I.  Hiring

A.  At-Will v. Just Cause

Nebraska is an at-will employment state.  When the employment is not for a definite term and there are no contractual or statutory restrictions on the right of discharge, an employer may lawfully discharge an employee whenever and for whatever cause it chooses.  Blair v. Physicians Mut. Ins. Co., 242 Neb. 652 (1993). 

1.  Common Law Claims

An employer's oral representations may constitute a promise sufficient to create contractual terms, which can modify the at-will status of an employee.  Hebard v. AT&T Co., 228 Neb. 15 (1988).  If oral terms conflict with prior written terms, the oral terms may be controlling.  Pearce v. ELIC Corp., 213 Neb. 193 (1982). 

Employment documents such as employee handbooks or personnel manuals can become a part of the employee's employment contract and limit the employee's right to terminate an at-will employee.  Jeffers v. Bishop Clarkson Memorial Hospital, 222 Neb. 829 (1986).  Nebraska employers may unilaterally change an employment policy prospectively.  The employee's retention of employment with knowledge of the new or changed conditions constitutes acceptance and supplies consideration if the employee is free to leave.  Johnston v. Panhandle Co-op Ass'n, 225 Neb. 732 (1987).

2.  Statutory Claims

In addition to common law claims, employees are protected from termination for engaging in the following protected conduct:

• Taking time off work for jury duty. Neb. Rev. Stat. § 25-1640.
• Taking time off work to serve as an election official on Election Day. Neb. Rev. Stat. § 32-241.
• Being subjected to garnishment for any one indebtedness. Neb. Rev. Stat. § 25-1558(6).
• Serving in the National Guard or fulfilling military duty in the active service of the State or of the United States. Neb. Rev. Stat. § 55-166.
• Refusing to submit to a polygraph examination (unless employed in public law enforcement). Neb. Rev. Stat. § 81-1932.
• Filing a charge under the Nebraska Fair Employment Practices Act, testifying, assisting, or participating in an investigation under the Act, opposing any unlawful employment practice, or refusing to carry out any action unlawful under federal law or Nebraska law. Neb. Rev. Stat. § 48-1114.
• Making an oral or written complaint to the employer's safety committee or a governmental agency having regulatory responsibility for occupational health and safety. Neb. Rev. Stat. § 48-443(4).

B.  Discrimination

Nebraska has its own anti-discrimination law that generally parallels federal law.  The Nebraska Fair Employment Practices Act prohibits marital status discrimination, in addition to discrimination on the basis of race, color, religion, sex, disability, and national origin.  Neb. Rev. Stat. §  48-1101 et.seq.  The Nebraska Equal Opportunity Commission has the power to receive, investigate, and pass upon claims under the Nebraska Fair Employment Practices Act.  Neb. Rev. Stat. § 48-1117.  Unlike federal law, Nebraska law does not limit damages for discrimination, but employees may not recover punitive damages.  The Nebraska Constitution, Art. VII, Section 5, Abel v. Conover, 170 Neb. 926 (1960).  See also Section IV.B.

Nebraska has a separate law prohibiting age discrimination, which is similar to the federal law.  Neb. Rev. Stat. §  48-1001 et. seq.   The State also has a separate equal-pay law that is similar to the federal law.  Neb. Rev. Stat. § 48-1219 et seq. 

C.  Employment Applications

Nebraska law does not impose any additional requirements on the use of employment applications.

D.  Use of Employment Contracts

Nebraska employers can and do enter into employment contracts.  Nebraska law restricts the use of non-compete covenants.  See Section VI of this chapter.  Arbitration provisions are subject to the requirements of the Uniform Arbitration Act, as modified.  Neb. Rev. Stat. § 25-2601 et seq.  Claims under the Nebraska Fair Employment Practices Act are exempted from the Uniform Arbitration Act by statute.  Neb. Rev. Stat. § 48-2602.01(f)(2). 

