48-101. Personal injury; employer's liability; compensation, when.

When personal injury is caused to an employee by accident or occupational disease, arising out of and in the course of his or her employment, such employee shall receive compensation therefor from his or her employer if the employee was not willfully negligent at the time of receiving such injury.

Source:Laws 1913, c. 198, § 1, p. 579; R.S.1913, § 3642; C.S.1922, § 3024; C.S.1929, § 48-101; Laws 1943, c. 113, § 1, p. 397; R.S.1943, § 48-101; Laws 1971, LB 572, § 1.

Annotations

1. Accident or occupational disease

2. Arising out of and in the course of employment

3. Willful negligence

4. Aggravating preexisting injury or disease

5. Burden of proof

6. Sufficiency of evidence to sustain award

7. Appeal

8. Release

9. Injuries sustained outside state

10. Miscellaneous

1. Accident or occupational disease

Under Nebraska's workers' compensation statutes, the law compensates a worker only for injuries resulting from an accident or occupational disease. Risor v. Nebraska Boiler, 277 Neb. 679, 765 N.W.2d 170 (2009).

The accident requirement of the act is satisfied if the cause of the injury was of accidental character or the effect was unexpected or unforeseen, and happened suddenly and violently; and, furthermore, it is no longer necessary that the injury be caused by a single traumatic event, but the exertion in the employment must contribute in some material and substantial degree to cause the injury. The term "in the course of" refers to the time, place, and circumstances surrounding the accident. The term "arising out of" describes the accident and its origin, cause, and character, i.e., whether it resulted from the risks arising within the scope or sphere of the employee's job. Union Packing Co. v. Klauschie, 210 Neb. 331, 314 N.W.2d 25 (1982).

Employee can recover for accumulated effects of occupational disease when disability occurs. Hauff v. Kimball, 163 Neb. 55, 77 N.W.2d 683 (1956).

Award will be sustained when injury, resulting from an accident arising out of and in the course of employment and preexisting disease combined to produce disability. Yakal v. Henkle & Joyce Hardware Co., 145 Neb. 365, 16 N.W.2d 531 (1944).

Physical exertion and exposure to smoke and fumes incidental to work of a city fireman in fighting fire does not constitute an accidental injury compensable under workmen's compensation law, where it appears that the disability was due to a preexisting heart disease. Brown v. City of Omaha, 141 Neb. 587, 4 N.W.2d 564 (1942).

Where sudden jerk of road grading machinery results in injury to back of employee, it is sufficient to constitute an accident arising out of and in the course of his employment. Jurgensen v. Rogers, 139 Neb. 30, 296 N.W. 341 (1941).

Where employee fails to show with reasonable certainty that there is a causal relation between accident and his disability, compensation will be denied. Hart v. American Community Stores Corp., 138 Neb. 149, 292 N.W. 387 (1940).

Claimant must show with reasonable certainty that alleged injury occurred and was caused by accident. Wayne County v. Lessman, 136 Neb. 311, 285 N.W. 579 (1939).

A claim for disability is properly allowed on evidence that employee suffered accidental injury to feet which caused arthritis. Flesch v. Phillips Petroleum Co., 124 Neb. 1, 244 N.W. 925 (1932).

An injury which occurred in the course of employment unexpectedly and without the affirmative act or design of the employee is accidental. Van Vleet v. Public Service Co. of York, 111 Neb. 51, 195 N.W. 467 (1923).

The definition of "accident," as used in this section, includes injuries resulting from activities which create a series of repeated traumas ultimately producing disability. Hadfield v. Nebraska Med. Ctr., 21 Neb. App. 20, 838 N.W.2d 310 (2013).

2. Arising out of and in the course of employment

An employee leaving the premises of his or her employer in the usual and customary way after his or her work is ended is within the course of his or her employment within the meaning of this section. Zoucha v. Touch of Class Lounge, 269 Neb. 89, 690 N.W.2d 610 (2005).

An off-premises injury during a "coffee" or "rest" break may be found to have arisen in the course of employment under this section if the employer, in all the circumstances, including duration, shortness of the off-premises distance, and limitations on off-premises activity during the interval, can be deemed to have retained authority over the employee. Misek v. CNG Financial, 265 Neb. 837, 660 N.W.2d 495 (2003).

The phrases used in this section, "arising out of employment" and "in the course of employment", are not synonymous and must both be established in order for the Nebraska Workers' Compensation Act to apply. A school teacher who was injured in the office of her husband, also a school teacher in the same school district, when a trapdoor was left open by workers installing cable wires, while helping her husband return computer equipment during a summer evening, was not acting "in the course of employment", so there is no need to address whether the injury arose out of the employment. Skinner v. Ogallala Pub. Sch. Dist. No. 1, 262 Neb. 387, 631 N.W.2d 510 (2001).

This section compensates injury caused an employee by an accident arising out of and in the course of his or her employment. Under the going to and from work rule, injuries sustained by an employee while going to and coming from work do not arise out of and in the course of employment within the meaning of this section unless it is determined that a distinct causal connection exists between an employer-created condition and the occurrence of the injury. Where an employee, in the performance of his or her duties, is required to travel and an accident occurs while he or she is so engaged, the accident arises out of and in the course of his or her employment and is within the scope of the Nebraska Workers' Compensation Act. Under the special errand exception to the going to and from work rule, when an employee, having identifiable time and space limits on the employment, makes an off-premises journey which would not normally be compensable under the usual going to and from work rule, the journey may be brought within the course of employment within the meaning of this section by the fact that the trouble and time of making the journey, or the special inconvenience, hazard, or urgency of making it in the particular circumstances, is itself sufficiently substantial to be viewed as an integral part of the service itself. Torres v. Aulick Leasing, Inc., 258 Neb. 859, 606 N.W.2d 98 (2000).

This section compensates injury caused to an employee by an accident arising out of and in the course of his or her employment; the phrases "arising out of" and "in the course of" are conjunctive and must both be established by a preponderance of the evidence. The phrase "arising out of", as used in this section, describes the accident and its origin, cause, and character, i.e., whether it resulted from the risks arising within the scope of the employee's job; the phrase "in the course of" refers to the time, place, and circumstances surrounding the accident. An injury sustained by an employee while going to and from work, at a fixed place of employment, does not arise out of and in the course of employment; however, when an employer designates a lot as the proper place to park and provides a shuttle from that lot to the place of employment; an injury incurred in the designated lot arises out of and in the course of employment. La Croix v. Omaha Public Schools, 254 Neb. 1014, 582 N.W.2d 283 (1998).

Injuries resulting from horseplay may be within the scope of employment; such injuries are within the scope of employment and compensable if (1) the deviation was insubstantial and (2) the deviation does not measurably detract from the work. Varela v. Fisher Roofing Co., Inc., 253 Neb. 667, 572 N.W.2d 780 (1998).

For purposes of this section, an injury is accidental if either its cause was accidental in character or its effect was unexpected or unforeseen, it happened suddenly and violently, and the occurrence produced at the time objective symptoms of injury. The "course of employment" embraces all activities connected with changing clothes before and after work, as well as similar acts during work hours. Cox v. Fagen Inc., 249 Neb. 677, 545 N.W.2d 80 (1996).

The phrase "arising out of" describes the accident and its origin, cause, and character, i.e., whether it resulted from the risks arising within the scope of the employee's job; the phrase "in the course of" refers to time, place, and circumstances surrounding the accident. The two phrases are conjunctive; in order to recover, a claimant must establish by a preponderance of the evidence the existence of both. Johnson v. Holdrege Med. Clinic, 249 Neb. 77, 541 N.W.2d 399 (1996).

In a workers' compensation case based on an employee's heart attack, causation required for compensability consists of two parts: legal cause and medical cause. Rosemann v. County of Sarpy, 237 Neb. 252, 466 N.W.2d 59 (1991).

The phrase "arising out of" refers to an injury which is the basis of a workers' compensation claim and the injury's origin, cause, and character, that is, whether an employee's unexpected or unforeseen injury results from risks arising within the scope or sphere of employment. Rosemann v. County of Sarpy, 237 Neb. 252, 466 N.W.2d 59 (1991).

Under the "going and coming rule," if an employee is injured while going to or from the employee's workplace, the injury does not arise out of or in the course of the employment. Under the commercial traveler exception to the going and coming rule, where an employee is required to travel in the performance of the employee's duties and an accident occurs while the employee is so engaged, it arises out of and in the course of the worker's employment and is compensable. Reynolds v. School Dist. of Omaha, 236 Neb. 508, 461 N.W.2d 758 (1990).

Worker is an employee under the Workmen's Compensation Act in accordance with the factors used to determine employee status including the element of control and the nature of the work. Franklin v. Pawley, 215 Neb. 624, 340 N.W.2d 156 (1983).

An employee must show by competent medical testimony a causal connection between the alleged injury, the employment, and the disability. Caradori v. Frontier Airlines, 213 Neb. 513, 329 N.W.2d 865 (1983).

Where a tree blown over by violent wind crushed the victim-employee's car, breaking the victim's neck, the evidence did not establish that a hazard imposed upon the employee by reason of the employment was greater than that to which the public generally is subjected, and, therefore, the accident did not "arise out of" the employment. McGinn v. Douglas County Social Services Adm., 211 Neb. 72, 317 N.W.2d 764 (1982).

The plaintiff in a workmen's compensation case must prove by a preponderance of the evidence that his disability is the result of an accident arising out of his employment, and when the disability is of a subjective nature, such as a psychogenic pain disorder, it requires competent medical testimony to show a causal connection between the alleged injury, the employment, and the disability. Davis v. Western Electric, 210 Neb. 771, 317 N.W.2d 68 (1982).

In determining whether injuries incurred off the employer's premises are compensable under this section, the court will look at the nature of the activity in which the employee was engaged at the time of the injury, not the nature of the organization that sponsored the activity. Gray v. State, 205 Neb. 853, 290 N.W.2d 651 (1980).

Injuries incurred in an accident that occurred on the way to a primarily social event sponsored by an organization some of whose activities are work-related are not compensable under this section. Gray v. State, 205 Neb. 853, 290 N.W.2d 651 (1980).

Where claimant's preexisting hip injury was aggravated in subsequent accident requiring hip joint replacement, court determined the injury was a section 48-121 case. Jeffers v. Pappas Trucking, Inc., 198 Neb. 379, 253 N.W.2d 30 (1977).

An injury, to be the basis of a cause of action under the Workmen's Compensation Act, must be caused by an accident arising out of and in the course of the employment. Reis v. Douglas County Hospital, 193 Neb. 542, 227 N.W.2d 879 (1975).

The burden of proof is upon the claimant to establish by a preponderance of the evidence that his disability was caused by an accident out of and in the course of his employment. Satterfield v. Negel, 186 Neb. 332, 183 N.W.2d 237 (1971).

Where employee has returned to point of deviation and engages in the duties of his employment, he is within the coverage of the Workmen's Compensation Act. Murphy v. Hi-Way G.M.C. Sales & Service Corp., 178 Neb. 397, 133 N.W.2d 595 (1965).

In order to recover, a workman has the burden of establishing that injury arose out of and in the course of his employment. Gibb v. Highway G.M.C. Sales & Service Corp., 178 Neb. 127, 132 N.W.2d 297 (1964).

To be compensable, injury must arise out of and in course of employment. Hahl v. Heyne, 156 Neb. 599, 57 N.W.2d 137 (1953).

To be compensable under this act, accidental injuries must arise out of and in the course of employment. Nelms v. Mahoney, 147 Neb. 626, 24 N.W.2d 558 (1946).

Burden rests upon claimant to establish by a preponderance of the evidence that he sustained a personal injury by accident arising out of and in the course of his employment. Schwabauer v. State, 147 Neb. 620, 24 N.W.2d 431 (1946).

When employee selects a method of transportation of his own and injury results, though on the premises of the employer, liability does not exist where employee was not engaged in any mission for employer, and where employer exercised no control over employee or conveyance selected. Schank v. Martin-Nebraska Co., 147 Neb. 385, 23 N.W.2d 557 (1946).

Where a man is employed with his own team and wagon and is injured while on his way to his barn to put away his team, the injury does not arise out of and in the course of his employment. Wilbur v. Adams Lumber Co., 140 Neb. 48, 299 N.W. 268 (1941).

Where employee, to accomplish private purpose, wholly unconnected with employer's business, creates necessity for automobile trip which would not otherwise have been taken, injuries occurring on such trip are not compensable under workmen's compensation law. Weideman v. Milburn & Scott Co., 138 Neb. 205, 292 N.W. 594 (1940).

An injury is not compensable where employee, on his own initiative, leaves his line of duty under his employment for purposes of his own, and, while doing so, sustains injury. Burlage v. Lefebure Corp., 137 Neb. 671, 291 N.W. 100 (1940).

Where employee was drinking beer in a tavern in which he was fixing the refrigerator and was killed by a drunken companion, the death did not arise out of and in the course of his employment. Hopper v. Koenigstein, 135 Neb. 837, 284 N.W. 346 (1939).

One injured while leaving premises where employed, after work, is entitled to compensation. McDonald v. Richardson County, 135 Neb. 150, 280 N.W. 456 (1938).

Injury must arise out of and in course of employment. McCall v. Hamilton County Farmers Telephone Assn., 135 Neb. 70, 280 N.W. 254 (1938); Sheets v. Glenwood Telephone Co., 135 Neb. 56, 280 N.W. 238 (1938).

Compensation act does not authorize an award in case of death from a peril common to all. Klotz v. Swift & Co., 133 Neb. 400, 275 N.W. 667 (1937).

Compensation can be allowed only for personal injuries or death of an employee by accident arising out of and in course of his employment. Lang v. Gage County Electric Co., 133 Neb. 388, 275 N.W. 462 (1937).

Where evidence showed that plaintiff had sprained back while moving park benches in employ of city resulting in serious injuries, he was entitled to compensation. Meierjurgen v. City of Lincoln, 132 Neb. 896, 273 N.W. 804 (1937).

When an employee is assaulted and injured by his foreman while eating dinner furnished as a part of his wages, compensation may be allowed. Miller v. Reisch Co., 132 Neb. 338, 271 N.W. 853 (1937).

Exposure to cold resulting in injury is not compensable if it is the same as that to which the general public is exposed. Laudenklos v. Department of Roads & Irrigation, 132 Neb. 234, 271 N.W. 790 (1937).

Employment of carpenter by farmer to construct a machine shed on his farm is not in the course of the employer's occupation within the meaning of the Workmen's Compensation Act. Guse v. Wessels, 132 Neb. 41, 270 N.W. 665 (1937).

Injury to officer in municipal fire department received while fighting fire on duty, is compensable under Workmen's Compensation Act. Dunlap v. City of Omaha, 131 Neb. 632, 269 N.W. 422 (1936).

The shooting of a traveling salesman by a highwayman, while driving from one town to another in furtherance of his employer's business, is compensable under Workmen's Compensation Act. Goodwin v. Omaha Printing Co., 131 Neb. 212, 267 N.W. 419 (1936).

If injury results from doing some act, even for employer's benefit, at a place and in a manner not contemplated by the parties, it does not arise out of employment. Albers v. Kipp, 130 Neb. 46, 263 N.W. 593 (1935).

Employee cannot recover compensation if, at time he was injured, he had departed from master's service, and was performing service for himself. Seversike v. Omaha Flour Mills Co., 129 Neb. 754, 263 N.W. 151 (1935).

Heat prostration may be compensable accident if the workman is subjected to a greater hazard from heat than that to which the public in that locality is subjected. McNeil v. Omaha Flour Mills Co., 129 Neb. 329, 261 N.W. 694 (1935).

Injury to employee caused by slipping on ice on public sidewalk while going to lunch on her own time did not arise out of and in course of employment. De Porte v. State Furniture Co., 129 Neb. 282, 261 N.W. 419 (1935).

When messenger boy was injured while riding bicycle, after his employer had directed him to take a street car, injury was compensable. Volcheck v. Western Union Telegraph Co., 128 Neb. 502, 259 N.W. 371 (1935).

In case of exposure to elements causing death from heart failure, claim is not compensable. Brady v. Beatrice Creamery Co., 127 Neb. 786, 257 N.W. 66 (1934).

Where employee was fatally injured while starting on trip in performance of his duties, dependents were entitled to compensation. Kirkpatrick v. Chocolate Sales Corporation, 127 Neb. 604, 256 N.W. 89 (1934).

Injury is compensable when received in performance of duty incidental to employment. Struve v. City of Fremont, 125 Neb. 463, 250 N.W. 663 (1933).

In order for an injury to arise out of employment, there must be a causal connection between the conditions under which the work is required to be performed and the resulting injury. Hall v. Austin Western Road Machinery Co., 125 Neb. 390, 250 N.W. 258 (1933).

Where employee, engaged in his employment on public street, is struck by a missile intentionally thrown at him without provocation, injury was compensable as arising out of employment. Good v. City of Omaha, 125 Neb. 307, 250 N.W. 61 (1933).

Compensable injury must be reasonably incident to employment, and, unless there is causal connection between working conditions and resulting injury, injury does not arise out of employment. Bergantzel v. Union Transfer Co., 124 Neb. 200, 245 N.W. 593 (1932).

Where employee was injured while returning truck to garage after making delivery for employer, injury occurred in the course of his employment. Conzuello v. Teague, 123 Neb. 574, 243 N.W. 779 (1932).

Where plaintiff school teacher and superintendent was injured while returning to place of employment from trip to city, on which trip he purchased some school supplies for employer, evidence was insufficient to prove injury was received in course of his employment. Babcock v. School District No. 107, 123 Neb. 491, 243 N.W. 831 (1932).

An injury arises out of course of employment when there is a reasonable causal connection between the conditions under which the work is required to be performed and the injury received while the employee is thus engaged. Speas v. Boone County, 119 Neb. 58, 227 N.W. 87 (1929).

An injury is received in the course of employment when, at the time the injury is received, the workman is engaged at the work he is employed to perform or in some duty incidental to that work. Speas v. Boone County, 119 Neb. 58, 227 N.W. 87 (1929).

Injuries to employee by reason of being required to work with incompetent, insane, or dangerous fellow servant arise out of employment. Dodson v. Woolworth Co., 118 Neb. 276, 224 N.W. 289 (1929).

An injury from a peril to which the public generally is exposed does not arise out of employment. Gale v. Krug Park Amusement Co., 114 Neb. 432, 208 N.W. 739 (1926).

Where a garage employee was sent on an errand and was injured while attempting to mount upon the running board of a truck going in the direction the employee was required to perform his errand, the injury arose out of and in the course of his employment. McCrary v. Wolff, 109 Neb. 796, 192 N.W. 237 (1923).

An injury resulting from assault by fellow employee, not arising from any duty connected with employment but following personal altercation concerning matters not arising out of the performance of any service in the employment is not one arising out of employment. Urak v. Morris & Co., 107 Neb. 411, 186 N.W. 345 (1922).

Where the nature of the employment is such as to expose a worker to a wrongful act of another worker, which may reasonably be said to have been induced by the peculiar conditions of the employment, such an act may reasonably arise out of the employment. Socha v. Cudahy Packing Co., 105 Neb. 691, 181 N.W. 706 (1921).

Lighting a firework was not within the scope of the claimant's job, and thus, the accident leading to his injury did not arise out of his employment; horseplay analysis was unnecessary. Webber v. Webber, 28 Neb. App. 287, 942 N.W.2d 438 (2020).

The two phrases "arising out of" and "in the course of" in this section are conjunctive; in order to recover, a claimant must establish by a preponderance of the evidence that both conditions exist. Webber v. Webber, 28 Neb. App. 287, 942 N.W.2d 438 (2020); Coughlin v. County of Colfax, 27 Neb. App. 41, 926 N.W.2d 675 (2019).

The "in the course of" requirement of this section has been defined as testing the work connection as to time, place, and activity; that is, it demands that the injury be shown to have arisen within the time and space boundaries of the employment, and in the course of an activity whose purpose is related to the employment. Coughlin v. County of Colfax, 27 Neb. App. 41, 926 N.W.2d 675 (2019).

The phrase "arising out of," as used in this section, describes the accident and its origin, cause, and character, i.e., whether it resulted from the risks arising within the scope of the employee's job; the phrase "in the course of," as used in this section, refers to the time, place, and circumstances surrounding the accident. Coughlin v. County of Colfax, 27 Neb. App. 41, 926 N.W.2d 675 (2019).

In cases governed by the Nebraska Workers' Compensation Act, the "in the course of" requirement has been defined as testing the work connection as to the time, place, and activity; the injury must be shown to have arisen within the time and space boundaries of the employment, and in the course of an activity whose purpose is related to the employment. Brittain v. H & H Chevrolet, 21 Neb. App. 986, 845 N.W.2d 619 (2014).

Injuries sustained by an employee while going to and from work do not arise out of and in the course of employment unless it is determined that a distinct causal connection exists between an employer-created condition and the occurrence of the injury. Coffey v. Waldinger Corp., 11 Neb. App. 293, 649 N.W.2d 197 (2002).

The claimant's physical therapy related to his employment in the sense that the claimant's therapy was a necessary or reasonable activity that the claimant would not have undertaken but for his work-related back and elbow injuries, and therefore, the claimant's knee injury during physical therapy arose out of and was in the course of his employment. Smith v. Goodyear Tire & Rubber Co., 10 Neb. App. 666, 636 N.W.2d 884 (2001).

Injuries entitling employee to workers' compensation benefits arose out of his employment when he blacked out while driving a truck in the course of his employment. Nunn v. Texaco Trading & Transp., 3 Neb. App. 101, 523 N.W.2d 705 (1994).

3. Willful negligence

An employee is not willfully negligent under this section for violating an employer's safety rule when the trier of fact could reasonably infer that the safety rule was not always strictly enforced. Guico v. Excel Corp., 260 Neb. 712, 619 N.W.2d 470 (2000).

An employee who was willfully negligent at the time of his injury or death will not ordinarily be entitled to recover benefits under the workers' compensation law. Breckenridge v. Midlands Roofing Co., 222 Neb. 452, 384 N.W.2d 298 (1986).

The fact that an employee knew he was committing suicide will not, in all cases, constitute willful negligence. Friedeman v. State, 215 Neb. 413, 339 N.W.2d 67 (1983).

An employee who commits suicide is willfully negligent within the meaning of this act. Hannon v. J. L. Brandeis & Sons, Inc., 186 Neb. 122, 181 N.W.2d 253 (1970).

Welding empty molasses tank without leaving air vent open or cleaning tank, where employee did not know such conduct was dangerous, did not constitute willful negligence so as to bar compensation. Richards v. Abts, 136 Neb. 741, 287 N.W. 199 (1939).

Lighting a match in a gas-filled room, in response to habit, after being warned against doing so is not necessarily willful negligence. Moise v. Fruit Dispatch Co., 135 Neb. 684, 283 N.W. 495 (1939).

Whether the acts of an employee constitute willful negligence is dependent upon his willingness to disregard it and maintain a course of conduct indicating a reckless indifference for his own safety. Richards v. Abts, 135 Neb. 347, 281 N.W. 611 (1938).

Employer, who attempts to avoid liability on ground that employee was willfully negligent, must prove a deliberate act knowingly done, or at least such conduct as evidences reckless indifference to his safety. Hoff v. Edgar, 133 Neb. 403, 275 N.W. 602 (1937).

An employee's violation of an employer's safety rule must be intentional in order for that employee to be held willfully negligent under this section. Spaulding v. Alliant Foodservice, 13 Neb. App. 99, 689 N.W.2d 593 (2004).

4. Aggravating preexisting injury or disease

An exertion- or stress-caused heart injury to which the claimant's preexisting heart disease or condition contributes is compensable only if the claimant shows that the exertion or stress encountered during employment is greater than that experienced during the ordinary nonemployment life of the employee or any other person. While legal cause is established by satisfying the "stress greater than nonemployment life" test, a claimant must still demonstrate medical causation. If it is claimed that an injury was the result of stress or exertion in the employment, medical causation is established by a showing by the preponderance of the evidence that the employment contributed in some material and substantial degree to cause the injury. Leitz v. Roberts Dairy, 237 Neb. 235, 465 N.W.2d 601 (1991).

Injury lighting up a preexisting arthritic condition of spine is compensable. City of Omaha v. Casaubon, 138 Neb. 608, 294 N.W. 389 (1940).

Where injury, arising out of and in the course of employment, combines with preexisting disease to produce disability, recovery can be had by employee. Chatt v. Massman Construction Co., 138 Neb. 288, 293 N.W. 105 (1940).

Injury from fall accelerating a preexisting disease is compensable. Maul v. Iowa-Nebraska Light & Power Co., 137 Neb. 128, 288 N.W. 532 (1939).

Injury from strain or overexertion due to a physical condition predisposing the employee to injury is an injury under the terms of the Workmen's Compensation Act, even though, had the person been sound, the strain would not have been sufficient to occasion serious injury. Dymak v. Haskins Bros. & Co., 132 Neb. 308, 271 N.W. 860 (1937).

Mere exertion that would not of itself produce compensable disability, does not, when combined with preexisting disease, produce compensable disability. Gilkeson v. Northern Gas Engineering Co., 127 Neb. 124, 254 N.W. 714 (1934).

Where contract of employment was made in state between resident employee and employer having headquarters in state, compensation action is maintainable therein although injury was sustained in performing work outside state. Stone v. Thomson Co., 124 Neb. 181, 245 N.W. 600 (1932).

Where employee injured back and shoulder in course of employment thereby causing dormant disease to flare up, and resultant disability is due to the injury, he was entitled to compensation. Miller v. Central Coal & Coke Co., 123 Neb. 793, 244 N.W. 401 (1932).

5. Burden of proof

To recover under the Nebraska Workers' Compensation Act, a claimant must prove by a preponderance of the evidence that an accident or occupational disease arising out of and occurring in the course of employment proximately caused an injury which resulted in disability compensable under the act. Risor v. Nebraska Boiler, 277 Neb. 679, 765 N.W.2d 170 (2009).

This court has expressly disapproved of language in previous opinions which imposed an enhanced degree of proof by an employee with a preexisting disability or condition who is prosecuting a claim under the Nebraska Workers' Compensation Act. For an award based on disability, a claimant need only establish by a preponderance of the evidence that the employment proximately caused an injury which resulted in compensable disability. Gray v. Fuel Economy Contracting Co., 236 Neb. 937, 464 N.W.2d 366 (1991).

The plaintiff has the burden to establish that an injury for which workers' compensation is sought arose out of and in the course of his employment. McGee v. Panhandle Technical Sys., 223 Neb. 56, 387 N.W.2d 709 (1986).

An employee has the burden of showing that her injury resulted from her accident at work and not from the natural progression of a preexisting condition. Taylor v. Benton, 205 Neb. 203, 286 N.W.2d 755 (1980).

The burden of proof is upon the plaintiff to sustain his claim by a preponderance of the evidence. Parrish v. Karl Kehm & Sons Contractors, 186 Neb. 252, 182 N.W.2d 422 (1970).

The burden is on plaintiff to prove a right to recover. Thelen v. J. C. Penney Co., 186 Neb. 53, 180 N.W.2d 693 (1970).

Claimant has burden of establishing that injury complained of was caused by accident arising out of and in course of his employment. Huston v. Gage County Electric Co., 134 Neb. 805, 279 N.W. 797 (1938).

Where employee dies suddenly and mysteriously while engaged in his work, burden is on the claimant to prove facts necessary to bring case within compensation law, and such proof must be something more than mere guess. Shamp v. Landy Clark Co., 134 Neb. 73, 277 N.W. 802 (1938).

Burden of proof rests upon claimant to show with reasonable certainty that his ailment was caused by the injury, and this proof must be made by substantial evidence leading either to the direct conclusion or a legitimate inference that such is the fact. Skochdopole v. State, 133 Neb. 440, 275 N.W. 665 (1937).

Claimant has burden of showing that he suffered injury resulting from accident arising out of and in course of his employment. Price v. Burlington Refrigerator Express Co., 131 Neb. 657, 269 N.W. 425 (1936).

Burden rests upon plaintiff to prove with reasonable certainty that employee met with injury or death in accident arising out of and in the course of his employment. Porter v. Brinn-Jensen Co., 131 Neb. 611, 269 N.W. 96 (1936).

Where evidence fails to show any relationship between injury and the disease from which the employee died, burden of proof was not sustained. Beatrice Creamery Co. v. Kizer, 127 Neb. 34, 254 N.W. 690 (1934).

Burden of proof is on plaintiff and must be established by substantial evidence and not probabilities. Saxton v. Sinclair Refining Co., 125 Neb. 468, 250 N.W. 655 (1933).

Burden of proof is on employee. Parsons Oil Co. v. Schlitt, 125 Neb. 223, 249 N.W. 613 (1933).

When employee dies suddenly and mysteriously while engaged at work, burden of proof that death was accident arising out of employment rests on claimant hereunder. Mullen v. City of Hastings, 125 Neb. 172, 249 N.W. 560 (1933).

Burden of proof is on employee to prove personal injury caused by accident arose out of and in course of his employment. Townsend v. Loeffelbein, 123 Neb. 791, 244 N.W. 418 (1932); Bartlett v. Eaton, 123 Neb. 599, 243 N.W. 772 (1932).

6. Sufficiency of evidence to sustain award

A workers' compensation award cannot be based on mere possibility or speculation, and if an inference favorable to the plaintiff can only be reached on the basis thereof, he or she cannot recover. Gray v. Fuel Economy Contracting Co., 236 Neb. 937, 464 N.W.2d 366 (1991).

The rule of liberal construction applies to the Workmen's Compensation Act, but it is not applicable to the evidence offered in support of a claim made for benefits under the act. Parrish v. Karl Kehm & Sons Contractors, 186 Neb. 252, 182 N.W.2d 422 (1970).

Evidence of plaintiff was sufficient to prove injury in the course of his employment. Harrington v. Missouri Valley Constr. Co., 182 Neb. 434, 155 N.W.2d 355 (1967).

Award of compensation for permanent partial disability cannot be based on possibility or speculation. Stevens v. Josten-Wilbert Vault Co., 182 Neb. 322, 154 N.W.2d 764 (1967).

Claimant to compensation for permanent partial disability cannot be based on possibility or speculation. Stevens v. Josten-Wilbert Vault Co., 182 Neb. 322, 154 N.W.2d 764 (1967).

Claimant to compensation must establish right by preponderance of evidence. Dike v. Betz, 181 Neb. 580, 149 N.W.2d 750 (1967).

Where causation of injury is not shown by a preponderance of the evidence, claimant cannot recover. Kastanek v. Wilding, 181 Neb. 348, 148 N.W.2d 201 (1967).

Evidence was insufficient to show that workman killed at railroad crossing was at the time acting in the course of his employment. Oline v. Nebraska Nat. Gas Co., 177 Neb. 851, 131 N.W.2d 410 (1964).

Awards for compensation cannot be based upon speculative or conjectural evidence. Dennehy v. Lincoln Steel Works, 136 Neb. 269, 285 N.W. 590 (1939).

Awards cannot be based on possibilities or probabilities, but they must be supported by evidence showing that claimant incurred a disability arising out of and in the course of his employment. O'Connor v. Abbott, 134 Neb. 471, 279 N.W. 207 (1938).

Evidence was insufficient to sustain finding that plaintiff suffered an accident arising out of and in course of his employment. Loehr v. Alamito Dairy Co., 133 Neb. 444, 275 N.W. 596 (1937).

Evidence was insufficient to prove the claim that a workman who received compensation for a total disability caused by an injury in 1920, suffered total disability from a fall occurring in 1934. McGuire v. Kansas City Bridge Co., 132 Neb. 1, 270 N.W. 669 (1937).

An award for compensation cannot be based on possibility, probability, speculation, or conjecture, but burden is upon claimant to show that he suffered injury from an accident arising out of and in the course of his employment. Milton v. City of Gordon, 129 Neb. 888, 263 N.W. 208 (1935).

Where employee was injured in course of employment and was never able to work thereafter, employee sustained burden of showing disability was due to accident and not to infectious disease. Truka v. McDonald, 127 Neb. 780, 257 N.W. 232 (1934).

Where the actual cause of death of employee is a matter of conjecture and speculation, the evidence is insufficient to sustain an award. Orchard & Wilhelm Co. v. Petersen, 127 Neb. 476, 256 N.W. 37 (1934).

Accidental death, in compensation case, need not be established to a certainty, but only to a reasonable certainty. Aeschleman v. Haschenburger Co., 127 Neb. 207, 254 N.W. 899 (1934).

Award of compensation cannot be based on possibilities or probabilities. Huffman v. Great Western Sugar Co., 125 Neb. 302, 250 N.W. 70 (1933).

7. Appeal

Evidence established that music supervisor killed en route to judge music contest was not acting in the course of his employment at the time he was killed since he was not to be controlled or supervised by any of the defendants while judging the contest nor did his judging activities primarily benefit any of the defendants. This court will not overturn factfindings by the Workmen's Compensation Court unless they are clearly wrong. Stoll v. School Dist. (No. 1) of Lincoln, 207 Neb. 670, 301 N.W.2d 68 (1981).

Supreme Court may, upon trial de novo, consider fact that trial court gave credence to testimony of some witnesses rather than to contradictory testimony of others. Sherman v. Great Western Sugar Co., 127 Neb. 505, 255 N.W. 772 (1934).

Workmen's compensation cases are heard de novo in Supreme Court. Peterson v. Borden's Produce Co., 125 Neb. 404, 250 N.W. 240 (1933); Mullen v. City of Hastings, 125 Neb. 172, 249 N.W. 560 (1933).

Time for taking appeal is governed by statute and trial court has no power to extend time, directly or indirectly. Bradley v. Kalin, 125 Neb. 363, 250 N.W. 257 (1933).

Workmen's compensation cases are not exempted from provisions of statute relating to the settlement and allowance of bills of exceptions. Shaw v. Diers Bros. & Co, 124 Neb. 119, 245 N.W. 419 (1932).

Supreme Court has power, under this section, to reverse for inadequacy in amount of verdict, or, if excessive, to reverse and grant new trial if remittitur was not filed. Brown v. York Water Co., 104 Neb. 516, 177 N.W. 833 (1920).

8. Release

Release signed by employee binds his dependents after his death, in absence of fraud. Welton v. Swift & Co., 125 Neb. 455, 250 N.W. 661 (1933).

9. Injuries sustained outside state

Where all of the employees' services were performed in Nebraska, and no showing made that the industry had its situs at any other place save in Nebraska, recovery could be had, although contract of employment was made in another state. Solomon v. A. W. Farney, Inc., 130 Neb. 484, 265 N.W. 724 (1936).

Nebraska workmen's compensation law is not applicable where contract of employment was made in another state, and where employee was injured in said state in the performance of duties which were not incidental to an industry conducted in the state by the employer. Rigg v. Atlantic, Pacific & Gulf Oil Co., 129 Neb. 412, 261 N.W. 900 (1935).

Where employer is engaged in business in Nebraska but employee, while engaged in employer's business in another state, is injured, employee may recover compensation. Penwell v. Anderson, 125 Neb. 449, 250 N.W. 665 (1933).

10. Miscellaneous

Absent an amendment to the Nebraska Workers’ Compensation Act, an appellate court will not judicially create a “substantially certain” exception from the act’s intended exclusive jurisdiction over workplace injuries, so as to allow an employer to be sued in tort if the employer knew its tortious conduct was substantially certain to result in an employee’s injury. Estate of Teague v. Crossroads Co-op Assn., 286 Neb. 1, 834 N.W.2d 236 (2013).

By barring an employee’s estate from bringing a tort action against the employer for the employee’s accidental death in the workplace, the Nebraska Workers’ Compensation Act did not violate the estate’s Seventh Amendment right to a jury trial. Estate of Teague v. Crossroads Co-op Assn., 286 Neb. 1, 834 N.W.2d 236 (2013).

Delay, cost, and uncertainty are contrary to the underlying purposes of the Nebraska Workers’ Compensation Act; the act was intended by the Legislature to simplify legal proceedings and to bring about a speedy settlement of disputes between the injured employee and the employer by taking the place of expensive court actions with tedious delays and technicalities. Estate of Teague v. Crossroads Co-op Assn., 286 Neb. 1, 834 N.W.2d 236 (2013).

The distinction made by the Nebraska Workers’ Compensation Act between employees who are intentional tort victims and nonemployees who are intentional tort victims, barring only employees who are injured by intentional torts of their employers from bringing a tort action, does not violate the equal protection, due process, or special legislation provisions of the U.S. and Nebraska Constitutions; the act was not designed to govern the rights of nonemployees, and thus employees and nonemployees are not similarly situated, the Legislature made a rational distinction between the two groups, and workers’ compensation law reflected policy choice that employers bear the costs of employees’ work-related injuries. Estate of Teague v. Crossroads Co-op Assn., 286 Neb. 1, 834 N.W.2d 236 (2013).

The Nebraska Workers’ Compensation Act’s different standards of exclusivity for employees versus employers, providing compensation under the act for employees injured by an employer’s willful negligence but not providing compensation under the act for employees injured by their own willful negligence, does not violate the equal protection, due process, or special legislation provisions of the U.S. and Nebraska Constitutions; employers and employees stand in different relations to the common undertaking and are not similarly situated, it was rational for the Legislature to recognize this fact when determining employers’ and employees’ rights and liabilities under the act, and it was not arbitrary for the Legislature to determine coverage under the act based on whose willful negligence caused the injury. Estate of Teague v. Crossroads Co-op Assn., 286 Neb. 1, 834 N.W.2d 236 (2013).

The primary object of the Nebraska Workers’ Compensation Act is to do away with the inadequacies and defects of the common-law remedies; to destroy the common-law defenses; and, in the employments affected, to give compensation, regardless of the fault of the employer. Estate of Teague v. Crossroads Co-op Assn., 286 Neb. 1, 834 N.W.2d 236 (2013).

A common-law misrepresentation defense to govern when an applicant's misrepresentation will bar recovery of workers' compensation benefits is incompatible with the Nebraska Workers' Compensation Act, overruling Hilt Truck Lines, Inc. v. Jones, 204 Neb. 115, 281 N.W.2d 399 (1979). Bassinger v. Nebraska Heart Hosp., 282 Neb. 835, 806 N.W.2d 395 (2011).

The Nebraska Workers' Compensation Act is the employee's exclusive remedy against an employer for an injury arising out of and in the course of employment. Millard v. Hyplains Dressed Beef, 237 Neb. 907, 468 N.W.2d 124 (1991).

The Nebraska Workers' Compensation Act should be construed liberally so that its beneficent purposes may not be thwarted by technical refinements of interpretation. Carter v. Weyerhaeuser Co., 234 Neb. 558, 452 N.W.2d 32 (1990).

Allegations that an employer intentionally concealed the dangers inherent in the workplace, intentionally inflicted injury resulting in occupational disease, and intentionally concealed the true nature and effect of the disease fall within the Nebraska Workers' Compensation Act, which is the exclusive remedy. Abbott v. Gould, Inc., 232 Neb. 907, 443 N.W.2d 591 (1989).

An employer's intentional concealment of the dangers inherent in the work environment and the true nature and effect of an occupational disease does not constitute involuntary servitude—the use or threat of physical force or legal coercion to extract labor from an unwilling worker—and thus construing the Workers' Compensation Act to include such conduct does not violate U.S. Const. amend. XIII or Neb. Const. art. I, sec. 2. Abbott v. Gould, Inc., 232 Neb. 907, 443 N.W.2d 591 (1989).

The exclusive remedy provided by the Workers' Compensation Act satisfies the due process requirements of Neb. Const. art. I, sec. 3, as well as the requirements of Neb. Const. art. I, sec. 13, that every person shall have a remedy by due course of law for any injury done to him or her. Abbott v. Gould, Inc., 232 Neb. 907, 443 N.W.2d 591 (1989).

An employee's injuries are compensable as long as his employment duties put him in a position that he might not otherwise be in which exposes him to a greater risk, even though the risk is not greater than that of the general public. Nippert v. Shinn Farm Constr. Co., 223 Neb. 236, 388 N.W.2d 820 (1986).

The Nebraska Workmen's Compensation Act provides the exclusive remedy by the employee against the employer for any injury arising out of and in the course of the employment. Johnston v. State, 219 Neb. 457, 364 N.W.2d 1 (1985).

The Workmen's Compensation Act is to be construed liberally so that its beneficent purposes may not be thwarted by technical refinement of interpretation. Friedeman v. State, 215 Neb. 413, 339 N.W.2d 67 (1983).

While the act of suicide may be an independent intervening cause in some cases, it is certainly not so in those cases where the uncontrovertible evidence shows that, without the injury, there would have been no suicide; that the suicide was merely an act intervening between the injury and the death and part of an unbroken chain of events from the injury to the death. Friedeman v. State, 215 Neb. 413, 339 N.W.2d 67 (1983).

If coverage exists, Workmen's Compensation Act is exclusive. Marlow v. Maple Manor Apartments, 193 Neb. 654, 228 N.W.2d 303 (1975).

The rule of liberal construction of the Workmen's Compensation Act applies to the law but not to the evidence. Barbaglia v. General Motors Acceptance Corp., 190 Neb. 529, 209 N.W.2d 353 (1973).

The state, by its Legislature, has extensively entered the field of labor. Midwest Employers Council, Inc. v. City of Omaha, 177 Neb. 877, 131 N.W.2d 609 (1964).

Employee having compensable injury was not a malingerer when he labored under mental condition firmly and honestly believing such injury to be permanent, and for which mental condition treatment had been inadequate. Rexroat v. State, 142 Neb. 596, 7 N.W.2d 163 (1942).

Whatever the employee's physical condition may be, the employer is bound to compensate him for any impairment of his existing ability to perform the duties in which he is engaged, by accident arising out of and in the course of his employment. Hansen v. Paxton & Vierling Iron Works, 138 Neb. 589, 293 N.W. 415 (1940).

When city has no authority to control the details of the work or to direct the manner and mode of doing it, it is not liable to W.P.A. worker. Williams v. City of Wymore, 138 Neb. 256, 292 N.W. 726 (1940).

Suspicion of fraud, arising from recovery of compensation for two former accidents of similar nature, will not defeat claim for workmen's compensation. Klement v. H. P. Lau Co., 138 Neb. 144, 292 N.W. 381 (1940).

In all questions under workmen's compensation law, rules of technical construction will be avoided, and intention of Legislature will be determined from language of act as a whole. Dobesh v. Associated Asphalt Contractors, 138 Neb. 117, 292 N.W. 59 (1940).

An employee is not necessarily precluded from recovering compensation by the mere fact that after the injury he receives a larger sum, as wages, than his former remuneration. Micek v. Omaha Steel Works, 136 Neb. 843, 287 N.W. 645 (1939); 135 Neb. 449, 282 N.W. 262 (1938).

Payment of employee's wages from federal funds does not relieve city from payment of compensation, where city had entire charge of directing and controlling work. Hendershot v. City of Lincoln, 136 Neb. 606, 286 N.W. 909 (1939).

Statute should be liberally construed. Ludwickson v. Central States Electric Co., 135 Neb. 371, 281 N.W. 603 (1938).

The relief authorized by workmen's compensation law includes purpose to prevent employee's dependents from becoming a public charge. Westcoatt v. Lilley, 134 Neb. 376, 278 N.W. 854 (1938).

Court will give a liberal construction to the workmen's compensation law, so that its beneficent purposes may not be thwarted by technical refinement of interpretation. Wilson v. Brown-McDonald Co., 134 Neb. 211, 278 N.W. 254 (1938).

Where a right has been created by statute which did not exist at common law, Legislature may impose restrictions thereon, and such restrictions become an integral part of the act and must be fully complied with in the manner prescribed. Ray v. Sanitary Garbage Co., 134 Neb. 178, 278 N.W. 139 (1938).

If plaintiff was injured while employed in improvement work on Missouri River, remedy is provided by workmen's compensation law rather than United States Seaman's Act. Belk v. Massman Construction Co., 133 Neb. 303, 275 N.W. 76 (1937).

Remedy under compensation law is exclusive where employee operating thereunder sustains an injury by reason of an accident arising out of and in the course of his employment. Jones v. Rossbach Coal Co., 130 Neb. 302, 264 N.W. 877 (1936).

Malingering is defined. Great Western Sugar Co. v. Hewitt, 127 Neb. 790, 257 N.W. 61 (1934).

Where employee unreasonably refuses to undergo simple operation which would relieve him from disability, compensation may be suspended. Simmerman v. Felthauser, 125 Neb. 795, 251 N.W. 831 (1934).

Workmen's Compensation Act is one of general interest to worker and employer alike, as well as to the state, and it should be so construed that technical refinements of interpretation will not defeat its purpose. Speas v. Boone County, 119 Neb. 58, 227 N.W. 87 (1929).

Workmen's Compensation Act is not applicable to a nonresident employer and a resident employee where contract of employment was made in this state for services to be performed in another state, and employer was not at the time of contract engaged in any trade, business, profession, or avocation in this state. Watts v. Long, 116 Neb. 656, 218 N.W. 410 (1928).

Provision for jury trial in this section does not apply to compensation cases generally. Nosky v. Farmers Union Co-op. Assn., 109 Neb. 489, 191 N.W. 846 (1922).

An employee's deliberate or intentional defiance of a reasonable rule will disqualify that employee from receiving benefits if (1) the employer has a reasonable rule designed to protect the health and safety of the employee, (2) the employee has actual notice of the rule, (3) the employee has an understanding of the danger involved in the violation of the rule, (4) the rule is kept alive by bona fide enforcement by the employer, and (5) the employee does not have a bona fide excuse for the rule violation. These factors need not be met when an employee has accidentally violated a safety rule. Spaulding v. Alliant Foodservice, 13 Neb. App. 99, 689 N.W.2d 593 (2004).

An assault on an employee at the workplace because of purely personal motivations or animosity will not arise out of the employment unless the work is determined to have exacerbated the personal dispute or facilitated an assault that would not otherwise have been committed. The question of whether the employment does facilitate such an assault is a question of fact for the trial court to determine. Monahan v. United States Check Book Co., 4 Neb. App. 227, 540 N.W.2d 380 (1995).

Deceased was, as a matter of law, not an employee of defendant under Nebraska workmen's compensation law. Pryor v. Strawn, 73 F.2d 595 (8th Cir. 1934).

48-101.01. Mental injuries and mental illness; first responder; frontline state employee; county correctional officer; legislative findings; evidentiary burden; compensation; when; first responder; mental health examination; resilience training; reimbursement; department; duties.

(1) The Legislature finds and declares:

(a) The occupations of first responders are recognized as stressful occupations. Only our nation's combat soldiers endure more stress. Similar to military personnel, first responders face unique and uniquely dangerous risks in their sworn mission to keep the public safe. They rely on each other for survival to protect the communities they serve;

(b) On any given day, first responders can be called on to make life and death decisions, witness a young child dying with the child's grief-stricken family, make a decision that will affect a community member for the rest of such person's life, or be exposed to a myriad of communicable diseases and known carcinogens;

(c) On any given day, first responders protect high-risk individuals from themselves and protect the community from such individuals;

(d) First responders are constantly at significant risk of bodily harm or physical assault while they perform their duties;

(e) Constant, cumulative exposure to horrific events make first responders uniquely susceptible to the emotional and behavioral impacts of job-related stressors;

(f) Trauma-related injuries can become overwhelming and manifest in post-traumatic stress, which may result in substance use disorders and even, tragically, suicide; and

(g) It is imperative for society to recognize occupational injuries related to post-traumatic stress and to promptly seek diagnosis and treatment without stigma. This includes recognizing that mental injury and mental illness as a result of trauma is not disordered, but is a normal and natural human response to trauma, the negative effects of which can be ameliorated through diagnosis and effective treatment.

(2) Personal injury includes mental injuries and mental illness unaccompanied by physical injury for an employee who is a first responder, frontline state employee, or county correctional officer if such employee:

(a) Establishes that the employee's employment conditions causing the mental injury or mental illness were extraordinary and unusual in comparison to the normal conditions of the particular employment; and

(b) Establishes, through a mental health professional, the medical causation between the mental injury or mental illness and the employment conditions by medical evidence.

(3) The employee bears the burden of establishing the matters described in subsection (2) of this section by a preponderance of the evidence.

(4) Until January 1, 2028, a first responder may establish prima facie evidence of a personal injury that is a mental injury or mental illness if the first responder:

(a) Presents evidence that the first responder underwent a mental health examination by a mental health professional upon entry into such service or subsequent to such entry and before the onset of the mental injury or mental illness and such examination did not reveal the mental injury or mental illness for which the first responder seeks compensation;

(b) Presents testimony or an affidavit from a mental health professional stating the first responder suffers from a mental injury or mental illness caused by one or more events or series of events which cumulatively produced the mental injury or mental illness which brought about the need for medical attention and the interruption of employment;

(c) Presents evidence that such events or series of events arose out of and in the course of the first responder's employment; and

(d) Presents evidence that, prior to the employment conditions which caused the mental injury or mental illness, the first responder had participated in resilience training and updated the training at least annually thereafter.

(5) For purposes of this section, mental injuries and mental illness arising out of and in the course of employment unaccompanied by physical injury are not considered compensable if they result from any event or series of events which are incidental to normal employer and employee relations, including, but not limited to, personnel actions by the employer such as disciplinary actions, work evaluations, transfers, promotions, demotions, salary reviews, or terminations.

(6)(a) The Department of Health and Human Services shall provide reimbursement for the cost of any of the following to the extent not reimbursed by the first responder's employer: A mental health examination by a mental health professional upon entry into such service or subsequent to such entry and before the onset of a mental injury or mental illness for which compensation is sought; initial resilience training; and annual resilience training. The department shall pay reimbursement at a rate determined by the Critical Incident Stress Management Program under section 71-7104. Reimbursement for resilience training shall be subject to the annual limit set by such program under section 71-7104.

(b) To obtain reimbursement under this subsection, a first responder shall submit an application to the Department of Health and Human Services on a form and in a manner prescribed by the department.

(7) The Department of Health and Human Services shall maintain and annually update records of first responders who have completed annual resilience training.

(8) For purposes of this section:

(a) County correctional officer means a correctional officer employed by a high-population county whose:

(i) Position obligates such employee to maintain order and custody of inmates in a county jail; and

(ii) Duties involve regular and direct interaction with high-risk individuals;

(b) Custody means:

(i) Under the charge or control of a state institution or state agency and includes time spent outside of the state institution or state agency; or

(ii) In the custody of a county jail in a high-population county or in the process of being placed in the custody of a county jail in a high-population county;

(c) First responder means a sheriff, a deputy sheriff, a police officer, an officer of the Nebraska State Patrol, a volunteer or paid firefighter, or a volunteer or paid individual licensed under a licensure classification in subdivision (1) of section 38-1217 who provides medical care in order to prevent loss of life or aggravation of physiological or psychological illness or injury;

(d) Frontline state employee means an employee of the Department of Correctional Services or the Department of Health and Human Services whose duties involve regular and direct interaction with high-risk individuals;

(e) High-population county means a county with more than three hundred thousand inhabitants as determined by the most recent federal decennial census or the most recent revised certified count by the United States Bureau of the Census;

(f) High-risk individual means an individual in custody for whom violent or physically intimidating behavior is common, including, but not limited to, a committed offender as defined in section 83-170, a patient at a regional center as defined in section 71-911, a juvenile committed to a youth rehabilitation and treatment center, and a person in the custody of a county jail in a high-population county or in the process of being placed in the custody of a county jail in a high-population county;

(g) Mental health professional means:

(i) A practicing physician licensed to practice medicine in this state under the Medicine and Surgery Practice Act;

(ii) A practicing psychologist licensed to engage in the practice of psychology in this state as provided in section 38-3111 or as provided in similar provisions of the Psychology Interjurisdictional Compact;

(iii) A person licensed as an independent mental health practitioner under the Mental Health Practice Act; or

(iv) A professional counselor who holds a privilege to practice in Nebraska as a professional counselor under the Licensed Professional Counselors Interstate Compact; and

(h) Resilience training means training that meets the guidelines established by the Critical Incident Stress Management Program under section 71-7104 and that teaches how to adapt to, manage, and recover from adversity, trauma, tragedy, threats, or significant sources of stress.

(9) All other provisions of the Nebraska Workers' Compensation Act apply to this section.

Source:Laws 2010, LB780, § 1; Laws 2012, LB646, § 2; Laws 2017, LB444, § 2; Laws 2020, LB963, § 1; Laws 2021, LB273, § 5; Laws 2021, LB407, § 1; Laws 2022, LB752, § 28; Laws 2023, LB191, § 6.
Operative Date: September 2, 2023

Cross References

Licensed Professional Counselors Interstate Compact, see section 38-4201.

Medicine and Surgery Practice Act, see section 38-2001.

Mental Health Practice Act, see section 38-2101.

Psychology Interjurisdictional Compact, see section 38-3901.

48-102. Employer's liability; negligence; action; defenses denied.

In all cases brought under sections 48-101 to 48-108, it shall not be a defense (a) that the employee was negligent, unless it shall also appear that such negligence was willful, or that the employee was in a state of intoxication; (b) that the injury was caused by the negligence of a fellow employee; or (c) that the employee had assumed the risks inherent in, or incidental to, or arising from the failure of the employer to provide and maintain safe premises and suitable appliances, which grounds of defense are hereby abolished.

Source:Laws 1913, c. 198, § 2, p. 579; R.S.1913, § 3643; C.S.1922, § 3025; C.S.1929, § 48-102; R.S.1943, § 48-102; Laws 1971, LB 572, § 2.

Annotations

A common-law misrepresentation defense to govern when an applicant's misrepresentation will bar recovery of workers' compensation benefits is incompatible with the Nebraska Workers' Compensation Act, overruling Hilt Truck Lines, Inc. v. Jones, 204 Neb. 115, 281 N.W.2d 399 (1979). Bassinger v. Nebraska Heart Hosp., 282 Neb. 835, 806 N.W.2d 395 (2011).

The statutory defense under this section applies to employees, not applicants. Bassinger v. Nebraska Heart Hosp., 282 Neb. 835, 806 N.W.2d 395 (2011).

This section eliminates from workers' compensation proceedings the three common-law defenses of contributory negligence, the fellow-servant rule, and assumption of the risk, preserving only the employee's willful negligence and intoxication as defenses which the employer may raise. Estate of Coe v. Willmes Trucking, 268 Neb. 880, 689 N.W.2d 318 (2004).

Willful exposure to freezing weather was not a defense. Mead v. Missouri Valley Grain, Inc., 178 Neb. 553, 134 N.W.2d 243 (1965).

Allegation that disability was due to employee's failure to allow normal recovery constituted charge of willful negligence. Rexroat v. State, 142 Neb. 596, 7 N.W.2d 163 (1942).

Defense of assumption of risk is not available. Nedela v. Mares Auto Co., 110 Neb. 108, 193 N.W. 345 (1923).

Defense that plaintiff was willfully negligent was not established by evidence. Brown v. York Water Co., 104 Neb. 516, 177 N.W. 833 (1920).

48-103. Employer's liability; defenses; when not available.

If an employer, as defined in section 48-106, does not carry a policy of workers' compensation insurance nor qualify as a self-insurer or, in the case of an employer who is a lessor of one or more commercial motor vehicles leased to a self-insured motor carrier, is not a party to an effective agreement pursuant to section 48-115.02, he or she loses the right to interpose the three defenses mentioned in section 48-102 in any action brought against him or her for personal injury or death of an employee.

Source:Laws 1913, c. 198, § 3, p. 579; R.S.1913, § 3644; C.S.1922, § 3026; C.S.1929, § 48-103; R.S.1943, § 48-103; Laws 1971, LB 572, § 3; Laws 1986, LB 811, § 25; Laws 1997, LB 474, § 1.

Annotations

Under this section, when an employer fails to carry workers' compensation insurance or an acceptable alternative and an injured employee elects to seek damages in a common-law action, the employer "loses the right to interpose" contributory negligence (unless the employee was intoxicated or willfully negligent), the fellow-servant rule, and assumption of the risk as defenses in the action. Estate of Coe v. Willmes Trucking, 268 Neb. 880, 689 N.W.2d 318 (2004).

48-104. Repealed. Laws 1971, LB 572, § 33.

48-105. Preceding sections; application.

The provisions of sections 48-101 to 48-103 shall apply to any claim for the death of an employee arising under sections 30-809 and 30-810 concerning death by wrongful act.

Source:Laws 1913, c. 198, § 5, p. 580; R.S.1913, § 3646; C.S.1922, § 3028; C.S.1929, § 48-105; R.S.1943, § 48-105; Laws 1971, LB 572, § 4; Laws 1994, LB 414, § 1.

48-106. Employer; coverage of act; excepted occupations; election to provide compensation.

(1) The Nebraska Workers' Compensation Act shall apply to the State of Nebraska, to every governmental agency created by the state, and, except as provided in this section, to every resident employer in this state and nonresident employer performing work in this state who employs one or more employees in the regular trade, business, profession, or vocation of such employer.

(2) The act shall not apply to:

(a) A railroad company engaged in interstate or foreign commerce;

(b) Service performed by a worker who is a household domestic servant in a private residence;

(c) Service performed by a worker when performed for an employer who is engaged in an agricultural operation and employs only related employees;

(d) Service performed by a worker when performed for an employer who is engaged in an agricultural operation and employs unrelated employees unless such service is performed for an employer who during any calendar year employs ten or more unrelated, full-time employees, whether in one or more locations, on each working day for thirteen calendar weeks, whether or not such weeks are consecutive. The act shall apply to an employer thirty days after the thirteenth such week; and

(e) Service performed by a person who is engaged in an agricultural operation, or performed by his or her related employees, when the service performed is (i) occasional and (ii) for another person who is engaged in an agricultural operation who has provided or will provide reciprocal or similar service.

(3) If the employer is the state or any governmental agency created by the state, the exemption from the act under subdivision (2)(d) of this section does not apply.

(4) If the act applies to an employer because the employer meets the requirements of subdivision (2)(d) of this section, all unrelated employees shall be covered under the act and such employees' wages shall be considered for premium purposes.

(5) If an employer to whom the act applies because the employer meets the requirements of subdivision (2)(d) of this section subsequently does not employ ten or more unrelated, full-time employees, such employer shall continue to provide workers' compensation insurance coverage for the employees for the remainder of the calendar year and for the next full calendar year. When the required coverage period has expired, such employer may elect to return to exempt status by (a) posting, continuously in a conspicuous place at the employment locations of the employees for a period of at least ninety days, a written or printed notice stating that the employer will no longer carry workers' compensation insurance for the employees and the date such insurance will cease and (b) thereafter no longer carrying a policy of workers' compensation insurance. Failure to provide notice in accordance with this subsection voids an employer's attempt to return to exempt status.

(6) An employer who is exempt from the act under subsection (2) of this section may elect to bring the employees of such employer under the act. Such election is made by the employer obtaining a policy of workers' compensation insurance covering such employees. Such policy shall be obtained from a corporation, association, or organization authorized and licensed to transact the business of workers' compensation insurance in this state. If such an exempt employer procures a policy of workers' compensation insurance which is in full force and effect at the time of an accident to an employee of such employer, such procurement is conclusive proof of the employer's and employee's election to be bound by the act. Such an exempt employer who has procured a policy of workers' compensation insurance may elect to return to exempt status by (a) posting, continuously in a conspicuous place at the employment locations of the employees for a period of at least ninety days, a written or printed notice stating that the employer will no longer carry workers' compensation insurance for the employees and the date such insurance will cease and (b) thereafter no longer carrying a policy of workers' compensation insurance. Failure to provide notice in accordance with this subsection voids an employer's attempt to return to exempt status.

(7) Every employer exempted under subdivision (2)(d) of this section who does not elect to provide workers' compensation insurance under subsection (6) of this section shall give all unrelated employees at the time of hiring or at any time more than thirty calendar days prior to the time of injury the following written notice which shall be signed by the unrelated employee and retained by the employer: "In this employment you will not be covered by the Nebraska Workers' Compensation Act and you will not be compensated under the act if you are injured on the job or suffer an occupational disease. You should plan accordingly." Failure to provide the notice required by this subsection subjects an employer to liability under and inclusion in the act for any unrelated employee to whom such notice was not given.

(8) An exclusion from coverage in any health, accident, or other insurance policy covering a person employed by an employer who is exempt from the act under this section which provides that coverage under the health, accident, or other insurance policy does not apply if such person is entitled to workers' compensation coverage is void as to such person if such employer has not elected to bring the employees of such employer within the act as provided in subsection (6) of this section.

(9) For purposes of this section:

(a) Agricultural operation means (i) the cultivation of land for the production of agricultural crops, fruit, or other horticultural products or (ii) the ownership, keeping, or feeding of animals for the production of livestock or livestock products;

(b) Full-time employee means a person who is employed to work one-half or more of the regularly scheduled hours during each pay period; and

(c) Related employee means a spouse of an employer and an employee related to the employer within the third degree by blood or marriage. Relationship by blood or marriage within the third degree includes parents, grandparents, great grandparents, children, grandchildren, great grandchildren, brothers, sisters, uncles, aunts, nephews, nieces, and spouses of the same. If the employer is a partnership, limited liability company, or corporation in which all of the partners, members, or shareholders are related within the third degree by blood or marriage, then related employee means any employee related to any such partner, member, or shareholder within the third degree by blood or marriage.

Source:Laws 1913, c. 198, § 6, p. 580; R.S.1913, § 3647; Laws 1917, c. 85, § 1, p. 199; C.S.1922, § 3029; Laws 1927, c. 134, § 1, p. 363; C.S.1929, § 48-106; R.S.1943, § 48-106; Laws 1945, c. 111, § 1, p. 356; Laws 1957, c. 202, § 1, p. 707; Laws 1971, LB 572, § 5; Laws 1972, LB 1298, § 1; Laws 1986, LB 811, § 26; Laws 2002, LB 417, § 1; Laws 2003, LB 210, § 1; Laws 2005, LB 13, § 1; Laws 2009, LB630, § 1; Laws 2010, LB829, § 1.

Annotations

1. State and governmental agencies

2. Regular trade or business of employer

3. Railroad companies

4. Farm laborers

5. Employment in this state

6. Applicability of act

7. Miscellaneous

1. State and governmental agencies

An enlisted member of the National Guard is not an employee within the meaning of the Workmen's Compensation Act. Lind v. Nebraska National Guard, 144 Neb. 122, 12 N.W.2d 652 (1944).

State intended to waive its sovereignty and give its consent to be sued in actions arising under the Workmen's Compensation Act, but Legislature failed to provide manner for service of process. Anstine v. State, 137 Neb. 148, 288 N.W. 525 (1939).

One engaged by village to care for swimming pool and surrounding park is an employee within Workmen's Compensation Act. Schou v. Village of Hildreth, 127 Neb. 784, 257 N.W. 70 (1934).

Firemen of city of Omaha are in the service of a governmental agency and within act. Shandy v. City of Omaha, 127 Neb. 406, 255 N.W. 477 (1934).

County letting contract without requiring contractor to furnish insurance policy protecting contractor's employees, is jointly liable with contractor to its employee who received compensable injury. Standish v. Larsen-Merryweather Co., 124 Neb. 197, 245 N.W. 606 (1932).

Act applies to Department of Roads and Irrigation. Eidenmiller v. State, 120 Neb. 430, 233 N.W. 447 (1930).

County was employer of person employed in repairing bridges, although work did not take all his time. Davis v. Lincoln County, 117 Neb. 148, 219 N.W. 899 (1928).

2. Regular trade or business of employer

A workman who is injured while working on the residence property of his employer is not within the provisions of the Workmen's Compensation Act. Retzlaff v. Dickinson, 141 Neb. 136, 2 N.W.2d 922 (1942).

Where a painter and paperhanger worked for owner on his residence, although he had on occasions worked on rental properties, injury sustained did not arise in the regular trade, business, profession, or vocation of his employer. Burkholder v. Clark, 140 Neb. 590, 300 N.W. 839 (1941).

City police officer, injured while transporting passengers to and from trains, is not performing an act within the regular trade, business, or vocation of city, and is not entitled to compensation. Coyne v. City of O'Neill, 139 Neb. 686, 298 N.W. 547 (1941).

Where contractor hired truck driver and truck to haul gravel in fulfillment of contract with county, contractor was employer within act. Showers v. Lund, 123 Neb. 56, 242 N.W. 258 (1932).

One engaged in buying and shipping poultry in carload lots to distant markets is engaged in business. Claus v. DeVere, 120 Neb. 812, 235 N.W. 450 (1931).

Hod-carrier, injured in construction of apartment, was engaged in employer's regular business. Bauer v. Anderson, 114 Neb. 326, 207 N.W. 508 (1926).

Caring for buildings owned by person engaged in other business was not regular business, and employee repairing such building was not within Workmen's Compensation Act. Kaplan v. Gaskill, 108 Neb. 455, 187 N.W. 943 (1922).

3. Railroad companies

Employee of railroad engaged in interstate commerce is excluded. Chicago, B. & Q. R.R. Co. v. Amack, 112 Neb. 437, 199 N.W. 724 (1924).

4. Farm laborers

In keeping with the language of subsection (2) of this section, excepting "employers" of farm and ranch laborers, it is the nature of the employer's business which determines the exception. Larsen v. D B Feedyards, 264 Neb. 483, 648 N.W.2d 306 (2002).

The nature of the employer's business determines the applicability of the farm laborer exemption, and the work performed by the employee does not. One employer may engage in two separate businesses, one subject to the workers' compensation law and one exempt. Bartunek v. Becker, 222 Neb. 126, 382 N.W.2d 300 (1986).

Under the provisions of subsection (2) of this section, it is the nature of the employer's business which determines the exemption, and not the work performed by the employee. Employers of farm or ranch laborers are generally exempt from the provisions of the Nebraska Workmen's Compensation Act, and farm or ranch laborers injured while employed by one operating a farm or ranch are not entitled to receive any of the benefits of the Nebraska Workmen's Compensation Act. Leppert v. Parker, 218 Neb. 63, 352 N.W.2d 180 (1984).

The whole character of an employee's employment must be considered to determine whether an employee is a farm laborer within the meaning of the Workmen's Compensation Act, and an employee who works 45 hours per week performing the duties of cleaning pens, feeding livestock, plowing, disking, and building fences and pens on defendant's farm is a farm laborer within the act. The employee failed to meet the burden of showing that the classification of farm laborers as being exempt from the Workmen's Compensation Act's coverage had no rational basis, and therefore failed to overcome the presumption that said classification does not violate the equal protection clause of the fourteenth amendment to the U.S. Constitution. Otto v. Hahn, 209 Neb. 114, 306 N.W.2d 587 (1981).

Employer engaged in custom combining for public as a regular commercial business is not an employer of farm or ranch laborer. Hawthorne v. Hawthorne, 184 Neb. 372, 167 N.W.2d 564 (1969).

Employer of farm or ranch labor, by the act of obtaining workmen's compensation insurance, becomes an employer within meaning of this section. Imus v. Bead Mountain Ranch, Inc., 183 Neb. 343, 160 N.W.2d 171 (1968).

A group of farmers operating a commercial hay grinding business was not exempt from liability. Campos v. Tomoi, 175 Neb. 555, 122 N.W.2d 473 (1963).

Employer of farm labor may elect to come under act. Keith v. Wilson, 165 Neb. 58, 84 N.W.2d 192 (1957).

Employee of livestock sales barn was not a farm or ranch laborer. Gruber v. Stickelman, 149 Neb. 627, 31 N.W.2d 753 (1948).

Whole character of employment must be looked to to determine whether person is farm laborer; person employed to operate a bulldozer was not. Oliver v. Ernst, 148 Neb. 465, 27 N.W.2d 622 (1947).

A carpenter employed by a farmer to construct a machine shed on farm did not make carpenter a farm laborer so as to exclude him from benefit of act. Guse v. Wessels, 132 Neb. 41, 270 N.W. 665 (1937).

Cooperative threshing association, though threshing for others, was included within the term employers of farm laborers. Keefover v. Vasey, 112 Neb. 424, 199 N.W. 799 (1924).

5. Employment in this state

The Nebraska Workmen's Compensation Act is not applicable where a resident employee's employment by a nonresident employer for services to be performed outside the state was neither in nor incidental to any trade, business, profession, or vocation carried on by the employer in this state. Jensen v. Floair, Inc., 211 Neb. 403, 318 N.W.2d 870 (1982).

Action may be maintained against nonresident employer performing work in this state. Rapp v. Hale, 170 Neb. 620, 103 N.W.2d 851 (1960).

Where headquarters of employer, industry in which engaged, and residence of employee all are in Nebraska, proceedings for compensation for total injury are maintainable hereunder. Esau v. Smith Bros., 124 Neb. 217, 246 N.W. 230 (1933).

Courts of Nebraska are without jurisdiction where plaintiff's employment was not in, or incidental to, any industry conducted in Nebraska. Freeman v. Higgins, 123 Neb. 73, 242 N.W. 271 (1932).

Workmen, engaged in Nebraska by Kansas employer, not engaged in business in Nebraska, to work in Kansas, are not within Nebraska Workmen's Compensation Act. Watts v. Long, 116 Neb. 656, 218 N.W. 410 (1928).

Employee, resident of Nebraska, contracting to perform labor in Iowa for Nebraska corporation and injured in Iowa, was within Nebraska Workmen's Compensation Act. McGuire v. Phelan-Shirley Co., 111 Neb. 609, 197 N.W. 615 (1924).

Pursuant to subdivision (2) of section 48-115, under the Nebraska Workers' Compensation Act, an "employee" or "worker" is defined as every person in the service of an employer who is engaged in any trade, occupation, business, or profession as described in this section under any contract of hire, expressed or implied, oral or written. Morin v. Industrial Manpower, 13 Neb. App. 1, 687 N.W.2d 704 (2004).

6. Applicability of act

Pursuant to subdivision (2) of section 48-114, employers subject to the Nebraska Workers' Compensation Act include every person, firm, or corporation who is engaged in any trade, occupation, business, or profession as described in this section, and who has any person in service under any contract of hire, express or implied, oral or written. Morin v. Industrial Manpower, 13 Neb. App. 1, 687 N.W.2d 704 (2004).

Pursuant to subsection (1) of this section, the Nebraska Workers' Compensation Act applies to every employer in this state, including nonresident employers performing work in this state, employing one or more employees, in the regular trade, business, profession, or vocation of such employer. Morin v. Industrial Manpower, 13 Neb. App. 1, 687 N.W.2d 704 (2004).

7. Miscellaneous

The Nebraska Workers' Compensation Act does not affect an insurance agent's duty to act with reasonable care, and the same is true for insurance brokers. Merrick v. Fischer, Rounds & Assocs., 305 Neb. 230, 939 N.W.2d 795 (2020).

An employee's illegal residence or work status does not bar an award of indemnity for permanent total loss of earning capacity. Moyera v. Quality Pork Internat., 284 Neb. 963, 825 N.W.2d 409 (2013).

The fact that the employer is engaged in farming does not remove from the coverage of the workers' compensation laws other businesses or occupations carried on by the employer which are otherwise under the coverage of those laws. Bartunek v. Becker, 222 Neb. 126, 382 N.W.2d 300 (1986).

The statutory employer provisions of section 48-116 do not supersede the exemption provisions of subsection (2) of this section. Nussbaum v. Wright, 217 Neb. 712, 350 N.W.2d 559 (1984).

One employer may operate two different businesses, one subject to the workmen's compensation law and one exempt, and obtain workmen's compensation insurance for the business which is subject to the law, without by that act triggering the election of coverage provisions of the Workmen's Compensation Act. Brown v. Leavitt Lane Farm, 215 Neb. 522, 340 N.W.2d 4 (1983).

Where plaintiff was injured while engaged in improvement work on the Missouri River, Workmen's Compensation Act provided exclusive remedy. Belk v. Massman Construction Co., 133 Neb. 303, 275 N.W. 76 (1937).

Subcontractor is the only employer of employee injured in line of his duties. Boyd v. Humphreys, 117 Neb. 799, 223 N.W. 658 (1929).

Corporation subject to compensation is liable for injury to workman employed by independent contractor agreeing to protect corporation against liability for injuries to workmen, where such contractor was not required to procure insurance to protect his employees. Sherlock v. Sherlock, 112 Neb. 797, 201 N.W. 645 (1924).

Noninsuring employer is liable either for damages at common law or for compensation, at option of employee. Avre v. Sexton, 110 Neb. 149, 193 N.W. 342 (1923).

An insurance agent does not have an affirmative duty to tell an employer about the written notice and signature provisions contained in subsection (7) of this section. Hansmeier v. Hansmeier, 25 Neb. App. 742, 912 N.W.2d 268 (2018).

48-107. Employer's liability; employee's willful negligence; burden of proof.

In all actions at law brought pursuant to sections 48-101 to 48-108 the burden of proof to establish willful negligence of the injured employee shall be on the defendant.

Source:Laws 1913, c. 198, § 7, p. 580; R.S.1913, § 3648; C.S.1922, § 3030; C.S.1929, § 48-107; R.S.1943, § 48-107.

Annotations

The burden of proving intoxication as a defense is on the employer. Johnson v. Hahn Bros. Const. Inc., 188 Neb. 252, 196 N.W.2d 109 (1972).

Mere negligence of employee is not sufficient to preclude recovery, but such conduct must be shown as manifests a reckless disregard of consequences coupled with a consciousness that injury will naturally or probably result. Richards v. Abts, 136 Neb. 741, 287 N.W. 199 (1939).

Burden is on employer to establish willful negligence, and he must prove a deliberate act knowingly done or conduct evidencing reckless indifference to his own safety on part of employee. Hoff v. Edgar, 133 Neb. 403, 275 N.W. 602 (1937).

48-108. Employer's liability; claim for legal services or disbursements; lien; how established; payment.

No claim or agreement for legal services or disbursements in support of any demand made or suit brought under the Nebraska Workers' Compensation Act shall be an enforceable lien against the amounts to be paid as damages or compensation or be valid or binding in any other respect, unless the same be approved in writing by a judge of the Nebraska Workers' Compensation Court. After such approval, if notice in writing be given the defendant of such claim or agreement for legal services and disbursements, the same shall be a lien against any amount thereafter to be paid as damages or compensation. When the employee's compensation is payable by the employer in periodical installments, the compensation court shall fix, at the time of approval, the proportion of each installment to be paid on account of legal services and disbursements.

Source:Laws 1913, c. 198, § 8, p. 581; R.S.1913, § 3649; C.S.1922, § 3031; C.S.1929, § 48-108; R.S.1943, § 48-108; Laws 1974, LB 732, § 1; Laws 1975, LB 187, § 1; Laws 1978, LB 649, § 1; Laws 1986, LB 811, § 27; Laws 2010, LB908, § 1.

Annotations

The Workers' Compensation Court has jurisdiction to determine a fee dispute arising out of an attorney's lien perfected pursuant to this section, regardless of whether the attorney seeking enforcement had previously been discharged. Foster v. BryanLGH Med. Ctr. East, 272 Neb. 918, 725 N.W.2d 839 (2007).

Attorney's fees allowed by court were ordered applied on agreement entered into under this section. Miller v. Schlereth, 152 Neb. 805, 42 N.W.2d 865 (1950).

Fees for plaintiff's attorneys allowed and taxed as costs are the property of the attorneys for whose benefit they are taxed. Approval by trial judge is a nonjudicial act and no notice thereof to claimant is required. Solomon v. A. W. Farney, Inc., 136 Neb. 338, 286 N.W. 254 (1939).

Notice to compensation claimant is not condition precedent to approval of attorney's fees by trial judge. Arner v. Sioux County, 116 Neb. 394, 217 N.W. 603 (1928).

This section limits amounts attorney may lawfully charge and is constitutional as proper exercise of police power. Agreement for fees that is not approved is not enforceable. Dysart v. Yeiser, 110 Neb. 65, 192 N.W. 953 (1923).

