Title EMP — Employment

Chapter EMP.01 — Employee Rights Ordinance

Legislative History

1. Resolution No. 1505-95, adopted June 28, 1995.

2. Resolution No. 01-98, adopted January 6, 1998.

3. Resolution No. 01-02, adopted January 2, 2002, approved by BIA January 24, 2002.

4. Resolution No. 014-05, adopted April 5, 2005, approved by BIA April 1, 2005.

5. Resolution No. 049-07, adopted July 17, 2007.

6. Resolution No. 055-10, adopted August 17, 2010, partially approved by BIA April 16, 2012.

Preamble

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 EMP.01.01 — 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 Stockbridge-Munsee Community, 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. However, Stockbridge-Munsee Community employees do not have property rights in employment. The Stockbridge-Munsee Tribe, through this ordinance, seeks to define and establish employee rights and to establish a grievance process allowing all tribal employees an opportunity to have recourse for their grievances.

Section EMP.01.02 — Definitions

(a) CORRECTIVE ACTION means any documented oral warnings, written warnings, probation or suspension generated by administration/management.

(b) BUSINESS AGENT means any person who acts or attempts to act for or on behalf of any labor organization in:

(1) the issuance of membership or authorization cards, work permits, or any other evidence of rights granted or claimed in, or by, a labor organization; or,

(2) soliciting or receiving from any employer any right or privilege for employees; or,

(3) soliciting or obtaining a security agreement.

(c) 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.

(d) 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.

(e) EMPLOYMENT MANUAL means the Employment Manuals for tribal government employees and for tribal enterprise employees, as adopted by the Stockbridge-Munsee Tribal Council, as well as any amendments or successor documents prepared for employees and adopted by the Tribe.

(f) ESTABLISHED POLICIES AND PROCEDURES means the policies, guidelines and procedures published in the Employment Manual and its inserts or in resolutions or ordinances adopted by the Tribal Council.

(g) 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.

(h) LABOR ORGANIZATION means any organization or employees organized for the purpose of dealing with an employer, concerning hours of employment, rate of pay, working conditions, benefits, or grievances of any kind relating to employment and desiring to operate on Tribal lands.

(i) NONEXEMPT EMPLOYEES means all employees who are not exempt employees.

(j) ORIENTATION PERIOD means a period of up to 120 days during which employees are subject to rigorous performance evaluations and are employed at the will of the Tribe. Failure to meet performance standards will result in termination of employment. 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.

(k) PERSONNEL RECORDS means any record kept by the Tribe that identifies an employee, to the extent that the record is used or has been used, or may affect or be used relative to that employee's qualifications for employment, promotion, transfer, additional compensation, medical condition or corrective action.

(l) 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.

(m) PROBATIONARY EMPLOYEES means employees who have not successfully completed the Orientation Period.

(n) 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.

(o) 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.

(p) 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 EMP.01.03 — 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) The Tribe 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 paid time off, 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 court appearances that are work-related, 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 Employment Manual 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) Personnel 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, or policies at any level of government or employment.

(m) Employees may not be terminated from employment without just cause, except for orientation employees who are employed at-will.

(n) Established personnel policies and procedures shall reflect the above listed rights ordained by this Employment Rights Ordinance.

(o) Employees shall not be required, as a condition of employment or continuation of employment, to:

(1) resign or refrain from voluntary membership in voluntary affiliation with, or voluntary financial support of a labor organization,

(2) become or remain a member of a labor organization,

(3) pay dues, fees, assessments or other charges of any kind or amount to a labor organization, or,

(4) pay to any charity or other third party, in lieu of such payments any amount equivalent to or a pro-rata portion of dues, fees, assessments or other charges regularly required of members of a labor organization.

Section EMP.01.04 — Other Rights

The rights under this section are listed as employee rights, but are not subject to grievances under Section EMP.01.05.

(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 EMP.01.05 — 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 EMP.01.03 of this Ordinance are appealable to the Tribal Court. All other issues must be handled through the applicable internal dispute resolution process, which may be a grievance process or an employee mediation panel, as provided for in the Employment Manual. The internal dispute resolution process shall be the final recourse for all issues not expressly enumerated in Section EMP.01.03.

(2) The employee must exhaust the applicable internal dispute resolution 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 dispute resolution 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 dispute resolution 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 EMP.01.06 — Statute Of Limitations

The employee must initiate the court action within 30 calendar days of the event or events that gave rise to the employee's claim. In cases where the employee initiates the internal dispute resolution process, the employee must initiate the court action within 30 calendar days of receiving the final written communication of the internal dispute resolution process.

Section EMP.01.07 — 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 EMP.01.03 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 EMP.01.03 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) Only for claims filed within the Statute of Limitations, the Stockbridge-Munsee Community provides a limited waiver of sovereign immunity for the purposes of permitting claims arising under Section EMP.01.03 and allowing only those remedies identified in subsection (f) above.

(h) Peacemaking is permitted for employee disputes. Any peacemaking shall be in accordance with the Tribal Peacemaker Ordinance.

Section EMP.01.08 — Business Agents-Registration-Agreements-Enforcement-Jurisdiction

(a) Any person desiring to act as a business agent on Stockbridge-Munsee Tribal lands shall first obtain and continue to be eligible to maintain a gaming license pursuant to the gaming license requirements, and in accordance with other gaming license provisions in Chapter GMG.01.

(b) Any agreement between any labor organization and an employer that violates the rights of employees guaranteed by the provisions of this Ordinance is against the public policy of the Tribe, is void and has no legal effect.

(1) Act as a business agent without having a valid gaming license.

(2) To solicit membership for or to act as a business agent or any labor organization without authority of the labor organization to do so.

(3) To make any false statement in an application for a license.

(4) To unlawfully seize or occupy any property during the existence of a labor dispute.

(5) To attempt to, or to enter into a security agreement.

(6) To coerce or intimidate any employee in the enjoyment of his or her legal rights; to coerce or intimidate any elected or appointed tribal official; or to intimidate the family, picket the domicile, or injure the person or property of any employee or Tribal official.

(7) To engage in picketing in any manner which constitutes a tribal offense, including picketing in a manner to prevent ingress to and egress from any premises, and picketing other than in a reasonable and peaceful manner.

(d) The Tribe, through the Tribal Prosecutor, has the authority to enforce the provisions of Section EMP.01.08 through Tribal Court, and the Tribal Court has jurisdiction relating to enforcement of Section EMP.01.08. In addition to other remedies available, the Court may:

(1) Order injunctive and emergency injunctive relief to the Tribe or individuals for violations or threatened violations of Section EMP.01.08; and,

(2) Award to the Tribe actual damages, including costs and reasonable attorney fees resulting from a violation or threatened violation of Section EMP.01.08; and,

(3) Fine any person who, directly or indirectly, violates any provision of this Ordinance shall be subject to a fine not exceeding $1,000.00, or exclusion from Stockbridge-Munsee Tribal lands, or both.

Section EMP.01.09 — Severability

If any part, portion, or section of this Ordinance is found to be illegal or invalid by a court of competent jurisdiction, the remaining provisions of this Ordinance shall remain in full force and effect and shall remain unaffected.

Chapter EMP.02 — Employee Preference Policy Ordinance

Legislative History

1. Resolution No. 046-96, adopted July 9, 1996.

2. Resolution No. 072-2000, adopted November 7, 2000, approved by BIA November 22, 2000.

3. Resolution No. 019-04, adopted May 4, 2004, approved by BIA May 27, 2004.

4. Resolution No.031-20, adopted January 21, 2020, approved by BIA January 28, 2021.

5. Resolution No.017-21, adopted January 21, 2021, approved by BIA January 28, 2021.

Section EMP.02.01 — Purpose And Authority

(a) Optimum employment in the Stockbridge-Munsee Community for Tribal members, as well as those who live in the Community as spouses or direct descendants, is a critical element to building self-sufficiency, sovereignty and an economy that combats poverty and social ills, and assures that the Stockbridge-Munsee Community receives the maximum benefits generated by its entities and enterprises. This ordinance is to serve the legitimate governmental purpose of providing maximum employment opportunity and preference in hiring and lay-offs to the people of the Stockbridge-Munsee Community.

