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[2003]
The Stockbridge-Munsee Tribe is firmly committed to the principal of tribal self-government. Consistent with federal policy, tribal government provides a wide range of public services, including general governmental services, the maintenance of peace and good order, and the promotion and regulation of economic activities within the sovereign jurisdiction of the tribe. Pursuant to the inherent sovereign powers of the Tribe and the powers expressly delegated to the Tribal Council by the tribal constitution, the tribal government recognizes the need for creating laws to govern and protect its employees, especially where state and federal laws do not apply.
Section 53.1 Purpose
The Stockbridge-Munsee Tribal Council recognizes that on occasion, differences may arise between employees and supervisors due to misunderstanding, lack of communication, or concern over supervisory decisions. The Stockbridge-Munsee Tribal Council further recognizes that employees of the Mohican Nation, comprised of all branches of government and business, need protection of their rights including a stable working environment and the right to file a grievance and seek assistance in solving on-the-job problems via the proper, established policies and procedures. The Stockbridge-Munsee Tribe, through this ordinance, seeks to define and establish employees rights and to establish a grievance process allowing all tribal employees an opportunity to have recourse for their grievances.
Section 53.2 Definitions
(A) CORRECTIVE ACTION means any documented oral warnings, written warnings, probation or suspension generated by administration/management.
(B) DISCRIMINATE means to refuse to hire, to terminate or to treat a person differently with respect to promotion, compensation or other terms or conditions of employment.
(C) EMPLOYEE for the purposes of this ordinance shall mean any individual and/or appointee hired or appointed by the Stockbridge-Munsee Community or any subordinate organization thereof.
(D) EMPLOYEE HANDBOOK means the “Information Handbook for Employees of Mohican Nation” effective October 1, 1996, as amended, or any successor document prepared for employees and adopted by the Tribe.
(E) ESTABLISHED POLICIES AND PROCEDURES means the policies, guidelines and procedures published in the Employee Handbook and its inserts or in resolutions or ordinances adopted by the Tribal Council.
(F) EXEMPT EMPLOYEES means employees exempt from the overtime pay provisions of the Tribal Fair Labor Standards Ordinance. Exempt employees are compensated on a salary basis and do not earn overtime pay for hours worked over 40 hours per week.
(G) NONEXEMPT EMPLOYEES means all employees who are not exempt employees.
(H) ORIENTATION PERIOD means a period of up to 120 days during which employees are subject to rigorous performance evaluations. Failure to meet performance standards will result in termination of employment consistent with established personnel policies and procedures of each existing tribal employment division. Such termination may occur at any point during the orientation period. The Tribal Council may designate by motion or resolution an exception to the 120-day limit for those positions such as law enforcement officers or others, where the nature of the job requires a longer orientation period.
(I) POLITICAL APPOINTEES means those employees who are hired by the Tribal Council and serve at the pleasure of the Tribal Council. POLITICAL APPOINTEES are high level executive positions that are so vital to the execution of the Tribal Council’s policies that the Council must be free to entrust the positions to individuals who enjoy the Council’s complete confidence. Political appointments are not subject to the employment posting policy.
(J) PROBATIONARY EMPLOYEES means employees who have not successfully completed the Orientation Period.
(K) REASONABLE ACCOMMODATION means reasonable modifications or adjustments to the work environment or to the manner or circumstances under which a position is customarily performed, that enable a qualified person with a disability to perform the essential functions of the position if such accommodation does not cause the Tribe, or the employing agency of the Tribe, undue hardship. “Reasonable accommodation” does not require measures that would result in an expenditure of tribal funds.
(L) RESTRICTED DUTY means restrictions on an employee’s hours or work duties that temporarily prevent the employee from performing all essential job duties but which do not prevent the employee from performing some essential job duties, provided such restrictions are recommended by a physician, subject to review by a physician selected by the Tribe.
(M) SEXUAL HARASSMENT means unwelcome sexual advances, unwelcome requests for sexual favors, unwelcome physical contact of a sexual nature or unwelcome verbal or physical conduct of a sexual nature. SEXUAL HARASSMENT includes conduct directed by a person at another person of the same or opposite sex. “Unwelcome verbal or physical conduct of a sexual nature” includes but is not limited to the deliberate, repeated making of unsolicited gestures or comments of a sexual nature; the deliberate, repeated display of offensive sexually graphic materials which is not necessary for business purposes; or deliberate verbal or physical conduct of a sexual nature, whether or not repeated, that is sufficiently severe to interfere substantially with an employee’s work performance or to create an intimidating, hostile or offensive work environment.