The Nebraska Workers' Compensation Court does not have subject matter jurisdiction to determine whether a health care insurer or HMO is obligated to share in the cost of obtaining reimbursement when the injured worker successfully asserts a claim for workers' compensation benefits. The Nebraska Workers' Compensation Court's regulation of attorney fees and disbursement matters is limited to those which arise between the injured worker and the attorney representing the injured worker. Kaiman v. Mercy Midlands Medical & Dental Plan, 1 Neb. App. 148, 491 N.W.2d 356 (1992).

Limiting fees of attorneys under Workmen's Compensation Act is not unconstitutional as depriving of liberty of contract without due process. Yeiser v. Dysart, 267 U.S. 540 (1925).

48-109. Elective compensation; schedule; duty.

If both employer and employee become subject to the Nebraska Workers' Compensation Act, both shall be bound by the schedule of compensation provided in such act, which compensation shall be paid in every case of injury or death caused by accident or occupational disease arising out of and in the course of employment, except accidents caused by or resulting in any degree from the employee's willful negligence as defined in section 48-151.

Source:Laws 1913, c. 198, § 9, p. 581; R.S.1913, § 3650; C.S.1922, § 3032; C.S.1929, § 48-109; Laws 1943, c. 113, § 2, p. 397; R.S.1943, § 48-109; Laws 1986, LB 811, § 28.

Annotations

1. Election

2. In course of employment

3. Not in course of employment

4. Occupational disease

5. Willful negligence

6. Miscellaneous

1. Election

A finding that one party is an "employer" under section 48-114 and a finding that the other relevant party is an "employee" under section 48-115 are necessary to engage this section, which binds the parties to the compensation schedule of the Nebraska Workers' Compensation Act. Kaiser v. Millard Lumber, Inc., 255 Neb. 943, 587 N.W.2d 875 (1999).

Act of employee in electing not to come under part II of the act is binding on his dependents. White v. National Window Cleaning Co., 132 Neb. 155, 271 N.W. 341 (1937).

Petition in action for damages was not defective for failure to allege that plaintiff had not elected to come under part II. Smith v. Fall, 122 Neb. 783, 241 N.W. 560 (1932).

2. In course of employment

The phrases in the course of and arising out of are not synonymous and impose a double condition for recovery. Reis v. Douglas County Hospital, 193 Neb. 542, 227 N.W.2d 879 (1975).

Act of seeking shelter from cold weather arose in the course of employment. Appleby v. Great Western Sugar Co., Inc., 176 Neb. 102, 125 N.W.2d 103 (1963).

A double condition is imposed and both must exist to sustain recovery. Simon v. Standard Oil Co., 150 Neb. 799, 36 N.W.2d 102 (1949).

Burden rests upon claimant to establish by a preponderance of the evidence that he sustained a personal injury by accident arising out of and in the course of his employment. Schwabauer v. State, 147 Neb. 620, 24 N.W.2d 431 (1946).

Injuries to one dragging roads for county, when kicked by horse after suspending work during noon hour, arose in course of employment. Speas v. Boone County, 119 Neb. 58, 227 N.W. 87 (1929).

Injuries by reason of being required to work with incompetent, insane and dangerous fellow workmen arise out of employment. Dodson v. F. W. Woolworth Co., 118 Neb. 276, 224 N.W. 289 (1929).

Injury from being overcome by gas, although attributable in part to occupational disease, arose out of employment. Van Vleet v. Public Service Co. of York, 111 Neb. 51, 195 N.W. 467 (1923).

Injury to garage employee, who fell under truck while attempting to catch ride in performing errand for employer, arose out of employment. McCrary v. Wolff, 109 Neb. 796, 192 N.W. 237 (1923).

Workman on way to procure materials which it was his ordinary duty to procure, to be used in his work, injured in collision with streetcar, was acting in course of employment. Hugh Murphy Const. Co. v. Serck, 104 Neb. 398, 177 N.W. 747 (1920); Coster v. Thompson Hotel Co., 102 Neb. 585, 168 N.W. 191 (1918).

3. Not in course of employment

Workmen's Compensation Act does not authorize an award in case of injury or death from a tornado. Crow v. The Americana Crop Hail Pool, Inc., 176 Neb. 260, 125 N.W.2d 691 (1964).

If employee is injured while absent from the employment for lunch, the injury does not arise out of nor in the course of employment. Berry v. School District, 154 Neb. 787, 49 N.W.2d 617 (1951).

Where employee abandons his job and gets another, and while going to get his tools from his old job is killed, former employer is not liable under Workmen's Compensation Act where he owed no duty in connection with return of tools. Hammond v. Keim, 128 Neb. 310, 258 N.W. 478 (1935).

Death of workman on destruction of building by storm, peril being common to all mankind, did not arise out of employment. Gale v. Krug Park Amusement Co., 114 Neb. 432, 208 N.W. 739 (1926).

Injury in personal altercation between employees does not arise out of employment. Urak v. Morris & Co., 107 Neb. 411, 186 N.W. 345 (1922).

Where employee whose duty was to use elevator in trucking meat from floor to floor in packing house, after taking truck off elevator, returned to scuffle with operator, accident did not arise out of employment. Feda v. Cudahy Packing Co., 102 Neb. 110, 166 N.W. 190 (1918).

Employee assaulted by fellow workman, whether in anger or play, is not injured in course of employment. Pierce v. Boyer-Van Kuran Lumber & Coal Co., 99 Neb. 321, 156 N.W. 509 (1916).

4. Occupational disease

Unexplained fall was not sufficient to show accident where workman was suffering from aortic stenosis. Cochran v. Bellevue Bridge Commission, 174 Neb. 761, 119 N.W.2d 292 (1963).

Existence of occupational disease before amendment to statute did not preclude recovery where disability occurred after amendment. Hauff v. Kimball, 163 Neb. 55, 77 N.W.2d 683 (1956).

Disability from which plaintiff was suffering lead poisoning, solely result of disease occupational in nature, was not compensable. Ritchey v. Herdt, 121 Neb. 874, 236 N.W. 926 (1931).

Injury attributable in part to accident is compensable, though employee was suffering from occupational disease. If injury and preexisting disease combine to produce disability, employee need not prove injury accelerated or aggravated disease. Skelly Oil Co. v. Gaugenbaugh, 119 Neb. 698, 230 N.W. 688 (1930).

Illness from disease arising from ordinary incidents of occupation, and reasonably resulting therefrom is not compensable. Blair v. Omaha Ice & Cold Storage Co., 102 Neb. 16, 165 N.W. 893 (1917).

5. Willful negligence

Willful negligence requires showing of deliberate act knowingly done, or reckless indifference to safety. Krajeski v. Beem, 157 Neb. 586, 60 N.W.2d 651 (1953).

Where defense is willful negligence of employee, it is error to exclude testimony of witness that he had warned employee of danger prior to accident. Richards v. Abts, 135 Neb. 347, 281 N.W. 611 (1938).

6. Miscellaneous

If coverage exists, Workmen's Compensation Act is exclusive. Marlow v. Maple Manor Apartments, 193 Neb. 654, 228 N.W.2d 303 (1975).

Where employee was not in any manner disabled from performing work that he had done prior to accident, claim for weekly benefits was not sustained. Wengler v. Grosshans Lumber Co., 173 Neb. 839, 115 N.W.2d 415 (1962).

An assault by a fellow employee may be an accident. Myszkowski v. Wilson & Co., Inc., 155 Neb. 714, 53 N.W.2d 203 (1952).

Fact that city fireman receives workmen's compensation does not deprive him of right to receive fireman's pension. City of Lincoln v. Steffensmeyer, 134 Neb. 613, 279 N.W. 272 (1938).

Mere exertion which combines with preexisting disease to produce disability is not an accident causing compensable injury. Gilkeson v. Northern Gas Engineering Co., 127 Neb. 124, 254 N.W. 714 (1934).

Compensable injury can only arise while workman is engaged in or about the premises where his duties are required to be performed or his services require his presence. Hall v. Austin Western Road Machinery Co., 125 Neb. 390, 250 N.W. 258 (1933).

Employee has burden of proving that personal injury was caused to the employee by an accident arising out of and in the course of his employment. Herbert v. State, 124 Neb. 312, 246 N.W. 454 (1933).

48-110. Elective compensation; liability; scope.

When employer and employee shall by agreement, express or implied, or otherwise as provided in section 48-112 accept the provisions of the Nebraska Workers' Compensation Act, compensation shall be made for personal injuries to or for the death of such employee by accident arising out of and in the course of his or her employment, without regard to the negligence of the employer, according to the schedule provided in such act, in all cases except when the injury or death is caused by willful negligence on the part of the employee. The burden of proof of such fact shall be upon the employer.

Source:Laws 1913, c. 198, § 10, p. 581; R.S.1913, § 3651; C.S.1922, § 3033; C.S.1929, § 48-110; R.S.1943, § 48-110; Laws 1986, LB 811, § 29.

Annotations

When read with section 48-111, this section mandates that an employee surrenders his or her right to any method, form, or amount of compensation or determination thereof against his or her employer or workers' compensation insurer other than that as provided in the Nebraska Workers' Compensation Act when that employee sustains an injury, arising out of and in the course of his or her employment, that is covered by the act. Ihm v. Crawford & Co., 254 Neb. 818, 580 N.W.2d 115 (1998).

Employee may not recover for injuries resulting from his willful negligence. Bole v. S.M.S. Trucking Co., 187 Neb. 341, 190 N.W.2d 780 (1971).

Burden of establishing willful negligence is on employer. Myszkowski v. Wilson & Co., Inc., 155 Neb. 714, 53 N.W.2d 203 (1952).

School teacher was not entitled to compensation when injured while absent from place of employment for lunch. Berry v. School District, 154 Neb. 787, 49 N.W.2d 617 (1951).

Where transportation furnished to employee carried him only part way to work, and he was injured while walking the remaining distance, injury did not arise out of and in the course of employment. Lincoln Traction Co. v. Reason, 143 Neb. 512, 10 N.W.2d 344 (1943).

Where defense is willful negligence of employee any competent evidence tending to show knowledge by employee of the dangerous character of act which subsequently caused his death is admissible, and it was error to exclude testimony of witness that he had warned deceased of his danger. Richards v. Abts, 135 Neb. 347, 281 N.W. 611 (1938).

To avoid liability on ground of willful negligence, employer must prove a deliberate act knowingly done, or such conduct as evidences a reckless indifference to safety. Hoff v. Edgar, 133 Neb. 403, 275 N.W. 602 (1937).

Death of traveling salesman who was shot by highwayman while traveling from one town to another in furtherance of employer's business, was compensable. Goodwin v. Omaha Printing Co., 131 Neb. 212, 267 N.W. 419 (1936).

Where employee was shot accidentally while engaged in aiding fellow workman who was accomplishing private purpose, injury did not arise out of employment and was not compensable hereunder. Bergantzel v. Union Transfer Co., 124 Neb. 200, 245 N.W. 593 (1932).

Subcontractor, whose employee is injured while engaged in line of his duties by actionable negligence of original contractor, is employer under Workmen's Compensation Act, and original contractor is third person within meaning of statute subrogating employer to employee's or dependents' rights. Boyd v. Humphreys, 117 Neb. 799, 223 N.W. 658 (1929).

48-111. Elective compensation; election; effect; exemption from liability; exception.

Such agreement or the election provided for in section 48-112 shall be a surrender by the parties thereto of their rights to any other method, form, or amount of compensation or determination thereof than as provided in the Nebraska Workers' Compensation Act, and an acceptance of all the provisions of such act, and shall bind the employee himself or herself, and for compensation for his or her death shall bind his or her legal representatives, his or her surviving spouse and next of kin, as well as the employer, and the legal representatives of a deceased employer, and those conducting the business of the employer during bankruptcy or insolvency. For the purpose of this section, if the employer carries a policy of workers' compensation insurance, the term employer shall also include the insurer. The exemption from liability given an employer and insurer by this section shall also extend to all employees, officers, or directors of such employer or insurer, but such exemption given an employee, officer, or director of an employer or insurer shall not apply in any case when the injury or death is proximately caused by the willful and unprovoked physical aggression of such employee, officer, or director.

Source:Laws 1913, c. 198, § 11, p. 582; R.S.1913, § 3652; C.S.1922, § 3034; C.S.1929, § 48-111; R.S.1943, § 48-111; Laws 1965, c. 277, § 1, p. 798; Laws 1975, LB 227, § 1; Laws 1986, LB 811, § 30.

Annotations

1. Remedy exclusivity

2. Exemption from liability

3. Miscellaneous

1. Remedy exclusivity

A public utility employee cannot maintain a separate suit against a city for an injury incurred on the job, because the Nebraska Workers' Compensation Act is the exclusive remedy of the injured public utility employee against the city where the public utility is an agency or department of the city. Hofferber v. City of Hastings, 275 Neb. 503, 747 N.W.2d 389 (2008).

This section and section 48-148 are routinely referred to by the Nebraska Supreme Court as the "exclusivity" provisions of the Nebraska Workers' Compensation Act. Bennett v. Saint Elizabeth Health Sys., 273 Neb. 300, 729 N.W.2d 80 (2007).

When read with section 48-110, this section mandates that an employee surrenders his or her right to any method, form, or amount of compensation or determination thereof against his or her employer or workers' compensation insurer other than that as provided in the Nebraska Workers' Compensation Act when that employee sustains an injury, arising out of and in the course of his or her employment, that is covered by the act. Ihm v. Crawford & Co., 254 Neb. 818, 580 N.W.2d 115 (1998).

This section limits available remedies for injuries even when a statute is violated or crime is committed if the illegal feature of the conduct is not the causative factor in the injury. Kopfman v. Freedom Drilling Co., 220 Neb. 323, 370 N.W.2d 89 (1985).

Where plaintiff elected to take under the statute, and was paid compensation benefits by insurer, he cannot recover anything more in contract or tort. Pettigrew v. Home Ins. Co., 191 Neb. 312, 214 N.W.2d 920 (1974).

In compensation cases, the statute prescribes the entire scope of the right and remedy, and the parties are limited to the adjective procedure either expressly or by necessary implication set forth therein. McIntosh v. Standard Oil Co., 121 Neb. 92, 236 N.W. 152 (1931).

Employee who, by not affirmatively rejecting, has elected to be bound by Workmen's Compensation Act, has surrendered right of action against employer for injury through machine being left unguarded in violation of factory act. Navracel v. Cudahy Packing Co., 109 Neb. 506, 191 N.W. 659, 193 N.W. 768 (1923).

2. Exemption from liability

Where a surviving husband's deceased wife's employer was immune under section 48-148 from the surviving husband's suit against it for bystander negligent infliction of emotional distress, a fellow employee of the deceased wife was also immune from the surviving husband's suit because under this section, the employer's immunity extended to the deceased wife's fellow employee. Pittman v. Western Engineering Co., 283 Neb. 913, 813 N.W.2d 487 (2012).

The exemption from liability given an employer and insurer by this section does not include employer's underinsured motorist carrier, even though said insurance carrier is also employer's workers' compensation carrier. Muller v. Tri-State Ins. Co., 252 Neb. 1, 560 N.W.2d 130 (1997).

The portion of this statute that exempts from liability negligent coemployees of an injured employee does not violate the open access provision of Neb. Const. art. I, sec. 13. Peterson v. Cisper, 231 Neb. 450, 436 N.W.2d 533 (1989).

3. Miscellaneous

Receipt and acceptance of workmen's compensation by city fireman does not bar his right to a fireman's pension. City of Lincoln v. Steffensmeyer, 134 Neb. 613, 279 N.W. 272 (1938).

Parent's right of action for injury to minor son is not barred by Workmen's Compensation Act. Allen v. Trester, 112 Neb. 515, 199 N.W. 841 (1924).

An employee who has failed to file an election not to come under act has no right of action for damages for negligence of employer. Nedela v. Mares Auto Co., 106 Neb. 883, 184 N.W. 885 (1921).

Whether pension received from city by widow of deceased policeman is compensation, is not decided. Good v. City of Omaha, 102 Neb. 654, 168 N.W. 639 (1918).

48-112. Elective compensation; presumption.

In the occupations described in section 48-106, all contracts of employment shall be presumed to have been made with reference and subject to the Nebraska Workers' Compensation Act. Every such employer and every employee is presumed to accept and come under such sections.

Source:Laws 1913, c. 198, § 12, p. 582; R.S.1913, § 3653; Laws 1917, c. 85, § 2, p. 199; C.S.1922, § 3035; C.S.1929, § 48-112; Laws 1935, c. 57, § 17, p. 196; C.S.Supp.,1941, § 48-112; R.S.1943, § 48-112; Laws 1971, LB 572, § 6; Laws 1986, LB 811, § 31.

Annotations

A public utility employee cannot maintain a separate suit against a city for an injury incurred on the job, because the Nebraska Workers' Compensation Act is the exclusive remedy of the injured public utility employee against the city where the public utility is an agency or department of the city. Hofferber v. City of Hastings, 275 Neb. 503, 747 N.W.2d 389 (2008).

Employee must be given notice under this section. Imus v. Bead Mountain Ranch, Inc., 183 Neb. 343, 160 N.W.2d 171 (1968).

Sale of seed corn upon a commission basis did not constitute salesman an employee. Bohy v. Pfister Hybrid Co., 179 Neb. 337, 138 N.W.2d 23 (1965).

Election of employee not to come under part II of act is binding on his dependents. White v. National Window Cleaning Co., 132 Neb. 155, 271 N.W. 341 (1937).

Where it was not disclosed whether contract was made before or after taking effect of act, presumption that act was applicable did not arise. Smith v. Fall, 122 Neb. 783, 241 N.W. 560 (1932).

Both parties are presumed to have contracted with reference to Workmen's Compensation Act and subject thereto. Dietz Club v. Niehaus, 110 Neb. 154, 193 N.W. 344 (1923); Avre v. Sexton, 110 Neb. 149, 193 N.W. 342 (1923); Nedela v. Mares Auto Co., 110 Neb. 108, 193 N.W. 345 (1923); Nosky v. Farmers Union Co-op. Assn., 109 Neb. 489, 191 N.W. 846 (1922).

Employer cannot take advantage of own fault to detriment of employee. Dietz Club v. Niehaus, 110 Neb. 154, 193 N.W. 344 (1923).

Noninsuring employer is liable either for damages at common law or compensation, at election of employee. Avre v. Sexton, 110 Neb. 149, 193 N.W. 342 (1923); Nedela v. Mares Auto Co., 110 Neb. 108, 193 N.W. 345 (1923).

Minor employee may elect under Workmen's Compensation Act. Navracel v. Cudahy Packing Co., 109 Neb. 506, 191 N.W. 659 (1922).

48-113. Repealed. Laws 1971, LB 572, § 33.

48-114. Employer, defined.

The following shall constitute employers subject to the Nebraska Workers' Compensation Act: (1) The state and every governmental agency created by it; and (2) every person, firm, or corporation, including any public service corporation, who is engaged in any trade, occupation, business, or profession as described in section 48-106, and who has any person in service under any contract of hire, express or implied, oral or written.

Source:Laws 1913, c. 198, § 14, p. 583; R.S.1913, § 3655; C.S.1922, § 3037; C.S.1929, § 48-114; R.S.1943, § 48-114; Laws 1971, LB 572, § 7; Laws 1986, LB 811, § 32.

Annotations

A finding that one party is an "employer" under this section and a finding that the other relevant party is an "employee" under section 48-115 are necessary to engage section 48-109, which binds the parties to the compensation schedule of the Nebraska Workers' Compensation Act. Kaiser v. Millard Lumber, Inc., 255 Neb. 943, 587 N.W.2d 875 (1999).

In order to transfer liability from the general employer of a loaned employee to a borrowing employer, there must be some consensual arrangement sufficient to create a new employer-employee relationship. Shamburg v. Shamburg, 153 Neb. 495, 45 N.W.2d 446 (1950).

Cement finisher and plasterer, engaged to do specific work, where nothing was said about pay and for previous work payment had been made at hourly rate, and where owner directed how work should be done, is an employee and not an independent contractor. Peterson v. Christenson, 141 Neb. 151, 3 N.W.2d 204 (1942).

General provisions of compensation act are applicable to the state and every governmental agency created by it. Dobesh v. Associated Asphalt Contractors, Inc., 138 Neb. 117, 292 N.W. 59 (1940).

Laborer hired by informal action of county board was county employee while working on county road project. Steward v. Deuel County, 137 Neb. 516, 289 N.W. 877 (1940).

Relation of employee and employer is not defeated by fact that employee receives the work under a plan of the federal government designed primarily to relieve unemployment. Hendershot v. City of Lincoln, 136 Neb. 606, 286 N.W. 909 (1939).

One buying and shipping poultry in carload lots to distant markets is engaged in business. Compensation law applies to caretaker of carload of live poultry being shipped to market in another state. Claus v. DeVere, 120 Neb. 812, 235 N.W. 450 (1931).

Subcontractor is employer of workman injured by negligence of original contractor, in line of duties for which he is employed by subcontractor. Boyd v. Humphreys, 117 Neb. 799, 223 N.W. 658 (1929).

Where employer, engaged in business in Nebraska, hires resident within state for services in another state incident to employer's business in Nebraska, Nebraska workmen's compensation law applies. Watts v. Long, 116 Neb. 656, 218 N.W. 410 (1928).

Corporation subject to Workmen's Compensation Act is liable as employer to injured workman employed by independent contractor, who has agreed to protect corporation from such liability, where contractor is not required to procure insurance for protection of employees. Sherlock v. Sherlock, 112 Neb. 797, 201 N.W. 645 (1924).

Pursuant to subdivision (2) of this section, employers subject to the Nebraska Workers' Compensation Act include every person, firm, or corporation who is engaged in any trade, occupation, business, or profession as described in section 48-106, and who has any person in service under any contract of hire, express or implied, oral or written. Morin v. Industrial Manpower, 13 Neb. App. 1, 687 N.W.2d 704 (2004).

48-115. Employee and worker, defined; inclusions; exclusions; waiver; election of coverage.

The terms employee and worker are used interchangeably and have the same meaning throughout the Nebraska Workers' Compensation Act. Such terms include the plural and all ages and both sexes. For purposes of the act, employee or worker shall be construed to mean:

(1) Every person in the service of the state or of any governmental agency created by it, including the Nebraska National Guard and members of the military forces of the State of Nebraska, under any appointment or contract of hire, expressed or implied, oral or written;

(2) Every person in the service of an employer who is engaged in any trade, occupation, business, or profession as described in section 48-106 under any contract of hire, expressed or implied, oral or written, including aliens and also including minors. Minors for the purpose of making election of remedies under the Nebraska Workers' Compensation Act shall have the same power of contracting and electing as adult employees.

As used in subdivisions (1) through (11) of this section, the terms employee and worker shall not be construed to include any person whose employment is not in the usual course of the trade, business, profession, or occupation of his or her employer.

If an employee subject to the Nebraska Workers' Compensation Act suffers an injury on account of which he or she or, in the event of his or her death, his or her dependents would otherwise have been entitled to the benefits provided by such act, the employee or, in the event of his or her death, his or her dependents shall be entitled to the benefits provided under such act, if the injury or injury resulting in death occurred within this state, or if at the time of such injury (a) the employment was principally localized within this state, (b) the employer was performing work within this state, or (c) the contract of hire was made within this state;

(3) Volunteer firefighters of any fire department of any rural or suburban fire protection district, city, village, or nonprofit corporation, which fire department is organized under the laws of the State of Nebraska. Such volunteers shall be deemed employees of such rural or suburban fire protection district, city, village, or nonprofit corporation while in the performance of their duties as members of such department and shall be considered as having entered and as acting in the regular course and scope of their employment from the instant such persons commence responding to a call to active duty, whether to a fire station or other place where firefighting equipment that their company or unit is to use is located or to any activities that the volunteer firefighters may be directed to do by the chief of the fire department or some person authorized to act for such chief. Such volunteers shall be deemed employees of such rural or suburban fire protection district, city, village, or nonprofit corporation until their return to the location from which they were initially called to active duty or until they engage in any activity beyond the scope of the performance of their duties, whichever occurs first.

Members of such volunteer fire department, before they are entitled to benefits under the Nebraska Workers' Compensation Act, shall be recommended by the chief of the fire department or some person authorized to act for such chief for membership therein to the board of directors of the rural or suburban fire protection district or nonprofit corporation, the mayor and city commission, the mayor and council, or the chairperson and board of trustees, as the case may be, and upon confirmation shall be deemed employees of such entity. Members of such fire department after confirmation to membership may be removed by a majority vote of the entity's board of directors or governing body and thereafter shall not be considered employees of such entity. Firefighters of any fire department of any rural or suburban fire protection district, nonprofit corporation, city, or village shall be considered as acting in the performance and within the course and scope of their employment when performing activities outside of the corporate limits of their respective districts, cities, or villages, but only if directed to do so by the chief of the fire department or some person authorized to act for such chief;

(4) Members of the Nebraska Emergency Management Agency, any city, village, county, or interjurisdictional emergency management organization, or any state emergency response team, which agency, organization, or team is regularly organized under the laws of the State of Nebraska. Such members shall be deemed employees of such agency, organization, or team while in the performance of their duties as members of such agency, organization, or team;

(5) Any person fulfilling conditions of probation, or community service as defined in section 29-2277, pursuant to any order of any court of this state who shall be working for a governmental body, or agency as defined in section 29-2277, pursuant to any condition of probation, or community service as defined in section 29-2277. Such person shall be deemed an employee of the governmental body or agency for the purposes of the Nebraska Workers' Compensation Act;

(6) Volunteer ambulance drivers and attendants and emergency care providers who are members of an emergency medical service for any county, city, village, rural or suburban fire protection district, nonprofit corporation, or any combination of such entities under the authority of section 13-303. Such volunteers shall be deemed employees of such entity or combination thereof while in the performance of their duties as ambulance drivers or attendants or emergency care providers and shall be considered as having entered into and as acting in the regular course and scope of their employment from the instant such persons commence responding to a call to active duty, whether to a hospital or other place where the ambulance they are to use is located or to any activities that the volunteer ambulance drivers or attendants or emergency care providers may be directed to do by the chief or some person authorized to act for such chief of the volunteer ambulance service or emergency care service. Such volunteers shall be deemed employees of such county, city, village, rural or suburban fire protection district, nonprofit corporation, or combination of such entities until their return to the location from which they were initially called to active duty or until they engage in any activity beyond the scope of the performance of their duties, whichever occurs first. Before such volunteer ambulance drivers or attendants or emergency care providers are entitled to benefits under the Nebraska Workers' Compensation Act, they shall be recommended by the chief or some person authorized to act for such chief of the volunteer ambulance service or emergency care service for membership therein to the board of directors of the rural or suburban fire protection district or nonprofit corporation, the governing body of the county, city, or village, or combination thereof, as the case may be, and upon such confirmation shall be deemed employees of such entity or combination thereof. Members of such volunteer ambulance or emergency care service after confirmation to membership may be removed by majority vote of the entity's board of directors or governing body and thereafter shall not be considered employees of such entity. Volunteer ambulance drivers and attendants and emergency care providers for any county, city, village, rural or suburban fire protection district, nonprofit corporation, or any combination thereof shall be considered as acting in the performance and within the course and scope of their employment when performing activities outside of the corporate limits of their respective county, city, village, or district, but only if directed to do so by the chief or some person authorized to act for such chief;

(7) Members of a law enforcement reserve force appointed in accordance with section 81-1438. Such members shall be deemed employees of the county or city for which they were appointed;

(8) Any offender committed to the Department of Correctional Services who is employed pursuant to section 81-1827. Such offender shall be deemed an employee of the Department of Correctional Services solely for purposes of the Nebraska Workers' Compensation Act;

(9) An executive officer of a corporation elected or appointed under the provisions or authority of the charter, articles of incorporation, or bylaws of such corporation who owns less than twenty-five percent of the common stock of such corporation or an executive officer of a nonprofit corporation elected or appointed under the provisions or authority of the charter, articles of incorporation, or bylaws of such corporation who receives annual compensation of more than one thousand dollars from such corporation. Such executive officer shall be an employee of such corporation under the Nebraska Workers' Compensation Act.

An executive officer of a corporation who owns twenty-five percent or more of the common stock of such corporation or an executive officer of a nonprofit corporation who receives annual compensation of one thousand dollars or less from such corporation shall not be construed to be an employee of the corporation under the Nebraska Workers' Compensation Act unless such executive officer elects to bring himself or herself within the provisions of the act. Such election shall be in writing and filed with the secretary of the corporation and with the workers' compensation insurer. Such election shall be effective upon receipt by the insurer for the current policy and subsequent policies issued by such insurer and shall remain in effect until the election is terminated, in writing, by the officer and the termination is filed with the insurer or until the insurer ceases to provide coverage for the corporation, whichever occurs first. Any such termination of election shall also be filed with the secretary of the corporation. If insurance is provided through a master policy or a multiple coordinated policy pursuant to the Professional Employer Organization Registration Act on or after January 1, 2012, then such election or termination of election shall also be filed with the professional employer organization. If coverage under the master policy or multiple coordinated policy ceases, then such election shall also be effective for a replacement master policy or multiple coordinated policy obtained by the professional employer organization and shall remain in effect for the new policy as provided in this subdivision. If such an executive officer has not elected to bring himself or herself within the provisions of the Nebraska Workers' Compensation Act pursuant to this subdivision and a health, accident, or other insurance policy covering such executive officer contains an exclusion of coverage if the executive officer is otherwise entitled to workers' compensation coverage, such exclusion is null and void as to such executive officer.

It is the intent of the Legislature that the changes made to this subdivision by Laws 2002, LB 417, shall apply to policies of insurance against liability arising under the act with an effective date on or after January 1, 2003, but shall not apply to any such policy with an effective date prior to January 1, 2003;

(10) Each individual employer, partner, limited liability company member, or self-employed person who is actually engaged in the individual employer's, partnership's, limited liability company's, or self-employed person's business on a substantially full-time basis who elects to bring himself or herself within the provisions of the Nebraska Workers' Compensation Act. Such election shall be in writing and filed with the workers' compensation insurer. Such election shall be effective upon receipt by the insurer for the current policy and subsequent policies issued by such insurer and shall remain in effect until the election is terminated, in writing, by such person and the termination is filed with the insurer or until the insurer ceases to provide coverage for the business, whichever occurs first. If insurance is provided through a master policy or a multiple coordinated policy pursuant to the Professional Employer Organization Registration Act on or after January 1, 2012, then such election or termination of election shall also be filed with the professional employer organization. If coverage under the master policy or multiple coordinated policy ceases, then such election shall also be effective for a replacement master policy or multiple coordinated policy obtained by the professional employer organization and shall remain in effect for the new policy as provided in this subdivision. If any such person who is actually engaged in the business on a substantially full-time basis has not elected to bring himself or herself within the provisions of the Nebraska Workers' Compensation Act pursuant to this subdivision and a health, accident, or other insurance policy covering such person contains an exclusion of coverage if such person is otherwise entitled to workers' compensation coverage, such exclusion shall be null and void as to such person; and

(11) An individual lessor of a commercial motor vehicle leased to a motor carrier and driven by such individual lessor who elects to bring himself or herself within the provisions of the Nebraska Workers' Compensation Act. Such election is made if he or she agrees in writing with the motor carrier to have the same rights as an employee only for purposes of workers' compensation coverage maintained by the motor carrier. For an election under this subdivision, the motor carrier's principal place of business must be in this state and the motor carrier must be authorized to self-insure liability under the Nebraska Workers' Compensation Act. Such an election shall (a) be effective from the date of such written agreement until such agreement is terminated, (b) be enforceable against such self-insured motor carrier in the same manner and to the same extent as claims arising under the Nebraska Workers' Compensation Act by employees of such self-insured motor carrier, and (c) not be deemed to be a contract of insurance for purposes of Chapter 44. Section 48-111 shall apply to the individual lessor and the self-insured motor carrier with respect to personal injury or death caused to such individual lessor by accident or occupational disease arising out of and in the course of performing services for such self-insured motor carrier in connection with such lease while such election is effective.

Source:Laws 1913, c. 198, § 15, p. 583; R.S.1913, § 3656; Laws 1917, c. 85, § 4, p. 201; Laws 1921, c. 122, § 1, p. 519; C.S.1922, § 3038; Laws 1927, c. 39, § 1, p. 169; C.S.1929, § 48-115; Laws 1933, c. 90, § 1, p. 362; Laws 1941, c. 93, § 1, p. 370; C.S.Supp.,1941, § 48-115; R.S.1943, § 48-115; Laws 1959, c. 222, § 1, p. 782; Laws 1961, c. 233, § 1, p. 689; Laws 1963, c. 282, § 1, p. 841; Laws 1967, c. 289, § 1, p. 788; Laws 1967, c. 291, § 1, p. 793; Laws 1969, c. 391, § 1, p. 1373; Laws 1973, LB 25, § 1; Laws 1973, LB 150, § 1; Laws 1973, LB 239, § 2; Laws 1975, LB 186, § 1; Laws 1976, LB 782, § 14; Laws 1977, LB 199, § 1; Laws 1981, LB 20, § 1; Laws 1983, LB 185, § 1; Laws 1984, LB 776, § 1; Laws 1986, LB 528, § 6; Laws 1986, LB 811, § 33; Laws 1987, LB 353, § 1; Laws 1993, LB 121, § 282; Laws 1994, LB 884, § 63; Laws 1996, LB 43, § 8; Laws 1997, LB 138, § 38; Laws 1997, LB 474, § 2; Laws 1998, LB 1010, § 1; Laws 1999, LB 216, § 1; Laws 2002, LB 417, § 2; Laws 2003, LB 332, § 1; Laws 2005, LB 238, § 1; Laws 2010, LB579, § 14; Laws 2020, LB1002, § 42.

Cross References

Professional Employer Organization Registration Act, see section 48-2701.

Annotations

1. State and governmental agencies

2. Employer's regular business

3. Casual employment

4. Independent contractor

5. Employee

6. Miscellaneous

1. State and governmental agencies

Member of posse called into service by sheriff was entitled to compensation. Anderson v. Bituminous Casualty Co., 155 Neb. 590, 52 N.W.2d 814 (1952).

To authorize recovery as a fireman under this section, it must appear: (1) That there was a regularly organized fire department as distinguished from an unorganized group; (2) that the injured workman was a member of such organization; and (3) that he was recommended by the chief of the fire department and confirmed by the governing board of the municipality. Clark v. Village of Hemingford, 147 Neb. 1044, 26 N.W.2d 15 (1947).

Terms employee and workman include every person in the service of the state or of any governmental agency created by it, under any appointment or contract of hire. Steward v. Deuel County, 137 Neb. 516, 289 N.W. 877 (1940).

While state intended to waive its sovereignty and to give consent to be sued under Workmen's Compensation Act, failure to provide manner of service of process, prior to 1940 amendment, rendered state immune. Anstine v. State, 137 Neb. 148, 288 N.W. 525 (1939).

Employee of city on W.P.A. project is an employee of city under compensation act. Hendershot v. City of Lincoln, 136 Neb. 606, 286 N.W. 909 (1939).

Fireman of city of Omaha was entitled to benefits of workmen's compensation law. Shandy v. City of Omaha, 127 Neb. 406, 255 N.W. 477 (1934).

Employee of county in connection with maintenance and protection of bridges had compensable status as employee. Davis v. Lincoln County, 117 Neb. 148, 219 N.W. 899 (1928).

Fireman employed by city has compensable status. City of Fremont v. Lea, 115 Neb. 565, 213 N.W. 820 (1927).

Employee of National Guard is entitled to compensation. Nebraska Nat. Guard v. Morgan, 112 Neb. 432, 199 N.W. 557 (1924).

Under former law, excluding from act those whose employment was not for the purpose of gain or profit, employees of governmental agencies were not entitled to compensation, such as a janitor employed by city school district. Ray v. School Dist. of Lincoln, 105 Neb. 456, 181 N.W. 140 (1920).

Police are protected by act. Rooney v. City of Omaha, 105 Neb. 447, 181 N.W. 143 (1920).

2. Employer's regular business

A carpenter employed by farmer to build machine shop on farm is not in the course of employer's occupation within meaning of Workmen's Compensation Act. Guse v. Wessels, 132 Neb. 41, 270 N.W. 665 (1937).

Hod-carrier injured in construction of apartment was engaged in employer's regular business. Bauer v. Anderson, 114 Neb. 326, 207 N.W. 508 (1926).

Painting building of wholesale drug corporation was work within usual course of trade. Sherlock v. Sherlock, 112 Neb. 797, 201 N.W. 645 (1924).

Preparing for encampment of National Guard was regular business. Nebraska Nat. Guard v. Morgan, 112 Neb. 432, 199 N.W. 557 (1924).

Caring for buildings owned by person engaged in other business is not regular business, and workman injured in repairing same was not entitled to compensation. Kaplan v. Gaskill, 108 Neb. 455, 187 N.W. 943 (1922).

3. Casual employment

Employee hired for a day at a time on any sale day by livestock sales barn was not a casual employee. Gruber v. Stickelman, 149 Neb. 627, 31 N.W.2d 753 (1948).

Where employment is casual and not within the trade, business, profession, or occupation of the employer, recovery cannot be had under Workmen's Compensation Act. McConnell v. Johnston, 139 Neb. 619, 298 N.W. 346 (1941).

The term casual is construed to mean occasional, coming at certain times without regularity, in distinction from stated or regular. Hiestand v. Ristau, 135 Neb. 881, 284 N.W. 756 (1939).

Workman cleaning snow from street intersections and suffering injury, was not casual employee and was entitled to compensation hereunder. Sentor v. City of Lincoln, 124 Neb. 403, 246 N.W. 924 (1933).

Employment was not casual. Sherlock v. Sherlock, 112 Neb. 797, 201 N.W. 645 (1924); Nebraska Nat. Guard v. Morgan, 112 Neb. 432, 199 N.W. 557 (1924); Nosky v. Farmers Union Co-op. Assn., 109 Neb. 489, 191 N.W. 846 (1922); Kaplan v. Gaskill, 108 Neb. 455, 187 N.W. 943 (1922); Nedela v. Mares Auto Co., 106 Neb. 883, 184 N.W. 885 (1921).

Where a person enters the employment of another to render a particular service that is not continuous or regular but only occasional or incidental to the business, the employment is casual. Petrow & Giannou v. Shewan, 108 Neb. 466, 187 N.W. 940 (1922).

Unloading coal cars at irregular intervals is casual employment. Bridger v. Lincoln Feed & Fuel Co., 105 Neb. 222, 179 N.W. 1020 (1920).

4. Independent contractor

Person who contracts to supply all labor, construct a barn according to a plan furnished, furnishes own tools, and receives a definite amount for the work done, is an independent contractor. Lowe v. Chicago Lumber Co., 135 Neb. 735, 283 N.W. 841 (1939).

Person who contracted to unload coal at specified price per ton, with right to employ his own assistants and determine how work should be done, was an independent contractor. Prescher v. Baker Ice Machine Co., 132 Neb. 648, 273 N.W. 48 (1937).

Independent contractor is defined. Hines v. Martel Telephone Co., 127 Neb. 398, 255 N.W. 233 (1934).

Solicitor for advertising contracts on percentage basis, paying own traveling expenses and working without control or direction from employer, was not employee within meaning of this act. Johnston v. Smith, 123 Neb. 716, 243 N.W. 894 (1932).

Evidence established that deceased, owner and manager of insurance agency, was independent contractor. Priest v. Business Men's Protective Assn., 117 Neb. 198, 220 N.W. 255 (1928).

Contractor for construction of highway is independent contractor. Potter v. Scotts Bluff County, 112 Neb. 318, 199 N.W. 507 (1924).

Plumber is an independent contractor, and not an employee within Workmen's Compensation Act. Petrow & Giannou v. Shewan, 108 Neb. 466, 187 N.W. 940 (1922).

One employed by a contractor as superintendent of construction is not an independent contractor. Otis Elevator Co. v. Miller & Paine, 240 F. 376 (8th Cir. 1917).

5. Employee

Officers of a corporation are within the definition of "employee" for purposes of the Nebraska workers' compensation law. Bituminous Casualty Corp. v. Deyle, 225 Neb. 82, 402 N.W.2d 859 (1987).

While one entering into a contract for hire in this state for work to be performed elsewhere, standing alone, may be a statutory employee under the provisions of subsection (2)(c) of this section, unless the employer, who is a nonresident, is performing work in this state, it is not a statutory employer as defined by sections 48-114 and 48-106(1). Absent a statutory employer, the provisions of section 48-101 have no application. Jensen v. Floair, 212 Neb. 740, 326 N.W.2d 19 (1982).

Under the facts, the claimant was too involved with the ownership and management of the business to be considered an employee. Williams v. Williams Janitorial Service, 207 Neb. 344, 299 N.W.2d 160 (1980).

Under the facts of this case, the Workmen's Compensation Court was clearly wrong in finding that the two defendants were joint employers of the plaintiff but was correct in finding an employer-employee relationship between one of the defendants and the plaintiff. White v. Western Commodities, Inc., 207 Neb. 75, 295 N.W.2d 704 (1980).

Employee, as distinguished from a servant generally, must serve under a contract of hire. Shamburg v. Shamburg, 153 Neb. 495, 45 N.W.2d 446 (1950).

Truck driver, owning and operating his own truck and paid according to amount of gravel hauled, but subject to order and directions of owner of gravel pit, was employee entitled to compensation. Westcoatt v. Lilley, 134 Neb. 376, 278 N.W. 854 (1938).

Volunteer firemen in village are not employees of village within workmen's compensation law until they have been recommended for membership by chief of the fire department and been confirmed by chairman and board of trustees. Eagle Indemnity Co. v. Village of Creston, 129 Neb. 850, 263 N.W. 220 (1935).

One engaged by village to care for swimming pool and park whose compensation was twenty dollars a week plus receipts from pool, was an employee. Schou v. Village of Hildreth, 127 Neb. 784, 257 N.W. 70 (1934).

Village marshal was not an employee within meaning of Workmen's Compensation Act. Suverkrubbe v. Village of Fort Calhoun, 127 Neb. 472, 256 N.W. 47 (1934).

Salesman selling on a commission is an employee and not independent contractor. Aeschleman v. Haschenburger Co., 127 Neb. 207, 254 N.W. 899 (1934).

Truck owner, engaged by contractor furnishing gravel for county highway, was not independent contractor but an employee, and county letting contract without requiring contractor to furnish insurance policy protecting contractor's employees, was jointly liable with contractor to its employees who received compensable injury. Standish v. Larsen-Merryweather Co., 124 Neb. 197, 245 N.W. 606 (1932).

Where plaintiff did repair work on call from time to time for hardware store, under its orders and direction, although he furnished his own tools and equipment, he was an employee within meaning of this section. Cole v. Minnick, 123 Neb. 871, 244 N.W. 785 (1932).

Whether party is employee or independent contractor must be determined from facts of particular case. Truck driver hauling gravel for county highway was an employee hereunder. Showers v. Lund, 123 Neb. 56, 242 N.W. 258 (1932).

Caretaker of live poultry being shipped to market in another state is employee, not independent contractor. Claus v. DeVere, 120 Neb. 812, 235 N.W. 450 (1931).

Every person in the employ of the state or a governmental agency thereof is an employee within the meaning of the act. Eidenmiller v. State, 120 Neb. 430, 233 N.W. 447 (1930).

Where workman engaged in dragging roads for county was injured by horse while caring for it during noon hour, accident arose out of and in course of employment and was compensable hereunder. Speas v. Boone County, 119 Neb. 58, 227 N.W. 87 (1929).

Pursuant to subsection (2) of this section, illegal aliens are included in the definition of employees or workers. Visoso v. Cargill Meat Solutions, 18 Neb. App. 202, 778 N.W.2d 504 (2009).

Pursuant to subdivision (2) of this section, the terms "employee" and "worker" do not include any person whose employment is not in the usual course of the trade, business, profession, or occupation of his or her employer. Morin v. Industrial Manpower, 13 Neb. App. 1, 687 N.W.2d 704 (2004).

Pursuant to subdivision (2) of this section, under the Nebraska Workers' Compensation Act, an "employee" or "worker" is defined as every person in the service of an employer who is engaged in any trade, occupation, business, or profession as described in section 48-106 under any contract of hire, expressed or implied, oral or written. Morin v. Industrial Manpower, 13 Neb. App. 1, 687 N.W.2d 704 (2004).

6. Miscellaneous

An employee's illegal residence or work status does not bar an award of indemnity for permanent total loss of earning capacity. Moyera v. Quality Pork Internat., 284 Neb. 963, 825 N.W.2d 409 (2013).

Where a claimant is under a conditional offer of employment at the time of an alleged injury, the Workers' Compensation Court does not have jurisdiction, pursuant to this section, to make a determination of compensability. Gebhard v. Dixie Carbonic, 261 Neb. 715, 625 N.W.2d 207 (2001).

A finding that one party is an "employer" under section 48-114 and a finding that the other relevant party is an "employee" under this section are necessary to engage section 48-109, which binds the parties to the compensation schedule of the Nebraska Workers' Compensation Act. Kaiser v. Millard Lumber, Inc., 255 Neb. 943, 587 N.W.2d 875 (1999).

Subsection (2) of this section recognizes that a contract for hire may be expressed or implied, including a contract with minors. Larson v. Hometown Communications, Inc., 248 Neb. 942, 540 N.W.2d 339 (1995).

Under subsection (2) of this section, the right to recover workers' compensation benefits is in the employee, even if the employee is a minor. Lawson v. Smith, 241 Neb. 639, 489 N.W.2d 566 (1992).

Under the facts of this case, the claimant was a loaned employee but there was no consensual relationship sufficient to create a new employer-employee relationship. Therefore, the lending employer remained liable for his workmen's compensation. B & C Excavating Co. v. Hiner, 207 Neb. 248, 298 N.W.2d 155 (1980).

Minor driving truck loaded with crude oil was legally permitted to work. Krajeski v. Beem, 157 Neb. 586, 60 N.W.2d 651 (1953).

A working partner is not entitled to compensation as an employee. Rasmussen v. Trico Feed Mills, 148 Neb. 855, 29 N.W.2d 641 (1947).

Officer of township engaging in removal of obstructions from highway although not part of his official duties, was not employee hereunder. Vandenburg v. Center Township, 123 Neb. 544, 243 N.W. 636 (1932), affirmed on rehearing, 124 Neb. 790, 248 N.W. 310 (1933).

Salesman, injured in Iowa, where he was hired, his work being directed from Omaha office, was covered by Nebraska Workmen's Compensation Act. Skelly Oil Co. v. Gaugenbaugh, 119 Neb. 698, 230 N.W. 688 (1930).

Minor employee, between fourteen and sixteen, may maintain action at common law for injuries while employed in laundry, against employer failing to procure employment certificate, and such minor need not have been classified in order to sue. Benner v. Evans Laundry Co., 117 Neb. 701, 222 N.W. 630 (1929).

Nebraska Workmen's Compensation Act does not apply to workman engaged in Nebraska by Kansas employer to work in Kansas, where injured. Watts v. Long, 116 Neb. 656, 218 N.W. 410 (1928).

Corporation subject to Workmen's Compensation Act is liable to workman employed by independent contractor, where insurance was not required. Sherlock v. Sherlock, 112 Neb. 797, 201 N.W. 645 (1924).

Provision of this section restricting parent's right of recovery for injuries to minor was unconstitutional, as not germane. Allen v. Trester, 112 Neb. 515, 199 N.W. 841 (1924).

The record contained sufficient evidence to support the trial judge's conclusion that the worker was self-employed and that the worker did not comply with subsection (10) of this section. Nerison v. National Fire Ins. Co. of Hartford, 17 Neb. App. 161, 757 N.W.2d 21 (2008).

48-115.01. Employee; extend coverage; when.

Sections 48-115, 48-115.01, and 48-146 shall be so construed as to effectuate their general purpose to extend workers' compensation coverage to additional employees and officers as soon as the same may be done under the Constitution of Nebraska.

Source:Laws 1967, c. 291, § 3, p. 796; Laws 1986, LB 811, § 34.

48-115.02. Lessor of commercial motor vehicles; agreement with self-insured motor carrier; authorized; effect.

An employer who is a lessor of one or more commercial motor vehicles leased to a self-insured motor carrier, may agree with the self-insured motor carrier that benefits under the Nebraska Workers' Compensation Act with respect to personal injury or death to the driver or drivers employed by such lessor caused by accident or occupational disease arising out of and in the course of performing services for the self-insured motor carrier in connection with such lease shall be paid by the self-insured motor carrier in the same manner and to the same extent as benefits under the Nebraska Workers' Compensation Act are paid to or on behalf of employees of the self-insured motor carrier. To participate in an agreement under this section the motor carrier's principal place of business must be in this state and the motor carrier must be authorized to self-insure liability under the Nebraska Workers' Compensation Act.

Such an agreement shall (1) constitute compliance by such lessor with the requirements of section 48-145 with respect to such driver or drivers, but only insofar as liability for personal injury or death to the driver or drivers employed by such lessor caused by accident or occupational disease arising out of and in the course of performing services for such self-insured motor carrier in connection with such lease is concerned, (2) be enforceable against such self-insured motor carrier in the same manner and to the same extent as claims arising under the Nebraska Workers' Compensation Act by employees of such self-insured motor carrier, and (3) not be deemed to be a contract of insurance for purposes of Chapter 44. Section 48-111 shall apply to such lessor, the driver or drivers employed by such lessor, and the self-insured motor carrier with respect to personal injury or death caused to such driver or drivers by accident or occupational disease arising out of and in the course of performing services for such self-insured motor carrier in connection with such lease while such an agreement is effective.

Source:Laws 1997, LB 474, § 3.

48-116. Employers; evasion of law; what constitutes; exceptions.

Any person, firm, or corporation creating or carrying into operation any scheme, artifice, or device to enable him or her, them, or it to execute work without being responsible to the workers for the provisions of the Nebraska Workers' Compensation Act shall be included in the term employer, and with the immediate employer shall be jointly and severally liable to pay the compensation herein provided for and be subject to all the provisions of such act. This section, however, shall not be construed as applying to an owner who lets a contract to a contractor in good faith, or a contractor, who, in good faith, lets to a subcontractor a portion of his or her contract, if the owner or principal contractor, as the case may be, requires the contractor or subcontractor, respectively, to procure a policy or policies of insurance from an insurance company licensed to write such insurance in this state, which policy or policies of insurance shall guarantee payment of compensation according to the Nebraska Workers' Compensation Act to injured workers.

Source:Laws 1913, c. 198, § 16, p. 584; R.S.1913, § 3657; C.S.1922, § 3039; C.S.1929, § 48-116; R.S.1943, § 48-116; Laws 1986, LB 811, § 35.

Annotations

1. Scheme, artifice, or device

2. Carrying of insurance

3. Effect of election

4. Miscellaneous

1. Scheme, artifice, or device

There was insufficient evidence presented by the plaintiff to prove that the defendant employed a scheme, artifice, or device by either conferring the actual employer with apparent authority through manifestations to the homeowner or entering a joint venture with the actual employer. Kohout v. Bennett Constr., 296 Neb. 608, 894 N.W.2d 821 (2017).

There was no evidence in this case that the contract between the parties that controlled their relationship was a sham to conceal the true arrangement of the parties. Spulak v. Estep, 216 Neb. 523, 344 N.W.2d 475 (1984).

School (an owner of property on which the work is performed) was not liable as a statutory employer by virtue of section 48-116 where the work being done by the independent contractor would not ordinarily be done by employees of the owner in view of the owner's past practices and the practices of employers in comparable businesses, regardless of whether the owner's employees could have done the work. Overruling a portion of Sherlock v. Sherlock, 112 Neb. 797, 201 N.W. 645 (1924). Franklin v. Pawley, 215 Neb. 624, 340 N.W.2d 156 (1983).

Dealer's agreement for sale of seed corn was not an arrangement to evade provisions of Workmen's Compensation Act. Bohy v. Pfister Hybrid Co., 179 Neb. 337, 138 N.W.2d 23 (1965).

Burden is on workman to prove by a preponderance of evidence that employer set up a scheme, artifice, or device to defeat provisions of workmen's compensation law. O'Brien v. Barnard, 145 Neb. 596, 17 N.W.2d 611 (1945).

Owner of residence, who employs workman to remodel and move it, is not an employer within the Workmen's Compensation Act, even though the sole income of the owner is derived from rental of property. Retzlaff v. Dickinson, 141 Neb. 136, 2 N.W.2d 922 (1942).

Where liability would not attach if employment was direct, proviso constituting as employer person using scheme, artifice, or device to escape responsibility does not apply. McConnell v. Johnston, 139 Neb. 619, 298 N.W. 346 (1941).

Where city furnished materials and equipment for a W.P.A. project, but had no authority to control the details of the work or to direct the mode and manner of doing it, the arrangement did not constitute a device to enable the city to execute work without being responsible. Williams v. City of Wymore, 138 Neb. 256, 292 N.W. 726 (1940).

Scheme, artifice, or device do not necessarily imply fraud, and agreement of independent contractor to protect corporation employing him from liability for injuries to employees is a device. Sherlock v. Sherlock, 112 Neb. 797, 201 N.W. 645 (1924).

A statutory employer is a principal who employs a scheme, artifice, or device to avoid workmen's compensation law. Petznick v. United States, 575 F.Supp. 698 (D. Neb. 1983).

2. Carrying of insurance

When one employs an uninsured contractor, he becomes an employer under the terms of the Workmen's Compensation Act, and is entitled to the protection of the provisions thereof as to what acts are covered and what are not. Wilbur v. Adams Lumber Co., 140 Neb. 48, 299 N.W. 268 (1941).

The liability of a third party for failing to require a contractor to carry compensation insurance is an imputed one, and separate notice of accident and claim for compensation from that given to contractor is not required. Dobesh v. Associated Asphalt Contractors, Inc., 138 Neb. 117, 292 N.W. 59 (1940).

An unperformed agreement by contractor to carry compensation insurance does not relieve owner from liability. Hiestand v. Ristau, 135 Neb. 881, 284 N.W. 756 (1939).

Owner of building, used in conducting owner's business, who contracts with contractor for certain repairs to said building is an employer within the terms of statute unless it be shown that the contractor was required to procure compensation insurance for protection of his employees. New Masonic Temple Assn. v. Globe Indemnity Co., 134 Neb. 731, 279 N.W. 475 (1938).

Owner of building used in conducting owner's business who enters into contract with contractor for certain repairs is an employer within meaning of law unless it be shown that the contractor was required to procure compensation insurance for protection of his employees. Jones v. Rossbach Coal Co., 130 Neb. 302, 264 N.W. 877 (1936).

Where evidence failed to establish that minor son had been emancipated or that direct contract of hire existed between father and son, county which had contracted with father to do road work was not liable to minor because it failed to require the father to carry insurance. Holt County v. Mullen, 126 Neb. 102, 252 N.W. 799 (1934).

County letting contract without requiring contractor to furnish insurance policy protecting contractor's employees, is jointly liable with contractor to its employee who received compensable injury. Standish v. Larsen-Merryweather Co., 124 Neb. 197, 245 N.W. 606 (1932).

Section does not include owner who requires contractor to take out compensation insurance, or contractor who requires subcontractor to do so. Matthews v. G. A. Crancer Co., 117 Neb. 805, 223 N.W. 661 (1929).

Contention that defendants became employer within compensation law, by failure to require insurance to be taken out, was not sustained by evidence. Petrow & Giannou v. Shewan, 108 Neb. 466, 187 N.W. 940 (1922).

3. Effect of election

An employee who has properly elected not to come under part II of the Workmen's Compensation Act, cannot recover compensation from owner and owner does not become employer, even though owner does not require immediate employer to carry compensation insurance. White v. National Window Cleaning Co., 132 Neb. 155, 271 N.W. 341 (1937).

4. Miscellaneous

The party claiming to be an employee under this section has the burden of proof to show that he or she is in fact an employee of the subcontractor and that the principal contractor has failed to ensure that the subcontractor carries workers' compensation insurance. Aboytes-Mosqueda v. LFA Inc., 306 Neb. 277, 944 N.W.2d 765 (2020).

The statutory employer provisions of this section do not supersede the exemption provisions of section 48-106(2). Nussbaum v. Wright, 217 Neb. 712, 350 N.W.2d 559 (1984).

General test of whether work being done by an independent contractor is within this section is whether the work would ordinarily be done by employees of the owner in view of the owner's past practices and the practices of employers in comparable businesses. Rogers v. Hansen, 211 Neb. 132, 317 N.W.2d 905 (1982).

A statutory employer who pays benefits under the joint and several liability created by this section is entitled to indemnity from the actual employer. Duffy Brothers Constr. Co. v. Pistone Builders, Inc., 207 Neb. 360, 299 N.W.2d 170 (1980).

Immediate employer is not a necessary party to a proceeding against a statutory employer. Gardner v. Kothe, 172 Neb. 364, 109 N.W.2d 405 (1961).

Independent contractor employing farm labor was not subject to act. Keith v. Wilson, 165 Neb. 58, 84 N.W.2d 192 (1957).

This section has no application to the relation of a bona fide vendor and vendee. Heider v. Stoughton, 150 Neb. 741, 35 N.W.2d 814 (1949).

County was employer of workman on county road project, even though workman was hired by foreman employed by city and even though no record was made of oral authorization to employ help. Steward v. Deuel County, 137 Neb. 516, 289 N.W. 877 (1940).

Owners of building may be liable as third persons for death of workman through their negligence while in service of lessee's contractor. Tralle v. Hartman Furn. & Carpet Co., 116 Neb. 418, 217 N.W. 952 (1928).

48-117. Employers; evasion of law; compensation; calculation.

When compensation is claimed from or proceedings taken against a person, firm, or corporation under section 48-116, the compensation shall be calculated with reference to the wage the worker was receiving from the person by whom he or she was immediately employed at the time of the injury.

Source:Laws 1913, c. 198, § 17, p. 585; R.S.1913, § 3658; C.S.1922, § 3040; C.S.1929, § 48-117; R.S.1943, § 48-117; Laws 1986, LB 811, § 36.

Annotations

Where the wage is certain, employment is continuous, and contract of hire is definite, compensation will be computed according to the terms of contract in force at the time of the accident. Redfern v. Safeway Stores, Inc., 145 Neb. 288, 16 N.W.2d 196 (1944).

Injured workman, working only one day in week, was only entitled to compensation upon basis of amount actually paid. Johnsen v. Benson Food Center, 143 Neb. 421, 9 N.W.2d 749 (1943).

Receipt and acceptance of workmen's compensation by city fireman does not deprive him of right to fireman's pension. City of Lincoln v. Steffensmeyer, 134 Neb. 613, 279 N.W. 272 (1938).

Where contract was for thirty hours a week at fifty cents an hour, compensation award on basis of weekly wage of thirty dollars was error. Drum v. Omaha Steel Works, 129 Neb. 273, 261 N.W. 351 (1935).

48-118. Third-party claims; subrogation.

When a third person is liable to the employee or to the dependents for the injury or death of the employee, the employer shall be subrogated to the right of the employee or to the dependents against such third person. The recovery by such employer shall not be limited to the amount payable as compensation to such employee or dependents, but such employer may recover any amount which such employee or his or her dependents should have been entitled to recover.

Any recovery by the employer against such third person, in excess of the compensation paid by the employer after deducting the expenses of making such recovery, shall be paid forthwith to the employee or to the dependents and shall be treated as an advance payment by the employer on account of any future installments of compensation.

Nothing in the Nebraska Workers' Compensation Act shall be construed to deny the right of an injured employee or of his or her personal representative to bring suit against such third person in his or her own name or in the name of the personal representative based upon such liability, but in such event an employer having paid or paying compensation to such employee or his or her dependents shall be made a party to the suit for the purpose of reimbursement, under the right of subrogation, of any compensation paid.

Source:Laws 1913, c. 198, § 18, p. 585; R.S.1913, § 3659; C.S.1922, § 3041; Laws 1929, c. 135, § 1, p. 489; C.S.1929, § 48-118; R.S.1943, § 48-118; Laws 1963, c. 283, § 1, p. 844; Laws 1986, LB 811, § 37; Laws 1994, LB 594, § 1; Laws 1997, LB 854, § 1; Laws 2000, LB 1221, § 2; Laws 2005, LB 13, § 2; Laws 2005, LB 238, § 2.

Annotations

1. Who is third person

2. Refusal of employer to sue

3. Suit by employee

4. Subrogation

5. Choice of law

6. Notice provisions

7. Miscellaneous

1. Who is third person

There is a strong presumption that a parent company is not the employer of its subsidiary’s employees. Bacon v. DBI/SALA, 284 Neb. 579, 822 N.W.2d 14 (2012).

“Third person” under the Nebraska Workers’ Compensation Act includes any person other than the employer or those whom the Nebraska Workers’ Compensation Act makes an employer. Bacon v. DBI/SALA, 284 Neb. 579, 822 N.W.2d 14 (2012).

“Third person” under the Nebraska Workers’ Compensation Act is an entity with which there is no employer-employee relationship. Bacon v. DBI/SALA, 284 Neb. 579, 822 N.W.2d 14 (2012).

An employee can bring suit against a third party at any time, provided that his or her employer be made a party if that employer has paid compensation benefits to the employee. Polinski v. Omaha Pub. Power Dist., 251 Neb. 14, 554 N.W.2d 636 (1996).

Employee may sue third person for injuries received, but employer having paid compensation must be made a party. Niemeyer v. Forburger, 172 Neb. 876, 112 N.W.2d 276 (1961).

Employer may be made party to suit by employee against third person. Vontress v. Ready Mixed Concrete Co., 170 Neb. 789, 104 N.W.2d 331 (1960).

Owner requiring contractor to take out compensation insurance is third person as respects employees of contractor. Matthews v. G. A. Crancer Co., 117 Neb. 805, 223 N.W. 661 (1929).

Subcontractor is immediate employer of his workmen and all others are third parties even though interested in enterprise. Boyd v. Humphreys, 117 Neb. 799, 223 N.W. 658 (1929).

A third-party settlement is deemed compensation. Thomas v. Lincoln Public Schools, 9 Neb. App. 965, 622 N.W.2d 705 (2001).

2. Refusal of employer to sue

On refusal by employer liable for compensation to sue third person for negligence resulting in injury, not death, of employee, latter may sue in own behalf, and consent by employer to employee's action is equivalent to refusal. Luckey v. Union P. R. R. Co., 117 Neb. 85, 219 N.W. 802 (1928).

Right to bring action rests with employer until he has neglected or refused to sue. O'Donnell v. Baker Ice Mach. Co., 114 Neb. 9, 205 N.W. 561 (1925).

3. Suit by employee

An employer's vested subrogation interest in settlement proceeds is not extinguished when the injured employee pursued the claim against the alleged tort-feasor out of time. Combined Insurance v. Shurter, 258 Neb. 958, 607 N.W.2d 492 (2000).

If an employer is not joined in an action, there must be a recovery before the nonjoined employer is liable for attorney fees; joined parties may be liable for costs even if there is no recovery. In apportioning cost pursuant to this section, the critical factor is not whether there is a recovery, but whether the employer has participated sufficiently in the litigation to be considered "joined". Janssen v. Tomahawk Oil Co., Ltd., 254 Neb. 370, 576 N.W.2d 787 (1998).

Employee's right of action against third persons for negligence survives death of wrongdoer. Rehn v. Bingaman, 151 Neb. 196, 36 N.W.2d 856 (1949).

Section does not prevent employee from suing third party responsible for his injury in his own name but requires that employer, having paid compensation, be made party. Oliver v. Nelson, 128 Neb. 160, 258 N.W. 69 (1934).

If workman, injured by negligence of third party, obtains assignment from employer of right to bring action, it may be maintained by workman directly against third party. Thomas v. Otis Elevator Co., 103 Neb. 401, 172 N.W. 53 (1919).

Employee has right to sue third party, though he has settled with employer for compensation, but must make employer a party. Muncaster v. Graham Ice Cream Co., 103 Neb. 379, 172 N.W. 52 (1919).

4. Subrogation

An employer’s right to a future credit against an employee’s recovery in an action related to a workers’ compensation claim does not depend upon who brought the action which led to the employee’s recovery or who happens to “recover” first. Bacon v. DBI/SALA, 284 Neb. 579, 822 N.W.2d 14 (2012).

The beneficent purposes of the Nebraska Workers’ Compensation Act do not require narrow interpretation of an employer’s statutory subrogation rights; the act’s beneficent purposes are to provide an injured worker with prompt relief from the adverse economic effects caused by a work-related injury or occupational disease, and concern the employee’s ability to promptly obtain workers’ compensation benefits, not the employee’s ability to additionally retain recovery against negligent third parties in tort actions. Bacon v. DBI/SALA, 284 Neb. 579, 822 N.W.2d 14 (2012).

The policies behind the Nebraska Workers’ Compensation Act favor a liberal construction in favor of the employer’s statutory right to subrogate against culpable third parties; workers’ compensation acts generally seek to balance the rights of injured workers against the costs to the businesses that provide employment, and in order to reach this balance, most acts liberally allow employers to shift liability onto third parties whenever possible. Bacon v. DBI/SALA, 284 Neb. 579, 822 N.W.2d 14 (2012).

The workers’ compensation subrogation statute was not intended to draw a distinction which would grant the right to a future credit in recovery from actions brought by the employer, but deny that right in actions brought by the employee; such a distinction would be arbitrary insofar as it would depend on who first brought suit, and insofar as the timing of the suit would change the amount of recovery. Bacon v. DBI/SALA, 284 Neb. 579, 822 N.W.2d 14 (2012).

This section grants an employer who has paid workers' compensation benefits to an employee injured as a result of the actions of a third party a subrogation interest against payments made by the third party. Burns v. Nielsen, 273 Neb. 724, 732 N.W.2d 640 (2007).

When an employer, rather than taking advantage of its opportunity to have the settlement set aside, seeks to share in the settlement proceeds under this section, the employer is obligated to pay a reasonable portion of the employee's attorney fees under this section, and any defect in the notice provided to the employer is waived. Turney v. Werner Enters., Inc., 260 Neb. 440, 618 N.W.2d 437 (2000).

An amendment to this section allowing an equitable distribution between an injured employee and the employer or insurer of a settlement from a third-party is substantive rather than procedural in nature; thus, the statute as it was in effect at the time of the employee's injury controls, and the employee is not entitled to an equitable distribution of the settlement. Jackson v. Branick Indus., Inc., 254 Neb. 950, 581 N.W.2d 53 (1998).

Ordinarily, one who creates a fund which benefits a workers' compensation subrogee is entitled to reimbursement for that portion of a reasonable attorney fee attributable to the benefit conferred; however, a workers' compensation subrogee is not liable for any portion of a fee exacted by an attorney who, because of a conflict of interest, abandoned protection of the subrogee's rights. Lawson v. Smith, 241 Neb. 639, 489 N.W.2d 566 (1992).

The right of an employer to subrogation for amounts paid to the injured employee as workmen's compensation payments is well established in Nebraska statutory law. Turner v. Metro Area Transit, 220 Neb. 189, 368 N.W.2d 809 (1985).

Ordinarily a division of attorneys' fees is not required where the subrogation interest of the employer or its insurance carrier is fully and adequately represented by its own counsel and where the services of the employee's attorney were not relied upon to effect the subrogation recovery. Schulz v. General Wholesale Coop. Co., Inc., 195 Neb. 410, 238 N.W.2d 463 (1976).

Subrogated interest of employer for computation and allocation of fees and expenses is measured by the workmen's compensation liability relieved or discharged by recovery against third party. Gillotte v. Omaha Public Power Dist., 189 Neb. 444, 203 N.W.2d 163 (1973).

This section requires the joinder of an employer for purposes of subrogation and reimbursement. Rogers v. Western Electric Co., 179 Neb. 359, 138 N.W.2d 423 (1965).

Joinder of employer by employee in suit against third party is required for purpose of subrogation and reimbursement. American Province Real Estate Corp. v. Metropolitan Utilities Dist., 178 Neb. 348, 133 N.W.2d 466 (1965).

Employer was made party defendant in action by employee against third party because of right of subrogation. Singles v. Union P. R.R. Co., 174 Neb. 816, 119 N.W.2d 680 (1963).

Compensation carrier, who becomes obligated for compensation payments, may seek reimbursement. Fisher v. Chicago, B. & Q. R.R., 171 Neb. 804, 107 N.W.2d 740 (1961).

Subcontractor made party defendant for purpose of subrogation. Rumsey v. Schollman Bros. Co., 156 Neb. 251, 55 N.W.2d 668 (1952).

This section is for the benefit of the employer so he may recover from third person. Danner v. Walters, 154 Neb. 506, 48 N.W.2d 635 (1951).

Where a party made a defendant for sole purpose of protecting his subrogation rights adopts and seeks to maintain the position of a plaintiff, a judgment for costs may be rendered against him. Rehn v. Bingaman, 152 Neb. 171, 40 N.W.2d 673 (1950).

Characteristics of statutory subrogation and equitable subrogation are the same. Burks v. Packer, 143 Neb. 373, 9 N.W.2d 471 (1943).

Employer was made party defendant to protect subrogation rights. Jones v. Rossbach Coal Co., 130 Neb. 302, 264 N.W. 877 (1936); Erwin v. Watson Bros. Transfer Co., 129 Neb. 64, 260 N.W. 565 (1935); McDonnell v. Wasenmiller, 74 F.2d 320 (8th Cir. 1934).

Measure of employer's right of subrogation hereunder is reimbursement from third person whose negligence caused employee's death, for full amount of compensation paid by employer to employee's dependent, together with the expenses thereof. Goeres v. Goeres, 124 Neb. 720, 248 N.W. 75 (1933).

Employer has statutory right of subrogation to extent of amounts properly paid under workmen's compensation law, plus expenses of recovering such damages from third person. Bronder v. Otis Elevator Co., 121 Neb. 581, 237 N.W. 671 (1931).

Employer must be joined as defendant by virtue of right of subrogation. Vandervert v. Robey, 118 Neb. 395, 225 N.W. 36 (1929).

Subrogation hereunder is not barred by employer's concurrent negligence. Graham v. City of Lincoln, 106 Neb. 305, 183 N.W. 569 (1921).

If employee settles with third person, by whose negligence he was injured, employer is entitled to have amount applied on compensation, and notwithstanding settlement, employer has right to recover against negligent third party to extent of compensation awarded. Hugh Murphy Const. Co. v. Serck, 104 Neb. 398, 177 N.W. 747 (1920).

Employer or carrier does not have subrogation rights against the independent contractual rights which the employee might have against an insurance company. Booth v. Seaboard Fire & Marine Ins. Co., 285 F.Supp. 920 (D. Neb. 1968), rev'd on other grounds, 431 F.2d 212 (8th Cir. 1970).

Employer was made party to determine subrogation rights. Solomon Dehydrating Co. v. Guyton, 294 F.2d 439 (8th Cir. 1961).

The fact that employer's negligence concurred with negligence of third person does not bar employer's right to subrogation. Otis Elevator Co. v. Miller & Paine, 240 F. 376 (8th Cir. 1917).

5. Choice of law

An employer's or insurer's subrogation interest in an injured employee's recovery from a third-party tort-feasor is determined by the law of the state in which the employee obtained workers' compensation benefits. Turney v. Werner Enters., Inc., 260 Neb. 440, 618 N.W.2d 437 (2000).

The Workers' Compensation Court lacks jurisdiction to resolve disputes between employers and employees concerning the management of suits against third parties brought in courts of general jurisdiction or the division of funds obtained from a suit against a third party in a court of general jurisdiction. Because the existence of federal jurisdiction is a matter of federal law rather than state law, this section cannot, by itself, confer jurisdiction on federal courts to resolve subrogation disputes between employers and employees. The term "district court", as it is used in this section, does not exclusively mean federal district courts which have been conferred with jurisdiction by some federal statute; rather, it includes the district courts of the State of Nebraska as well. Miller v. M.F.S. York/Stormor, 257 Neb. 100, 595 N.W.2d 878 (1999).

This section does not take away or abridge the right of removal to federal court if that right otherwise exists. State v. Northwestern Engineering Co., 69 F.Supp. 347 (D. Neb. 1946).

6. Notice provisions

A reading of this section makes it quite clear that strict compliance with the written, certified, or registered mail notice provision was not intended to be mandatory and jurisdictional, and such notice may be waived in writing or may be implied from unequivocal conduct. The employer, through its "unequivocal conduct" of seeking to share in the settlement proceeds, has ratified the employee's settlement with the tort-feasor and thereby waived the objections it might have had to such settlement based on a lack of notice under this section. Combined Insurance v. Shurter, 258 Neb. 958, 607 N.W.2d 492 (2000).

Substantial compliance with the notice requirement of this section is sufficient, and the requirement is met when the other party receives actual notice of a third-party claim and an opportunity to join in its prosecution. Where subrogated employer did not receive notice of certain discovery proceedings, but did have actual knowledge of the lawsuit in which the third-party claim was asserted, notice requirement of statute deemed satisfied. The notice required by this section may be waived in writing, or waiver may be implied from unequivocal conduct. The extent of a subrogated employer's participation in third-party litigation initiated by an injured employee is the critical factor in determining whether the employer has joined the action within the meaning of this section. Subrogated employer failed to join in prosecution of injured employee's third-party lawsuit where employer did nothing more than file an answer and respond to two sets of interrogatories. Austin v. Scharp, 258 Neb. 410, 604 N.W.2d 807 (1999).

The purpose of the 1963 amendment to this section would allow the attorney fees to be prorated and one party must give to the other party notice of filing of suit. Turner v. Metro Area Transit, 220 Neb. 189, 368 N.W.2d 809 (1985).

Substantial rather than literal compliance with notice provisions of this section is sufficient and strict compliance is not jurisdictional. Versch v. Tichota, 192 Neb. 251, 220 N.W.2d 8 (1974).

Notice to workmen's compensation carrier of suit against third party is immaterial to proration of fees and expenses where carrier is made party and attorneys for carrier carried their share of trial load, and it is desirable there should be an agreement for apportionment. Kitchin v. Burlington Northern, Inc., 382 F.Supp. 42 (D. Neb. 1974).

7. Miscellaneous

This section and sections 48-118.01 through 48-118.04 should be read as a whole. In re Estate of Evertson, 295 Neb. 301, 889 N.W.2d 73 (2016).

Where an employer refuses to make lump-sum periodic lifetime workmen's compensation benefits due an employee or dependents, and where a recovery is made against a third party, the obligation of the employer to continue to make lifetime payments is not extinguished but merely suspended for the period of time the employer's share of the recovery satisfies the continuing obligation due the employee. In calculating the fees and expenses of both an employee and an employer, in connection with the recovery of damages from a third party, where a lump-sum agreement is not reached, the fees and expenses are to be deducted immediately from the recovery, and the employer's share of such fees and expenses is to be repaid weekly by the employer to the employee over the period of time benefit payments are due to the employee. Nekuda v. Waspi Trucking, Inc., 222 Neb. 806, 388 N.W.2d 438 (1986).

Under this section, where an action is filed before a particular court and prosecuted to a final conclusion, whether by settlement or judgment, that court alone has jurisdiction to resolve any controversy relating to division of fees and expenses. Moyer v. Douglas & Lomason Co., 212 Neb. 680, 325 N.W.2d 648 (1982).

Workmen's Compensation Act bars action by third party tort-feasor against employer for contribution or indemnity based on claim arising from the injury. Vangreen v. Interstate Machinery & Supply Co., 197 Neb. 29, 246 N.W.2d 652 (1976).

