procedures;

 Drug and Alcohol Free Workplace law;

 Furlough law; and

 Investigative Leave Policy.

SECTION 4. PROCESS

A. The development of the proposed amendments to the Back Pay law complies with the process set forth

in the Legislative Procedures Act (LPA).

 On September 14, 2022, the Oneida Business Committee adopted a motion to request the

Legislative Operating Committee to add the Back Pay Policy to the active files agenda and to

release the confidential memo to the Legislative Reference Office as a confidential document.

 On September 21, 2022, the Legislative Operating Committee added the Law to its Active Files

List.

 On October 5, 2022, the Legislative Operating Committee approved the draft of the proposed

amendments to the Back Pay law and directed that a legislative analysis be developed.

 On October 19, 2022, the Legislative Operating Committee approved the updated draft and

legislative analysis.

 On November 2, 2022, the Legislative Operating Committee approved the public meeting

packet and forwarded the Back Pay law amendments to a public meeting to be held on

December 13, 2022.

 The public meeting was held on December 13, 2022, in person in the Norbert Hill Center and

on Microsoft Teams. No individuals provided public comment during the public meeting.

 The public comment period was held open until December 20, 2022. One (1) submission of

written comments was received during the public comment period.

 On February 1, 2023, the Legislative Operating Committee to accepted the public comments

and the public comment review memorandum and deferred these items to a work meeting for

further consideration. The Legislative Operating Committee reviewed and considered these

comments later that same day.

 On February 15, 2023, the Legislative Operating Committee accepted the updated public

comment review memorandum.

 On October 4, 2023, the Legislative Operating Committee readded the Back Pay law

amendments to its Active Files List for the 2023-2026 legislative term.

B. At the time this legislative analysis was developed the following work meetings had been held

regarding the development of the amendments to this Law:

 September 29, 2022: LOC work session;

 October 13, 2022: LOC work session;

 February 1, 2023: LOC work session;

 March 14, 2023: LOC work session with HRD.

 January 3, 2024: LOC work session.

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

January 17, 2024: LOC work session.

February 1, 2024: LOC work session.

February 20, 2024: LOC work session with HRD, Oneida Law Office, General Manager, and

Gaming Employee Services.

Back Pay Statistics

Employees of the Nation may receive back pay for a couple different reasons such as (1) overturned

suspensions, separations, and employment terminations; (2) an investigative leave that ends with the

employee returning to their position with no discipline; and (3) missed work time for reasonable suspicion

drug test that produces a negative result.

Below please find some statistics provided by the Oneida Law Office regarding employment appeals and

back pay awards related to each reason listed above.

Employment An,nealls sinc,e January 1, 2022

Appealed Terminations/Separations

1,8

Appealed Suspension

Back Pav Pavmeots Si:nce Jauuarv l, 2022

Or,,. ertumed Tenninail:,ion/Separation

Or,,. ertumed Suspension

Return from Inves:tigatir,,. e Leave - No Discipline

Return from 0mg Test wi.th Negative Result

SECTION 5. CONTENTS OF THE LEGISLATION

A. Holding a Position Pending Appeals and Reinstatement. A new section added to the Law through

these amendments addresses reinstatement of an employee who was involuntarily separated. [2 O.C.

206.4]. This new section requires that when an employee is involuntarily separated and thereafter

appeals said involuntary separation, the disciplining supervisor may only fill the employee's former

position with an interim or temporary employee until the appeal has fully run its course, which includes

any appeal timelines to the area manager, the Trial Court, or the Appellate Court. [2 O.C. 206.4-1].

Additionally, this section of the Law provides that notwithstanding the requirement to hold an

employee's position pending the employee's appeal as provided in section 206.4-1, a supervisor or

business unit may amend the affected position description or eliminate the affected position while an

employment appeal is pending to respond to extreme financial distress that could negatively impact the

Nation. [2 O.C. 206.4-2]. Extreme financial distress is defined to mean a situation in which an entity

cannot generate sufficient revenues or income, making it unable to meet or pay its financial obligations,

due to situations including, but is not limited to, natural or human-made disasters; United States

Government shutdown; emergency proclamations; and economic downturn. [2 O.C. 206.3-1(g)].The

determination to amend an affected position description or eliminate an affected position is then

required to be approved by the Human Resources Department Executive Director and either the General