E.  Advertising/Recruitment

Employers that actively recruit non-English-speaking-persons who reside 500 miles or more from the place of employment and that have more than 10% of their employees who speak the same non-English language must provide a bilingual employee conversant in that language on each shift to explain the terms, conditions, and responsibilities of the job and serve as a referral agent for community services.   Neb. Rev. Stat. § 48-2209.

F.  Employment References/Background Investigations

Nebraska law does not impose any requirements regarding references or background investigations.  An employer may not require an applicant for employment to pay the cost of a medical examination as a condition of employment.  Neb. Rev. Stat. § 48-221.

II.  Compensation and Benefits

A.  Minimum Wage

The minimum wage in Nebraska, as of summer 2010 is $7.25 per hour.  Neb. Rev. Stat. § 48-1203.

B.  Minimum Age

The minimum age for employment depends on the occupation; however, children under the age of 16 years are restricted from certain occupations altogether.  Neb. Rev. Stat. § 48-301 et seq.

C.  Wage Payments

An employer must pay an employee on regular days designated by the employer or agreed upon by the employer and employee.  Neb. Rev. Stat. § 48-1230.

The Nebraska Wage Payment and Collection Act imposes stiff penalties on employers that do not follow the state's wage and payment rules.  Employees may recover their unpaid wages and attorneys' fees, and the employer may be ordered to pay two times the amount of unpaid wages to the state's common school funds.  Neb. Rev. Stat. § 48-1231; § 48-1232.

D.  Child Labor

Nebraska has specific laws governing employment of minors with certain narrow exceptions.  Children under 16 years of age must obtain employment certificates, may work only a specified number of hours, and may not be employed at locations that are dangerous or where their morals may be corrupted.  Neb. Rev. Stat. § 48-301 et seq.

E.  Health Insurance

Nebraska requires an employer or employer trust group health policy delivered or issued for delivery in the state to a group not large enough to be covered by the "COBRA" continuation coverage requirements of Internal Revenue Code Section 4980B to provide limited continuation coverage to an employee and the employee's dependents if employment is involuntarily terminated for reasons other than misconduct in connection with employment or if the employee dies.  Neb. Rev. Stat. § 44-1640.

F.  Overtime Issues                                  

Nebraska does not impose any requirements regarding overtime.

G.  Workday/Workweek/Work hours

Nebraska does not impose any requirements regarding workday, work week, or work hours.

III.  Time Off/Leaves of Absence

A.  Paid Vacation

Nebraska law does not require employers to provide its employees with paid vacation; however, if vacation leave is provided, employers are required to pay employees for all earned but unused vacation leave upon termination.  Neb. Rev. Stat. § 48-1229.

B.  Paid Sick Leave

Nebraska employers are not required to provide paid sick leave.  Unless an employer's employment policies provide otherwise, paid sick leave does not have to be paid at termination.  Neb. Rev. Stat. § 48-1229.

C.  Paid Time Off

Nebraska employers are not required to provide paid time off to employees.  The issue of whether earned but unused PTO must be paid out as vacation leave is unresolved.  See Section III. A above.

D.  Family and Other Medical Leaves

Nebraska law does not have anything comparable to the federal Family Medical Leave Act of 1993, but does require employers to give adoptive parents leave in certain cases.  If an employer permits an employee to take a leave of absence upon the birth of his or her child, an adoptive parent is entitled to the same leave upon the same terms following the commencement of the parent-child relationship.  An employer is not required to grant leave if the child being adopted is a special needs child over 18 years of age, a child over 8 years of age who is not a special needs child, a child being adopted by a step-parent, a foster child being adopted by a foster parent, or a child who was originally under a voluntary placement for purposes other than adoption.  Neb. Rev. Stat. § 48-234.

E.  Disability Leave

Nebraska law does not impose any requirements regarding disability leave.

F.  Pregnancy Leave/Paternity Leave

Nebraska law does not impose any requirements regarding pregnancy or paternity leave other than the adoptive leave law discussed above in Section III.D.