An employer can bring an action directly against a third party tort-feasor for injuries suffered by an employee, but only a personal representative of a deceased employee can bring an action for wrongful death, which action must be filed within two years after death. United Materials, Inc. v. Landreth, 196 Neb. 525, 244 N.W.2d 164 (1976).

Truck rental agreement, as modified, did not create relationship of employer and employee. United States F. & G. Co. v. Missouri Valley Constr. Co., 179 Neb. 565, 139 N.W.2d 222 (1966).

Civil liability of third person for causing death of employee is not changed by Workmen's Compensation Act. Luckey v. Union P. R. R. Co., 117 Neb. 85, 219 N.W. 802 (1928).

Act recognizes common-law liability of third persons for negligent injury to employee. Tralle v. Hartman Furniture & Carpet Co., 116 Neb. 418, 217 N.W. 952 (1928).

A voluntary payment made by a workers' compensation insurer after the statute of limitations has run does not remove the bar of the statute of limitations. In workers' compensation cases, an advance payment by an employer does not remove the bar of a statute of limitations which had already run at the time of the payment from a third-party lawsuit. The statute of limitations bars further suit against an employer if 2 years pass without a payment of workers' compensation from the employer, including by way of an advance payment from a third-party suit against a tort-feasor before the 2-year statute runs, by direct payment by the employer or its insurer, or by a payment caused to be made by the employer. Thomas v. Lincoln Public Schools, 9 Neb. App. 965, 622 N.W.2d 705 (2001).

An injured employee may use the common fund doctrine to shift an appropriate share of the cost of workers' compensation litigation to a health care insurer who directly and substantially benefits by the litigation through reimbursement. Kaiman v. Mercy Midlands Medical & Dental Plan, 1 Neb. App. 148, 491 N.W.2d 356 (1992).

Under facts in this settled case, costs were prorated between employee and intervening compensation carrier in same proportion they shared in benefits; each to pay own attorney's fees. Carter v. Par-Kan Construction Co., 348 F.Supp. 1295 (D. Neb. 1972).

Absent express contract of indemnity between seller of crane and purchaser, the Nebraska Workmen's Compensation Act insulated purchaser from contribution or indemnity in favor of seller in action by purchaser's employee for injuries sustained while dismantling crane. Petznick v. Clark Equipment Co., 333 F.Supp. 913 (D. Neb. 1971).

48-118.01. Third-party claims; procedure; attorney's fees.

Before making a claim or bringing suit against a third person by the employee or his or her personal representative or by the employer or his or her workers' compensation insurer, thirty days' notice shall be given to the other potential parties, unless such notice is waived in writing, of the opportunity to join in such claim or action and to be represented by counsel. If a party entitled to notice cannot be found, the clerk of the Nebraska Workers' Compensation Court shall become the agent of such party for giving notice as required in this section. The notice when given to the clerk of the compensation court shall include an affidavit setting forth the facts, including the steps taken to locate such party.

After the expiration of thirty days, for failure to receive notice or other good cause shown, the district court before which the action is pending shall allow either party to intervene in such action, and if no action is pending then the district court in which it could be brought shall allow either party to commence such action. Each party shall have an equal voice in the claim and the prosecution of such suit, and any dispute arising shall be passed upon by the court before which the case is pending and if no action is pending then by the district court in which such action could be brought.

If the employee or his or her personal representative or the employer or his or her workers' compensation insurer join in prosecuting such claim and are represented by counsel, the reasonable expenses and the attorney's fees shall be, unless otherwise agreed upon, divided between such attorneys as directed by the court before which the case is pending and if no action is pending then by the district court in which such action could be brought.

Source:Laws 2005, LB 13, § 23.

Annotations

In this section, the use of the term "the court" refers to the district court. In re Estate of Evertson, 295 Neb. 301, 889 N.W.2d 73 (2016).

This section and sections 48-118 through 48-118.04 should be read as a whole. In re Estate of Evertson, 295 Neb. 301, 889 N.W.2d 73 (2016).

This section requires that a subrogation claim against a third-party tort-feasor for workers' compensation benefits paid to a claimant must be brought in the district court. In re Estate of Evertson, 295 Neb. 301, 889 N.W.2d 73 (2016).

48-118.02. Third-party claims; expenses and attorney's fees; apportionment.

If either party after receiving notice under section 48-118.01 fails, by and through his or her attorney, to join in the third-party claim or suit, such party waives any and all claims or causes of action for improper prosecution of the third-party suit or inadequacy of a settlement made in accordance with section 48-118.04. The party bringing the claim or prosecuting the suit is entitled to deduct from any amount recovered the reasonable expenses of making such recovery, including a reasonable sum for attorney's fees. Such expenses and attorney's fees shall be prorated (1) to the amounts payable to the employer or his or her workers' compensation insurer under the right of subrogation established in section 48-118 and (2) to the amount in excess of such amount payable to the employer or his or her workers' compensation insurer under the right of subrogation. Such expenses and attorney's fees shall be apportioned by the court between the parties as their interests appear at the time of such recovery.

Source:Laws 2005, LB 13, § 24.

Annotations

This section and sections 48-118 through 48-118.04 should be read as a whole. In re Estate of Evertson, 295 Neb. 301, 889 N.W.2d 73 (2016).

When an employer has a subrogation interest in the recovery in a worker's third-party claim, the party bringing the claim or prosecuting the suit is entitled to deduct from any amount recovered the reasonable expenses of making such recovery, including a reasonable sum for attorney fees. Sterner v. American Fam. Ins. Co., 19 Neb. App. 339, 805 N.W.2d 696 (2011).

48-118.03. Third-party claims; failure to give notice; effect.

If either party makes a claim or prosecutes a third-party action without giving notice to the other party, the party bringing the claim and prosecuting such action shall not deduct expenses or attorney's fees from the amount payable to the other party.

Source:Laws 2005, LB 13, § 25.

Annotations

This section and sections 48-118 through 48-118.04 should be read as a whole. In re Estate of Evertson, 295 Neb. 301, 889 N.W.2d 73 (2016).

48-118.04. Third-party claims; settlement; requirements.

(1) A settlement of a third-party claim under the Nebraska Workers' Compensation Act is void unless:

(a) Such settlement is agreed upon in writing by the employee or his or her personal representative and the workers' compensation insurer of the employer, if there is one, and if there is no insurer, then by the employer; or

(b) In the absence of such agreement, the court before which the action is pending determines that the settlement offer is fair and reasonable considering liability, damages, and the ability of the third person and his or her liability insurance carrier to satisfy any judgment.

(2) If the employee or his or her personal representative or the employer or his or her workers' compensation insurer do not agree in writing upon distribution of the proceeds of any judgment or settlement, the court, upon application, shall order a fair and equitable distribution of the proceeds of any judgment or settlement.

Source:Laws 2005, LB 13, § 26.

Annotations

1. Fair and equitable distribution

2. Miscellaneous

1. Fair and equitable distribution

A distribution of the proceeds of a judgment or settlement under subsection (2) of this section must be fair and equitable to both the employee and the employer or its insurer. Kroemer v. Omaha Track Equip., 296 Neb. 972, 898 N.W.2d 661 (2017).

The phrase "fair and equitable distribution," as used in this section, was not intended to permit the subrogation interest of an employer or workers' compensation insurer to be subject to equitable defenses. Burns v. Nielsen, 273 Neb. 724, 732 N.W.2d 640 (2007).

The purpose of this section is to prevent a fair and reasonable settlement between an employee and third-party tort-feasor from being delayed because the parties cannot agree on how the proposed settlement should be distributed. Burns v. Nielsen, 273 Neb. 724, 732 N.W.2d 640 (2007).

This section does not adopt a "made whole" doctrine, nor does it adopt any other specific rule for making a fair and equitable distribution, but instead leaves the distribution to the court's discretion. Turco v. Schuning, 271 Neb. 770, 716 N.W.2d 415 (2006).

Statutory subrogation under this section requires a fair and equitable distribution to be determined by the trial court under the facts of each case. Sterner v. American Fam. Ins. Co., 19 Neb. App. 339, 805 N.W.2d 696 (2011).

This section does not require an injured worker to be "made whole" before a subrogated compensation carrier is entitled to a portion of the settlement. Sterner v. American Fam. Ins. Co., 19 Neb. App. 339, 805 N.W.2d 696 (2011).

2. Miscellaneous

Although the trial court did not abuse its discretion in approving an injured employee's settlement of his third-party suit for $150,000, the court's allocation of zero to an employer who had a subrogation interest exceeding $200,000 was untenable. Kroemer v. Omaha Track Equip., 296 Neb. 972, 898 N.W.2d 661 (2017).

Because this section should be read along with sections 48-118 through 48-118.03, the use of the term "the court" in this section refers to the district court. In re Estate of Evertson, 295 Neb. 301, 889 N.W.2d 73 (2016).

District courts have exclusive subject matter jurisdiction over proceedings for the fair and equitable distribution of settlement proceeds from third-party tort-feasors subject to subrogation in workers' compensation cases. In re Estate of Evertson, 295 Neb. 301, 889 N.W.2d 73 (2016).

This section does not authorize the district court to punish an employer beyond the penalties expressly prescribed by the workers' compensation statutes. Burns v. Nielsen, 273 Neb. 724, 732 N.W.2d 640 (2007).

Third-party settlements are void unless agreed to in writing by the employee, or the employee's personal representative, and the employer, or the employer's insurer. Sterner v. American Fam. Ins. Co., 19 Neb. App. 339, 805 N.W.2d 696 (2011).

48-118.05. Third-party claims; Workers' Compensation Trust Fund; subrogation rights.

In any case in which an injured employee is entitled to benefits from the Workers' Compensation Trust Fund for injuries occurring before December 1, 1997, as provided in section 48-128 and recovery is had against the third party liable to the employee for the injury, the Workers' Compensation Trust Fund shall be subrogated to the rights of the employee against such third party to the extent of the benefits due to him or her or which shall become due to him or her from such fund, subject to the rights of the employer and his or her workers' compensation insurer.

Source:Laws 2005, LB 13, § 27.

48-119. Compensation; from what date computed.

No compensation shall be allowed for the first seven calendar days of disability, except as provided in section 48-120, but if disability extends beyond the period of seven calendar days, compensation shall begin on the eighth calendar day of disability, except that if such disability continues for six weeks or longer, compensation shall be computed from the date disability began. For purposes of this section, a partial day of disability shall be deemed a calendar day of disability.

Source:Laws 1913, c. 198, § 19, p. 585; R.S.1913, § 3660; Laws 1917, c. 85, § 5, p. 202; Laws 1921, c. 122, § 1, p. 520; C.S.1922, § 3042; C.S.1929, § 48-119; R.S.1943, § 48-119; Laws 1999, LB 216, § 2.

Annotations

For scheduled disabilities caused by repetitive trauma, the date disability begins is the same as the date of injury for whole body impairments caused by repetitive trauma. That date is when the employee discontinues work and seeks medical treatment, despite being paid wages while he continued to work. Risor v. Nebraska Boiler, 277 Neb. 679, 765 N.W.2d 170 (2009).

Compensation is to be computed from the date of the injury. Hobza v. Seedorff Masonry, Inc., 259 Neb. 671, 611 N.W.2d 828 (2000).

After injury has continued for six weeks, compensation should be computed from date of injury. Park v. School District No. 27, Richardson Cty., 127 Neb. 767, 257 N.W. 219 (1934).

48-120. Medical, surgical, and hospital services; employer's liability; fee schedule; physician, right to select; procedures; powers and duties; court; powers; dispute resolution procedure; managed care plan.

(1)(a) The employer is liable for all reasonable medical, surgical, and hospital services, including plastic surgery or reconstructive surgery but not cosmetic surgery when the injury has caused disfigurement, appliances, supplies, prosthetic devices, and medicines as and when needed, which are required by the nature of the injury and which will relieve pain or promote and hasten the employee's restoration to health and employment, and includes damage to or destruction of artificial members, dental appliances, teeth, hearing instruments, and eyeglasses, but, in the case of dental appliances, hearing instruments, or eyeglasses, only if such damage or destruction resulted from an accident which also caused personal injury entitling the employee to compensation therefor for disability or treatment, subject to the approval of and regulation by the Nebraska Workers' Compensation Court, not to exceed the regular charge made for such service in similar cases.

(b) Except as provided in section 48-120.04, the compensation court shall establish schedules of fees for such services. The compensation court shall review such schedules at least biennially and adopt appropriate changes when necessary. The compensation court may contract with any person, firm, corporation, organization, or government agency to secure adequate data to establish such fees. The compensation court shall publish and furnish to the public the fee schedules established pursuant to this subdivision and section 48-120.04. The compensation court may establish and charge a fee to recover the cost of published fee schedules.

(c) Reimbursement for inpatient hospital services provided by hospitals located in or within fifteen miles of a Nebraska city of the metropolitan class or primary class and by other hospitals with fifty-one or more licensed beds shall be according to the Diagnostic Related Group inpatient hospital fee schedule or the trauma services inpatient hospital fee schedule established in section 48-120.04.

(d) A workers' compensation insurer, risk management pool, self-insured employer, or managed care plan certified pursuant to section 48-120.02 may contract with a provider or provider network for medical, surgical, or hospital services. Such contract may establish fees for services different than the fee schedules established under subdivision (1)(b) of this section or established under section 48-120.04. Such contract shall be in writing and mutually agreed upon prior to the date services are provided.

(e) The provider or supplier of such services shall not collect or attempt to collect from any employer, insurer, government, or injured employee or dependent or the estate of any injured or deceased employee any amount in excess of (i) the fee established by the compensation court for any such service, (ii) the fee established under section 48-120.04, or (iii) the fee contracted under subdivision (1)(d) of this section, including any finance charge or late penalty.

(2)(a) The employee has the right to select a physician who has maintained the employee's medical records prior to an injury and has a documented history of treatment with the employee prior to an injury or a physician who has maintained the medical records of an immediate family member of the employee prior to an injury and has a documented history of treatment with an immediate family member of the employee prior to an injury. For purposes of this subsection, immediate family member means the employee's spouse, children, parents, stepchildren, and stepparents. The employer shall notify the employee following an injury of such right of selection in a form and manner and within a timeframe established by the compensation court. If the employer fails to notify the employee of such right of selection or fails to notify the employee of such right of selection in a form and manner and within a timeframe established by the compensation court, then the employee has the right to select a physician. If the employee fails to exercise such right of selection in a form and manner and within a timeframe established by the compensation court following notice by the employer pursuant to this subsection, then the employer has the right to select the physician. If selection of the initial physician is made by the employee or employer pursuant to this subsection following notice by the employer pursuant to this subsection, the employee or employer shall not change the initial selection of physician made pursuant to this subsection unless such change is agreed to by the employee and employer or is ordered by the compensation court pursuant to subsection (6) of this section. If compensability is denied by the workers' compensation insurer, risk management pool, or self-insured employer, (i) the employee has the right to select a physician and shall not be made to enter a managed care plan and (ii) the employer is liable for medical, surgical, and hospital services subsequently found to be compensable. If the employer has exercised the right to select a physician pursuant to this subsection and if the compensation court subsequently orders reasonable medical services previously refused to be furnished to the employee by the physician selected by the employer, the compensation court shall allow the employee to select another physician to furnish further medical services. If the employee selects a physician located in a community not the home or place of work of the employee and a physician is available in the local community or in a closer community, no travel expenses shall be required to be paid by the employer or his or her workers' compensation insurer.

(b) In cases of injury requiring dismemberment or injuries involving major surgical operation, the employee may designate to his or her employer the physician or surgeon to perform the operation.

(c) If the injured employee unreasonably refuses or neglects to avail himself or herself of medical or surgical treatment furnished by the employer, except as herein and otherwise provided, the employer is not liable for an aggravation of such injury due to such refusal and neglect and the compensation court or judge thereof may suspend, reduce, or limit the compensation otherwise payable under the Nebraska Workers' Compensation Act.

(d) If, due to the nature of the injury or its occurrence away from the employer's place of business, the employee or the employer is unable to select a physician using the procedures provided by this subsection, the selection requirements of this subsection shall not apply as long as the inability to make a selection persists.

(e) The physician selected may arrange for any consultation, referral, or extraordinary or other specialized medical services as the nature of the injury requires.

(f) The employer is not responsible for medical services furnished or ordered by any physician or other person selected by the employee in disregard of this section. Except as otherwise provided by the Nebraska Workers' Compensation Act, the employer is not liable for medical, surgical, or hospital services or medicines if the employee refuses to allow them to be furnished by the employer.

(3) No claim for such medical treatment is valid and enforceable unless, within fourteen days following the first treatment, the physician giving such treatment furnishes the employer a report of such injury and treatment on a form prescribed by the compensation court. The compensation court may excuse the failure to furnish such report within fourteen days when it finds it to be in the interest of justice to do so.

(4) All physicians and other providers of medical services attending injured employees shall comply with all the rules and regulations adopted and promulgated by the compensation court and shall make such reports as may be required by it at any time and at such times as required by it upon the condition or treatment of any injured employee or upon any other matters concerning cases in which they are employed. All medical and hospital information relevant to the particular injury shall, on demand, be made available to the employer, the employee, the workers' compensation insurer, and the compensation court. The party requesting such medical and hospital information shall pay the cost thereof. No such relevant information developed in connection with treatment or examination for which compensation is sought shall be considered a privileged communication for purposes of a workers' compensation claim. When a physician or other provider of medical services willfully fails to make any report required of him or her under this section, the compensation court may order the forfeiture of his or her right to all or part of payment due for services rendered in connection with the particular case.

(5) Whenever the compensation court deems it necessary, in order to assist it in resolving any issue of medical fact or opinion, it shall cause the employee to be examined by a physician or physicians selected by the compensation court and obtain from such physician or physicians a report upon the condition or matter which is the subject of inquiry. The compensation court may charge the cost of such examination to the workers' compensation insurer. The cost of such examination shall include the payment to the employee of all necessary and reasonable expenses incident to such examination, such as transportation and loss of wages.

(6) The compensation court shall have the authority to determine the necessity, character, and sufficiency of any medical services furnished or to be furnished and shall have authority to order a change of physician, hospital, rehabilitation facility, or other medical services when it deems such change is desirable or necessary. Any dispute regarding medical, surgical, or hospital services furnished or to be furnished under this section may be submitted by the parties, the supplier of such service, or the compensation court on its own motion for informal dispute resolution by a staff member of the compensation court or an outside mediator pursuant to section 48-168. In addition, any party or the compensation court on its own motion may submit such a dispute for a medical finding by an independent medical examiner pursuant to section 48-134.01. Issues submitted for informal dispute resolution or for a medical finding by an independent medical examiner may include, but are not limited to, the reasonableness and necessity of any medical treatment previously provided or to be provided to the injured employee. The compensation court may adopt and promulgate rules and regulations regarding informal dispute resolution or the submission of disputes to an independent medical examiner that are considered necessary to effectuate the purposes of this section.

(7) For the purpose of this section, physician has the same meaning as in section 48-151.

(8) The compensation court shall order the employer to make payment directly to the supplier of any services provided for in this section or reimbursement to anyone who has made any payment to the supplier for services provided in this section. No such supplier or payor may be made or become a party to any action before the compensation court.

(9) Notwithstanding any other provision of this section, a workers' compensation insurer, risk management pool, or self-insured employer may contract for medical, surgical, hospital, and rehabilitation services to be provided through a managed care plan certified pursuant to section 48-120.02. Once liability for medical, surgical, and hospital services has been accepted or determined, the employer may require that employees subject to the contract receive medical, surgical, and hospital services in the manner prescribed in the contract, except that an employee may receive services from a physician selected by the employee pursuant to subsection (2) of this section if the physician so selected agrees to refer the employee to the managed care plan for any other treatment that the employee may require and if the physician so selected agrees to comply with all the rules, terms, and conditions of the managed care plan. If compensability is denied by the workers' compensation insurer, risk management pool, or self-insured employer, the employee may leave the managed care plan and the employer is liable for medical, surgical, and hospital services previously provided. The workers' compensation insurer, risk management pool, or self-insured employer shall give notice to employees subject to the contract of eligible service providers and such other information regarding the contract and manner of receiving medical, surgical, and hospital services under the managed care plan as the compensation court may prescribe.

Source:Laws 1913, c. 198, § 20, p. 585; R.S.1913, § 3661; Laws 1917, c. 85, § 6, p. 202; Laws 1919, c. 91, § 1, p. 228; Laws 1921, c. 122, § 1, p. 520; C.S.1922, § 3043; C.S.1929, § 48-120; Laws 1935, c. 57, § 19, p. 197; C.S.Supp.,1941, § 48-120; R.S.1943, § 48-120; Laws 1965, c. 278, § 1, p. 799; Laws 1969, c. 388, § 2, p. 1359; Laws 1969, c. 392, § 1, p. 1376; Laws 1975, LB 127, § 1; Laws 1978, LB 529, § 2; Laws 1979, LB 215, § 1; Laws 1986, LB 811, § 38; Laws 1987, LB 187, § 1; Laws 1992, LB 360, § 13; Laws 1993, LB 757, § 2; Laws 1998, LB 1010, § 2; Laws 1999, LB 216, § 3; Laws 2005, LB 238, § 3; Laws 2007, LB588, § 1; Laws 2009, LB195, § 51; Laws 2011, LB152, § 1; Laws 2015, LB480, § 2.

Annotations

1. Liability

2. Travel expense

3. Physician's fee

4. Miscellaneous

1. Liability

An employer may contest any future workers' compensation claims for medical treatment on the basis that such treatment is unrelated to the original work-related injury or occupational disease, or that the treatment is unnecessary or inapplicable, only after a Form 50 physician has been appointed and prescribed treatment. Rogers v. Jack's Supper Club, 308 Neb. 107, 953 N.W.2d 9 (2021).

Where there was sufficient evidence to support a factual finding that knee surgery was not required by the prior work-related injury, the Workers' Compensation Court did not err in denying compensation for the surgery under an award of future medical treatment. Pearson v. Archer-Daniels-Midland Milling Co., 285 Neb. 568, 828 N.W.2d 154 (2013).

If an employer has sufficient knowledge of an injury to an employee to be aware that medical treatment is necessary, it has the affirmative and continuing duty to supply medical treatment that is prompt, in compliance with the statutory prescription on choice of doctors, and adequate; if the employer fails to do so, the employee may make suitable independent arrangements at the employer's expense. Clark v. Alegent Health Neb., 285 Neb. 60, 825 N.W.2d 195 (2013).

If compensability is denied by the employer, the employee has the right to select a physician and the employer is liable for medical services subsequently found to be compensable. Clark v. Alegent Health Neb., 285 Neb. 60, 825 N.W.2d 195 (2013).

Once it has been determined that the need for future medical care is probable, the employer is liable for any future care shown to be reasonably necessary under this section. Sellers v. Reefer Systems, 283 Neb. 760, 811 N.W.2d 293 (2012).

An employee's injury which occurs en route to a required medical appointment that is related to a compensable injury is also compensable, as long as the chosen route is reasonable and practical. Straub v. City of Scottsbluff, 280 Neb. 163, 784 N.W.2d 886 (2010).

Before an order for future medical benefits may be entered pursuant to this section, there should be a stipulation of the parties or evidence in the record to support a determination that future medical treatment will be reasonably necessary to relieve the injured worker from the effects of the work-related injury or occupational disease. Foote v. O'Neill Packing, 262 Neb. 467, 632 N.W.2d 313 (2001).

The history of this section clearly manifests a legislative intent to make medical benefits available to a disabled worker without regard to any time limitation measured from the last date of payment, when an award is entered, so long as further medical treatment is reasonably necessary to relieve the worker from the effects of the work-related injury or occupational disease. Foote v. O'Neill Packing, 262 Neb. 467, 632 N.W.2d 313 (2001).

The Workers' Compensation Court may allow an employee to recover the reasonable value of necessary home nursing care furnished by the employee's spouse. Kidd v. Winchell's Donut House, 237 Neb. 176, 465 N.W.2d 442 (1991).

While a disabled employee may not be required to undergo surgery, an unreasonable refusal to submit to surgery, taking into account the risk involved to the employee, the nature of the surgery, and the likelihood of improving the condition, may result in the forfeiture or reduction of compensation benefits, as may be appropriate. Yarns v. Leon Plastics, Inc., 237 Neb. 132, 464 N.W.2d 801 (1991).

The cost of a penile implant is a compensable medical procedure under this section. Canas v. Maryland Cas. Co., 236 Neb. 164, 459 N.W.2d 533 (1990).

Generally, pursuant to this section, an employee may be reimbursed for nursing care in the employee's home or at a nursing home, when such care is necessitated by a work-related injury, so long as the cost of the care is fair and reasonable. Bituminous Casualty Corp. v. Deyle, 234 Neb. 537, 451 N.W.2d 910 (1990).

An employer is liable only for those reasonable medical expenses incurred as a result of a compensable accident. Expenses not shown by the evidence to have been incurred as a result of a compensable accident are not allowable as charges against the employer. Hare v. Watts Trucking Service, 220 Neb. 403, 370 N.W.2d 143 (1985).

Even though there is no present prospect for improvement of a condition of total and permanent disability or of further rehabilitation, the employer continues to be responsible under this section for further nursing care and therapy. S. & S. LP Gas Co. v. Ramsey, 201 Neb. 751, 272 N.W.2d 47 (1978).

An employer is liable to an injured employee for reasonable medical and hospital services and medicines which are necessary to relieve or cure injury suffered by the employee. Spiker v. John Day Co., 201 Neb. 503, 270 N.W.2d 300 (1978).

An injured employee may recover the reasonable value of necessary nursing care furnished to him by his wife while he was cared for at home. Spiker v. John Day Co., 201 Neb. 503, 270 N.W.2d 300 (1978); overruling Claus v. DeVere, 120 Neb. 812, 235 N.W. 450 (1931).

The liability of an employer to an injured employee for reasonable medical and hospital services and medicine which are necessary as a result of injury, is not limited to only those situations in which the employee may be cured or his disability reduced by further treatment. Spiker v. John Day Co., 201 Neb. 503, 270 N.W.2d 300 (1978).

When undisputed evidence shows plaintiff will require medicines and medical and hospital services in the future as a result of his injuries they shall, subject to approval by the Workmen's Compensation Court, be supplied by defendant. Shotwell v. Industrial Builders, Inc., 187 Neb. 320, 190 N.W.2d 624 (1971).

In absence of showing of unreasonableness, hospital and nurse expense incurred will be allowed. Gourley v. City of Grand Island, 168 Neb. 538, 96 N.W.2d 309 (1959).

Where further medical services would not improve condition, liability for same ceases. Peek v. Ayres Auto Supply, 155 Neb. 233, 51 N.W.2d 387 (1952).

Medical services necessary in treating injury to eye were recoverable. Gruber v. Stickelman, 149 Neb. 627, 31 N.W.2d 753 (1948).

Where evidence shows that further medical, hospital, and surgical services would not definitely improve condition of an injured employee, employer's liability to furnish such services ceases. Paulson v. Martin-Nebraska Co., 147 Neb. 1012, 26 N.W.2d 11 (1947).

Employer is liable for reasonable medical and hospital services when award provides for further medical, surgical, and hospital care. Gilmore v. State, 146 Neb. 647, 20 N.W.2d 918 (1945).

Employer is liable for reasonable hospital and medical services and medicines, when needed, and approved by compensation commissioner. Summers v. Railway Express Agency, 134 Neb. 237, 278 N.W. 476 (1938).

Where evidence shows that further medical, surgical, and hospital services would not improve condition of injured employee, employer's liability for such services ceases. Wilson v. Brown-McDonald Co., 134 Neb. 211, 278 N.W. 254 (1938).

Employer providing medical attention during three weeks subsequent to injury is not liable for medical expenses after blood poisoning developed. Epsten v. Hancock-Epsten Co., 101 Neb. 442, 163 N.W. 767 (1917).

The general rule under this section is that, should a court determine a medical treatment for a condition unrelated to a work-related injury is medically reasonable and necessary to treat the underlying work-related injury, the medical treatment is required by the nature of the injury and is compensable. Carr v. Ganz, 26 Neb. App. 14, 916 N.W.2d 437 (2018).

Under subsection (1)(a) of this section, an employer is liable for all reasonable medical, surgical, and hospital services which are required by the nature of the injury and which will relieve pain or promote and hasten the employee's restoration to health and employment. Yost v. Davita, Inc., 23 Neb. App. 482, 873 N.W.2d 435 (2015).

Before an order for future medical benefits may be entered pursuant to subsection (1)(a) of this section, there must be explicit evidence that future medical treatment is reasonably necessary to relieve the injured worker from the effects of the work-related injury. Adams v. Cargill Meat Solutions, 17 Neb. App. 708, 774 N.W.2d 761 (2009).

The trial judge did not err in ordering the employer to pay for medication, because the judge's determination that the medication was necessary to treat both the work-related side effects of pain medication and the unrelated condition of sleep apnea was not clearly wrong. Zitterkopf v. Aulick Indus., 16 Neb. App. 829, 753 N.W.2d 370 (2008).

Medical expenses incurred before the date of an employee's accident in a repetitive trauma case may be compensable if they are reasonably necessary and related to the compensable injury. Tomlin v. Densberger Drywall, 14 Neb. App. 288, 706 N.W.2d 595 (2005).

Making a home handicapped-accessible was an "appliance" and "supply" for which the employer of injured employee was liable. Koterzina v. Copple Chevrolet, 1 Neb. App. 1000, 510 N.W.2d 467 (1993).

2. Travel expense

Because this section makes the employer liable for reasonable medical and hospital services, the employer must also pay the cost of travel incident to and reasonably necessary for obtaining these services. Armstrong v. State, 290 Neb. 205, 859 N.W.2d 541 (2015).

An injured employee was not entitled to payment for travel expenses to Massachusetts where the trial court properly found that a physician was available in the local community or in a closer community than Massachusetts. Savage v. Hensel Phelps Constr. Co., 208 Neb. 676, 305 N.W.2d 375 (1981).

Travel expenses to obtain medical treatment may be allowed. Pavel v. Hughes Brothers, 167 Neb. 727, 94 N.W.2d 492 (1959).

Injured workman was entitled to recover travel expense incurred to obtain medical treatment. Pittenger v. Safeway Stores, Inc., 166 Neb. 858, 91 N.W.2d 31 (1958).

Employer may be held liable for medical and hospital services, including cost of travel reasonably necessary for obtaining such services. Newberry v. Youngs, 163 Neb. 397, 80 N.W.2d 165 (1956).

3. Physician's fee

Workmen's compensation court may allow medical expenses in accordance with medical fee schedule approved by the court. Schoenrock v. School Dist. of Nebraska City, 179 Neb. 621, 139 N.W.2d 547 (1966).

Employer is liable for reasonable medical and hospital expense and medicines as and when needed. Brewer v. Hilberg, 173 Neb. 863, 115 N.W.2d 437 (1962).

Physician is entitled to fee for making examination of employee after hearing before compensation commissioner and before trial in district court, to determine if surgical operation on employee as demanded by employer would be reasonably safe and beneficial. Solomon v. A. W. Farney, Inc., 130 Neb. 484, 265 N.W. 724 (1936).

Family physician, chosen by employee to aid operating surgeon selected by employer, may recover for such services and post-operative attention to patient from the employer. Wingate v. Evans Model Laundry, 123 Neb. 844, 244 N.W. 635 (1932).

4. Miscellaneous

The term "payor" as used in subsection (8) of this section is limited to third-party payors, such as health insurance carriers. VanKirk v. Central Community College, 285 Neb. 231, 826 N.W.2d 277 (2013).

Upon receipt of payment from an employer, a supplier or provider of services becomes obligated to reimburse an employee any amounts he or she has previously paid. VanKirk v. Central Community College, 285 Neb. 231, 826 N.W.2d 277 (2013).

An employer is not responsible for medical services furnished or ordered by any physician or other person selected by an injured employee in disregard of subdivision (2)(a) of this section. Clark v. Alegent Health Neb., 285 Neb. 60, 825 N.W.2d 195 (2013).

Under subdivision (2)(a) of this section, an employee has the right to select a physician who has maintained the employee's medical records prior to an injury and has a documented history of treatment with the employee prior to the injury. The employer shall notify the employee following an injury of such right of selection in a form and manner within the timeframe established by the compensation court. Clark v. Alegent Health Neb., 285 Neb. 60, 825 N.W.2d 195 (2013).

Under subsection (b) of this section, the fee schedule is applicable to payments made by third-party payors. Pearson v. Archer-Daniels-Midland Milling Co., 282 Neb. 400, 803 N.W.2d 489 (2011).

This section, while not affording the Workers' Compensation Court with jurisdiction to resolve every disagreement that may arise with respect to the rights and obligations of a third-party insurer, clearly provides that the Workers' Compensation Court shall order an employer to directly reimburse medical care providers and medical insurers for the reasonable medical, surgical, and hospital services supplied to a workers' compensation claimant pursuant to this section. Kimminau v. Uribe Refuse Serv., 270 Neb. 682, 707 N.W.2d 229 (2005).

This section does not require the court to have a physician examine plaintiff when medical evidence on cause is lacking. The statute applies only to issues of medical fact or opinion in cases where liability has been established and issues arise over such things as refusal or necessity of medical treatment. The statute grants the court discretionary power. Coco v. Austin Co., 212 Neb. 95, 321 N.W.2d 448 (1982).

If psychiatric treatment is prescribed, refusal of the treatment may be deemed unreasonable in view of the absence of any physical suffering in the treatment. Davis v. Western Electric, 210 Neb. 771, 317 N.W.2d 68 (1982).

The Nebraska Workmen's Compensation Court has continuing authority to determine the necessity, character, and sufficiency of medical services furnished or to be furnished and to order a change therein when it deems such change is desirable or necessary. S. & S. LP Gas Co. v. Ramsey, 201 Neb. 751, 272 N.W.2d 47 (1978).

Ordinarily, an employee's right to recover the cost of medical and hospital services and medicines depends upon his having paid for services or incurred a liability to pay for them. Spiker v. John Day Co., 201 Neb. 503, 270 N.W.2d 300 (1978).

Exclusive original jurisdiction to determine claims under workmen's compensation law is in compensation commissioner. Zurich General Accident & Liability Ins. Co. v. Walker, 128 Neb. 327, 258 N.W. 550 (1935).

Plaintiff in action against noninsuring employer for personal injuries has not waived right of action, or brought himself within Workmen's Compensation Act, by accepting payment of hospital bill. Brown v. York Water Co., 104 Neb. 516, 177 N.W. 833 (1920).

Employer is not liable for medical services procured by employee, where latter unreasonably refuses services of physician procured by employer. Radil v. Morris & Co., 103 Neb. 84, 170 N.W. 363 (1919).

The meaning of subsection (4) of this section is plain and unambiguous. When an injured worker is seeking compensation for an injury from his employer and the employer seeks relevant information from the injured worker's treating physician regarding that injury, that information is not privileged. Scott v. Drivers Mgmt., Inc., 14 Neb. App. 630, 714 N.W.2d 23 (2006).

Under certain circumstances, an injured worker should be reimbursed for the relocation costs when the relocation is undertaken upon a doctor's recommendation due to a work injury. Relocation expenses, pursuant to a doctor's recommendations, in order to lessen necessary medical treatment, additional injury, and pain, are within a liberal definition of "medical services" under this section. Hoffart v. Fleming Cos., 10 Neb. App. 524, 634 N.W.2d 37 (2001).

A health care insurer cannot be a party to the underlying workers' compensation case which, if successful, results in the reimbursement of the health care insurer, nor can it be later joined after a successful result. Kaiman v. Mercy Midlands Medical & Dental Plan, 1 Neb. App. 148, 491 N.W.2d 356 (1992).

48-120.01. Terms, defined.

As used in section 48-120, unless the context otherwise requires:

(1) Plastic surgery shall mean that branch of surgery concerned with the repair or restoration of lost, injured, or deformed body parts chiefly by transfer of tissue; and

(2) Reconstructive surgery shall mean surgery which restores or tends to restore an injured or deformed structure.

Source:Laws 1978, LB 529, § 1.

48-120.02. Managed care plan; certification; application; requirements; conditions; dispute resolution procedure; required; independent medical examiner; compensation court; powers and duties; Attorney General; duties.

(1) Any person or entity may make written application to the Nebraska Workers' Compensation Court to have a plan certified that provides management of quality treatment to injured employees for injuries and diseases compensable under the Nebraska Workers' Compensation Act. Any such person or entity having a relationship with a workers' compensation insurer or any such person or entity having a relationship with an employer for which a plan is being proposed for its own employees shall make full disclosure of such relationship to the compensation court under rules and regulations to be adopted and promulgated by the compensation court. Each application for certification shall be accompanied by a reasonable fee prescribed by the compensation court. A plan may be certified to provide services in a limited geographic area. A certificate is valid for the period the compensation court prescribes unless earlier revoked or suspended pursuant to subsection (4) or (5) of this section. Application for certification shall be made in the form and manner and shall set forth information regarding the proposed plan for providing services as the compensation court may prescribe. The information shall include, but not be limited to:

(a) A list of the names of all providers of medical, surgical, and hospital services under the managed care plan, together with a statement that all licensing, certification, or registration requirements for the providers are current and in good standing in this state or the state in which the provider is practicing; and

(b) A description of the places and manner of providing services under the plan.

(2) The compensation court shall certify a managed care plan if the compensation court finds that the plan:

(a) Proposes to provide quality services that meet uniform treatment standards which may be prescribed by the compensation court and all medical, surgical, and hospital services that may be required by the Nebraska Workers' Compensation Act in a manner that is timely, effective, and convenient for the employee;

(b) Is reasonably geographically convenient to employees it serves;

(c) Provides appropriate financial incentives to reduce service costs and utilization without sacrificing the quality of service;

(d) Provides adequate methods of peer review, utilization review, and dispute resolution to prevent inappropriate, excessive, or not medically necessary treatment and excludes participation in the plan by those individuals who violate treatment standards;

(e) Provides a procedure for the resolution of medical disputes;

(f) Provides aggressive case management for injured employees and provides a program for early return to work and cooperative efforts by the employees, the employer, and the managed care plan to promote workplace health and safety consultative and other services;

(g) Provides a timely and accurate method of reporting to the compensation court necessary information regarding medical, surgical, and hospital service cost and utilization to enable the compensation court to determine the effectiveness of the plan;

(h) Authorizes employees to receive medical, surgical, and hospital services from a physician who is not a member of the managed care plan if such physician has been selected by the employee pursuant to subsection (2) of section 48-120 and if such physician agrees to refer the employee to the managed care plan for any other treatment that the employee may require and agrees to comply with all the rules, terms, and conditions of the managed care plan;

(i) Authorizes necessary emergency medical treatment for an injury which is provided by a provider of medical, surgical, and hospital services who is not a part of the managed care plan;

(j) Does not discriminate against or exclude from participation in the plan any category of providers of medical, surgical, or hospital services and includes an adequate number of each category of providers of medical, surgical, and hospital services to give employees convenient geographic accessibility to all categories of providers and adequate flexibility to choose a physician to provide medical, surgical, and hospital services from among those who provide services under the plan;

(k) Provides an employee the right to change the physician initially selected to provide medical, surgical, and hospital services under the plan at least once; and

(l) Complies with any other requirement the compensation court determines is necessary to provide quality medical, surgical, and hospital services to injured employees.

The compensation court may accept findings, licenses, certifications, or registrations of other state agencies as satisfactory evidence of compliance with a particular requirement of this subsection.

(3) An employee shall exhaust the dispute resolution procedure of the certified managed care plan prior to filing a petition or otherwise seeking relief from the compensation court on an issue related to managed care. If an employee has exhausted the dispute resolution procedure of the managed care plan, the employee may seek a medical finding by an independent medical examiner pursuant to section 48-134.01. No petition may be filed with the compensation court pursuant to section 48-173 solely on the issue of the reasonableness and necessity of medical treatment unless a medical finding on such issue has been rendered by an independent medical examiner pursuant to section 48-134.01. If the compensation court subsequently orders reasonable medical services previously refused to be furnished to the employee by a physician who is a member of the managed care plan, the compensation court shall allow the employee to select another physician to furnish further medical services if the physician so selected complies with all rules, terms, and conditions of the managed care plan and refers the employee to the managed care plan for any other treatment that the employee may require.

(4) The compensation court may refuse to certify a managed care plan or a three-judge panel of the compensation court may, after notice and hearing, revoke or suspend the certification of a managed care plan that unfairly restricts direct access within the managed care plan to any category of provider of medical, surgical, or hospital services. Direct access within the managed care plan is unfairly restricted if direct access is denied and the treatment or service sought is within the scope of practice of the profession to which direct access is sought and is appropriate under the standards of treatment adopted by the managed care plan or, in instances where the compensation court has adopted standards of treatment, the standards adopted by the compensation court.

(5) The compensation court may refuse to certify a managed care plan if the compensation court finds that the plan for providing medical, surgical, and hospital services fails to meet the requirements of this section. A three-judge panel of the compensation court may, after notice and hearing, revoke or suspend the certification of a managed care plan if the panel finds that the plan fails to meet the requirements of this section or that service under the plan is not being provided in accordance with the terms of a certified plan.

(6) The Attorney General, when requested by the administrator of the compensation court, may file a motion pursuant to section 48-162.03 for an order directing representatives of a certified managed care plan to appear before a three-judge panel of the compensation court and show cause as to why the panel should not revoke or suspend certification of the plan pursuant to subsection (4) or (5) of this section. The Attorney General shall be considered a party for purposes of such motion. The Attorney General may appear before the three-judge panel and present evidence that the managed care plan unfairly restricts direct access within the plan, that the plan fails to meet the requirements of this section, or that service under the plan is not being provided in accordance with the terms of a certified plan. The presiding judge shall rule on a motion of the Attorney General pursuant to this subsection and, if applicable, shall appoint judges of the compensation court to serve on the three-judge panel. The presiding judge shall not serve on such panel. Appeal from a suspension or revocation pursuant to subsection (4) or (5) of this section shall be in accordance with section 48-185. No such appeal shall operate as a supersedeas.

(7) The compensation court may adopt and promulgate rules and regulations necessary to implement this section.

Source:Laws 1993, LB 757, § 3; Laws 1998, LB 1010, § 3; Laws 1999, LB 216, § 4; Laws 2000, LB 1221, § 3; Laws 2005, LB 13, § 3.

48-120.03. Generic drugs; use.

Any person or entity that dispenses medicines and medical supplies, as required by section 48-120, shall dispense the generic drug equivalent unless:

(1) A generic drug equivalent is unavailable; or

(2) The prescribing physician specifically provides in writing that a nongeneric drug must be dispensed.

Source:Laws 2005, LB 13, § 28.

48-120.04. Diagnostic Related Group inpatient hospital fee schedule; trauma services inpatient hospital fee schedule; established; applicability; adjustments; methodology; hospital; duties; reports; compensation court; powers and duties.

(1) This section applies only to hospitals identified in subdivision (1)(c) of section 48-120.

(2) For inpatient discharges on or after January 1, 2008, the Diagnostic Related Group inpatient hospital fee schedule shall be as set forth in this section, except as otherwise provided in subdivision (1)(d) of section 48-120. Adjustments shall be made annually as provided in this section, with such adjustments to become effective each January 1.

(3) For inpatient trauma discharges on or after January 1, 2012, the trauma services inpatient hospital fee schedule shall be as set forth in this section, except as otherwise provided in subdivision (1)(d) of section 48-120. Adjustments shall be made annually as provided in this section, with such adjustments to become effective each January 1.

(4) For purposes of this section:

(a) Current Medicare Factor is derived from the Diagnostic Related Group Prospective Payment System as established by the Centers for Medicare and Medicaid Services under the United States Department of Health and Human Services and means the summation of the following components:

(i) Hospital-specific Federal Standardized Amount, including all wage index adjustments and reclassifications;

(ii) Hospital-specific Capital Standard Federal Rate, including geographic, outlier, and exception adjustment factors;

(iii) Hospital-specific Indirect Medical Education Rate, reflecting a percentage add-on for indirect medical education costs and related capital; and

(iv) Hospital-specific Disproportionate Share Hospital Rate, reflecting a percentage add-on for disproportionate share of low-income patient costs and related capital;

(b) Current Medicare Weight means the weight assigned to each Medicare Diagnostic Related Group as established by the Centers for Medicare and Medicaid Services under the United States Department of Health and Human Services;

(c) Diagnostic Related Group means the Diagnostic Related Group assigned to inpatient hospital services using the public domain classification and methodology system developed for the Centers for Medicare and Medicaid Services under the United States Department of Health and Human Services;

(d) Trauma means a major single-system or multisystem injury requiring immediate medical or surgical intervention or treatment to prevent death or permanent disability;

(e) Workers' Compensation Factor means the Current Medicare Factor for each hospital multiplied by one hundred fifty percent except for inpatient hospital trauma services; and

(f) Workers' Compensation Trauma Factor for inpatient hospital trauma services means the Current Medicare Factor for each hospital multiplied by one hundred sixty percent.

(5) The Diagnostic Related Group inpatient hospital fee schedule shall include at least thirty-eight of the most frequently utilized Medicare Diagnostic Related Groups for workers' compensation with the goal that the fee schedule covers at least ninety percent of all workers' compensation inpatient hospital claims submitted by hospitals identified in subdivision (1)(c) of section 48-120. Rehabilitation Diagnostic Related Groups shall not be included in the Diagnostic Related Group inpatient hospital fee schedule. Claims for inpatient trauma services shall not be reimbursed under the Diagnostic Related Group inpatient hospital fee schedule established under this section. Claims for inpatient trauma services prior to January 1, 2012, shall be reimbursed under the fees established by the compensation court pursuant to subdivision (1)(b) of section 48-120 or as contracted pursuant to subdivision (1)(d) of such section. Claims for inpatient trauma services on or after January 1, 2012, for Diagnostic Related Groups subject to the Diagnostic Related Group inpatient hospital fee schedule shall be reimbursed under the trauma services inpatient hospital fee schedule established in this section, except as otherwise provided in subdivision (1)(d) of section 48-120.

(6) The trauma services inpatient hospital fee schedule shall be established by the following methodology:

(a) The trauma services reimbursement amount required under the Nebraska Workers' Compensation Act shall be equal to the Current Medicare Weight multiplied by the Workers' Compensation Trauma Factor for each hospital;

(b) The Stop-Loss Threshold amount shall be the trauma services reimbursement amount calculated in subdivision (6)(a) of this section multiplied by one and one-quarter;

(c) For charges over the Stop-Loss Threshold amount of the schedule, the hospital shall be reimbursed the trauma services reimbursement amount calculated in subdivision (6)(a) of this section plus sixty-five percent of the charges over the Stop-Loss Threshold amount; and

(d) For charges less than the Stop-Loss Threshold amount of the schedule, the hospital shall be reimbursed the lower of the hospital's billed charges or the trauma services reimbursement amount calculated in subdivision (6)(a) of this section.

(7) The Diagnostic Related Group inpatient hospital fee schedule shall be established by the following methodology:

(a) The Diagnostic Related Group reimbursement amount required under the Nebraska Workers' Compensation Act shall be equal to the Current Medicare Weight multiplied by the Workers' Compensation Factor for each hospital;

(b) The Stop-Loss Threshold amount shall be the Diagnostic Related Group reimbursement amount calculated in subdivision (7)(a) of this section multiplied by two and one-half;

(c) For charges over the Stop-Loss Threshold amount of the schedule, the hospital shall be reimbursed the Diagnostic Related Group reimbursement amount calculated in subdivision (7)(a) of this section plus sixty percent of the charges over the Stop-Loss Threshold amount; and

(d) For charges less than the Stop-Loss Threshold amount of the schedule, the hospital shall be reimbursed the lower of the hospital's billed charges or the Diagnostic Related Group reimbursement amount calculated in subdivision (7)(a) of this section.

(8) For charges for all other stays or services that are not reimbursed under the Diagnostic Related Group inpatient hospital fee schedule or the trauma services inpatient hospital fee schedule or are not contracted for under subdivision (1)(d) of section 48-120, the hospital shall be reimbursed under the schedule of fees established by the compensation court pursuant to subdivision (1)(b) of section 48-120.

(9) Each hospital shall assign and include a Diagnostic Related Group on each workers' compensation claim submitted. The workers' compensation insurer, risk management pool, or self-insured employer may audit the Diagnostic Related Group assignment of the hospital.

(10) The chief executive officer of each hospital shall sign and file with the administrator of the compensation court by October 15 of each year, in the form and manner prescribed by the administrator, a sworn statement disclosing the Current Medicare Factor of the hospital in effect on October 1 of such year and each item and amount making up such factor.

(11) Each hospital, workers' compensation insurer, risk management pool, and self-insured employer shall report to the administrator of the compensation court by October 15 of each year, in the form and manner prescribed by the administrator, the total number of claims submitted for each Diagnostic Related Group, the number of claims for each Diagnostic Related Group that included trauma services, the number of times billed charges exceeded the Stop-Loss Threshold amount for each Diagnostic Related Group, and the number of times billed charges exceeded the Stop-Loss Threshold amount for each trauma service.

(12) The compensation court may add or subtract Diagnostic Related Groups in striving to achieve the goal of including those Diagnostic Related Groups that encompass at least ninety percent of the inpatient hospital workers' compensation claims submitted by hospitals identified in subdivision (1)(c) of section 48-120. The administrator of the compensation court shall annually make necessary adjustments to comply with the Current Medicare Weights and shall annually adjust the Current Medicare Factor for each hospital based on the annual statement submitted pursuant to subsection (10) of this section.

Source:Laws 2007, LB588, § 2; Laws 2009, LB630, § 2; Laws 2010, LB872, § 1; Laws 2011, LB152, § 2.

48-121. Compensation; schedule; total, partial, and temporary disability; injury to specific parts of the body; amounts and duration of payments.

The following schedule of compensation is hereby established for injuries resulting in disability:

(1) For total disability, the compensation during such disability shall be sixty-six and two-thirds percent of the wages received at the time of injury, but such compensation shall not be more than the maximum weekly income benefit specified in section 48-121.01 nor less than the minimum weekly income benefit specified in section 48-121.01, except that if at the time of injury the employee receives wages of less than the minimum weekly income benefit specified in section 48-121.01, then he or she shall receive the full amount of such wages per week as compensation. Nothing in this subdivision shall require payment of compensation after disability shall cease;

(2) For disability partial in character, except the particular cases mentioned in subdivision (3) of this section, the compensation shall be sixty-six and two-thirds percent of the difference between the wages received at the time of the injury and the earning power of the employee thereafter, but such compensation shall not be more than the maximum weekly income benefit specified in section 48-121.01. This compensation shall be paid during the period of such partial disability but not beyond three hundred weeks. Should total disability be followed by partial disability, the period of three hundred weeks mentioned in this subdivision shall be reduced by the number of weeks during which compensation was paid for such total disability;

(3) For disability resulting from permanent injury of the classes listed in this subdivision, the compensation shall be in addition to the amount paid for temporary disability, except that the compensation for temporary disability shall cease as soon as the extent of the permanent disability is ascertainable. For disability resulting from permanent injury of the following classes, compensation shall be: For the loss of a thumb, sixty-six and two-thirds percent of daily wages during sixty weeks. For the loss of a first finger, commonly called the index finger, sixty-six and two-thirds percent of daily wages during thirty-five weeks. For the loss of a second finger, sixty-six and two-thirds percent of daily wages during thirty weeks. For the loss of a third finger, sixty-six and two-thirds percent of daily wages during twenty weeks. For the loss of a fourth finger, commonly called the little finger, sixty-six and two-thirds percent of daily wages during fifteen weeks. The loss of the first phalange of the thumb or of any finger shall be considered to be equal to the loss of one-half of such thumb or finger and compensation shall be for one-half of the periods of time above specified, and the compensation for the loss of one-half of the first phalange shall be for one-fourth of the periods of time above specified. The loss of more than one phalange shall be considered as the loss of the entire finger or thumb, except that in no case shall the amount received for more than one finger exceed the amount provided in this schedule for the loss of a hand. For the loss of a great toe, sixty-six and two-thirds percent of daily wages during thirty weeks. For the loss of one of the toes other than the great toe, sixty-six and two-thirds percent of daily wages during ten weeks. The loss of the first phalange of any toe shall be considered equal to the loss of one-half of such toe, and compensation shall be for one-half of the periods of time above specified. The loss of more than one phalange shall be considered as the loss of the entire toe. For the loss of a hand, sixty-six and two-thirds percent of daily wages during one hundred seventy-five weeks. For the loss of an arm, sixty-six and two-thirds percent of daily wages during two hundred twenty-five weeks. For the loss of a foot, sixty-six and two-thirds percent of daily wages during one hundred fifty weeks. For the loss of a leg, sixty-six and two-thirds percent of daily wages during two hundred fifteen weeks. For the loss of an eye, sixty-six and two-thirds percent of daily wages during one hundred twenty-five weeks. For the loss of an ear, sixty-six and two-thirds percent of daily wages during twenty-five weeks. For the loss of hearing in one ear, sixty-six and two-thirds percent of daily wages during fifty weeks. For the loss of the nose, sixty-six and two-thirds percent of daily wages during fifty weeks.

In any case in which there is a loss or loss of use of more than one member or parts of more than one member set forth in this subdivision, but not amounting to total and permanent disability, compensation benefits shall be paid for the loss or loss of use of each such member or part thereof, with the periods of benefits to run consecutively. The total loss or permanent total loss of use of both hands, or both arms, or both feet, or both legs, or both eyes, or hearing in both ears, or of any two thereof, in one accident, shall constitute total and permanent disability and be compensated for according to subdivision (1) of this section. In all other cases involving a loss or loss of use of both hands, both arms, both feet, both legs, both eyes, or hearing in both ears, or of any two thereof, total and permanent disability shall be determined in accordance with the facts. Amputation between the elbow and the wrist shall be considered as the equivalent of the loss of a hand, and amputation between the knee and the ankle shall be considered as the equivalent of the loss of a foot. Amputation at or above the elbow shall be considered as the loss of an arm, and amputation at or above the knee shall be considered as the loss of a leg. Permanent total loss of the use of a finger, hand, arm, foot, leg, or eye shall be considered as the equivalent of the loss of such finger, hand, arm, foot, leg, or eye. In all cases involving a permanent partial loss of the use or function of any of the members mentioned in this subdivision, the compensation shall bear such relation to the amounts named in such subdivision as the disabilities bear to those produced by the injuries named therein.

If, in the compensation court's discretion, compensation benefits payable for a loss or loss of use of more than one member or parts of more than one member set forth in this subdivision, resulting from the same accident or illness, do not adequately compensate the employee for such loss or loss of use and such loss or loss of use results in at least a thirty percent loss of earning capacity, the compensation court shall, upon request of the employee, determine the employee's loss of earning capacity consistent with the process for such determination under subdivision (1) or (2) of this section, and in such a case the employee shall not be entitled to compensation under this subdivision.

If the employer and the employee are unable to agree upon the amount of compensation to be paid in cases not covered by the schedule, the amount of compensation shall be settled according to sections 48-173 to 48-185. Compensation under this subdivision shall not be more than the maximum weekly income benefit specified in section 48-121.01 nor less than the minimum weekly income benefit specified in section 48-121.01, except that if at the time of the injury the employee received wages of less than the minimum weekly income benefit specified in section 48-121.01, then he or she shall receive the full amount of such wages per week as compensation;

(4) For disability resulting from permanent disability, if immediately prior to the accident the rate of wages was fixed by the day or hour, or by the output of the employee, the weekly wages shall be taken to be computed upon the basis of a workweek of a minimum of five days, if the wages are paid by the day, or upon the basis of a workweek of a minimum of forty hours, if the wages are paid by the hour, or upon the basis of a workweek of a minimum of five days or forty hours, whichever results in the higher weekly wage, if the wages are based on the output of the employee; and

(5) The employee shall be entitled to compensation from his or her employer for temporary disability while undergoing physical or medical rehabilitation and while undergoing vocational rehabilitation whether such vocational rehabilitation is voluntarily offered by the employer and accepted by the employee or is ordered by the Nebraska Workers' Compensation Court or any judge of the compensation court.

Source:Laws 1913, c. 198, § 21, p. 586; R.S.1913, § 3662; Laws 1917, c. 85, § 7, p. 202; Laws 1919, c. 91, § 2, p. 228; Laws 1921, c. 122, § 1, p. 521; C.S.1922, § 3044; C.S.1929, § 48-121; Laws 1935, c. 57, § 41, p. 210; C.S.Supp.,1941, § 48-121; R.S.1943, § 48-121; Laws 1945, c. 112, § 1, p. 357; Laws 1949, c. 160, § 1, p. 403; Laws 1951, c. 152, § 1, p. 617; Laws 1953, c. 162, § 1, p. 506; Laws 1955, c. 186, § 1, p. 527; Laws 1957, c. 203, § 1, p. 710; Laws 1957, c. 204, § 1, p. 716; Laws 1959, c. 223, § 1, p. 784; Laws 1963, c. 284, § 1, p. 847; Laws 1963, c. 285, § 1, p. 854; Laws 1965, c. 279, § 1, p. 800; Laws 1967, c. 288, § 1, p. 783; Laws 1969, c. 388, § 3, p. 1360; Laws 1969, c. 393, § 1, p. 1378; Laws 1971, LB 320, § 1; Laws 1973, LB 193, § 1; Laws 1974, LB 710, § 1; Laws 1974, LB 807, § 1; Laws 1974, LB 808, § 1; Laws 1975, LB 198, § 1; Laws 1977, LB 275, § 1; Laws 1978, LB 446, § 1; Laws 1979, LB 114, § 1; Laws 1979, LB 358, § 1; Laws 1983, LB 158, § 1; Laws 1985, LB 608, § 1; Laws 1993, LB 757, § 4; Laws 1999, LB 216, § 5; Laws 2007, LB588, § 4.

Annotations

1. Permanent total disability

2. Temporary total disability

3. Partial disability

4. Permanent injury, specific classes

5. Disability generally

6. Whole body impairment

7. Vocational rehabilitation

8. Earning power

9. Labor market or hub community

10. Average weekly wage

11. Miscellaneous

1. Permanent total disability

A worker is not, as a matter of law, totally disabled under this section solely because the worker's disability prevents him or her from working full time. Armstrong v. State, 290 Neb. 205, 859 N.W.2d 541 (2015).

In a workers' compensation case, total disability does not mean a state of absolute helplessness. It means that because of an injury, (1) a worker cannot earn wages in the same kind of work, or work of a similar nature, that he or she was trained for or accustomed to perform or (2) the worker cannot earn wages for work for any other kind of work which a person of his or her mentality and attainments could do. Money v. Tyrrell Flowers, 275 Neb. 602, 748 N.W.2d 49 (2008).

Under the "odd-lot doctrine," total disability may be found in the case of workers who, while not altogether incapacitated for work, are so handicapped that they will not be employed regularly in any well-known branch of the labor market. The essence of the test is the probable dependability with which claimant can sell his services in a competitive labor market, undistorted by such factors as business booms, sympathy of a particular employer or friends, temporary good luck, or the superhuman efforts of the claimant to rise above his crippling handicaps. Money v. Tyrrell Flowers, 275 Neb. 602, 748 N.W.2d 49 (2008).

Total disability in the context of the workers' compensation law does not mean a state of absolute helplessness, but means disablement of an employee to earn wages in the same kind of work, or work of a similar nature, that he or she was trained for or accustomed to perform, or any other kind of work which a person of his or her mentality and attainments could do. Mata v. Western Valley Packing, 236 Neb. 584, 462 N.W.2d 869 (1990).

An employee's return to work does not in every case terminate an employee's total disability from a work-related injury. Pursuant to subsections (1) and (2) of this section, an employee's disability is determined by the employee's diminution of employability or impairment of earning power or earning capacity, and is not necessarily determined by a physician's evaluation and assessment of the employee's loss of bodily function. Heiliger v. Walters & Heiliger Electric, Inc., 236 Neb. 459, 461 N.W.2d 565 (1990).

Total disability in the context of the workers' compensation law does not mean a state of absolute helplessness, but means disablement of an employee to earn wages in the same kind of work, or work of a similar nature, that he or she was trained for or accustomed to perform, or any other kind of work which a person of his or her mentality and attainments could do. Luehring v. Tibbs Constr. Co., 235 Neb. 883, 457 N.W.2d 815 (1990).

Whether a partial loss or loss of use of two members results in total and permanent disability is to be determined in accordance with the facts. Evidence shows that plaintiff was permanently totally disabled as a matter of law. Krijan v. Mainelli Constr. Co., 216 Neb. 186, 342 N.W.2d 662 (1984).

An employee may be totally disabled but still able, on occasion, to obtain trivial employment. Craig v. American Community Stores, Inc., 205 Neb. 286, 287 N.W.2d 426 (1980).

An employee who has permanent total disability from separate accidents is entitled to compensation out of the Second Injury Fund even though the injuries were schedule injuries. Camp v. Blount Bros. Corp., 195 Neb. 459, 238 N.W.2d 634 (1976).

A claimant who sustains the loss of use of his right hand and a permanent partial loss of use of his right leg is entitled to compensation under subdivision (1) of this section for that proportion of the compensation allowed for total disability as the extent of the loss of the use of the two members bears to the total loss of such members. Wiekhorst v. Rural Electric Co., Inc., 186 Neb. 445, 183 N.W.2d 747 (1971).

An employee may be totally disabled for all practical purposes and yet be able to obtain trivial occasional employment. Brockhaus v. L. E. Ball Constr. Co., 180 Neb. 737, 145 N.W.2d 341 (1966).

Injury sustained to both feet under extraordinary conditions resulted in permanent total disability. Mead v. Missouri Valley Grain, Inc., 178 Neb. 553, 134 N.W.2d 243 (1965).

Award of total disability, which resulted from conversion reaction following injury to back, was sustained. Haskett v. National Biscuit Co., 177 Neb. 915, 131 N.W.2d 597 (1964).

An injury to fingers only on both hands does not authorize an award for total and permanent disability. Runyan v. Lockwood Graders, Inc., 176 Neb. 676, 127 N.W.2d 186 (1964).

There may be total permanent disability even though there is only a permanent partial loss of bodily function. Nordahl v. Erickson, 174 Neb. 204, 116 N.W.2d 275 (1962).

Workman was entitled to award for total disability from an occupational disease. Riggs v. Gooch Milling & Elevator Co., 173 Neb. 70, 112 N.W.2d 531 (1961).

Total disability is defined in terms of employability and earning capacity. Rapp v. Hale, 170 Neb. 620, 103 N.W.2d 851 (1960).

Where employee was wholly unable to perform the duties of former employment or work of like nature, he was entitled to recover for permanent total disability. Tilghman v. Mills, 169 Neb. 665, 100 N.W.2d 739 (1960).

Permanent total disability may result from unusual and extraordinary condition arising from injury to specific members. Haler v. Gering Bean Co., 163 Neb. 748, 81 N.W.2d 152 (1957).

Total disability can only be held to exist where workman is unable to get, hold, or do any substantial amount of remunerative work, either in his previous occupation or in any other established field of employment for which he is fitted. Elliott v. Gooch Feed Mill Co., 147 Neb. 612, 24 N.W.2d 561 (1946).

Workman was totally disabled when he was unable, on account of his injury, to perform or to obtain any substantial amount of labor, either in his particular line of work or in any other for which he would be fitted except for the injury. Elliott v. Gooch Feed Mill Co., 147 Neb. 309, 23 N.W.2d 262 (1946).

Total disability exists only where workman is unable to get, hold, or do any substantial amount of remunerative work. Micek v. Omaha Steel Works, 136 Neb. 843, 287 N.W. 645 (1939).

Where employee was totally disabled and was earning twenty-four dollars a week at time of injury, he was entitled to compensation after the first three hundred weeks and for the remainder of his life at the rate of forty-five percent of his weekly wage. Montgomery v. Milldale Farm & Live Stock Improvement Co., 124 Neb. 347, 246 N.W. 734 (1933).

Where injury affected the whole nervous system in such manner as to disable claimant from doing any work, he was entitled to an award for total disability. Nebraska Nat. Guard v. Morgan, 112 Neb. 432, 199 N.W. 557 (1924).

Where injury wholly unfitted employee for the work he was engaged in at the time he received his injuries, an award for total disability was justified. Troxcil v. Morris & Co., 107 Neb. 817, 186 N.W. 978 (1922).

2. Temporary total disability

A workers’ compensation claimant who leaves a job with an employer responsible for an injury in order to pursue more desirable employment does not waive temporary total disability benefits simply because the employer responsible for the injury would have accommodated light-duty restrictions during postsurgical recovery periods necessitated by the injury. Zwiener v. Becton Dickinson-East, 285 Neb. 735, 829 N.W.2d 113 (2013).

Under subdivision (5) of this section, an injured employee may not undertake rehabilitation on his or her own and receive temporary total disability benefits without approval from either the court or his or her former employer. Bixenmann v. H. Kehm Constr., 267 Neb. 669, 676 N.W.2d 370 (2004).

Because benefits received during vocational rehabilitation under subsection (5) of this section may be "temporary total disability" benefits, a species of total disability benefits, and where such benefits are followed by "partial disability" benefits, pursuant to subsection (2) of this section, the 300-week period shall be reduced by the number of weeks during which compensation was paid for such total disability. Sheldon-Zimbelman v. Bryan Memorial Hosp., 258 Neb. 568, 604 N.W.2d 396 (2000).

An employee awarded temporary total disability payments is entitled to suspension of a prior unrelated award for a permanent partial disability caused by a previous accident until the temporary total disability payments cease. Anderson v. Omaha Pub. Sch. Dist., 254 Neb. 1007, 581 N.W.2d 424 (1998).

Claimant was entitled to maximum for total temporary disability. Myszkowski v. Wilson & Co., Inc., 155 Neb. 714, 53 N.W.2d 203 (1952).

Award of temporary total disability and partial permanent disability was proper. Riggins v. Lincoln Tent & Awning Co., 143 Neb. 893, 11 N.W.2d 810 (1943).

An employee is not prevented from receiving compensation for temporary total disability to perform the duties in which he is engaged at the time of an accident merely because he is then receiving an unrelated allowance for a permanent partial disability from a previous accident. Hansen v. Paxton & Vierling Iron Works, 138 Neb. 589, 293 N.W. 415 (1940).

An award of temporary partial disability is authorized, even though permanent partial disability must also be computed for loss of specific member. Dennehy v. Lincoln Steel Works, 136 Neb. 269, 285 N.W. 590 (1939).

Rule for determining compensation allowable for permanent partial loss of injured members, and temporary total disability, is stated. Poast v. Omaha Merchants Exp. & Trans. Co., 107 Neb. 516, 186 N.W. 540 (1922).

Allowance may be made for temporary total disability in addition to allowance for permanent partial loss of use of finger. Ulaski v. Morris & Co., 106 Neb. 782, 184 N.W. 946 (1921).

The 300-week limitation found in subsection (2) of this section does not apply to benefits for temporary total disability awarded under subsection (1) of this section. Heppler v. Omaha Cable, 16 Neb. App. 267, 743 N.W.2d 383 (2007).

3. Partial disability

Pursuant to subdivision (2) of this section, permanent partial disability benefits are measured not by loss of bodily function, but by reduction in or loss of earning power or employability. Picard v. P & C Group 1, 306 Neb. 292, 945 N.W.2d 183 (2020).

Worker's compensation benefits awarded under subsection (2) of this section are not measured by loss of bodily function, but by reduction in earning power or employability. An employee's disability as a basis for compensation under subsections (1) and (2) of this section is determined by the employee's diminution of employability or impairment of earning power or earning capacity and is not necessarily determined by a physician's evaluation and assessment of the employee's loss of bodily function. Frauendorfer v. Lindsay Mfg. Co., 263 Neb. 237, 639 N.W.2d 125 (2002).

Compensation for permanent partial disability to the body as a whole is compensated on the basis of loss of earning capacity and employability rather than functional or medical loss. Musil v. J.A. Baldwin Manuf. Co., 233 Neb. 901, 448 N.W.2d 591 (1989).

Where pain is sufficiently severe to prevent a normal function of a body member, a partial loss results within the purview of this section. Cain v. La Grange Steel Erectors, Inc., 195 Neb. 272, 237 N.W.2d 640 (1976).

Workman sustained a permanent partial disability from organic heart disease and a cardiac arrest. Arlauskas v. Western Electric Co., 180 Neb. 790, 145 N.W.2d 925 (1966).

Rule for computation of allowance for permanent partial disability applied. Gourley v. City of Grand Island, 168 Neb. 538, 96 N.W.2d 309 (1959).

Injury to back justified award for permanent partial disability. Pittenger v. Safeway Stores, Inc., 166 Neb. 858, 91 N.W.2d 31 (1958).

Permanent partial disability is compensated for by award based on difference between wages received at time of injury and earning power thereafter. Turner v. Beatrice Foods Co., 165 Neb. 338, 85 N.W.2d 721 (1957).

Compensation for two-member permanent partial disability is determined by first applying percentage of disability to wage rate. Paulsen v. City of Lincoln, 156 Neb. 872, 58 N.W.2d 336 (1953).

Rule for computation of award for temporary partial disability is stated. Peek v. Ayres Auto Supply, 155 Neb. 233, 51 N.W.2d 387 (1952).

Extent of permanent disability is not finally determinable until employee is restored to health insofar as the nature of his injuries will permit. Allen v. Department of Roads & Irrigation, 149 Neb. 837, 32 N.W.2d 740 (1948).

Where there is a permanent partial disability, employee is entitled to compensation for three hundred weeks from date of injury. Klement v. H. P. Lau Co., 138 Neb. 144, 292 N.W. 381 (1940).

Where claimant has sustained loss of use of hand and loss of use of leg, he is entitled to such compensation under subdivision (1) as the extent of loss of the use of two members will bear to the total loss of use of such members. Fallis v. Vogel, 137 Neb. 598, 290 N.W. 461 (1940).

Where injuries are not permanent in character, an award may be made for total disability followed by partial disability. Mutchie v. M. L. Rawlings Ice Co., 122 Neb. 297, 240 N.W. 267 (1932).

Method of computing permanent partial disability is by applying percentage of disability to period of compensation. Lewis v. Allied Contractors, 118 Neb. 605, 225 N.W. 770 (1929).

Where there is a permanent partial loss of hand and feet, compensation should be allowed under subdivision (1). Ashton v. Blue River Power Co., 117 Neb. 661, 222 N.W. 42 (1928).

Where employee suffered permanent partial disability to his legs, he was entitled to recover such proportion of compensation under subdivision (1) as the extent of his loss would bear to the total loss of such members. Schlesselman v. Trav. Ins. Co., 112 Neb. 332, 199 N.W. 498 (1924); Frost v. United States Fidelity & Guaranty Co., 109 Neb. 161, 190 N.W. 208 (1922).

Where injury results in permanent partial loss of use of both arms, employee is entitled to recover such proportion of compensation allowed for total disability as the extent of the loss would bear to total loss of such members. Johnson v. David Cole Creamery Co., 109 Neb. 707, 192 N.W. 127 (1923).

Compensation allowable for permanent partial disability is such proportion of entire loss as disability produced bears to whole. Hall v. Germantown State Bank, 105 Neb. 709, 181 N.W. 609 (1921).

Where there are permanent injuries to two or more fingers, allowance should be made for permanent partial loss of hand. Updike Grain Co. v. Swanson, 103 Neb. 872, 174 N.W. 862 (1919).

Pursuant to subdivision (2) of this section, where a trial court is not called upon to make a determination of loss of earning power until after completion of vocational rehabilitation, the court is not required to retroactively look to the extent of loss of earning power as of the date of maximum medical improvement and disregard the documented change in loss of earning power flowing from completion of vocational rehabilitation. Grandt v. Douglas County, 14 Neb. App. 219, 705 N.W.2d 600 (2005).

Under this section, when dealing with temporary partial disability, one cannot be earning wages at a similar job with the same employer and at the same time have suffered a 100-percent loss of earning capacity. Kam v. IBP, Inc., 12 Neb. App. 855, 686 N.W.2d 631 (2004).

Subsection (2) of this section provides for the compensation court to reduce the period for which partial disability benefits are recoverable when total disability is followed by partial disability, but does not allow the court to make a similar reduction in benefits when partial disability is followed by total disability. Bennett v. J. C. Robinson Seed Co., 7 Neb. App. 525, 583 N.W.2d 370 (1998).

4. Permanent injury, specific classes

An employee suffering a below-the-knee amputation was not entitled to consecutive amounts of disability benefits for the loss of his five toes, his foot, and his leg, because subdivision (3) of this section explicitly states that a below-the-knee amputation is the equivalent of a loss of a foot and because, as a general rule, a party may not have double recovery for a single injury. Melton v. City of Holdrege, 309 Neb. 385, 960 N.W.2d 298 (2021).

Disability as a basis for compensation under subdivision (3) of this section is determined by the loss of use of a body member, not loss of earning power. Lenz v. Central Parking System of Neb., 288 Neb. 453, 848 N.W.2d 623 (2014).

The extent of disability to a scheduled member under subdivision (3) of this section can be expressed in terms of percent. Lenz v. Central Parking System of Neb., 288 Neb. 453, 848 N.W.2d 623 (2014).

The third paragraph of subdivision (3) of this section does not require expert proof of permanent physical restrictions assigned to each injured member in order to perform the loss of earning capacity assessment thereunder. Rodgers v. Nebraska State Fair, 288 Neb. 92, 846 N.W.2d 195 (2014).

The amendment by 2007 Neb. Laws, L.B. 588, to subdivision (3) of this section, which permits an employee to recover benefits for loss of earning capacity from a loss or loss of use of more than one member resulting in at least a 30-percent loss of earning capacity, was substantive, rather than procedural, and, therefore, did not apply retroactively to a claimant injured in an accident before the effective date of the amendment. Smith v. Mark Chrisman Trucking, 285 Neb. 826, 829 N.W.2d 717 (2013).

For scheduled disabilities under subsection (3) of this section, a worker is compensated for his or her loss of use of a body member, loss of earning power is immaterial in determining compensation under subsection (3). Risor v. Nebraska Boiler, 277 Neb. 679, 765 N.W.2d 170 (2009).

Under this section, impairments to the body as a whole are compensated in terms of loss of earning power or capacity, but impairments of scheduled members are compensated on the basis of loss of physical function. The test for determining whether a disability is to a scheduled member or to the body as a whole is the location of the residual impairment, not the situs of the injury. Snyder v. IBP, Inc., 235 Neb. 319, 455 N.W.2d 157 (1990).

The language concerning the partial loss of use of multiple members contained in subsection (3) of this section applies only where the losses of use are the consequence of injuries sustained in a single compensable accident. Rodriquez v. Prime Meat Processors, 228 Neb. 55, 421 N.W.2d 32 (1988).

An employee suffering a schedule injury is entitled only to the compensation provided for in subsection (3) of this section, unless some unusual or extraordinary condition as to the other members or parts of the body develops as a result of the injury. Evans v. American Community Stores, 222 Neb. 538, 385 N.W.2d 91 (1986).

An injury that results in the inability to produce tears to wash the eye is a scheduled injury to the eye. Doggett v. Brunswick Corp., 217 Neb. 166, 347 N.W.2d 877 (1984).

When a "schedule injury" results in unusual or extraordinary conditions which affect other parts of the body, recovery is not limited to the amount specified in the schedule. In this case, where a fractured femur healed in such a way that a deformity developed which affected the hip and other parts of the body, the employee was entitled to benefits beyond those in the schedule. Scamperino v. Federal Envelope Co., 205 Neb. 508, 298 N.W.2d 477 (1980).

Compensation under subdivisions (1) and (2) herein are not available for schedule injuries compensable under subdivision (3), except under unusual conditions. Broderson v. Federal Chemical Co., 199 Neb. 278, 258 N.W.2d 137 (1977).