(b) This ordinance is authorized under Article VII of the Stockbridge-Munsee Constitution and inherent tribal authority, which grants the Tribal Council power over governmental and economic operations.

Section EMP.02.02 — Definitions

(a) "Employee" means any person paid wages, salary, or stipend by the Stockbridge-Munsee Community or any of its entities and enterprises.

(b) "Employer" means the Stockbridge-Munsee Community, its subdivisions, entities and enterprises.

(c) "Preference" means people will be employed according to a priority listing as long as they meet minimum qualifications of the job description or job announcement.

(d) "Meet Minimum Qualifications" means that the applicant or employee possesses the skills, education, experience or other job-related minimum requirements in the job description or job announcement.

(e) "Enrolled Member" means a person who is officially enrolled as a member of the Stockbridge-Munsee Community.

(f) "Direct Descendant" for purposes of this ordinance means any person whose biological father or biological mother is an Enrolled Member of the Stockbridge-Munsee Community.

(g) "Spouse" means legally married spouse of an Enrolled Member of the Stockbridge-Munsee Community.

(h) "Interview Panel" means the panel of individuals created to interview applicants for a position. It is assumed for the purposes of this Ordinance that the Interview Panel has the authority to recommend applicants for hire, but, does not have the authority to hire.

(i) "Tribe" refers to the Stockbridge-Munsee Community.

(j) "Other Indians" refers to persons who can provide evidence that they are members of other federally-recognized Indian tribes or, if required by federal law, members of either federally or state-recognized Indian tribes.

(k) "Federal Funding" refers to funds provided to the Tribe either directly or indirectly by the United States government. Indirect funding includes, but is not limited to, contracts or grants through third parties such a State that require compliance with federal law.

Section EMP.02.03 — Establishing Preference

(a) Preference shall be given according to Section EMP.02.04 below when it is established that the employee or applicant meets minimum qualifications as stated in the job description or the job announcement.

(1) If the person has the minimum qualifications as stated, he or she is eligible for the position and shall not be denied if another person at a lower preference has higher qualifications than are necessary for the position.

(2) If more than one person at the same preference level meets minimum qualifications the decision-makers shall have discretionary power.

(3) Accordingly, when preparing job descriptions or job announcements care should be taken to establish minimum qualifications that fit the desired needs of the position.

(b) It shall be prohibited to use job qualifications or personnel requirements which are not necessary for the position and which act as barriers to employment preference.

Section EMP.02.04 — Order Of Preference

(a) The Tribe recognizes employment benefits the family, not just an individual. It therefore exercises the following orders of preference to maximize benefits in the tribal community.

(b) The following order of preference shall be adhered to when hiring for employment positions or when involuntary layoffs occur, except that subsection (c) shall apply for federally funded positions:

(1) Enrolled Member.

(2) Direct Descendant.

(3) Spouse.

(1) Enrolled Member.

(2) Other Indian.

(3) Direct Descendant.

(4) Spouse.

Section EMP.02.05 — Coverage

This ordinance shall be binding on all entities, enterprises, and organizations operating under the Stockbridge-Munsee Community, and shall supersede all previous actions and policies regarding Indian preference in employment.

Section EMP.02.06 — Enforcement

(a) The Tribe's Human Resources Departments shall have the responsibility and authority to assure that the provisions of this ordinance are implemented and enforced.

(b) The employment preference compliance form must be completed and signed by the appropriate Human Resources Department.

(c) After the Interview Panel selects an applicant, if the Human Resources Department determines the selection violates this Ordinance, the Human Resources Department will convene the Interview Panel. The Human Resources Department and Interview Panel will discuss the matter and the parties involved will make a good faith effort to reach agreement on an applicant whose selection complies with this Ordinance. If an agreement cannot be reached, the Human Resources Department has the authority to dissolve the Interview Panel, create a new Interview Panel and conduct re-interviews of the candidates.

Section EMP.02.07 — Effect Of Stockbridge-Munsee Employee Rights Ordinance

When interpreting any section of this ordinance, this ordinance and the employee rights ordinance shall be read as working together to give the employee or applicant the maximum benefits of both ordinances. Furthermore, if there is any dispute or conflict between the language and provisions of this ordinance and the employee rights' ordinance, those disputes shall be resolved in favor of the employee or applicant.

Section EMP.02.08 — Effective Date And Amendments

(a) This ordinance shall be effective upon the approval of a resolution adopting same by the Stockbridge-Munsee Tribal Council.

(b) This ordinance may be amended by resolution of the Stockbridge-Munsee Tribal Council.

Section EMP.02.09 — Remedies; Limited Waiver Of Sovereign Immunity For Purposes Of Enforcement

(a) In order to enforce the provisions of this ordinance, the Stockbridge-Munsee Community shall be subject to suit in the Stockbridge-Munsee Tribal Courts by employees or applicants in accordance with the limitations of this section.

(b) Money damages shall not be available in any suit brought under this ordinance. The sole remedy available to the aggrieved party shall be the appointment to the job that was denied as a result of a violation of this ordinance. The complainant may also be awarded a similar unfilled position if one is available.

(c) Any complaint brought under this Ordinance must be filed in Tribal Court within 5 business days of receipt of notice that the complaining applicant did not receive the position. Complaints brought more than 5 days after notification shall not be heard.

Chapter EMP.03 — Mohican Fair Labor Standards Ordinance

Legislative History

1. Resolution No. 070-96, adopted September 17, 1996.

2. Resolution No. 079-96, adopted October 1, 1996.

Section EMP.03.01 — Purpose

(a) In order to maintain a minimum standard of living necessary for health, efficiency and general well-being of all employees within its jurisdiction, the Stockbridge-Munsee Community has enacted the Mohican Fair Labor Standards Ordinance.

(b) Any differences between the Mohican Fair Labor Standards Ordinance and the federal Fair Labor Standards Act are not intended to bypass or circumvent the requirements and protections of the federal Act; rather, the Stockbridge-Munsee Community has enacted an ordinance which attempts to address the unique and special circumstances that exist within the Community and endeavors to sensibly protect the rights of all employees within its jurisdiction. The Stockbridge-Munsee Community has reached for these goals by exercising its inherent sovereign right as an entity existing prior to the formation of the United States.

(d) The Mohican Nation reaffirms its sovereignty, yet acknowledges the desire for fair treatment in the work place.

Section EMP.03.02 — Jurisdiction

The Stockbridge-Munsee Tribal Court shall have jurisdiction over any employer or employee physically located within the Stockbridge-Munsee Reservation or on its trust lands.

Section EMP.03.03 — Definitions

(a) "Compensatory time" means hours awarded to an employee in lieu of overtime compensation.

(b) "Employ" includes to suffer or permit to work.

(d) "Employer" means any person acting directly or indirectly in the interest of an employer in relation to an employee and includes a public agency.

(1) For the purposes of this definition, two entities will be considered separate employers if all of the following are true:

(A) employees working for both employers are doing so voluntarily.

(B) each entity does not have or exercise any control over the other entity's employees.

(C) employees working for both employers are doing so without the expectation of overtime compensation calculated using the hours from both employers; however, no employee shall be denied overtime compensation for hours worked in excess of forty (40) hours for the same employer.

(D) the employee's performance for one entity does not effect his job status at the other entity.

(e) "Independent contractor" means persons whose legal relationship to the employer is solely contractual. The following factors shall be used to determine whether a person is an independent contractor or employee. The existence of a factor makes it more likely that the person is an employee:

(1) the individual has become integrated into the organization;

(2) the individual's work is substantial, regular, and continuous;

(3) the individual is subject to the direction and control of the organization; and

(4) the individual has the right to participate in the organization's fringe benefits.

(f) "Minor" means any person who has net yet attained his or her eighteenth (18th) birthday.

(g) "Overtime compensation" means a rate of pay equal to one and one-half times an employee's regular rate of pay.

(h) "Person" means an individual, partnership, association, corporation, business trust, legal representative, Indian tribe or any organized group of persons.

(i) "Public agency" means the government of the Stockbridge-Munsee Community or any political subdivision thereof.

(j) "Volunteer" means a person who performs labor or services for the employer without compensation and without an expectation of compensation.