G.  Workers' Compensation

Nebraska has a Workers' Compensation insurance system, which provides payments to employees who are injured or off work due to a work injury.  Neb. Rev. Stat. § 48-101 et seq.  An employer may not retaliate against an employee for filing a Workers' Compensation claim.  Jackson v. Morris Communications, 265 Neb. 423 (2003).

IV.  Termination Issues

A.  Wrongful Termination Claims

Nebraska employers are prohibited from retaliating against employees who oppose unlawful employment practices, make charges, testify, or participate in a discrimination investigation or proceeding, or oppose or refuse to carry out any action unlawful under federal or Nebraska law.  Neb. Rev. Stat. § 48-1114.

In addition to these statutory protections, Nebraska courts recognize that an employer may not terminate an employee for a reason that violates fundamental public policy.  Ambroz v. Cornhusker Square, Ltd., 226, Neb. 899 (1987).  An employee discharged for reporting criminal conduct cannot be terminated if he or she acting in good faith and upon reasonable cause.  Schriner v. McGinnis Ford, 228 Neb. 85 (1988).

Nebraska is an at-will employment state, meaning that all employment is presumed to be at the will of either the employer or employee.  An employee may overcome this presumption, however, if the employer has made written or oral statements establishing provisions for discharge or defining procedures to which the employer is bound.  Nebraska does not recognize an implied covenant of fair dealing in employment agreements.  Jeffers v. Bishop Clarkson Memorial Hospital, 222 Neb. 829 (1986).

A prospective at-will employee who has been induced to leave prior gainful employment to work for an employer may recover damages if the offer is later withdrawn and the employee never starts work at the new employer.  Goff-Hamel v. Obstetricians & Gynecologists, P.C., 256 Neb. 19 (1999).    Nebraska does not recognize an implied covenant of fair dealing in employment agreements.  Jeffers v. Bishop Clarkson Memorial Hospital, 222 Neb. 829 (1986).

B.  Discrimination Claims

Employees can sue for discrimination under the Nebraska Fair Employment Practices Act, which prohibits discrimination on the basis of race, color, religion, sex, disability, marital status or national origin.  Neb. Rev. Stat. § 48-1104.  Discrimination on the basis of sex includes discrimination due to pregnancy, childbirth, or related medical conditions.  Neb. Rev. Stat. § 48-1102(13).  The Nebraska Fair Employment Practices Act applies to employers with 15 or more employees.  Neb. Rev. Stat. § 48-1102(2).  Employees have 300 days to file a charge with the Nebraska Equal Opportunities Commission.  Neb. Rev. Stat. § 48-1118(2).

Nebraska has a separate law prohibiting age discrimination (Neb. Rev. Stat. § 48-1001 et seq) which applies to employers with 25 or more employees.  Neb. Rev. Stat. § 48-1002(2).

C.  Severance Pay

Employers are not required to provide severance pay for employees who are terminated.

D.  Harassment

The Nebraska Fair Employment Practices Act prohibits harassment because of an employee's race, color, religion, sex, disability, marital status, or national origin.  Neb. Rev. Stat. § 48-1104(1).  Nebraska courts generally follow federal decisions when considering harassment claims.

V.  Layoffs/Work Force Reductions/Redundancies

Nebraska law does not impose any requirements on employee layoffs or work force reductions. 

A.  Advanced Notice

Nebraska has no requirements regarding advance notice of termination beyond federal law.

B.  Severance Pay

Employers are not required to provide severance pay for employees who are terminated.

C.  Benefits

Nebraska has no requirements regarding benefits associated with a lay off or reduction in force beyond federal law.

D.  Use of Separation Agreements

Nebraska has no requirements regarding the use of separation agreements beyond federal law.

VI.  Unfair Competition/Covenants Not to Compete

A.  Trade Secrets

Nebraska has adopted the Trade Secrets Act.  Neb. Rev. Stat. § 87-501 et seq.