Compensation for disability resulting from a specific injury listed in subdivision (3) is limited to the amount specified. Guerin v. Insurance Co. of North America, 183 Neb. 30, 157 N.W.2d 779 (1968).

In the absence of other extraordinary physical injury, compensation for loss of foot cannot exceed the amount specified in subdivision (3) of this section. Burrious v. North Platte Packing Co., 182 Neb. 122, 153 N.W.2d 353 (1967).

Loss of fingers on both hands alone does not entitle employee to compensation for permanent total disability. Runyan v. State, 179 Neb. 371, 138 N.W.2d 484 (1965).

The extent of permanent disability is not finally determinable until the employee is restored to good health insofar as the nature of his injuries will permit. Uzendoski v. City of Fullerton, 177 Neb. 779, 131 N.W.2d 193 (1964).

Compensation under subdivision (3) includes the loss of binocular vision of the eye. Brewer v. Hilberg, 173 Neb. 863, 115 N.W.2d 437 (1962).

Loss of teeth and cut on lip were not compensable under subdivision (3). Wengler v. Grosshans Lumber Co., 173 Neb. 839, 115 N.W.2d 415 (1962).

Compensation was not limited to loss of use of leg where disability was also to back. Gilbert v. Metropolitan Utilities Dist., 156 Neb. 750, 57 N.W.2d 770 (1953).

Method of computing award for permanent partial loss of use of both hands stated. Paulsen v. City of Lincoln, 156 Neb. 702, 57 N.W.2d 666 (1953).

Combination of injuries to right and left wrists was sufficient to produce total disability. Franzen v. Blakley, 155 Neb. 621, 52 N.W.2d 833 (1952).

As it relates to an accidental injury to an eye, capable of industrial use and injured in industry, intent of section is to compensate for loss occasioned thereby to extent provided. Gruber v. Stickelman, 149 Neb. 627, 31 N.W.2d 753 (1948).

In a claim for compensation under subdivision (3), it is immaterial whether an industrial disability is present or not. Bronson v. City of Fremont, 143 Neb. 281, 9 N.W.2d 218 (1943).

In providing compensation for loss of eye it was the legislative intent to indemnify the injured workman to the full extent of his industrial loss occasioned thereby. Bolen v. Buller, 143 Neb. 237, 9 N.W.2d 204 (1943).

Where injury destroys the sight of an eye for industrial purposes, although with artificial means vision may be partially restored, an employee is entitled to compensation for loss of an eye. Otoe Food Products Co. v. Cruickshank, 141 Neb. 298, 3 N.W.2d 452 (1942).

Award for loss of use of eye is not based upon the amount of vision which existed previous to the accident, but is a specific amount to compensate to the full extent the industrial loss sustained. Ames v. Sanitary District, 140 Neb. 879, 2 N.W.2d 530 (1942).

Where fingers are injured and the disability resulting therefrom is normal, compensation cannot be awarded in addition to that provided in the statutory schedule for loss of use of fingers. Ottens v. Western Contracting Co., 139 Neb. 78, 296 N.W. 431 (1941).

Where claimant does not suffer any industrial disability as the result of an accident, he is not entitled to recover for total disability under subdivision (1), but this does not prevent recovery of compensation under subdivision (3) where there is impairment of physiological functions. Schmidt v. City of Lincoln, 137 Neb. 546, 290 N.W. 250 (1940).

Injury resulting in loss of use of hand is compensable exclusively under subdivision (3) providing schedule for specific injuries. Huff v. Omaha Cold Storage Co., 136 Neb. 907, 287 N.W. 764 (1939).

The provisions of subdivision (3) are exclusive, and the employee may not recover for the loss of stereoscopic vision plus the loss of an eye, the stereoscopic vision being incidental to the loss. Carlson v. Condon-Kiewit Co., 135 Neb. 587, 283 N.W. 220 (1939).

Where effect of injury to finger only is usual and natural one, compensation cannot be allowed for loss of use of hand. Greseck v. Farmers Union Elevator Co., 123 Neb. 755, 243 N.W. 898 (1932).

Claimant for compensation who has sustained injury to both legs and both hands, is entitled to recover such proportion of compensation allowed for total disability, as the extent of loss of the several members bears to the total loss of two such members. Radford v. Smith Bros., Inc., 123 Neb. 13, 241 N.W. 753 (1932).

Loss of use of leg compensable as if leg had been removed. Schroeder v. Holt County, 113 Neb. 736, 204 N.W. 815 (1925).

Compensation for the loss of an eye is confined exclusively to amount specified for loss of eye. Abel Constr. Co. v. Goodman, 105 Neb. 700, 181 N.W. 713 (1921).

Compensation for permanent loss of use of leg is limited to amount specified for loss of leg. Hull v. United States Fidelity & Guaranty Co., 102 Neb. 246, 166 N.W. 628 (1918).

Loss of toe does not entitle employee to compensation unless injury has impaired earning power. Epsten v. Hancock-Epsten Co., 101 Neb. 442, 163 N.W. 767 (1917).

Where deep cut severed the tendons in wrist and severed the ulnar nerve, award for permanent loss of use of hand was justified. Miller v. Morris & Co., 101 Neb. 169, 162 N.W. 417 (1917).

Under subsection (3) of this section, if a worker has a two-member injury, compensation shall be determined by the facts, and the existing or concurrent injury to another part of the body is one of these facts, even if that injury is not to a member as defined in that same subsection. Xayaseng v. Chief Indus., Inc., 7 Neb. App. 911, 586 N.W.2d 472 (1998).

5. Disability generally

This section provides compensation for three categories of job-related disabilities. Subdivision (1) sets the amount of compensation for total disability; subdivision (2) sets the amount of compensation for partial disability, except in cases covered by subdivision (3); and subdivision (3) sets out "schedule" injuries to specified parts of the body with compensation established therefor. Picard v. P & C Group 1, 306 Neb. 292, 945 N.W.2d 183 (2020).

Disability, in contrast to impairment, is an economic inquiry in a workers' compensation case. It can be determined only within the context of the personal, social, or occupational demands or statutory or regulatory requirements that the individual is unable to meet because of the impairment. Money v. Tyrrell Flowers, 275 Neb. 602, 748 N.W.2d 49 (2008).

Disability is determined by diminution of employability or impairment of earning power or capacity, not necessarily by a physician's evaluation of loss of bodily function. Sherard v. Bethphage Mission, Inc., 236 Neb. 900, 464 N.W.2d 343 (1991).

Disability is defined in terms of employability and earning capacity rather than in terms of loss of bodily function. McGee v. Panhandle Technical Sys., 223 Neb. 56, 387 N.W.2d 709 (1986).

Disability under the Nebraska Workmen's Compensation Act is defined in terms of employability and earning capacity rather than in terms of loss of bodily function. Minshall v. Plains Mfg. Co., 215 Neb. 881, 341 N.W.2d 906 (1983).

An employee who suffered back pain approximately one-half hour after doing heavy lifting suffered an injury arising out of and in the course of her employment and is entitled to workmen's compensation. Disability is defined in terms of employability and earning capacity rather than bodily function. Thus, one who is in constant pain, unable to lift anything, and whose condition is aggravated by prolonged sitting or standing may be totally disabled. Wolfe v. American Community Stores, 205 Neb. 763, 290 N.W.2d 195 (1980).

Disability under this section is defined in terms of employability, not bodily function. Craig v. American Community Stores, Inc., 205 Neb. 286, 287 N.W.2d 426 (1980).

Disability under this section refers to loss of earning power rather than loss of bodily function; latter loss important only as it relates to earning capacity. Colgrove v. City of Wymore, 184 Neb. 712, 171 N.W.2d 639 (1969).

Disability is determinable by a consideration of employability and earnings. Spangler v. Terry Carpenter, Inc., 177 Neb. 740, 131 N.W.2d 159 (1964).

Disability under subdivisions (1) and (2) is defined in terms of employability and earning capacity rather than in terms of loss of bodily function. Wheeler v. Northwestern Metal Co., 175 Neb. 841, 124 N.W.2d 377 (1963).

Disability under subdivisions (1) and (2) refers to loss of earning power rather than loss of bodily function. Thinnes v. Kearney Packing Co., 173 Neb. 123, 112 N.W.2d 732 (1962).

Disability under first two subdivisions is defined in terms of employability and earning capacity. Pavel v. Hughes Brothers, 167 Neb. 727, 94 N.W.2d 492 (1959).

6. Whole body impairment

If, by the point of maximum medical improvement, a claimant has developed a whole body impairment in addition to a scheduled member injury, the question is whether the work-related injury proximately caused the whole body impairment. If both injuries arose from the same work-related injury, because the scheduled member injury resulted in the whole body impairment in a natural and continuous sequence of events and the whole body impairment would not have occurred but for the work-related injury, then the claimant is entitled to disability benefits for the whole body impairment. Moyera v. Quality Pork Internat., 284 Neb. 963, 825 N.W.2d 409 (2013).

Whether a claimant’s compensable scheduled member injury has resulted in a whole body impairment and loss of earning power is a question of fact. Moyera v. Quality Pork Internat., 284 Neb. 963, 825 N.W.2d 409 (2013).

Whether a claimant’s scheduled member loss has caused a whole body impairment is properly resolved under a proximate cause inquiry at the point of the claimant’s maximum medical improvement, when the claimant’s permanent impairment is assessed. Moyera v. Quality Pork Internat., 284 Neb. 963, 825 N.W.2d 409 (2013).

When a whole body injury is the result of a scheduled member injury, the member injury should be considered in the assessment of the whole body impairment. Under such circumstances, the trial court should not enter a separate award for the member injury in addition to the award for loss of earning capacity. To allow both awards creates an impermissible double recovery. Bishop v. Specialty Fabricating Co., 277 Neb. 171, 760 N.W.2d 352 (2009).

When a worker sustains a scheduled member injury and a whole body injury in the same accident, the Nebraska Workers' Compensation Act does not prohibit the court from considering the impact of both injuries in assessing the loss of earning capacity. In making such an assessment, the court must consider whether the scheduled member injury adversely affects the worker such that the loss of earning capacity cannot be fairly and accurately assessed without considering the impact of the scheduled member injury upon the worker's employability. Bishop v. Specialty Fabricating Co., 277 Neb. 171, 760 N.W.2d 352 (2009).

When a whole body injury is the result of a scheduled member injury, the member injury should be considered in the assessment of whole body impairment. An impermissible double recovery occurs if a separate award for a member injury is allowed in addition to an award for loss of earning capacity. Madlock v. Square D Co., 269 Neb. 675, 695 N.W.2d 412 (2005).

When a worker sustains a scheduled member injury and a whole body injury in the same accident, the Nebraska Workers' Compensation Act does not prohibit the court from considering the impact of both injuries in assessing the loss of earning capacity. In making such an assessment, the court must determine whether the scheduled member injury adversely affects the worker such that the loss of earning capacity cannot be fairly and accurately assessed without considering the impact of the scheduled member injury upon the worker's employability. Zavala v. ConAgra Beef Co., 265 Neb. 188, 655 N.W.2d 692 (2003).

Impairments of the body as a whole are compensated in terms of loss of earning power or capacity rather than in terms of loss of physical function. Snyder v. IBP, Inc., 222 Neb. 534, 385 N.W.2d 424 (1986).

7. Vocational rehabilitation

A vocational rehabilitation plan seeking to place a part-time hourly employee who suffered a permanent impairment in employment where the employee would earn wages similar to those based upon a calculation of average weekly wage under subdivision (4) of this section would best achieve the goal of restoring the employee to suitable employment. Becerra v. United Parcel Service, 284 Neb. 414, 822 N.W.2d 327 (2012).

A plain reading of subdivision (5) of this section requires that an employer must first offer, and the employee accept, vocational rehabilitation, or such rehabilitation must be court ordered before an employee becomes eligible for temporary total disability benefits. Bixenmann v. H. Kehm Constr., 267 Neb. 669, 676 N.W.2d 370 (2004); Thach v. Quality Pork International, 253 Neb. 544, 570 N.W.2d 830 (1997).

Pursuant to subsection (5) of this section, a claimant is not entitled to temporary total disability benefits merely because he or she undergoes rehabilitation up to the time of maximum medical improvement, but, rather, is entitled to compensation for such reasonable period of time as is spent undergoing rehabilitation and he or she is therefore unable to work. Stansbury v. HEP, Inc., 248 Neb. 706, 539 N.W.2d 28 (1995).

An employee, unless he or she is otherwise qualified to receive temporary total disability benefits, is entitled to such benefits only while undergoing rehabilitation which has been ordered by the compensation court. Bindrum v. Foote & Davies, 235 Neb. 903, 457 N.W.2d 828 (1990).

When prescribed as the only form of appropriate vocational rehabilitation for an injured employee, direct job placement is vocational rehabilitation within the meaning of subsection (5) of this section. Bindrum v. Foote & Davies, 235 Neb. 903, 457 N.W.2d 828 (1990).

A plan of direct job placement, when prescribed as the only form of appropriate vocational rehabilitation for an injured employee, is vocational rehabilitation within the meaning of subsection (5) of this section. Carter v. Weyerhaeuser Co., 234 Neb. 558, 452 N.W.2d 32 (1990).

An employee undergoing rehabilitation services is entitled to receive compensation for temporary disability in addition to other benefits under the act. Behrens v. Ken Corp., 191 Neb. 625, 216 N.W.2d 733 (1974).

8. Earning power

"Earning power," as used in subdivision (2) of this section, is not synonymous with wages, but includes eligibility to procure employment generally, ability to hold a job obtained, and capacity to perform the tasks of the work, as well as the ability of the worker to earn wages in the employment in which the worker is engaged or for which he or she is fitted. Picard v. P & C Group 1, 306 Neb. 292, 945 N.W.2d 183 (2020); Weichel v. Store Kraft Mfg. Co., 10 Neb. App. 276, 634 N.W.2d 276 (2001).

Earning capacity determinations, for workers’ compensation purposes, should not be distorted by factors such as business booms, sympathy of a particular employer or friends, temporary good luck, or the superhuman efforts of the claimant to rise above his crippling handicaps. Zwiener v. Becton Dickinson-East, 285 Neb. 735, 829 N.W.2d 113 (2013).

Earning power, as used in subsection (2) of this section, is not synonymous with wages, but includes eligibility to procure employment generally, ability to hold a job obtained, and capacity to perform the tasks of the work, as well as the ability of the worker to earn wages in the employment in which he or she is fitted. Frauendorfer v. Lindsay Mfg. Co., 263 Neb. 237, 639 N.W.2d 125 (2002).

Workers' compensation benefits are not measured by loss of bodily function, but by reduction in earning power or employability. Earning power is not synonymous with wages, but includes eligibility to procure employment generally, ability to hold a job obtained, and capacity to perform the tasks of the work, as well as the ability of the worker to earn wages in the employment in which he or she is engaged or for which he or she is fitted. Variano v. Dial Corp., 256 Neb. 318, 589 N.W.2d 845 (1999).

"Earning power," as used in subsection (2) of this section, is not synonymous with wages, but includes eligibility to procure employment generally, ability to hold a job obtained, and capacity to perform the tasks of the work, as well as the ability of the worker to earn wages in the employment in which he is engaged or for which he is fitted. Cords v. City of Lincoln, 249 Neb. 748, 545 N.W.2d 112 (1996).

Earning power, as used in subsection (2) of this provision, is measured by an evaluation of a worker's general eligibility to procure and hold employment, the worker's capacity to perform the required tasks, and the worker's ability to earn wages in employment for which he or she is engaged or fitted. Thom v. Lutheran Medical Center, 226 Neb. 737, 414 N.W.2d 810 (1987).

"Earning power", as used in this section, is not synonymous with wages, but includes eligibility to procure employment generally, ability to hold a job obtained, and capacity to perform the tasks of the work, as well as the ability to earn wages. Guerra v. Iowa Beef Processors, Inc., 211 Neb. 433, 318 N.W.2d 887 (1982).

"Earning power", as used in this section, includes the ability to procure employment generally, to hold a job, and to perform the tasks of the work, as well as the ability to earn wages. Akins v. Happy Hour, Inc., 209 Neb. 236, 306 N.W.2d 914 (1981).

Earning power is not synonymous with wages, but includes eligibility to procure employment generally. Frederick v. Cargill, Inc., 165 Neb. 589, 86 N.W.2d 575 (1957).

Earning power is not synonymous with wages. Anderson v. Cowger, 158 Neb. 772, 65 N.W.2d 51 (1954).

9. Labor market or hub community

A claimant who moved from a large labor market to a small labor market after her injury was not required to show her loss of earning power in both the large and the small labor market when her move for low cost housing was in good faith and motivated by economic necessity. Money v. Tyrrell Flowers, 275 Neb. 602, 748 N.W.2d 49 (2008).

A trial judge was not clearly wrong in concluding that a claimant could not reasonably seek employment in the large labor market 75 miles away, considering costs of fuel, insurance, maintenance for a vehicle, and claimant's limited physical ability to make such a commute. Money v. Tyrrell Flowers, 275 Neb. 602, 748 N.W.2d 49 (2008).

If a workers' compensation claimant relocates to a new community in good faith, the new community will serve as the hub community from which to assess the claimant's loss of earning power. Money v. Tyrrell Flowers, 275 Neb. 602, 748 N.W.2d 49 (2008).

In determining whether to include surrounding communities as part of the relevant labor market for assessing the claimant's loss of earning power, both the court-appointed vocational rehabilitation experts and the trial judge should consider the following factors: (1) availability of transportation, (2) duration of the commute, (3) length of workday the claimant is capable of working, (4) ability of the person to make the commute based on his or her physical condition, (5) economic feasibility of a person in the claimant's position working in that location, and (6) whether others who live in the claimant's hub community regularly seek employment in the prospective area. Money v. Tyrrell Flowers, 275 Neb. 602, 748 N.W.2d 49 (2008).

The first step in identifying the relevant labor market for assessing a claimant's loss of earning power in a workers' compensation case is to determine whether the hub is where the injury occurred, or where the claimant resided when the injury occurred, or where the claimant resided at the time of the hearing. Money v. Tyrrell Flowers, 275 Neb. 602, 748 N.W.2d 49 (2008).

Communities surrounding the workers' compensation claimant's hub community should be considered part of that claimant's labor market for purposes of determining that claimant's earning capacity, but only to the extent that it would be reasonable for the claimant to seek employment in that location. Giboo v. Certified Transmission Rebuilders, 275 Neb. 369, 746 N.W.2d 362 (2008).

If a workers' compensation claimant cannot show a legitimate motive behind his or her postinjury relocation to a new community, the community where the claimant resided at the time the injury occurred will serve as the hub community from which to assess earning capacity. Giboo v. Certified Transmission Rebuilders, 275 Neb. 369, 746 N.W.2d 362 (2008).

When an employee injured in one community relocates to a new community, the new community will serve as the hub community from which to assess the claimant's earning capacity for purposes of workers' compensation, provided that the change of community was done in good faith and not for improper motives. Giboo v. Certified Transmission Rebuilders, 275 Neb. 369, 746 N.W.2d 362 (2008).

Whether it would be reasonable for a workers' compensation claimant to seek employment outside his or her hub community should be based on the totality of the circumstances, with regard for such factors as (1) availability of transportation, (2) duration of the commute, (3) length of the workday the claimant is capable of working, (4) ability of the person to make the commute based on his or her physical condition, and (5) economic feasibility of a person in the claimant's position working in that location. Regard might also be given to the more generalized inquiry of whether others who live in the claimant's hub community regularly seek employment in the prospective area. Giboo v. Certified Transmission Rebuilders, 275 Neb. 369, 746 N.W.2d 362 (2008).

10. Average weekly wage

In calculating the average weekly wage, a part-time hourly employee with a permanent disability is treated as though he or she had worked a 40-hour workweek. Becerra v. United Parcel Service, 284 Neb. 414, 822 N.W.2d 327 (2012).

As to hourly employees, subsection (4) of this section alters the computation of average weekly wage under section 48-126 only to the extent that it requires that a minimum of 40 hours per week be utilized in making the computation, which would result in part-time hourly employees with permanent disabilities being treated as though they had worked a 40-hour workweek. Ramsey v. State, 259 Neb. 176, 609 N.W.2d 18 (2000).

In determining the average weekly wage of a self-employed claimant, business expenses should be deducted, and the business expenses set forth on a claimant's tax return shall be presumed correct. Either party may rebut this presumption of correctness by proving by a preponderance of the evidence that certain business expenses distort the claimant's true rate of compensation at the time of the accident. Hull v. Aetna Ins. Co., 249 Neb. 125, 541 N.W.2d 631 (1996).

A self-employed claimant's average weekly wage under subsection (2) of this section shall be based upon the claimant's gross income less business expenses, i.e., net income. Hull v. Aetna Ins. Co., 247 Neb. 713, 529 N.W.2d 783 (1995).

11. Miscellaneous

In a workers' compensation proceeding, the medical impairment rating given by a doctor may be an important factor for determining a claimant's impairment rating. Bower v. Eaton Corp., 301 Neb. 311, 918 N.W.2d 249 (2018).

A return to work at wages equal to those received before the injury may be considered, but it does not preclude a finding that the workers’ compensation claimant is either partially or totally disabled. Zwiener v. Becton Dickinson-East, 285 Neb. 735, 829 N.W.2d 113 (2013).

An employee’s illegal residence or work status does not bar an award of indemnity for permanent total loss of earning capacity. Moyera v. Quality Pork Internat., 284 Neb. 963, 825 N.W.2d 409 (2013).

In assessing a claimant's disability in a workers' compensation case, physical restrictions and impairment ratings are important, but once the claimant establishes the cause of disability, the trial judge is not limited to this evidence and may also rely on the claimant's testimony to determine the extent of the disability. Money v. Tyrrell Flowers, 275 Neb. 602, 748 N.W.2d 49 (2008).

This section does not prohibit a worker from concurrently receiving statutory benefits for separate injuries arising out of separate accidents, so long as the combined payments do not exceed the maximum weekly rate allowed by section 48-121.01. Vega v. Iowa Beef Processors, 264 Neb. 282, 646 N.W.2d 643 (2002).

Pursuant to subsection (2) of this section, past wage history, even if the claimant's position with the employer was only temporary, is not considered. Cox v. Fagen Inc., 249 Neb. 677, 545 N.W.2d 80 (1996).

All calculations to be made under this section, and amendments thereto, have reference to wages, percentages, and results as of the time of injury. McGowan v. Lockwood Corp., 245 Neb. 138, 511 N.W.2d 118 (1994).

Termination of payments for permanent partial disability was proper because plaintiff was not entitled to compensation in excess of the prescribed statutory maximum amount of weekly compensation. Foreman v. State, 240 Neb. 716, 483 N.W.2d 752 (1992).

The mere fact that after an injury an employee receives or is offered his former wages or a larger sum does not necessarily preclude a recovery under workers' compensation. Schmid v. Nebraska Intergov. Risk Mgt. Assn., 239 Neb. 412, 476 N.W.2d 243 (1991).

A given condition cannot at one time be both temporary and permanent. Yarns v. Leon Plastics, Inc., 237 Neb. 132, 464 N.W.2d 801 (1991).

In relation to "total disability" under subsection (1) of this section and "disability partial in character" under subsection (2) of this section, "temporary" and "permanent" refer to duration of disability; "total" and "partial" mean the degree of diminished employability or impaired earning capacity. Sherard v. Bethphage Mission, Inc., 236 Neb. 900, 464 N.W.2d 343 (1991).

Loss of earning capacity or earning power is relevant only to impairment of the body as a whole. Impairment to a scheduled member is measured on the basis of loss of physical function. Yager v. Bellco Midwest, 236 Neb. 888, 464 N.W.2d 335 (1991).

The ability to communicate in English, if relevant, should be considered in determining the magnitude of a worker's disability. Mata v. Western Valley Packing, 236 Neb. 584, 462 N.W.2d 869 (1990).

In making the calculations to determine a worker's benefits, an amendatory act may not be applied retroactively, and the statute as it existed at the time of injury governs. Canas v. Maryland Cas. Co., 236 Neb. 164, 459 N.W.2d 533 (1990).

When a worker has reached maximum recovery, the remaining disability is permanent and such worker is no longer entitled to compensation for temporary disability. Musil v. J.A. Baldwin Manuf. Co., 233 Neb. 901, 448 N.W.2d 591 (1989).

Injuries to the body as a whole are compensated under subdivisions (1) and (2) of this section, and refer to loss of employability and earning capacity, and not functional and medical loss alone. Kleiva v. Paradise Landscapes, 227 Neb. 80, 416 N.W.2d 21 (1987).

The Second Injury Fund may be considered a statutory employer for the purposes of payment of disability during rehabilitation. Parker v. St. Elizabeth Comm. Health Ctr., 226 Neb. 526, 412 N.W.2d 469 (1987).

This section does not require that the 300-week period of compensation be reduced by the number of weeks during which compensation is paid under subsection (3). Parker v. St. Elizabeth Comm. Health Ctr., 226 Neb. 526, 412 N.W.2d 469 (1987).

The statutory scheme found herein is meant to compensate impairments of the body as a whole in terms of employability and loss of earning capacity, but to compensate impairments of scheduled members, rather, on the basis of loss of physical function. Nordby v. Gould, 213 Neb. 372, 329 N.W.2d 118 (1983).

In the case of an occupational disease the "date of the injury", within the meaning of the Workmen's Compensation Act, is the date when the disability is first incurred. Therefore, the maximum compensable rate is that rate in effect on the "date of the injury". Osteen v. A.C. and S., Inc., 209 Neb. 282, 307 N.W.2d 514 (1981).

This court can overturn the factfindings of the Workmen's Compensation Court that plaintiff's injury was to a member rather than to his body as a whole only if the finding is not supported by sufficient competent evidence. In this case the treating surgeon's testimony as to the site of the injury, possible future difficulties, disability, and resulting limitations, along with testimony by another medical expert, supported the finding that plaintiff suffered a schedule injury of the leg. Goers v. Bud Irons Excavating, 207 Neb. 579, 300 N.W.2d 29 (1980).

A compensable injury to the ball and socket of the hip joint, where the residual impairment is not limited to the leg, is not a schedule injury under subdivision (3), but a disability under subdivision (1) or (2) relating to earning capacity and employability. Jeffers v. Pappas Trucking, Inc., 198 Neb. 379, 253 N.W.2d 30 (1977).

In a claim for compensation hereunder, it is immaterial whether an industrial disability is present or not. Sopher v. Nebraska P.P. Dist., 191 Neb. 402, 215 N.W.2d 92 (1974).

Losses in bodily function are important only insofar as they relate to earning capacity and loss thereof. Shotwell v. Industrial Builders, Inc., 187 Neb. 320, 190 N.W.2d 624 (1971).

This section discussed in connection with controversy over reason for delay in making payments. Marshall v. Columbus Steel Supply, 187 Neb. 102, 187 N.W.2d 607 (1971).

Under Nebraska statute, any workmen's compensation policy is required to cover all of the employer's liability and all compensation awarded under the act. Neeman v. Otoe County, 186 Neb. 370, 183 N.W.2d 269 (1971).

Determination of amount of award is governed by law in force at time of accident. Chadd v. Western Cas. & Sur. Co., 166 Neb. 483, 89 N.W.2d 586 (1958).

Disability under subdivisions (1) and (2) is measured in terms of employability and earning capacity rather than in terms of loss of bodily function. Miller v. Peterson, 165 Neb. 344, 85 N.W.2d 700 (1957).

In a claim for compensation under subdivision (3) of this section, it is immaterial whether an industrial disability is present or not. Paulson v. Martin-Nebraska Co., 147 Neb. 1012, 26 N.W.2d 11 (1947).

Action was properly brought under this section where evidence showed employee was regular part-time employee under contract of hire at forty cents per hour. Redfern v. Safeway Stores, Inc., 145 Neb. 288, 16 N.W.2d 196 (1944).

Claimant was entitled to award as made in second original action, employer having ceased payment on prior award. Rexroat v. State, 142 Neb. 596, 7 N.W.2d 163 (1942).

Compensation act provides for automatic reduction of compensation after certain periods of time to cover the situation of partial rehabilitation of employee who has received a permanent injury. Ludwickson v. Central States Electric Co., 142 Neb. 308, 6 N.W.2d 65 (1942).

Amount paid under void settlement agreement by employer should be deducted from amount of award of compensation. Steward v. Deuel County, 137 Neb. 516, 289 N.W. 877 (1940).

Fact that employee receives larger wages after injury than before does not necessarily preclude recovery of compensation. Micek v. Omaha Steel Works, 135 Neb. 449, 282 N.W. 262 (1938).

Receipt of workmen's compensation did not bar city fireman from receiving fireman's pension. City of Lincoln v. Steffensmeyer, 134 Neb. 613, 279 N.W. 272 (1938).

In cases not covered by schedule, amount of award and degree of disability is for the court to determine. Wilson v. Brown-McDonald Co., 134 Neb. 211, 278 N.W. 254 (1938).

An agreement to pay compensation must be approved by a compensation commissioner or compensation court or it is void, and part payment does not make such agreement actionable at common law. Duncan v. A. Hospe Co., 133 Neb. 810, 277 N.W. 339 (1938).

Parties are entitled to a final determination of the character of the disability, the full amount to be recovered, and the times when this amount shall be paid. Dymak v. Haskins Bros. & Co., 132 Neb. 308, 271 N.W. 860 (1937).

Where compensation commissioner erred in computing compensation and allowed too much, employee is not entitled to attorney's fee on appeal to district court. Truka v. McDonald, 127 Neb. 780, 257 N.W. 232 (1934).

Workman may receive concurrent compensation for two or more injuries provided combined amounts do not exceed fifteen dollars a week. Peterson v. Borden's Produce Co., 125 Neb. 404, 250 N.W. 240 (1933).

For disability resulting from permanent injury, the compensation to be allowed is a percentum of the daily wages during a time specified. Davis v. Lincoln County, 117 Neb. 148, 219 N.W. 899 (1928).

A workers' compensation claimant may receive permanent or temporary workers' compensation benefits for either partial or total disability. Yost v. Davita, Inc., 23 Neb. App. 482, 873 N.W.2d 435 (2015).

To compute an employee's statutory benefits pursuant to this section, the court should mathematically apply the statutory percentage set forth in this section to the difference between the injured employee's preinjury average weekly wage and the employee's postinjury average weekly wage. Haro v. Beef America, 9 Neb. App. 957, 622 N.W.2d 170 (2001).

Subsection (4) of this section requires part-time output workers with permanent disabilities to be treated as though they worked a minimum of a 40-hour workweek or a 5-day workweek. Fordham v. West Lumber Co., 2 Neb. App. 716, 513 N.W.2d 52 (1994).

48-121.01. Maximum and minimum weekly income benefit; amounts; Governor; power to suspend.

(1)(a)(i) Commencing July 1, 1991, the maximum weekly income benefit under sections 48-121 and 48-122 shall be two hundred sixty-five dollars.

(ii) Commencing June 1, 1994, the maximum weekly income benefit under sections 48-121 and 48-122 shall be three hundred ten dollars.

(iii) Commencing January 1, 1995, the maximum weekly income benefit under sections 48-121 and 48-122 shall be three hundred fifty dollars.

(b) Commencing January 1, 1996, and each January 1 thereafter, the maximum weekly income benefit under sections 48-121 and 48-122 shall be one hundred percent, computed to the next higher whole dollar, of the state average weekly wage determined pursuant to section 48-121.02, except that for the purposes of calendar years commencing after 1996, the Governor may not later than November 15, 1996, and not later than each November 15 thereafter, conduct a public hearing after not less than thirty days' notice to consider whether he or she should issue an order to suspend the effectiveness of the change in the maximum weekly income benefit otherwise required by this subdivision for the ensuing calendar year. In order to make his or her decision, the Governor shall consider such factors as recent trends in economic conditions in the state, general wage levels, workers' compensation benefit levels, and workers' compensation premium levels. After such hearing but not later than November 30 immediately thereafter, the Governor may issue an order to suspend the effectiveness of the change in the maximum weekly income benefit otherwise required by this subdivision for the ensuing calendar year.

(2) The minimum weekly income benefit under sections 48-121 and 48-122 shall be forty-nine dollars.

Source:Laws 1985, LB 608, § 3; Laws 1987, LB 292, § 1; Laws 1990, LB 313, § 1; Laws 1993, LB 757, § 5.

Annotations

Section 48-121 does not prohibit a worker from concurrently receiving statutory benefits for separate injuries arising out of separate accidents, so long as the combined payments do not exceed the maximum weekly rate allowed by this section. Vega v. Iowa Beef Processors, 264 Neb. 282, 646 N.W.2d 643 (2002).

48-121.02. State average weekly wage; how determined.

For purposes of section 48-121.01, the state average weekly wage shall be determined by the administrator of the Nebraska Workers' Compensation Court as follows: On or before October 1 of each year, the total insured wages reported to the Department of Labor for the preceding calendar year, excluding federal employees, shall be divided by the average monthly number of employees insured under the Employment Security Law. Such average monthly number of employees shall be determined by dividing the total number of employees insured under the Employment Security Law reported for such calendar year by twelve. The state average annual wage thus obtained shall be divided by fifty-two, and the state average weekly wage thus determined shall be rounded to the nearest whole cent. The state average weekly wage as so determined shall be applicable for the calendar year commencing January 1 following the October 1 determination.

Source:Laws 1993, LB 757, § 6; Laws 2005, LB 13, § 4.

Cross References

Employment Security Law, see section 48-601.

48-122. Compensation; injuries causing death; amount and duration of payments; computation of wages; expenses of burial; alien dependents; appointment of attorney in fact; bond; filing required.

(1) If death results from injuries and the deceased employee leaves one or more dependents dependent upon his or her earnings for support at the time of injury, the compensation, subject to section 48-123, shall be not more than the maximum weekly income benefit specified in section 48-121.01 nor less than the minimum weekly income benefit specified in section 48-121.01, except that if at the time of injury the employee receives wages of less than the minimum weekly income benefit specified in section 48-121.01, then the compensation shall be the full amount of such wages per week, payable in the amount and to the persons enumerated in section 48-122.01 subject to the maximum limits specified in this section and section 48-122.03.

(2) When death results from injuries suffered in employment, if immediately prior to the accident the rate of wages was fixed by the day or hour, or by the output of the employee, the weekly wages shall be taken to be computed upon the basis of a workweek of a minimum of five days, if the wages are paid by the day, or upon the basis of a workweek of a minimum of forty hours, if the wages are paid by the hour, or upon the basis of a workweek of a minimum of five days or forty hours, whichever results in the higher weekly wage, if the wages are based on the output of the employee.

(3) Upon the death of an employee, resulting through personal injuries as defined in section 48-151, whether or not there are dependents entitled to compensation, the reasonable expenses of burial, not exceeding eleven thousand dollars, without deduction of any amount previously paid or to be paid for compensation or for medical expenses, shall be paid to his or her dependents, or if there are no dependents, then to his or her personal representative. Beginning in 2023, the Nebraska Workers' Compensation Court shall annually adjust the dollar limitation in this subsection. The adjusted limitation shall be equal to the then current limitation adjusted by the greater of one percent or the percentage change, for the preceding year, in the Consumer Price Index for All Urban Consumers, as prepared by the United States Department of Labor, Bureau of Labor Statistics. Any adjustment shall be effective on July 1. The adjustment shall not exceed two and three-quarters percent per annum. If the amount so adjusted is not a multiple of one hundred dollars, the amount shall be rounded to the nearest multiple of one hundred dollars.

(4) Compensation under the Nebraska Workers' Compensation Act to alien dependents who are not residents of the United States shall be the same in amount as is provided in each case for residents, except that at any time within one year after the death of the injured employee the employer may at his or her option commute all future installments of compensation to be paid to such alien dependents. The amount of the commuted payment shall be determined as provided in section 48-138.

(5)(a)(i) Except as provided in subdivision (5)(a)(ii) of this section, the consular officer of the nation of which the employee, whose injury results in death, is a citizen shall be regarded as the sole legal representative of any alien dependents of the employee residing outside of the United States and representing the nationality of the employee.

(ii) At any time prior to the final settlement, a nonresident alien dependent may file with the Nebraska Workers' Compensation Court a power of attorney designating any suitable person residing in this state to act as attorney in fact in proceedings under the Nebraska Workers' Compensation Act. If the compensation court determines that the interests of the nonresident alien dependent will be better served by such person than by the consular officer, the compensation court shall appoint such person to act as attorney in fact in such proceedings. In making such determination the court shall consider, among other things, whether a consular officer's jurisdiction includes Nebraska and the responsiveness of the consular officer to attempts made by an attorney representing the employee to engage such consular officer in the proceedings.

(b) Such consular officer or appointed person shall have in behalf of such nonresident alien dependents the exclusive right to institute proceedings for, adjust, and settle all claims for compensation provided by the Nebraska Workers' Compensation Act and to receive the distribution to such nonresident alien dependents of all compensation arising thereunder.

(c) A person appointed under subdivision (5)(a)(ii) of this section shall furnish a bond satisfactory to the compensation court conditioned upon the proper application of any money received as compensation under the Nebraska Workers' Compensation Act. Before the bond is discharged, such appointed person shall file with the compensation court a verified account of receipts and disbursements of such money.

(d) For purposes of this section, consular officer means a consul general, vice consul general, or vice consul or the representative of any such official residing within the State of Nebraska.

(6) The changes made to this section by Laws 2019, LB418, apply to cases under the Nebraska Workers' Compensation Act that are pending on September 1, 2019, and to cases filed on or after such date.

Source:Laws 1913, c. 198, § 22, p. 588; R.S.1913, § 3663; Laws 1917, c. 85, § 8, p. 205; Laws 1919, c. 91, § 3, p. 232; C.S.1922, § 3045; C.S.1929, § 48-122; Laws 1935, c. 57, § 40, p. 209; C.S.Supp.,1941, § 48-122; R.S.1943, § 48-122; Laws 1945, c. 112, § 2, p. 361; Laws 1949, c. 160, § 2, p. 406; Laws 1951, c. 152, § 2, p. 620; Laws 1953, c. 162, § 2, p. 509; Laws 1955, c. 186, § 2, p. 530; Laws 1957, c. 203, § 2, p. 713; Laws 1957, c. 204, § 2, p. 719; Laws 1959, c. 223, § 2, p. 787; Laws 1963, c. 284, § 2, p. 850; Laws 1963, c. 285, § 2, p. 858; Laws 1965, c. 279, § 2, p. 803; Laws 1967, c. 288, § 2, p. 786; Laws 1969, c. 393, § 2, p. 1381; Laws 1971, LB 320, § 2; Laws 1973, LB 193, § 2; Laws 1974, LB 710, § 2; Laws 1975, LB 198, § 2; Laws 1977, LB 275, § 2; Laws 1978, LB 446, § 2; Laws 1979, LB 114, § 2; Laws 1981, LB 234, § 1; Laws 1983, LB 158, § 2; Laws 1985, LB 608, § 2; Laws 1986, LB 811, § 39; Laws 1997, LB 853, § 1; Laws 2012, LB738, § 1; Laws 2019, LB418, § 1; Laws 2020, LB963, § 2.

Annotations

1. Dependency

2. Medical and burial allowance

3. Miscellaneous

1. Dependency

This section identifies the ongoing obligation of the employer to pay medical expenses to a dependent following the death of the employee. Olivotto v. DeMarco Bros. Co., 273 Neb. 672, 732 N.W.2d 354 (2007).

Where a deceased father had partially contributed to the support of a child residing with a former wife, such child was a partial dependent. James v. Rainchief Constr. Co., 197 Neb. 818, 251 N.W.2d 367 (1977).

A dependent in fact is a person who was dependent upon the earnings of the deceased for support. Warner v. State, 190 Neb. 643, 211 N.W.2d 408 (1973).

In order to sustain a claim of partial dependency, plaintiff must show that employee regularly contributed to dependent an average amount for a reasonable time prior to the accident. Lighthill v. McCurry, 175 Neb. 547, 122 N.W.2d 468 (1963).

Where employee died while proceedings were pending on appeal, cause would be remanded to determine rights of parties as to dependency. Smith v. Stevens, 173 Neb. 723, 114 N.W.2d 724 (1962).

Common-law wife was a dependent entitled to compensation for death of husband. Bourelle v. Soo-Crete, Inc., 165 Neb. 731, 87 N.W.2d 371 (1958).

Plaintiff was awarded relief to which she was entitled under this and succeeding two sections. Gilmore v. State, 148 Neb. 10, 26 N.W.2d 296 (1947).

Wife living apart from husband may be entitled to compensation for husband's death if she was dependent upon him. Bulman v. Lyman-Richey Sand & Gravel Corporation, 144 Neb. 342, 13 N.W.2d 403 (1944).

To make out case of dependency, payments must be shown to have come from wages earned by the workman. Freburg v. Central Nebraska Public Power & Irr. Dist., 142 Neb. 868, 8 N.W.2d 209 (1943).

There must be proof of dependency in fact and not mere legal dependency to sustain an award of compensation for death of an employee. Meyer v. Nielsen Chevrolet Co., 137 Neb. 6, 287 N.W. 849 (1939).

Compensation awarded to dependents is that proportion of injured person's income paid to them for reasonable time prior to the injury. Kral v. Lincoln Steel Works, 136 Neb. 31, 284 N.W. 761 (1939).

Compensation to dependents in cases of death are fixed and determined by statute. Summers v. Railway Express Agency, 134 Neb. 237, 278 N.W. 476 (1938).

Action by injured employee, pending at time of death, may be revived by dependents giving bond or by administrator without bond, and pleadings for revivor must state facts sufficient to bring applicant within statutes. Palmer v. Saunders County, 117 Neb. 484, 221 N.W. 99 (1928).

Evidence was sufficient to show mother was wholly dependent on deceased son, and entitled to compensation as such. Lincoln Gas & Elec. Light Co. v. Watkins, 113 Neb. 619, 204 N.W. 391 (1925).

Where deceased had been sending periodically sums of money for support of mother in Italy, she was entitled to compensation as dependent. Venuto v. Carter Lake Club, 105 Neb. 568, 181 N.W. 377 (1921), 104 Neb. 782, 178 N.W. 760 (1920).

Commutation of compensation payments for benefit of nonresident alien dependents discussed and rule stated. Bailey v. United States Fidelity & Guaranty Co., 99 Neb. 109, 155 N.W. 237 (1915).

2. Medical and burial allowance

Award for burial expense reduced to maximum allowed by statute at time of accident. Martin v. Frear, 184 Neb. 266, 167 N.W.2d 69 (1969).

Death benefits payable are fixed by this section. Copple v. Bowlin, 172 Neb. 467, 110 N.W.2d 117 (1961).

Widow of deceased employee was entitled to allowance for medical and funeral expense in addition to compensation at percentage of wage for three hundred and twenty-five weeks. Cole v. M. L. Rawlings Ice Co., 139 Neb. 439, 297 N.W. 652 (1941).

This section provides for burial allowance without deduction from other compensation. Aeschleman v. Haschenburger Co., 127 Neb. 207, 254 N.W. 899 (1934).

3. Miscellaneous

Workmen's compensation court and district court properly converted deceased's compensation of one-fourth of transportation charges into a daily wage rate and then to a five-day weekly wage rate. Loeffelholz v. Allied Mut. Ins. Co., 183 Neb. 112, 158 N.W.2d 219 (1968).

Award for accidental death could not rest upon possibilities, probabilities, or conjectural evidence. Wynia v. Hoesing, 167 Neb. 136, 91 N.W.2d 404 (1958).

Death from occupational disease is compensable. Hauff v. Kimball, 163 Neb. 55, 77 N.W.2d 683 (1956).

Claimant was entitled to receive the proportion of the maximum weekly amount allowed by statute that his average contribution from his wages to support of foster parents bore to the total of his wages received. McKelvey v. Barton Mills, Inc., 152 Neb. 120, 40 N.W.2d 407 (1949).

City fireman was not barred from receiving fireman's pension by having received workmen's compensation. City of Lincoln v. Steffensmeyer, 134 Neb. 613, 279 N.W. 272 (1938).

48-122.01. Compensation; schedule.

Compensation under section 48-122 shall be payable in the amount and to the following persons subject to the maximum limits specified in sections 48-122 and 48-122.03:

(1) If there is a widow or widower and no children of the deceased, as defined in section 48-124, to such widow or widower, sixty-six and two-thirds percent of the average weekly wage of the deceased, during widowhood or widowerhood;

(2) To the widow or widower, if there is a child or children living with the widow or widower, sixty percent of the average weekly wage of the deceased, or fifty-five percent, if such child is not or such children are not living with a widow or widower, and, in addition thereto, fifteen percent for each child. When there are two or more such children, the indemnity benefits payable on account of such children shall be divided among such children, share and share alike;

(3) Two years' indemnity benefits in one lump sum shall be payable to a widow or widower upon remarriage;

(4) To the children, if there is no widow or widower, sixty-six and two-thirds percent of such wage for one child, and fifteen percent for each additional child, divided among such children, share and share alike;

(5) The income benefits payable on account of any child under this section shall cease when he or she dies, marries, or reaches the age of nineteen, or when a child over such age ceases to be physically or mentally incapable of self-support, or if actually dependent ceases to be actually dependent, or, if enrolled as a full-time student in any accredited educational institution, ceases to be so enrolled or reaches the age of twenty-five. A child who originally qualified as a dependent by virtue of being less than nineteen years of age may, upon reaching age nineteen, continue to qualify if he or she satisfies the tests of being physically or mentally incapable of self-support, actual dependency, or enrollment in an educational institution;

(6) To each parent, if actually dependent, twenty-five percent;

(7) To the brothers, sisters, grandparents, and grandchildren, if actually dependent, twenty-five percent to each such dependent. If there should be more than one of such dependents, the total income benefits payable on account of such dependents shall be divided share and share alike;

(8) The income benefits of each beneficiary under subdivisions (6) and (7) of this section shall be paid until he or she, if a parent or grandparent, dies, marries, or ceases to be actually dependent, or, if a brother, sister, or grandchild, dies, marries, or reaches the age of nineteen or if over that age ceases to be physically or mentally incapable of self-support, or ceases to be actually dependent; and

(9) A person ceases to be actually dependent when his or her income from all sources exclusive of workers' compensation income benefits is such that, if it had existed at the time as of which the original determination of actual dependency was made, it would not have supported a finding of dependency. In any event, if the present annual income of an actual dependent person including workers' compensation income benefits at any time exceeds the total annual support received by the person from the deceased employee, the workers' compensation benefits shall be reduced so that the total annual income is no greater than such amount of annual support received from the deceased employee. In all cases, a person found to be actually dependent shall be presumed to be no longer actually dependent three years after each time as of which the person was found to be actually dependent. This presumption may be overcome by proof of continued actual dependency as defined in this subdivision and section 48-124.

Source:Laws 1973, LB 193, § 3; Laws 1986, LB 811, § 40; Laws 2000, LB 1221, § 4.

48-122.02. Compensation; cessation of income benefits; income benefits.

Upon the cessation of income benefits under section 48-122.01 to or on account of any person, the income benefits of the remaining persons entitled to income benefits for the unexpired part of the period during which their income benefits are payable shall be that which such persons would have received if they had been the only persons entitled to income benefits at the time of the decedent's death.

Source:Laws 1973, LB 193, § 4.

48-122.03. Compensation; maximum weekly income benefits in case of death.

The maximum weekly income benefits payable for all beneficiaries in case of death shall not exceed seventy-five percent of the average weekly wage of the deceased, subject to the maximum limits in section 48-122. The maximum aggregate limitation shall not operate in case of payment of two years' income benefits to the widow or widower upon remarriage, as provided under subdivision (3) of section 48-122.01, to prevent the immediate recalculation and payments of benefits to the remaining beneficiaries as provided under section 48-122.02. The classes of beneficiaries specified in subdivisions (1), (2), and (4) of section 48-122.01 shall have priority over all other beneficiaries in the apportionment of income benefits. If there is a widow or widower and a child or children and the maximums specified in section 48-122 and this section prevent full payment under either maximum, the compensation shall be apportioned between the widow or widower and the child or children on a pro rata basis. If there is more than one child living with the widow or widower and no child or children living separately, the apportionment shall be on the pro rata basis of sixty percent to the widow or widower and fifteen percent divided among the children. If there is more than one child not living with the widow or widower and no child or children living with her or him, the apportionment shall be on the pro rata basis of fifty-five percent to the widow or widower and twenty percent divided among the children. If one or more children are living with and one or more children are not living with her or him, the apportionment shall be on the pro rata basis of fifty-five percent to the widow or widower and twenty percent divided among the children. If the provisions of this section should prevent payment to other beneficiaries of the income benefits to the full extent otherwise provided for, the gross remaining amount of income benefits payable to such other beneficiaries shall be apportioned by class, proportionate to the interest of each class in the remaining amount. Parents shall be considered to be in one class and those specified in subdivision (7) of section 48-122.01 in another class.

Source:Laws 1973, LB 193, § 5; Laws 1974, LB 882, § 1.

48-123. Compensation; death of employee receiving disability payments; schedule.

The death of an injured employee prior to the expiration of the period within which he or she would receive such disability payment shall be deemed to end such disability, and all liability for the remainder of such payment which he or she would have received in case he or she had lived shall be terminated, but the employer shall thereupon be liable for the following death benefit in lieu of any further disability indemnity: If the injury so received by such employee was the cause of his or her death and such deceased employee leaves dependents as hereinbefore specified, the death benefit shall be a sum sufficient, when added to the indemnity which shall at the time of death have been paid or become payable under the Nebraska Workers' Compensation Act to such deceased employee, to make the total compensation for the injury and death equal to the full amount which such dependents would have been entitled to receive under section 48-122, in case the accident had resulted in immediate death; and such benefits shall be payable in the same manner and subject to the same terms and conditions in all respects as payments made under such section. No deduction shall be made for the amount which may have been paid for medical and hospital services and medicines or for the expenses of burial. If the employee dies from some cause other than the injury, there shall be no liability for compensation to accrue after his or her death.

Source:Laws 1913, c. 198, § 23, p. 589; R.S.1913, § 3664; Laws 1917, c. 85, § 9, p. 207; C.S.1922, § 3046; C.S.1929, § 48-123; R.S.1943, § 48-123; Laws 1973, LB 193, § 6; Laws 1986, LB 811, § 41.

Annotations

Where injured employee dies during pendency of litigation, payment of compensation will be made in accordance with this section. Smith v. Stevens, 173 Neb. 723, 114 N.W.2d 724 (1962).

Employer was not liable for death benefit hereunder where evidence was not sufficient to support claim of compensable injury. Kuhtnick v. Carey, 124 Neb. 762, 248 N.W. 89 (1933), 124 Neb. 761, 248 N.W. 92 (1933).

Action by injured employee, pending at time of death, may be revived by dependents or administrator. Palmer v. Saunders County, 117 Neb. 484, 221 N.W. 99 (1928).

48-124. Dependents; terms, defined.

The following persons shall be conclusively presumed to be dependent for support upon a deceased employee: (1) A wife upon a husband with whom she is living or upon whom she is actually dependent at the time of his injury or death; (2) a husband upon a wife with whom he is living or upon whom he is actually dependent at the time of her injury or death; and (3) a child or children under the age of nineteen years, or over such age, if physically or mentally incapable of self-support, or any child nineteen years of age or over who is actually dependent, or any child between nineteen and twenty-five years of age who is enrolled as a full-time student in any accredited educational institution.

The term child shall include a posthumous child, a child legally adopted or for whom adoption proceedings are pending at the time of death, an actually dependent child in relation to whom the deceased employee stood in the place of a parent for at least one year prior to the time of death, an actually dependent stepchild, or a child born out of wedlock. Child shall not include a married child unless receiving substantially entire support from the employee. Grandchild shall mean a child, as above defined, of a child, as above defined, except that as to the latter child, the limitations as to age in the above definition do not apply.

Brother or sister shall mean a brother or sister under nineteen years of age, or nineteen years of age or over and physically or mentally incapable of self-support, or nineteen years of age or over and actually dependent. The terms brother and sister shall include stepbrothers and stepsisters, half brothers and half sisters, and brothers and sisters by adoption but shall not include married brothers or married sisters unless receiving substantially entire support from the employee.

Parent shall mean a mother or father, a stepparent, a parent by adoption, a parent-in-law, and any person who for more than one year immediately prior to the death of the employee stood in the place of a parent to him or her, if actually dependent in each case.

Actually dependent shall mean dependent in fact upon the employee and shall refer only to a person who received more than half of his or her support from the employee and whose dependency is not the result of failure to make reasonable efforts to secure suitable employment. When used as a noun, the word dependent shall mean any person entitled to death benefits. No person shall be considered a dependent, unless he or she be a member of the family of the deceased employee, or bears to him or her the relation of widow, widower, lineal descendant, ancestor, brother, or sister. Questions as to who constitute dependents and the extent of their dependency shall initially be determined as of the date of the accident to the employee, and the death benefit shall be directly recoverable by and payable to the dependent or dependents entitled thereto or their legal guardians or trustees. No dependent of any injured employee shall be deemed, during the life of such employee, a party in interest to any proceeding by him or her for the enforcement or collection of any claim for compensation, nor as respects the compromise thereof by such employee.

Source:Laws 1913, c. 198, § 24, p. 590; R.S.1913, § 3665; Laws 1921, c. 122, § 3, p. 531; C.S.1922, § 3047; C.S.1929, § 48-124; R.S.1943, § 48-124; Laws 1949, c. 161, § 1, p. 409; Laws 1971, LB 499, § 2; Laws 1973, LB 193, § 7; Laws 1986, LB 811, § 42; Laws 1989, LB 22, § 7; Laws 1997, LB 128, § 1; Laws 2000, LB 1221, § 5.

Annotations

1. Wife

2. Children

3. Parents

4. Miscellaneous

1. Wife

Common-law wife was a dependent entitled to compensation. Bourelle v. Soo-Crete, Inc., 165 Neb. 731, 87 N.W.2d 371 (1958).

Where wife was living apart from husband, and did not recognize his obligation to support her, recovery could not be had for death of husband. Bulman v. Lyman-Richey Sand & Gravel Corporation, 144 Neb. 342, 13 N.W.2d 403 (1944).

Wife, involuntarily confined in insane asylum at time of husband's death, was living with husband within provisions of Workmen's Compensation Act. Harrison v. Cargill Commission Co., 126 Neb. 185, 252 N.W. 899 (1934).

Where common-law marriage was invalid, claimant was not the widow and not entitled to compensation hereunder. Collins v. Hoag & Rollins, Inc., 122 Neb. 805, 241 N.W. 766 (1932).

2. Children

Subsection (3) of this section is in violation of the Equal Protection Clause of the U.S. Constitution and Neb. Const. art. I, sections 1 and 25, because it discriminates against illegitimate children by mandating a heavier burden of proof as opposed to a lesser burden of proof required of legitimate children. Findaya W. v. A-T.E.A.M. Co., 249 Neb. 838, 546 N.W.2d 61 (1996).

Determination of child's dependency is a question of fact unless child lived with parent at parent's death. James v. Rainchief Constr. Co., 197 Neb. 818, 251 N.W.2d 367 (1977).

Child wholly dependent takes death benefits to the exclusion of children partially dependent. Copple v. Bowlin, 172 Neb. 467, 110 N.W.2d 117 (1961).

Where child of divorced parents did not live with and had not received support from father, child was not a dependent so as to be entitled to compensation upon death of employee father. Meyer v. Nielsen Chevrolet Co., 137 Neb. 6, 287 N.W. 849 (1939).

Children seeking compensation as dependents of deceased must show actual dependency upon deceased. Palmer v. Hamer, 133 Neb. 362, 275 N.W. 322 (1937).

Contention of employer that children are entitled to compensation only from date widow remarried, was denied. Aeschleman v. Haschenburger Co., 127 Neb. 207, 254 N.W. 899 (1934).

A plain reading of this section shows that "an actually dependent stepchild" is a separate qualifying relationship from that between the deceased employee and "an actually dependent child in relation to whom the deceased employee stood in the place of a parent for at least one year prior to the time of death." State v. Soto, 11 Neb. App. 667, 659 N.W.2d 1 (2003).

3. Parents

Parents are not presumed to be dependents of minor children but may be found so to be on the facts of the individual case. McKelvey v. Barton Mills, Inc., 152 Neb. 120, 40 N.W.2d 407 (1949).

Payment by son to parents upon indebtedness do not make out a case of partial dependency upon son for support. Freburg v. Central Nebraska Public Power & Irr. Dist., 142 Neb. 868, 8 N.W.2d 209 (1943).

Where contributions are made by a son to support of needy parents over a reasonable period of time and with reasonable certainty as to amounts and when contributed, a finding of partial dependency of parents upon deceased employee is warranted. Kral v. Lincoln Steel Works, 136 Neb. 31, 284 N.W. 761 (1939).

Evidence was sufficient to establish nonresident mother's dependency. Venuto v. Carter Lake Club, 104 Neb. 782, 178 N.W. 760 (1920).

Dependency is not based solely upon a present legal obligation to support, and is not determined by the fact that a decedent had or had not actually contributed to the support of a parent before the date of the accident. Parson v. Murphy, 101 Neb. 542, 163 N.W. 847, L.R.A. 1918F 479 (1917).

4. Miscellaneous

Question of dependency is to be determined in accordance with the fact situation existing at time of injury. Lighthill v. McCurry, 175 Neb. 547, 122 N.W.2d 468 (1963).

Questions of dependency upon death of employee are to be determined in accordance with this section. Smith v. Stevens, 173 Neb. 723, 114 N.W.2d 724 (1962).

Dependency in fact is not created by contributions made by an employee for purposes other than support of the claimed dependent. Pieters v. Drake-Williams-Mount Co., 142 Neb. 315, 6 N.W.2d 69 (1942).

Where employee, in absence of fraud, signed release, it is binding on dependents after his death. Welton v. Swift & Co., 125 Neb. 455, 250 N.W. 661 (1933).

Dependents are not necessary parties in interest in compensation action brought in employee's lifetime. Employee's settlement, while in full possession of mental faculties, in absence of fraud, binds dependents. Bliss v. Woods, 120 Neb. 790, 235 N.W. 334 (1931).

Action to recover compensation for death may be by adult dependent, guardian or trustee of minor dependent, or by executor or administrator of deceased. Coster v. Thompson Hotel Co., 102 Neb. 585, 168 N.W. 191 (1918).

48-125. Compensation; method of payment; payment by prepaid card; agreement; disclosure of fees or charges; election to rescind agreement; delay; appeal; attorney's fees; interest.

(1) Except as hereinafter provided, all amounts of compensation payable under the Nebraska Workers' Compensation Act shall be payable periodically in accordance with the methods of payment of wages of the employee at the time of the injury or death or by a method of payment as provided in subsection (2) of this section. Such payments shall be sent directly to the person entitled to compensation or his or her designated representative except as otherwise provided in section 48-149 or subsection (2) of this section.

(2)(a) After an injury or death subject to the Nebraska Workers' Compensation Act, the employer, workers' compensation insurer, or risk management pool and the employee, the other person entitled to compensation, or a legal representative acting on behalf of such employee or other person entitled to compensation may enter into a written or electronic agreement that periodic or lump-sum payments to the employee or other person entitled to compensation may be made by check or by direct deposit, prepaid card, or similar electronic payment system.

(b) Payments made by direct deposit, prepaid card, or similar electronic payment system pursuant to this subsection shall not be subject to attachment or garnishment or held liable in any way for any debts, except as provided in section 48-149; and an agreement pursuant to this subsection shall include notice of this fact. If an amount is withheld pursuant to section 48-149, sufficient information to identify the jurisdiction, the case number or similar identifying information, and the amount withheld shall be provided to the employee or other person entitled to compensation or his or her legal representative at or near the time of withholding.

(c) Prior to entering into an agreement pursuant to this subsection for payment by prepaid card, the employer, workers' compensation insurer, or risk management pool shall provide to the employee or other person entitled to compensation information regarding the locations where such card may be used by the employee or other person.

(d) Pursuant to an agreement under this subsection, compensation may be transferred by electronic funds transfer or other electronic means to the trust account of an attorney representing the employee or other person entitled to compensation, for the benefit of such employee or other person. The payment or transfer shall include or be accompanied by information sufficient to identify the nature of the payment being made, including the employer, workers' compensation insurer, or risk management pool and the employee or other person entitled to compensation.

(e) If an employer, workers' compensation insurer, or risk management pool imposes any fees or other charges relating to payment by direct deposit, prepaid card, or a similar electronic payment system, prior to entering into an agreement pursuant to this subsection the employer, workers' compensation insurer, or risk management pool shall disclose such fees or charges to the employee or other person entitled to compensation.

(f) Any payment or transfer made pursuant to this subsection by direct deposit, prepaid card, or similar electronic payment system shall be in the full amount of the lump-sum or periodic payment awarded or paid pursuant to section 48-121 to the employee or other person entitled to compensation.

(g) A prepaid card offered by the employer, workers' compensation insurer, or risk management pool shall:

(i) Allow the employee or other person entitled to compensation to apply, initiate, transfer, and load payments with no charge by the employer, workers' compensation insurer, or risk management pool;

(ii) For the initial prepaid card, be distributed or delivered to the employee or other person entitled to compensation with no charge by the employer, workers' compensation insurer, or risk management pool; and

(iii) Provide the employee or other person entitled to compensation, with respect to each payment made to the prepaid card in accordance with this subsection, at least one method of accessing the full payment without fees.

(h) An employee, another person entitled to compensation, or a legal representative acting on behalf of such employee or other person entitled to compensation may elect at any time to rescind the agreement under this subsection regarding the method of payment by providing written or electronic notice of such rescission to the employer, workers' compensation insurer, or risk management pool that is a party to such agreement. If such election is made, the employer, workers’ compensation insurer, or risk management pool shall change the method of payment to the method of payment of wages of the employee at the time of the injury or death under subsection (1) of this section as soon as practicable after receiving the information necessary to do so and in a manner that allows the employer, workers’ compensation insurer, or risk management pool to comply with the requirements of subsection (3) of this section without making a delinquent payment. The employer, workers’ compensation insurer, or risk management pool is not required to rescind any payment transaction already made or made to comply with subsection (3) of this section.

(i) An employer, a workers' compensation insurer, or a risk management pool or an agent of any such entity shall not engage in unfair, deceptive, or abusive practices in relation to the method of payment. No employer, workers' compensation insurer, risk management pool, or agent of any such entity shall discharge, penalize, or in any other manner discriminate against any employee or other person entitled to compensation because such employee or other person has not consented to receive payments by check or by direct deposit, prepaid card, or a similar electronic payment system.

(j) An employer, workers' compensation insurer, or risk management pool that elects to make payment using a prepaid card shall comply with the requirements of 12 C.F.R. part 1005, as such part existed on April 1, 2018.

(3) Fifty percent shall be added for waiting time for all delinquent payments after thirty days' notice has been given of disability or after thirty days from the entry of a final order, award, or judgment of the Nebraska Workers' Compensation Court, except that for any award or judgment against the state in excess of one hundred thousand dollars which must be reviewed by the Legislature as provided in section 48-1,102, fifty percent shall be added for waiting time for delinquent payments thirty days after the effective date of the legislative bill appropriating any funds necessary to pay the portion of the award or judgment in excess of one hundred thousand dollars.

(4)(a) Whenever the employer refuses payment of compensation or medical payments subject to section 48-120, or when the employer neglects to pay compensation for thirty days after injury or neglects to pay medical payments subject to such section after thirty days' notice has been given of the obligation for medical payments, and proceedings are held before the compensation court, a reasonable attorney's fee shall be allowed the employee by the compensation court in all cases when the employee receives an award. Attorney's fees allowed shall not be deducted from the amounts ordered to be paid for medical services nor shall attorney's fees be charged to the medical providers.

(b) If the employer files an appeal from an award of a judge of the compensation court and fails to obtain any reduction in the amount of such award, the Court of Appeals or Supreme Court shall allow the employee a reasonable attorney's fee to be taxed as costs against the employer for such appeal.

(c) If the employee files an appeal from an order of a judge of the compensation court denying an award and obtains an award or if the employee files an appeal from an award of a judge of the compensation court when the amount of compensation due is disputed and obtains an increase in the amount of such award, the Court of Appeals or Supreme Court may allow the employee a reasonable attorney's fee to be taxed as costs against the employer for such appeal.

(d) A reasonable attorney's fee allowed pursuant to this subsection shall not affect or diminish the amount of the award.

(5) When an attorney's fee is allowed pursuant to this section, there shall further be assessed against the employer an amount of interest on the final award obtained, computed from the date compensation was payable, as provided in section 48-119, until the date payment is made by the employer. For any injury occurring prior to August 30, 2015, the interest rate shall be equal to the rate of interest allowed per annum under section 45-104.01, as such rate may from time to time be adjusted by the Legislature. For any injury occurring on or after August 30, 2015, the interest rate shall be equal to six percentage points above the bond investment yield, as published by the Secretary of the Treasury of the United States, of the average accepted auction price for the first auction of each annual quarter of the twenty-six-week United States Treasury bills in effect on the date of entry of the judgment. Interest shall apply only to those weekly compensation benefits awarded which have accrued as of the date payment is made by the employer. If the employer pays or tenders payment of compensation, the amount of compensation due is disputed, and the award obtained is greater than the amount paid or tendered by the employer, the assessment of interest shall be determined solely upon the difference between the amount awarded and the amount tendered or paid.

(6) For purposes of this section:

(a) Direct deposit means the transfer of payments into an account of a financial institution chosen by the employee or other person entitled to compensation; and

(b) Prepaid card means a prepaid debit card that provides access to an account with a financial institution established directly or indirectly by the employer, workers' compensation insurer, or risk management pool to which payments are transferred.

Source:Laws 1913, c. 198, § 25, p. 591; R.S.1913, § 3666; Laws 1917, c. 85, § 9 1/2, p. 208; Laws 1919, c. 91, § 4, p. 234; C.S.1922, § 3048; C.S.1929, § 48-125; Laws 1935, c. 57, § 20, p. 197; C.S.Supp.,1941, § 48-125; R.S.1943, § 48-125; Laws 1973, LB 169, § 1; Laws 1975, LB 187, § 2; Laws 1983, LB 18, § 1; Laws 1986, LB 811, § 43; Laws 1991, LB 732, § 110; Laws 1992, LB 360, § 14; Laws 1999, LB 216, § 6; Laws 2005, LB 13, § 5; Laws 2005, LB 238, § 4; Laws 2009, LB630, § 3; Laws 2011, LB151, § 1; Laws 2015, LB480, § 3; Laws 2018, LB957, § 1.

Annotations

1. Attorney's fees allowed

2. Attorney's fees not allowed

3. Reasonable controversy

4. Waiting time

5. Miscellaneous

1. Attorney's fees allowed

The requested fees need not have been incurred under a fee agreement in order to be recoverable as reasonable attorney fees under subdivision (4)(b) of this section. Sellers v. Reefer Systems, 305 Neb. 868, 943 N.W.2d 275 (2020).

Interest that is assessed when a claimant is awarded attorney fees on an enforcement motion is calculated from the time each installment of benefits became due to the date of payment, rather than being assessed on the full amount of benefits owed from the first date that compensation was payable. Russell v. Kerry, Inc., 278 Neb. 981, 775 N.W.2d 420 (2009).

An employee is entitled to reasonable attorney fees when he or she obtains an increase, however trivial, in the amount of a workers' compensation award upon review. Hagelstein v. Swift-Eckrich, Div. of ConAgra, 261 Neb. 305, 622 N.W.2d 663 (2001).

Payment of a court-approved lump-sum settlement is subject to the provisions of this section. Hollandsworth v. Nebraska Partners, 260 Neb. 756, 619 N.W.2d 579 (2000).

Pursuant to subsection (1) of this section, the phrase "reduction in the amount of such award" includes an attempt to apportion the responsibility for payment of an award among insurers and the Second Injury Fund. The elements required to establish the Second Injury Fund's liability are (1) a prior permanent partial disability known to the employer and hindering the employee's employability, (2) a subsequent compensable injury causing permanent disability to the employee, and (3) a combined permanent disability substantially greater in degree or percentage than would have resulted from the subsequent injury considered alone. The Second Injury Fund's liability cannot be determined until and unless the employee's subsequent injury is permanent. Miller v. Meister & Segrist, 255 Neb. 805, 587 N.W.2d 399 (1998).

The Second Injury Fund is "employer" within the meaning of this section. If the Second Injury Fund, on appeal, fails to obtain reduction of award of Workers' Compensation Court on rehearing, employee is entitled to reasonable attorney fees for appeal, to be assessed against the Second Injury Fund. Sherard v. Bethphage Mission, Inc., 236 Neb. 900, 464 N.W.2d 343 (1991).

Mere reduction of one aspect of the compensation award without a corresponding reduction of the total award does not mean that the employer obtained a reduction of the award such that the employee is not entitled to an attorney fee. Schlotfeld v. Mel's Heating & Air Conditioning, 233 Neb. 488, 445 N.W.2d 918 (1989).

Where there is no reasonable controversy regarding an employee's entitlement to workers' compensation, this section authorizes an award to the employee of an attorney fee and a fifty-percent payment for waiting time on delinquent payments. Roesler v. Farmland Foods, 232 Neb. 842, 442 N.W.2d 398 (1989).

Where an award for permanent partial disability is made on rehearing, following an award for temporary total disability, the employee is entitled to an award of attorney fees on the rehearing. Mulder v. Minnesota Mining & Mfg. Co., 219 Neb. 241, 361 N.W.2d 572 (1985).

An amendment to a workmen's compensation statute which provides for the payment of attorney fees relates to the remedy and affects procedure only, and does not interfere with substantive rights. Therefore, such fees as are provided may be taxed as an item of costs in entering judgment on a claim that arose before the amendatory act was passed. Smith v. Fremont Contract Carriers, 218 Neb. 652, 358 N.W.2d 211 (1984).

Statutory language, "reduction in the amount of such award", ordinarily refers to the total amount of the award to the employee and not to a reduction in the amount to be paid by a specific defendant who is liable to pay a portion of the award. The Second Injury Fund, within the meaning of this section, is an employer and if, on appeal to this court, it fails to obtain any reduction in the amount of the award on rehearing, the employee is entitled to a reasonable sum as attorney fees in this court, to be assessed against the fund. Pollard v. Wright's Tree Service, Inc., 212 Neb. 187, 322 N.W.2d 397 (1982).

Where an employer applies for a rehearing from an award by a single judge of the Workmen's Compensation Court and obtains a reduction in the award, the Workmen's Compensation Court should not allow the employee attorney fees for the rehearing. But if the employer then appeals to this court and fails to obtain a further reduction, then the employee should be awarded attorney fees for the appeal. Goers v. Bud Irons Excavating, 207 Neb. 579, 300 N.W.2d 29 (1980).

Attorney's fee of one thousand five hundred dollars allowed to claimant-appellee. Alcaraz v. Wilson & Co., Inc., 207 Neb. 255, 298 N.W.2d 160; Mohr v. Soil Mover Manufacturing Co., 207 Neb. 261, 298 N.W.2d 166 (1980).

Reasonable attorney's fee normally allowed where compensation court award is not reduced on appeal. Harrington v. State, 198 Neb. 4, 251 N.W.2d 653 (1977).

A reasonable attorney's fee is generally granted an employee if the employer appeals but fails to obtain a reduction of the award. Weikhorst v. Rural Electric Co., Inc., 186 Neb. 445, 183 N.W.2d 747 (1971).

Where award of compensation was affirmed, employee was entitled to an attorney's fee for services of attorney in Supreme Court. Welke v. City of Ainsworth, 179 Neb. 496, 138 N.W.2d 808 (1965).

Attorney's fee was properly awarded to plaintiff's attorneys upon affirmance of award for permanent total disability. Haskett v. National Biscuit Co., 177 Neb. 915, 131 N.W.2d 597 (1964).

Attorney's fee was properly allowed for services in Supreme Court. Appleby v. Great Western Sugar Co., Inc., 176 Neb. 102, 125 N.W.2d 103 (1963).

Allowance of attorney's fee was proper. Shada v. Whitney, 172 Neb. 220, 109 N.W.2d 167 (1961).

When employer refuses to pay compensation, attorney's fee can be allowed for services in compensation court. Pavel v. Hughes Brothers, Inc., 167 Neb. 727, 94 N.W.2d 492 (1959).

Where award of workmen's compensation court was affirmed, attorney's fee was properly allowed. Sears v. City of Omaha, 164 Neb. 869, 83 N.W.2d 857 (1957).

Where employer on appeal failed to obtain reduction in award, attorney's fee was authorized. Haler v. Gering Bean Co., 163 Neb. 748, 81 N.W.2d 152 (1957).

Statute limits the right to an attorney's fee to a specific situation. Fidelity & Casualty Co. v. Kennard, 162 Neb. 220, 75 N.W.2d 553 (1956).

Where employer failed to secure reduction of award, attorney's fee was authorized. Krajeski v. Beem, 157 Neb. 586, 60 N.W.2d 651 (1953).

Attorney's fee was properly allowed. Dietz v. State, 157 Neb. 324, 59 N.W.2d 587 (1953).

Attorney's fee was allowed for services in Supreme Court. Schneider v. Village of Shickley, 156 Neb. 683, 57 N.W.2d 527 (1953).

Where employer failed to secure reduction in award on appeal to Supreme Court, attorney's fee was allowable. Anderson v. Bituminous Casualty Co., 155 Neb. 590, 52 N.W.2d 814 (1952).

Allowance of attorney's fee was proper. Miller v. Schlereth, 152 Neb. 805, 42 N.W.2d 865 (1950).

Where employer fails to obtain reduction of award in both district and Supreme Court, attorney's fee in each court may be allowed. Werner v. Nebraska Power Co., 149 Neb. 408, 31 N.W.2d 315 (1948).

Where employer appeals from award of district court and fails to obtain reduction in amount of award, Supreme Court will allow attorneys' fees for services in appellate court. McRae v. Ulrich, Inc., 147 Neb. 214, 22 N.W.2d 697 (1946).

When employer appeals to Supreme Court from an award of compensation and fails to obtain reduction in amount of award, Supreme Court will allow employee a reasonable attorney's fee. Gilmore v. State, 146 Neb. 647, 20 N.W.2d 918 (1945).

Attorney's fee should be allowed whenever employer appeals to district court and fails to obtain reduction in amount of award. Weitz v. Johnson, 143 Neb. 452, 9 N.W.2d 788 (1943).

Where award of compensation by district court is affirmed upon appeal, a reasonable attorney's fee for appellate services is taxable against employer as costs. Chatt v. Massman Construction Co., 138 Neb. 288, 293 N.W. 105 (1940).

Amendment of statute allowing attorneys' fees affected remedy only and applied to cases which arose prior to the amendment. Solomon v. A. W. Farney, Inc., 136 Neb. 338, 286 N.W. 254 (1939).

Allowance for services in Supreme Court was proper. Ludwickson v. Central States Electric Co., 135 Neb. 371, 281 N.W. 603 (1938).

Additional attorney's fee for services in Supreme Court should be allowed where no reduction in award is obtained. Perkins v. Young, 133 Neb. 234, 274 N.W. 596 (1937).

Where employer on appeal to district court secured reduction in award, employee was not entitled to attorney's fees there, but where further appeal was taken to Supreme Court and no further reduction obtained, attorney's fees for services in appellate court were proper. Harmon v. J. H. Wiese Co., 121 Neb. 137, 236 N.W. 186 (1931).