(k) "Work week" means the seven consecutive days, commencing at 12:00 AM on Sunday and ending the following Saturday at 11:59 PM.

Section EMP.03.04 — Pay

(a) Hourly employees are paid at their regular rate of pay and are paid for all hours worked.

(b) Hourly employees are paid overtime compensation or given compensatory time for hours worked in excess of 40 hours worked in a work week.

Section EMP.03.05 — Exempt Employees

Exempt employees are defined as follows:

(a) An executive employee is paid at least $360.00 per week; their primary duty is management of the enterprise in which employed, or of a customary recognized department or sub-division thereof and supervises two or more employees; the customary and regular direction of the work of two or more other employees in the establishment or department. Primary duty is defined as 50% or more of their time.

(b) An administrative employee is paid at least $360.00 per week and the primary duty is the performance of office or non-manual work directly related to management policies or general businesses operations of their employer or their employer's customers and such duty includes work requiring the exercise of discretion and independent judgement. Primary duty is defined as 50% or more of their time.

(c) A professional employee is paid at least $360.00 per week. Their primary duty consists of the performance of work either requiring knowledge of an advanced type in a field of science or learning, or teaching, including work that requires the consistent exercise of discretion, judgment or the primary duty consists of the performance of work in a recognized field of artistic endeavor, including work that requires invention, imagination or talent.

(d) Exempt employees will be compensated by a weekly wage, when multiplied by 52 will be expressed annually. A weekly wage divided by 40 will express an hourly value, which may be used for accounting purposes.

(e) Exempt employees are not covered by the provisions of Section EMP.03.04 of this Ordinance.

Section EMP.03.06 — Exempt Employees In Gaming Enterprise

(a) Due to the intense regulatory nature of an Indian gaming enterprise, an employer that is a gaming enterprise shall be permitted to suspend an exempt gaming employee, without pay, pending formal investigation of any allegations that the employee has violated the Stockbridge-Munsee Gaming Ordinance or other gaming laws. Under this section, such a suspension without pay shall not alter the employee's exempt status.

Section EMP.03.07 — Exempt Employees Managing 638 Contracts

Due to the nature of tribal government programs funded by 638 contracts, and the need to insure against fraud and embezzlement of government funds, the employer shall be permitted to suspend a 638 exempt employee without pay pending formal investigation of any claims of fraud or embezzlement. Under this section, such a suspension without pay shall not alter the employee's exempt status.

Section EMP.03.08 — Minimum Wage

The minimum wage will be set by resolution of the Tribal Council and shall not be less then the minimum wage as outlined by the Fair Labor Standards Act of 1938 as amended.

Section EMP.03.09 — Equal Pay

(a) The Mohican Nation shall not discriminate between employees on the basis of sex by paying wages to employees at a rate less than the rate at which it pays wages to employees of the opposite sex for equal work on jobs the performance of which requires equal skill effort and responsibility and which are performed under similar working conditions EXCEPT where such payment is made pursuant to:

(1) a seniority system,

(2) a merit system, or

(3) a system which measures earnings by quantity or quality of production or a differential based on any other factor other than sex;

(b) Salary reductions by the employer shall not be permitted to remedy inequities in violation of this section under this section.

Section EMP.03.10 — Child Labor

The Mohican Nation will not employ minors in oppressive labor. In order to define oppressive labor, the federal Fair Labor Standards Act and any regulations created under it, may be used as a guide to establish a list of occupations, in which the employment of minors will not be permitted.

Section EMP.03.11 — Compensatory Time

(a) If the employee consents in writing, compensatory time will be awarded at a rate of one and one half hours compensatory time for each one hour of work in excess of 40 hours worked in a work week. Otherwise, employees shall receive overtime pay at a rate one and one-half times their regular rate of pay for all hours worked in excess of 40 hours worked in a work week.

(b) An employee shall carry over no more than eight (8) hours of compensatory time per month. If at the end of the month, an employee has more than eight (8) hours of compensatory time, the employee shall receive a check for the cash value of the compensatory time.

(c) Compensatory time accrued at the time of an employees termination (voluntary or involuntary) will be paid out to the employee in one lump sum, except where otherwise provided by law.

(d) This section applies only to hourly employees.

Section EMP.03.12 — Law Enforcement Officers

Employees who are law enforcement officers will be paid at a rate one and one half times their regular rate of pay for any hours worked exceeding 45 hours of work in a work week.

Section EMP.03.13 — Determination Of Exempt / Hourly

Until such time that a Tribal FLSO Commission is established, the Department of Human Resources and Legal Department will determine whether an employee is an exempt employee or hourly employee.

Section EMP.03.14 — Compensatory Time For Exempt Employees

Exempt employees will not earn overtime compensation, compensatory time or administrative credits.

Section EMP.03.15 — Enforcement

(a) The Stockbridge-Munsee Community hereby expressly waives its sovereign immunity and permits suits to be brought against it only in the Stockbridge-Munsee Tribal Court for the limited purpose of enforcing this Tribal Fair Labor Standards Ordinance. Any award or damages shall be strictly in accordance with this section

(b) Any person who has been adversely affected by a violation of this ordinance may bring suit in the Stockbridge-Munsee Tribal Court.

(1) the name and address of the plaintiff

(2) the name and address of the employer.

(3) the section of this ordinance that was allegedly violated

(4) a description of the events and facts that support the plaintiff's claim.

(5) a request for remedies.

(d) After making a determination on the merits of the case, the court has the power to order the following remedies:

(1) that the employer must cease and desist from engaging in a violation of this ordinance;

(2) back pay;

(3) actual damages; and

(4) any other relief the court deems reasonably necessary to remedy a violation of the ordinance.

(e) The court may not award punitive damages against a tribally owned and operated business or enterprise.

(f) No award for damages shall include interest.

(g) Unless otherwise specified in this section, the regular Stockbridge-Munsee Tribal Court Code and Procedures apply.

(h) Any complaint brought under this ordinance must be brought within 2 years of the events which gave rise to the cause of action.

Section EMP.03.16 — Effective Date; Severability

(a) The provisions of this ordinance shall take effect on January 1, 1997. All employees who have accrued compensatory time (also known as administrative credits) shall retain all hours accrued.

(b) If any provision of this ordinance is ruled illegal by a court of competent jurisdiction, the remaining provisions of the ordinance shall remain unaffected.

Chapter EMP.04 — Worker's Compensation

Legislative History

1. Resolution No. 64-99, adopted September 30, 1999, approved by BIA November 1, 1999.

2. Resolution No. 64-00, adopted October 3, 2000.

3. Resolution No. 026-06, adopted February 21, 2006, approved by BIA April 10, 2006.

4. Resolution No. 049-13, adopted May 7, 2013, approved by BIA February 10, 2015.

Section EMP.04.01 — Statement Of Purpose

The objectives of this Ordinance are:

(a) To provide medical treatment for injured workers and fair income benefits to injured workers and their dependents;

(b) To provide an administrative system for the delivery of medical and financial benefits to injured workers;

(d) To restore the injured worker physically and economically to a self-sufficient status in an expeditious manner and to the greatest extent practicable.

Section EMP.04.02 — Definitions

(a) "Accident" is an event that is sudden, unexpected and unforeseen by the injured person.

(b) "Administrative Law Judge" (ALJ) refers to a person who conducts dispute resolution under this Ordinance.

(d) "Compensation" means worker's compensation and benefits under this Ordinance.

(e) "Disability" means the actual incapacity to perform the tasks usually encountered in the worker's employment and the wage loss resulting therefrom, or physical impairment of the body that may or may not be incapacitating.

(f) "Employer" under this Ordinance refers to the Stockbridge-Munsee Community and its subdivisions, as well as any other entity, organization or person that employs three (3) or more persons and chooses to fall under this Ordinance.

(g) "Healing Period" means the period when improvement to the worker's condition occurs as the result of treatment and convalescence for an injury. This is the period of time before the condition becomes stationary.

(h) "Injury" means harm to a worker caused by accident or disease that was a result of employment related duties. Injury also includes death, as well as damage to or destruction of artificial member, dental appliances, teeth, hearing aids and eyeglasses.