Section 53.3 Guaranteed Employee Rights
The Stockbridge-Munsee Tribal Council ordains that all employees, exempt or nonexempt, are guaranteed basic employment rights as outlined in the following areas:
(A) All employees are eligible for unemployment compensation in accordance with applicable laws, rules and regulations as adopted by the Stockbridge-Munsee Tribe.
(B) The Tribe recognizes basic human rights in the workplace in regard to age, sex, disability, race, creed, religion, political affiliation, national origin, color, sexual orientation, marital status and ancestry. Subject to the Tribe’s Employment Preference Ordinance, employees shall not be discriminated against for these basic rights, provided that:
(1) This paragraph shall not infringe on the right of the tribal government to discriminate based on tribal political affiliation with respect to political appointees.
(2) It is not a violation of this Ordinance to treat a person differently based on disability if the disability prevents the person from adequately performing all essential job duties and no reasonable accommodation is available.
(3) It is discrimination based on sex to discriminate based on pregnancy, childbirth, maternity leave or related medical conditions.
(4) It is not a violation of this Ordinance to discriminate based on sex where sex is a bona fide occupational qualification.
(C) Employees shall be entitled to leave benefits consistent with the federal Family Medical Leave Act, unless superseded by a tribal Medical Leave Act.
(D) While the Tribal Council has exercised its sovereign right to bar labor union organizing from the reservation, it recognizes the right of employees to meet during nonworking hours to discuss their common interests in regard to employee workplace issues and concerns without threat of retaliation or dismissal.
(E) Employees shall be entitled to certain compensated vacation time, sick time, funeral leave, National Guard and reserve call-up time as provided under the established policies and procedures.
(F) Employees shall be entitled to a compensated leave during jury duty and court ordered or subpoenaed appearances, pursuant to established policies and procedures.
(G) An employee unable to vote during nonworking hours shall be granted reasonable time off with pay to vote in any tribal, federal, state or local election according to established tribal policies and procedures.
(H) The Tribe guarantees equal pay for men and women doing the same job and who would otherwise be compensated equally based on experience, education, performance and years of service.
(I) The Stockbridge-Munsee Tribe prohibits all types of sexual harassment. All employees shall be treated with courtesy, respect and dignity while employed by the Tribe and all of its agencies. Employees should immediately report sexual harassment to the appropriate person as identified in the Employee Handbook at which time an investigation in accordance with the established policies and procedures shall take place.
(J) Employees’ privacy shall be protected in the following ways:
(1) Personal records, including background investigations, developed during the hiring process and actual employment will be safeguarded from unauthorized use.
(2) Interview boards shall maintain full confidentiality of information given during their involvement in the hiring process with a failure to do so resulting in disciplinary action up to and including termination. Tribal employers and departments shall not collect information about employees that is not job related and based on business necessity.
(3) An employee may review and copy his or her personnel files except for those items regarding:
(a) records relating to the investigation of possible criminal offenses committed by the employee;
(b) letters of reference for the employee;
(c) materials used by employers for staff management, including judgments and recommendations concerning future salary changes, promotions or job assignments or other comments on ratings used for planning purposes;
(d) information that would invade another person’s privacy; or
(e) records relevant to a pending claim between the employer and the employee which are discoverable in a judicial proceeding.
(4) Except in the case of employees whose previous drug test has produced a positive finding or is under suspicion of drug use, no employee shall be subjected to random drug testing more than three (3) times in any twelve (12) month period, consistent with Tribal drug testing policy.
(K) The Stockbridge-Munsee Tribe ordains that any Employees Assistance Policy (“EAP”) in effect at the time of employment will be enforced. Employees failing related testing procedures, including those for medical problems, will be provided treatment pursuant to the EAP, provided the employee has not been guilty of conduct which merits termination.