Compensation claimant is entitled to reasonable attorney's fees, where appealing employer fails to reduce award. Davis v. Lincoln County, 117 Neb. 148, 219 N.W. 899 (1928); Western Newspaper Union v. Dee, 108 Neb. 303, 187 N.W. 919 (1922); Derr v. Kirkpatrick, 106 Neb. 403, 184 N.W. 91 (1921); Ulaski v. Morris & Co., 106 Neb. 782, 184 N.W. 946 (1921).

Additional fees are allowable for services in Supreme Court where appealing employer fails to reduce award. Lincoln Gas & Electric Light Co. v. Watkins, 113 Neb. 619, 204 N.W. 391 (1925); Derr v. Kirkpatrick, 106 Neb. 403, 184 N.W. 91 (1921).

When an attorney fee is allowed pursuant to this section, interest shall be assessed on the final award of weekly compensation benefits, not "medical payments." Bronzynski v. Model Electric, 14 Neb. App. 355, 707 N.W.2d 46 (2005).

An award of attorney fees under this section was remanded for evidence and specific findings as to the appropriate amount in accordance with Harmon v. Irby Constr. Co., 258 Neb. 420, 604 N.W.2d 813 (1999). Cochran v. Bill's Trucking, 10 Neb. App. 48, 624 N.W.2d 338 (2001).

The Second Injury Fund is an employer for purposes of this section. If the Second Injury Fund files an unsuccessful appeal, attorney fees are to be taxed against the Second Injury Fund and not against the employer. Bryson v. Vickers, Inc., 7 Neb. App. 595, 584 N.W.2d 44 (1998).

2. Attorney's fees not allowed

By filing a release pursuant to section 48-139(3), a worker waives his or her right to ask for penalties and attorney fees under this section. Holdsworth v. Greenwood Farmers Co-op, 286 Neb. 49, 835 N.W.2d 30 (2013).

Because the employee did not receive an award in a proceeding before the compensation court, attorney fees cannot be awarded under subsection (1) of this section. The unequivocal language of this section clearly reads that an award of attorney fees is a prerequisite before interest on the compensation amount due to a claimant may be awarded under subsection (2) of this section. Blizzard v. Chrisman's Cash Register Co., 261 Neb. 445, 623 N.W.2d 655 (2001).

An employee is not entitled to an award of attorney fees when the employer, on appeal, obtains a reduction in the employee's overall award. Ira v. Swift-Eckrich, 251 Neb. 411, 558 N.W.2d 40 (1997).

This statute does not authorize the award of an attorney fee where there exists a reasonable controversy between the parties as to the entitlement of compensation. Beavers v. IBP, Inc., 222 Neb. 647, 385 N.W.2d 896 (1986).

If the employer received a reduction of the award of the compensation court, the employee's attorney fees in this court will not be taxed as costs against the employer. Hare v. Watts Trucking Service, 220 Neb. 403, 370 N.W.2d 143 (1985).

In a workmen's compensation case an employee may not withhold evidence of medical expense at the first hearing, inadvertent though it might be, and then claim on rehearing that an attorney fee should be awarded because the award was increased. Smith v. Fremont Contract Carriers, 218 Neb. 652, 358 N.W.2d 211 (1984).

Where an employer has obtained a termination of a previous running award for temporary total disability, it cannot be said that such employer has failed to obtain "any reduction in the amount of such award" so as to be liable for attorney fees within the meaning of this statute. Butler v. Midwest Supply Co., 212 Neb. 421, 322 N.W.2d 815 (1982).

Where an employer applies for a rehearing from an award by a single judge of the Workmen's Compensation Court and obtains a reduction in the award, the Workmen's Compensation Court should not allow the employee attorney fees for the rehearing. But if the employer then appeals to this court and fails to obtain a further reduction, then the employee should be awarded attorney fees for the appeal. Goers v. Bud Irons Excavating, 207 Neb. 579, 300 N.W.2d 29 (1980).

Under facts in this case, an award of an attorney's fee was not permitted. Reis v. Douglas County Hospital, 193 Neb. 542, 227 N.W.2d 879 (1975).

No attorney fee may be assessed against employer who offered no evidence in compensation court and alleged the award was correct and should be affirmed in the district court. Breed v. Interstate Glass Co., 188 Neb. 284, 196 N.W.2d 169 (1972).

An attorney's fee cannot be allowed for legal services where employer obtains a reduction of award on his appeal. Harrington v. Missouri Valley Constr. Co., 182 Neb. 434, 155 N.W.2d 355 (1967).

Where district court denied an award of compensation, attorney's fee was not authorized on reversal by Supreme Court. Tilghman v. Mills, 169 Neb. 665, 100 N.W.2d 739 (1960).

Where appealing party is not employer, attorney's fee cannot be allowed. Franzen v. Blakley, 155 Neb. 621, 52 N.W.2d 833 (1952).

Attorney's fee allowed for services in district court but disallowed in Supreme Court where district court increased award and Supreme Court reduced it. Solheim v. Hastings Housing Co., 151 Neb. 264, 37 N.W.2d 212 (1949).

Where employer secured modification of award in Supreme Court, attorney's fee in that court could not be allowed. Sporcic v. Swift & Co., 149 Neb. 489, 31 N.W.2d 404, modifying 149 Neb. 246, 30 N.W.2d 891 (1948).

The right to tax attorney's fees in compensation cases is purely statutory, and award for services rendered in compensation court is not authorized. Faulhaber v. Roberts Dairy Co., 147 Neb. 631, 24 N.W.2d 571 (1946).

When plaintiff is denied award in both compensation court and district court, Supreme Court cannot allow attorney's fee. Elliott v. Gooch Feed Mill Co., 147 Neb. 309, 23 N.W.2d 262 (1946).

Attorney's fee is not allowable to employee who appeals from adverse decision in the district court which denied an award of compensation and Supreme Court holds employee entitled to compensation. Lee v. Lincoln Cleaning & Dye Works, 145 Neb. 124, 15 N.W.2d 330 (1944).

Section does not authorize allowance of attorney's fees where employee takes an appeal. Rexroat v. State, 143 Neb. 333, 9 N.W.2d 305 (1943).

Attorney's fee is not allowable where an employee is denied recovery in compensation court, and, on appeal to district court, an award of compensation is made. Schirmer v. Cedar County Farmers Tel. Co., 139 Neb. 182, 296 N.W. 875 (1941).

Allowance of attorney's fee is erroneous where employer has not neglected or refused to pay compensation, or appealed from an award made to the employee. Wilson v. Brown-McDonald Co., 134 Neb. 211, 278 N.W. 254 (1938).

Where district court, on appeal from compensation commissioner, fixed date when payment of compensation should begin at later date than that fixed by compensation commissioner, such change amounted to reduction of the award, and district court had no authority to allow attorney's fee for plaintiff's attorney. Mulvey v. City of Lincoln, 131 Neb. 279, 267 N.W. 459 (1936).

Where employer is entitled to a reduction on appeal, employee is not entitled to an attorney's fee. Truka v. McDonald, 127 Neb. 780, 257 N.W. 232 (1934).

Where employer on appeal to district court secured reduction in award, employee was not entitled to attorney's fees there, but where further appeal was taken to Supreme Court and no further reduction obtained, attorney's fees for services in appellate court were proper. Harmon v. J. H. Wiese Co., 121 Neb. 137, 236 N.W. 186 (1931).

Compensation claimant is not entitled to attorney's fee where he, and not employer, appeals. Updike Grain Co. v. Swanson, 104 Neb. 661, 178 N.W. 618 (1920).

3. Reasonable controversy

A reasonable controversy existed due to an unanswered question of law regarding the timing of permanent disability payments in a case involving an amputation. Melton v. City of Holdrege, 309 Neb. 385, 960 N.W.2d 298 (2021).

A "reasonable controversy" for the purpose of this section exists if (1) there is a question of law previously unanswered by the Supreme Court, which question must be answered to determine a right or liability for disposition of a claim under the Nebraska Workers' Compensation Act, or (2) the properly adduced evidence would support reasonable but opposite conclusions by the compensation court about an aspect of an employee's claim, which conclusions affect allowance or rejection of an employee's claim, in whole or in part. Picard v. P & C Group 1, 306 Neb. 292, 945 N.W.2d 183 (2020).

Whether a reasonable controversy exists under this section is a question of fact. Picard v. P & C Group 1, 306 Neb. 292, 945 N.W.2d 183 (2020).

For the purposes of this section, a reasonable controversy exists if (1) there is a question of law previously unanswered by the Supreme Court, which question must be answered to determine a right or liability for disposition of a claim under the Nebraska Workers' Compensation Act, or (2) if the properly adduced evidence would support reasonable but opposite conclusions by the compensation court about an aspect of an employee's claim, which conclusions affect allowance or rejection of an employee's claim, in whole or in part. When there is some conflict in the medical testimony adduced at trial, reasonable but opposite conclusions could be reached by the compensation court. Nichols v. Fairway Bldg. Prods., 294 Neb. 657, 884 N.W.2d 124 (2016).

A reasonable controversy between an employer and an employee as to the payment of workers' compensation benefits can be shown by evidence adduced at trial but unknown at the time benefits were denied. Armstrong v. State, 290 Neb. 205, 859 N.W.2d 541 (2015).

A reasonable controversy under this section may exist if the properly adduced evidence would support reasonable but opposite conclusions by the Workers' Compensation Court concerning an aspect of an employee's claim for workers' compensation, which conclusions affect allowance or rejection of an employee's claim, in whole or in part. Stacy v. Great Lakes Agri Mktg., 276 Neb. 236, 753 N.W.2d 785 (2008).

To avoid the penalty provided for in this section, an employer need not prevail in the employee's claim—it simply must have an actual basis in law or fact for disputing the claim and refusing compensation. Stacy v. Great Lakes Agri Mktg., 276 Neb. 236, 753 N.W.2d 785 (2008).

Whether a reasonable controversy exists under this section is a question of fact. Stacy v. Great Lakes Agri Mktg., 276 Neb. 236, 753 N.W.2d 785 (2008); Carter v. Weyerhaeuser Co., 234 Neb. 558, 452 N.W.2d 32 (1990); Davis v. Crete Carrier Corp., 15 Neb. App. 241, 725 N.W.2d 562 (2006).

A reasonable controversy under this section may exist (1) if there is a question of law previously unanswered by the appellate courts, which question must be answered to determine a right or liability for disposition of a claim under the Nebraska Workers' Compensation Act, or (2) if the properly adduced evidence would support reasonable but opposite conclusions by the Nebraska Workers' Compensation Court concerning an aspect of an employee's claim for workers' compensation, which conclusions affect allowance or rejection of an employee's claim, in whole or in part. To avoid the penalty provided for in this section, an employer need not prevail in the employee's claim, but must have an actual basis in law or fact for disputing the claim and refusing compensation. Dawes v. Wittrock Sandblasting & Painting, 266 Neb. 526, 667 N.W.2d 167 (2003).

This section authorizes a 50-percent penalty payment for waiting time involving delinquent payment of compensation and an attorney fee, where there is no reasonable controversy regarding an employee's claim for workers' compensation. A reasonable controversy may exist if there is a question of law previously unanswered by the Supreme Court, which question must be answered to determine a right or liability for disposition of a claim under the Nebraska Workers' Compensation Act. Hobza v. Seedorff Masonry, Inc., 259 Neb. 671, 611 N.W.2d 828 (2000).

This section authorizes a 50-percent penalty payment for waiting time where the employer fails to pay compensation after 30 days' notice of the disability and where no reasonable controversy exists regarding the employee's claim for benefits. Waiting-time penalties apply to final adjudicated awards or final orders of the Workers' Compensation Court. The purpose of the 30-day waiting-time penalty and the provision for attorney fees is to encourage prompt payment by making delay costly if the award has been finally established. The only legitimate excuse for delay in the payment of workers' compensation benefits is the existence of a genuine dispute from a medical or legal standpoint that any liability exists, and the fact that an employer is considering an appeal with no appeal actually filed is not sufficient evidence to sustain a finding of genuine medical or legal doubt as to liability. Gaston v. Appleton Elec. Co., 253 Neb. 897, 573 N.W.2d 131 (1998).

This section authorizes a 50-percent penalty payment for waiting time where the employer fails to pay compensation after 30 days' notice of the disability and where no reasonable controversy exists regarding the employee's claim for benefits. Waiting-time penalties apply to final adjudicated awards. The purpose of the 30-day waiting-time penalty and the provision for attorney fees is to encourage prompt payment by making delay costly if the award has been finally established. The only legitimate excuse for delay in the payment of workers' compensation benefits is the existence of a genuine dispute from a medical or legal standpoint that any liability exists, and the fact that an employer is considering filing an application for review with no such application actually filed is not a sufficient reason to sustain a finding of genuine medical or legal doubt as to liability. In order to refrain from paying workers' compensation benefits and to avoid the penalty assessable under this section, the employer must demonstrate that he or she has an actual basis, in law or fact, for disputing the employee's claim. Roth v. Sarpy Cty. Highway Dept., 253 Neb. 703, 572 N.W.2d 786 (1998).

The concept of the presence of a reasonable controversy is to be applied only to the determination as to whether an employee is entitled to the statutory penalties, not including attorney fees, as set out in this section. Snyder v. IBP, Inc., 235 Neb. 319, 455 N.W.2d 157 (1990).

Under this section, the concept of reasonable controversy is to be applied only to determinations of statutory penalties, not including attorney fees. Behrens v. American Stores Packing Co., 234 Neb. 25, 449 N.W.2d 197 (1989).

Although the total amount of compensation may be in dispute, the employer has a duty to promptly pay any undisputed compensation, and the only legitimate excuse for delay of compensation is the existence of genuine doubt from a medical or legal standpoint that any liability exists. Musil v. J.A. Baldwin Manuf. Co., 233 Neb. 901, 448 N.W.2d 591 (1989).

To avoid the payments assessable under this section, an employer need not prevail in opposition to an employee's claim for compensation, but must have an actual basis, in law or fact, for disputing the employee's claim and refraining from payment of compensation. Musil v. J.A. Baldwin Manuf. Co., 233 Neb. 901, 448 N.W.2d 591 (1989).

Whether a reasonable controversy exists for the purpose of determining whether an attorney fee or delay penalty should be awarded under the provisions of this section is a question of fact. Roesler v. Farmland Foods, 232 Neb. 842, 442 N.W.2d 398 (1989).

Whether a reasonable controversy exists under this section is a question of fact for the Workers' Compensation Court. Tlamka v. Goodyear Tire & Rubber Co., 225 Neb. 789, 408 N.W.2d 291 (1987).

Reasonable controversy existed requiring denial of waiting time. Attorney's fee was properly allowed. Shamburg v. Shamburg, 153 Neb. 495, 45 N.W.2d 446 (1950).

A reasonable controversy under this section may exist (1) if there is a question of law previously unanswered by the appellate courts, which question must be answered to determine a right or liability for disposition of a claim under the Nebraska Workers' Compensation Act, or (2) if the properly adduced evidence would support reasonable but opposite conclusions by the Nebraska Workers' Compensation Court concerning an aspect of an employee's claim for workers' compensation, which conclusions affect allowance or rejection of an employee's claim, in whole or in part. Davis v. Crete Carrier Corp., 15 Neb. App. 241, 725 N.W.2d 562 (2006); Milliken v. Premier Indus., 13 Neb. App. 330, 691 N.W.2d 855 (2005).

To avoid the penalty provided for in this section, an employer need not prevail in the employee's claim, but must have an actual basis in law or fact for disputing the claim and refusing compensation. Davis v. Crete Carrier Corp., 15 Neb. App. 241, 725 N.W.2d 562 (2006).

To avoid the penalty provided for in this section, an employer need not prevail in the employee's claim, but must have an actual basis in law or fact for disputing the claim and refusing compensation. Milliken v. Premier Indus., 13 Neb. App. 330, 691 N.W.2d 855 (2005).

The fact that an insurance company makes a settlement offer by itself does not show the existence of a reasonable controversy regarding the employee's claim for benefits pursuant to this section. Kubik v. Union Ins. Co., 4 Neb. App. 831, 550 N.W.2d 691 (1996).

4. Waiting time

This section authorizes a 50-percent penalty payment for waiting time involving delinquent payment of compensation and an attorney fee, where there is no reasonable controversy regarding an employee's claim for workers' compensation. Picard v. P & C Group 1, 306 Neb. 292, 945 N.W.2d 183 (2020).

This section authorizes a 50-percent payment for waiting time involving delinquent payment of compensation and attorney fees where there is no reasonable controversy regarding an employee's claim for workers' compensation. Nichols v. Fairway Bldg. Prods., 294 Neb. 657, 884 N.W.2d 124 (2016); Mendoza v. Omaha Meat Processors, 225 Neb. 771, 408 N.W.2d 280 (1987); Davis v. Crete Carrier Corp., 15 Neb. App. 241, 725 N.W.2d 562 (2006); Milliken v. Premier Indus., 13 Neb. App. 330, 691 N.W.2d 855 (2005).

The waiting-time penalty and attorney fees for waiting-time proceedings provided under this section are rights under the Nebraska Workers' Compensation Act. Holdsworth v. Greenwood Farmers Co-op, 286 Neb. 49, 835 N.W.2d 30 (2013).

No waiting-time penalty is required for an employer's delinquent payment of medical expenses, because such expenses do not constitute compensation within the meaning of this section. VanKirk v. Central Community College, 285 Neb. 231, 826 N.W.2d 277 (2013).

Even if an employer disputes in good faith the total compensation owed a claimant pending trial, the employer must pay any portion of the claim for which it admits liability. Lagemann v. Nebraska Methodist Hosp., 277 Neb. 335, 762 N.W.2d 51 (2009).

If an appellate court determines that no reasonable controversy existed regarding a claim for workers' compensation benefits, the employer must pay waiting-time penalties from the date of the award until it pays the benefits under the appellate court's mandate. Lagemann v. Nebraska Methodist Hosp., 277 Neb. 335, 762 N.W.2d 51 (2009).

There are two circumstances under this section in which the 30-day time limit applies for the payment of compensation: (1) upon the employee's notice of disability if no reasonable controversy exists regarding the claim or (2) after a final adjudicated award if one of the parties appeals and a reasonable controversy existed regarding the claim pending trial. Lagemann v. Nebraska Methodist Hosp., 277 Neb. 335, 762 N.W.2d 51 (2009).

When a party appeals a workers' compensation award to an appellate court, the award is not final and the waiting-time period for payment of benefits does not commence to run until the appellate court's mandate is filed in the Workers' Compensation Court. Lagemann v. Nebraska Methodist Hosp., 277 Neb. 335, 762 N.W.2d 51 (2009).

Where a reasonable controversy exists between an employer and an employee as to the payment of workers' compensation, the employer is not liable for the waiting-time penalties during the time the case is pending in the courts for final determination. Lagemann v. Nebraska Methodist Hosp., 277 Neb. 335, 762 N.W.2d 51 (2009).

Under former law, in order to harmonize this section and sections 48-199 and 48-1,102 in the context of waiting-time penalties in a manner which is consistent with the overall purpose of the Nebraska Workers' Compensation Act, the Supreme Court holds that in order to avoid assessment of a waiting-time penalty with respect to that portion of a workers' compensation award against the State which exceeds $50,000, the State must request review and appropriation of such amount during the first legislative session following the date the award became final and must pay such amount within 30 calendar days after the approval of the appropriation by the Legislature. Soto v. State, 270 Neb. 40, 699 N.W.2d 819 (2005).

Under former law, with respect to that portion of a workers' compensation award against the State which exceeds $50,000, the 30-day period specified in subsection (1) of this section does not begin until the first day after the judgment becomes final on which the State could request review and appropriation pursuant to section 48-1,102 during a regular session of the Legislature. A waiting-time penalty may be assessed pursuant to this section if payment is not made within 30 calendar days thereafter. Soto v. State, 269 Neb. 337, 693 N.W.2d 491 (2005).

Under former law, for purposes of subsection (1) of this section, compensation sent within 30 days of the notice of disability or the entry of a final order, award, or judgment of compensation is not delinquent. Brown v. Harbor Fin. Mortgage Corp., 267 Neb. 218, 673 N.W.2d 35 (2004).

This section authorizes a 50-percent penalty payment for waiting time involving the delinquent payment of compensation and an attorney fee, where there is no reasonable controversy regarding an employee's claim for workers' compensation. Whether a reasonable controversy exists pertinent to this section is a question of fact. McBee v. Goodyear Tire & Rubber Co., Inc., 255 Neb. 903, 587 N.W.2d 687 (1999).

Pursuant to subsection (1) of this section, a workers' compensation insurer's bad faith refusal to timely authorize needed medical treatment for an employee's work-related injury is completely intertwined with the employee's work-related injury; thus, the employee's remedy is limited to that provided for under the Nebraska Workers' Compensation Act. Ihm v. Crawford & Co., 254 Neb. 818, 580 N.W.2d 115 (1998).

Pursuant to subsection (1) of this section, where the total amount of compensation due for permanent disability is in dispute, the employer has a duty under the provisions of subsection (1) to pay within 30 days of the notice of disability any undisputed compensation; the only legitimate excuse for delay in the payment is the existence of a genuine dispute from a medical or legal standpoint that any liability exists. Grammer v. Endicott Clay Products, 252 Neb. 315, 562 N.W.2d 332 (1997).

Under this section, the 50-percent penalty for waiting time applies only when payments are delinquent after 30 days' notice has been given of disability or there is no reasonable controversy and the employer refuses payment or neglects to pay compensation for 30 days after injury. In the latter situation, a reasonable attorney fee shall be allowed if the employee receives an award after proceedings in the compensation court. Briggs v. Consolidated Freightways, 234 Neb. 410, 451 N.W.2d 278 (1990).

Where there is no reasonable controversy regarding an employee's entitlement to workers' compensation, this section authorizes award to the employee of an attorney fee and a 50-percent payment for waiting time on delinquent payments, and the worker is entitled to recover interest on the payments which have accrued at the time payment is made by the employer. Musil v. J.A. Baldwin Manuf. Co., 233 Neb. 901, 448 N.W.2d 591 (1989).

Where there is no reasonable controversy regarding an employee's claim for workers' compensation, this section authorizes the award to the employee of an attorney fee and a fifty-percent payment for waiting time on delinquent payments. Rodriquez v. Prime Meat Processors, 228 Neb. 55, 421 N.W.2d 32 (1988).

Where a reasonable controversy exists between the parties as to the payment of workers' compensation, which is a fact question, an injured employee is not entitled to the statutory penalties for waiting time. McGee v. Panhandle Technical Sys., 223 Neb. 56, 387 N.W.2d 709 (1986).

The right to tax attorney fees is purely statutory, and where a reasonable controversy exists between the parties as to the payment of compensation, an injured employee is not entitled to the statutory penalties for waiting time. Savage v. Hensel Phelps Constr. Co., 208 Neb. 676, 305 N.W.2d 375 (1981).

The provision of this section providing added amount for waiting time does not impose a penalty to an individual within prohibition of Article VII, section 5, of the Constitution. University of Nebraska at Omaha v. Paustian, 190 Neb. 840, 212 N.W.2d 704 (1973).

Penalty for delinquent payments not allowable where delay is due to a reasonable controversy as to amount and number of payments and litigation required to determine limitation. Marshall v. Columbus Steel Supply, 187 Neb. 102, 187 N.W.2d 607 (1971).

Waiting time begins to run when employer receives notice of disability, not when notice given to carrier. Gill v. Hrupek, 184 Neb. 436, 168 N.W.2d 377 (1969).

Penalty for waiting time should not be allowed where reasonable controversy exists. Wheeler v. Northwestern Metal Co., 175 Neb. 841, 124 N.W.2d 377 (1963).

Where defense made raised a question of law of first impression, waiting time penalty was not appropriate. Hauff v. Kimball, 163 Neb. 55, 77 N.W.2d 683 (1956).

Where reasonable controversy exists, imposition of penalty for waiting time is not authorized. Faulhaber v. Roberts Dairy Co., 147 Neb. 631, 24 N.W.2d 571 (1946).

Where reasonable controversy exists between an employer and an employee as to employer's liability, employer is not liable for penalty for waiting time or for allowance of attorney's fees. Redfern v. Safeway Stores, Inc., 145 Neb. 288, 16 N.W.2d 196 (1944).

Where contentions of employer present a reasonable controversy, penalty for waiting time will not be allowed, although a reasonable attorney's fee should be allowed for appellate services where award is affirmed. Dobesh v. Associated Asphalt Contractors, Inc., 138 Neb. 117, 292 N.W. 59 (1940).

Where a reasonable controversy exists, employer is not liable for penalty for waiting time during the time the cause is pending in the courts for final determination. Steward v. Deuel County, 137 Neb. 516, 289 N.W. 877 (1940).

If there is a reasonable controversy over the liability of employer for compensation, he is not liable for the penalty for waiting time. Hiestand v. Ristau, 135 Neb. 881, 284 N.W. 756 (1939).

Penalty is recoverable, where no reasonable controversy exists, and employer withholds periodic payment. Lincoln Gas & Electric Light Co. v. Watkins, 113 Neb. 619, 204 N.W. 391 (1925); Western Newspaper Union v. Dee, 108 Neb. 303, 187 N.W. 919 (1922); Abel Const. Co. v. Goodman, 105 Neb. 700, 181 N.W. 713 (1921).

Penalty is not recoverable, where reasonable controversy exists, until employer's obligation is definitely ascertained or settled, in exercise of proper diligence on his part. McGuire v. Phelan-Shirley Co., 111 Neb. 609, 197 N.W. 615 (1924); McCrary v. Wolff, 109 Neb. 796, 192 N.W. 237 (1923); Hall v. Germantown State Bank, 105 Neb. 709, 181 N.W. 609 (1921); Osborn v. Omaha Structural Steel Co., 105 Neb. 216, 179 N.W. 1022 (1920); Updike Grain Co. v. Swanson, 104 Neb. 661, 178 N.W. 618 (1920).

Penalty provision is constitutional and does not violate due process. United States Fidelity & Guaranty Co. v. Wickline, 103 Neb. 21, 170 N.W. 193 (1918).

Subsection (1) of this section requiring that payments be sent directly to the person entitled to compensation within 30 days of the award and imposing waiting-time penalties if the statute is violated is applicable to orders approving lump-sum settlements. Harris v. Iowa Tanklines, 20 Neb. App. 513, 825 N.W.2d 457 (2013).

When a workers' compensation settlement check is sent from an insurance carrier to the employer's counsel, but not to the claimant or his or her counsel, within 30 days after the entry of the award, it is not sent directly to the claimant within the statutorily prescribed time, as would warrant the imposition of waiting-time penalties. Harris v. Iowa Tanklines, 20 Neb. App. 513, 825 N.W.2d 457 (2013).

Workers' compensation payment sent directly to the claimant's counsel within 30 days after the entry of the award is in compliance with the section requiring that payments be sent directly to the person entitled to compensation within 30 days of the award and imposing waiting-time penalties if the statute is violated. Harris v. Iowa Tanklines, 20 Neb. App. 513, 825 N.W.2d 457 (2013).

Workers' compensation statute requiring that payments be sent directly to the person entitled to compensation within 30 days of the award does not include any requirement that there be actual prejudice suffered by the claimant before waiting-time penalties are appropriate. Harris v. Iowa Tanklines, 20 Neb. App. 513, 825 N.W.2d 457 (2013).

Where there is no reasonable controversy, this section authorizes the award of attorney fees. Davis v. Crete Carrier Corp., 15 Neb. App. 241, 725 N.W.2d 562 (2006).

A 50-percent waiting-time penalty cannot be awarded on the basis of an award of delinquent medical payments; a waiting-time penalty is available only on awards of delinquent payments of disability or indemnity benefits. Bronzynski v. Model Electric, 14 Neb. App. 355, 707 N.W.2d 46 (2005).

The purpose of the 30-day waiting-time penalty and the provision for attorney fees, as provided in this section, is to encourage prompt payment by making delay costly if the award has been finally established. Milliken v. Premier Indus., 13 Neb. App. 330, 691 N.W.2d 855 (2005).

5. Miscellaneous

Interest may be assessed only when attorney fees are allowed. VanKirk v. Central Community College, 285 Neb. 231, 826 N.W.2d 277 (2013).

The prohibition against assessing attorney fees against medical providers set forth in the last sentence of subdivision (2)(a) of this section cannot be avoided by instead filing an action in the district court seeking fees under the common fund doctrine. Walentine, O'Toole v. Midwest Neurosurgery, 285 Neb. 80, 825 N.W.2d 425 (2013).

A workers' compensation trial judge has continuing jurisdiction to enforce an employer's obligation to pay benefits pending the employer's appeal of the judge's previous order imposing a penalty and costs for a delayed payment. Russell v. Kerry, Inc., 278 Neb. 981, 775 N.W.2d 420 (2009).

An employer's appeal from a postjudgment proceeding to enforce a workers' compensation award does not disturb the finality of an award imposing a continuing obligation on the employer to pay benefits. Russell v. Kerry, Inc., 278 Neb. 981, 775 N.W.2d 420 (2009).

Preaward interest, as assessed by an enforcement order in a workers' compensation proceeding, is not a penalty but a means of fully compensating the claimant for not having use of the money that the employer owed. Russell v. Kerry, Inc., 278 Neb. 981, 775 N.W.2d 420 (2009).

When an employer appeals a benefits award, it will not be excused from paying compensation 30 days following the date of the award unless the employer has an actual basis in law or fact for disputing the award. Lagemann v. Nebraska Methodist Hosp., 277 Neb. 335, 762 N.W.2d 51 (2009).

Under former law, "such payments" contained in the second sentence of subsection (1) of this section refers to all "amounts of compensation" provided for in the first sentence of said subsection. Brown v. Harbor Fin. Mortgage Corp., 267 Neb. 218, 673 N.W.2d 35 (2004).

Pursuant to subsection (1) of this section, the award of attorney fees pursuant to this section must be calculated on a case-by-case basis, and particular attention should be given to the amount of legal work performed in relation to the amount of the unpaid medical bill and the amount of the unpaid medical bill in relation to the workers' compensation award received. Harmon v. Irby Constr. Co., 258 Neb. 420, 604 N.W.2d 813 (1999).

The filing of a cross-appeal by an employer constitutes the filing of an appeal within the meaning of this section. An award of attorney fees pursuant to section 25-824(2) may eliminate any prejudice in not awarding attorney fees pursuant to this section. U.S. West Communications, Inc. v. Taborski, 253 Neb. 770, 572 N.W.2d 81 (1998).

"Compensation," used in subsection (1) of this section in reference to additional sums for waiting time, an attorney fee, and interest, means periodic disability or indemnity benefits payable on account of the employee's work-related injury or death. When a court awards attorney fees against an employer pursuant to subsection (1) of this section, the employer shall be liable for interest pursuant to subsection (2). Koterzina v. Copple Chevrolet, 249 Neb. 158, 542 N.W.2d 696 (1996).

The employer's liability for interest exists, and execution for interest may issue, even when the judgment is silent as to interest. Sherard v. State, 244 Neb. 743, 509 N.W.2d 194 (1993).

This section applies to final adjudicated awards. The award in this case was not final, and the penalty did not commence to run until 30 days after the mandate of the Supreme Court had been filed in the compensation court. Leitz v. Roberts Dairy, 239 Neb. 907, 479 N.W.2d 464 (1992).

When a workers' compensation case is remanded for a rehearing on an issue as to which this court has determined that a proper rehearing has not been held, the hearing held after remand is a rehearing in which expenses and attorney fees may be awarded pursuant to this section. Snyder v. IBP, Inc., 235 Neb. 319, 455 N.W.2d 157 (1990).

"Compensation", used in subsection (1) of this section in reference to additional sums for waiting time, an attorney fee, and interest, means periodic disability or indemnity benefits payable on account of the employee's work-related injury or death. Bituminous Casualty Corp. v. Deyle, 234 Neb. 537, 451 N.W.2d 910 (1990).

Ordinarily, the term "reduction in the amount of such award" refers to the total amount of the award to the employee. However, the "amount of such award" includes the issue of total disability. Behrens v. American Stores Packing Co., 228 Neb. 18, 421 N.W.2d 12 (1988).

A workmen's compensation insurance carrier for an employer should be deemed to be an employer within the meaning of this section. Neeman v. Otoe County, 186 Neb. 370, 183 N.W.2d 269 (1971).

An agreement to pay compensation must be approved by a compensation commissioner or compensation court or it is void, and part payment does not make such agreement actionable at common law. Duncan v. A. Hospe Co., 133 Neb. 810, 277 N.W. 339 (1938).

An award of attorney fees is a prerequisite before interest on the compensation amount due to a claimant may be awarded under this section. Davis v. Crete Carrier Corp., 15 Neb. App. 241, 725 N.W.2d 562 (2006).

48-125.01. Compensation; penalties for attempted avoidance of payment.

Any employer who knowingly transfers, sells, encumbers, assigns, or in any manner disposes of, conceals, secretes, or destroys any property or records belonging to such employer, after one of his or her employees has been injured within the purview of the Nebraska Workers' Compensation Act, and with intent to avoid the payment of compensation under such act to such employee or his or her dependents, shall be guilty of a Class I misdemeanor. In any case when such employer is a corporation, any officer or employee thereof, if knowingly participating or acquiescing in the act with intent to avoid the payment of compensation under the Nebraska Workers' Compensation Act, shall be also individually guilty of a Class I misdemeanor as well as jointly and severally liable with such corporation for any fine imposed upon the corporation. In any case when such employer is a limited liability company, any member or manager thereof, if knowingly participating or acquiescing in the act with intent to avoid the payment of compensation under the Nebraska Workers' Compensation Act, shall be also individually guilty of a Class I misdemeanor as well as jointly and severally liable with such limited liability company for any fine imposed upon the limited liability company. In any case when such employer is a limited partnership or a limited liability partnership, any general partner, if knowingly participating or acquiescing in the act with intent to avoid the payment under the Nebraska Workers' Compensation Act, shall also be guilty of a Class I misdemeanor as well as jointly and severally liable with such limited partnership or limited liability partnership, and limited partners shall not be liable.

Source:Laws 1971, LB 572, § 20; Laws 1977, LB 40, § 270; Laws 1986, LB 811, § 44; Laws 1994, LB 884, § 64; Laws 2003, LB 210, § 2.

48-125.02. State employee claim; Prompt Payment Act applicable; other claims; processing of claim; requirements; failure to pay; effect; presumption of payment.

(1) Regarding payment of a claim for medical, surgical, or hospital services for a state employee under the Nebraska Workers' Compensation Act, the Prompt Payment Act applies.

(2) For claims other than claims under subsection (1) of this section regarding payment of a claim for medical, surgical, or hospital services for an employee under the Nebraska Workers' Compensation Act:

(a) The workers' compensation insurer, risk management pool, or self-insured employer shall notify the provider within fifteen business days after receiving a claim as to what information is necessary to process the claim. Failure to notify the provider assumes the workers' compensation insurer, risk management pool, or self-insured employer has all information necessary to pay the claim. The workers' compensation insurer, risk management pool, or self-insured employer shall pay providers in accordance with sections 48-120 and 48-120.04 within thirty business days after receipt of all information necessary to process the claim. Failure to pay the provider within the thirty days will cause the workers' compensation insurer, risk management pool, or self-insured employer to reimburse the provider's billed charges instead of the scheduled or contracted fees;

(b) If a claim is submitted electronically, the claim is presumed to have been received on the date of the electronic verification of receipt by the workers' compensation insurer, risk management pool, or self-insured employer or its clearinghouse. If a claim is submitted by mail, the claim is presumed to have been received five business days after the claim has been placed in the United States mail with first-class postage prepaid. The presumption may be rebutted by sufficient evidence that the claim was received on another day or not received at all; and

(c) Payment of a claim by the workers' compensation insurer, risk management pool, or self-insured employer means the receipt of funds by the provider. If payment is submitted electronically, the payment is presumed to have been received on the date of the electronic verification of receipt by the provider or the provider's clearinghouse. If payment is submitted by mail, the payment is presumed to have been received five business days after the payment has been placed in the United States mail with first-class postage prepaid. The presumption may be rebutted by sufficient evidence that the payment was received on another day or not received at all.

Source:Laws 2007, LB588, § 3.

Cross References

Prompt Payment Act, see section 81-2401.

48-126. Wages, defined; calculation.

Wherever in the Nebraska Workers' Compensation Act the term wages is used, it shall be construed to mean the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the accident. It shall not include gratuities received from the employer or others, nor shall it include board, lodging, or similar advantages received from the employer, unless the money value of such advantages shall have been fixed by the parties at the time of hiring, except that if the workers' compensation insurer shall have collected a premium based upon the value of such board, lodging, and similar advantages, then the value thereof shall become a part of the basis of determining compensation benefits. In occupations involving seasonal employment or employment dependent upon the weather, the employee's weekly wages shall be taken to be one-fiftieth of the total wages which he or she has earned from all occupations during the year immediately preceding the accident, unless it be shown that during such year, by reason of exceptional causes, such method of computation does not fairly represent the earnings of the employee. In such a case, the period for calculation shall be extended so far as to give a basis for the fair ascertainment of his or her average weekly earnings. In continuous employments, if immediately prior to the accident the rate of wages was fixed by the day or hour or by the output of the employee, his or her weekly wages shall be taken to be his or her average weekly income for the period of time ordinarily constituting his or her week's work, and using as the basis of calculation his or her earnings during as much of the preceding six months as he or she worked for the same employer, except as provided in sections 48-121 and 48-122. The calculation shall also be made with reference to the average earnings for a working day of ordinary length and exclusive of earnings from overtime, except that if the insurance company's policy of insurance provides for the collection of a premium based upon such overtime, then such overtime shall become a part of the basis of determining compensation benefits.

Source:Laws 1913, c. 198, § 26, p. 592; R.S.1913, § 3667; Laws 1917, c. 85, § 10, p. 208; C.S.1922, § 3049; Laws 1927, c. 39, § 2, p. 17; C.S.1929, § 48-126; Laws 1935, c. 57, § 39, p. 208; C.S.Supp.,1941, § 48-126; R.S.1943, § 48-126; Laws 1953, c. 163, § 1(1), p. 512; Laws 1957, c. 204, § 3, p. 721; Laws 1986, LB 811, § 45; Laws 2005, LB 238, § 5.

Annotations

1. Seasonal employment

2. Continuous employment

3. Board and lodging

4. Miscellaneous

1. Seasonal employment

Seasonal employment refers to occupations which can be carried on only at certain seasons or fairly definite portions of the year, and does not include such occupations as may be carried on through the entire year. Hiestand v. Ristau, 135 Neb. 881, 284 N.W. 756 (1939).

Employment for handling and delivery of coal for retail coal dealer was not seasonal employment. Hogsett v. Cinek Coal & Feed Co., 127 Neb. 393, 255 N.W. 546 (1934).

Seasonal refers to occupation ordinarily performed in certain seasons. Lincoln Gas & Electric Light Co. v. Watkins, 113 Neb. 619, 204 N.W. 391 (1925).

Work of caretaker of club house was not seasonal. Dietz Club v. Niehaus, 110 Neb. 154, 193 N.W. 344 (1923).

2. Continuous employment

Deceased was not engaged in continuous employment where he was a truck driver hired on a per trip basis and employer was under no obligation to rehire deceased after each trip. Loeffelholz v. Allied Mut. Ins. Co., 183 Neb. 112, 158 N.W.2d 219 (1968).

Employment was continuous where employee was hired to work one day each week. Newberry v. Youngs, 163 Neb. 397, 80 N.W.2d 165 (1956).

Bridge building is not seasonal employment. Gorham v. Peter Kiewit Sons Co., 129 Neb. 277, 261 N.W. 353 (1935).

Where employee had been employed for a period of several months on the basis of a weekly salary, and shortly before accident his salary was changed from a weekly to hourly basis, rule of continuous employment should be applied. Mutchie v. M. L. Rawlings Ice Co., 122 Neb. 297, 240 N.W. 267 (1932).

3. Board and lodging

Allowance for board and lodging must represent a reasonably definite economic gain to the employee before it can be considered as wages. Solheim v. Hastings Housing Co., 151 Neb. 264, 37 N.W.2d 212 (1949).

Where money value of board, lodging, and washing furnished to employee is fixed at time of hiring, it is considered as part of wages in determining amount of compensation due. City of Omaha v. Casaubon, 138 Neb. 608, 294 N.W. 389 (1940).

Cost of meals and lodging furnished employee by employer under agreement made at time of hiring was part of such employee's wages hereunder. Maryland Casualty Co. v. Geary, 123 Neb. 851, 244 N.W. 797 (1932).

4. Miscellaneous

Net profits or net income of a subchapter S corporation do not necessarily qualify as "wages." Bortolotti v. Universal Terrazzo & Tile Co., 304 Neb. 219, 933 N.W.2d 851 (2019).

The determination of "wages" for an employee-shareholder of a subchapter S corporation is a fact-specific inquiry. Bortolotti v. Universal Terrazzo & Tile Co., 304 Neb. 219, 933 N.W.2d 851 (2019).

"Wages" do not include payments received solely because of the recipient's status as an S corporation shareholder; rather, "wages" are compensation for the recipient's activities as a corporate employee. Bortolotti v. Universal Terrazzo & Tile Co., 304 Neb. 219, 933 N.W.2d 851 (2019).

When an employee paid by the hour suffers a work-related injury that results in permanent injury or death, the employee’s average weekly wage is calculated by multiplying the rate of wages by a 40-hour workweek rather than by averaging that employee’s actual wages over the 6 months before the accident. Becerra v. United Parcel Service, 284 Neb. 414, 822 N.W.2d 327 (2012).

The language "ordinarily constituting his or her week's work" precludes an automatic mathematical calculation based on the past 6 months' work; the goal of any average income test is to produce an honest approximation of the claimant's probable future earning capacity. Mueller v. Lincoln Public Schools, 282 Neb. 25, 803 N.W.2d 408 (2011).

Where the worker has insufficient work history to be able to calculate his or her average weekly income based on as much of the preceding 6 months as he or she worked for the same employer, then what would ordinarily constitute that employee's week's work and, thus, that employee's average weekly income should, if possible, be estimated by considering the preceding 6 months of other employees working similar jobs for similar employers. Powell v. Estate Gardeners, 275 Neb. 287, 745 N.W.2d 917 (2008).

In determining the average weekly wage, those weeks which are abnormal may be excluded from the 26 weeks preceding the accident. Canas v. Maryland Cas. Co., 236 Neb. 164, 459 N.W.2d 533 (1990).

Money amounts negotiated between a union and employers based on hours worked by union member employees and to be paid directly to the union to cover such things as health and welfare and pensions are not to be included within the term "wages," unless the money value of such advantages to the employee has been agreed upon and fixed by the employer and employee at the time of hiring. Briggs v. Consolidated Freightways, 234 Neb. 410, 451 N.W.2d 278 (1990).

Money amounts negotiated between a union and employer based on hours worked by union member employees and to be paid directly to the union to cover such things as health and welfare and pensions are not to be included within the term wages, unless the money value of such advantages to the employee has been agreed upon and fixed by the employer and employee at the time of hiring. Schlotfeld v. Mel's Heating & Air Conditioning, 233 Neb. 488, 445 N.W.2d 918 (1989).

Where decedent is unable to work for employer during the six months preceding his death, his wages are calculated by his earnings during as much of the last six months that he worked. Clifford v. Harchelroad Chevrolet, 229 Neb. 78, 425 N.W.2d 331 (1988).

Wages are to be computed according to the contract of hire in force at the time of the accident. Hayes v. A.M. Cohron, Inc., 224 Neb. 579, 400 N.W.2d 244 (1987).

Base figure in calculating award is the wage in force at the time of the accident. Chadd v. Western Cas. & Sur. Co., 166 Neb. 483, 89 N.W.2d 586 (1958).

Employee hired for a day at a time six or seven times a month was entitled to have compensation based on the money rate at which service was recompensed. Gruber v. Stickelman, 149 Neb. 627, 31 N.W.2d 753 (1948).

Wages under the Workmen's Compensation Act are to be computed according to the terms of the contract of hiring in force at the time of the accident. Redfern v. Safeway Stores, Inc., 145 Neb. 288, 16 N.W.2d 196 (1944).

Where employment is not continuous, calculation of wages should be made at the money rate at which the service rendered is recompensed. Weitz v. Johnson, 143 Neb. 452, 9 N.W.2d 788 (1943).

Where employment is not seasonal and not continuous, compensation must be based upon the contract of hiring in force at the time of the accident. Cole v. M. L. Rawlings Ice Co., 139 Neb. 439, 297 N.W. 652 (1941).

Term wages is construed to mean the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the accident, where employment is neither seasonal nor continuous. Carlson v. Condon-Kiewit Co., 135 Neb. 587, 283 N.W. 220 (1939).

Receipt and acceptance of workmen's compensation by city fireman does not bar him from receiving fireman's pension. City of Lincoln v. Steffensmeyer, 134 Neb. 613, 279 N.W. 272 (1938).

Wages should be computed ordinarily according to the terms of contract of hiring in force at the time of the accident. Drum v. Omaha Steel Works, 129 Neb. 273, 261 N.W. 351 (1935).

Compensation claimant's employment was not continuous, or seasonal, or dependent upon the weather, and, therefore, first sentence of this section governs wages. Davis v. Lincoln County, 117 Neb. 148, 219 N.W. 899 (1928).

In this section, the Legislature dealt with the possible inequity that could result from abnormally high work weeks in the context of average weekly wage calculations. Arbtin v. Puritan Mfg. Co., 13 Neb. App. 540, 696 N.W.2d 905 (2005).

Payments to an employee are included in an employee's wage if the payments do not constitute actual reimbursement for actual incurred expenses, but, rather, represent real and definite economic gain to the employee. McGinnis v. Metro Package Courier, Inc., 5 Neb. App. 538, 561 N.W.2d 587 (1997).

Employer may not reduce average weekly wage by amount of "road allowance" included in wages unless such allowance was agreed upon at the time of hiring and did not represent a real and reasonably definite economic gain to the employee. Logan v. Rocky Mountain Rental, 3 Neb. App. 173, 524 N.W.2d 816 (1994).

48-126.01. Wages or compensation rate; basis of computation.

(1)(a) In determining the compensation to be paid any member of the military forces of this state, any member of a law enforcement reserve force, or any member of the Nebraska Emergency Management Agency, any city, village, county, or interjurisdictional emergency management organization, or any state emergency response team, which military forces, law enforcement reserve force, or emergency management agency, organization, or team is organized under the laws of the State of Nebraska, or any person fulfilling conditions of probation, or community service as defined in section 29-2277, pursuant to any order of any court of this state who shall be working for a governmental body, or agency as defined in section 29-2277, pursuant to any condition of probation, or community service as defined in section 29-2277, for injuries resulting in disability or death received in the performance of his or her duties as a member of such military forces, reserve force, agency, organization, or team, or pursuant to an order of any court, the wages of such a member or person shall be taken to be those received by him or her from his or her regular employer, and he or she shall receive such proportion thereof as he or she is entitled to under the provisions of section 48-121.

(b) If a member or person under subdivision (1)(a) of this section is not regularly employed by some other person, for the purpose of such determination, it shall be deemed and assumed that he or she is receiving income from his or her business or from other employment equivalent to wages in an amount one and one-half times the maximum weekly income benefit specified in section 48-121.01.

(c) If the wages received for the performance of duties as a member of such military forces, reserve force, agency, organization, or team exceed the wages received from a regular employer, such member shall be entitled to a rate of compensation based upon wages received as a member of such military forces, reserve force, agency, organization, or team.

(2) In determining the compensation rate to be paid any member of a volunteer fire department in any rural or suburban fire protection district, city, village, or nonprofit corporation or any member of a volunteer emergency medical service, which fire department or emergency medical service is organized under the laws of the State of Nebraska, for injuries resulting in disability or death received in the performance of his or her duties as a member of such fire department or emergency medical service, it shall be deemed and assumed that his or her wages are in an amount one and one-half times the maximum weekly income benefit specified in section 48-121.01 or the wages received by such member from his or her regular employment, whichever is greater. Any member of such volunteer fire department or volunteer emergency medical service shall not lose his or her volunteer status under the Nebraska Workers' Compensation Act if such volunteer receives reimbursement for expenses, reasonable benefits, or a nominal fee, a nominal per call fee, a nominal per shift fee, or combination thereof. It shall be conclusively presumed that a fee is nominal if the fee does not exceed twenty percent of the amount that otherwise would be required to hire a permanent employee for the same services.

Source:Laws 1913, c. 198, § 26, p. 592; R.S.1913, § 3667; Laws 1917, c. 85, § 10, p. 208; C.S.1922, § 3049; Laws 1927, c. 39, § 2, p. 171; C.S.1929, § 48-126; Laws 1935, c. 57, § 39, p. 208; C.S.Supp.,1941, § 48-126; R.S.1943, § 48-126; Laws 1953, c. 163, § 1(2), p. 513; Laws 1955, c. 186, § 3, p. 532; Laws 1959, c. 224, § 1, p. 790; Laws 1961, c. 233, § 2, p. 691; Laws 1967, c. 289, § 2, p. 790; Laws 1969, c. 394, § 1, p. 1384; Laws 1973, LB 239, § 3; Laws 1973, LB 25, § 2; Laws 1976, LB 782, § 15; Laws 1986, LB 528, § 7; Laws 1996, LB 43, § 9; Laws 1997, LB 138, § 39; Laws 1999, LB 216, § 7; Laws 2014, LB961, § 10.

48-127. Compensation; willful negligence; intoxication; effect.

If the employee is injured by reason of his or her intentional willful negligence, or by reason of being in a state of intoxication, neither he or she nor his or her beneficiaries shall receive any compensation under the Nebraska Workers' Compensation Act.

Source:Laws 1913, c. 198, § 27, p. 592; R.S.1913, § 3668; C.S.1922, § 3050; C.S.1929, § 48-127; R.S.1943, § 48-127; Laws 1986, LB 811, § 46.

Annotations

Whether or not effected by this section, employee's acceptance of benefits under Workmen's Compensation Act ordinarily constitutes release to employer of claims at law arising from the injury. Edelman v. Ralph Printing & Lithographing, Inc., 189 Neb. 763, 205 N.W.2d 340 (1973).

The burden of proving intoxication as a defense is on the employer. Johnson v. Hahn Bros. Constr. Inc., 188 Neb. 252, 196 N.W.2d 109 (1972).

Deviation from authorized route of travel was not willful negligence. Krajeski v. Beem, 157 Neb. 586, 60 N.W.2d 651 (1953).

Participant in fight was not willfully negligent. Myszkowski v. Wilson & Co., Inc., 155 Neb. 714, 53 N.W.2d 203 (1952).

Moving of well-digging machinery so as to come in contact with electric power line was not willful negligence. Schroeder v. Sharp, 153 Neb. 73, 43 N.W.2d 572 (1950).

Willful, as used in this section, means deliberate act; conduct evidencing reckless indifference to safety; more than want of ordinary care. Clark v. Village of Hemingford, 147 Neb. 1044, 26 N.W.2d 15 (1947).

Disobedience of order not to smoke did not constitute willful negligence. Moise v. Fruit Dispatch Co., 135 Neb. 684, 283 N.W. 495 (1939).

Where defense is willful negligence, any competent evidence tending to show knowledge by employee of the dangerous character of the act which subsequently caused his death should be received, and it was error to exclude testimony of witness that he had warned deceased of his danger. Richards v. Abts, 135 Neb. 347, 281 N.W. 611 (1938).

In view of holding that accident by which employee met his death did not arise out of his employment, question of his willful negligence, though doubtful, was not decided. Feda v. Cudahy Packing Co., 102 Neb. 110, 166 N.W. 190 (1918).

48-128. Compensation; injury increasing disability; second injury; additional compensation; claim.

(1) For injuries occurring before December 1, 1997:

(a) If an employee who has a preexisting permanent partial disability whether from compensable injury or otherwise, which is or is likely to be a hindrance or obstacle to his or her obtaining employment or obtaining reemployment if the employee should become unemployed and which was known to the employer prior to the occurrence of a subsequent compensable injury, receives a subsequent compensable injury resulting in additional permanent partial or in permanent total disability so that the degree or percentage of disability caused by the combined disabilities is substantially greater than that which would have resulted from the last injury, considered alone and of itself, and if the employee is entitled to receive compensation on the basis of the combined disabilities, the employer at the time of the last injury shall be liable only for the degree or percentage of disability which would have resulted from the last injury had there been no preexisting disability. For the additional disability, the employee shall be compensated out of the Workers' Compensation Trust Fund. If the subsequent compensable injury of such an employee shall result in the death of the employee and it shall be determined that the death would not have occurred except for such preexisting permanent partial disability, the employer shall pay the compensation benefits prescribed by this subsection for a period not exceeding three hundred twenty-five weeks, and for any compensation benefits payable after such period of three hundred twenty-five weeks, the dependents shall be compensated out of the fund.

(b) In order to qualify under this subsection, the employer must establish by written records that the employer had knowledge of the preexisting permanent partial disability at the time that the employee was hired or at the time the employee was retained in employment after the employer acquired such knowledge.

(c) As used in this subsection, preexisting permanent partial disability shall mean any preexisting permanent condition, whether congenital or the result of injury or disease, of such seriousness as to constitute a hindrance or obstacle to obtaining employment or to obtaining reemployment if the employee should become unemployed. No condition shall be considered a preexisting permanent partial disability under this subsection unless it would support a rating of twenty-five percent loss of earning power or more or support a rating which would result in compensation payable for a period of ninety weeks or more for disability for permanent injury as computed under subdivision (3) of section 48-121.

(2) Any money in the Second Injury Fund on July 1, 2000, shall be transferred to the Workers' Compensation Trust Fund.

Source:Laws 1913, c. 198, § 28, p. 592; R.S.1913, § 3669; C.S.1922, § 3051; C.S.1929, § 48-128; R.S.1943, § 48-128; Laws 1947, c. 174, § 1, p. 559; Laws 1949, c. 161, § 2, p. 411; Laws 1955, c. 185, § 1, p. 525; Laws 1955, c. 186, § 4, p. 532; Laws 1967, c. 290, § 1, p. 792; Laws 1971, LB 505, § 1; Laws 1974, LB 881, § 1; Laws 1986, LB 811, § 47; Laws 1986, LB 1037, § 1; Laws 1987, LB 398, § 41; Laws 1988, LB 1034, § 1; Laws 1992, LB 1006, § 92; Laws 1993, LB 757, § 8; Laws 1997, LB 854, § 2; Laws 2000, LB 1221, § 6.

Annotations

Generally, Nebraska applies the full-responsibility rule and does not apportion the recovery for two or more successive work-related injuries outside of this section. Picard v. P & C Group 1, 306 Neb. 292, 945 N.W.2d 183 (2020).

In order for the employer to qualify under subsection (1)(b) of this section, the employer must establish by written records that the employer had knowledge of the preexisting permanent partial disability at the time that the employee was hired or at the time the employee was retained in employment after the employer acquired such knowledge. Ashland-Greenwood Public Schools v. Thorell, 15 Neb. App. 114, 723 N.W.2d 506 (2006).

The purpose of the written records requirement of this section is to put in place a strictly limited method of proving a predicate fact before liability for benefits may be shifted to the Workers' Compensation Trust Fund. Ashland-Greenwood Public Schools v. Thorell, 15 Neb. App. 114, 723 N.W.2d 506 (2006).

The purpose of this section is to provide employers with an incentive to hire those who suffer from permanent disability, but the statute restricts the benefits to those employers who consciously hire those they know to be suffering from prior permanent disabilities. Ashland-Greenwood Public Schools v. Thorell, 15 Neb. App. 114, 723 N.W.2d 506 (2006).

The written records requirement of this section is merely evidentiary, and must be sensibly construed so as not to defeat the statute's larger remedial purpose. Ashland-Greenwood Public Schools v. Thorell, 15 Neb. App. 114, 723 N.W.2d 506 (2006).

This section does not require possession of the written records by the employer at the time of the subsequent injury or at the time the claim for contribution from the Workers' Compensation Trust Fund is made. Ashland-Greenwood Public Schools v. Thorell, 15 Neb. App. 114, 723 N.W.2d 506 (2006).

48-129. Compensation; joint employers; liability.

In case any employee for whose injury or death compensation is payable under the Nebraska Workers' Compensation Act shall, at the time of the injury, be employed and paid jointly by two or more employers, as defined in section 48-114, such employers shall contribute to the payment of such compensation in proportion to their several wage liabilities to such employee. If one or more, but not all, of such employers should be subject to the Nebraska Workers' Compensation Act, then the liability of such of them as are so subject shall be to pay that proportion of the entire compensation which their proportionate wage liability bears to the entire wages of the employee, except that nothing in this section shall prevent employers from making any arrangement between themselves for a different distribution of the ultimate burden of compensation.

Source:Laws 1913, c. 198, § 29, p. 592; R.S.1913, § 3670; C.S.1922, § 3052; C.S.1929, § 48-129; R.S.1943, § 48-129; Laws 1986, LB 811, § 48.

Annotations

Under the facts of this case, the claimant was a loaned employee but there was no consensual relationship sufficient to create a new employer-employee relationship. Therefore, the lending employer remained liable for his workmen's compensation. B & C Excavating Co. v. Hiner, 207 Neb. 248, 298 N.W.2d 155 (1980).

Sections 48-129 and 48-168, R.R.S.1943, gives the Workmen's Compensation Court jurisdiction to consider the issue of joint employment. White v. Western Commodities, Inc., 207 Neb. 75, 295 N.W.2d 704 (1980).

Under the facts of this case, the Workmen's Compensation Court was clearly wrong in finding that the two defendants were joint employers of the plaintiff but was correct in finding an employer-employee relationship between one of the defendants and the plaintiff. White v. Western Commodities, Inc., 207 Neb. 75, 295 N.W.2d 704 (1980).

Joint employment and pro rata liability for compensation payments under this section exist only where there is an agreement between employers as to salary, wages, hours of employment, and terms of service. Henning v. City of Hebron, 186 Neb. 381, 183 N.W.2d 756 (1971).

In absence of joint arrangement, there cannot be any joint employment. Solheim v. Hastings Housing Co., 151 Neb. 264, 37 N.W.2d 212 (1949).

Joint employer is required to pay only that proportion of compensation which his proportionate wage bears to entire wages of employee. Summers v. Railway Express Agency, 134 Neb. 237, 278 N.W. 476 (1938).

To constitute joint employment, there must be concert of action between employers as to wages, hours of service, and term of service. Suverkrubbe v. Village of Fort Calhoun, 127 Neb. 472, 256 N.W. 47 (1934).

48-130. Compensation; savings; insurance; other benefits; not factors.

No savings or insurance of the injured employee or any contribution made by him or her to any benefit fund or protective association independent of the Nebraska Workers' Compensation Act shall be taken into consideration in determining the compensation to be paid thereunder; nor shall benefits derived from any other source than those paid or caused to be paid by the employer as herein provided be considered in fixing compensation under such act.

Source:Laws 1913, c. 198, § 30, p. 593; R.S.1913, § 3671; C.S.1922, § 3053; C.S.1929, § 48-130; R.S.1943, § 48-130; Laws 1986, LB 811, § 49.

Annotations

Pursuant to this section, the payment of private insurance benefits does not entitle an employer to reduce an employee's benefits due under the Nebraska Workers' Compensation Act. Dawes v. Wittrock Sandblasting & Painting, 266 Neb. 526, 667 N.W.2d 167 (2003).

Pension benefits made under city ordinance did not affect the right of plaintiff to claim and receive under Workmen's Compensation Act. Novotny v. City of Omaha, 207 Neb. 535, 299 N.W.2d 757 (1980).

Receipt of workmen's compensation does not bar city fireman from right to fireman's pension. City of Lincoln v. Steffensmeyer, 134 Neb. 613, 279 N.W. 272 (1938).

Receipt by city fireman of pension will not bar widow from compensation under Workmen's Compensation Act. Shandy v. City of Omaha, 127 Neb. 406, 255 N.W. 477 (1934).

Question whether pension paid by city to widow of deceased policeman would be benefits derived from any other source, was discussed, but not decided. Good v. City of Omaha, 102 Neb. 654, 168 N.W. 639 (1918).

No provision in the Nebraska Workers' Compensation Act limits an employee's ability to receive workers' compensation benefits because he or she is simultaneously receiving unemployment benefits. Hernandez v. JBS USA, 20 Neb. App. 634, 828 N.W.2d 765 (2013).

An employer's exercise of its statutory right to pursue its subrogation claim against a tort-feasor who injured its employee is not "causing" the payment of workers' compensation. Thomas v. Lincoln Public Schools, 9 Neb. App. 965, 622 N.W.2d 705 (2001).

Payment of private insurance benefits, even if made pursuant to an employer-funded plan, does not entitle an employer to reduce an employee's benefits due under the Workers' Compensation Act. Nunn v. Texaco Trading & Transp., 3 Neb. App. 101, 523 N.W.2d 705 (1994).

48-131. Compensation; waiver by employee invalid.

No agreement by an employee to waive his or her rights to compensation under the Nebraska Workers' Compensation Act shall be valid.

Source:Laws 1913, c. 198, § 31, p. 593; R.S.1913, § 3672; C.S.1922, § 3054; C.S.1929, § 48-131; R.S.1943, § 48-131; Laws 1986, LB 811, § 50.

Annotations

On payments of compensation without agreement of settlement, statutory limitations did not take effect until one year from last payment. Ashton v. Blue River Power Co., 117 Neb. 661, 222 N.W. 42 (1928).

48-132. Compensation; employees or dependents under disability; rights; enforcement.

If an injured employee or a dependent is mentally incompetent or is a minor at the time when any right or privilege accrues to him or her under the Nebraska Workers' Compensation Act, his or her guardian or next friend may, in his or her behalf, claim and exercise such right or privilege.

Source:Laws 1913, c. 198, § 32, p. 593; R.S.1913, § 3673; C.S.1922, § 3055; C.S.1929, § 48-132; R.S.1943, § 48-132; Laws 1961, c. 234, § 1, p. 692; Laws 1986, LB 811, § 51.

Cross References

For definitions of incompetent person and guardian, see section 30-2902.

Annotations

Failure of guardian to bring action does not bar right of minor from asserting rights after becoming of age. Krajeski v. Beem, 157 Neb. 586, 60 N.W.2d 651 (1953).

The act relating to filing claims for compensation makes no exception in favor of minors. Ray v. Sanitary Garbage Co., 134 Neb. 178, 278 N.W. 139 (1938).

Where claimant knew her condition from day to day, and knew she had a present total disability, she was not excused from filing claim within time prescribed by statute by continuous confinement to bed as the result of injury. Park v. School District No. 27, Richardson Cty., 127 Neb. 767, 257 N.W. 219 (1934).

Minor employee, of an age where legally permitted to work, may elect to come under Workmen's Compensation Act. Navracel v. Cudahy Packing Co., 109 Neb. 506, 191 N.W. 659 (1922).

48-133. Compensation; notice of injury; time; service.

No proceedings for compensation for an injury under the Nebraska Workers' Compensation Act shall be maintained unless a notice of the injury shall have been given to the employer as soon as practicable after the happening thereof; Provided, that all disputed claims for compensation or benefits shall be first submitted to the Nebraska Workers' Compensation Court. The notice shall be in writing and shall state in ordinary language the time, place, and cause of the injury. It shall be signed by the person injured, or by a person in his or her behalf, or in the event of his or her death, by his or her legal representative or by a person in his or her behalf. The notice shall be served upon the employer or an agent thereof. Such service may be made by delivering the notice to the person on whom it is to be served, or leaving it at his or her residence or place of business, or by sending it by certified or registered mail addressed to the person or corporation on whom it is to be served at his or her last-known residence or place of business. A notice given pursuant to this section shall not be held invalid or insufficient by reason of any inaccuracy in stating the time, place, or cause of the injury, unless it is shown that it was the intention to mislead, and the employer, or the insurance company carrying such risk, as the case may be, was in fact misled thereby. Want of such written notice shall not be a bar to proceedings under the Nebraska Workers' Compensation Act, if it be shown that the employer had notice or knowledge of the injury.

Source:Laws 1913, c. 198, § 33, p. 593; R.S.1913, § 3674; Laws 1917, c. 85, § 11, p. 209; C.S.1922, § 3056; C.S.1929, § 48-133; Laws 1935, c. 57, § 21, p. 198; C.S.Supp.,1941, § 48-133; R.S.1943, § 48-133; Laws 1961, c. 234, § 2, p. 692; Laws 1977, LB 144, § 1; Laws 1986, LB 811, § 52; Laws 1987, LB 93, § 16.

Annotations

1. Notice of injury

2. Claim for compensation

3. Miscellaneous

1. Notice of injury

An employee is not required to give an opinion as to the cause of an injury in order to satisfy the notice requirement under this section. Risor v. Nebraska Boiler, 277 Neb. 679, 765 N.W.2d 170 (2009).

Under this section, an employer has sufficient notice or knowledge of a worker's injury if a reasonable person would conclude that the injury is potentially compensable and that the employer should therefore investigate the matter further. Risor v. Nebraska Boiler, 277 Neb. 679, 765 N.W.2d 170 (2009).

When an employer's foreman, supervisor, or superintendent has knowledge of the employee's injury, that knowledge is imputed to the employer. Knowledge imputed to an employer can satisfy this section's notice requirement. Risor v. Nebraska Boiler, 277 Neb. 679, 765 N.W.2d 170 (2009).

When the parties do not dispute the facts concerning reporting and notice, whether such facts constitute sufficient notice to the employer under this section presents a question of law. Risor v. Nebraska Boiler, 277 Neb. 679, 765 N.W.2d 170 (2009); Unger v. Olsen's Ag. Lab., 19 Neb. App. 459, 809 N.W.2d 813 (2012).

A lack of prejudice is not an exception to the requirement of notice under this section. Scott v. Pepsi Cola Co., 249 Neb. 60, 541 N.W.2d 49 (1995).

In place of indispensable written notice, this section contemplates a situation in which an employer has notice or knowledge sufficient to lead a reasonable person to conclude that an employee's injury is potentially compensable and that, therefore, the employer should investigate the matter further. Thompson v. Monfort of Colorado, 221 Neb. 83, 375 N.W.2d 601 (1985).

Employee is required to give notice in writing as soon as practicable after the accident. Seymour v. Journal-Star Printing Co., 174 Neb. 150, 116 N.W.2d 297 (1962).

Where employer had actual notice, written notice was not required. Krajeski v. Beem, 157 Neb. 586, 60 N.W.2d 651 (1953).

Request for medical services was sufficient notice. Gilbert v. Metropolitan Utilities Dist., 156 Neb. 750, 57 N.W.2d 770 (1953).

Where employee, with full knowledge of his injury, fails to file notice of claim within six months after injury, his claim is barred. Surratt v. Otoe Food Products Co., 146 Neb. 854, 21 N.W.2d 862 (1946).

Lack of written notice to employer is not bar to proceedings if employer has notice or knowledge of the injury. Perkins v. Young, 133 Neb. 234, 274 N.W. 596 (1937).

Timely notice to or knowledge of a foreman, whose duty requires him to report accidents to his employer, is sufficient. Clary v. R. S. Proudfit Co., 124 Neb. 582, 247 N.W. 417 (1933).

Employee's failure to give timely notice of claim is not necessarily defense where injury is latent and progressive, and notice is given within six months from time he has knowledge of compensable disability. Flesch v. Phillips Petroleum Co., 124 Neb. 1, 244 N.W. 925 (1932).

Verbal notice to physician of employer, indirectly threatening suit, is not such notice as complies herewith. Samland v. Ford Motor Co., 123 Neb. 819, 244 N.W. 404 (1932).

Written notice to employer is not necessary where he had actual notice of employee's injury. Skelly Oil Co. v. Gaugenbaugh, 119 Neb. 698, 230 N.W. 688 (1930).

For purposes of notice or knowledge under this section, the employer equates to the insurer, and vice versa. Snowden v. Helget Gas Products, 15 Neb. App. 33, 721 N.W.2d 362 (2006).

Knowledge of an employee's injury gained by the employee's foreman, supervisor, or superintendent in a representative capacity for an employer is knowledge imputed to the employer and notice to an employer sufficient for the notice requirement of this section. Snowden v. Helget Gas Products, 15 Neb. App. 33, 721 N.W.2d 362 (2006).

This section provides an exception to the written notice rule if it can be shown that the employer had notice or knowledge of the injury sufficient to lead a reasonable person to conclude that an employee's injury is potentially compensable, which in turn would create a responsibility of the employer to investigate the matter. Snowden v. Helget Gas Products, 15 Neb. App. 33, 721 N.W.2d 362 (2006).

A lack of prejudice is not an exception to the requirement of notice. Williamson v. Werner Enters., 12 Neb. App. 642, 682 N.W.2d 723 (2004).

This section requires notice of the injury, not merely notice of the accident. Williamson v. Werner Enters., 12 Neb. App. 642, 682 N.W.2d 723 (2004).

Where an employee experienced an unusual event, promptly perceived substantial pain that the employee connected with the event, within days sought medical treatment which the employee related to the event, and failed to notify the employer of the injury for approximately 5 months, such notice was not given as soon as practicable. Williamson v. Werner Enters., 12 Neb. App. 642, 682 N.W.2d 723 (2004).

2. Claim for compensation

Where an occupational disease results from continual absorption of small quantities of a deleterious substance from the employment environment over a period of time, the afflicted employee is considered "injured" only when the accumulated effects of the substance manifest themselves, which is when the employee becomes disabled and entitled to compensation. The statute of limitations runs from the date when the disability first occurred. Osteen v. A.C. and S., Inc., 209 Neb. 282, 307 N.W.2d 514 (1981).

A claim made within six months after occurrence of disability is a condition prerequisite to the bringing of action for compensation benefits. Raymond v. Buckridge, Inc., 195 Neb. 212, 237 N.W.2d 412 (1976).

Furnishing by employer of medical services and medicines dispenses with necessity of making claim within six months after injury. Gourley v. City of Grand Island, 168 Neb. 538, 96 N.W.2d 309 (1959).

Where employee failed to establish connection between accident and disability, consideration of question of failure to file claim in time was unnecessary. Cole v. Cushman Motor Works, 159 Neb. 97, 65 N.W.2d 330 (1954).

Where time for filing of claim expires in lifetime of employee, it is a bar to claim by his dependents after his death. McCoy v. Gooch Milling & Elevator Co., 156 Neb. 95, 54 N.W.2d 373 (1952).

Where employee has made claim within six months against employer, he is not required to make separate claim against third party who failed to require employer to carry insurance. Dobesh v. Associated Asphalt Contractors, Inc., 138 Neb. 117, 292 N.W. 59 (1940).

A demand for payment of medical expenses under the compensation act is a claim for compensation. Schmidt v. City of Lincoln, 137 Neb. 546, 290 N.W. 250 (1940).

Minor dependents of deceased employee are not excepted from provisions of statute as to time for filing claims. Ray v. Sanitary Garbage Co., 134 Neb. 178, 278 N.W. 139 (1938).

Failure to comply with statutory requirements as to filing claim precludes recovery. Johansen v. Farmers Mutual Hail Ins. Assn., 133 Neb. 118, 274 N.W. 393 (1937).

In case of physical or mental incapacity resulting from injury, the statutory limitations as to notice and commencement of action do not begin to run until six months after removal of such incapacity. Mulvey v. City of Lincoln, 131 Neb. 279, 267 N.W. 459 (1936).

Exception is made in case of latent and progressive injury, and claim must be made within six months after employee acquired knowledge of disability. Park v. School District No. 27, Richardson Cty., 127 Neb. 767, 257 N.W. 219 (1934).

Claim must be made within six months and petition filed within one year of death of employee. Welton v. Swift & Co., 125 Neb. 455, 250 N.W. 661 (1933).

Where claimant was informed by his doctor of progressive cataracts forming in the lenses of both eyes, he was not excused from filing claim on the ground that condition was latent. Kurtz v. Sunderlund Bros. Co., 124 Neb. 776, 248 N.W. 84 (1933).

Where claim is made within six months of time real nature of injury was first discovered, it was timely made. Clary v. R. S. Proudfit Co., 124 Neb. 582, 247 N.W. 417 (1933).

Where claim for compensation was made within six months from time real nature of injury was first discovered by use of X-rays, it was timely made. Montgomery v. Milldale Farm & Live Stock Improvement Co., 124 Neb. 347, 246 N.W. 734 (1933).

Where injury is latent and of progressive nature and culminates in a compensable disability, claim may be filed within a year after date of culmination thereof. Marler v. Grainger Bros., 123 Neb. 517, 243 N.W. 622 (1932).

Failure to file claim or bring suit within specified time does not defeat right to compensation where injury is latent and notice has been given and action commenced within statutory period after employee has knowledge of such compensable injury. Astuto v. V. Ray Gould Co., 123 Neb. 138, 242 N.W. 375 (1932).

Recovery is not barred where employee makes claim of employer within two months after injury and lodges claim with commissioner within seven months thereof. Palmer v. Saunders County, 117 Neb. 484, 221 N.W. 99 (1928).

Latent injuries, progressive in nature, entitle employee to compensation when disability is discovered to exist and, in such cases, failure to make claim within six months after the accident will not deprive employee of rights. McGuire v. Phelan-Shirley Co., 111 Neb. 609, 197 N.W. 615 (1924); Selders v. Cornhusker Oil Co., 111 Neb. 300, 196 N.W. 316 (1923); Johansen v. Union Stock Yards Co., 99 Neb. 328, 156 N.W. 511 (1916).

Knowledge of employer that employee has received an injury will not dispense with necessity of making claim for compensation. Good v. City of Omaha, 102 Neb. 654, 168 N.W. 639 (1918).

Time for bringing of proceeding begins to run from the time physical or mental incapacity is removed. Simon v. Cathroe Co., 101 Neb. 211, 162 N.W. 633 (1917).

This section contemplates a situation where an employer has notice or knowledge sufficient to lead a reasonable person to conclude that an employee's injury is potentially compensable and that therefore, the employer should investigate the matter further. Williamson v. Werner Enters., 12 Neb. App. 642, 682 N.W.2d 723 (2004).

3. Miscellaneous

Agreement to pay compensation must be approved by compensation commissioner or compensation court or it is void, and part payment will not make such agreement actionable at common law. Duncan v. A. Hospe Co., 133 Neb. 810, 277 N.W. 339 (1938).

Where the underlying facts are undisputed, or if disputed, the factual finding of the trial court was not clearly erroneous, the question of whether this section bars the claim is a question of law upon which the appellate court must make a determination independent of that of the trial court. Unger v. Olsen's Ag. Lab., 19 Neb. App. 459, 809 N.W.2d 813 (2012).

48-134. Injured employee; physical examination; duty to submit.

After an employee has given notice of an injury, as provided in section 48-133, and from time to time thereafter during the continuance of his or her disability, he or she shall, if so requested by the employer or the insurance company carrying such risk, submit himself or herself to an examination by a physician or surgeon legally authorized to practice medicine under the laws of the state in which he or she practices, furnished and paid for by the employer, or the insurance company carrying such risk, as the case may be. The employee shall have the right to have a physician provided and paid for by himself or herself present at the examination. The unreasonable refusal of the employee to submit to such examination shall deprive him or her of the right to compensation under the Nebraska Workers' Compensation Act during the continuance of such refusal, and the period of such refusal shall be deducted from the period during which compensation would otherwise be payable.

Source:Laws 1913, c. 198, § 34, p. 594; R.S.1913, § 3675; C.S.1922, § 3057; C.S.1929, § 48-134; R.S.1943, § 48-134; Laws 1969, c. 395, § 1, p. 1385; Laws 1986, LB 811, § 53.

Annotations

This section places the selection of the physician solely within the employer's or insurance company's discretion, so long as the physician is legally authorized as set out in this section. Behrens v. American Stores Packing Co., 234 Neb. 25, 449 N.W.2d 197 (1989).