(1) "Cumulative Injury" means an injury to a worker that is caused over time, such as a repetitive motion injury and back problems.

(2) "Traumatic Injury" means an injury to a worker from a sudden, specific incident.

(3) "Occupational Disease" means an injury that is the result of occupational exposure, but is not so sudden or traumatic as to fit within the definition of accident, such as black lung disease or asbestosis.

(4) Nontraumatic mental injury may be considered injury under this Ordinance, if it is the result of extraordinary circumstances (a situation of greater dimensions than emotional strains and differences encountered by employees in that type of position daily without mental injury).

(5) Heart disease is not considered a compensable injury under this Ordinance unless the harm is caused by the performance of employment related duties that involve severe exertion beyond the normal daily work duties.

(i) "Insurer" means an employer's worker's compensation insurance carrier for this Ordinance. This also includes programs that are self-funded or partially self-funded.

(j) "Time of injury," "occurrence of injury," or "date of injury" means:

(1) In the case of accidental injury, the date of the accident which caused the injury.

(2) In the case of cumulative injury or occupational disease, the date when the condition is diagnosed.

(k) "Worker(s)" means those persons who work for an eligible employer located on the tribal lands of the Stockbridge-Munsee Community, whether or not the person is a resident of or is employed within tribal lands, and are engaged in the normal scope of employment.

(1) This does not include independent contractors.

(2) Part-time employees are considered workers under this Ordinance.

(3) For the Stockbridge-Munsee Community, those persons who are on the tribal payroll are considered workers.

(4) For the Stockbridge-Munsee Community, law enforcement and/or peace officers from other departments who respond to a request for mutual aid from the Stockbridge-Munsee Community will be treated as workers of the Stockbridge-Munsee Community, unless the employing parties have an agreement in place providing otherwise.

Section EMP.04.03 — Persons Eligible

The following persons are eligible to apply for compensation under this Ordinance:

(a) Workers.

(b) Beneficiaries of the worker, if the injury results in the death of the worker. This includes:

(1) The surviving spouse of the worker.

(2) Dependent children of the worker.

(A) This includes individuals who have not reached the age of 18 and are the natural or adopted child, step-child, legal ward, or orphan of the worker.

(B) This does not include minor children who are not dependents or who are not supported by the worker.

(C) Any payments to or on account of a minor dependent or beneficiary collected under this chapter terminate when such child reaches 18 years of age, unless the child is a dependent invalid child or is under 25 years of age and enrolled full-time at an accredited school.

(i) If enrolled full-time in school, payments terminate when such child reaches 25 years of age or ceases to be a full-time student, whichever occurs first.

(ii) If the child is a dependent invalid, the payments continue until he or she shall cease to be dependent.

(3) As warranted, other persons for whom the worker provides more than 50% of the support for their needs may also be included as beneficiaries.

Section EMP.04.04 — Employer Liability

An employer is liable for worker's compensation to a worker when all of the following conditions concur:

(a) Where, at the time of the injury, both the worker and the employer are subject to this Ordinance.

(b) Where the worker sustains an injury. The injury can arise from an accident, a cumulative injury, or an occupational disease that is related to the employment.

(c) Where, at the time of the injury, the worker is performing service growing out of and incidental to his or her employment.

(1) Any worker going to and from his or her employment in the ordinary and usual way, once on the premise of the place of work and in the normal scope of employment, is performing a service growing out of and incidental to employment. The premises of the employer include the premises of any other person on whose premises the worker performs service.

(2) Every worker whose employment requires the worker to travel shall be deemed to be performing service growing out of and incidental to the worker's employment at all times while on a trip, except when engaged in a deviation for a private or personal purpose.

(A) Acts reasonably necessary for living or incidental thereto shall not be regarded as such a deviation. Side trips, while traveling for the employer, are considered a personal deviation.

(B) Any accident or disease arising out of a hazard of such service shall be deemed to arise out of the worker's employment.

(3) A worker is considered to be performing a service growing out of and incidental to the worker's employment during lunch and scheduled breaks, unless the worker leaves the premises of the place of work or engages in activities outside of the normal scope of employment.

(d) Where the injury is not intentionally inflicted to a worker by that worker, a fellow worker, or other party, so that the worker may receive compensation.

(e) Where the cause of the worker's injury arises out of the worker's employment.

Section EMP.04.05 — Reporting An Accident Or Diagnosis Of Cumulative Injury Or Occupational Disease

(a) Notice to Employer.

(1) Any incident that results or may result in injury to the worker should be reported by the end of the worker's shift. The incident must be reported to the employer by the worker or someone on the worker's behalf within 48 hours of the incident. In limited circumstances, the 48-hour time period may be extended upon a showing of good cause.

(2) A worker, who has been diagnosed with a cumulative injury or occupational disease and understands the relation of the disease to the employment, must report that diagnosis to the employer within 48 hours. In limited circumstances, the 48-hour time period may be extended upon a showing of good cause.

(3) The worker shall report the accident or diagnosis of cumulative injury or occupational disease by providing a written notice of the incident or diagnosis to the employer.

(A) If a worker is unable to file a written report within 48 hours for a reasonable reason, the worker must make an initial report of the incident or diagnosis through a method like leaving a telephone message.

(B) Timely initial verbal reports must be followed with a written notice as soon as possible.

(4) Notice of the injury shall be submitted to the worker's supervisor, the employer's designated worker's compensation representative, the Human Resources department, or a manager.

(5) If a worker does not make a timely report of an injury to the employer and the worker is aware or should have been aware of the connection between the employment and the injury, any claim for compensation based on that injury shall be barred.

(6) The absence of notice does not bar recovery under this Ordinance, if the employer was aware or should have been aware of the worker's injury, which was directly related to employment.

(b) After the employer receives notice, if the worker's injury persists beyond three (3) days, the employer shall notify the insurer.

(c) The insurer or their designee shall send information to the worker or the worker's beneficiaries about their worker's compensation rights and how to apply for benefits as soon as possible after receiving notice of the worker's injury from the employer.

Section EMP.04.06 — Worker's Compensation Claims Procedure

(a) Claim. If the worker feels that he or she is eligible for benefits under this Ordinance, the worker shall file a written request for benefits with the insurer.

(1) The claim request must be made within one year after the worker or the worker's beneficiaries learn of the worker's rights under this Ordinance regarding a reported injury or the claim shall be barred.

(2) Unless evidence to the contrary is shown, a worker learns of his or her rights one week after the insurer sends the notice of the worker's rights under this Ordinance.

(3) To limit the effect of any intervening events, the worker must receive medical treatment within 30 days of the accident or the claim shall be barred.

(b) Investigation. After receiving an application for compensation, the insurer shall promptly investigate the reported injury and administer valid claims for compensation arising from the reported injury. The insurer shall develop a written record of the claim.

(1) The insurer shall conduct an initial investigation promptly, so that a preliminary decision is made as to whether the worker shall receive compensation. In claims where compensation is payable, the insurer shall make the first payment thereof within 14 days after receipt of the claim. This preliminary decision is not a binding determination of any obligations for compensation.

(2) The insurer may continue to investigate the injury to ascertain the accuracy of the preliminary decision and the extent of the insurer's liability for compensation, so that a determination as to the worker's rights to compensation may be reached.

(3) The insurer shall pay such compensation, including temporary disability, permanent disability, and death benefits, as is due to the worker under this Ordinance. No benefits shall be paid until the injury is reported, unless circumstances prevented prompt reporting.

(4) If the worker is eligible to receive mileage for transportation expenses related to medical examination or treatment, the mileage rate shall be based on the federal mileage rate in effect at that time.

(d) Communication with Employer. The worker shall maintain contact with his or her employer throughout the worker's compensation process. This includes providing all required notices and documents, as well as regular updates on the worker's condition and prognosis.

(1) The worker shall contact the employer at least two (2) times per month during the healing period. Compensation will not be paid for any period during which the worker fails to maintain this contact.

Section EMP.04.07 — Medical Care And Examination For Claims

(a) Employer Directed Medical. Employer shall furnish reasonable medical services and supplies to treat injured workers, but the employer may designate the medical care providers from whom the worker shall seek treatment for injuries under this Ordinance.