B.  Covenants Not to Compete

In Nebraska, covenants not to compete are enforceable to prevent a former employee's competition by improper and unfair means.  To be enforceable, a non-compete covenant must be: (1) reasonable in the sense that it is not injurious to the public, (2) not greater than is reasonably necessary to protect the employer  in some legitimate interest, and (3) not unduly harsh and oppressive to the employee.  Mertz v. Pharmacists Mut. Ins. Co., 261 Neb. 704 (2001).

In Nebraska, a covenant not to compete may be valid only if it restricts the former employee from working for or soliciting the former employer's clients or accounts with whom the former employee actually did business and has personal contact.  Moore v. Eggers Consulting Co. Inc., 252 Neb. 396 (1997)  Nebraska courts will not reform unreasonable covenants not to compete solely for the purpose of making them legally enforceable.  Id.

C.  Non-Solicitation of Employees and Customers

Covenants not to solicit employees or customers are governed by the same principles that govern an employee's covenant not to compete.

VIII.  Personnel Administration

A.  Required Postings

In addition to the various postings required by federal law, Nebraska requires that the following notices be posted where employees can readily access the information:

• Nebraska Minimum Wage. This poster advises employees of the current minimum wage in Nebraska. Neb. Rev. Stat. § 48-1205.
• Fair Employment Practices. This poster describes the Nebraska Fair Employment Practices Act. Neb. Rev. Stat. § 48-1121.
• Equal Pay Act. This poster describes the provisions of the state law prohibiting employers from discriminating on the basis of sex in the payment of wages. Neb. Rev. Stat. § 48-1226.
• Safety and Health. This poster describes the Nebraska Workers' Compensation Act Safety and Health provisions. Neb. Rev. Stat. § 48-446.
• Unemployment Insurance. This poster describes Nebraska employment security laws. Neb. Rev. Stat. § 48-627, § 48-629.
• Farm Labor Contractors. This poster advises a contractor's employees in English and any other language used to communicate with farm laborers concerning the contractors' proof of financial responsibility for wage claims. Neb. Rev. Stat. § 48-1708.

B.  Required Training

Nebraska does not require employment-related training for employees or managers.  We do, however, recommend that Nebraska employers require their employees to be trained in the following employment-related topics: sexual harassment and equal employment opportunity (all employees); and hiring and lawful discharge (managers responsible for those functions).

C.  Personnel Records

Nebraska does not have any requirements regarding the maintenance of personnel records.

D.  Meal and Rest Periods

Nebraska requires employers that operate an assembling plant, workshop, or mechanical establishment to allow their employees 30 minutes for lunch and to leave the work premises unless the employment is covered by a collective bargaining agreement or other agreement with the employee.   Neb. Rev. Stat. § 48-212.

E.  Payment Upon Discharge or Resignation

Whenever an employer, other than a political subdivision, terminates an employee, the unpaid wages are due on the next regular payday or within two weeks after the date of termination, whichever is sooner.  Neb. Rev. Stat. § 48-1230.

F.  Giving Employment References

Nebraska law does not impose any requirements regarding references.

G.  Recordkeeping

In addition to federal recordkeeping requirements, Nebraska employers must retain additional records as follows:

• Wage Payment Records. An employer must retain records of wages and wage rates, job classifications, and other terms and conditions of employment of the persons it employs as prescribed by the Nebraska Equal Opportunity Commission, but the Commission has not issued any regulations to implement this requirement. Neb. Rev. Stat. § 48-1225.
• Accident and Injury Records. An employer must retain records of work-related accidents and injuries for three years or longer, if so advised by the Department of Labor. Nebraska Administrative Code, Title 230, ch. 6, § 002.F.