Inquiry respecting extent of an injury to employee should be directed to his condition at time of examination or trial. Dymak v. Haskins Bros. & Co., 132 Neb. 308, 271 N.W. 860 (1937).

Woman employee refusing to permit injection to render kidney opaque for purpose of X-ray photograph, was not thereby deprived of right to compensation. United States Fidelity & Guaranty Co. v. Wickline, 103 Neb. 681, 173 N.W. 689 (1919), 103 Neb. 21, 170 N.W. 193, 6 A.L.R. 1267 (1918).

The fundamental question of the compensability of an employee's claim stands separate from whether the employee can be deprived of benefits under this section during the time of an unreasonable refusal to undergo an employer's medical examination. Hale v. Vickers, Inc., 10 Neb. App. 627, 635 N.W.2d 458 (2001).

48-134.01. Independent medical examiner system; list of physicians; duties; fee schedule; selection of examiner; procedures before examiner; findings; immunity.

(1) The Nebraska Workers' Compensation Court may develop and implement an independent medical examiner system consistent with the requirements of this section. As part of such system, the compensation court by a majority vote of the judges thereof may create, maintain, and periodically validate a list of physicians that it finds to be the most qualified and to be highly experienced and competent in their specific fields of expertise and in the treatment of work-related injuries to serve as independent medical examiners from each of the health care specialties that the compensation court finds most commonly used by injured employees. The compensation court may establish a fee schedule for services rendered by independent medical examiners and may adopt and promulgate any rules and regulations considered necessary to carry out the purposes of this section.

(2) An independent medical examiner shall render medical findings on the medical condition of an employee and related issues as specified under this section. The independent medical examiner shall not be the employee's treating physician and shall not have treated the employee with respect to the injury for which the claim is being made or the benefits are being paid.

(3) If the parties to a dispute cannot agree on an independent medical examiner of their own choosing, the compensation court shall assign an independent medical examiner from the list of qualified examiners to render medical findings in any dispute relating to the medical condition of a claimant and related issues, including, but not limited to, whether the injured employee is able to perform any gainful employment temporarily or permanently, what physical restrictions, if any, would be imposed on the employee's employment, whether the injured employee has reached maximum medical improvement, the existence and extent of any permanent physical impairment, the reasonableness and necessity of any medical treatment previously provided, or to be provided, to the injured employee, and any other medical questions which may pertain to causality and relatedness of the medical condition to the employment.

(4) The compensation court may adopt and promulgate rules and regulations pertaining to the procedures before the independent medical examiner, including the parties' ability to propound questions relating to the medical condition of the employee and related issues to be submitted to the independent medical examiner. In addition to the review of records and information, the independent medical examiner may examine the employee as often as the examiner determines necessary to render medical findings on the questions propounded by the parties or by the compensation court.

(5) The independent medical examiner shall submit a written report to the compensation court, the employer, and the employee stating the examiner's medical findings on the issues raised and providing a description of findings sufficient to explain the basis of those findings. The fee for the examination and report shall be paid by the employer.

(6) The written report of the independent medical examiner's findings shall be admissible in a proceeding before the compensation court and may be received into evidence by the compensation court on its own motion.

(7) Any physician acting without malice and within the scope of the physician's duties as an independent medical examiner shall be immune from civil liability for making any report or other information available to the compensation court or for assisting in the origination, investigation, or preparation of the report or other information so provided.

Source:Laws 1993, LB 757, § 7; Laws 1997, LB 128, § 2; Laws 1999, LB 216, § 8.

Annotations

Pursuant to subsection (3) of this section, the "reasonableness and necessity" of medical treatment and "causality and relatedness of the medical condition to the employment" are separate and distinct questions upon which an independent examiner may be asked to opine. Miller v. Regional West Med. Ctr., 278 Neb. 676, 722 N.W.2d 872 (2009).

This section is applicable only to medical issues arising in cases where liability has been established. Owen v. American Hydraulics, Inc., 254 Neb. 685, 578 N.W.2d 57 (1998).

48-135. Autopsy; cost; payment.

Except as provided in section 23-1824, in all death claims, where the cause of death is obscure or disputed, any interested party may require an autopsy, the cost of such autopsy to be borne by the party demanding the same.

Source:Laws 1913, c. 198, § 35, p. 594; R.S.1913, § 3676; C.S.1922, § 3058; C.S.1929, § 48-135; R.S.1943, § 48-135; Laws 1999, LB 46, § 3.

48-136. Compensation; voluntary settlements.

The interested parties shall have the right to settle all matters of compensation between themselves with the consent of the workers' compensation insurer, if any, and in accordance with the Nebraska Workers' Compensation Act. No such settlement shall be binding unless the settlement is in accordance with such act.

Source:Laws 1913, c. 198, § 36, p. 595; R.S.1913, § 3677; Laws 1917, c. 85, § 12, p. 209; C.S.1922, § 3059; C.S.1929, § 48-136; Laws 1935, c. 57, § 22, p. 199; C.S.Supp.,1941, § 48-136; R.S.1943, § 48-136; Laws 1978, LB 649, § 2; Laws 1986, LB 811, § 54; Laws 2005, LB 238, § 6; Laws 2009, LB630, § 4.

Annotations

A finding by the Workers' Compensation Court that an alleged injury is covered by the Workers' Compensation Act is not necessarily a prerequisite to a settlement agreement which includes a program of vocational rehabilitation paid for by the employer or its insurer. Miner v. Robertson Home Furnishing, 239 Neb. 525, 476 N.W.2d 854 (1991).

Agreements to settle workers' compensation cases not filed in and approved by the Workers' Compensation Court are void and of no effect. Miner v. Robertson Home Furnishing, 239 Neb. 525, 476 N.W.2d 854 (1991).

An agreement dividing compensation benefits between the parties was void where not in writing, filed with and approved by the compensation court. James v. Rainchief Constr. Co., 197 Neb. 818, 251 N.W.2d 367 (1977).

Copy of lump sum settlement is required to be filed with compensation court. Miller v. Schlereth, 151 Neb. 33, 36 N.W.2d 497 (1949).

Where settlement was never approved by workmen's compensation court, it was ineffective to defeat claim for compensation. Riggins v. Lincoln Tent & Awning Co., 143 Neb. 893, 11 N.W.2d 810 (1943).

Agreement to pay compensation must be approved by compensation commissioner or compensation court or it is void, and part payment will not make such agreement actionable at common law. Duncan v. A. Hospe Co., 133 Neb. 810, 277 N.W. 339 (1938).

Copy of settlement must not only be filed, but the settlement must also be approved by compensation court. Zurich General Accident & Liability Ins. Co. v. Walker, 128 Neb. 327, 258 N.W. 550 (1935).

In order to have a valid agreement for settlement, terms of act must be followed. Ashton v. Blue River Power Co., 117 Neb. 661, 222 N.W. 42 (1928).

Lump sum settlement was sustained. Perry v. Huffman Auto. Co., 104 Neb. 211, 175 N.W. 1021 (1920).

Under former statute, court had no authority to order commutation of payments in lump sum in absence of agreement. Pierce v. Boyer-Van Kuran Lumber & Coal Co., 99 Neb. 321, 156 N.W. 509 (1916).

48-137. Compensation claims; actions; statute of limitations; exceptions.

In case of personal injury, all claims for compensation shall be forever barred unless, within two years after the accident, the parties shall have agreed upon the compensation payable under the Nebraska Workers' Compensation Act, or unless, within two years after the accident, one of the parties shall have filed a petition as provided in section 48-173. In case of death, all claims for compensation shall be forever barred unless, within two years after the death, the parties shall have agreed upon the compensation under the Nebraska Workers' Compensation Act, or unless, within two years after the death, one of the parties shall have filed a petition as provided in section 48-173. When payments of compensation have been made in any case, such limitation shall not take effect until the expiration of two years from the time of the making of the last payment. In the event of legal disability of an injured employee or his or her dependent such limitation shall not take effect until the expiration of two years from the time of removal of such legal disability.

Source:Laws 1913, c. 198, § 38, p. 595; R.S.1913, § 3679; Laws 1917, c. 85, § 14, p. 210; C.S.1922, § 3061; C.S.1929, § 48-138; R.S.1943, § 48-137; Laws 1961, c. 234, § 3, p. 693; Laws 1977, LB 144, § 2; Laws 1986, LB 811, § 55.

Annotations

1. Agreement by employer to compensate

2. Filing of petition

3. Payment of compensation

4. Latent and progressive injury

5. Material change in condition

6. Miscellaneous

1. Agreement by employer to compensate

Where employer agreed to compensate employee for injury and employee relying on promise, waited more than a year from time of accident to begin action, employer could not plead statute of limitations hereunder. Speas v. Boone County, 119 Neb. 58, 227 N.W. 87 (1929).

2. Filing of petition

The 2-year limitation contained in this section is contingent upon the failure of one of the parties to file a petition. Foote v. O'Neill Packing, 262 Neb. 467, 632 N.W.2d 313 (2001).

A claim for compensation filed 4 years after the date of the accident, with no allegation of excuse tolling the operation of the statute of limitations, is subject to demurrer. Bernhardt v. County of Scotts Bluff, 240 Neb. 423, 482 N.W.2d 262 (1992).

A proceeding under section 48-141, R.R.S.1943, to modify a previous award of the compensation court to recover additional compensation for an increase in incapacity can only be brought within two years of the time the employee knows, or is chargeable with knowledge, that his condition has materially changed and there is such a substantial increase in his disability as to entitle him to additional compensation. O'Connor v. Anderson Bros. Plumbing & Heating, 207 Neb. 641, 300 N.W.2d 188 (1981).

Where plaintiff's injury is known, and medical facts as to the extent of the injury were reasonably discoverable, the injury is not latent, and must be brought within the one-year statute of limitations. McGahan v. St. Francis Hospital, 200 Neb. 406, 263 N.W.2d 845 (1978).

Consideration of question of failure to file petition in time was unnecessary where employee failed to establish compensable injury. Cole v. Cushman Motor Works, 159 Neb. 97, 65 N.W.2d 330 (1954).

Time in which to bring action is tolled while employee is a minor. Krajeski v. Beem, 157 Neb. 586, 60 N.W.2d 651 (1953).

Petition was filed in time. Gilbert v. Metropolitan Utilities Dist., 156 Neb. 750, 57 N.W.2d 770 (1953).

Petition is required to be filed within one year after employee acquires knowledge of a compensable disability. McCoy v. Gooch Milling & Elevator Co., 156 Neb. 95, 54 N.W.2d 373 (1952).

An injured workman has one year in which to file petition in workmen's compensation case. Clark v. Village of Hemingford, 147 Neb. 1044, 26 N.W.2d 15 (1947).

Where an employee, with full knowledge of his injury, fails to make claim for compensation within six months, and fails to file petition within one year, his claim is barred. Surratt v. Otoe Food Products Co., 146 Neb. 854, 21 N.W.2d 862 (1946).

To recover additional compensation for an increase in disability, proceedings must be brought within one year from the time the employee knows or is chargeable with knowledge that his condition has materially changed. Scott v. State, 137 Neb. 348, 289 N.W. 367 (1939).

Where employee is injured and dies in October 1931, and no claim is filed on behalf of minor dependents until September 1936, such claim is barred by statute of limitations. Ray v. Sanitary Garbage Co., 134 Neb. 178, 278 N.W. 139 (1938).

Failure to comply with statutory requirements as to filing claim and filing petition precludes recovery. Johansen v. Farmers Mutual Hail Ins. Assn., 133 Neb. 118, 274 N.W. 393 (1937).

Where petition was filed within one year after assault causing injury, it was within time. Miller v. George & Mary Reisch Co., 132 Neb. 338, 271 N.W. 853 (1937).

Where statute has become bar to claim for compensation during lifetime of injured employee it is also a bar to a claim by his dependents after his death. Price v. Burlington Refrigerator Express Co., 131 Neb. 657, 269 N.W. 425 (1936).

Officer in municipal fire department, injured while fighting fire, was barred from claiming compensation when he failed to file petition within one year after date to which city had paid his salary in full. Dunlap v. City of Omaha, 131 Neb. 632, 269 N.W. 422 (1936).

Proceedings for compensation cannot be maintained where no claim is filed within six months, or petition within one year, of death of employee. Welton v. Swift & Co., 125 Neb. 455, 250 N.W. 661 (1933).

Where action is not brought within one year of last payment of compensation, it is barred hereunder. Kurtz v. Sunderland Bros. Co., 124 Neb. 776, 248 N.W. 84 (1933).

Recovery was not barred where employee made claim of employer within two months after injury and lodged claim with commissioner within seven months thereof. Palmer v. Saunders County, 117 Neb. 484, 221 N.W. 99 (1928).

Where petition was filed more than one year after injuries were sustained, claim was barred. Duhrkopf v. Bennett, 108 Neb. 142, 187 N.W. 813 (1922).

Knowledge by employer that employee was injured does not excuse latter from making claim for compensation within statutory period. Good v. City of Omaha, 102 Neb. 654, 168 N.W. 639 (1918).

3. Payment of compensation

In determining when the statute of limitations begins to run in situations where payments of compensation have been made, "the time of the making of the last payment" means the date the employee or the employee's provider receives payment. Obermiller v. Peak Interest, 277 Neb. 656, 764 N.W.2d 410 (2009).

This section provides that when payments of workers' compensation have been made, the statute of limitations will not take effect until the expiration of 2 years from the time of the making of the last payment of compensation. Payments for medical case-management services that are not required by the Nebraska Workers' Compensation Act and that result in no benefit to the injured employee do not constitute payments of compensation which toll the statute of limitations set forth in this section. Smart v. Scrivner/Food 4 Less, 254 Neb. 111, 574 N.W.2d 505 (1998).

Generally, a payment for compensation benefits made by an employer's insurance carrier for an accident which predated its coverage tolls the statute of limitations and binds the employer. Fenster v. Clark Bros. Sanitation, 235 Neb. 336, 455 N.W.2d 169 (1990).

Furnishing of medical services constitutes payment of compensation and is sufficient to toll running of statute. Gourley v. City of Grand Island, 168 Neb. 538, 96 N.W.2d 309 (1959).

Where no petition has been filed by either party but compensation actually has been paid, in the absence of legal disabilities or latent injuries, the limitation provided by statute shall take effect at the expiration of one year after time of making the last payment of compensation. Hill v. Hinky-Dinky Stores Co., 133 Neb. 147, 274 N.W. 455 (1937).

Substitute check given to replace one lost does not extend time in which action must be brought hereunder. Samland v. Ford Motor Co., 123 Neb. 819, 244 N.W. 404 (1932).

Medical, surgical, and hospital services furnished by employer constituted payment of compensation within meaning of this section. Baade v. Omaha Flour Mills Co., 118 Neb. 445, 225 N.W. 117 (1929).

On payments of compensation without agreement of settlement, limitation does not take effect until one year after last payment. Ashton v. Blue River Power Co., 117 Neb. 661, 222 N.W. 42 (1928).

When payments of workers' compensation have been made, the statute of limitations shall not take effect until the expiration of 2 years from the time of the making of the last payment. Sands v. School Dist. of City of Lincoln, 7 Neb. App. 28, 581 N.W.2d 894 (1998).

4. Latent and progressive injury

The 2-year limitations period contained in this section is tolled when a claimant suffers a latent and progressive injury. The statute will not begin to run until it becomes, or should have become, reasonably apparent to the claimant that a compensable disability was present. Gloria v. Nebraska Public Power Dist., 231 Neb. 786, 438 N.W.2d 142 (1989); Wissing v. Walgreen Company, 20 Neb. App. 332, 823 N.W.2d 710 (2012).

If an injury is deemed to be, at the outset, latent and progressive, the statute of limitations does not begin to run until the employee discovers or should have discovered he has a compensable disability. Cemer v. Huskoma Corp., 221 Neb. 175, 375 N.W.2d 620 (1985).

Generally, reimbursement of medical expense by an employer or under a group health insurance agreement does not constitute remuneration in lieu of workmen's compensation benefits so as to toll the statute of limitations. Steadily debilitating knee injury was not within the latent exception to the statute of limitations. Maxey v. Fremont Department of Utilities, 220 Neb. 627, 371 N.W.2d 294 (1985).

If an employee suffers an injury which appears to be slight but which is progressive in its course, and which several physicians are unable to correctly diagnose, the worker's failure to file a claim or bring suit in time will not defeat his right to recovery, if he gave notice and commenced action within the statutory period after he learned that compensable disability resulted from the original accident. The mere fact that the employee did not know the full extent of his injury from a medical standpoint does not make it latent, particularly where the medical facts were reasonably discoverable, and the burden of proving the injury to have been latent and progressive is upon the employee. Thomas v. Kayser-Roth Corp., 211 Neb. 704, 320 N.W.2d 111 (1982).

Where an occupational disease results from continual absorption of small quantities of a deleterious substance from the employment environment over a period of time, the afflicted employee is considered "injured" only when the accumulated effects of the substance manifest themselves, which is when the employee becomes disabled and entitled to compensation. The statute of limitations runs from the date when the disability first occurred. Osteen v. A.C. and S., Inc., 209 Neb. 282, 307 N.W.2d 514 (1981).

Where injury is latent and progressive, period of limitation begins to run when true nature thereof is first discovered by claimant. Borowski v. Armco Steel Corp., 188 Neb. 654, 198 N.W.2d 460 (1972); Wissing v. Walgreen Company, 20 Neb. App. 332, 823 N.W.2d 710 (2012).

Period of limitation provided in this section runs from the time it is reasonably apparent that a compensable injury has been sustained, if the employee is aware that the disability is due to his employment. Williams v. Dobberstein, 182 Neb. 862, 157 N.W.2d 776 (1968).

Statute of limitations did not commence to run on disability progressive in nature until employee had knowledge that compensable disability had resulted. Welke v. City of Ainsworth, 179 Neb. 496, 138 N.W.2d 808 (1965).

Statute of limitations commences to run from the time the employee has knowledge that an accident has caused a compensable disability. Ohnmacht v. Peter Kiewit Sons Co., 178 Neb. 741, 135 N.W.2d 237 (1965).

To be effective to toll the statute of limitations, furnishing of medical services must have been made within one year of filing of petition. Schweiger v. Island Supply Co., 178 Neb. 547, 134 N.W.2d 233 (1965).

In case of a latent injury, the time for commencement of action is one year after the employee obtained knowledge that the accident caused compensable disability. Seymour v. Journal-Star Printing Co., 174 Neb. 150, 116 N.W.2d 297 (1962).

Where injury is latent and did not result in compensable disability, failure to file claim and commence action within time prescribed by statute will not defeat later action. Plambeck v. Natkin & Co., 171 Neb. 774, 107 N.W.2d 734 (1961); Webb v. Consumers Cooperative Assn., 171 Neb. 758, 107 N.W.2d 737 (1961).

Where an employee suffers an injury the character of which is ascertainable only by medical men, and medical men are unable to ascertain it up to a certain time, the statute of limitations does not begin to run until the injury is ascertained. Keenan v. Consumers Public Power Dist., 152 Neb. 54, 40 N.W.2d 261 (1949).

When an employee receives an accidental injury which activates a dormant disease, the failure to bring suit within a year is not a bar if action is brought within one year after the employee acquires knowledge of a compensable disability. Dryden v. Omaha Steel Works, 148 Neb. 1, 26 N.W.2d 293 (1947).

Where injury is latent and progressive, claim must be filed within six months from the time the employee acquires knowledge of a compensable disability. Lind v. Nebraska National Guard, 144 Neb. 122, 12 N.W.2d 652 (1944).

In case of physical or mental incapacity resulting from injury, the statutory limitations as to notice and commencement of action do not begin to run until six months after removal of such incapacity. Mulvey v. City of Lincoln, 131 Neb. 279, 267 N.W. 459 (1936).

Where injury is latent and progressive, claim must be made within six months from time employee acquires knowledge of compensable disability. Park v. School District No. 27, Richardson Cty., 127 Neb. 767, 257 N.W. 219 (1934).

Where action was begun within statutory period after employee has knowledge of compensable injury, action was not barred. Astuto v. V. Ray Gould Co., 123 Neb. 138, 242 N.W. 375 (1932).

Where injury is latent, subsequently culminating in compensatory disability, claim for such injury may be filed within year from culmination thereof. Travelers Ins. Co. v. Ohler, 119 Neb. 121, 227 N.W. 449 (1929).

Failure to file a claim or bring suit within specified time does not defeat right to compensation where injury is latent, if notice is given and action commenced within statutory period after employee has knowledge that compensable disability has resulted. City of Hastings v. Saunders, 114 Neb. 475, 208 N.W. 122 (1926); McGuire v. Phelan-Shirley Co., 111 Neb. 609, 197 N.W. 615 (1924); Selders v. Cornhusker Oil Co., 111 Neb. 300, 196 N.W. 316 (1923).

If an employee suffers an injury which appears to be slight but which is progressive in its course, and which several physicians are unable to correctly diagnose, the worker's failure to file a claim or bring suit in time will not defeat his right to recovery, if he gave notice and commenced the action within the statutory period after he learned that a compensable disability resulted from the original accident. Wissing v. Walgreen Company, 20 Neb. App. 332, 823 N.W.2d 710 (2012).

In the case of a latent injury, the time for commencement of the action is 1 year after the employee obtained knowledge that the accident caused the compensable disability. Wissing v. Walgreen Company, 20 Neb. App. 332, 823 N.W.2d 710 (2012).

The mere fact that the employee does not know the full extent of his injury from a medical standpoint does not make it latent so as to toll the running of the limitations period, particularly where medical facts were reasonably discoverable, and the burden of proving the injury to have been latent and progressive is upon the employee. Wissing v. Walgreen Company, 20 Neb. App. 332, 823 N.W.2d 710 (2012).

In workers' compensation cases involving a claim for an occupational disease, the statute of limitations begins to run when the accumulated effects of the disease manifest themselves, which is when the employee becomes disabled and entitled to compensation. Ross v. Baldwin Filters, 5 Neb. App. 194, 557 N.W.2d 368 (1996).

5. Material change in condition

An employee seeking application of the exception for a material change in condition and substantial increase in disability is not required to demonstrate that he or she could not have filed a petition earlier than he or she did. Lenz v. Central Parking System of Neb., 288 Neb. 453, 848 N.W.2d 623 (2014).

The exception for a material change in condition and substantial increase in disability was not rendered unenforceable by Bassinger v. Nebraska Heart Hosp., 282 Neb. 835, 806 N.W.2d 395 (2011). Lenz v. Central Parking System of Neb., 288 Neb. 453, 848 N.W.2d 623 (2014).

The Legislature has acquiesced to the exception for a material change in condition and substantial increase in disability. Lenz v. Central Parking System of Neb., 288 Neb. 453, 848 N.W.2d 623 (2014).

6. Miscellaneous

In an occupational disease context, the date of injury, for purposes of this section, is that date upon which the accumulated effects of the disease manifest themselves to the point the injured worker is no longer able to render further service. Dawes v. Wittrock Sandblasting & Painting, 266 Neb. 526, 667 N.W.2d 167 (2003).

This section has at least two exceptions, including (1) where a "latent and progressive" injury is not discovered within 2 years of the accident which caused the injury and (2) where a material change in condition occurs which necessitates additional medical care and from which an employee suffers increased disability. Snipes v. Sperry Vickers, 251 Neb. 415, 557 N.W.2d 662 (1997).

In barring a workmen's compensation claim as untimely filed, compensation court held the limitation provision begins to run from the time it becomes reasonably apparent or should have become reasonably apparent that a compensable claim exists. Novak v. Triangle Steel Co., 197 Neb. 783, 251 N.W.2d 158 (1977).

Time for bringing action is not tolled by mental incapacity of employee's attorney. Bame v. Lipsett, Inc., 172 Neb. 623, 111 N.W.2d 380 (1961).

Where employer denies liability, wages paid are not credited on award. Anderson v. Cowger, 158 Neb. 772, 65 N.W.2d 51 (1954).

Application for additional award may be made although original award is fully paid. Peek v. Ayers Auto Supply, 157 Neb. 363, 59 N.W.2d 564 (1953).

Limitation does not begin to run until six months after removal of mental or physical incapacity. Simon v. Cathroe Co., 101 Neb. 211, 162 N.W. 633 (1917).

There are two exceptions to the statute of limitations: (1) where a latent and progressive injury is not discovered within 2 years of the accident which caused the injury and (2) where a material change in condition occurs which necessitates additional medical care and from which an employee suffers increased disability. Wissing v. Walgreen Company, 20 Neb. App. 332, 823 N.W.2d 710 (2012).

48-138. Compensation; lump-sum settlement; computation; fee.

The amounts of compensation payable periodically under the law by agreement of the parties with the approval of the Nebraska Workers' Compensation Court may be commuted to one or more lump-sum payments, except compensation due for death, permanent disability, or claimed permanent disability which may be commuted only as provided in section 48-139. If commutation is agreed upon pursuant to this section or section 48-139, the lump sum to be paid shall be fixed at an amount which will equal the total sum of the probable future payments, capitalized at their present value upon the basis of interest calculated at five percent per annum with annual rests.

The fee of the clerk of the compensation court for filing, docketing, and indexing an agreement submitted for approval as provided in this section shall be fifteen dollars. The fees shall be remitted by the clerk to the State Treasurer for credit to the Compensation Court Cash Fund.

Source:Laws 1913, c. 198, § 40, p. 596; R.S.1913, § 3681; Laws 1917, c. 85, § 16, p. 212; Laws 1921, c. 122, § 1, p. 526; C.S.1922, § 3063; C.S.1929, § 48-140; Laws 1935, c. 57, § 25, p. 199; C.S.Supp.,1941, § 48-140; R.S.1943, § 48-138; Laws 1975, LB 187, § 3; Laws 1986, LB 811, § 56; Laws 1993, LB 757, § 9; Laws 2009, LB630, § 5.

Annotations

It was the legislative intent that compensation court should have exclusive original jurisdiction in handling claims for compensation. Zurich General Accident & Liability Ins. Co. v. Walker, 128 Neb. 327, 258 N.W. 550 (1935).

One relying on lump sum settlement must bring himself within statute. Ostegaard v. Adams & Kelly Co., 113 Neb. 393, 203 N.W. 564 (1925).

48-139. Compensation; lump-sum settlement; submitted to Nebraska Workers' Compensation Court; procedure; filing of release; form; contents; payment; fees.

(1)(a) Whenever an injured employee or his or her dependents and the employer agree that the amounts of compensation due as periodic payments for death, permanent disability, or claimed permanent disability under the Nebraska Workers' Compensation Act shall be commuted to one or more lump-sum payments, such settlement shall be submitted to the Nebraska Workers' Compensation Court for approval as provided in subsection (2) of this section if:

(i) The employee is not represented by counsel;

(ii) The employee, at the time the settlement is executed, is eligible for medicare, is a medicare beneficiary, or has a reasonable expectation of becoming eligible for medicare within thirty months after the date the settlement is executed. This subdivision (ii) is not applicable if the employee's right to receive future medical, surgical, and hospital services as provided in section 48-120 is specifically excluded from the settlement and medicare has not paid medical, surgical, or hospital expenses or if medicare has paid medical, surgical, or hospital expenses for which it claims it is entitled to reimbursement and medicare has been reimbursed for such expenses at the time the settlement is executed;

(iii) Medical, surgical, or hospital expenses incurred for treatment of the injury have been paid by medicaid and medicaid will not be reimbursed as part of the settlement;

(iv) Medical, surgical, or hospital expenses incurred for treatment of the injury will not be fully paid as part of the settlement; or

(v) The settlement seeks to commute amounts of compensation due to dependents of the employee.

(b) If such lump-sum settlement is not required to be submitted for approval by the compensation court, a release shall be filed with the compensation court as provided in subsection (3) of this section. Nothing in this section shall be construed to increase the compensation court's duties or authority with respect to the approval of lump-sum settlements under the act.

(2)(a) An application for an order approving a lump-sum settlement, signed and verified by both parties, shall be filed with the clerk of the compensation court and shall be entitled the same as an action by such employee or dependents against such employer. The application shall contain a concise statement of the terms of the settlement or agreement sought to be approved with a brief statement of the facts concerning the injury, the nature thereof, the wages received by the injured employee prior thereto, the nature of the employment, a description of the medical, surgical, or hospital expenses incurred for treatment of the injury that will remain unpaid as part of the settlement which are disputed and for which compensability has been denied by the employer, and such other matters as may be reasonably required by the compensation court. The application shall also include a statement that the parties have considered the interests of medicare and have taken reasonable steps to protect any interests of medicare. The application may provide for payment of future medical, surgical, or hospital expenses incurred by the employee. The compensation court may, on its own motion, and shall, on a motion by one of the parties, hold a hearing on the application at a time and place selected by the compensation court, and proof may be adduced and witnesses subpoenaed and examined the same as in an action in equity.

(b)(i) If the compensation court finds such lump-sum settlement is made in conformity with the compensation schedule and for the best interests of the employee or his or her dependents under all the circumstances, the compensation court shall make an order approving the same.

(ii) If the expenses for medical, surgical, or hospital services provided to the employee are not paid by the employer, or if any person, other than medicaid, who has made any payment to the supplier of medical, surgical, or hospital services provided to the employee, is not reimbursed by the employer, it shall be conclusively presumed that the nonpayment or nonreimbursement of disputed medical, surgical, or hospital expenses, as set forth in the application, is in conformity with the compensation schedule and for the best interests of the employee or his or her dependents, if the employee's attorney elects to affirm and does affirm in the application that the nonpayment or nonreimbursement of disputed medical, surgical, or hospital expenses is in conformity with the compensation schedule and for the best interests of the employee or his or her dependents under all the circumstances.

(iii) If the employee, at the time the settlement is executed, is eligible for medicare, is a medicare beneficiary, or has a reasonable expectation of becoming eligible for medicare within thirty months after the date the settlement is executed, and if the employee's attorney elects to affirm and does affirm in the application that the parties' agreement relating to consideration of medicare's interests set forth in such lump-sum settlement is in conformity with the compensation schedule and for the best interests of the employee or his or her dependents under all the circumstances, it shall be conclusively presumed that the parties' agreement relating to consideration of medicare's interests set forth in the application is in conformity with the compensation schedule and for the best interests of the employee or his or her dependents.

(iv) If such settlement is not approved, the compensation court may dismiss the application at the cost of the employer or continue the hearing, in the discretion of the compensation court.

(c) Every such lump-sum settlement approved by order of the compensation court shall be final and conclusive unless procured by fraud. An order approving an application under this subsection shall, in any case in which the employee is represented by counsel and in which the application contains a description of the medical, surgical, or hospital expenses incurred for treatment of the injury that will remain unpaid as part of the settlement which are disputed and for which compensability has been denied by the employer, provide that the employer is not liable for such expenses. Upon paying the amount approved by the compensation court, the employer shall be discharged from further liability on account of the injury or death, other than liability for the payment of future medical, surgical, or hospital expenses if such liability is approved by the compensation court on the application of the parties.

(d) An exclusion from coverage in any health, accident, or other insurance policy covering an employee which provides that coverage under such insurance policy does not apply if such employee is entitled to workers' compensation coverage is void as to such employee if his or her employer is not liable for medical, surgical, or hospital expenses incurred for treatment of an injury that will remain unpaid as part of the settlement pursuant to an order entered under subdivision (2)(c) of this section.

(3) If such lump-sum settlement is not required to be submitted for approval by the compensation court, a release shall be filed with the compensation court in accordance with this subsection that is signed and verified by the employee and the employee's attorney. The release shall be made on a form approved by the compensation court and shall contain a statement signed and verified by the employee that:

(a) The employee understands and waives all rights under the Nebraska Workers' Compensation Act, including, but not limited to:

(i) The right to receive weekly disability benefits, both temporary and permanent;

(ii) The right to receive vocational rehabilitation services;

(iii) The right to receive future medical, surgical, and hospital services as provided in section 48-120, unless such services are specifically excluded from the release; and

(iv) The right to ask a judge of the compensation court to decide the parties' rights and obligations;

(b) The employee is not eligible for medicare, is not a current medicare beneficiary, and does not have a reasonable expectation of becoming eligible for medicare within thirty months after the date the settlement is executed. This subdivision (b) is not applicable if the employee's right to receive future medical, surgical, and hospital services as provided in section 48-120 is specifically excluded from the settlement and medicare has not paid medical, surgical, or hospital expenses or if medicare has paid medical, surgical, or hospital expenses for which it claims it is entitled to reimbursement and medicare has been reimbursed for such expenses at the time the settlement is executed;

(c) There are no medical, surgical, or hospital expenses incurred for treatment of the injury which have been paid by medicaid and not reimbursed to medicaid by the employer as part of the settlement; and

(d) There are no medical, surgical, or hospital expenses incurred for treatment of the injury that will remain unpaid after the settlement.

(4) Upon the entry of an order of dismissal with prejudice, a release filed with the compensation court in accordance with subsection (3) of this section shall be final and conclusive as to all rights waived in the release unless procured by fraud. Amounts to be paid by the employer to the employee pursuant to such release shall be paid within thirty days of filing the release with the compensation court. Fifty percent shall be added for payments owed to the employee if made after thirty days after the date the release is filed with the compensation court. Upon making payment owed by the employer as set forth in the release and upon the entry of an order of dismissal with prejudice, as to all rights waived in the release, such release shall be a full and complete discharge from further liability for the employer on account of the injury, including future medical, surgical, or hospital expenses, unless such expenses are specifically excluded from the release.

(5) The fees of the clerk of the compensation court for filing, docketing, and indexing an application for an order approving a lump-sum settlement or filing a release as provided in this section shall be fifteen dollars. The fees shall be remitted by the clerk to the State Treasurer for credit to the Compensation Court Cash Fund.

Source:Laws 1917, c. 85, § 16, p. 212; Laws 1921, c. 122, § 1, p. 526; C.S.1922, § 3063; C.S.1929, § 48-140; Laws 1935, c. 57, § 25, p. 199; C.S.Supp.,1941, § 48-140; R.S.1943, § 48-139; Laws 1951, c. 153, § 1, p. 623; Laws 1975, LB 187, § 4; Laws 1977, LB 126, § 3; Laws 1978, LB 649, § 3; Laws 1986, LB 811, § 57; Laws 1993, LB 757, § 10; Laws 2002, LB 417, § 3; Laws 2009, LB630, § 6; Laws 2014, LB961, § 11; Laws 2018, LB953, § 1; Laws 2021, LB256, § 1.

Annotations

1. Lump sum settlement

2. Commutation

3. Release

1. Lump sum settlement

If an application for approval of a lump-sum settlement is not approved, the workers' compensation court may (1) dismiss the application at the cost of the employer or (2) continue the hearing, in the discretion of the compensation court. Loyd v. Family Dollar Stores of Neb., 304 Neb. 883, 937 N.W.2d 487 (2020).

Pursuant to subsection (1) of this section, a lump-sum settlement must be submitted to the compensation court for approval when the claimant is a Medicare beneficiary. Loyd v. Family Dollar Stores of Neb., 304 Neb. 883, 937 N.W.2d 487 (2020).

Where lump sum settlement is made and later application is made for further compensation for disability claimed not covered by settlement, burden of proof is on employee. Gooch Milling & Elevator Co. v. Warner, 127 Neb. 796, 257 N.W. 224 (1934).

Where approved lump sum settlement, accepted by employee before death, was complete compensation, widow was not entitled to further award. Lincoln Packing Co. v. Coe, 120 Neb. 299, 232 N.W. 92 (1930).

Final power to award lump sum settlement for employee's death or permanent disability rests with district court, subject to review. Jackson v. Ford Motor Co., 115 Neb. 758, 214 N.W. 631 (1927).

Lump sum settlements are authorized only in sound discretion of district court. Myers v. Armour & Co., 103 Neb. 407, 172 N.W. 45 (1919).

Sections 48-140 and 48-141 and this section emphasize the finality of a lump-sum settlement and only contemplate "readjustment" if the "settlement" itself is procured by fraud; the statutes do not speak to readjusting underlying "awards" allegedly procured by fraud. Hunt v. Pick's Pack-Hauler, 23 Neb. App. 278, 869 N.W.2d 723 (2015).

In order to achieve a modification of a lump-sum payment that has been approved by court order pursuant to this section on the ground of increased or decreased incapacity, a party must make an application on the ground of increase or decrease of incapacity due solely to the injury. Hubbart v. Hormel Foods Corp., 15 Neb. App. 129, 723 N.W.2d 350 (2006).

Lump-sum settlements in workers' compensation actions cannot be modified in the future or be considered when determining future workers' compensation awards, because such awards are "final." Dukes v. University of Nebraska, 12 Neb. App. 539, 679 N.W.2d 249 (2004).

2. Commutation

In the approval of commutation of compensation, the public has an interest which it is the duty of the court to protect without regard to the wishes of the parties. Perry v. Huffman Auto. Co., 104 Neb. 211, 175 N.W. 1021 (1920).

Commutation cannot be ordered except with consent of both parties, but court must ratify. Pierce v. Boyer-Van Kuran Lumber & Coal Co., 99 Neb. 321, 156 N.W. 509 (1916); Bailey v. United States Fidelity & Guaranty Co., 99 Neb. 109, 155 N.W. 237 (1915).

3. Release

A verified release results in a full and complete discharge from all liability under the Nebraska Workers' Compensation Act but does not become effective until the Workers' Compensation Court files an order of dismissal with prejudice. Dragon v. Cheesecake Factory, 300 Neb. 548, 915 N.W.2d 418 (2018).

By filing a release pursuant to the settlement procedures in subsection (3) of this section, a worker waives all rights under the Nebraska Workers' Compensation Act, including both the right to penalties and attorney fees under section 48-125 and the right to ask a judge of the compensation court to decide the parties' rights and obligations. Holdsworth v. Greenwood Farmers Co-op, 286 Neb. 49, 835 N.W.2d 30 (2013).

The filing of a release pursuant to subsection (3) of this section does not deprive the Workers' Compensation Court of jurisdiction to hear further issues in a case. Holdsworth v. Greenwood Farmers Co-op, 286 Neb. 49, 835 N.W.2d 30 (2013).

The filing of a release pursuant to subsection (3) of this section, not actual payment of the lump-sum settlement, effects a discharge from liability for the employer. Holdsworth v. Greenwood Farmers Co-op, 286 Neb. 49, 835 N.W.2d 30 (2013).

There is no ambiguity in the statutorily required language for a release pursuant to subsection (3) of this section. Holdsworth v. Greenwood Farmers Co-op, 286 Neb. 49, 835 N.W.2d 30 (2013).

48-140. Compensation; lump-sum settlements; conclusiveness; exception.

Any lump-sum settlement by agreement of the parties pursuant to section 48-139 shall be final and not subject to readjustment if the settlement is in conformity with the Nebraska Workers' Compensation Act, unless the settlement is procured by fraud. All awards of compensation made by the compensation court, except those amounts payable periodically, shall be final and not subject to readjustment.

Source:Laws 1913, c. 198, § 41, p. 597; R.S.1913, § 3682; Laws 1917, c. 85, § 17, p. 213; Laws 1921, c. 122, § 1, p. 527; C.S.1922, § 3064; C.S.1929, § 48-141; Laws 1935, c. 57, § 26, p. 200; C.S.Supp.,1941, § 48-141; R.S.1943, § 48-140; Laws 1975, LB 187, § 5; Laws 1986, LB 811, § 58; Laws 1989, LB 410, § 1; Laws 1993, LB 757, § 11; Laws 2009, LB630, § 7.

Annotations

1. Lump-sum settlement

2. Approval

3. Miscellaneous

1. Lump-sum settlement

Lump sum settlement is not final unless approved as required by act. Miller v. Schlereth, 151 Neb. 33, 36 N.W.2d 497 (1949).

Lump sum settlement must conform to statutory requirements, including filing copy with and approval by compensation court. Ashton v. Blue River Power Co., 117 Neb. 661, 222 N.W. 42 (1928).

One relying upon lump sum settlement must bring himself within statute. Ostegaard v. Adams & Kelly Co., 113 Neb. 393, 203 N.W. 564 (1925).

Lump sum settlement is final, and is not subject to modification as in case of periodic payments. Bailey v. United States Fidelity & Guaranty Co., 99 Neb. 109, 155 N.W. 237 (1915).

Sections 48-139 and 48-141 and this section emphasize the finality of a lump-sum settlement and only contemplate "readjustment" if the "settlement" itself is procured by fraud; the statutes do not speak to readjusting underlying "awards" allegedly procured by fraud. Hunt v. Pick's Pack-Hauler, 23 Neb. App. 278, 869 N.W.2d 723 (2015).

Lump-sum settlements in workers' compensation actions cannot be modified in the future or be considered when determining future workers' compensation awards, because such awards are "final." Dukes v. University of Nebraska, 12 Neb. App. 539, 679 N.W.2d 249 (2004).

2. Approval

The provisions in this section which bar proceedings to modify an award of compensation payable periodically over a period of less than six months are invalid as an unreasonable classification. Snyder v. IBP, Inc., 229 Neb. 224, 426 N.W.2d 261 (1988).

Where settlement was never approved by workmen's compensation court, it was ineffective to defeat claim for compensation. Riggins v. Lincoln Tent & Awning Co., 143 Neb. 893, 11 N.W.2d 810 (1943).

An agreement to pay compensation must be approved by compensation court or it is void, and part payment will not make such agreement actionable at common law. Duncan v. A. Hospe Co., 133 Neb. 810, 277 N.W. 339 (1938).

Compensation commissioner has exclusive original jurisdiction of claims arising under compensation law. Zurich General Accident & Liability Ins. Co. v. Walker, 128 Neb. 327, 258 N.W. 550 (1935).

Award is subject to modification, if it covers period over six months, part of which has elapsed at time award is made. Harmon v. J. H. Wiese Co., 121 Neb. 137, 236 N.W. 186 (1931).

If court finds disability will not continue for more than six months and fixes compensation therefor, court cannot at subsequent term change that judgment, but, if finding is that disability will continue for more than six months, court may, upon application, modify after six months expires. Hanley v. Union Stock Yards Co., 100 Neb. 232, 158 N.W. 939 (1916).

3. Miscellaneous

A finding by the Workers' Compensation Court that an alleged injury is covered by the Workers' Compensation Act is not necessarily a prerequisite to a settlement agreement which includes a program of vocational rehabilitation paid for by the employer or its insurer. Miner v. Robertson Home Furnishing, 239 Neb. 525, 476 N.W.2d 854 (1991).

48-141. Lump-sum settlement; finality; periodic payment; modification.

All amounts paid by an employer or by an insurance company carrying such risk, as the case may be, and received by the employee or his or her dependents by lump-sum payments pursuant to section 48-139 shall be final and not subject to readjustment if the lump-sum settlement is in conformity with the Nebraska Workers' Compensation Act, unless the settlement is procured by fraud, but the amount of any agreement or award payable periodically may be modified as follows: (1) At any time by agreement of the parties with the approval of the Nebraska Workers' Compensation Court; or (2) if the parties cannot agree, then at any time after six months from the date of the agreement or award, an application may be made by either party on the ground of increase or decrease of incapacity due solely to the injury or that the condition of a dependent has changed as to age or marriage or by reason of the death of the dependent. In such case, the same procedure shall be followed as in sections 48-173 to 48-185 in case of disputed claim for compensation.

Source:Laws 1913, c. 198, § 42, p. 597; R.S.1913, § 3683; Laws 1917, c. 85, § 18, p. 213; Laws 1921, c. 122, § 1, p. 527; C.S.1922, § 3065; Laws 1929, c. 81, § 2, p. 274; C.S.1929, § 48-142; Laws 1935, c. 57, § 27, p. 201; C.S.Supp.,1941, § 48-142; R.S.1943, § 48-141; Laws 1975, LB 187, § 6; Laws 1986, LB 811, § 59; Laws 1989, LB 410, § 2; Laws 1993, LB 757, § 12; Laws 2009, LB630, § 8.

Annotations

1. Modification of award

2. Attorney's fees

3. Miscellaneous

1. Modification of award

To establish a change in incapacity under this section, an applicant must show a change in impairment and a change in disability. In a workers' compensation context, impairment refers to a medical assessment, whereas disability relates to employability. Rader v. Speer Auto, 287 Neb. 116, 841 N.W.2d 383 (2013).

The party seeking modification has the burden to prove the allegations in its petition to modify the running award of temporary total disability benefits. Visoso v. Cargill Meat Solutions, 285 Neb. 272, 826 N.W.2d 845 (2013).

If future medical expenses are not a part of a final award, the judgment is final, and any future claims for medical expenses related to the same accident are absolutely barred unless the requirements of this section are met. Green v. Drivers Mgmt., Inc., 263 Neb. 197, 639 N.W.2d 94 (2002).

Under this section, the applicant for modification must prove by a preponderance of the evidence that the increase in his incapacity was due solely to the injury resulting from the original accident. In proving an increase in incapacity, the applicant must prove by a preponderance of the evidence that there now exists a material and substantial change for the worse in the applicant's condition—a change in circumstances that justifies a modification, distinct and different from that for which an adjudication had been previously made. Gomez v. Kenney Deans, Inc., 232 Neb. 646, 441 N.W.2d 632 (1989).

Before an employee may obtain a modification of an agreement or award for periodic payment of compensation, increasing the compensation paid on account of a previously compensable injury, the employee must prove, by a preponderance of the evidence, an increase in incapacity due solely to the previous compensable injury. Grauerholz v. Cornhusker Packing Co., 230 Neb. 641, 432 N.W.2d 831 (1988).

The provisions in this section which bar proceedings to modify an award of compensation payable periodically over a period of less than six months are invalid as an unreasonable classification. Snyder v. IBP, Inc., 229 Neb. 224, 426 N.W.2d 261 (1988).

A proceeding under section 48-141, R.R.S.1943, to modify a previous award of the compensation court to recover additional compensation for an increase in incapacity can only be brought within two years of the time the employee knows, or is chargeable with knowledge, that his condition has materially changed and there is such a substantial increase in his disability as to entitle him to additional compensation. O'Connor v. Anderson Bros. Plumbing & Heating, 207 Neb. 641, 300 N.W.2d 188 (1981).

An award which is payable periodically for six months or more is subject to modification on the ground of increase of incapacity due solely to the injury. Camp v. Blount Bros. Corp., 195 Neb. 459, 238 N.W.2d 634 (1976).

The amount payable periodically by agreement or award may be modified if recipient's condition changes thereafter. Shotwell v. Industrial Builders, Inc., 187 Neb. 320, 190 N.W.2d 624 (1971).

Modification is limited to increase or decrease that has occurred since award of compensation was rendered. Pavel v. Hughes Brothers, Inc., 167 Neb. 727, 94 N.W.2d 492 (1959).

Where amount of award is payable periodically for six months or more, application for increase in award may be made. Peek v. Ayers Auto Supply, 160 Neb. 658, 71 N.W.2d 204 (1955).

Statute restricts basis for modification to increase or decrease of incapacity since original award. Peek v. Ayers Auto Supply, 157 Neb. 363, 59 N.W.2d 564 (1953).

Right to maintain proceedings for modification is recognized. Dietz v. State, 157 Neb. 324, 59 N.W.2d 587 (1953).

Basis for modification is limited to increase or decrease of incapacity which has occurred since the award and is due to the injury. Riedel v. Smith Baking Co., 150 Neb. 28, 33 N.W.2d 287 (1948).

Basis for modification of award is limited to increase or decrease of incapacity due solely to injury. Ludwickson v. Central States Electric Co., 142 Neb. 308, 6 N.W.2d 65 (1942).

Upon application to modify an award of compensation under this section, petitioner must establish that the disability has increased, decreased, or terminated. Kucera v. Village of Prague, 141 Neb. 180, 3 N.W.2d 201 (1942).

Proceeding to recover additional compensation for increased disability must be brought within one year from time employee is chargeable with knowledge of his right to additional compensation. Scott v. State, 137 Neb. 348, 289 N.W. 367 (1939).

Employee must establish a material change for the worse to entitle him to additional compensation. Huff v. Omaha Cold Storage Co., 136 Neb. 907, 287 N.W. 764 (1939).

This section makes provision for situation where employee's injuries cause total permanent disability at some future date after award. Micek v. Omaha Steel Works, 136 Neb. 843, 287 N.W. 645 (1939).

Judgment is not final in sense that it can never be inquired into again where increase or decrease of incapacity can be shown. Great Western Sugar Co. v. Hewitt, 127 Neb. 790, 257 N.W. 61 (1934).

Application to modify follows same procedure as in case of dispute except that where award is made by district court, application should be filed in that court. Metropolitan Dining Room v. Jensen, 126 Neb. 765, 254 N.W. 405 (1934).

Construing this with preceding section, award is subject to modification if it covers period over six months, part of which has expired before award was made. Harmon v. J. H. Wiese Co., 121 Neb. 137, 236 N.W. 186 (1931).

Application for modification of award for increase or decrease of incapacity may be made at any time after six months from date of award. Updike Grain Co. v. Swanson, 103 Neb. 872, 174 N.W. 862 (1919).

Lump sum settlements are final, and not subject to modification as in case of periodic payments. Bailey v. United States Fidelity & Guaranty Co., 99 Neb. 109, 155 N.W. 237 (1915).

To establish a change in incapacity under this section, an applicant must show a change in impairment and a change in disability. Moss v. C&A Indus., 25 Neb. App. 877, 915 N.W.2d 615 (2018).

Whether an applicant's incapacity has increased under the terms of this section is a finding of fact. Moss v. C&A Indus., 25 Neb. App. 877, 915 N.W.2d 615 (2018).

Sections 48-139 and 48-140 and this section emphasize the finality of a lump-sum settlement and only contemplate "readjustment" if the "settlement" itself is procured by fraud; the statutes do not speak to readjusting underlying "awards" allegedly procured by fraud. Hunt v. Pick's Pack-Hauler, 23 Neb. App. 278, 869 N.W.2d 723 (2015).

A court may modify a workers' compensation award based on a change in incapacity due to a mental condition arising out of a work-related physical injury if the change is due solely to the work-related injury. Jurgens v. Irwin Indus. Tool Co., 20 Neb. App. 488, 825 N.W.2d 820 (2013).

An employee seeking temporary total disability benefits must file a petition for modification as soon as she becomes totally disabled. Jurgens v. Irwin Indus. Tool Co., 20 Neb. App. 488, 825 N.W.2d 820 (2013).

Where the original award of benefits did not award vocational rehabilitation services, the applicant needed to comply with the requirements of this section and allege and prove that he had suffered an increase in incapacity since the entry of the original award in order to obtain the requested vocational rehabilitation services. McKay v. Hershey Food Corp., 16 Neb. App. 79, 740 N.W.2d 378 (2007).

In order to achieve a modification of a lump-sum payment that has been approved by court order pursuant to section 48-139 on the ground of increased or decreased incapacity, a party must make an application on the ground of increase or decrease of incapacity due solely to the injury. Hubbart v. Hormel Foods Corp., 15 Neb. App. 129, 723 N.W.2d 350 (2006).

In the context of body as a whole injuries, an applicant for modification who must fulfill the requirements set forth in this section by demonstrating a change in incapacity must establish both a change in the employee's physical condition, or impairment, and a change in the employee's disability. Bronzynski v. Model Electric, 14 Neb. App. 355, 707 N.W.2d 46 (2005).

Lump-sum settlements in workers' compensation actions cannot be modified in the future or be considered when determining future workers' compensation awards, because such awards are "final." Dukes v. University of Nebraska, 12 Neb. App. 539, 679 N.W.2d 249 (2004).

A workers' compensation award may be modified at any time after 6 months from the date of the agreement or award, following an application made by either party on the ground of increase or decrease of incapacity due solely to the injury. A finding that an applicant's incapacity has increased under the terms of this section is a finding of fact. Sands v. School Dist. of City of Lincoln, 7 Neb. App. 28, 581 N.W.2d 894 (1998).

2. Attorney's fees

Attorney's fees are taxable against insurance carrier on denial of its application to reduce compensation payments. Southern Surety Co. v. Parmely, 121 Neb. 146, 236 N.W. 178 (1931).

Attorney's fees are allowable in Supreme Court to employee successfully resisting effort to reduce modified award. Harmon v. J. H. Wiese Co., 121 Neb. 137, 236 N.W. 186 (1931).

3. Miscellaneous

The Nebraska Workers' Compensation Act does not provide for a motion for new trial in the Nebraska Workers' Compensation Court. Carter v. Weyerhaeuser Co., 234 Neb. 558, 452 N.W.2d 32 (1990).

Increase of incapacity must relate to condition for which original award was made, and not dissatisfaction with original award. Wilson Concrete Co. v. Rork, 216 Neb. 447, 343 N.W.2d 764 (1984).

Remedy is provided to cover future rehabilitation of employee obtaining award of total permanent disability. Rapp v. Hale, 170 Neb. 620, 103 N.W.2d 851 (1960).

Increase of incapacity must relate to condition for which original award was made. Chadd v. Western Cas. & Sur. Co., 166 Neb. 483, 89 N.W.2d 586 (1958).

Where employer does not file application on ground of decrease of incapacity, but stops payment of compensation, application for continued compensation is an original action. Rexroat v. State, 142 Neb. 596, 7 N.W.2d 163 (1942).

Legislature may impose restrictions in nature of time limitations on right created by statute. Park v. School District No. 27, Richardson Cty., 127 Neb. 767, 257 N.W. 219 (1934).

48-142. Compensation; amount agreed upon; payment to trustee; procedure.

At any time after the amount of any award has been agreed upon by the parties and approved by the Nebraska Workers' Compensation Court, a sum equal to the present value of all future installments of compensation may, when death or the nature of the injury renders the amount of future payments certain, by leave of the compensation court, be paid by the employer, or by the insurance company carrying such risk, as the case may be, to any savings bank or trust company of this state, in good standing, and such sum together with all interest thereon, shall thereafter be held in trust for the employee or the dependents of the employee, who shall have no further recourse against the employer. The payment of such sum by the employer, evidenced by the receipt of the trustee to be filed with the compensation court, shall operate as a satisfaction of such award as to the employer. Payments from such fund shall be made by the trustee in the same amounts and at the same time as are herein required of the employer until the fund and interest shall be exhausted. In the appointment of the trustee, preference shall be given, in the discretion of the compensation court, to the choice of the injured employee or the dependents of the deceased employee as the case may be.

Source:Laws 1913, c. 198, § 43, p. 597; R.S.1913, § 3684; Laws 1917, c. 85, § 19, p. 214; C.S.1922, § 3066; C.S.1929, § 48-143; Laws 1935, c. 57, § 28, p. 201; C.S.Supp.,1941, § 48-143; R.S.1943, § 48-142; Laws 1975, LB 187, § 7; Laws 1986, LB 811, § 60.

48-143. Compensation; death benefits; absence of qualified administrator; payment; to whom made.

In case of death, where no executor or administrator is qualified, the Nebraska Workers' Compensation Court shall, by order, direct payment to be made to such person as would be appointed administrator of the estate of such decedent, upon like terms as to bond for the proper application of compensation payments as are required of administrators.

Source:Laws 1913, c. 198, § 44, p. 598; R.S.1913, § 3685; C.S.1922, § 3067; C.S.1929, § 48-144; Laws 1935, c. 57, § 29, p. 202; C.S.Supp.,1941, § 48-144; R.S.1943, § 48-143; Laws 1975, LB 187, § 8; Laws 1986, LB 811, § 61.

Annotations

Action for compensation by injured employee, pending at his death, may be revived by dependents giving bond or by administrator without bond. Palmer v. Saunders County, 117 Neb. 484, 221 N.W. 99 (1928).

Action to recover compensation for death may be brought either by dependents, legal guardian or trustee of minor dependent, or executor or administrator of deceased. Coster v. Thompson Hotel Co., 102 Neb. 585, 168 N.W. 191 (1918).

48-144. Accidents and settlements; reports; death of alien employee; notice to consul.

(1) Reports of accidents and settlements shall be made in a form and manner prescribed by the administrator of the Nebraska Workers' Compensation Court. Such reports, if filed by a workers' compensation insurer on behalf of an employer, shall be deemed to have been filed by the employer.

(2) When an injury results in the death of an employee who is a citizen or subject of a foreign country, the administrator of the compensation court shall, after the death has been reported to the compensation court, at once notify the superior consular officer of the country of which the employee at the time of his or her death was a citizen or subject, and whose consular district embraces the State of Nebraska, or the representative, residing in the State of Nebraska, of such consular officer, whom he or she shall have formally designated as his or her representative by a communication in writing to the compensation court. Such notification shall contain in addition to the name of the employee such further information as the compensation court may possess respecting the place of birth, parentage, and names and addresses of the dependents of the employee.

Source:Laws 1913, c. 198, § 45, p. 598; R.S.1913, § 3686; Laws 1917, c. 85, § 20, p. 214; C.S.1922, § 3068; C.S.1929, § 48-145; Laws 1935, c. 57, § 30, p. 202; C.S.Supp.,1941, § 48-145; R.S.1943, § 48-144; Laws 1986, LB 811, § 62; Laws 2005, LB 13, § 6.

48-144.01. Injuries; reports; time within which to file; terms, defined.

(1) In every case of reportable injury arising out of and in the course of employment, the employer or workers' compensation insurer shall file a report thereof with the Nebraska Workers' Compensation Court. Such report shall be filed within ten days after the employer or insurer has been given notice of or has knowledge of the injury.

(2) For purposes of this section:

(a) Reportable injury means an injury or diagnosed occupational disease which results in: (i) Death, regardless of the time between the death and the injury or onset of disease; (ii) time away from work; (iii) restricted work or termination of employment; (iv) loss of consciousness; or (v) medical treatment other than first aid;

(b) Restricted work means the inability of the employee to perform one or more of the duties of his or her normal job assignment. Restricted work does not occur if the employee is able to perform all of the duties of his or her normal job assignment, but a work restriction is assigned because the employee is experiencing minor musculoskeletal discomfort and for the purpose of preventing a more serious condition from developing;

(c) Medical treatment means treatment administered by a physician or other licensed health care professional; and

(d) First aid means:

(i) Using a nonprescription medication at nonprescription strength. For medications available in both prescription and nonprescription form, a recommendation by a physician or other licensed health care professional to use a nonprescription medication at prescription strength is not first aid;

(ii) Administering tetanus immunizations. Administering other immunizations, such as hepatitis B vaccine and rabies vaccine, is not first aid;

(iii) Cleaning, flushing, or soaking wounds on the surface of the skin;

(iv) Using wound coverings, such as bandages and gauze pads, and superficial wound closing devices, such as butterfly bandages and steri-strips. Using other wound closing devices, such as sutures and staples, is not first aid;

(v) Using hot or cold therapy;

(vi) Using any nonrigid means of support, such as elastic bandages, wraps, and nonrigid back belts. Using devices with rigid stays or other systems designed to immobilize parts of the body is not first aid;

(vii) Using temporary immobilization devices, such as splints, slings, neck collars, and back boards, while transporting accident victims;

(viii) Drilling of a fingernail or toenail to relieve pressure or draining fluid from a blister;

(ix) Using eye patches;

(x) Removing foreign bodies from the eye using only irrigation or a cotton swab;

(xi) Removing splinters or foreign material from areas other than the eye by irrigation, tweezers, cotton swabs, or other simple means;

(xii) Using finger guards;

(xiii) Using massages. Using physical therapy or chiropractic treatment is not first aid; and

(xiv) Drinking fluids for relief of heat stress.

Source:Laws 1971, LB 572, § 11; Laws 1972, LB 1221, § 1; Laws 1986, LB 811, § 63; Laws 2005, LB 238, § 7.

Annotations

Section 48-144.04 establishes when the statute of limitations begins to run if an initial report required by this section is not filed, but section 48-144.04 does not provide for tolling of an already-running statute of limitations when and if subsequent reports are not filed. Dawes v. Wittrock Sandblasting & Painting, 266 Neb. 526, 667 N.W.2d 167 (2003).

48-144.02. Compensation insurance carrier; risk management pool; reports; time within which to file.

(1) Whenever any insurance carrier shall write a policy of workers' compensation insurance under the Nebraska Workers' Compensation Act, such carrier shall file a report showing the name and address of the insured employer, the name of the insurance carrier, the policy number, the effective date and expiration date of such policy, and such other information as the Nebraska Workers' Compensation Court may require. Such report shall be filed with the compensation court within ten days of the effective date of such policy.

(2) Whenever any risk management pool is organized or accepts a new member or whenever any member of a risk management pool voluntarily terminates membership or is involuntarily terminated, such pool shall file a report within ten days after any such event with the Nebraska Workers' Compensation Court showing the names and local addresses of its members or the name, local address, and effective date of termination or joinder of any single member.

Source:Laws 1971, LB 572, § 12; Laws 1986, LB 811, § 64; Laws 1987, LB 398, § 42.

Cross References

Risk management pool, defined, see section 44-4303.

48-144.03. Workers' compensation insurance policy; master policy obtained by professional employer organization; notice of cancellation or nonrenewal; effective date.

(1) Notwithstanding policy provisions that stipulate a workers' compensation insurance policy to be a contract with a fixed term of coverage that expires at the end of the term, coverage under a workers' compensation insurance policy shall continue in full force and effect until notice is given in accordance with this section.

(2) No cancellation of a workers' compensation insurance policy within the policy period shall be effective unless notice of the cancellation is given by the workers' compensation insurer to the Nebraska Workers' Compensation Court and to the employer. No such cancellation shall be effective until thirty days after the giving of such notices, except that the cancellation may be effective ten days after the giving of such notices if such cancellation is based on (a) notice from the employer to the insurer to cancel the policy, (b) nonpayment of premium due the insurer under any policy written by the insurer for the employer, (c) failure of the employer to reimburse deductible losses as required under any policy written by the insurer for the employer, or (d) failure of the employer, if covered pursuant to section 44-3,158, to comply with sections 48-443 to 48-445.

(3) No workers' compensation insurance policy shall expire or lapse at the end of the policy period unless notice of nonrenewal is given by the workers' compensation insurer to the compensation court and to the employer. No workers' compensation insurance policy shall expire or lapse until thirty days after the giving of such notices, except that a policy may expire or lapse ten days after the giving of such notices if the nonrenewal is based on (a) notice from the employer to the insurer to not renew the policy, (b) nonpayment of premium due the insurer under any policy written by the insurer for the employer, (c) failure of the employer to reimburse deductible losses as required under any policy written by the insurer for the employer, or (d) failure of the employer, if covered pursuant to section 44-3,158, to comply with sections 48-443 to 48-445.

(4) Subsections (2) and (3) of this section terminate on January 1, 2012. Subsections (5), (6), and (7) of this section apply beginning on January 1, 2012.

(5)(a) This subsection applies to workers' compensation policies other than master policies or multiple coordinated policies obtained by a professional employer organization.

(b) No cancellation of a policy within the policy period shall be effective unless notice of the cancellation is given by the workers' compensation insurer to the compensation court and to the employer. No such cancellation shall be effective until thirty days after giving such notices, except that the cancellation may be effective ten days after the giving of such notices if such cancellation is based on (i) notice from the employer to the insurer to cancel the policy, (ii) nonpayment of premium due the insurer under any policy written by the insurer for the employer, (iii) failure of the employer to reimburse deductible losses as required under any policy written by the insurer for the employer, or (iv) failure of the employer, if covered pursuant to section 44-3,158, to comply with sections 48-443 to 48-445.

(c) No policy shall expire or lapse at the end of the policy period unless notice of nonrenewal is given by the workers' compensation insurer to the compensation court and to the employer. No policy shall expire or lapse until thirty days after giving such notices, except that a policy may expire or lapse ten days after the giving of such notices if the nonrenewal is based on (i) notice from the employer to the insurer to not renew the policy, (ii) nonpayment of premium due the insurer under any policy written by the insurer for the employer, (iii) failure of the employer to reimburse deductible losses as required under any policy written by the insurer for the employer, or (iv) failure of the employer, if covered pursuant to section 44-3,158, to comply with sections 48-443 to 48-445.

(6)(a) This subsection applies to workers' compensation master policies obtained by a professional employer organization.

(b) No cancellation of a master policy within the policy period shall be effective unless notice of the cancellation is given by the workers' compensation insurer to the compensation court and to the professional employer organization. No such cancellation shall be effective until thirty days after giving such notices.

(c) No termination of coverage for a client or any employees of a client under a master policy within the policy period shall be effective unless notice is given by the workers' compensation insurer to the compensation court and to the professional employer organization. No such termination of coverage shall be effective until thirty days after giving such notices, except that the termination of coverage may be effective ten days after the giving of such notices if such termination is based on (i) notice from the client to the professional employer organization or the insurer to terminate the coverage or (ii) notice from the professional employer organization of the client's nonpayment of premium.

(d) No master policy shall expire or lapse at the end of the policy period unless notice of nonrenewal is given by the workers' compensation insurer to the compensation court and to the professional employer organization. No master policy shall expire or lapse until thirty days after giving such notices.

(e) Notice of the cancellation or nonrenewal of a master policy or the termination of coverage for a client or the employees of a client under such a policy shall be given by the professional employer organization to the client within fifteen days after the cancellation, nonrenewal, or termination unless replacement coverage has been obtained.

(7)(a) This subsection applies to workers' compensation multiple coordinated policies obtained by a professional employer organization.

(b) No cancellation of a policy within the policy period shall be effective unless notice of the cancellation is given by the workers' compensation insurer to the compensation court, to the professional employer organization, and to the client employer. No such cancellation shall be effective until thirty days after giving such notices, except that the cancellation may be effective ten days after giving such notices if such cancellation is based on (i) notice from the client to the professional employer organization or the insurer to cancel the policy, (ii) notice from the professional employer organization of the client's nonpayment of premium or failure to reimburse deductibles for policies issued pursuant to section 48-146.03, (iii) failure of the client, if covered pursuant to section 44-3,158, to comply with sections 48-443 to 48-445, or (iv) for policies issued pursuant to section 44-3,158, nonpayment of premium or failure to reimburse deductibles for policies issued pursuant to section 48-146.03.

(c) No termination of coverage for any employees of the client during the policy period shall be effective unless notice is given by the workers' compensation insurer to the compensation court, to the professional employer organization, and to the client. No such termination of coverage shall be effective until thirty days after giving such notices, except that the termination of coverage may be effective ten days after the giving of such notices if such termination is based on (i) notice from the client to the professional employer organization or the insurer to terminate the coverage or (ii) notice from the professional employer organization of the client's nonpayment of premium or failure to reimburse deductibles for policies issued pursuant to section 48-146.03.

(d) No policy shall expire or lapse at the end of the policy period unless notice of nonrenewal is given by the workers' compensation insurer to the compensation court, to the professional employer organization, and to the client. No policy shall expire or lapse until thirty days after giving such notices, except that a policy may expire or lapse ten days after the giving of such notices if the nonrenewal is based on (i) notice from the client to the professional employer organization or the insurer to not renew the policy, (ii) notice from the professional employer organization of the client's nonpayment of premium or failure to reimburse deductibles for policies issued pursuant to section 48-146.03, (iii) failure of the client, if covered pursuant to section 44-3,158, to comply with sections 48-443 to 48-445, or (iv) for policies issued pursuant to section 44-3,158, nonpayment of premium or failure to reimburse deductibles for policies issued pursuant to section 48-146.03.

(e) An insurer may refrain from sending notices required by this subsection to a professional employer organization's client based upon the professional employer organization's representation that coverage has been or will be replaced. Such representation shall not absolve the insurer of its responsibility to continue coverage if such representation proves inaccurate.

(8) Notwithstanding other provisions of this section, if replacement workers' compensation insurance coverage has been secured with another workers' compensation insurer, then the cancellation or nonrenewal of the policy or the termination of coverage for a client or employees of a client under the policy shall be effective as of the effective date of such other insurance coverage.

(9) The notices required by this section shall state the reason for the cancellation or nonrenewal of the policy or termination of coverage for a client or employees of a client under a policy.

(10) The notices required by this section shall be provided in writing and shall be deemed given upon the mailing of such notices by certified mail, except that notices from insurers to the compensation court may be provided by electronic means if such electronic means is approved by the administrator of the compensation court. If notice is provided by electronic means pursuant to such an approval, it shall be deemed given upon receipt and acceptance by the compensation court.

Source:Laws 1971, LB 572, § 13; Laws 1972, LB 1269, § 1; Laws 1986, LB 811, § 65; Laws 1994, LB 978, § 49; Laws 1994, LB 1222, § 61; Laws 1996, LB 1230, § 1; Laws 2005, LB 13, § 7; Laws 2005, LB 238, § 8; Laws 2007, LB117, § 33; Laws 2009, LB630, § 9; Laws 2010, LB579, § 15.

Annotations

Under subsection (10) of this section, an insurer need only prove that it sent a notice of cancellation to an employer by certified mail; the insurer's record of the certified mail tracking number used to send the notice itself was not sufficient to prove certified mail service. Greenwood v. J.J. Hooligan's, 297 Neb. 435, 899 N.W.2d 905 (2017).

Subsection (2) of this section applies only to an insurer's intent to nonrenew a policy and does not address either an employer's intent to not renew a policy for an additional term or nonrenewal by an employer through lapse at the end of the policy period due to the employer's nonpayment of a renewal premium. Brouilette v. DBV Enterprises, Inc., 9 Neb. App. 757, 619 N.W.2d 482 (2000).

48-144.04. Reports; penalties for not filing; statutes of limitations not to run until report furnished.

Any employer, workers' compensation insurer, or risk management pool who fails, neglects, or refuses to file any report required of him or her by the Nebraska Workers' Compensation Court shall be guilty of a Class II misdemeanor for each such failure, neglect, or refusal. It shall be the duty of the Attorney General to act as attorney for the state. In addition to the penalty, where an employer, workers' compensation insurer, or risk management pool has been given notice, or the employer, workers' compensation insurer, or risk management pool has knowledge, of any injury or death of an employee and fails, neglects, or refuses to file a report thereof, the limitations in section 48-137 and for injuries occurring before December 1, 1997, the limitations in section 48-128 shall not begin to run against the claim of the injured employee or his or her dependents entitled to compensation or against the State of Nebraska on behalf of the Workers' Compensation Trust Fund, or in favor of either the employer, workers' compensation insurer, or risk management pool until such report shall have been furnished as required by the compensation court.

Source:Laws 1971, LB 572, § 14; Laws 1977, LB 40, § 271; Laws 1986, LB 811, § 66; Laws 1987, LB 398, § 43; Laws 1997, LB 854, § 3; Laws 2000, LB 1221, § 7; Laws 2005, LB 238, § 9.

Cross References

Risk management pool, defined, see section 44-4303.

Annotations

Under this section, an employer has sufficient knowledge of an employee's injury if a reasonable person would conclude that an employee's injury is potentially compensable and that the employer should therefore investigate the matter further. Risor v. Nebraska Boiler, 277 Neb. 679, 765 N.W.2d 170 (2009).

This section establishes when the statute of limitations begins to run if an initial report required by section 48-144.01 is not filed, but this section does not provide for tolling of an already-running statute of limitations when and if subsequent reports are not filed. Dawes v. Wittrock Sandblasting & Painting, 266 Neb. 526, 667 N.W.2d 167 (2003).

48-145. Employers; compensation insurance required; exceptions; effect of failure to comply; self-insurer; payments required; deposit with State Treasurer; credited to Compensation Court Cash Fund.

To secure the payment of compensation under the Nebraska Workers' Compensation Act:

(1) Every employer in the occupations described in section 48-106, except the State of Nebraska and any governmental agency created by the state, shall either (a) insure and keep insured its liability under such act in some corporation, association, or organization authorized and licensed to transact the business of workers' compensation insurance in this state, (b) in the case of an employer who is a lessor of one or more commercial vehicles leased to a self-insured motor carrier, be a party to an effective agreement with the self-insured motor carrier under section 48-115.02, (c) be a member of a risk management pool authorized and providing group self-insurance of workers' compensation liability pursuant to the Intergovernmental Risk Management Act, or (d) with approval of the Nebraska Workers' Compensation Court, self-insure its workers' compensation liability.

An employer seeking approval to self-insure shall make application to the compensation court in the form and manner as the compensation court may prescribe, meet such minimum standards as the compensation court shall adopt and promulgate by rule and regulation, and furnish to the compensation court satisfactory proof of financial ability to pay direct the compensation in the amount and manner when due as provided for in the Nebraska Workers' Compensation Act. Approval is valid for the period prescribed by the compensation court unless earlier revoked pursuant to this subdivision or subsection (1) of section 48-146.02. Notwithstanding subdivision (1)(d) of this section, a professional employer organization shall not be eligible to self-insure its workers' compensation liability. The compensation court may by rule and regulation require the deposit of an acceptable security, indemnity, trust, or bond to secure the payment of compensation liabilities as they are incurred. The agreement or document creating a trust for use under this section shall contain a provision that the trust may only be terminated upon the consent and approval of the compensation court. Any beneficial interest in the trust principal shall be only for the benefit of the past or present employees of the self-insurer and any persons to whom the self-insurer has agreed to pay benefits under subdivision (11) of section 48-115 and section 48-115.02. Any limitation on the termination of a trust and all other restrictions on the ownership or transfer of beneficial interest in the trust assets contained in such agreement or document creating the trust shall be enforceable, except that any limitation or restriction shall be enforceable only if authorized and approved by the compensation court and specifically delineated in the agreement or document. The trustee of any trust created to satisfy the requirements of this section may invest the trust assets in the same manner authorized under subdivisions (1)(a) through (i) of section 30-3209 for corporate trustees holding retirement or pension funds for the benefit of employees or former employees of cities, villages, school districts, or governmental or political subdivisions, except that the trustee shall not invest trust assets into stocks, bonds, or other obligations of the trustor. If, as a result of such investments, the value of the trust assets is reduced below the acceptable trust amount required by the compensation court, then the trustor shall deposit additional trust assets to account for the shortfall.

Notwithstanding any other provision of the Nebraska Workers' Compensation Act, a three-judge panel of the compensation court may, after notice and hearing, revoke approval as a self-insurer if it finds that the financial condition of the self-insurer or the failure of the self-insurer to comply with an obligation under the act poses a serious threat to the public health, safety, or welfare. The Attorney General, when requested by the administrator of the compensation court, may file a motion pursuant to section 48-162.03 for an order directing a self-insurer to appear before a three-judge panel of the compensation court and show cause as to why the panel should not revoke approval as a self-insurer pursuant to this subdivision. The Attorney General shall be considered a party for purposes of such motion. The Attorney General may appear before the three-judge panel and present evidence that the financial condition of the self-insurer or the failure of the self-insurer to comply with an obligation under the act poses a serious threat to the public health, safety, or welfare. The presiding judge shall rule on a motion of the Attorney General pursuant to this subdivision and, if applicable, shall appoint judges of the compensation court to serve on the three-judge panel. The presiding judge shall not serve on such panel. Appeal from a revocation pursuant to this subdivision shall be in accordance with section 48-185. No such appeal shall operate as a supersedeas unless the self-insurer executes to the compensation court a bond with one or more sureties authorized to do business within the State of Nebraska in an amount determined by the three-judge panel to be sufficient to satisfy the obligations of the self-insurer under the act;

(2) An approved self-insurer shall furnish to the State Treasurer an annual amount equal to two and one-half percent of the prospective loss costs for like employment but in no event less than twenty-five dollars. Prospective loss costs is defined in section 48-151. The compensation court is the sole judge as to the prospective loss costs that shall be used. All money which a self-insurer is required to pay to the State Treasurer, under this subdivision, shall be computed and tabulated under oath as of January 1 and paid to the State Treasurer immediately thereafter. The compensation court or designee of the compensation court may audit the payroll of a self-insurer at the compensation court's discretion. All money paid by a self-insurer under this subdivision shall be credited to the Compensation Court Cash Fund;

(3) Every employer who fails, neglects, or refuses to comply with the conditions set forth in subdivision (1) or (2) of this section shall be required to respond in damages to an employee for personal injuries, or when personal injuries result in the death of an employee, then to his or her dependents; and

(4) Any security, indemnity, trust, or bond provided by a self-insurer pursuant to subdivision (1) of this section shall be deemed a surety for the purposes of the payment of valid claims of the self-insurer's employees and the persons to whom the self-insurer has agreed to pay benefits under the Nebraska Workers' Compensation Act pursuant to subdivision (11) of section 48-115 and section 48-115.02 as generally provided in the act.