(1) The treatment must be offered promptly and be reasonably suited to treat the injury without undue inconvenience to the worker.

(2) If a worker obtains a written statement indicating the employer's prior approval of treatments by a non-designated provider, such medical services are covered under this Ordinance.

(3) If a worker is dissatisfied with the medical care offered by the designated providers, the worker shall submit a written statement to the employer indicating this dissatisfaction and the reasons for it.

(A) Based on this statement, the worker and employer may agree that a worker shall be permitted to seek alternative treatments or care providers.

(B) If the worker and the employer cannot agree as to alternative care, the worker may receive a second opinion by a care provider of the worker's choice.

(C) The worker must receive the employer's prior approval before receiving any treatments from the care provider chosen by worker. If prior approval is not obtained, the employer is not responsible for any expense except the initial evaluation.

(D) Other care providers used by the worker may confer with and obtain information on the worker's condition from the employer-retained physician.

(b) Reasonable Examination. Whenever a worker makes a claim for compensation, the worker shall submit to reasonable, additional examinations by physicians, chiropractors, psychologists, podiatrists, or vocational experts that are provided and paid for by the employer or insurer upon written request of that party.

(1) An employer or insurer who requests such an examination shall pay the worker all necessary expenses, including transportation expenses.

(2) The worker is entitled to have a doctor that is selected by and paid by the worker present at the examination. The worker may also request and receive a copy of all reports of the examination.

(3) Independent Medical Examination.

(A) If either party disagrees with the treating provider's determination as the worker's level of disability for the purposes of compensation, an independent medical examination ("IME") can be requested.

(B) The IME will be provided by an independent provider, such as through Medical Evaluations, Inc., and will be paid for by the insurer.

(C) If the disability rating from the IME differs from the one from the treating provider, the two ratings shall be averaged and the compensation shall be based on this average.

(c) Refusal. If the worker, after a written request of the employer or insurer, refuses to submit to or in any way obstructs medical examinations, treatment, or rehabilitation (other than surgery that may endanger life or limb), the worker's right to begin or maintain any proceeding to receive worker's compensation is suspended, unless it is shown that the request is unreasonable.

(1) A worker who fails to comply with reasonable restrictions identified by his or her health care provider will be viewed as obstructing the treatment process. The worker will not be eligible for further worker's compensation benefits; provided that the worker has received notice of the restrictions and there is documented evidence that a worker has engaged in activities in violation of these restrictions on two (2) or more occasions.

(d) Testimony. Any physician, chiropractor, psychologist, podiatrist or vocational expert who is present at any examination under subsection (b) or attended to a worker for any condition or complaint reasonably related to the condition for which the worker claims compensation:

(1) May be required to testify as to the results of their examination.

(2) May be required to furnish information and reports, relative to the claim, to the worker, employer or insurer.

(e) Privilege Waived. A worker, who reports an injury alleged to be work-related or files an application for a hearing, waives all doctor-patient privilege with respect to any condition or complaint reasonably related to the condition for which the worker claims compensation. Any physician, chiropractor, psychologist, podiatrist, dentist, hospital, or health care provider shall, within a reasonable time after written request, provide the worker, employer, or insurer with any information or written material reasonably related to any injury for which the worker claims compensation.

(f) Medical Excuse from Work. To receive leave from work and benefits for lost wages under this Ordinance, a worker must provide his or her employer with a written excuse from an authorized health care provider that excuses the worker from reporting to work. If the worker is released for work in a restricted capacity, the worker shall provide his or her employer with a written excuse from an authorized health care provider that describes the worker's restrictions. A copy of the written excuse must be provided to the employer the next work day after the appointment.

Section EMP.04.08 — Claim Closure

(a) A worker's compensation claim shall be closed after payment of the worker's last medical treatment when the health care provider determines that the injured worker has reached the point where no further material improvement would reasonably be expected from medical treatment or the passage of time.

(1) If more than one (1) year has passed since a worker last received treatment for an injury, the worker's compensation claim shall be closed and the worker is barred from receiving additional treatment or benefits.

(b) When the insurer determines that a worker's claim for compensation will be denied by the insurer, the worker shall be informed about the availability of dispute resolution proceedings.

(c) If compensation was paid under this Ordinance; a claim may be re-opened within one year after the date of claim closure, based on an objective finding of a material worsening in the underlying condition. Furthermore, a claim may be re-opened during the period up to three years after claim closure, for the payment of medical benefits if a pathological worsening of the underlying condition is established by clear and convincing medical evidence.

Section EMP.04.09 — Limitations On Recovery

(a) If the worker has a right to recover compensation under this Ordinance, such compensation shall be the exclusive remedy against the employer, any other worker of the same employer, and the insurer.

(1) This does not limit the right of a worker to bring an action for an assault intended to cause bodily harm or against a co-worker for negligent operation of a motor vehicle not owned or leased by the employer.

(b) A worker shall not recover any amount spent by the worker for medical or other treatment, unless, the worker has reported the injury, filed a claim with the insurer, and:

(1) he or she has requested the employer or insurer to furnish such treatment, or

(2) the nature of the injury required such treatment and the employer or insurer, having knowledge of the injury, neglected to provide or authorize the treatment.

Section EMP.04.10 — Fraudulent Claims

Nothing in this Ordinance shall be construed to prevent any party from pursuing criminal prosecution or from bringing a civil action for recovery, as appropriate.

Section EMP.04.11 — Dispute Resolution

(a) Controversies between the worker, the employer, or the insurer over the compensation determination may be submitted for dispute resolution.

(b) Dispute resolution under the Ordinance will be done by an Administrative Law Judge (ALJ).

(1) The ALJ shall be a licensed attorney who is not a current employee of the Stockbridge-Munsee Community.

(2) The ALJ shall be appointed by the Stockbridge-Munsee Tribal Council on either a case-by-case basis or for a term not to exceed two years and may be renewed for subsequent terms. If appointment is for a term, the ALJ may only be removed for cause from this appointment, prior to the end of the term, by the Tribal Council.

(3) The ALJ shall receive appropriate compensation for services provided under this Ordinance.

(1) The ALJ will assess the record and other evidence presented and make a decision regarding controversies over initial worker's compensation decisions.

(2) The ALJ may require the insurer to accelerate payments so that the worker or the worker's beneficiaries receive a lump-sum payout of worker's compensation benefits, if the ALJ finds that there is good cause for such a payout.

(3) The ALJ may make a general review of the compensation amount, but may not deviate from the scheduled amounts by more than five (5) percent.

(d) The interested parties, for all controversies subject to dispute resolution, are the worker or the worker's beneficiaries, the employer and the insurer. All of the interested parties may participate in dispute resolution regarding a controversy between two of the interested parties.

Section EMP.04.12 — Settlement

(a) Nothing in this Ordinance shall impair the rights of the parties to settle on any liability that is claimed under this Ordinance on account of injury or death.

(b) The worker, employer or insurer may petition the ALJ for review of a settlement within 3 months of reaching the compromise. If the ALJ determines that a compromise is unjust, the ALJ may set aside the compromise and determine the rights of the parties.

Section EMP.04.13 — Dispute Resolution Procedures

(a) Application. Any party to a worker's compensation claim can initiate dispute resolution by filing a written petition for dispute resolution with the Mohican Nation Insurance Department of the Stockbridge-Munsee Community within 30 days of the insurer's initial decision regarding a claim. Parties are allowed a 5 day grace period for filing this petition. A filing fee of $25.00 must be submitted with the petition.

(1) The petition may be in any written format and shall at least contain the following:

(A) the name and address of the petitioner;

(B) a statement identifying the controversy for which dispute resolution is sought;

(D) a summary of the previous proceedings and decision regarding the claim; and

(E) a specific request stating the required relief.

(2) The petitioner shall serve a copy of the petition on all other parties in interest.

(3) The ALJ may bring in additional parties by service of a copy of the petition, if necessary.

(b) Answer. The respondent shall file an answer to the petition for dispute resolution within 20 days. The answer shall also be filed with the Mohican Nation Insurance Department and a copy served on the petitioner and provided to all other parties in interest.

(1) the petition is incomplete and the petitioner does not complete it upon request; or

(2) review of the petition and answer indicate that the petition is groundless.