(L) Tribal employees are not to be retaliated against, harassed or dismissed by supervisors or any other person when they report to the tribal government, violations of any rules, regulations, laws, ordinances, policies at any level of government or employment.
(M) Employees may not be terminated from employment without just cause.
(N) Established personnel policies and procedures shall reflect the above listed rights ordained by this Employment Rights Ordinance.
Section 53.35 Other Rights
The rights under this section are listed as employee rights, but are not subject to grievances under Section 53.4.
(A) Employees shall be subject to the Tribal Fair Labor and Standards Ordinance.
(B) Employees shall be covered under existing rules and regulations concerning Workers Compensation and Disabilities as adopted by the Stockbridge-Munsee Tribe.
(C) The Stockbridge-Munsee Tribe ordains a safe work place including buildings, environment, equipment, safe work practices safety education and training.
(D) The Tribe will enforce policies in the workplace to protect its employees from harassment and sexual harassment such as: threats, intimidation, physical or verbal abuse, from co-workers or non-employees during working hours.
Section 53.4 Employee Appeals to Tribal Court
(A) As a part of the Stockbridge-Munsee Community’s commitment to protect the rights of its employees and promote a stable working environment, the following appeal process is made available to each employee:
(1) Only violations of those employee rights enumerated in Section 53.3 of this Ordinance are appealable to the Tribal Court. All other issues must be handled through an internal grievance process as provided for in the Employee Information Handbook. The internal grievance process shall be the final recourse for all issues not expressly enumerated in Section 53.3.
(2) The employee must exhaust the internal grievance process before the Tribal Court appeal process will be available to him or her.
(a) In cases of employee terminations, the employee may choose to waive the internal grievance process and file a claim directly with the Tribal Court.
(b) In all other cases, where the employee can demonstrate to the Human Resources Director or his or her designee, that exhaustion of the internal grievance process would not further the process of resolving the problem, for whatever reason, then the requirement may be waived by the Human Resource Director and the appeal may be taken directly to Tribal Court.
Section 53.45 Statute of Limitations
The employee must initiate the internal grievance process or court action, whichever applies, within 30 calendar days of the event or events that gave rise to the employee’s claim.
Section 53.5 Court Procedures
(A) The petition filed in tribal court under this Ordinance may be in any written format, but shall include at least the following information:
(1) The name and address of the petitioner.
(2) A statement identifying which of the enumerated rights under Section 53.3 has been violated.
(3) A brief description of the facts and events that gave rise to the alleged violation, including the names of potential witnesses and the name of the petitioner’s supervisor, if applicable.
(4) A specific request stating the required relief. Relief is governed by subsection (F) below.
(B) After the filing of the petition, the employer shall file a written answer within 20 days.
(C) After the filing of the answer, the Court shall schedule an initial informal conference with the parties to discuss preliminary matters, including but not limited to, scheduling, motions, discovery and whether there is any possibility of the parties reaching a settlement.
(D) If the parties are unable to settle the matter, the Court shall schedule the matter for a trial no later than 30 days after the initial conference.
(E) At the trial, the petitioner shall carry the burden of showing by a preponderance of the evidence that a violation of the rights enumerated in Section 53.3 occurred.
(F) Upon a finding by the Court based upon credible evidence that a violation has occurred, the Court may order any of the following remedies:
(1) Back pay not to exceed one (1) year’s wages.
(2) Reinstatement.
(3) Any other non-monetary remedy which is narrowly tailored to remedy the violation.
(G) The Stockbridge-Munsee Community provides a limited waiver of sovereign immunity for the purposes of permitting claims arising under Section 53.3 and allowing only those remedies identified in subsection (F) above.
(H) Any settlement agreement reached by the parties shall be presented in writing to the Court.
(I) Peacemaking is permitted for employee disputes. Any peacemaking shall be in accordance with the Tribal Peacemaker Ordinance.
LEGISLATIVE HISTORY
Employee Rights Ordinance approved by Tribal Council June 28, 1995, by Resolution No. 1505-95.
Employee Rights Ordinance amended by Tribal Council, January 6, 1998, by Resolution # 01-98.
Section 53.2K amended to clarify that the Tribe is not required to expend
Tribal resources to make reasonable accommodations on January 2, 2002, Resolution
Number 01-02. Approved by BIA on January 24, 2002.