Source:Laws 1913, c. 198, § 46, p. 599; R.S.1913, § 3687; Laws 1917, c. 85, § 21, p. 215; Laws 1921, c. 122, § 1, p. 528; C.S.1922, § 3069; C.S.1929, § 48-146; Laws 1935, c. 57, § 31, p. 202; C.S.Supp.,1941, § 48-146; R.S.1943, § 48-145; Laws 1957, c. 205, § 1, p. 723; Laws 1963, c. 286, § 1, p. 860; Laws 1971, LB 572, § 8; Laws 1986, LB 811, § 67; Laws 1988, LB 1146, § 1; Laws 1997, LB 474, § 4; Laws 1999, LB 216, § 9; Laws 2000, LB 1221, § 8; Laws 2005, LB 13, § 8; Laws 2005, LB 238, § 10; Laws 2010, LB579, § 16; Laws 2015, LB480, § 4; Laws 2023, LB191, § 7.
Operative Date: May 27, 2023

Cross References

Intergovernmental Risk Management Act, see section 44-4301.

Annotations

A cause of action for retaliatory demotion exists when an employer demotes an employee for filing a workers' compensation claim. Trosper v. Bag 'N Save, 273 Neb. 855, 734 N.W.2d 703 (2007).

Nebraska recognizes a public policy exception to the at-will employment doctrine to allow an action for retaliatory discharge when an employee has been discharged for filing a workers' compensation claim. Jackson v. Morris Communications Corp., 265 Neb. 423, 657 N.W.2d 634 (2003).

Pursuant to subsection (3) of this section, where employee alleges that employer has failed to maintain workers' compensation insurance and employer introduces no evidence to refute employee's allegation, district court may exercise jurisdiction over employee's petition for damages for personal injuries sustained by employee in course of working for employer. Schweitzer v. American Nat. Red Cross, 256 Neb. 350, 591 N.W.2d 524 (1999).

Under Nebraska statute, any workmen's compensation policy is required to cover all of the employer's liability and all compensation awarded under the act. Neeman v. Otoe County, 186 Neb. 370, 183 N.W.2d 269 (1971).

Owner of building used in conducting owner's business who contracts for certain repairs to said building is an employer within act, unless the contractor was required to procure compensation insurance for protection of his employees. New Masonic Temple Assn. v. Globe Indemnity Co., 134 Neb. 731, 279 N.W. 475 (1938).

Where petition did not show when contract of employment was made, failure to allege election or failure to procure insurance in common-law action for damages did not require dismissal of suit. Smith v. Fall, 122 Neb. 783, 241 N.W. 560 (1932).

Noninsuring employer cannot take advantage of his own default to detriment of employee. Dietz Club v. Niehaus, 110 Neb. 154, 193 N.W. 344 (1923).

Noninsuring employer is liable either for damages at common law or for compensation, at employee's option. Avre v. Sexton, 110 Neb. 149, 193 N.W. 342 (1923).

Provision that employer must insure or furnish proof of ability to pay compensation is constitutional. Nedela v. Mares Auto Co., 110 Neb. 108, 193 N.W. 345 (1923).

Defense that plaintiff employee had waived right to sue at common law by accepting payment of hospital and doctor bill was not sustained. Brown v. York Water Co., 104 Neb. 516, 177 N.W. 833 (1920).

48-145.01. Employers; compensation required; penalty for failure to comply; injunction; Attorney General; duties.

(1) Any employer required to secure the payment of compensation under the Nebraska Workers' Compensation Act who willfully fails to secure the payment of such compensation shall be guilty of a Class I misdemeanor. If the employer is a corporation, limited liability company, or limited liability partnership, any officer, member, manager, partner, or employee who had authority to secure payment of compensation on behalf of the employer and willfully failed to do so shall be individually guilty of a Class I misdemeanor and shall be personally liable jointly and severally with such employer for any compensation which may accrue under the act in respect to any injury which may occur to any employee of such employer while it so fails to secure the payment of compensation as required by section 48-145.

(2) If an employer subject to the Nebraska Workers' Compensation Act fails to secure the payment of compensation as required by section 48-145, the employer may be enjoined from doing business in this state until the employer complies with subdivision (1) of section 48-145. If a temporary injunction is granted at the request of the State of Nebraska, no bond shall be required to make the injunction effective. The Nebraska Workers' Compensation Court or the district court may order an employer who willfully fails to secure the payment of compensation to pay a monetary penalty of not more than one thousand dollars for each violation. For purposes of this subsection, each day of continued failure to secure the payment of compensation as required by section 48-145 constitutes a separate violation. If the employer is a corporation, limited liability company, or limited liability partnership, any officer, member, manager, partner, or employee who had authority to secure payment of compensation on behalf of the employer and willfully failed to do so shall be personally liable jointly and severally with the employer for such monetary penalty. All penalties collected pursuant to this subsection shall be remitted to the State Treasurer for distribution in accordance with Article VII, section 5, of the Constitution of Nebraska.

(3) It shall be the duty of the Attorney General to act as attorney for the State of Nebraska for purposes of this section. The Attorney General may file a motion pursuant to section 48-162.03 for an order directing an employer to appear before a judge of the compensation court and show cause as to why a monetary penalty should not be assessed against the employer pursuant to subsection (2) of this section. The Attorney General shall be considered a party for purposes of such motion. The Attorney General may appear before the compensation court and present evidence of a violation or violations pursuant to subsection (2) of this section and the identity of the person who had authority to secure the payment of compensation. Appeal from an order of a judge of the compensation court pursuant to subsection (2) of this section shall be in accordance with sections 48-182 and 48-185.

Source:Laws 1971, LB 572, § 18; Laws 1977, LB 40, § 272; Laws 1986, LB 811, § 68; Laws 1993, LB 121, § 283; Laws 1999, LB 331, § 1; Laws 2005, LB 13, § 9; Laws 2011, LB151, § 2.

Annotations

The word "willfully" herein is that failure by act or omission to act done knowingly and intentionally. Schademann v. Casey, 194 Neb. 149, 231 N.W.2d 116 (1975).

48-145.02. Employers; reports required.

Every employer shall upon request of the administrator of the Nebraska Workers' Compensation Court report to the administrator (1) the number of its employees and the nature and location of their work, (2) the name of the workers' compensation insurer with whom the employer has insured its liability under the Nebraska Workers' Compensation Act and the number and date of expiration of such policy, and (3) the employer's federal employer identification number or numbers. Failure to furnish such report within ten days from the making of a request by certified or registered mail shall constitute presumptive evidence that the delinquent employer is violating section 48-145.01.

Source:Laws 1971, LB 572, § 19; Laws 1972, LB 1061, § 1; Laws 1986, LB 811, § 69; Laws 2005, LB 13, § 10.

48-145.03. Employers; other liabilities not affected.

Sections 48-125.01, 48-145.01, and 48-145.02 shall not affect any other liability of the employer under the Nebraska Workers' Compensation Act.

Source:Laws 1971, LB 572, § 21; Laws 1986, LB 811, § 70.

48-145.04. Self-insurance; assessment; payments.

(1) The administrator of the Nebraska Workers' Compensation Court shall, prior to January 1 of each year, estimate as closely as possible the actual cost to the court of evaluating an application for self-insurance and supervising and administering the self-insurance program for the ensuing year and assess the amount thereof, but not to exceed two thousand dollars, against each applicant for self-insurance in this state. Such assessment shall be in addition to the payments required by subdivision (2) of section 48-145 and section 48-1,114. The administrator shall notify each applicant of the amount of the individual assessment. Such assessment shall be due and payable with the application for self-insurance. If any assessment is not paid, the application shall not be considered.

(2) All payments received under subsection (1) of this section shall be remitted to the State Treasurer for credit to the Compensation Court Cash Fund. Such payments shall be expended solely for evaluating applications for self-insurance and to aid in supervising and administering the self-insurance program. After the first year, the balance remaining of such payments at the time each annual assessment is made shall be taken into account when the total assessment for the ensuing year is made.

Source:Laws 1986, LB 1036, § 1; Laws 1992, LB 1006, § 93; Laws 1993, LB 757, § 13; Laws 1999, LB 2, § 1; Laws 2000, LB 1221, § 9; Laws 2005, LB 13, § 11.

48-146. Compensation insurance; provisions required; approval by Department of Insurance; effect of bankruptcy.

No policy of insurance against liability arising under the Nebraska Workers' Compensation Act shall be issued and no agreement pursuant to section 44-4304 providing group self-insurance coverage of workers' compensation liability by a risk management pool shall have any force or effect unless it contains the agreement of the workers' compensation insurer or risk management pool that it will promptly pay to the person entitled to the same all benefits conferred by such act, and all installments of the compensation that may be awarded or agreed upon, and that the obligation shall not be affected by the insolvency or bankruptcy of the employer or his or her estate or discharge therein or by any default of the employer after the injury, or by any default in the giving of any notice required by such policy, or otherwise. Such agreement shall be construed to be a direct promise by the workers' compensation insurer or risk management pool to the person entitled to compensation enforceable in his or her name. Each workers' compensation insurance policy and each agreement forming a risk management pool shall be deemed to be made subject to the Nebraska Workers' Compensation Act. No corporation, association, or organization shall enter into a workers' compensation insurance policy unless copies of such forms have been filed with and approved by the Department of Insurance. Each workers' compensation insurance policy and each agreement pursuant to section 44-4304 providing group self-insurance coverage of workers' compensation liability by a risk management pool shall contain a clause to the effect (1) that as between the employer and the workers' compensation insurer or risk management pool the notice to or knowledge of the occurrence of the injury on the part of the employer shall be deemed notice or knowledge, as the case may be, on the part of the insurer or risk management pool, (2) that jurisdiction of the employer for the purpose of such act shall be jurisdiction of the insurer or risk management pool, and (3) that the insurer or risk management pool shall in all things be bound by the awards, judgments, or decrees rendered against such employer. Except when the Professional Employer Organization Registration Act allows coverage to be limited to co-employees as specified in a professional employer agreement, each workers' compensation insurance policy and each agreement providing such group self-insurance coverage shall include within its terms the payment of compensation to all employees who are within the scope and purview of the Nebraska Workers' Compensation Act, including potential new or unknown employees.

Source:Laws 1913, c. 198, § 47, p. 599; R.S.1913, § 3688; Laws 1917, c. 85, § 22, p. 215; C.S.1922, § 3070; C.S.1929, § 48-147; Laws 1933, c. 91, § 1, p. 364; Laws 1935, c. 57, § 32, p. 203; C.S.Supp.,1941, § 48-147; R.S.1943, § 48-146; Laws 1949, c. 162, § 1, p. 415; Laws 1967, c. 291, § 2, p. 795; Laws 1971, LB 572, § 9; Laws 1986, LB 811, § 71; Laws 1987, LB 398, § 44; Laws 1988, LB 1146, § 2; Laws 1997, LB 474, § 5; Laws 1999, LB 216, § 10; Laws 2005, LB 238, § 11; Laws 2010, LB579, § 17.

Cross References

Construction of section, see section 48-115.01.

Professional Employer Organization Registration Act, see section 48-2701.

Risk management pool, defined, see section 44-4303.

Annotations

1. Employer and insurer relationship

2. Miscellaneous

1. Employer and insurer relationship

Absent fraud or collusion, insurers in privity with their insureds will be bound by a judgment against the insured, regardless of whether the insurer was notified of the underlying action. Risor v. Nebraska Boiler, 274 Neb. 906, 744 N.W.2d 693 (2008).

The provisions of this section requiring that policies insuring liability arising under the Nebraska Workers' Compensation Act provide that jurisdiction over the insured shall be jurisdiction over the insurer and that the insurer shall in all things be bound by the awards, judgments, or decrees rendered against the insured, do not authorize the compensation court to ignore the separate identities of the insured and insurer. Rodriquez v. Prime Meat Processors, 228 Neb. 55, 421 N.W.2d 32 (1988).

Joinder of employer for purpose of subrogation was for benefit of insurance carrier. American Province Real Estate Corp. v. Metropolitan Utilities Dist., 178 Neb. 348, 133 N.W.2d 466 (1965).

Insurance carrier is directly liable to an accidentally injured employee of the insured. Ramsey v. Kramer Motors, Inc., 155 Neb. 584, 52 N.W.2d 799 (1952).

Agreement made between employee and adjuster for the insurance company is not binding on employer so as to toll statute of limitations. Hill v. Hinky-Dinky Stores Co., 133 Neb. 147, 274 N.W. 455 (1937).

Statute provides insurer and insured are jointly liable, and defenses, waived by voluntary appearance of insured, are extended to insurer. Collins v. Casualty Reciprocal Exchange, 123 Neb. 227, 242 N.W. 457 (1932).

Reasonable agreement by employer with injured employee binds insurance carrier. Bailey v. United States Fidelity & Guaranty Co., 99 Neb. 109, 155 N.W. 237 (1915).

Notice to the insured-employer is binding on the insurer. Snowden v. Helget Gas Products, 15 Neb. App. 33, 721 N.W.2d 362 (2006).

2. Miscellaneous

Insurance company having written new policy is liable for entire loss even though notice of cancellation of former policy not filed within time limit set by rule of Workmen's Compensation Court. Neeman v. Otoe County, 186 Neb. 370, 183 N.W.2d 269 (1971).

Insurance carrier is a proper party defendant. Peek v. Ayers Auto Supply, 157 Neb. 363, 59 N.W.2d 564 (1953).

Agreement to pay compensation which was not approved by compensation commissioner or compensation court was void. Duncan v. A. Hospe Co., 133 Neb. 810, 277 N.W. 339 (1938).

The requirement contained in this section that each workers' compensation insurance policy covers all employees within the purview of the Nebraska Workers' Compensation Act overrides an insurance policy provision which excludes any such employee from coverage. Kruid v. Farm Bureau Mut. Ins. Co., 17 Neb. App. 687, 770 N.W.2d 652 (2009).

48-146.01. Transferred to section 44-3,158.

48-146.02. Insurance provider; risk management pool; suspension or revocation of authority to provide compensation insurance; Attorney General; duties; grounds.

(1)(a) If a three-judge panel of the Nebraska Workers' Compensation Court finds, after due notice and hearing at which the workers' compensation insurer is entitled to be heard and present evidence, that such insurer has failed to comply with an obligation under the Nebraska Workers' Compensation Act with such frequency as to indicate a general business practice to engage in that type of conduct, the three-judge panel may request the Director of Insurance to suspend or revoke the authorization of such insurer to write workers' compensation insurance under the provisions of Chapter 44 and such act. Such suspension or revocation shall not affect the liability of any such insurer under policies in force prior to the suspension or revocation.

(b) If a three-judge panel of the compensation court finds, after due notice and hearing at which the risk management pool is entitled to be heard and present evidence, that such pool has failed to comply with an obligation under the Nebraska Workers' Compensation Act, as set out in subsection (1) of section 44-4319, with such frequency as to indicate a general business practice to engage in that type of conduct, the three-judge panel may suspend or revoke the authority of the pool to provide group self-insurance coverage of workers' compensation liability pursuant to the Intergovernmental Risk Management Act. Such suspension or revocation shall not affect the liability of any such risk management pool under the terms of the agreement forming the pool in force prior to the suspension or revocation.

(c) If a three-judge panel of the compensation court finds, after due notice and hearing at which the self-insurer is entitled to be heard and present evidence, that such self-insurer has failed to comply with an obligation under the Nebraska Workers' Compensation Act with such frequency as to indicate a general business practice to engage in that type of conduct, the three-judge panel may revoke the approval of such self-insurer to provide self-insurance coverage of workers' compensation liability pursuant to section 48-145. Such revocation shall not affect the liability of any such self-insurer under an approval by the compensation court to self-insure in force prior to the revocation.

(d) The Attorney General, when requested by the administrator of the compensation court, may file a motion pursuant to section 48-162.03 for an order directing a workers' compensation insurer, risk management pool, or self-insurer to appear before a three-judge panel of the compensation court and show cause as to why the panel should not take action pursuant to this subsection. The Attorney General shall be considered a party for purposes of such motion. The Attorney General may appear before the three-judge panel and present evidence that the workers' compensation insurer, risk management pool, or self-insurer has failed to comply with an obligation under the Nebraska Workers' Compensation Act with such frequency as to indicate a general business practice to engage in that type of conduct. The presiding judge shall rule on a motion of the Attorney General pursuant to this subdivision and, if applicable, shall appoint judges of the compensation court to serve on the three-judge panel. The presiding judge shall not serve on such panel.

(e) Appeal from an action by a three-judge panel of the compensation court pursuant to subdivision (1)(b) or (1)(c) of this section shall be in accordance with section 48-185.

(2) In addition to any other obligations under the Nebraska Workers' Compensation Act, the following acts or practices, when committed with such frequency as to indicate a general business practice to engage in that type of conduct, shall subject the workers' compensation insurer, risk management pool, or self-insurer to action pursuant to subsection (1) of this section:

(a) Knowingly misrepresenting relevant facts or the provisions of the act or any rule or regulation adopted pursuant to such act;

(b) Failing to acknowledge with reasonable promptness pertinent communications with respect to claims arising under the act;

(c) Failing to promptly investigate claims arising under the act;

(d) Not attempting in good faith to effectuate prompt, fair, and equitable payment of benefits when compensability has become reasonably clear;

(e) Refusing to pay benefits without conducting a reasonable investigation;

(f) Failing to affirm or deny compensability of a claim within a reasonable time after having completed the investigation related to such claim;

(g) Paying substantially less than amounts owed under the act where there is no reasonable controversy;

(h) Making payment to an injured employee, beneficiary of a deceased employee, or provider of medical, surgical, or hospital services without providing a reasonable and accurate explanation of the basis for the payment;

(i) Unreasonably delaying the investigation or payment of benefits by knowingly requiring excessive verification or duplication of information;

(j) Failing, in the case of the denial of compensability or the denial, change in, or termination of benefits, to promptly provide a reasonable and accurate explanation of the basis for such action to the injured employee or beneficiary of a deceased employee;

(k) Failing, in the case of the denial of payment for medical, surgical, or hospital services, to promptly provide a reasonable and accurate explanation of the basis for such action to the provider of such services; or

(l) Failing to provide the compensation court's address and telephone number to an injured employee or beneficiary of a deceased employee with instructions to contact the court for further information:

(i) At or near the time the workers' compensation insurer, risk management pool, or self-insurer receives notice or has knowledge of the injury; and

(ii) At or near the time of the denial of compensability or the denial, change in, or termination of benefits.

(3) In order to determine compliance with obligations under the Nebraska Workers' Compensation Act, the compensation court or its designee may examine the workers' compensation records of (a) a workers' compensation insurer, a risk management pool, or a self-insurer or (b) an adjuster, a third-party administrator, or other agent acting on behalf of such workers' compensation insurer, risk management pool, or self-insurer. The authority of the compensation court pursuant to this subsection is subject to the limitations provided under the work-product doctrine and attorney-client privilege as recognized in Nebraska law.

(4) The compensation court may adopt and promulgate rules and regulations necessary to implement this section.

Source:Laws 1971, LB 572, § 16; Laws 1986, LB 811, § 73; Laws 1987, LB 398, § 45; Laws 1999, LB 331, § 2; Laws 2005, LB 13, § 12.

Cross References

Intergovernmental Risk Management Act, see section 44-4301.

Risk management pool, defined, see section 44-4303.

48-146.03. Workers' compensation insurance policy; deductible options; exception; liability; insurer; duties; prohibited acts; violation; penalty.

(1) Each workers' compensation insurance policy issued by an insurer pursuant to the Nebraska Workers' Compensation Act:

(a) Shall offer, at the option of the insured employer, a deductible for medical benefits in the amount of five hundred dollars to two thousand five hundred dollars per claim in increments of five hundred dollars; or

(b) May offer, at the option of the insured employer and the workers' compensation insurer, a deductible for all amounts paid by the insurer as long as the deductible is not more than forty percent of the insured employer's otherwise applicable annual workers' compensation insurance premium at rates approved for the insurer but not less than fifty thousand dollars.

The insured employer, if choosing to exercise one of such options listed in this subsection, may choose only one of the amounts as the deductible. The provisions of this section shall be fully disclosed to each prospective purchaser in writing.

(2) The deductible form shall provide that the workers' compensation insurer shall remain liable for and shall pay the entire cost of medical benefits for each claim directly to the medical provider, shall remain liable for and pay the entire cost of benefits, claims, and expenses as required by the policy irrespective of the deductible provision, and shall then be reimbursed by the employer for any deductible amounts paid by the workers' compensation insurer. The employer shall be liable for reimbursement up to the limit of the deductible.

(3) A workers' compensation insurer shall not be required to offer a deductible if, as a result of a credit investigation, the insurer determines that the employer does not have the financial ability to be responsible for the payment of deductible amounts.

(4) A workers' compensation insurer shall service and, if necessary, defend all claims that arise during the policy period, including those claims payable in whole or in part from the deductible amount, and shall make such reports to the compensation court of payments made, including payments made under the deductible provisions, as may be required by the compensation court.

(5) A person who is employed by a policyholder which chooses to exercise the option of a deductible policy shall not be required to pay any of the deductible amount, and any such policyholder shall not require or attempt to require the employee to give up his or her right of selection of physician set out in section 48-120. Any violation of this subsection shall be a Class II misdemeanor.

Source:Laws 1990, LB 313, § 2; Laws 1992, LB 1006, § 94; Laws 2005, LB 238, § 12.

48-147. Liability insurance; existing contract; effect of law; violations; penalty.

Nothing in the Nebraska Workers' Compensation Act shall affect any existing contract for employers liability insurance, or affect the organization of any mutual or other insurance company, or any arrangement existing between employers and employees, providing for payment to such employees, their families, dependents, or representatives, sick, accident, or death benefits in addition to the compensation provided for by such act; but liability for compensation under such act shall not be reduced or affected by any insurance of the injured employee, or any contribution or other benefit whatsoever, due to or received by the person entitled to such compensation, and the person so entitled shall, irrespective of any insurance or other contract, have the right to recover the same directly from the employer, and in addition thereto, the right to enforce in his or her own name in the manner provided in section 48-146 the liability of any insurer who may, in whole or in part, have insured the liability for such compensation. Payment in whole or in part of such compensation by either the employer or the insurer, as the case may be, shall, to the extent thereof, be a bar to recovery against the other of the amount so paid. No agreement by an employee to pay any portion of premium paid by his or her employer or to contribute to a benefit fund or department maintained by such employer for the purpose of providing compensation as required by the Nebraska Workers' Compensation Act shall be valid, and any employer who makes a deduction for such purpose from the pay of any employee entitled to the benefits of such act shall be guilty of a Class II misdemeanor. Nothing in this section invalidates or prohibits agreements pursuant to subdivision (11) of section 48-115 or section 48-115.02.

Source:Laws 1913, c. 198, § 48, p. 600; R.S.1913, § 3689; C.S.1922, § 3071; C.S.1929, § 48-148; R.S.1943, § 48-147; Laws 1971, LB 572, § 10; Laws 1977, LB 40, § 273; Laws 1986, LB 811, § 74; Laws 1997, LB 474, § 6; Laws 1999, LB 216, § 11.

Annotations

Pension benefits made under city ordinance did not affect the right of plaintiff to claim and receive under Workmen's Compensation Act. Novotny v. City of Omaha, 207 Neb. 535, 299 N.W.2d 757 (1980).

Receipt and acceptance of workmen's compensation does not bar city fireman from right to fireman's pension. City of Lincoln v. Steffensmeyer, 134 Neb. 613, 279 N.W. 272 (1938).

Widow of city fireman, who had received pension, was not barred thereby from claiming compensation for accidental death. Shandy v. City of Omaha, 127 Neb. 406, 255 N.W. 477 (1934).

Payment of private insurance benefits, even if made pursuant to an employer-funded plan, does not entitle an employer to reduce an employee's benefits due under the Workers' Compensation Act. Nunn v. Texaco Trading & Transp., 3 Neb. App. 101, 523 N.W.2d 705 (1994).

48-148. Compensation; action to recover; release of claim at law.

If any employee, or his or her dependents in case of death, of any employer subject to the Nebraska Workers' Compensation Act files any claim with, or accepts any payment from such employer, or from any insurance company carrying such risk, on account of personal injury, or makes any agreement, or submits any question to the Nebraska Workers' Compensation Court under such act, such action shall constitute a release to such employer of all claims or demands at law, if any, arising from such injury.

Source:Laws 1913, c. 198, § 49, p. 600; R.S.1913, § 3690; C.S.1922, § 3072; C.S.1929, § 48-149; R.S.1943, § 48-148; Laws 1955, c. 186, § 5, p. 534; Laws 1986, LB 811, § 75.

Annotations

1. Exclusive remedy

2. Indemnity

3. Miscellaneous

1. Exclusive remedy

When an employee is compensated for the inability to work due to a physical injury that arose out of and in the course of employment, the Nebraska Workers' Compensation Act is the exclusive remedy for refusing to return the injured employee to suitable work and the employee cannot seek additional remedies under the Nebraska Fair Employment Practice Act for terminating his or her employment on the basis of the disability caused by the same workplace injury. Dutcher v. Nebraska Dept. of Corr. Servs., 312 Neb. 405, 979 N.W.2d 245 (2022).

Under this section, a surviving husband's claim for bystander negligent infliction of emotional distress against his deceased wife's employer was barred by the employer immunity provisions of the Nebraska Workers' Compensation Act because he accepted compensation from the employer as his deceased wife's dependent, he settled with and released the employer, and his claim arose from his deceased wife's injury as the phrase "arise from such injury" is used in this section. Pittman v. Western Engineering Co., 283 Neb. 913, 813 N.W.2d 487 (2012).

A public utility employee cannot maintain a separate suit against a city for an injury incurred on the job, because the Nebraska Workers' Compensation Act is the exclusive remedy of the injured public utility employee against the city where the public utility is an agency or department of the city. Hofferber v. City of Hastings, 275 Neb. 503, 747 N.W.2d 389 (2008).

Section 48-111 and this section are routinely referred to by the Nebraska Supreme Court as the "exclusivity" provisions of the Nebraska Workers' Compensation Act. Bennett v. Saint Elizabeth Health Sys., 273 Neb. 300, 729 N.W.2d 80 (2007).

The Nebraska Workers' Compensation Act is an employee's exclusive remedy against an employer when the employee's injury was both incurred "in the course of employment" and "arose out of employment". Skinner v. Ogallala Pub. Sch. Dist. No. 1, 262 Neb. 387, 631 N.W.2d 510 (2001).

The Workers' Compensation Act is an employee's exclusive remedy against an employer for an injury arising out of and in the course of employment. Tompkins v. Raines, 247 Neb. 764, 530 N.W.2d 244 (1995).

2. Indemnity

When an employer, liable to an employee under the Nebraska Workers' Compensation Act, agrees to indemnify a third party for a loss sustained as the result of the third party's payment to the indemnitor's employee, the employer's exclusion from liability accorded by the Workers' Compensation Act does not preclude the third party's action to enforce the indemnity agreement with the indemnitor-employer. Jacobs Engr. Group v. ConAgra Foods, 301 Neb. 38, 917 N.W.2d 435 (2018); Oddo v. Speedway Scaffold Co., 233 Neb. 1, 443 N.W.2d 596 (1989); Union Pacific R. R. Co. v. Kaiser Ag. Chem. Co., 229 Neb. 160, 425 N.W.2d 872 (1988).

Workmen's Compensation Act bars action by third party tort-feasor against employer for contribution or indemnity based on claim arising from the injury. Vangreen v. Interstate Machinery & Supply Co., 197 Neb. 29, 246 N.W.2d 652 (1976).

3. Miscellaneous

Nebraska does not recognize an exception that would allow a third party to seek contribution from an employer when it is alleged that the employer acted intentionally. Harsh International v. Monfort Indus., 266 Neb. 82, 662 N.W.2d 574 (2003).

If a person files a claim against his employer in the Workmen's Compensation Court for an injury which did not arise out of and in the course of his employment, he does not thereby release his employer from liability for a tort. Marlow v. Maple Manor Apartments, 193 Neb. 654, 228 N.W.2d 303 (1975).

Employee's acceptance of benefits under Workmen's Compensation Act ordinarily constitutes release to employer of claims at law arising from the injury. Edelman v. Ralph Printing & Lithographing, Inc., 189 Neb. 763, 205 N.W.2d 340 (1973).

48-148.01. Denial of compensation; false representation.

No compensation shall be allowed if, at the time of or in the course of entering into employment or at the time of receiving notice of the removal of conditions from a conditional offer of employment: (1) The employee knowingly and willfully made a false representation as to his or her physical or medical condition by acknowledging in writing that he or she is able to perform the essential functions of the job with or without reasonable accommodation based upon the employer's written job description; (2) the employer relied upon the false representation and the reliance was a substantial factor in the hiring; and (3) a causal connection existed between the false representation and the injury.

Source:Laws 2015, LB480, § 1.

48-148.02. Debt collection; limitations; notice; contents; delivery; Attorney General; ensure compliance; stay of lawsuits; effect on statute of limitations.

(1) After receipt of the notices provided for in this section, no debt collection shall be undertaken by a provider of services, supplier of services, collection agency, collector, or creditor attempting to collect a debt incurred against an employee or his or her spouse for treatment of a work-related injury while the matter is pending in the compensation court until final adjudication of the case regarding such debt.

(2) Notice under this section shall be made in writing and provided to each provider of services, supplier of services, collection agency, collector, or creditor as described in subsection (1) of this section. Notice shall not be imputed to any party from the service of notice upon another party.

(3) The initial notice shall contain the provider's name, employee's name, date of the injury, and a description of the injury, together with the filing date and case number pending in the compensation court. Within thirty days after the initial notice, an additional notice shall be provided specifically identifying the debt upon which collection should be stayed, unless identification was made in the initial notice. Notice shall be void if it fails to provide the proper information or is not provided within the required timeframes, or until proper notice is provided.

(4) Notice shall be made by personally delivering the notice to the person on whom it is to be served or by sending it by first-class mail addressed to the person or business entity on whom it is to be served at his or her residence or the principal office address of a business entity, or by a method otherwise agreed to between the parties. Each provider, supplier, collection agency, collector, or creditor shall not be deemed to be notified under this section unless receipt of the notice can be demonstrated.

(5) If collection efforts continue after both notices are received by the entity seeking to collect, the notices may be forwarded to the Attorney General requesting his or her assistance in gaining compliance with this act. The entity seeking to collect shall be copied on such notification to the Attorney General, and shall be given a reasonable period of time to respond to the notice and to cure any noncompliance. If noncompliance continues, the Attorney General may take such reasonable steps as is necessary to ensure compliance with this section. No private cause of action shall exist under this section. A violation of this section shall not be considered a violation of any other state or federal law.

(6) After notice is provided, collection lawsuits may be stayed, where applicable, by the plaintiff in a pending collection case, until final adjudication by the compensation court of the matter of the debt alleged to be subject to this section.

(7) The statute of limitations on the collection of such debt shall be tolled during the pendency of the compensation case from the date the case was filed with the compensation court.

(8) This section shall have no applicability outside of the Nebraska Workers' Compensation Act and shall not apply to any other cause of action under state or federal law.

Source:Laws 2019, LB418, § 8.

48-149. Compensation payments; nonassignable; not subject to attachment; exceptions.

No proceeds or interest thereon from payments or lump-sum settlements under the Nebraska Workers' Compensation Act or law of another state which provides compensation and benefits for employees sustaining job-related injuries shall be assignable, subject to attachment or garnishment, or held liable in any way for any debts, except (1) as provided in section 48-108 and (2) payments under the act or any law of another state which provides compensation and benefits for employees sustaining job-related injuries shall be subject to income withholding under the Income Withholding for Child Support Act, administrative attachment and bank matching pursuant to sections 43-3328 to 43-3339, and garnishment by a county attorney or authorized attorney pursuant to section 43-512.03 or garnishment for child support as defined in section 43-1705 by an obligee as defined in section 43-1713.

Source:Laws 1913, c. 198, § 50, p. 600; R.S.1913, § 3691; C.S.1922, § 3073; C.S.1929, § 48-150; R.S.1943, § 48-149; Laws 1986, LB 811, § 76; Laws 1993, LB 523, § 24; Laws 1993, LB 118, § 2; Laws 1997, LB 752, § 124.

Cross References

Income Withholding for Child Support Act, see section 43-1701.

48-150. Compensation claims; same preference as wage claims.

The right to compensation and all compensation awarded any injured employee or for death claims to his or her dependents in any amount shall have the same preference against the assets of the employer as unpaid wages for labor, but such compensation shall not become a lien on the property of third persons by reason of such preference.

Source:Laws 1913, c. 198, § 51, p. 600; R.S.1913, § 3692; C.S.1922, § 3074; C.S.1929, § 48-151; R.S.1943, § 48-150; Laws 1986, LB 811, § 77.

48-151. Terms, defined.

Throughout the Nebraska Workers' Compensation Act, the following words and phrases shall be considered to have the following meaning, respectively, unless the context clearly indicates a different meaning in the construction used:

(1) Physician means any person licensed to practice medicine and surgery, osteopathic medicine, chiropractic, podiatry, or dentistry in the State of Nebraska or in the state in which the physician is practicing;

(2) Accident means an unexpected or unforeseen injury happening suddenly and violently, with or without human fault, and producing at the time objective symptoms of an injury. The claimant has the burden of proof to establish by a preponderance of the evidence that such unexpected or unforeseen injury was in fact caused by the employment. There is no presumption from the mere occurrence of such unexpected or unforeseen injury that the injury was in fact caused by the employment;

(3) Occupational disease means only a disease which is due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation, process, or employment and excludes all ordinary diseases of life to which the general public is exposed;

(4) Injury and personal injuries mean only violence to the physical structure of the body and such disease or infection as naturally results therefrom and personal injuries described in section 48-101.01. The terms include disablement resulting from occupational disease arising out of and in the course of the employment in which the employee was engaged and which was contracted in such employment. The terms include an aggravation of a preexisting occupational disease, the employer being liable only for the degree of aggravation of the preexisting occupational disease. The terms do not include disability or death due to natural causes but occurring while the employee is at work and do not include an injury, disability, or death that is the result of a natural progression of any preexisting condition;

(5) Death, when mentioned as a basis for the right to compensation, means only death resulting from such violence and its resultant effects or from occupational disease;

(6) Without otherwise affecting either the meaning or the interpretation of the abridged clause, personal injuries arising out of and in the course of employment, it is hereby declared not to cover workers except while engaged in, on, or about the premises where their duties are being performed or where their service requires their presence as a part of such service at the time of the injury and during the hours of service as such workers, and not to cover workers who on their own initiative leave their line of duty or hours of employment for purposes of their own. Property maintained by an employer is considered the premises of such employer for purposes of determining whether the injury arose out of employment;

(7) Willful negligence consists of (a) a deliberate act, (b) such conduct as evidences reckless indifference to safety, or (c) intoxication at the time of the injury, such intoxication being without the consent, knowledge, or acquiescence of the employer or the employer's agent;

(8) Intoxication includes, but is not limited to, being under the influence of a controlled substance not prescribed by a physician;

(9) Prospective loss costs means prospective loss costs as defined in section 44-7504 and prepared, filed, or distributed by an advisory organization which has been issued a certificate of authority pursuant to section 44-7518;

(10) Client means client as defined in section 48-2702;

(11) Professional employer organization means professional employer organization as defined in section 48-2702;

(12) Multiple coordinated policy means multiple coordinated policy as defined in section 48-2702;

(13) Master policy means master policy as defined in section 48-2702; and

(14) Whenever in the Nebraska Workers' Compensation Act the singular is used, the plural is considered included; when the masculine gender is used, the feminine is considered included.

Source:Laws 1913, c. 198, § 52, p. 601; R.S.1913, § 3693; Laws 1917, c. 85, § 23, p. 216; Laws 1921, c. 122, § 1, p. 528; C.S.1922, § 3075; C.S.1929, § 48-152; Laws 1935, c. 57, § 42, p. 211; Laws 1937, c. 107, § 1, p. 367; C.S.Supp.,1941, § 48-152; Laws 1943, c. 113, § 3, p. 398; R.S.1943, § 48-151; Laws 1947, c. 174, § 2, p. 560; Laws 1963, c. 284, § 3, p. 852; Laws 1963, c. 287, § 1, p. 862; Laws 1986, LB 811, § 78; Laws 1993, LB 757, § 15; Laws 1998, LB 1010, § 4; Laws 1999, LB 216, § 12; Laws 2000, LB 1119, § 40; Laws 2010, LB579, § 18; Laws 2010, LB780, § 2.

Annotations

1. Accident

2. Injury and personal injuries

3. Arising out of and in course of employment

4. Reckless indifference to safety

5. Willful negligence

6. Miscellaneous

1. Accident

An employee's death from asphyxiation, after entering a grain bin at his workplace in violation of safety regulations and then becoming engulfed in grain, was the result of an "accident" covered by the exclusive jurisdiction of the Nebraska Workers' Compensation Act, even though the employer willfully violated the Occupational Safety and Health Administration regulations. Estate of Teague v. Crossroads Co-op Assn., 286 Neb. 1, 834 N.W.2d 236 (2013).

A worker's noise-induced hearing loss is a condition resulting from the cumulative effects of work-related trauma, tested under the statutory definition of accident. Risor v. Nebraska Boiler, 277 Neb. 679, 765 N.W.2d 170 (2009).

An injured worker must satisfy three elements to prove an injury is the result of an accident: (1) The injury must be unexpected or unforeseen, (2) the accident must happen suddenly and violently, and (3) the accident must produce at the time objective symptoms of injury. Risor v. Nebraska Boiler, 277 Neb. 679, 765 N.W.2d 170 (2009).

The compensability of a condition resulting from the cumulative effects of work-related trauma is tested under the statutory definition of accident. Risor v. Nebraska Boiler, 277 Neb. 679, 765 N.W.2d 170 (2009).

The "suddenly and violently" component of an "accident" does not mean instantaneously and with force; instead, the element is satisfied if the injury occurs at an identifiable point in time, requiring the employee to discontinue employment and seek medical treatment. Risor v. Nebraska Boiler, 277 Neb. 679, 765 N.W.2d 170 (2009).

An injury caused by a mental stimulus does not meet the requirement that a compensable accidental injury involve violence to the physical structure of the body. Zach v. Nebraska State Patrol, 273 Neb. 1, 727 N.W.2d 206 (2007).

The compensability of a condition resulting from the cumulative effects of work-related trauma is to be tested under the statutory definition of accident. For purposes of this section, "suddenly and violently" does not mean instantaneously and with force, but, rather, the element is satisfied if the injury occurs at an identifiable point in time requiring the employee to discontinue employment and seek medical treatment. For purposes of this section, the time of an accident is sufficiently definite, for purposes of proving that an accident happened "suddenly and violently," if either the cause is reasonably limited in time or the result materializes at an identifiable point. Dawes v. Wittrock Sandblasting & Painting, 266 Neb. 526, 667 N.W.2d 167 (2003).

While cumulative effects of repeated work-related trauma have characteristics of both accidental injury and occupational disease, generally the compensability of such a condition is tested under the statutory definition of accident. The "unexpected or unforeseen" requirement of subsection (2) of this section is satisfied if either the cause was of an accidental character or the effect was unexpected or unforeseen. "Suddenly and violently" does not mean instantaneously and with force, but, rather, the element is satisfied if the injury occurs at an identifiable point in time requiring the employee to discontinue employment and seek medical treatment. Where employee returned to work, but did not resume the duties which led to his injury, but instead was transferred to a position requiring less strenuous activity, evidence was sufficient to support finding that injury occurred "suddenly and violently". The third statutory requirement under subsection (2) of this section, that the accident produced objective symptoms, is satisfied if the symptoms manifest themselves according to the natural course of such things without any independent intervening cause. In a workers' compensation case, the plaintiff must establish by a preponderance of the evidence that the injury for which an award is sought arose out of and in the course of employment. If the nature and effect of a claimant's injury are not plainly apparent, then the claimant must provide expert medical testimony showing a causal connection between the injury and the claimed disability. Although expert medical testimony need not be couched in the magic words "reasonable medical certainty" or "reasonable probability", it must be sufficient as examined in its entirety to establish the crucial causal link between the plaintiff's injuries and the accident occurring in the course and scope of the worker's employment. Owen v. American Hydraulics, Inc., 258 Neb. 881, 606 N.W.2d 470 (2000).

The compensability of a condition resulting from the cumulative effects of repeated work-related trauma is to be tested under the statutory definition of accident. Frank v. A & L Insulation, 256 Neb. 898, 594 N.W.2d 586 (1999).

Pursuant to subsection (2) of this section, negligent medical treatment at an employer's first-aid medical facility, by a trained and qualified professional upon a coemployee, may constitute an "accident" as defined in the Nebraska Workers' Compensation Act upon proof and a finding of such facts. Winn v. Geo. A. Hormel & Co., 252 Neb. 29, 560 N.W.2d 143 (1997).

An accident is defined as "an unexpected or unforeseen injury happening suddenly and violently, with or without human fault, and producing at the time objective symptoms of an injury." The "unexpected or unforeseen" requirement of subsection (2) of this section is satisfied if either the cause was of an accidental character or the effect was unexpected or unforeseen. Schlup v. Auburn Needleworks, 239 Neb. 854, 479 N.W.2d 490 (1992).

In order to have been the result of an "accident" as defined by this section, an injury must have been unexpected or unforeseen, have occurred suddenly and violently, and have produced objective symptoms. The objective symptoms required by subsection (2) of this section exist either where the nature and effect of the injury are plainly apparent or where there is expert testimony showing a causal connection between the injury and the claimed disability. Catlin v. Prairie Marketing, 239 Neb. 363, 476 N.W.2d 675 (1991).

The cumulative effects of repeated work-related trauma which do not, at an identifiable moment, produce objective symptoms requiring, within a reasonably limited period of time, medical attention and the interruption or discontinuance of employment are not the product of an accidental injury within the purview of subsection (2) of this section. The compensability of a condition resulting from the cumulative effects of repeated work-related trauma is to be tested under the definition of an accident contained in subsection (2) of this section. Vencil v. Valmont, 239 Neb. 31, 473 N.W.2d 409 (1991).

The cumulative effects of repeated work-related trauma which do not at an identifiable moment produce objective symptoms requiring, within a reasonably limited period of time, medical attention and the interruption or discontinuance of employment are not the product of an accidental injury within the purview of subsection (2) of this section. Maxson v. Michael Todd & Co., 238 Neb. 209, 469 N.W.2d 542 (1991).

Where an injury is the result of mental stimulus, in order for it to be compensable under the Nebraska workers' compensation law, the injured party must prove an unexpected or unforeseen event, happening suddenly and violently and producing at the time objective symptoms of injury and violence to the physical structure of the body. Sorensen v. City of Omaha, 230 Neb. 286, 430 N.W.2d 696 (1988).

Onset of pronator teres syndrome and carpal tunnel syndrome was an accident within meaning of statute and sufficient evidence was produced to prove causation. Masters v. Iowa Beef Processors, 220 Neb. 835, 374 N.W.2d 21 (1985).

The "unexpected or unforeseen" requirement is satisfied if either the cause was of an accidental character or the effect was unexpected or unforeseen. The "suddenly and violently" element does not mean instantaneously and with force, but instead means at an identifiable point in time requiring the employee to discontinue employment and seek medical treatment. McLaughlin v. Self-Insurance Servs., 219 Neb. 260, 361 N.W.2d 585 (1985).

The requirement that an accident occur suddenly and violently does not mean that it occur instantaneously but is satisfied if the injury occurs at some identifiable point in time, requiring the employee to discontinue employment and seek medical treatment. Trauma to the body may be caused by action other than direct blows and it may occur inside the body. In proving that an injury was caused by accident, an employee must prove three separate elements. Sandel v. Packaging Co. of America, 211 Neb. 149, 317 N.W.2d 910 (1982).

The accident requirement of the act is satisfied if the cause of the injury was of accidental character or the effect was unexpected or unforeseen, and happened suddenly and violently; and, furthermore, it is no longer necessary that the injury be caused by a single traumatic event, but the exertion in the employment must contribute in some material and substantial degree to cause the injury. The term "arising out of" describes the accident and its origin, cause, and character, i.e., whether it resulted from the risks arising within the scope or sphere of the employee's job, while the term "in the course of" refers to the time, place, and circumstances surrounding the accident, and these two phrases are conjunctive and the claimant must establish by a preponderance of the evidence that both conditions exist. Union Packing Co. v. Klauschie, 210 Neb. 331, 314 N.W.2d 25 (1982).

The fact that one may experience pain during employment does not in and of itself prove that the employee is disabled as a result of an accident arising out of and in the course of one's employment. Therefore, where the nature and effect of one's injury is not plainly apparent, it is a subjective condition requiring expert testimony, and an award based solely on the injured employee's testimony, absent objective evidence that an accident within the meaning of the act has occurred, cannot stand. Mack v. Dale Electronics, Inc., 209 Neb. 367, 307 N.W.2d 814 (1981).

Where the claimant's condition satisfied the requirements both of an injury and of an occupational disease, the workmen's compensation court's finding that an accident occurred was affirmed. Crosby v. American Stores, 207 Neb. 251, 298 N.W.2d 157 (1980).

By accident requirement satisfied either if cause was of an accidental character, or if effect was unexpected or unforeseen and happened suddenly and violently. Brokaw v. Robinson, 183 Neb. 760, 164 N.W.2d 461 (1969).

Fall from a ladder constituted an accident arising out of and in the course of employment. Wheeler v. Northwestern Metal Co., 175 Neb. 841, 124 N.W.2d 377 (1963).

Mere exertion incident to occupation does not of itself constitute an accident. Pruitt v. McMaken Transp. Co., 175 Neb. 477, 122 N.W.2d 236 (1963).

Mere exertion, which is no greater than that ordinarily incident to the employment, does not of itself constitute an accident. Green v. Benson Transfer Co., 173 Neb. 226, 113 N.W.2d 61 (1962).

Injury sustained by employee through slipping on ice on public sidewalk was not compensable. Acton v. Wymore School Dist. No. 114, 172 Neb. 609, 111 N.W.2d 368 (1961).

Ordinary exertion, combined with preexisting disease, is not compensable. Hladky v. Omaha Body & Equipment Co., 172 Neb. 197, 109 N.W.2d 111 (1961).

To sustain an award under the Workmen's Compensation Act, there must be shown a causal connection between an accident suffered by claimant and his disability. Tilghman v. Mills, 169 Neb. 665, 100 N.W.2d 739 (1960); Feagins v. Carver, 162 Neb. 116, 75 N.W.2d 379 (1956).

To constitute accident, there must be an unexpected and unforeseen event that happened suddenly and violently. Schanhols v. Scottsbluff Bean & Elevator Co., 168 Neb. 626, 97 N.W.2d 220 (1959).

Symptoms of pain and anguish may constitute objective symptoms within requirements of act. Pittenger v. Safeway Stores, Inc., 166 Neb. 858, 91 N.W.2d 31 (1958); Knudsen v. McNeely, 159 Neb. 227, 66 N.W.2d 412 (1954); Anderson v. Cowger, 158 Neb. 772, 65 N.W.2d 51 (1954).

Evidence was insufficient to show that death from coronary thrombosis was result of accident. Eschenbrenner v. Employers Mutual Casualty Co., 165 Neb. 32, 84 N.W.2d 169 (1957).

Mere exertion which is no greater than that ordinarily incident to the employment cannot of itself constitute an accident. Jones v. Yankee Hill Brick Mfg. Co., 161 Neb. 404, 73 N.W.2d 394 (1955).

Injury sustained while lifting gas range was accident. Gilbert v. Metropolitan Utilities Dist., 156 Neb. 750, 57 N.W.2d 770 (1953).

Accident requires objective symptoms of an injury. Hahl v. Heyne, 156 Neb. 599, 57 N.W.2d 137 (1953).

Burden rests upon claimant to prove injury was caused by an accident as defined in this section. Tucker v. Paxton & Gallagher Co., 153 Neb. 1, 43 N.W.2d 522 (1950).

In absence of objective symptoms of an injury, mere exertion ordinarily incident to employment does not of itself constitute an accidental injury. Muff v. Brainard, 150 Neb. 650, 35 N.W.2d 597 (1949).

An accident within this act is an unexpected or unforeseen event happening suddenly and violently, with or without human fault, and producing at the time objective symptoms of an injury. Schwabauer v. State, 147 Neb. 620, 24 N.W.2d 431 (1946).

Where objective symptoms of a ruptured gall bladder were not present, recovery could not be had upon theory that accident aggravated chronic gall bladder disease. Hassmann v. City of Bloomfield, 146 Neb. 608, 20 N.W.2d 592 (1945).

Compensation may be allowed for neurosis if it is a proximate result of injury and results in disability. Lee v. Lincoln Cleaning & Dye Works, 145 Neb. 124, 15 N.W.2d 330 (1944).

Evidence that employee suffering from arteriosclerosis felt sharp pain in eye while moving a bench, and lost sight shortly thereafter, did not prove a compensable accidental injury. Roccaforte v. State Furniture Co., 142 Neb. 768, 7 N.W.2d 656 (1943).

Where employee was cranking a car, which was ordinarily incident to his employment, and no unforeseen or unexpected event happened suddenly or violently, a compensable accidental injury did not occur even though the exertion, combined with preexisting disease, produced disability. Rose v. City of Fairmont, 140 Neb. 550, 300 N.W. 574 (1941).

The word accident as used in the statute shall, unless a different meaning is clearly indicated from context, be construed to mean an unexpected or unforeseen event happening suddenly or violently with or without human fault and producing at the time objective symptoms of the injury. Shamp v. Landy Clark Co., 134 Neb. 73, 277 N.W. 802 (1938).

Trivial accidents which did not aggravate or affect progress of an occupational disease cannot be made basis for recovery. Svoboda v. Mandler, 133 Neb. 433, 275 N.W. 599 (1937).

Slipping and falling into river, from which employee is alleged to have caught cold, is not an accident within definition of the statute. Lang v. Gage County Electric Co., 133 Neb. 388, 275 N.W. 462 (1937).

Being shot by a highwayman while traveling in course of employment is an accident within meaning of the statute. Goodwin v. Omaha Printing Co., 131 Neb. 212, 267 N.W. 419 (1936).

Snow blindness is an accident within meaning of compensation law. Hayes v. McMullen, 128 Neb. 432, 259 N.W. 165 (1935).

Definition of accident is quoted from this section in opinion relating to case where injury and preexisting disease combined to produce disability. Skelly Oil Co. v. Gaugenbaugh, 119 Neb. 698, 230 N.W. 688 (1930).

Death of employee was the result of accident. Kanscheit v. Garrett Laundry Co., 101 Neb. 702, 164 N.W. 708 (1917); Young v. Western Furniture & Mfg. Co., 101 Neb. 696, 164 N.W. 712 (1917).

Injury was result of accident. Manning v. Pomerene, 101 Neb. 127, 162 N.W. 492 (1917).

2. Injury and personal injuries

Under the definition of occupational disease, the unique condition of the employment must result in a hazard which distinguishes it in character from employment generally. Risor v. Nebraska Boiler, 277 Neb. 679, 765 N.W.2d 170 (2009).

A compensable injury caused by an occupational disease must involve some physical stimulus constituting violence to the physical structure of the body. Zach v. Nebraska State Patrol, 273 Neb. 1, 727 N.W.2d 206 (2007).

A worker becomes disabled, and thus injured, from an occupational disease at the point in time when a permanent medical impairment or medically assessed work restrictions result in labor market access loss. Ludwick v. TriWest Healthcare Alliance, 267 Neb. 887, 678 N.W.2d 517 (2004).

An exertion- or stress-caused heart injury to which the claimant's preexisting heart disease or condition contributes is compensable only if the claimant shows that the exertion or stress encountered during employment is greater than that experienced during the ordinary nonemployment life of the employee or any other person. While legal cause is established by satisfying the "stress greater than nonemployment life" test, a claimant must still demonstrate medical causation. If it is claimed that an injury was the result of stress or exertion in the employment, medical causation is established by a showing by the preponderance of the evidence that the employment contributed in some material and substantial degree to cause the injury. Leitz v. Roberts Dairy, 237 Neb. 235, 465 N.W.2d 601 (1991).

The terms "injury" and "personal injuries" do not include disability or death due to natural causes but occurring while the employee is at work, nor an injury, disability, or death that is the result of a natural progression of any preexisting condition. Chrisman v. Greyhound Bus Lines, Inc., 208 Neb. 6, 301 N.W.2d 595 (1981).

Personal injury does not include disability or death from natural causes or the result of a natural progression of a preexisting condition. Hyatt v. Kay Windsor, Inc., 198 Neb. 580, 254 N.W.2d 92 (1977).

Plaintiff did not sustain burden of proof that perforated ulcer was in fact caused by the employment. Cook v. Christensen Sand & Gravel Co., 183 Neb. 602, 163 N.W.2d 105 (1968).

Where plaintiff failed to show objective symptoms of an injury, compensation was properly denied. Skalak v. County of Seward, 174 Neb. 659, 119 N.W.2d 43 (1963).

Disability caused by combination of injury and preexisting disease is compensable. Hagler v. Jensen, 173 Neb. 699, 114 N.W.2d 755 (1962).

Term injury includes disablement from occupational disease. Hauff v. Kimball, 163 Neb. 55, 77 N.W.2d 683 (1956).

Hernia resulting from ordinary lifting was not compensable. Foster v. Atlas Lumber Co., 155 Neb. 129, 50 N.W.2d 637 (1952).

Where there is a lack of evidence of violence to the physical structure of the body, an award of compensation will not be sustained. Mook v. City of Lincoln, 143 Neb. 254, 9 N.W.2d 184 (1943).

Plaintiff failed to establish that inhaling of sewer gas was cause of pneumonia which afflicted deceased. Kaffenberger v. Iverson, 142 Neb. 257, 5 N.W.2d 687 (1942).

Claim under Workmen's Compensation Act is not sustainable unless accomplished by violence to the physical structure of the body of the claimant. Bekelski v. Neal Co., 141 Neb. 657, 4 N.W.2d 741 (1942).

Where a public employee of a city suffered serious accidental injury to back of his head which lowered his resistance to infection so that a few days thereafter he died of lobar pneumonia, his death followed the accident with reasonable certainty. Hendershot v. City of Lincoln, 136 Neb. 606, 286 N.W. 909 (1936).

The disease of echinococcosis is not an occupational disease incident to the employment of a beef washer, and question of whether it could be incurred as the result of accident was not determined. Russo v. Swift & Co., 136 Neb. 406, 286 N.W. 291 (1939).

Evidence failed to establish that claimant contracted eczema while telephone operator from use of unsterilized headset. McCall v. Hamilton County Farmers Telephone Assn., 135 Neb. 70, 280 N.W. 254 (1938).

Term injury does not include occupational or infectious disease contracted during course of employment. Park v. School District No. 27, Richardson Cty., 127 Neb. 767, 257 N.W. 219 (1934).

The terms injury and personal injuries mean violence to the physical structure of the body and such disease or infection as may naturally result therefrom. Greseck v. Farmers Union Elevator Co., 123 Neb. 755, 243 N.W. 898 (1932).

Under the Nebraska Workers' Compensation Act, an injury has occurred as the result of an occupational disease when violence has been done to the physical structure of the body and a disability has resulted. Moyers v. International Paper Co., 25 Neb. App. 282, 905 N.W.2d 87 (2017).

3. Arising out of and in course of employment

Under subsection (2) of this section, to sustain an award in a workers' compensation case involving a preexisting disease or condition, a claimant must prove that the injury which is the basis for the claim arose out of and in the course of employment and that the preexisting disease or condition combined with the work-related injury to produce disability, or that the work-related injury aggravated, accelerated, or inflamed the preexisting condition. Tarvin v. Mutual of Omaha Ins. Co., 238 Neb. 851, 472 N.W.2d 727 (1991).

Under subsection (2) of this section, an enhanced degree of proof, establishing a cause-and-effect relationship between a work-related injury and consequent disability, is not among claimant's burdens for obtaining an award of compensation. Clobes v. Nebraska Boxed Beef, 238 Neb. 612, 472 N.W.2d 893 (1991).

There is no presumption from the mere occurrence of an unexpected or unforeseen injury that the injury was in fact caused by employment. Gilbert v. Sioux City Foundry, 228 Neb. 379, 422 N.W.2d 367 (1988).

Under subsection (4) of this section, a disability that is due to natural causes is not compensable under the workers' compensation law. This is true even though the disability occurs while the employee is at work. But, if there is a preexisting occupational disease, then the employer is liable, but only for the degree of aggravation of the preexisting occupational disease. Gilbert v. Sioux City Foundry, 228 Neb. 379, 422 N.W.2d 367 (1988).

Evidence indicating that carpal tunnel syndrome was manifested according to the natural course of such matters and that it was caused by the repeated squeezing of a crimping device required by the employment was sufficient to support the award made by the compensation court. Erving v. Tri-Con Industries, 210 Neb. 339, 314 N.W.2d 253 (1982).

The compensation act extends to and covers workmen only while engaged in, on, or about the premises where their duties are being performed, or where their service requires their presence as a part of such service at the time of injury, and during the hours of service of such workmen. Rowan v. University of Nebraska, 207 Neb. 588, 299 N.W.2d 774 (1980).

Plaintiff's husband died of a heart attack while working but death did not arise out of the employment and, therefore, the Workmen's Compensation Court was correct in refusing compensation. Sellens v. Allen Products Co., Inc., 206 Neb. 506, 293 N.W.2d 415 (1980).

An employee who suffered back pain approximately one-half hour after doing heavy lifting suffered an injury arising out of and in the course of her employment and is entitled to workmen's compensation. Disability is defined in terms of employability and earning capacity rather than bodily function. Thus, one who is in constant pain, unable to lift anything, and whose condition is aggravated by prolonged sitting or standing may be totally disabled. Wolfe v. American Community Stores, 205 Neb. 763, 290 N.W.2d 195 (1980).

Proof of gradual development of neckache while at work did not meet requirement that claimant prove disability was an accident or that it was caused by his employment. Eliker v. D.H. Merritt & Sons, 195 Neb. 154, 237 N.W.2d 130 (1975).

An injury, to be the basis of a cause of action under the Workmen's Compensation Act, must be caused by an accident arising out of and in the course of the employment. Reis v. Douglas County Hospital, 193 Neb. 542, 227 N.W.2d 879 (1975).

Injury to plaintiff resulting from donation of blood to Red Cross did not arise out of nor in course of employment although employer gave employees time off without loss of pay to participate in program. Mauser v. Douglas & Lomason Co., 192 Neb. 421, 222 N.W.2d 119 (1974).

Under the Workmen's Compensation Act, recreational or social activities are within the course of employment when the employer derives substantial direct benefit from the activity beyond the intangible value of improvement in employee health and morale that is common to all kinds of recreation and social life. Adler v. Jerryco Motors, Inc., 187 Neb. 757, 193 N.W.2d 757 (1972).

Where conditions of employment environment accentuated natural hazard, which increased hazard contributed to injury, the injury arose out of the employment and is compensable. Ingram v. Bradley, 183 Neb. 692, 163 N.W.2d 875 (1969).

The term arising out of the employment covers all risks of accident from causative acts done or occurring within the scope or sphere of the employment. Chrisman v. Farmers Coop Assn., 179 Neb. 891, 140 N.W.2d 809 (1966).

Employee killed at railroad crossing was not shown to be acting in the course of his employment. Oline v. Nebraska Nat. Gas Co., 177 Neb. 851, 131 N.W.2d 410 (1964).

Where a salesman was injured at a time when and a place where his services were not required to be performed, he was not within protection of Workmen's Compensation Act. McDuffee v. Seiler Surgical Co., Inc., 172 Neb. 325, 109 N.W.2d 384 (1961).

An occupational disease must be due to causes and conditions which are characteristic of and peculiar to the employment. Brown v. Armour & Co., 168 Neb. 835, 97 N.W.2d 342 (1959).

Where employee was injured at entrance to place of employment, injury arose in course of employment. Fidelity & Casualty Co. v. Kennard, 162 Neb. 220, 75 N.W.2d 553 (1956).

Burden rests on claimant to show personal injury arising out of and in the course of employment. Chiles v. Cudahy Packing Co., 158 Neb. 713, 64 N.W.2d 459 (1954).

Where objective symptom of an injury was not shown, death from coronary heart disease was not compensable. Ruderman v. Forman Bros., 157 Neb. 605, 60 N.W.2d 658 (1953).

Employees are not protected while absent from place of employment for lunch. Berry v. School District, 154 Neb. 787, 49 N.W.2d 617 (1951).

Volunteer fireman who slipped in kitchen of his own home and sustained injury was not entitled to compensation, since fall did not result from a risk connected with the employment. Henry v. Village of Coleridge, 147 Neb. 686, 24 N.W.2d 922 (1946).

Where employee, at time of accident, was not on premises of employer or where service for employer required him to be, and accident did not occur during the hours of service, recovery could not be had under act. Nelms v. Mahoney, 147 Neb. 626, 24 N.W.2d 558 (1946).

If an employee suffers an accident and is injured while going to or from work, from or to his home, the accident does not arise out of and in the course of his employment. Lincoln Traction Company v. Reason, 143 Neb. 512, 10 N.W.2d 344 (1943).

Injury is not compensable where police officer, after reporting off duty and having no special assignment and while on his way home from work, was struck by automobile. Baughman v. City of Omaha, 142 Neb. 663, 7 N.W.2d 365 (1943).

An injury to an employee on way home after work does not arise out of or in the course of employment, whether the employee works regular hours or is subject to call by the employer. Richtarik v. Bors, 142 Neb. 226, 5 N.W.2d 199 (1942).

Workmen's Compensation Act extends to and covers only workmen while working on premises where their duties are to be performed, or where their service requires their presence at the time of the injury. Luke v. St. Paul Mercury Indemnity Co., 140 Neb. 557, 300 N.W. 577 (1941).

Workmen who, on their own initiative, leave their line of duty for purposes of their own are not protected by Workmen's Compensation Act. Burlage v. Lefebure Corporation, 137 Neb. 671, 291 N.W. 100 (1940).

Where an employee breaks the continuity of his employment and is injured before he brings himself back into the line of his employment, the injury does not arise out of and in the course of his employment. Bell v. Denton, 136 Neb. 23, 284 N.W. 751 (1939).

If employee is injured while using a dangerous instrument without permission of its owner, for a purpose for which it was not designed, outside of place of his employment, the owner is not liable therefore, unless instrument was used with the acquiescence, or at least the knowledge, of the employer. Albers v. Kipp, 130 Neb. 46, 263 N.W. 593 (1935).

An injury caused by slipping on ice on the public sidewalk in front of employer's store at noon hour, when employee was leaving for lunch and for a personal errand, does not arise out of and in course of employment. De Porte v. State Furniture Co., 129 Neb. 282, 261 N.W. 419 (1935).

Where employee leaves place where his duties are to be performed to engage in personal objective not incidental to employment, the relation of employer and employee ceases until he returns to place where he is required to perform services. McNaught v. Standard Oil Co., 128 Neb. 517, 259 N.W. 517 (1935).

Where employee abandons his job and takes another and while going to get his tools from old job is killed, recovery cannot be had from former employer where he was under no obligation in connection with return of tools. Hammond v. Keim, 128 Neb. 310, 258 N.W. 478 (1935).

Compensable injury can only arise while workman is engaged in or about premises where his duties are being performed, or where they require his presence. Kirkpatrick v. Chocolate Sales Corporation, 127 Neb. 604, 256 N.W. 89 (1934); Hall v. Austin Western Road Machinery Co., 125 Neb. 390, 250 N.W. 258 (1933).

Where employee was killed accidentally while engaged in aiding fellow workman who was accomplishing private purpose, injury did not arise out of employment. Bergantzel v. Union Transfer Co., 124 Neb. 200, 245 N.W. 593 (1932).

Injury to employee while going to work is not compensable hereunder. Siedlik v. Swift & Co., 122 Neb. 99, 239 N.W. 466 (1931).

Where truck driver was injured when repairing truck during afternoon when not reporting to work, he was not entitled to compensation since accident did not arise in course of his employment. Pappas v. Yant Construction Co., 121 Neb. 766, 238 N.W. 531 (1931).

Where workman engaged in dragging roads for county was injured by horse while caring for it during noon hour, accident arose out of and in course of employment and was compensable hereunder. Speas v. Boone County, 119 Neb. 58, 227 N.W. 87 (1929).

Where the actual fracture of an employee's hip occurred outside the scope of employment but the final displacement of the fracture occurred on her employer's premises, there was no injury that "arose out of" employment and no evidence that an employment risk caused the hip fracture to displace. Carter v. Becton-Dickinson, 8 Neb. App. 900, 603 N.W.2d 469 (1999).

4. Reckless indifference to safety

Reckless indifference to safety as used in statute means more than ordinary want of care, and implies a rash and reckless spirit approximating wantonness in a degree, and a willingness to take a chance. Richards v. Abts, 135 Neb. 347, 281 N.W. 611 (1938).

Reckless indifference to safety means more than want of ordinary care, implies rash and careless spirit, approximating but not necessarily wantonness. Farmers Grain & Supply Co. v. Blanchard, 104 Neb. 637, 178 N.W. 257 (1920).

Plaintiff employee's conduct did not evidence reckless indifference to safety or willful negligence. Brown v. York Water Co., 104 Neb. 516, 177 N.W. 833 (1920).

5. Willful negligence

Absent extraordinary circumstances, such as when the evidence shows that the suicide was nonvoluntary, suicide constitutes willful negligence under this section. Eddy v. Builders Supply Co., 304 Neb. 804, 937 N.W.2d 198 (2020).

The fact that an employee knew he was committing suicide will not, in all cases, constitute willful negligence. Friedeman v. State, 215 Neb. 413, 339 N.W.2d 67 (1983).

Willful negligence implies deliberate conduct evidencing reckless indifference to safety. Krajeski v. Beem, 157 Neb. 586, 60 N.W.2d 651 (1953).

Participant in fight was not willfully negligent. Myszkowski v. Wilson & Co., Inc., 155 Neb. 714, 53 N.W.2d 203 (1952).

Willful negligence means deliberate act and implies conduct evidencing reckless indifference to safety. Schroeder v. Sharp, 153 Neb. 73, 43 N.W.2d 572 (1950).

Fact that injured workman sprayed water on burning oil transport did not show deliberate act constituting willful negligence. Clark v. Village of Hemingford, 147 Neb. 1044, 26 N.W.2d 15 (1947).

Whether plaintiff employee's conduct evidenced willful negligence, while probable, was not decided because accident was not in course of employment. Feda v. Cudahy Packing Co., 102 Neb. 110, 166 N.W. 190 (1918).

A "deliberate act" as referenced in subdivision (7) of this section refers to an employee's deliberate injury of himself or herself. Spaulding v. Alliant Foodservice, 13 Neb. App. 99, 689 N.W.2d 593 (2004).

Pursuant to subdivision (7) of this section, an employee's violation of an employer's safety rule must be intentional in order for that employee to be held willfully negligent. Spaulding v. Alliant Foodservice, 13 Neb. App. 99, 689 N.W.2d 593 (2004).

6. Miscellaneous

A job transfer can constitute a discontinuance of work that establishes the date of injury resulting from an accident under the Nebraska Workers' Compensation Act. Risor v. Nebraska Boiler, 277 Neb. 679, 765 N.W.2d 170 (2009).

An employee establishes an identifiable point in time when a repetitive trauma injury occurs if the employee stops work and seeks medical treatment. The law does not establish a minimum time that an employee must discontinue work for medical treatment to be eligible for benefits. The length of time is not the controlling factor. Risor v. Nebraska Boiler, 277 Neb. 679, 765 N.W.2d 170 (2009).

Pursuant to subsection (2) of this section, the law does not establish a minimum amount of time which must be missed from work for medical treatment in order for an employee to be eligible for workers' compensation benefits. The law requires only that the employee stop work and seek medical treatment. Vonderschmidt v. Sur-Gro and Tri-State Ins. Co. of Minnesota, 262 Neb. 551, 635 N.W.2d 405 (2001).

The terms "trade," "occupation," "process," or "employment" used in subsection (3) of this section refer not to the specific employer of the injured employee, but, rather, to employers as a whole in a particular occupation. Berggren v. Grand Island Accessories, 249 Neb. 789, 545 N.W.2d 727 (1996).

A disease aggravated by conditions characteristic of and peculiar to a particular employment is compensable. A preexisting disease and an aggravation of that disease may combine to produce a compensable injury. The preexisting disease need not be occupational. Miller v. Goodyear Tire & Rubber Co., 239 Neb. 1014, 480 N.W.2d 162 (1992).

Under subsection (4) of this section, an employee may recover for a new injury or aggravation of an injury resulting from medical or surgical treatment if an intervening independent cause does not break the chain of causation between the employee's original injury and the new or aggravated injury. Roan Eagle v. State, 237 Neb. 961, 468 N.W.2d 382 (1991).

This court has expressly disapproved of language in previous opinions which imposed an enhanced degree of proof by an employee with a preexisting disability or condition who is prosecuting a claim under the Nebraska Workers' Compensation Act. For an award based on disability, a claimant need only establish by a preponderance of the evidence that the employment proximately caused an injury which resulted in compensable disability. Gray v. Fuel Economy Contracting Co., 236 Neb. 937, 464 N.W.2d 366 (1991).

Pursuant to subsection (2) of this section, a claimant is entitled to an award for a work-related injury and disability if the claimant shows, by a preponderance of the evidence, that the claimant sustained an injury and disability proximately caused by an accident which arose out of and in the course of the claimant's employment, even though a preexisting disability or condition has combined with the present work-related injury to produce the disability; there is no enhanced degree of proof required for claimants in cases where preexisting conditions combined with a work-related injury to produce a disability. Heiliger v. Walters & Heiliger Electric, Inc., 236 Neb. 459, 461 N.W.2d 565 (1990).

Under subdivision (2) of this section, medical expert testimony is required to show that a work-related dislocated shoulder combined with a preexisting recurrent shoulder problem to cause a plaintiff's need for surgery to correct the preexisting condition. Kingslan v. Jensen Tire Co., 227 Neb. 294, 417 N.W.2d 164 (1987).

While the act of suicide may be an independent intervening cause in some cases, it is certainly not so in those cases where the uncontrovertible evidence shows that, without the injury, there would have been no suicide; that the suicide was merely an act intervening between the injury and the death and part of an unbroken chain of events from the injury to the death. Friedeman v. State, 215 Neb. 413, 339 N.W.2d 67 (1983).

Peritoneal mesothelioma is a compensable occupational disease within the meaning of this section. Osteen v. A.C. and S., Inc., 209 Neb. 282, 307 N.W.2d 514 (1981).

The requirement that objective symptoms be produced "at the time" of the accident is satisfied if they appear in natural course without any intervening cause, and need not be observed by anyone but claimant. Salinas v. Cyprus Industrial Minerals Co., 197 Neb. 198, 247 N.W.2d 451 (1976).

The burden of proving intoxication as a defense is on the employer. Johnson v. Hahn Bros. Constr., Inc., 188 Neb. 252, 196 N.W.2d 109 (1972).

A workmen's compensation claimant with atherosclerosis, which is a personal risk, has the burden of showing, unaided by presumptions, that an employment risk greater than that attributable to ordinary nonemployment life was a cause of his injury. Conn v. ITL, Inc., 187 Neb. 112, 187 N.W.2d 641 (1971).

Without evidence as to the cause of death, there is no presumption that the death arose out of and in the course of employment. Hannon v. J. L. Brandeis & Sons, Inc., 186 Neb. 122, 181 N.W.2d 253 (1970).

Evidence sufficient to show that loss of eye was traceable to accidental injury. Yost v. City of Lincoln, 184 Neb. 263, 166 N.W.2d 595 (1969).

Effect of substituting injury for event in definition of accident discussed. Harmon v. City of Omaha, 183 Neb. 352, 160 N.W.2d 189 (1968).

Legislative change of definition of accident in this section from event to injury discussed. Williams v. Dobberstein, 182 Neb. 862, 157 N.W.2d 776 (1968).

An inference based solely on speculation or possibility will not sustain an award of compensation. Hardin v. Moorman Manuf. Co., 179 Neb. 869, 140 N.W.2d 820 (1966).

Objective symptoms of an injury are those which may be observed by others. Schoenrock v. School Dist. of Nebraska City, 179 Neb. 621, 139 N.W.2d 547 (1966).

An occupational disease is a disease which is due to causes and conditions characteristic and peculiar to the employment. Ritter v. Hawkeye-Security Ins. Co., 178 Neb. 792, 135 N.W.2d 470 (1965).

The aggravation of an employee's existing physical condition by an occupational hazard which is characteristic and peculiar to the employment is compensable. Riggs v. Gooch Milling & Elevator Co., 173 Neb. 70, 112 N.W.2d 531 (1961).

Workmen who leave their line of duty for purposes of their own are not protected. Seger v. Keating Implement Co., 157 Neb. 560, 60 N.W.2d 598 (1953); Simon v. Standard Oil Co., 150 Neb. 799, 36 N.W.2d 102 (1949).

When accident to eye results after week or more in diseased condition, injury occurred when diseased condition culminated. Johansen v. Union Stock Yards Co., 99 Neb. 328, 156 N.W. 511 (1916).

48-152. Nebraska Workers' Compensation Court; creation; jurisdiction; judges; selected or retained in office.

Recognizing that (1) industrial relations between employers and employees within the State of Nebraska are affected with a vital public interest, (2) an impartial and efficient administration of the Nebraska Workers' Compensation Act is essential to the prosperity and well-being of the state, and (3) suitable laws should be enacted for the establishing and for the preservation of such an administration of the Nebraska Workers' Compensation Act, there is hereby created, pursuant to the provisions of Article V, section 1, of the Nebraska Constitution, a court, consisting of judges, to be selected or retained in office in accordance with the provisions of Article V, section 21, of the Nebraska Constitution and to be known as the Nebraska Workers' Compensation Court, which court shall have authority to administer and enforce all of the provisions of the Nebraska Workers' Compensation Act, and any amendments thereof, except such as are committed to the courts of appellate jurisdiction or as otherwise provided by law.

Source:Laws 1935, c. 57, § 1, p. 188; C.S.Supp.,1941, § 48-162; R.S.1943, § 48-152; Laws 1949, c. 161, § 3, p. 412; Laws 1965, c. 280, § 1, p. 806; Laws 1967, c. 292, § 1, p. 797; Laws 1975, LB 187, § 9; Laws 1983, LB 18, § 2; Laws 1986, LB 811, § 79; Laws 1988, LB 868, § 1; Laws 2005, LB 13, § 13; Laws 2023, LB799, § 7.
Operative Date: June 1, 2023

Annotations

Wrongful discharge in relation to filing a workers' compensation claim does not fall under the compensation court's exclusive jurisdiction over accidents arising out of and in the course of employment. Bower v. Eaton Corp., 301 Neb. 311, 918 N.W.2d 249 (2018).