Manager, Gaming General Manager, Retail General Manager, or the highest position in the employee’s

chain of command for non-divisional employees. [2 O.C. 206.4-2(a)]. This new section then goes on

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to provide that should an employee's appeal of an involuntary separation result in the separation being

overturned, the reviewing party shall order the employee be reinstated to the position from which the

employee was involuntary separated. [2 O.C. 206.4-3]. In the event the position the employee was

involuntarily separated from has been eliminated, or the employee is no longer eligible for the position

based on amendments to the position description, the order to reinstate shall be deemed satisfied and

the back pay end date shall be the date of the reviewing party's decision. [2 O.C. 206.4-3(a)].

 Effect. The overall purpose of this new section to the Law is to provide direction and clarification

on how the reinstatement of an employee who had an involuntary separation overturned is handled,

so that it can be handled in a consistent manner throughout the Nation.

B. Back Pay Calculations. The proposed amendments to the Law clarify that back pay calculations shall

be made using the employee’s last wage in the position which they were involuntarily separated from.

[2 O.C. 206.5-1].

 Effect. This provision of the Law clarifies what wage of an employee should be used when

calculating back pay.

C. Explanation of When an Employee is Not Eligible to Work. The Law provides that the Nation shall

not include time when an employee would not have been eligible to work in the calculation of any back

pay amount. [2 O.C. 206.5-2(d)]. The proposed amendments to the Law provides greater clarification

by providing a list of examples of when an employee is not eligible to work, which includes such

circumstances such as when an employee is on layoff or furlough status at the time of termination;

when a position is eliminated or inactive as part of the Nation’s response extreme financial distress;

when an employee would have been on medical leave at the time of the involuntary separation; and

when an employee would otherwise not be eligible to work in the position from which they were

separated from in accordance with the position description based on applicable grant requirements

when a position is grant funded, applicable laws of the Nation, including, but not limited to, the Vehicle

Driver Certification and Fleet Management law, and a criminal conviction. [2 O.C. 206.5-2(d)(1)-(4)].

 Effect. This provision of the Law clarifies when it should be considered that an employee is not

eligible to work, and therefore is not eligible for back pay.

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SECTION 6. EXISTING LEGISLATION

A. Related Legislation. The following laws of the Nation are related to the Back Pay law:

 Oneida Personnel Policies and Procedures. The purpose of the Oneida Personnel Policies and

Procedures is to provide for the Nation’s employee related policies and procedures including

recruitment, selection, compensation and benefits, employee relations, safety and health, program

and enterprise rules and regulations, and record keeping.

 Section V.D of the Oneida Personnel Policies and Procedures specifically addresses

complaints, disciplinary actions and grievances. Section V.D.6 provides that any employee

who receives a disciplinary action which he/she believes is unfair may grieve the action.

Section V.D.6.f.5 then provides that the Oneida Personnel Commission may: uphold the

disciplinary action; or overturn the disciplinary action and either reinstate the employee with

full back pay for any lost time or reinstate the employee without back pay.

 The Back Pay law will now address the reinstatement of an employee who has an involuntary

separation overturned in section 206.4, as well as provide greater clarification on how back pay

is calculated in section 206.5.

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

Drug and Alcohol Free Workplace Law. It is the policy of the Nation to establish a drug and

alcohol-free workplace program that balances respect for individuals with the need to maintain an

alcohol and drug-free environment. [2 O.C. 202.1-1].

 The Drug and Alcohol Free Workplace law provides that it is the employee’s responsibility to

cooperate with the requests made by Employee Health Nursing and the Medical Review

Officer. [2 O.C. 202.5-2(e)]. An employee who fails to cooperate and does not contact the

Medical Review Officer within twenty-four (24) hours of receiving contact shall not receive

back pay for any time between the date the Medical Review Officer placed the call until the

time the employee does return the call of the Medical Review Officer. Id.

 The Drug and Alcohol Free Workplace law provides that during drug and alcohol testing for

reasonable suspicion, an employee shall be immediately removed from duty without pay at the

time of initiation of the reasonable suspicion drug and alcohol testing and specimen collection

until the employer is notified by Employee Health Nursing of negative results on both the drug

and alcohol tests, or Medical Review Officer verified negative test results. [2 O.C. 202.10-2].