(d) Notice. If dispute resolution proceedings are appropriate, the ALJ shall schedule a hearing based on the petition and provide notice of the hearing to each interested party, by serving such notice on the interested party personally or by mailing a copy to the interested party's last-known address at least 10 days before such hearing.

(e) Hearing. The parties shall have a full, fair hearing on the merits of the dispute.

(1) Prior to a hearing on the merits, the ALJ may order the parties to clarify issues and disclose or exchange information that may assist in the disposition of the disputed matter.

(2) If a hearing is required, the ALJ shall schedule an initial informal conference to discuss preliminary matters with the parties, including scheduling, motions, and discovery within 30 days after the respondent's answer is filed. The hearing shall be scheduled no later than 30 days following this conference, except that this time may be extended for an additional 30 days upon a finding of good cause.

(f) Record. The ALJ shall develop and maintain a full record of dispute resolution proceedings.

(g) Participation. All parties concerned have the right to be present at any hearing, in person or by attorney or other agent, and to present such testimony as may be pertinent to the controversy before the ALJ. Participation via telephone will be allowed upon the ALJ's discretion.

(h) Burden of Proof. The petitioner has the burden of proof to establish his or her claim beyond a legitimate doubt.

(i) Subpoena. Any party, including the ALJ, may issue a subpoena to compel the attendance of a witness or the production of evidence at the hearing by service of a subpoena upon the person, along with a tender of witness fees.

(j) Evidence. The parties have a right to present relevant evidence regarding the disputed claim. Opposing parties have the right to cross-examine persons testifying as to such evidence and present information to question such evidence. The ALJ shall take care to ensure that the evidence presented is credible.

(k) Medical Evidence. The contents of certified medical reports by licensed practitioners, who have examined or treated the worker, may be used as prima facie evidence regarding the matter contained in them, instead of requiring the practitioner to testify in person. The ALJ may not admit into evidence a certified report that was not filed with the ALJ and all parties in interest at least 10 days before the date of the hearing, unless the ALJ is satisfied that there is good cause for the failure to timely file the report.

(l) Independent Evidence. The ALJ may, with or without notice to any party, cause testimony to be taken, an inspection of the premises where the injury occurred to be made, the time books and payrolls of the employer to be examined, or may direct any worker claiming compensation to be examined by an independent doctor, if such information is needed to resolve the dispute.

(1) The testimony so taken, and the results of any such inspection or examination, shall be reported to the ALJ for its consideration.

(2) All information gathered for the ALJ shall be provided to the parties and any party shall have opportunity to question the evidence at the hearing.

(3) The expense of such examination shall be paid out of the ALJ's budget.

(m) Time Limitations. The right to proceed in dispute resolution shall not extend beyond 4 years from the date of the injury or the date that compensation, other than treatment or burial expenses, was last paid. Payment of wages by the employer, during disability or absence from work to obtain treatment, shall be deemed payment of compensation for the purpose of this Section, if the employer knew of the worker's condition and its alleged relation to the employment.

(n) Expense Statement. Unless otherwise agreed to by all parties, an injured worker shall file with the ALJ and serve on all parties, at least 10 days before the date of the hearing, an itemized statement of all expenses claimed by the injured worker.

(1) The itemized statement shall include, if applicable, information relating to any travel expenses incurred by the injured worker in obtaining treatment, including the destination, number of trips, round trip mileage, and meal and lodging expenses.

(2) The ALJ may not admit into evidence any information relating to expenses claimed by an injured worker, which was not filed in a timely manner, unless the ALJ is satisfied that there is good cause for the failure to file and serve the itemized statement.

Section EMP.04.14 — Findings, Orders And Awards

(a) All parties shall be afforded opportunity for a full, fair hearing, but disposition of the dispute may be done by settlement, stipulation, agreement, or default without a hearing.

(b) Within 30 days after the final hearing and close of the record, the ALJ shall make and file:

(1) its findings upon the ultimate facts involved in the controversy,

(2) its order, which shall state its determination as to the rights of the parties, and

(3) if warranted, an award of benefits or other compensation owed under this Ordinance, plus reasonable costs and fees. Awards may also include a penalty, if it is shown that the opposing party's actions were the result of malice or bad faith. This penalty is the exclusive remedy for malice or bad faith and shall not exceed the lesser of 200% of the total compensation due or $15,000.

(c) If the ALJ awards compensation, payment shall be made within 21 days. Orders based on a settlement shall be paid within 10 days.

Section EMP.04.15 — Review By The Alj

(a) On its own motion and for reasons that it deems sufficient, the ALJ may set aside its decision in a matter, upon the grounds of mistake or newly discovered evidence, within one year after the date of the decision.

(b) If it appears that a mistake may have been made as to the cause of injury, where an injury was attributed to an accident when the worker was suffering from cumulative injury or occupational disease, the ALJ may upon its own motion, within 3 years of the decision, set aside the decision. After review of the claim and an opportunity for a hearing, the ALJ may make new findings and award, or it may reinstate the previous findings, order or award, if in fact the worker is suffering from a cumulative injury or occupational disease arising out of the employment.

(c) The ALJ may set aside an order or award where there is sufficient evidence that the order or award was procured by fraud.

Section EMP.04.16 — Judgment On Award

If any party presents a certified copy of the award to the Stockbridge-Munsee Tribal Court, the Tribal Court shall, without notice, render judgment in accordance therewith. A judgment rendered under this Section shall have the same effect as though rendered in an action tried and determined by the Tribal Court.

Section EMP.04.17 — Judicial Review

(a) Decisions of the ALJ may be appealed for review by the Stockbridge-Munsee Tribal Court, which will act as a court of review, not a fact-finding court.

(1) A party requesting judicial review must file a notice of appeal within 20 days of the decision by the ALJ.

(2) Parties must exhaust the dispute resolution procedure before a case can be appealed to the Tribal Court.

(b) Judicial Review Procedures.

(1) The appellant shall file a written statement describing the grounds of his or her appeal within 20 days of filing the notice of appeal.

(2) The responding party has 20 days from the filing of the appellant's brief to file a written reply to the appellant's statement.

(3) At its discretion, the Tribal Court may order that an oral hearing be held on the matter.

(4) All appellate decisions shall be accompanied by a written opinion, briefly stating the issues, as they appeared to the Tribal Court, and the basis for the decision.

(A) The Tribal Court may affirm the ALJ's decision, reverse the decision or remand the decision for appropriate action, including clarification of the facts.

(B) The Tribal Court does not have discretion to vary the amount of compensation or the permanent partial disability compensation schedule.

(c) The commencement of an action for review by the Stockbridge-Munsee Tribal Court shall not relieve the insurer or employer from paying compensation as directed by the ALJ.

Section EMP.04.18 — Disability Benefits

(a) Definitions. As used in this Ordinance:

(1) "Temporary disability" occurs during the healing period for an injury. "Temporary disability benefits" is the compensation a worker receives for wage loss that occurs during this healing period.

(A) A worker can receive temporary total disability benefits when there is complete wage loss.

(B) A worker can receive temporary partial disability benefits when there is a partial wage loss.

(2) "Permanent disability" occurs when a worker has permanent effects from an injury at the end of the healing period for that injury. "Permanent disability benefits" is the compensation a worker receives for these permanent effects and is compensation for future losses of earnings, theoretically.

(A) A worker can receive permanent total disability benefits when they have total physical impairment for industrial use of both eyes, or the loss of both arms at or near the shoulder, or of both legs at or near the hip, or of one arm at the shoulder and one leg at the hip, or in other circumstances as appropriate.

(B) A worker receives permanent partial disability benefits when he or she suffers permanent effects less than total impairment.

(b) Rates. Compensation rates are based on a worker's "average weekly wage," which is the wage rate in effect at the time of the injury. The average weekly wage is used to calculate the worker's wage loss and applicable disability benefits.

(1) The compensation rates for disability benefits are subject to the maximum and minimum limits as described in Wis. Stat. § 102.11(1) and its periodic updates.