VIII.  Privacy

Nebraska recognizes a statutory right of privacy, which is narrowly defined . The Nebraska law protects persons against exploitation of their name, likeness, or personality for advertising or commercial purposes; trespass on their place of solitude or seclusion; or being placed before the public in a false light.  Neb. Rev. Stat. § 20-201 et seq.

A.  Drug Testing

Nebraska employers may conduct pre-employment drug tests on applicants, as well as drug tests on current employees.  Nebraska law governs the procedure for conducting drug and alcohol testing.    Neb. Rev. Stat. § 48-1901 et seq.  An employee who refuses the lawful directive of an employer to submit to a drug test may be subject to disciplinary or administrative action by the employer, including denial of continued employment.  Neb. Rev. Stat. § 48-1910.        

B.  Personnel Records and Information

Nebraska law does not impose any requirements regarding personnel records and information.

C.  Off-Duty Conduct

Nebraska employers are not prohibited from discharging an employee for engaging in lawful conduct away from the employer's premises (for example, there is no prohibition against an employer discharging an employee for smoking off-site, even though smoking is a legal action).

D.  Medical Information

Nebraska does not impose any requirements regarding maintaining medical information on employees.

E.  Searches

Nebraska does not impose any restrictions on employers searching employee property brought on to the company premises.

F.  Lie Detector Test

other than public law enforcement cannot require applicants or employees to take a polygraph test as a condition of employment or continued employment.  Neb. Rev. Stat. § 81-1932.

G.  Fingerprints

Nebraska law does not impose any requirements regarding fingerprints.

H.  Social Security Numbers

Nebraska law does not impose any requirements regarding social security numbers.

I.  Surveillance and Monitoring

Nebraska's law governing intercepted communications contains an extremely broad exemption for employers to intercept, disclose, or use communications made by employees on the business while engaged in the ordinary course of employment.  Such interception, disclosure, or use must be directly related to the rendering of services or the protection of property rights of the carrier or provider of such communications.  Nebraska law bars an employer's use of random monitoring unless: (1) the random monitoring is done for mechanical, service quality, or performance controlled checks, and (2) reasonable notice of the policy of random monitoring is provided to the affected employees.  The Nebraska law does not apply where one of the parties to the communication consents to interception of the communication, providing that the interception is not for a criminal or tortious purpose.  Neb. Rev. Stat. § 86-701 et seq.

IX.  Employee Injuries/Workers' Compensation

Nebraska has a worker's compensation system, which is administered by the Workers' Compensation Court.  Neb. Rev. Stat. § 48-101 et seq.

As explained above in Section III.G., an employer may not retaliate against an employee for filing a Workers' Compensation claim.

X.   Unemployment

Nebraska has an unemployment system administered by the Commissioner of Labor.  Neb. Rev. Stat. § 48-601 et seq. 

XI.  Health & Safety and Unions - Industrial Relations

A.  Health & Safety

Every employer is required to establish a safety committee.  Employers subject to collective-bargaining agreements must establish a safety committee through the collective-bargaining process.  Other employers must have committees with an equal number of representatives of the employer and the employees, with the employees selecting their own representatives.  Neb. Rev. Stat. § 48-443.

Employers are also required to participate in the Workplace Safety Consultation Program and are subject to occupational safety and health inspections covering their Nebraska operations.  Neb. Rev. Stat. § 48-446.

Nebraska law prohibits smoking in places of employment.  Neb. Rev. Stat. § 71-5724.

B.  Unions

In general, federal law governs labor union issues.  Nebraska is a "right to work" state, which means that no person can be denied employment because of either membership in or refusal to join or pay dues to a labor organization.  Neb. Rev. Stat. § 48-217.

            For more information concerning labor and employment law in Nebraska, please contact:

David R. Buntain
Cline, Williams, Wright, Johnson & Oldfather, LLP
1900 U. S. Bank Building
233 South 13^th Street
Lincoln, NB  68508
T: (402) 479-7145
F: (402) 474-5393
dbuntain@clinewilliams.com
http://www.cline-law.com/