If the employee is reinstated after confirmation of drug and alcohol testing results, back pay

shall be provided in accordance with the Back Pay law. [2 O.C. 202.10-3].

Furlough Law. The purpose of the Furlough law is to 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; establish a consistent and equitable process for implementation of a

furlough program; and incorporate Indian preference into the furlough program and require that it

be applied in accordance with this law. [2 O.C. 205.1-1].

 The Furlough law provides that except when an employee successfully appeals being placed

on furlough status in violation of this law, employees placed in furlough status shall not be

eligible for back pay upon their return to work. [2 O.C. 205.8-6].

Investigative Leave Policy. The purpose of the Investigative Leave Policy is to address

investigative leave for employees undergoing work-related investigations. [2 O.C. 208.1-1].

 The Investigative Leave Policy provides that an employee placed on investigative leave shall

not receive any wages or benefits unless placed in an alternative work assignment, and that if

the employee refuses the alternative work assignment and is returned to work, the employee

shall not receive any back pay or benefits. [2 O.C. 208.10-2].

 The Investigative Leave Policy provides that an employee shall receive back pay and benefits

for the time the employee was on investigative leave pursuant to the Back Pay law if all of the

following occur: the employee was not offered an alternative work assignment when placed on

investigative leave; the employee is returned to his or her position; and the employee is not

disciplined based on the investigation. [2 O.C. 208.10-4].

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 BC10-28-20-A titled, “Further Interpretation of ‘Fiscal Impact Statement’ in the Legislative Procedures

Act,” provides further clarification on 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.

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

Conclusion. The Legislative Operating Committee has not yet directed that a fiscal impact

statement be completed.

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Title 2. Employment – Chapter 206

BACK PAY

Tashakotik@lyahke> kayanl^hsla>

back pay law

BACK PAY AND REINSTATEMENT

206.1. Purpose and Policy

206.2. Adoption, Amendment, Appeal

206.3. Definitions

206.4. Back Pay Calculation

206.5. Back Pay Process

206.1. Purpose and Policy

206.2. Adoption, Amendment, Appeal

206.3. Definitions

206.4. Holding a Position Pending Appeals and Reinstatement

206.5. Back Pay Calculation

206.6. Back Pay Process

206.1. Purpose and Policy

206.1-1. Purpose. The purpose of this law is to set forth standards used in the reinstatement of a

employee, and the calculation of back pay for all employees of the Nation in accordance with the

Nation’s law.

206.1-2. Policy. It is the policy of the Nation to have consistent and standard procedures for the

management of employee reinstatement and back pay.

206.2. Adoption, Amendment, AppealRepeal

206.2-1. This law was adopted by the Oneida Business Committee by resolution BC-5-24-06-PP

and amended by resolutions BC-06-23-10-F, BC-08-13-14-C and, BC-10-26-16-A., and BC-____-__-__.

206.2-2. This law may be amended or repealed by the Oneida Business Committee or the Oneida

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

206.2-3. 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.

206.2-4. 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.

206.2-5. This law is adopted under authority of the Constitution of the Oneida Nation.

206.3. Definitions

206.3-1. This section shall govern the definitions of words and phrases used within this law. All

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

(a) “Appellate Court” means the branch of the Nation’s Judiciary delegated the authority

of final appeals within the Nation’s Judiciary, as authorized by Oneida General Tribal

Council resolution GTC-03-19-17-A in accordance with Article V of the Constitution and

Bylaws of the Oneida Nation.

(a)(b) “Advocate” means a non-attorney person as provided by law and other person who

is admitted to practice law and is presented to the court as the representative or advisor to

a party.

(b)(c) “Back pay” means money damages owed to the employee for a salary or wage to

compensate the employee as determined by the formulas set forth within this law.

(c)(d) “Consequential damages” means damages that are not a direct and immediately

2 O.C. 206 – Page 1

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result of an act, but a consequence of the initial act, including but not limited to penalties

on early withdrawal of retirement account.

(d) “Consultant” means a professional who is contracted externally whose expertise is

provided on a temporary basis for a fee.