(2) The average weekly wage is calculated based on a worker's daily earnings at the time of the injury. The daily earnings are multiplied by the number of days and fractional days normally worked per week. For a complete description of how to calculate the average weekly wage and calculating the wage in special situations, see Wis. Stat. § 102.11(1)(a) to (g).

(3) The average annual earnings for this Ordinance shall consist of fifty (50) times the worker's average weekly wage.

(c) Compensation. Benefits shall be due starting after the third day of disability, excluding Sundays unless the employee regularly works Sundays. If the disability exists beyond 7 days, the employee may receive benefits for the first 3 days.

(1) Temporary Total Disability. If the injury causes temporary total disability, the worker shall receive temporary total disability benefits. These benefits are two-thirds of the average weekly wage, subject to the maximum and minimum amounts discussed above in subsection (b)(1) of this Section.

(A) There is no limitation on the number of weeks that a worker can receive temporary disability benefits, unless limited elsewhere in this Ordinance.

(B) The worker may be eligible for supplemental benefits of up to $233, as described in Wis. Stat. § 102.44(1), if on continuous temporary total disability for 24 months.

(i) is released for full-duty work by a health care practitioner; or

(ii) is given a limited release to return to light-duty work and the employer can accommodate the restrictions (the limitations in subsections (c)(2)(C) and (c)(2)(D) of this Section shall apply in relation to the worker's temporary total disability benefits); or

(iii) has reached the maximum medical improvement for the injury.

(2) Temporary Partial Disability. If the injury causes temporary partial disability, the worker shall receive such proportion of temporary total disability benefits as the actual wage loss of the worker bears to the worker's average weekly wage at the time of the injury.

(A) Benefits are subject to the maximum and minimum amounts discussed in subsection (b)(1) of this Section.

(B) There is no limitation on the number of weeks that a worker can receive temporary disability benefits.

(C) A worker may be given a limited release to return to work by a health care practitioner during a period of temporary partial disability.

(i) An employer is not required to make light-duty work available while a worker is on a limited release. If the employer chooses to do so, the worker shall be notified that the light-duty position is temporary.

(ii) If the employer provides light-duty work at a lower wage than the worker's normal wage at the time of the injury, the worker is entitled to temporary partial disability benefits proportional to the wage loss.

(iii) If the worker refuses the offer of light-duty work, the worker is only entitled to temporary partial disability benefits based on the proportional wage loss as discussed in subsection (c)(2)(C)(ii) above.

(D) If the worker does not inform the employer of a limited release for work, the worker loses eligibility for continuing temporary disability benefits, even if the worker does not expect light-duty work to be offered. This does not apply if the health care practitioner only informs the employer of the limited release.

(E) Temporary partial disability benefits shall end on the date the worker is released for full-duty work by a health care practitioner or has reached the maximum medical improvement for the injury.

(3) If, at the end of the healing period, a doctor determines that the worker has permanent effects from the injury that impact the ability to work, the worker may receive permanent disability benefits.

(4) Permanent Total Disability. If there is total physical impairment, the permanent total disability benefit rate is the same as that for temporary total disability or two-thirds of the average weekly wage, subject to the maximum and minimum amounts discussed above in subsection (b)(1) of this Section.

(A) The worker may be eligible for a supplemental benefit to the permanent total disability benefit of up to $233 per week. Eligibility for and amount of such a supplemental benefit is described in Wis. Stat. § 102.44(1).

(B) A worker on permanent total disability is eligible for benefits for the rest of his or her life. The worker's dependents will be eligible for a death benefit, regardless of cause of death, unless the worker has exceeded his or her lifetime disability benefits of 1000 weeks of total disability.

(5) Permanent Partial Disability. If the permanent effects result in less than total impairment, permanent partial disability benefits are paid at the rate of two-thirds of the average weekly wage for the period provided in the permanent partial disability schedule. These amounts are subject to the maximum and minimum amounts discussed above in subsection (b)(1) of this Section.

(A) The permanent partial disability schedule sets out the number of weeks that a worker receives further benefits at the end of the healing period. The time periods in the schedule vary depending on the location and degree of the permanent effects. The schedule can be found in Wis. Stat. § 102.52. The application of the permanent partial disability schedule is discussed in Wis. Stat. §§ 102.53 to 102.56.

(B) For permanent partial disabilities not covered by the permanent partial disability schedule, such as those to the head and torso, the number of weeks of compensation shall bear such relation to 1,000 weeks as the injury bears to one causing permanent total disability. During this period (not to exceed 1,000 weeks), compensation shall be paid at the rate of two-thirds of the average weekly wage.

(C) When calculating permanent partial disability, in no case shall the compensation be greater than 100% of permanent total disability.

(6) Mental Injury. Benefits for mental injuries shall be paid for a maximum of two (2) years at the rate of two-thirds of the average weekly wage, subject to the maximum and minimum amounts discussed above in subsection (b)(1) of this Section.

(7) Death.

(A) Where death proximately results from the injury and the deceased leaves a person wholly dependent for support, the death benefit shall equal 4 times his or her average annual earnings, but when added to the disability indemnity paid and due at the time of death, shall not exceed two-thirds of the weekly wage for the scheduled number of weeks. This benefit shall be paid to those persons wholly dependent for support as determined by the ALJ.

(B) If death occurs, other than as a proximate result of the injury before disability compensation ends, death benefits and burial expense shall be allowed as followed:

(i) if the injury proximately caused permanent total disability, the injury shall be treated as if it had caused death, or

(ii) if the injury caused permanent partial disability, the remaining compensation shall be applied toward funeral expenses and any remaining sum paid to persons wholly dependent for support.

(C) However, if the worker is not survived by any persons wholly dependent for support, those persons who were partially dependent on the deceased worker for support may receive such benefits as ordered by the ALJ.

(8) If the disability period involves a fractional week, compensation shall be paid for each day of such week, except Sundays only, at the rate of one-sixth of the weekly compensation.

(d) Burial Expenses. In cases where death of the worker proximately results from the injury, reasonable burial expenses shall be paid, not exceeding $6,000.00.

Section EMP.04.19 — Limitations On Compensation

(a) In cases where it is determined that periodic benefits granted by the federal Social Security Act are paid to the worker because of disability, the benefits payable under this Ordinance shall be reduced as discussed in Wis. Stat. § 102.44(5).

(b) The worker may not claim compensation for a disability if he or she was rehired in a position where the actual wage loss in comparison with earnings at the time of the injury equals or exceeds 15% as in Wis. Stat. § 102.44(6). The worker is required to make a diligent effort to find employment.

(1) failure to use safety devices that have been provided by the employer, which the worker has notice of and does not have a valid reason or a medical excuse for not using the safety devices,

(2) failure to obey any reasonable rule adopted and reasonably enforced by the employer for the safety of workers and of which the worker has notice and does not have a valid reason or a medical excuse for not following the rule; or

(3) misconduct, including use of alcohol or controlled substances.

(d) Compensation, for a claim due to cumulative injury or occupational disease, will be reduced if the worker has been employed for a limited time, as follows:

(1) Workers are not eligible for compensation when employed full-time for a period up to 4 months.

(2) Workers receive 25% of eligible compensation for a claim made while employed full-time for a period of 4 to 8 months.

(3) Workers receive 50% of eligible compensation for a claim made while employed full-time for a period of 8 to 12 months.

(4) Workers receive 75% of eligible compensation for a claim made while employed full-time for a period of 12 to 18 months.

(5) Workers are eligible for full compensation after being employed full-time more than 18 months.

(6) The time frames, which are provided in subsection (d)above, should be lengthened appropriately for workers who are employed on a part-time basis.

(e) Claims due to tobacco use or second-hand smoke in the workplace shall not be compensable.

(f) A worker is no longer eligible to receive temporary disability benefits, if the worker returns to work, or could return to work, and then is subsequently discharged for employment-related misconduct.

Section EMP.04.20 — Pre-Existing Medical Conditions

(a) If the worker has a pre-existing medical condition when an injury arises and that condition delays or prevents complete recovery, it shall be ascertained, as nearly as possible:

(1) the period over which the injury would have caused disability, were it not for the pre-existing condition, and

(2) the extent of the impairment, which the injury would have caused, were it not for the pre-existing condition.

(b) Compensation shall only be awarded for the period and extent of the injury not attributable to the pre-existing medical condition.