(e) “Earnings” includes vacation/ or personal time, shift differential, holiday pay, merit

increases, bonuses and incentives, employment benefits and income received during the

back pay period.

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

direction and control of the Nation 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 any program or enterprise of the Nation, but

does not include elected or appointed officials, or individuals employed by a Tribally

Chartered Corporation. For purposes of this law, individuals employed under an

employment contract as a limited term employee are employees of the Nation, not

consultants.

(g) “Extreme financial distress” means a situation in which an entity cannot generate

sufficient revenues or income, making it unable to meet or pay its financial obligations,

due to situations including, but is not limited to:

(1) natural or human-made disasters;

(2) United States Government shutdown;

(3) emergency proclamations; and

(4) economic downturn.

(g)(h) “Involuntarily separated” means an employee removed from employment through

whatever means, other than a layoff, by the employer. This shall include, but is not limited

to, investigative leave, suspension or termination.

(h)(i) "Judiciary" means Oneida Nation Judiciary, which is the judicial system that was

established by Oneida General Tribal Council resolution GTC-01-07-13-B, and then later

authorized to administer the judicial authorities and responsibilities of the Nation by

Oneida General Tribal Council resolution GTC-03-19-17-A in accordance with Article V

of the Constitution and Bylaws of the Oneida Nation.

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

(j)(k) “Punitive damages” means monetary compensation awarded to an injured party that

goes beyond that which is necessary to compensate the individual for losses and that is

intended to punish the other party.

(l) “Reviewing party” means the area manager or the Trial Court.

(m) “Trial Court” means the Trial Court of the Oneida Nation Judiciary authorized to

administer the judicial authorities and responsibilities of the Nation by Oneida General

Tribal Council resolution GTC-03-19-17-A in accordance with Article V of the

Constitution and Bylaws of the Oneida Nation.

206.4. Holding a Position Pending Appeals and Reinstatement

206.4-1. Requirement to Hold the Position Pending Litigation. When an employee is involuntarily

separated and thereafter appeals said involuntarily separation, the disciplining supervisor may only

fill the employee's former position with an interim or temporary employee until the appeal has

fully run its course, which includes any appeal timelines to the area manager, the Trial Court, or

2 O.C. 206 – Page 2

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the Appellate Court.

206.4-2. Amending the Position Description or Eliminating the Position Pending an Employee

Appeal. Notwithstanding the requirement to hold an employee's position pending an employee's

appeal as provided in section 206.4-1, a supervisor or business unit may amend the affected

position description or eliminate the affected position while an employment appeal is pending to

respond to extreme financial distress that could negatively impact the Nation.

(a) The determination to amend an affected position description or eliminate an affected

position shall be approved by the Human Resources Executive Director and either the:

(1) General Manager;

(2) Gaming General Manager;

(3) Retail General Manager; or

(4) the highest position in the employee’s chain of command for non-divisional

employees.

206.4-3. Reinstatement to the Position the Employee was Involuntarily Separated From. Should

an employee's appeal of an involuntarily separation result in the involuntarily separation being

overturned, the reviewing party shall order the employee be reinstated to the position from which

the employee was involuntarily separated.

(a) In the event the position the employee was involuntarily separated from has been

eliminated, or the employee is no longer eligible for the position based on amendments to

the position description, the order to reinstate shall be deemed satisfied and the back pay

end date shall be the date of the reviewing party's decision.

206.5. Back Pay Calculation

206.45-1. Back Pay Limitations. Back pay shall only include the items identifiedcalculations shall

be made using the employee's last wage in the position which they were involuntarily separated

from. Back pay, in all circumstances, shall be limited to the calculation set forth in this Section as

they relate to the employee. section. Back pay shall include and be subject to the following as it is

related to the employee:

(a) Vacation/ and Personal Time Accrual. Employees shall receive prorated credit for

vacation/ and personal time which would have accrued during the back pay period.

(1) Reinstated employees shall be credited for vacation/ and personal time. If the

crediting of vacation/ and personal time would result in the employee exceeding

the accrual cap pursuant to the Nation’s laws, rules and policies, then any amount

over that cap shall be provided as a cash payout. Non-reinstated employees shall

be paid out vacation/ and personal time in lieu of crediting personal/ and vacation

time.