Section EMP.04.21 — Recovery For Compensation In Error Or Due To Fraud

(a) The worker shall repay such compensation that the worker is not entitled to and is received because of a clerical error, mistaken identity, innocent misrepresentation mistakenly acted upon, or any other circumstance of a similar nature and not induced by fraud.

(1) Recoupment may be made from any future payments due the worker on any worker's compensation claim.

(2) The insurer or employer must make a claim for such repayment or recoupment within one year of when the compensation is paid or the repayment shall be barred.

(3) The ALJ may waive, at its discretion and in whole or in part, the amount of such timely claim where the recovery would be against equity and good conscience.

(b) Whenever the payment of compensation to a worker has been induced by fraud, the recipient shall repay any such compensation together with a penalty of fifty percent (50%) of the total of any such payments.

(1) Recoupment may be made form any future payments due the worker on any worker's compensation claim.

(2) The insurer or employer shall make a claim for repayment or recoupment within one year of the discovery of the fraud.

Section EMP.04.22 — Effect Of Other Laws

Wisconsin worker's compensation law and permanent partial disability schedules (Wis. Stat. Chap. 102 and regulations) shall be used to inform and interpret Stockbridge-Munsee tribal law regarding worker's compensation benefits. This refers to the law in effect at the time this Ordinance is adopted and subsequent amendments to those statutes and regulations.

Chapter EMP.05 — Prevailing Wage Ordinance

Legislative History

1. Resolution No. 054-02, adopted October 1, 2002, approved by BIA October 18, 2002.

Section EMP.05.01 — Purpose

In accordance with 25.U.S.C. 4114(b)(3) Indian Tribes' prevailing wage determinations supercede federal prevailing wages (Davis-Bacon Act, 40 U.S.C. 276) provided that the Indian Tribe has established, by law or regulation, a prevailing wage. This Prevailing Wage Ordinance is intended to supercede all federal wage determinations to the greatest extend allowed under federal law and to the fullest authority of Tribal law.

Section EMP.05.02 — Definitions

(a) "Acts" means any United States federal law containing requirements for establishment and payment of a determined prevailing wage, including but not limited to wage determinations of the Secretary or wage determinations set under the Davis-Bacon Act, 40 U.S.C. 276 applicable to Indian Tribes.

(b) "Agreement" means any contract or other written document for assistance, sale, or lease funded by any United States' Act applicable to Indian Tribes and specifically including the Native American Housing Assistance and Self-Determination Act of 1996, as amended, 25 U.S.C. 4101, et. seq.

(d) "Human Resources" means the Stockbridge-Munsee Community's Human Resources Department.

(e) "Prevailing Wage" means the wages as determined by the Tribe prevailing on the Tribe's reservation and with the Tribe's and Housing's areas of operations for each category of employee including, but not limited to, architect, technical engineer, draftsman, technician, laborer, plumber, electrician, and mechanic.

(f) "Secretary" means Secretary of Housing and Urban Development, Secretary of Bureau of Indian Affairs, Secretary of Health and Human Services, or their designees.

(g) "Tribe" means the Stockbridge-Munsee Community, a band of Mohican Indians, it's agencies, departments, enterprises, or other subdivisions thereof.

(h) "Tribal Council" means the Tribe's elected Tribal Council.

Section EMP.05.03 — Payment Of Prevailing Wage Required

(a) At the first Tribal Council meeting of each fiscal year, Tribal Council shall consider changes to the established Prevailing Wage. If Tribal Council desires to make any changes to the Prevailing Wage, the changes shall make the changes by motion.

(1) Prior to the first Tribal Council meeting of the new fiscal year, Human Resources must conduct a wage survey and submit the recommended Prevailing Wage, based on a wage survey to the Tribal Council.

(2) Human Resources shall obtain wage rates from available sources of each class of profession or trade included in the survey and shall recommend to Tribal Council that the Prevailing Wage at not less than the average wage paid to each class of profession or trade included in the survey. The survey shall also include the classification for trainee in all trades.

(3) Human Resources shall maintain the names and addresses of all sources contacted and the wage rates reported by each source for a minimum of three years.

(4) Wage rates shall include monetary salary but not the value of fringe benefits paid to or on behalf of the employees.

(5) If there are years where the Tribe does not update the wage survey, or Tribal Council does not act the Prevailing Wages, the Prevailing Wage shall be adjusted by Human Resources pursuant to the published Cost of Living Index for the area.

Section EMP.05.04 — Determination Of Tribal Prevailing Wage

(3) Human Resources shall maintain the names and addresses of all sources contacted and the wage rates reported by each source for a minimum of three years.

(4) Wage rates shall include monetary salary but not the value of fringe benefits paid to or on behalf of the employees.

Section EMP.05.05 — Employer Requirements

(a) Payment of Prevailing Wages. Each contractor/employer, including the Tribe, when performing under an agreement pursuant to Acts or an agreement designated by Council, shall pay the established Prevailing Wage, and shall maintain payroll records reporting the hourly wages paid to each employee.

(b) Prevailing of Wage to be Provided. Upon request by bidders, or contractors/employers pursuant to an Agreement pursuant to the Act, the Tribe shall provide the current established Prevailing Wage.

(c) Posting of Prevailing Wage. Each contractor/employer, while performing under an Agreement, pursuant to an Act, shall:

(1) Post in a conspicuous location site the current established Prevailing Wage,

(2) Allow the Tribe's auditors, project managers, or other authorized staff to inspect and copy payroll records and/or interview employees in order to verify compliance with this Ordinance.

(d) Payments withheld. In addition to the remedies available in Section EMP.05.06, the Tribe, has the authority to withhold payment to contractors/employers if the Tribe in good faith believes that an contractor/employer is not complying with any provision of this Ordinance.

Section EMP.05.06 — Tribal Court Jurisdiction

(a) The Stockbridge-Munsee Tribal Court shall have jurisdiction to hear actions to enforce the provisions of this Ordinance.

(b) A petition filed in Tribal Court under this ordinance must include at least the following:

(1) The name and address of the petitioner.

(2) A statement identifying which of the provisions of this Ordinance has been violated.

(3) A brief description of the facts and events that gave rise to the alleged violation.

(4) The remedy sought.

(c) In addition to the requirements in Section EMP.05.06(b), petitioners must comply with the filing requirements contained in the Stockbridge-Munsee Tribal Court Rules of Civil Procedure.

(d) Upon a finding by the Court based upon credible evidence and by a preponderance of the evidence that a violation of this Ordinance has occurred, the Court may order any of the following remedies:

(1) If the employee has been underpaid, the employer may be ordered to pay the difference in the wage paid to the employee and Prevailing wage.

(A) The Court may also order punitive damages not to exceed three times the amount of Section EMP.05.06(d)(1).

(B) The Court may also award reasonable attorney fees to the prevailing party.

(C) The Court may also issue an order barring the contractor/employer and/or its principal employees from performing work or services to the Stockbridge-Munsee Community, not to exceed five years.

(D) The Court may also order any other remedy that is narrowly tailored to remedy the violation.

(2) For any other violations, the Court may order any of the remedies from Section EMP.05.06(d)(1)(B) - (D) or impose fines and interest not to exceed $500.00 per day.

(e) Actions brought under this Ordinance must be brought with one year of the event that gave rise to the petitioner's claim.

Section EMP.05.07 — Sovereign Immunity

Nothing in this Ordinance shall provide or be interpreted to provide a waiver of the Stockbridge-Munsee Community, or any of its governmental officers' and/or agents' and/or employees' sovereign immunity from suit.

Section EMP.05.08 — Severability

If any section, or any part thereof, of this Ordinance shall be held invalid or illegal by a court of competent jurisdiction, the remainder of the section, or part of the Ordinance shall not be affected and shall remain in full force and effect as though no section, or part thereof, has been declared to be invalid or illegal.

Section EMP.05.09 — Effective Date

This Ordinance shall take effect ten days after Bureau of Indian Affairs approval. This Ordinance applies only to projects that the Tribe has not yet accepted for bid. In no way should this Ordinance apply to projects already where the Tribe has accepted bids or bids/projects that are currently in progress.