Under this section, the Workers' Compensation Court can resolve only disputes between employers and employees that arise from the provisions of the Nebraska Workers' Compensation Act; hence, because the act does not confer jurisdiction on the Workers' Compensation Court to hear personal injury suits against nonemployers, the Workers' Compensation Court does not have jurisdiction to resolve subrogation disputes between employers and employees stemming from funds recovered in a personal injury suit against a nonemployer. Miller v. M.F.S. York/Stormor, 257 Neb. 100, 595 N.W.2d 878 (1999).

The Nebraska Workers' Compensation Court may not acquire subject matter jurisdiction by estoppel. Anthony v. Pre-Fab Transit Co., 239 Neb. 404, 476 N.W.2d 559 (1991).

A workers' compensation award cannot be based on mere possibility or speculation, and if an inference favorable to the plaintiff can only be reached on the basis thereof, he or she cannot recover. Gray v. Fuel Economy Contracting Co., 236 Neb. 937, 464 N.W.2d 366 (1991).

The right of either party to refuse to accept the findings, order, award, or judgment of a compensation commissioner and to secure a rehearing or retrial before the compensation court is paramount to and exclusive of the right of appeal from such original decision to the district court. City of Lincoln v. Nebraska Workmen's Compensation Court, 133 Neb. 225, 274 N.W. 576 (1937).

Compensation court act is a complete and independent act in itself and, as such, modifies or amends existing statutes without violating constitutional provision relating to amendments. Scott v. Dohrse, 130 Neb. 847, 266 N.W. 709 (1936).

48-152.01. Nebraska Workers' Compensation Court; judges; judicial nominating commission; selection.

The members of the judicial nominating commission for the Nebraska Workers' Compensation Court shall be selected on a statewide basis as provided in section 24-803.

Source:Laws 1967, c. 292, § 4, p. 798; Laws 1973, LB 110, § 11; Laws 1986, LB 811, § 80.

48-153. Judges; number; term; continuance in office; prohibition on holding other office or pursuing other occupation.

(1) The Nebraska Workers' Compensation Court shall consist of six judges.

(2) The right of judges of the compensation court to continue in office shall be determined in the manner provided in sections 24-813 to 24-818, and the terms of office thereafter shall be for six years beginning on the first Thursday after the first Tuesday in January immediately following their retention at such election.

(3) In case of a vacancy occurring in the Nebraska Workers' Compensation Court, the same shall be filled in accordance with the provisions of Article V, section 21, of the Nebraska Constitution and the right of any judge so appointed to continue in office shall be determined in the manner provided in sections 24-813 to 24-818. All such judges shall hold office until their successors are appointed and qualified, or until death, voluntary resignation, or removal for cause.

(4) No judge of the compensation court shall, during his or her tenure in office as judge, hold any other office or position of profit, pursue any other business or avocation inconsistent or which interferes with his or her duties as such judge, or serve on or under any committee of any political party.

Source:Laws 1935, c. 57, § 2, p. 188; C.S.Supp.,1941, § 48-163; R.S.1943, § 48-153; Laws 1945, c. 113, § 1, p. 363; Laws 1963, c. 288, § 1, p. 865; Laws 1965, c. 280, § 2, p. 806; Laws 1967, c. 292, § 2, p. 798; Laws 1975, LB 187, § 10; Laws 1978, LB 649, § 4; Laws 1979, LB 237, § 5; Laws 1981, LB 111, § 4; Laws 1983, LB 18, § 3; Laws 1986, LB 811, § 81; Laws 1988, LB 868, § 2; Laws 2011, LB151, § 3; Laws 2023, LB799, § 8.
Operative Date: June 1, 2023

48-153.01. Nebraska Workers' Compensation Court judge; eligibility.

No person shall be eligible for the office of judge of the Nebraska Workers' Compensation Court unless he or she:

(1) Is at least thirty years of age;

(2) Is a citizen of the United States;

(3) Has been engaged in the practice of law in the State of Nebraska for at least five years, which may include prior service as a judge;

(4) Is currently admitted to practice before the Nebraska Supreme Court; and

(5) Is a resident of the State of Nebraska, and remains a resident of such state during the period of service.

This section shall not apply to a person serving as a judge of the Nebraska Workmen's Compensation Court on August 24, 1979, who continues to serve as a judge of the Nebraska Workmen's Compensation Court after August 24, 1979, and prior to July 17, 1986, and who continues to serve as a judge of the Nebraska Workers' Compensation Court on and after July 17, 1986.

Source:Laws 1979, LB 237, § 6; Laws 1986, LB 811, § 82.

48-154. Judges; removal; grounds.

Any judge of the Nebraska Workers' Compensation Court may be removed in the same manner and for the same causes as a judge of the district court may be removed.

Source:Laws 1935, c. 57, § 3, p. 189; C.S.Supp.,1941, § 48-164; R.S.1943, § 48-154; Laws 1967, c. 292, § 3, p. 798; Laws 1986, LB 811, § 83.

48-155. Presiding judge; how chosen; term; powers and duties; acting presiding judge; selection; powers.

The judges of the Nebraska Workers' Compensation Court shall, on July 1 of every odd-numbered year by a majority vote, select one of their number as presiding judge for the next two years, subject to approval of the Supreme Court. The presiding judge may designate one of the other judges to act as presiding judge in his or her stead whenever necessary during the disqualification, disability, or absence of the presiding judge. The presiding judge shall rule on all matters submitted to the compensation court except those arising in the course of hearings or as otherwise provided by law, assign or direct the assignment of the work of the compensation court to the several judges, clerk, and employees who support the judicial proceedings of the compensation court, preside at such meetings of the judges of the compensation court as may be necessary, and perform such other supervisory duties as the needs of the compensation court may require. During the disqualification, disability, or absence of the presiding judge, the acting presiding judge shall exercise all of the powers of the presiding judge.

Source:Laws 1935, c. 57, § 4, p. 189; C.S.Supp.,1941, § 48-165; R.S.1943, § 48-155; Laws 1945, c. 113, § 2, p. 364; Laws 1959, c. 225, § 1, p. 791; Laws 1969, c. 396, § 1, p. 1386; Laws 1986, LB 811, § 84; Laws 1992, LB 360, § 15; Laws 2000, LB 1221, § 10; Laws 2005, LB 13, § 14; Laws 2011, LB151, § 4.

48-155.01. Judges; appointment of acting judge; compensation.

(1) The Governor may, by single order, appoint a qualified person meeting the eligibility requirements of section 48-153.01 to serve as acting judge of the Nebraska Workers' Compensation Court. Such appointment shall be for a period of two years. In determining whether a person is qualified to serve as acting judge of the compensation court, the Governor shall consider the person's knowledge of the law, experience in the legal system, intellect, capacity for fairness, probity, temperament, and industry. The acting judge shall be subject to call by the presiding judge of the compensation court, who may assign the acting judge to temporary duty in order to (a) sit in the compensation court to relieve a congested docket of the court or to prevent the docket from becoming congested or (b) sit for a judge of the court who may be incapacitated or absent for any reason. An acting judge appointed and assigned pursuant to this section shall possess the same powers and be subject to the duties, restrictions, and liabilities as are prescribed by law respecting judges of the compensation court, except that an acting judge is not prohibited from practicing law as provided in section 7-111.

(2) The acting judge shall receive for each day of temporary duty an amount equal to one-twentieth of the monthly salary he or she would receive if he or she were a regularly appointed judge of the compensation court and shall be reimbursed for his or her expenses while on temporary duty at the same rate as provided in sections 81-1174 to 81-1177. Within fifteen days following completion of a temporary duty assignment, the acting judge shall submit to the presiding judge of the compensation court a request for payment or reimbursement for services rendered and expenses incurred during such temporary duty assignment. Upon receipt of such request, the presiding judge shall endorse on the request that the services were performed and expenses incurred pursuant to an assignment of the presiding judge of the compensation court and file such request with the proper authority for payment.

(3) The acting judge shall not pay into the Nebraska Retirement Fund for Judges nor be eligible for retirement benefits under the Judges Retirement Act.

Source:Laws 1959, c. 226, § 1, p. 792; Laws 1981, LB 204, § 79; Laws 1986, LB 811, § 85; Laws 1994, LB 833, § 27; Laws 2004, LB 1097, § 22; Laws 2005, LB 238, § 13.

Cross References

Judges Retirement Act, see section 24-701.01.

48-156. Judges; quorum; powers.

A majority of the judges of the Nebraska Workers' Compensation Court shall constitute a quorum to adopt rules and regulations, as provided in sections 48-163 and 48-164, to transact business, except when the statute or a rule adopted by the compensation court permits one judge thereof to act. The act or decision of a majority of the judges constituting such quorum shall in all such cases be deemed the act or decision of the compensation court, except that a majority vote of all the judges shall be required to adopt rules and regulations.

Source:Laws 1935, c. 57, § 5, p. 190; C.S.Supp.,1941, § 48-166; R.S.1943, § 48-156; Laws 1945, c. 113, § 3, p. 364; Laws 1965, c. 280, § 3, p. 807; Laws 1983, LB 18, § 4; Laws 1986, LB 811, § 86; Laws 1992, LB 360, § 16; Laws 1999, LB 216, § 13; Laws 2011, LB151, § 5.

Annotations

The plain and ordinary meaning of the quorum requirement of this section is that review of a disputed claim must be conducted by no less than three judges of the Workers' Compensation Court. Hagelstein v. Swift-Eckrich Div. of ConAgra, 257 Neb. 312, 597 N.W.2d 394 (1999).

Absent statutory disqualification, bias, or other cause shown, it is not prejudicial for the one judge of the Workmen's Compensation Court to serve as one of the judges of that court on rehearing. Schademann v. Casey, 194 Neb. 149, 231 N.W.2d 116 (1975).

A majority of the court as a quorum is empowered to transact business. City of Lincoln v. Nebraska Workmen's Compensation Court, 133 Neb. 225, 274 N.W. 576 (1937).

48-157. Clerk; administrator; appointment; duties.

(1) The presiding judge of the Nebraska Workers' Compensation Court shall appoint a clerk of the compensation court and such employees as the compensation court deems necessary to support the judicial proceedings of the compensation court, subject to approval of the compensation court. The clerk and employees supporting the judicial proceedings of the compensation court shall serve at the pleasure of the compensation court and shall perform such duties pertaining to the affairs of the court as the compensation court may prescribe or as otherwise provided by law.

(2) The presiding judge shall, subject to approval of the compensation court, appoint an administrator of the compensation court, who shall be the chief administrative officer of the compensation court. The administrator shall serve at the pleasure of the compensation court and shall perform such duties pertaining to affairs of the compensation court as the presiding judge may prescribe or as otherwise provided by law. The administrator shall appoint such other employees as the administrator deems necessary to carry out the duties of the administrator, subject to approval of the presiding judge. Employees appointed by the administrator shall serve at the pleasure of the administrator and shall perform such duties as the administrator may prescribe.

(3) The clerk shall, under the direction of the presiding judge, keep a full and true record of the judicial proceedings of the compensation court, record all pleadings and other documents filed with the compensation court, and issue all necessary notices and writs. No action shall be taken on any pleading or other document filed with the compensation court until the same has been recorded by the clerk. At the time a petition or motion is filed the clerk shall, on a rotating basis, assign one of the judges of the compensation court to hear the cause.

(4) The clerk may, under the direction of the presiding judge, make or cause to be made preservation duplicates of any record relating to the judicial proceedings of the compensation court. The original record may be destroyed, but only with the approval of the State Records Administrator pursuant to the Records Management Act. The reproduction of the preservation duplicates shall be admissible as evidence in any court of record in the State of Nebraska and, when duly certified, shall be evidence of equal credibility with the original record.

(5) Notices of hearings, notices of continuances, and summonses may be destroyed without preparing preservation duplicates after a record of their issuance has been made in the docket book. A reproduction of the page of the docket book or of the preservation duplicate of the page of the docket book showing such record and, in the case of summonses, showing issuance or return of the summons, when duly certified, shall be evidence of equal credibility with the original notice or summons. Correspondence, exhibits, and other documents relating to the judicial proceedings of the compensation court which the clerk deems to be irrelevant, unimportant, or superfluous may be destroyed without preparing preservation duplicates.

Source:Laws 1935, c. 57, § 7, p. 190; C.S.Supp.,1941, § 48-168; R.S.1943, § 48-157; Laws 1945, c. 113, § 4, p. 365; Laws 1945, c. 238, § 20, p. 713; Laws 1951, c. 311, § 2, p. 1066; Laws 1969, c. 388, § 4, p. 1363; Laws 1975, LB 194, § 1; Laws 1983, LB 263, § 1; Laws 1986, LB 811, § 87; Laws 1997, LB 128, § 3; Laws 2005, LB 13, § 15.

Cross References

Records Management Act, see section 84-1220.

Annotations

The office of clerk of the compensation court is provided for by this section, and the clerk is made the keeper of the records of the proceedings of the court. Dolner v. Peter Kiewit & Sons Co., 143 Neb. 384, 9 N.W.2d 483 (1943).

48-158. Judges; administrator; clerk; bond or insurance; oath.

Each of the judges of the Nebraska Workers' Compensation Court, the administrator of the compensation court, and the clerk of the compensation court shall, before entering upon or discharging any of the duties of his or her office, be bonded or insured as required by section 11-201 and such judges, administrator, and clerk shall, before entering upon the duties of their offices, take and subscribe the statutory oath of office.

Source:Laws 1935, c. 57, § 8, p. 191; C.S.Supp.,1941, § 48-169; R.S.1943, § 48-158; Laws 1978, LB 653, § 9; Laws 1986, LB 811, § 88; Laws 2004, LB 884, § 20; Laws 2005, LB 13, § 16.

48-159. Nebraska Workers' Compensation Court; judges; employees; salary; expenses.

(1) As soon as the same may be legally paid under the Constitution of Nebraska, each judge of the Nebraska Workers' Compensation Court shall receive an annual salary of ninety-two and one-half percent of the salary set for the Chief Justice and judges of the Supreme Court, payable in the same manner as the salaries of other state officers are paid. The administrator, the clerk, and all other employees of the compensation court shall receive such salaries as the compensation court shall determine, but not to exceed the amount of the appropriation made by the Legislature for such purpose. Such salaries shall be payable in the same manner as the salaries of other state employees are paid. The administrator, clerk, and other employees of the compensation court shall not receive any other salary or pay for their services from any other source.

(2) In addition to the salaries as provided by subsection (1) of this section, the judges of the Nebraska Workers' Compensation Court and the administrator, clerk, and other employees of the compensation court shall be entitled, while traveling on the business of the compensation court, to be reimbursed by the state for their necessary traveling expenses, consisting of transportation, subsistence, lodging, and such other items of expense as are necessary, to be paid as provided in sections 81-1174 to 81-1177.

Source:Laws 1935, c. 57, § 9, p. 191; C.S.Supp.,1941, § 48-170; R.S.1943, § 48-159; Laws 1945, c. 113, § 12, p. 368; Laws 1947, c. 174, § 3, p. 562; Laws 1951, c. 154, § 1, p. 624; Laws 1953, c. 164, § 1, p. 515; Laws 1957, c. 206, § 1, p. 725; Laws 1959, c. 227, § 1, p. 794; Laws 1963, c. 289, § 1, p. 866; Laws 1965, c. 281, § 1, p. 808; Laws 1967, c. 293, § 1, p. 799; Laws 1969, c. 397, § 1, p. 1387; Laws 1972, LB 1293, § 4; Laws 1974, LB 923, § 4; Laws 1976, LB 76, § 5; Laws 1978, LB 672, § 5; Laws 1979, LB 398, § 5; Laws 1981, LB 111, § 5; Laws 1981, LB 204, § 80; Laws 1986, LB 811, § 89; Laws 1997, LB 853, § 2; Laws 2005, LB 13, § 17.

48-159.01. Repealed. Laws 1953, c. 164, § 3.

48-159.02. Repealed. Laws 1957, c. 206, § 3.

48-159.03. Repealed. Laws 1959, c. 266, § 1.

48-159.04. Repealed. Laws 1963, c. 341, § 1.

48-159.05. Repealed. Laws 1965, c. 281, § 3.

48-159.06. Repealed. Laws 1969, c. 411, § 1.

48-159.07. Repealed. Laws 1986, LB 811, § 149.

48-159.08. Judges; salary increase; when effective.

Section 48-159 shall be so interpreted as to effectuate its general purpose, to provide, in the public interest, adequate compensation as therein provided for judges of the Nebraska Workers' Compensation Court and to give effect to such salary as soon as same may become operative under the Constitution of the State of Nebraska.

Source:Laws 1969, c. 397, § 2, p. 1388; Laws 1986, LB 811, § 90.

48-160. Compensation court; seal.

The Nebraska Workers' Compensation Court shall have a seal for the authentication of its orders, awards, judgments, summons, subpoenas, and other writs. The seal may be either an engraved or ink stamp seal, and shall bear the words Nebraska Workers' Compensation Court—Official Seal, and shall be judicially noticed.

Source:Laws 1935, c. 57, § 10, p. 191; C.S.Supp.,1941, § 48-171; R.S.1943, § 48-160; Laws 1971, LB 653, § 5; Laws 1986, LB 811, § 91.

48-161. Disputed claims; submission to court required; court; jurisdiction of ancillary issues.

All disputed claims for workers' compensation shall be submitted to the Nebraska Workers' Compensation Court for a finding, award, order, or judgment. Such compensation court shall have jurisdiction to decide any issue ancillary to the resolution of an employee's right to workers' compensation benefits, except that jurisdiction with respect to income withholding pursuant to the Income Withholding for Child Support Act shall be as provided in such act, jurisdiction with respect to garnishment for support shall be as provided in sections 25-1009 to 25-1056 and 43-512.09, and jurisdiction with respect to administrative attachment and bank matching shall be as provided in sections 43-3328 to 43-3339.

Source:Laws 1935, c. 57, § 11, p. 191; C.S.Supp.,1941, § 48-172; R.S.1943, § 48-161; Laws 1986, LB 811, § 92; Laws 1990, LB 313, § 3; Laws 1993, LB 523, § 25; Laws 1997, LB 752, § 125.

Cross References

Income Withholding for Child Support Act, see section 43-1701.

Annotations

1. Jurisdiction

2. Miscellaneous

1. Jurisdiction

A contractual dispute over private agreements for disability coverage that is not workers' compensation coverage is not ancillary to the Workers' Compensation Court's primary jurisdiction. Bower v. Eaton Corp., 301 Neb. 311, 918 N.W.2d 249 (2018).

Ancillary jurisdiction does not include the power to enforce an award. Burnham v. Pacesetter Corp., 280 Neb. 707, 789 N.W.2d 913 (2010).

Ancillary jurisdiction is the power of a court to adjudicate and determine matters incidental to the exercise of its primary jurisdiction of an action. Midwest PMS v. Olsen, 279 Neb. 492, 778 N.W.2d 727 (2010).

The final resolution of an employee's right to workers' compensation benefits does not preclude an issue from being ancillary to the resolution of the employee's right to benefits within the meaning of this section. Midwest PMS v. Olsen, 279 Neb. 492, 778 N.W.2d 727 (2010).

While, under this section, the compensation court may determine the existence of insurance, such jurisdiction is not exclusive and such a determination is not mandatory. Risor v. Nebraska Boiler, 274 Neb. 906, 744 N.W.2d 693 (2008).

This section provides the Workers' Compensation Court with jurisdiction to determine insurance disputes in workers' compensation claims, including the existence of coverage and the extent of an insurer's liability. According to the terms of this section, that jurisdiction is not exclusive, however, and the district court may also exercise its inherent jurisdiction for these purposes. Schweitzer v. American Nat. Red Cross, 256 Neb. 350, 591 N.W.2d 524 (1999).

The Workers' Compensation Court has no jurisdiction to determine workers' compensation insurance coverage disputes. Thomas v. Omega Re-Bar, Inc., 234 Neb. 449, 451 N.W.2d 396 (1990).

The Nebraska Workmen's Compensation Court has exclusive jurisdiction in actions arising under the Workmen's Compensation Act. Peak v. Bosse, 202 Neb. 1, 272 N.W.2d 750 (1978).

Although the Workers' Compensation Court has jurisdiction to decide ancillary matters to a workers' compensation claim, an award of attorney fees for the creation of a common fund is not within such ancillary jurisdiction when the entity from which such fees are sought is not a party to the case. Heesch v. Swimtastic Swim School, 20 Neb. App. 260, 823 N.W.2d 211 (2012).

Even though this section vests the Nebraska Workers' Compensation Court with jurisdiction to decide issues ancillary to an employee's right to workers' compensation benefits, such jurisdiction is not exclusive and a district court has jurisdiction to hear a declaratory judgment action regarding a workers' compensation insurance policy coverage dispute. Kruid v. Farm Bureau Mut. Ins. Co., 17 Neb. App. 687, 770 N.W.2d 652 (2009).

Although, as a statutorily created court, the Workers' Compensation Court is a tribunal of limited and special jurisdiction and has only such authority as has been conferred on it by statute, under this section, the compensation court has jurisdiction to decide any issue ancillary to the resolution of an employee's right to workers' compensation benefits. Nerison v. National Fire Ins. Co. of Hartford, 17 Neb. App. 161, 757 N.W.2d 21 (2008).

2. Miscellaneous

Employer may initiate workmen's compensation proceeding. Fidelity & Casualty Co. v. Kennard, 162 Neb. 220, 75 N.W.2d 553 (1956).

An award of compensation cannot be sustained if based upon possibilities, probabilities, conjectural or speculative evidence. Hamilton v. Huebner, 146 Neb. 320, 19 N.W.2d 552 (1945).

In disputed claim for compensation, compensation court could make award for injuries in cases not covered by the schedule of compensation. Wilson v. Brown-McDonald Co., 134 Neb. 211, 278 N.W. 254 (1938).

An agreement to pay compensation must be approved by compensation commissioner or compensation court or it is void. Duncan v. A. Hospe Co., 133 Neb. 810, 277 N.W. 339 (1938).

Right of either party to refuse award or judgment of compensation commissioner and demand retrial before compensation court is paramount to and exclusive of right of appeal to district court from such decision. City of Lincoln v. Nebraska Workmen's Compensation Court, 133 Neb. 225, 274 N.W. 576 (1937).

48-162. Compensation court; duties; powers.

(1) The Nebraska Workers' Compensation Court, or any judge thereof, is authorized and empowered to examine under oath or otherwise any person, employee, employer, agent, superintendent, supervisor, or officer of any partnership, limited liability company, or corporation, any officer of any domestic insurance company, any agent of any foreign insurance company, or any medical practitioner, to issue subpoenas for the appearance of witnesses and the production of books and papers, to solemnize marriages, and to administer oaths with like effect as is done in other courts of law in this state. In the examination of any witness and in requiring the production of books, papers, and other evidence, the compensation court shall have and exercise all of the powers of a judge, magistrate, or other officer in the taking of depositions or the examination of witnesses, including the power to enforce his or her orders by commitment for refusal to answer or for the disobedience of any such order.

(2) The compensation court or any judge thereof may, upon the motion of either party or upon its or his or her own motion, require the production of any books, documents, payrolls, medical reports, X-rays, photographs, or plates or any facts or matters which may be necessary to assist in a determination of the rights of either party in any matter pending before the compensation court or any judge thereof.

(3) The compensation court or any judge thereof may expedite the hearing of a disputed case when there is an emergency.

Source:Laws 1917, c. 85, § 27, p. 218; Laws 1921, c. 122, § 2, p. 530; C.S.1922, § 3076; C.S.1929, § 48-153; Laws 1935, c. 57, § 34, p. 204; C.S.Supp.,1941, § 48-153; R.S.1943, § 48-162; Laws 1983, LB 18, § 5; Laws 1983, LB 263, § 2; Laws 1986, LB 811, § 93; Laws 1987, LB 187, § 2; Laws 1993, LB 121, § 284; Laws 1993, LB 757, § 16; Laws 2005, LB 13, § 18.

48-162.01. Employees; rehabilitation services; directory of service providers, counselors, and specialists; vocational rehabilitation plan; priorities; Attorney General; duties; compensation court; powers; duties.

(1) One of the primary purposes of the Nebraska Workers' Compensation Act is restoration of the injured employee to gainful employment. To this end the Nebraska Workers' Compensation Court may employ one or more specialists in vocational rehabilitation. Salaries, other benefits, and administrative expenses incurred by the compensation court for purposes of vocational rehabilitation shall be paid from the Compensation Court Cash Fund.

(2) Vocational rehabilitation specialists employed by the court shall continuously study the problems of vocational rehabilitation and shall maintain a directory of individual service providers, counselors, and specialists which have been approved by the Nebraska Workers' Compensation Court. The compensation court may approve as qualified such individual service providers, counselors, and specialists as are capable of rendering competent vocational rehabilitation services to injured employees. No individual service provider, counselor, or specialist shall be considered qualified to provide vocational rehabilitation services to injured employees unless he or she has satisfied the standards for certification established by the compensation court and has been certified by the compensation court.

(3) When as a result of the injury an employee is unable to perform suitable work for which he or she has previous training or experience, he or she is entitled to such vocational rehabilitation services, including job placement and training, as may be reasonably necessary to restore him or her to suitable employment. Vocational rehabilitation training costs shall be paid from the Workers' Compensation Trust Fund. When vocational rehabilitation training requires residence at or near a facility or institution away from the employee's customary residence, whether within or without this state, the reasonable costs of his or her board, lodging, and travel shall be paid from the Workers' Compensation Trust Fund.

If entitlement to vocational rehabilitation services is claimed by the employee, the employee and the employer or his or her insurer shall attempt to agree on the choice of a vocational rehabilitation counselor from the directory of vocational rehabilitation counselors established pursuant to subsection (2) of this section. If they are unable to agree on a vocational rehabilitation counselor, the employee or employer or his or her insurer shall notify the compensation court, and a vocational rehabilitation specialist of the compensation court shall select a counselor from the directory of vocational rehabilitation counselors established pursuant to subsection (2) of this section. Only one such vocational rehabilitation counselor may provide vocational rehabilitation services at any one time, and any change in the choice of a vocational rehabilitation counselor shall be approved by a vocational rehabilitation specialist or judge of the compensation court. The vocational rehabilitation counselor so chosen or selected shall evaluate the employee and, if necessary, develop and implement a vocational rehabilitation plan. Any such plan shall be evaluated by a vocational rehabilitation specialist of the compensation court and approved by such specialist or a judge of the compensation court prior to implementation. In evaluating a plan the specialist shall make an independent determination as to whether the proposed plan is likely to result in suitable employment for the injured employee that is consistent with the priorities listed in this subsection. It is a rebuttable presumption that any vocational rehabilitation plan developed by such vocational rehabilitation counselor and approved by a vocational rehabilitation specialist of the compensation court is an appropriate form of vocational rehabilitation. The fee for the evaluation and for the development and implementation of the vocational rehabilitation plan shall be paid by the employer or his or her workers' compensation insurer. The compensation court may establish a fee schedule for services rendered by a vocational rehabilitation counselor. Any loss-of-earning-power evaluation performed by a vocational rehabilitation counselor shall be performed by a counselor from the directory established pursuant to subsection (2) of this section and chosen or selected according to the procedures described in this subsection. It is a rebuttable presumption that any opinion expressed as the result of such a loss-of-earning-power evaluation is correct.

The following priorities shall be used in developing and evaluating a vocational rehabilitation plan. No higher priority may be utilized unless all lower priorities have been determined by the vocational rehabilitation counselor and a vocational rehabilitation specialist or judge of the compensation court to be unlikely to result in suitable employment for the injured employee that is consistent with the priorities listed in this subsection. If a lower priority is clearly inappropriate for the employee, the next higher priority shall be utilized. The priorities are, listed in order from lower to higher priority:

(a) Return to the previous job with the same employer;

(b) Modification of the previous job with the same employer;

(c) A new job with the same employer;

(d) A job with a new employer; or

(e) A period of formal training which is designed to lead to employment in another career field.

(4) The compensation court may cooperate on a reciprocal basis with federal and state agencies for vocational rehabilitation services or with any public or private agency.

(5) The Attorney General, when requested by the administrator of the compensation court, may file a motion pursuant to section 48-162.03 regarding any issue related to vocational rehabilitation services or costs pursuant to this section. The Attorney General shall be considered a party for purposes of such motion. The Attorney General may initiate an original action before the compensation court or may intervene in a pending action and become a party to the litigation. Any such motion shall be heard by a judge of the compensation court other than the presiding judge.

(6) An employee who has suffered an injury covered by the Nebraska Workers' Compensation Act is entitled to prompt physical and medical rehabilitation services. If physical or medical rehabilitation services are not voluntarily offered and accepted, the compensation court or any judge thereof on its or his or her own motion, or upon application of the employee or employer, and after affording the parties an opportunity to be heard by the compensation court or judge thereof, may refer the employee to a facility, institution, physician, or other individual service provider capable of rendering competent physical or medical rehabilitation services for evaluation and report of the practicability of, need for, and kind of service or treatment necessary and appropriate to render him or her fit for a remunerative occupation, and the costs of such evaluation and report involving physical or medical rehabilitation shall be borne by the employer or his or her workers' compensation insurer. Upon receipt of such report and after affording the parties an opportunity to be heard, the compensation court or judge thereof may order that the physical or medical services and treatment recommended in the report or other necessary physical or medical rehabilitation treatment or service be provided at the expense of the employer or his or her workers' compensation insurer.

When physical or medical rehabilitation requires residence at or near the facility or institution away from the employee's customary residence, whether within or without this state, the reasonable costs of his or her board, lodging, and travel shall be paid for by the employer or his or her workers' compensation insurer in addition to any other benefits payable under the Nebraska Workers' Compensation Act, including weekly compensation benefits for temporary disability.

(7) If the injured employee without reasonable cause refuses to undertake or fails to cooperate with a physical, medical, or vocational rehabilitation program determined by the compensation court or judge thereof to be suitable for him or her or refuses to be evaluated under subsection (3) or (6) of this section or fails to cooperate in such evaluation, the compensation court or judge thereof may suspend, reduce, or limit the compensation otherwise payable under the Nebraska Workers' Compensation Act. The compensation court or judge thereof may also modify a previous finding, order, award, or judgment relating to physical, medical, or vocational rehabilitation services as necessary in order to accomplish the goal of restoring the injured employee to gainful and suitable employment, or as otherwise required in the interest of justice.

Source:Laws 1969, c. 388, § 1, p. 1357; Laws 1974, LB 808, § 2; Laws 1983, LB 266, § 1; Laws 1986, LB 811, § 94; Laws 1993, LB 757, § 17; Laws 1997, LB 128, § 4; Laws 1999, LB 216, § 14; Laws 2000, LB 1221, § 11; Laws 2004, LB 1091, § 3; Laws 2005, LB 13, § 19.

Annotations

1. Award of vocational rehabilitation benefits

2. Suitable employment

3. Rebuttable presumption

4. Labor market

5. Powers of court

6. Modification by court

7. Miscellaneous

1. Award of vocational rehabilitation benefits

The workers' compensation court did not clearly err in denying vocational rehabilitation benefits to an employee who had secured substantial gainful employment but who desired an award of vocational rehabilitation in case he became unable to continue his present employment. Melton v. City of Holdrege, 309 Neb. 385, 960 N.W.2d 298 (2021).

A vocational rehabilitation plan seeking to place a part-time hourly employee who suffered a permanent impairment in employment where the employee would earn wages similar to those based upon a calculation of average weekly wage under section 48-121(4) would best achieve the goal of restoring the employee to suitable employment. Becerra v. United Parcel Service, 284 Neb. 414, 822 N.W.2d 327 (2012).

In all cases not otherwise provided for by statute or by the Nebraska Evidence Rules, a presumption imposes on the party against whom it is directed the burden of proving that the nonexistence of the presumed fact is more probable than its existence. This rule applies to the rebuttable presumption that an opinion regarding loss of earning capacity expressed by a vocational rehabilitation counselor appointed or selected pursuant to subsection (3) of this section is correct. In determining whether the presumption contained in subsection (3) of this section has been rebutted, the single judge is required to make factual findings. Frauendorfer v. Lindsay Mfg. Co., 263 Neb. 237, 639 N.W.2d 125 (2002).

To hold that a worker can receive vocational rehabilitation benefits absent a finding that the worker is permanently impaired does not amount to a sensible reading of this section. Green v. Drivers Mgmt., Inc., 263 Neb. 197, 639 N.W.2d 94 (2002).

Subsection (3) of this section does not provide for the modification of previous awards; it merely defines a benefit available to a class of injured workers. Dougherty v. Swift-Eckrich, 251 Neb. 333, 557 N.W.2d 31 (1996).

A finding that an employee's injury is compensable under the Workers' Compensation Act is required for approval of any vocational rehabilitation plan paid for by the trust fund, though such a finding is not necessarily required for settlements including a program of vocational rehabilitation paid for by the employer or its insurer. Miner v. Robertson Home Furnishing, 239 Neb. 525, 476 N.W.2d 854 (1991).

Vocational rehabilitation may be denied where the injured worker is able to perform work for which the worker has previous training and experience. Cline v. County Seat Lounge, 239 Neb. 42, 473 N.W.2d 404 (1991).

An employee is entitled to vocational rehabilitation benefits when, as the result of a compensable injury, he or she is unable to perform work for which he or she has previous training or experience or when there is a reasonable probability that such rehabilitation will reduce the amount of earning power loss the employee would otherwise suffer. Bindrum v. Foote & Davies, 235 Neb. 903, 457 N.W.2d 828 (1990).

An employee, unless he or she is otherwise qualified to receive temporary total disability benefits, is entitled to such benefits only while undergoing rehabilitation which has been ordered by the compensation court. Bindrum v. Foote & Davies, 235 Neb. 903, 457 N.W.2d 828 (1990).

A plan of direct job placement, when prescribed as the only form of appropriate vocational rehabilitation for an injured employee, is vocational rehabilitation within the meaning of section 48-121(5). Carter v. Weyerhaeuser Co., 234 Neb. 558, 452 N.W.2d 32 (1990).

An award of vocational rehabilitation benefits is permitted when, as the result of a compensable injury, a worker is unable to perform work for which he or she has previous training or experience, or when such rehabilitation will reduce the amount of earning power loss the worker would otherwise suffer. Thom v. Lutheran Medical Center, 226 Neb. 737, 414 N.W.2d 810 (1987).

An award of vocational rehabilitation benefits must be supported by evidence which shows the workman is unable to perform work for which he has previous training and experience. Bender v. Norfolk Iron & Metal Co., 224 Neb. 706, 400 N.W.2d 859 (1987).

A finding that vocational rehabilitation is for the employee's best interest is a statutory prerequisite to ordering such. Pollock v. Monfort of Colorado, 221 Neb. 859, 381 N.W.2d 154 (1986).

A finding by the Workmen's Compensation Court of total disability upon the part of a claimant meets the requirements of this section so as to justify the award of vocational rehabilitation services. Heironymus v. Jacobsen Transfer, 215 Neb. 209, 337 N.W.2d 769 (1983).

Subsections (3) and (6) of this section when read together, mean that the statute authorizes vocational rehabilitation training when the employee has suffered a reduction in earning power that may be remedied by such training as well as when the specific requirements of subsection (3) are met. Sidel v. Travelers Ins. Co., 205 Neb. 541, 288 N.W.2d 482 (1980).

When an employee is unable to perform the work for which he has previous training or experience as a result of an injury covered by the Workmen's Compensation Act, he is entitled to vocational rehabilitation services, including retraining and job placement, as may be reasonably necessary to restore him to suitable employment. Behrens v. Ken Corp., 191 Neb. 625, 216 N.W.2d 733 (1974).

Past performance in a rehabilitation program can be used as a basis to determine whether further vocational rehabilitation should be awarded. An obvious requirement of a plan of vocational rehabilitation is that the injured party cooperate with the program. Mere physical presence in a program does not necessarily establish cooperation. Pursuant to subsection (6) of this section, the Workers' Compensation Court may suspend, reduce, or limit compensation if a worker refuses to be rehabilitated; however, the court is not required to take that action. Warburton v. M & D Construction Co., 1 Neb. App. 498, 498 N.W.2d 611 (1993).

2. Suitable employment

The goal of suitable employment, for purposes of vocational rehabilitation analysis, includes a similar earning capacity for the workers' compensation claimant. Bower v. Eaton Corp., 301 Neb. 311, 918 N.W.2d 249 (2018).

Although an injured employee ultimately wished to become self-employed growing and selling produce, a vocational rehabilitation plan designed to train the employee for full-time work as a supervisor or manager and geared toward returning the employee to employment paying wages similar to those earned prior to the injury comported with the goal to return an injured employee to suitable employment. Anderson v. EMCOR Group, 298 Neb. 174, 903 N.W.2d 29 (2017).

Suitable employment is employment which is compatible with the employee's pre-injury occupation, age, education, and aptitude. Anderson v. EMCOR Group, 298 Neb. 174, 903 N.W.2d 29 (2017).

An illegal immigrant's avowed intent to remain an unauthorized worker in the United States is contrary to the statutory purpose of this section of returning an employee to suitable employment. Ortiz v. Cement Products, 270 Neb. 787, 708 N.W.2d 610 (2005).

Accepting a job paying minimum wage does not automatically "restore" a claimant to "suitable" or "gainful" employment pursuant to this section, where the claimant's previous employment was at a significantly higher wage. Yager v. Bellco Midwest, 236 Neb. 888, 464 N.W.2d 335 (1991).

3. Rebuttable presumption

The opinions of a court-appointed vocational rehabilitation expert regarding a workers' compensation claimant's vocational rehabilitation and loss of earning power have a rebuttable presumption of validity. Money v. Tyrrell Flowers, 275 Neb. 602, 748 N.W.2d 49 (2008).

Pursuant to subsection (3) of this section, a rebuttable presumption in favor of a court-appointed vocational rehabilitation expert's opinion in workers' compensation proceedings can be rebutted by a showing that the experts' assessment was predicated on principles that are contrary to law. Giboo v. Certified Transmission Rebuilders, 275 Neb. 369, 746 N.W.2d 362 (2008).

Pursuant to Neb. Evid. R. 301, in all cases not otherwise provided for by statute or by the Nebraska Evidence Rules, a presumption imposes on the party against whom it is directed the burden of proving that the nonexistence of the presumed fact is more probable than its existence. This rule applies to the rebuttable presumption that an opinion regarding loss of earning capacity expressed by a vocational rehabilitation counselor appointed or selected pursuant to this section is correct. Dawes v. Wittrock Sandblasting & Painting, 266 Neb. 526, 667 N.W.2d 167 (2003).

Subsection (3) of this section creates two rebuttable presumptions, the "vocational rehabilitation plan presumption of correctness" and the "loss of earning capacity opinion presumption of correctness". Pursuant to the plain language of subsection (3) of this section, in order for a vocational rehabilitation plan presumption of correctness to attach, two conjunctive requirements must be met; first, the vocational rehabilitation counselor must develop a vocational rehabilitation "plan", and second, that plan must be submitted and approved by a vocational rehabilitation specialist of the Workers' Compensation Court. Where a vocational rehabilitation counselor has declined to evaluate an injured worker's loss of earning capacity, the vocational rehabilitation counselor has not provided a loss of earning capacity opinion from which to afford a rebuttable presumption of correctness. Rodriguez v. Monfort, Inc., 262 Neb. 800, 635 N.W.2d 439 (2001).

The only opinion regarding vocational rehabilitation or loss of earning power entitled to a rebuttable presumption pursuant to subsection (3) of this section is that of a vocational rehabilitation counselor chosen or selected by the procedures set forth in subsection (3) of this section. The phrase "loss-of-earning-power evaluation" in subsection (3) of this section refers to a process as opposed to a document. This section applies to the rebuttable presumption that an opinion regarding loss of earning capacity expressed by a vocational rehabilitation counselor appointed or selected pursuant to subsection (3) of this section is correct. Variano v. Dial Corp., 256 Neb. 318, 589 N.W.2d 845 (1999).

In determining whether the presumption contained in subsection (3) of this section, that any opinion expressed as the result of a loss-of-earning-power evaluation by a court-appointed vocational rehabilitation counselor is correct, has been rebutted, a single judge of the Workers' Compensation Court is required to make factual findings. The rebuttable presumption in subsection (3) of this section, that any opinion expressed as the result of a loss-of-earning-power evaluation by a court-appointed vocational rehabilitation counselor is correct, can be rebutted not only by the testimony of another expert, but also by the testimony of the claimant. Romero v. IBP, Inc., 9 Neb. App. 927, 623 N.W.2d 332 (2001).

4. Labor market

If an employer believes a court-appointed vocational expert's opinion in selecting the relevant geographic area for assessing a claimant's loss of earning power is incorrect, the employer has the burden to rebut the expert's opinion by showing there are employment opportunities reasonably available to the claimant in a prospective area. Money v. Tyrrell Flowers, 275 Neb. 602, 748 N.W.2d 49 (2008).

In determining whether to include surrounding communities as part of the relevant labor market for assessing the claimant's loss of earning power, both the court-appointed vocational rehabilitation experts and the trial judge should consider the following factors: (1) availability of transportation, (2) duration of the commute, (3) length of workday the claimant is capable of working, (4) ability of the person to make the commute based on his or her physical condition, (5) economic feasibility of a person in the claimant's position working in that location, and (6) whether others who live in the claimant's hub community regularly seek employment in the prospective area. Money v. Tyrrell Flowers, 275 Neb. 602, 748 N.W.2d 49 (2008).

5. Powers of court

Pursuant to subsection (3) of this section, if rehabilitation services are not voluntarily offered and accepted, Second Injury Fund may apply to Workers' Compensation Court to determine need for vocational rehabilitation. Sherard v. Bethphage Mission, Inc., 236 Neb. 900, 464 N.W.2d 343 (1991).

To determine whether findings of fact made by the compensation court support an order granting or denying vocational rehabilitation benefits, the Supreme Court must consider the findings of fact in light of this section. Yager v. Bellco Midwest, 236 Neb. 888, 464 N.W.2d 335 (1991).

The inability of an injured employee to perform work for which he has previous training and experience is ordinarily a question of fact to be determined by the compensation court. Smith v. Hastings Irr. Pipe Co., 222 Neb. 663, 386 N.W.2d 9 (1986).

Whether an injured workman has a right to vocational rehabilitation depends upon his inability to perform work for which he has previous training and experience, and is ordinarily a question of fact to be determined by the compensation court. Evans v. American Community Stores, 222 Neb. 538, 385 N.W.2d 91 (1986).

The Workmen's Compensation Court may, as a condition of awarding compensation to an injured employee, require the employee, if appropriate, to submit himself for evaluation to determine if the employee may be retrained and thereby gainfully employed in the future. Savage v. Hensel Phelps Constr. Co., 208 Neb. 676, 305 N.W.2d 375 (1981).

In making award for rehabilitation services, the Workmen's Compensation Court may prescribe procedure for employee to follow if he wants to obtain such services. Camp v. Blount Bros. Corp., 195 Neb. 459, 238 N.W.2d 634 (1976).

Pursuant to subsection (3) of this section, when a vocational rehabilitation counselor submits multiple reports that are determined to be written not because a process of recovery was incomplete from the time a prior report was written, but, rather, because a counselor gives differing opinions each based on a different factual scenario, it is up to the trial court to make factual findings to determine which report should be given the rebuttable presumption of correctness. Ladd v. Complete Concrete, 13 Neb. App. 200, 690 N.W.2d 416 (2004).

Pursuant to subsection (3) of this section, when a vocational rehabilitation counselor submits multiple reports that are determined to be written not because a process of recovery was incomplete from the time a prior report was written, but, rather, because a counselor gives differing opinions each based on a different factual scenario, it is up to the trial court to make factual findings to determine which report should be given the rebuttable presumption of correctness. Noordam v. Vickers, Inc., 11 Neb. App. 739, 659 N.W.2d 856 (2003).

The Workers' Compensation Court's determination that the employee was entitled to language rehabilitation services as recommended by the rehabilitation specialist was not clearly erroneous. Paz v. Monfort, Inc., 1 Neb. App. 267, 492 N.W.2d 894 (1992).

6. Modification by court

Where a prior award by the compensation court provided medical or physical rehabilitation services, the compensation court may modify the award of such services to the extent that the compensation court finds such modification necessary in order to accomplish the goal of restoring the injured employee to gainful and suitable employment or is otherwise required in the interest of justice. Spratt v. Crete Carrier Corp., 311 Neb. 262, 971 N.W.2d 335 (2022).

Subsection (7) of this section cannot be used solely to punish or coerce an injured worker. There must be evidence to support a finding that the worker's disability would have been reduced had the worker cooperated with medical treatment or vocational rehabilitation. Hofferber v. Hastings Utilities, 282 Neb. 215, 803 N.W.2d 1 (2011).

Subsection (7) of this section is intended to permit the compensation court to modify rehabilitation plans in response to changed circumstances following the entry of the initial plan. It does not apply to situations in which a worker has refused to cooperate with treatment or rehabilitation. Hofferber v. Hastings Utilities, 282 Neb. 215, 803 N.W.2d 1 (2011).

Subsection (7) of this section is intended to prevent an employee's refusal to improve his or her medical condition or earning capacity from causing an employer to pay more workers' compensation benefits than it should. It only authorizes the complete termination of a claimant's right to benefits under the Nebraska Workers' Compensation Act if evidence is presented to support a finding that had the employee availed himself or herself of the benefits offered, the employee would no longer be disabled. Hofferber v. Hastings Utilities, 282 Neb. 215, 803 N.W.2d 1 (2011).

Both parts of the two-part test in subsection (7) of this section present factual questions to be determined by the trial judge based upon the evidence. Lowe v. Drivers Mgmt. Inc., 274 Neb. 732, 743 N.W.2d 82 (2007).

Subsection (7) of this section establishes a two-part test to determine whether benefits should be suspended, reduced, or limited. First, the employee must either refuse to undertake or fail to cooperate with a court-ordered physical, medical, or vocational rehabilitation program. Second, the employee's refusal must be without reasonable cause. Lowe v. Drivers Mgmt. Inc., 274 Neb. 732, 743 N.W.2d 82 (2007).

Under the provisions of subsection (7) of this section, the employer bears the burden of proof to demonstrate that an injured employee has refused to undertake or failed to cooperate with a physical, medical, or vocational rehabilitation program and that such refusal or failure is without reasonable cause such that the compensation court or judge may properly rely on such evidence to suspend, reduce, or limit the compensation otherwise payable under the Nebraska Workers' Compensation Act. Lowe v. Drivers Mgmt. Inc., 274 Neb. 732, 743 N.W.2d 82 (2007).

The plain language of the last sentence of subsection (7) of this section contemplates a modification of services previously granted and does not provide for a modification of a final order to grant entirely new services or benefits. McKay v. Hershey Food Corp., 16 Neb. App. 79, 740 N.W.2d 378 (2007).

7. Miscellaneous

An employee's willingness to undergo evaluation and testing by a state agency is evidence that the employee is amenable to any rehabilitation, training, or educational program determined by the compensation court. Willuhn v. Omaha Box Co., 240 Neb. 571, 483 N.W.2d 130 (1992).

48-162.02. Workers' Compensation Trust Fund; created; use; contributions; Attorney General; Department of Administrative Services; duties.

(1) The Workers' Compensation Trust Fund is created. The fund shall be administered by the administrator of the Nebraska Workers' Compensation Court.

(2) The Workers' Compensation Trust Fund shall be used to make payments in accordance with sections 48-128 and 48-162.01. Payments from the fund shall be made in the same manner as for claims against the state. The State Treasurer shall be the custodian of the fund and all money and securities in the fund shall be held in trust by the State Treasurer and shall not be money or property of the state. The fund shall be raised and derived as follows: Every insurance company which is transacting business in this state shall on or before March 1 of each year pay to the Director of Insurance an amount equal to two percent of the workers' compensation benefits paid by it during the preceding calendar year in this state. Every risk management pool providing workers' compensation group self-insurance coverage to any of its members shall on or before March 1 of each year pay to the Director of Insurance an amount equal to two percent of the workers' compensation benefits paid by it during the preceding calendar year in this state but in no event less than twenty-five dollars.

(3) The computation of the amounts as provided in subsection (2) of this section shall be made on forms furnished by the Department of Insurance and shall be forwarded to the department together with a sworn statement by an appropriate fiscal officer of the company attesting the accuracy of the computation. The department shall furnish such forms to the companies and pools prior to the end of the year for which the amounts are payable together with any information deemed necessary or appropriate by the department. Upon receipt of the payment, the director shall audit and examine the computations to determine that the proper amount has been paid.

(4) The Director of Insurance, after notice and hearing in accordance with the Administrative Procedure Act, may rescind or refuse to reissue the certificate of authority of any company or pool which fails to remit the amount due.

(5) The Director of Insurance shall remit the amounts paid to the State Treasurer for credit to the Workers' Compensation Trust Fund promptly upon completion of the audit and examination and in no event later than May 1 of the year in which the amounts have been received, except that (a) when there is a dispute as to the amount payable, the proceeds shall be credited to a suspense account until disposition of the controversy and (b) one percent of the amount received shall be credited to the Department of Insurance to cover the costs of administration.

(6) Every employer in the occupations described in section 48-106 who qualifies as a self-insurer and who is issued a permit to self-insure shall remit to the State Treasurer for credit to the Workers' Compensation Trust Fund an annual amount equal to two percent of the workers' compensation benefits paid by it during the preceding calendar year in this state but in no event less than twenty-five dollars.

(7) The amounts required to be paid by the insurance companies, risk management pools, and self-insurers under subsections (2) and (6) of this section shall be in addition to any other amounts, either in taxes, assessments, or otherwise, as required under any other law of this state.

(8) The administrator of the compensation court shall be charged with the conservation of the assets of the Workers' Compensation Trust Fund. The administrator may order payments from the fund for vocational rehabilitation services and costs pursuant to section 48-162.01 when (a) vocational rehabilitation is voluntarily offered by the employer and accepted by the employee, (b) the employee is engaged in an approved vocational rehabilitation plan pursuant to section 48-162.01, and (c) the employer has agreed to pay weekly compensation benefits for temporary disability while the employee is engaged in such plan.

(9) The Attorney General shall represent the fund when requested by the administrator in proceedings brought by or against the fund pursuant to section 48-162.01. The Attorney General shall represent the fund in all proceedings brought by or against the fund pursuant to section 48-128. When a claim is made by or against the fund pursuant to section 48-128, the State of Nebraska shall be impleaded as a party plaintiff or defendant, as the case may require, and when so impleaded as a defendant, service shall be had upon the Attorney General.

(10) The Department of Administrative Services shall furnish monthly to the Nebraska Workers' Compensation Court a statement of the Workers' Compensation Trust Fund setting forth the balance of the fund as of the first day of the preceding month, the income and its sources, the payments from the fund in itemized form, and the balance of the fund on hand as of the last day of the preceding month. The State Treasurer may receive and credit to the fund any sum or sums which may at any time be contributed to the state or the fund by the United States of America or any agency thereof to which the state may be or become entitled under any act of Congress or otherwise by reason of any payment made from the fund.

(11) When the fund equals or exceeds two million three hundred thousand dollars, no further contributions thereto shall be required by employers, risk management pools, or insurance companies. Thereafter whenever the amount of the fund is reduced below one million two hundred thousand dollars by reason of payments made pursuant to this section or otherwise or whenever the administrator of the compensation court determines that payments likely to be made from the fund in the next succeeding year will probably cause the fund to be reduced below one million two hundred thousand dollars, the administrator shall notify all self-insurers and the Director of Insurance, who shall notify all workers' compensation insurance companies and risk management pools, that such contributions are to be resumed as of the date set in such notice and such contributions shall continue as provided in this section after the effective date of such notice. Such contributions shall continue until the fund again equals two million three hundred thousand dollars.

(12) Any expenses necessarily incurred by the Workers' Compensation Trust Fund or by the Attorney General in connection with a proceeding brought by or against the fund may be paid out of the fund. Such expenses may be taxed as costs and recovered by the fund in any case in which the fund prevails.

Source:Laws 1974, LB 808, § 3; Laws 1986, LB 811, § 95; Laws 1987, LB 398, § 46; Laws 1988, LB 1034, § 2; Laws 1992, LB 1006, § 95; Laws 1993, LB 757, § 18; Laws 2000, LB 1221, § 12; Laws 2004, LB 1091, § 4; Laws 2005, LB 13, § 20; Laws 2007, LB322, § 8.

Cross References

Administrative Procedure Act, see section 84-920.

Risk management pool, defined, see section 44-4303.

48-162.03. Compensation court; motions; powers.

(1) The Nebraska Workers' Compensation Court or any judge thereof may rule upon any motion addressed to the court by any party to a suit or proceeding, including, but not limited to, motions for summary judgment or other motions for judgment on the pleadings but not including motions for new trial. Several objects may be included in the same motion, if they all grow out of or are connected with the action or proceeding in which it is made.

(2) Parties to a dispute which might be the subject of an action under the Nebraska Workers' Compensation Act may file a motion for an order regarding the dispute without first filing a petition.

(3) If notice of a motion is required, the notice shall be in writing and shall state: (a) The names of the parties to the action, proceeding, or dispute in which it is to be made; (b) the name of the judge before whom it is to be made; (c) the time and place of hearing; and (d) the nature and terms of the order or orders to be applied for. Notice shall be served a reasonable time before the hearing as provided in the rules of the compensation court.

Source:Laws 1997, LB 128, § 5; Laws 2013, LB141, § 1.

Annotations

Under subsection (1) of this section, the Nebraska Workers' Compensation Court has authority to rule on a motion for default judgment. Cruz-Morales v. Swift Beef Co., 275 Neb. 407, 746 N.W.2d 698 (2008).

The compensation court may rule upon any motion addressed to the court by any party to a suit or proceeding, including, but not limited to, motions for summary judgment or other motions for judgment on the pleadings but not including motions for new trial. Yost v. Davita, Inc., 23 Neb. App. 482, 873 N.W.2d 435 (2015).

48-163. Compensation court; rules and regulations; procedures for adoption; powers and duties.

(1) The Nebraska Workers' Compensation Court, by a majority vote of the judges thereof, may adopt and promulgate all reasonable rules and regulations necessary for carrying out the intent and purpose of the Nebraska Workers' Compensation Act, except that rules and regulations relating to the compensation court's adjudicatory function shall become effective only upon approval of the Supreme Court.

(2) No rule or regulation to carry out the act shall be adopted and promulgated except after public hearing conducted by a quorum of the compensation court on the question of adopting and promulgating such rule or regulation. Notice of such hearing shall be given at least fourteen days prior thereto by publication in a newspaper having general circulation in the state. Draft copies of all such rules and regulations shall be available to the public at the compensation court at the time of giving notice.

(3) The administrator of the compensation court shall establish and maintain a list of subscribers who wish to receive notice of public hearing on the question of adopting and promulgating any rule or regulation and shall provide notice to such subscribers. The administrator shall distribute a current copy of existing rules and regulations and any updates to those rules and regulations once adopted to the State Library and to each county law library or the largest public library in each county.

Source:Laws 1935, c. 57, § 6, p. 190; C.S.Supp.,1941, § 48-167; R.S.1943, § 48-163; Laws 1975, LB 187, § 11; Laws 1986, LB 811, § 96; Laws 1992, LB 360, § 17; Laws 1993, LB 757, § 24; Laws 1999, LB 216, § 15; Laws 2005, LB 13, § 21; Laws 2023, LB191, § 8.
Operative Date: September 2, 2023

Annotations

The Nebraska Workers' Compensation Court Rules of Procedure may supersede or supplant the Nebraska Court Rules of Pleading in Civil Actions. Cruz-Morales v. Swift Beef Co., 275 Neb. 407, 746 N.W.2d 698 (2008).

This section provides that the Workers' Compensation Court may adopt all reasonable rules necessary for carrying out the intent and purposes of section 48-101 et seq. Behrens v. American Stores Packing Co., 228 Neb. 18, 421 N.W.2d 12 (1988).

Court may remand cause for purpose of procuring competent evidence as to extent of disability. Steward v. Deuel County, 137 Neb. 516, 289 N.W. 877 (1940).

District court has power to call in independent medical experts as witnesses. Lowder v. Standard Auto Parts Co., 136 Neb. 747, 287 N.W. 211 (1939).

Compensation court may make reasonable rules necessary for carrying out intent and purposes of the act, and shall administer and enforce all the provisions of the act except such as are committed to the courts of appellate jurisdiction. Wilson v. Brown-McDonald Co., 134 Neb. 211, 278 N.W. 254 (1938).

This section, with others, evidences intent that the compensation claimant and employer shall be assured of a trial by the compensation court. City of Lincoln v. Nebraska Workmen's Compensation Court, 133 Neb. 225, 274 N.W. 576 (1937).

Physician was entitled to fee for examination of employee made after hearing in compensation court but before trial in district court to determine whether surgical operation on employee as demanded by employer would be reasonably safe and beneficial. Solomon v. A. W. Farney, Inc., 130 Neb. 484, 265 N.W. 724 (1936).

48-164. Compensation court; rules and regulations.

The Nebraska Workers' Compensation Court shall regulate and provide the kind and character of notices and the services thereof and, in case of an injury by accident to an employee, the nature and extent of the proofs and evidence and the method of taking and furnishing the same for the establishment of the right to compensation. It shall determine the nature and form or forms of the application of those claiming to be entitled to benefits or compensation and shall regulate the method of making investigations, physical examinations, and inspections and prescribe the time within which adjudications and awards shall be made. Such rules and regulations shall conform to the provisions of the Nebraska Workers' Compensation Act.

Source:Laws 1917, c. 85, § 29, p. 220; C.S.1922, § 3080; C.S.1929, § 48-157; Laws 1935, c. 57, § 36, p. 205; C.S.Supp.,1941, § 48-157; R.S.1943, § 48-164; Laws 1945, c. 113, § 5, p. 365; Laws 1986, LB 811, § 97; Laws 2023, LB191, § 9.
Operative Date: September 2, 2023

Cross References

For service of documents upon adverse party or attorney, see section 25-534.

48-165. Blank forms; distribution; fees; telephone number.

(1) The administrator of the Nebraska Workers' Compensation Court shall prepare and make available to employees, employers, and workers' compensation insurers such blank forms as deemed proper and advisable.

(2) The administrator of the compensation court may establish a schedule of fees for services including, but not limited to, copying, reproducing documents from preservation duplicates, preparing forms and other material, responding to inquiries for information, and preparing publications. In establishing fees, the administrator may consider costs for time, material, and delivery.

(3) The administrator of the compensation court may maintain a toll-free telephone number and assign staff members of the compensation court to respond to inquiries from employees, employers, and others regarding the operation of the Nebraska Workers' Compensation Act and to provide information regarding the rights, benefits, and obligations of injured employees and their employers under the act.

Source:Laws 1917, c. 85, § 29, p. 221; C.S.1922, § 3080; C.S.1929, § 48-157; Laws 1935, c. 57, § 36, p. 206; C.S.Supp.,1941, § 48-157; R.S.1943, § 48-165; Laws 1949, c. 161, § 4, p. 412; Laws 1983, LB 263, § 3; Laws 1986, LB 811, § 98; Laws 2005, LB 13, § 22.

48-166. Compensation court; annual report; contents.

On or before January 1 of each year, the Nebraska Workers' Compensation Court shall submit electronically an annual report to the Clerk of the Legislature for the past fiscal year which shall include (1) pertinent information regarding settlements and awards made by the compensation court, (2) the causes of the accidents leading to the injuries for which the settlements and awards were made, (3) a statement of the total expense of the compensation court, (4) any other matters which the compensation court deems proper to include, and (5) any recommendations it may desire to make.

Source:Laws 1917, c. 85, § 29, p. 221; C.S.1922, § 3080; C.S.1929, § 48-157; Laws 1935, c. 57, § 36, p. 206; C.S.Supp.,1941, § 48-157; R.S.1943, § 48-166; Laws 1945, c. 113, § 6, p. 366; Laws 1955, c. 231, § 7, p. 720; Laws 1986, LB 811, § 99; Laws 1999, LB 216, § 16; Laws 2013, LB222, § 16.

48-167. Compensation court; record.

The Nebraska Workers' Compensation Court shall keep and maintain a full and true record of all proceedings, documents, or papers ordered filed, rules and regulations, and decisions or orders.

Source:Laws 1917, c. 85, § 29, p. 221; C.S.1922, § 3080; C.S.1929, § 48-157; Laws 1935, c. 57, § 36, p. 205; C.S.Supp.,1941, § 48-157; R.S.1943, § 48-167; Laws 1945, c. 113, § 7, p. 366; Laws 1986, LB 811, § 100; Laws 2011, LB151, § 6.

48-168. Compensation court; rules of evidence; procedure; informal dispute resolution; procedure.

(1) The Nebraska Workers' Compensation Court shall not be bound by the usual common-law or statutory rules of evidence or by any technical or formal rules of procedure, other than as herein provided, but may make the investigation in such manner as in its judgment is best calculated to ascertain the substantial rights of the parties and to carry out justly the spirit of the Nebraska Workers' Compensation Act.

(2)(a) The Nebraska Workers' Compensation Court may establish procedures whereby a dispute may be submitted by the parties, by the provider of medical, surgical, or hospital services pursuant to section 48-120, by a vocational rehabilitation counselor certified pursuant to section 48-162.01, or by the compensation court on its own motion for informal dispute resolution by a staff member of the compensation court or outside mediator. Any party who requests such informal dispute resolution shall not be precluded from filing a petition pursuant to section 48-173 if otherwise permitted. If informal dispute resolution is ordered by the compensation court on its own motion, the compensation court may state a date for the case to return to court. Such date shall be no longer than ninety days after the date the order was signed unless the court grants an extension upon request of the parties. No settlement reached as the result of an informal dispute resolution proceeding shall be final or binding unless such settlement is in conformity with the Nebraska Workers' Compensation Act. Any such settlement shall be voluntarily entered into by the parties.

(b)(i) Except as permitted in subdivision (b)(ii) of this subsection, a mediator shall not make a report, assessment, evaluation, recommendation, finding, or other communication regarding a mediation to a judge of the compensation court that may make a ruling on the dispute that is the subject of the mediation.

(ii) A mediator may disclose:

(A) Whether the mediation occurred or has terminated, whether a settlement was reached, and attendance; and

(B) A mediation communication evidencing abuse, neglect, abandonment, or exploitation of an individual to a public agency responsible for protecting individuals against such mistreatment.

(iii) A communication made in violation of subdivision (b)(i) of this subsection shall not be considered by a judge of the compensation court.

(c) Informal dispute resolution proceedings shall be regarded as settlement negotiations and no admission, representation, or statement made in informal dispute resolution proceedings, not otherwise discoverable or obtainable, shall be admissible as evidence or subject to discovery. A staff member or mediator shall not be subject to process requiring the disclosure of any matter discussed during informal dispute resolution proceedings. Any information from the files, reports, notes of the staff member or mediator, or other materials or communications, oral or written, relating to an informal dispute resolution proceeding obtained by a staff member or mediator is privileged and confidential and may not be disclosed without the written consent of all parties to the proceeding. No staff member or mediator shall be held liable for civil damages for any statement or decision made in the process of dispute resolution unless such person acted in a manner exhibiting willful or wanton misconduct.

(d) The compensation court may adopt and promulgate rules and regulations regarding informal dispute resolution proceedings that are considered necessary to effectuate the purposes of this section.

Source:Laws 1917, c. 85, § 29, p. 220; C.S.1922, § 3080; C.S.1929, § 48-157; Laws 1935, c. 57, § 36, p. 205; C.S.Supp.,1941, § 48-157; R.S.1943, § 48-168; Laws 1986, LB 811, § 101; Laws 1993, LB 757, § 25; Laws 2006, LB 489, § 34; Laws 2009, LB630, § 10.

Annotations

1. Rules of evidence, applicability

2. Miscellaneous

1. Rules of evidence, applicability

The Workers' Compensation Court is not bound by the usual common-law or statutory rules of evidence or by any technical or formal rules of procedure. Olivotto v. DeMarco Bros. Co., 273 Neb. 672, 732 N.W.2d 354 (2007).

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), does not apply in a workers' compensation case where the rules of evidence do not apply. Veatch v. American Tool, 267 Neb. 711, 676 N.W.2d 730 (2004).

Although the evidentiary rules of the Nebraska Workers' Compensation Court may not be more restrictive than those of trial courts, they may also be less so. The Nebraska Workers' Compensation Court is permitted to admit evidence which over proper objection could not be introduced in a state trial court. Sheridan v. Catering Mgmt., Inc., 252 Neb. 825, 566 N.W.2d 110 (1997).

Subject to the limits of constitutional due process, the admission of evidence is within the discretion of the Nebraska Workers' Compensation Court, whose determination in this regard will not be reversed upon appeal absent an abuse of discretion. Sheridan v. Catering Mgmt., Inc., 252 Neb. 825, 566 N.W.2d 110 (1997).

The Nebraska Workers' Compensation Court is not bound by the "general acceptance" test advanced in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Sheridan v. Catering Mgmt., Inc., 252 Neb. 825, 566 N.W.2d 110 (1997).

The Nebraska Workers' Compensation Court is not bound by the usual common-law or statutory rules of evidence. Sheridan v. Catering Mgmt., Inc., 252 Neb. 825, 566 N.W.2d 110 (1997).

Nebraska Evidence Rules do not apply to proceedings before the Nebraska Workers' Compensation Court. Sherard v. Bethphage Mission, Inc., 236 Neb. 900, 464 N.W.2d 343 (1991).

Evidentiary rules of the compensation court may not be more restrictive than those of trial courts. Fite v. Ammco Tools, Inc., 199 Neb. 353, 258 N.W.2d 922 (1977).

Evidence which would be incompetent as hearsay in other cases is not competent under Workmen's Compensation Act. Hamilton v. Huebner, 146 Neb. 320, 19 N.W.2d 552 (1945).

Statements made by injured employee within few minutes after accidental injury which resulted in death, were admissible in evidence as part of res gestae. Perry v. Johnson Fruit Co., 123 Neb. 558, 243 N.W. 655 (1932).

Technical or formal rules of procedure do not bind the Nebraska Workers' Compensation Court other than as provided in the Nebraska Workers' Compensation Act. Armstrong v. Watkins Concrete Block, 12 Neb. App. 729, 685 N.W.2d 495 (2004).

2. Miscellaneous

The Nebraska Workers' Compensation Court Rules of Procedure may supersede or supplant the Nebraska Court Rules of Pleading in Civil Actions. Cruz-Morales v. Swift Beef Co., 275 Neb. 407, 746 N.W.2d 698 (2008).

It is a general principle that intervention is not authorized after trial and neither subsection (1) of this section nor the beneficent purposes of the Nebraska Workers' Compensation Act authorize a postaward intervention by the employer's insurer. Risor v. Nebraska Boiler, 274 Neb. 906, 744 N.W.2d 693 (2008).

No Nebraska statute grants equity jurisdiction to the compensation court. Risor v. Nebraska Boiler, 274 Neb. 906, 744 N.W.2d 693 (2008).

Sections 48-129 and 48-168, R.R.S.1943, give the Workmen's Compensation Court jurisdiction to consider the issue of joint employment. White v. Western Commodities, Inc., 207 Neb. 75, 295 N.W.2d 704 (1980).

Permission to file amended petition after decision by one judge and before rehearing before entire court was within discretion of compensation court. Faulhaber v. Roberts Dairy Co., 147 Neb. 631, 24 N.W.2d 571 (1946).

48-169. Compensation court; proceedings; transcripts.

A transcribed copy of the evidence and proceedings, or any specific part thereof, of any investigation taken by a stenographer for the Nebraska Workers' Compensation Court or by a court reporter appointed or furnished as provided in section 48-178, being certified and sworn to by such stenographer or court reporter, to be a true and correct transcript of the testimony, or of a particular witness, or any specific part thereof, or to be a correct copy of the transcript of the proceedings had on such investigation so purporting to be taken and transcribed, may be received in evidence by the compensation court with the same effect as if such stenographer or court reporter were present and testified to the facts certified. A copy of such transcript shall be furnished on demand to any party in interest upon payment of the fee therefor, as provided for transcripts in the district courts of the State of Nebraska.

Source:Laws 1917, c. 85, § 29, p. 221; C.S.1922, § 3080; C.S.1929, § 48-157; Laws 1935, c. 57, § 36, p. 205; C.S.Supp.,1941, § 48-157; R.S.1943, § 48-169; Laws 1986, LB 811, § 102; Laws 1992, LB 360, § 18.

48-170. Compensation court; orders; awards; when binding.

Every order and award of the Nebraska Workers' Compensation Court shall be binding upon each party at interest unless an appeal has been filed with the compensation court within thirty days after the date of entry of the order or award.

Source:Laws 1917, c. 85, § 29, p. 222; C.S.1922, § 3080; C.S.1929, § 48-157; Laws 1935, c. 57, § 36, p. 206; C.S.Supp.,1941, § 48-157; R.S.1943, § 48-170; Laws 1967, c. 294, § 1, p. 800; Laws 1975, LB 187, § 12; Laws 1986, LB 811, § 103; Laws 1992, LB 360, § 19; Laws 1999, LB 43, § 24; Laws 2011, LB151, § 7.

Annotations

A party filing an application for rehearing under this section is not excused from a late filing due to the temporary relocation of the Nebraska Workers' Compensation Court when adequate notice had been provided to that party with respect to such relocation. Lopez v. IBP, Inc., 264 Neb. 273, 646 N.W.2d 628 (2002).

Negligence on the part of a party's delivery agent will not permit that party to file an application for rehearing outside of the 14 days called for by this section. Lopez v. IBP, Inc., 264 Neb. 273, 646 N.W.2d 628 (2002).

The Nebraska Supreme Court has recognized an exception that allows an appellate court to consider an appeal filed after the statutorily prescribed time for appeal where the appellant was free from neglect and was prevented from having the appeal filed in the appellate court within the statutory period through the neglect or failure of the proper court official. Lopez v. IBP, Inc., 264 Neb. 273, 646 N.W.2d 628 (2002).

This section is clear that any party who wishes to appeal the order of a single judge of the Nebraska Workers' Compensation Court shall file an application for rehearing before a three-judge panel within 14 days after the date of the single judge's order. If a claimant does not file an application for a rehearing with the compensation court within 14 days after the date of the single judge's order, the order becomes conclusive and final. Lopez v. IBP, Inc., 264 Neb. 273, 646 N.W.2d 628 (2002).

This section and section 48-180 of the Nebraska Workers' Compensation Act are clear that if the court fails to modify its order within 10 days and the parties fail to file an application for review within 14 days of the original order, such order becomes final and binding upon the parties. Thach v. Quality Pork International, 253 Neb. 544, 570 N.W.2d 830 (1997).

Where no appeal is taken, award of single judge is conclusive. Riedel v. Smith Baking Co., 150 Neb. 28, 33 N.W.2d 287 (1948).

When no appeal is taken from award, it is conclusive on all parties at interest except as otherwise provided by statute. Gilmore v. State, 146 Neb. 647, 20 N.W.2d 918 (1945).

Right of trial de novo in district court was preserved where notice of intention to appeal was given and where appeal was taken from award of one commissioner direct to district court. Hansen v. Paxton & Vierling Iron Works, 135 Neb. 867, 284 N.W. 352 (1939).

Orders of the compensation court have the force and effect of a judgment between the parties, except as modified by the compensation act. Chilen v. Commercial Casualty Ins. Co., 135 Neb. 619, 283 N.W. 366 (1939).

Notice of appeal is intended to give information to opposing party and may be waived when appeal was otherwise properly completed in time required by law. Callahan v. Allied Mills Inc., 128 Neb. 352, 258 N.W. 804 (1935).

Neither county court nor district court has original jurisdiction to determine legality of a claim for compensation under the compensation act. Zurich General Accident & Liability Ins. Co. v. Walker, 128 Neb. 327, 258 N.W. 550 (1935).

Posting notice of appeal to commissioner within statutory time is not equivalent to filing. Swanson v. Village of Shickley, 125 Neb. 664, 251 N.W. 821 (1933).

Under prior act, notice was required to be filed within seven days of award on appeal to district court. Duering v. Village of Upland, 125 Neb. 659, 251 N.W. 819 (1933).

Final order of compensation commissioner denying compensation is absolute bar to subsequent suit based on same cause of action if not appealed from. Gray v. Burdin, 125 Neb. 547, 250 N.W. 907 (1933).

48-171. Order; award; judgment; use of terms.

Except as otherwise provided in sections 48-192 to 48-1,109, the words order, award, and judgment, as used in the Nebraska Workers' Compensation Act, are used interchangeably and are deemed to have the same meaning.

Source:Laws 1935, c. 57, § 12, p. 192; C.S.Supp.,1941, § 48-173; R.S.1943, § 48-171; Laws 1986, LB 811, § 104.

Annotations

There is a distinction between findings of the workmen's compensation court and its order, award, or judgment. Light v. Nebraska Workmen's Compensation Court, 166 Neb. 540, 89 N.W.2d 833 (1958).

Right of either party to refuse award, order, or judgment of compensation commissioner and demand retrial before compensation court is paramount to and exclusive of right of appeal to district court from such decision. City of Lincoln v. Nebraska Workmen's Compensation Court, 133 Neb. 225, 274 N.W. 576 (1937).

48-172. Compensation court; no filing fees; exceptions; costs; when allowed.

Except as provided in sections 48-138 and 48-139, there shall be no filing fees charged by the Nebraska Workers' Compensation Court. When a reasonable attorney's fee is allowed the employee against the employer as provided in section 48-125, the compensation court shall further assess against the employer as costs of the employee the cost of depositions if admitted into evidence and may further assess against the employer the fees and mileage for necessary witnesses attending the proceedings at the instance of the employee. Both the necessity for the witness and the reasonableness of the fees shall be approved by the compensation court. Such witnesses shall be reimbursed for their necessary mileage at the rate provided in section 81-1176.

Source:Laws 1917, c. 85, § 29, p. 222; C.S.1922, § 3080; C.S.1929, § 48-157; Laws 1935, c. 57, § 36, p. 206; C.S.Supp.,1941, § 48-157; R.S.1943, § 48-172; Laws 1983, LB 18, § 6; Laws 1986, LB 811, § 105; Laws 1993, LB 757, § 26.

Annotations

This section does not authorize taxation of the fee of an expert witness as an item of cost. Inserra v. Village Inn Pancake House, 197 Neb. 168, 247 N.W.2d 625 (1976).

Guardian ad litem fees were payable from fund awarded under Workmen's Compensation Act. Copple v. Bowlin, 172 Neb. 467, 110 N.W.2d 117 (1961).

48-173. Petition; filing; contents; medical finding required.

Procedure before the Nebraska Workers' Compensation Court shall be as follows: In all cases involving a dispute with reference to workers' compensation, either party at interest, without cost, either in person or by attorney, may file with the compensation court a petition setting forth the names and places of residence of the parties and the facts relating to the employment at the time of the injury for which compensation is claimed, the injury in its extent and character, the amount of wages being received at the time of the injury, the knowledge of or notice to the employer of the occurrence of such injury, and such other facts as may be considered necessary for the information of the compensation court, and also stating the matter or matters in dispute and the contention of the petitioner with reference thereto.

No petition may be filed with the compensation court solely on the issue of reasonableness and necessity of medical treatment unless a medical finding on such issue has been rendered by an independent medical examiner pursuant to section 48-134.01.

Source:Laws 1935, c. 57, § 13, p. 192; C.S.Supp.,1941, § 48-174; R.S.1943, § 48-173; Laws 1978, LB 649, § 5; Laws 1986, LB 811, § 106; Laws 1993, LB 757, § 27; Laws 1998, LB 1010, § 5.

Annotations

This section sets out the requirements of a petition in the compensation court. Shada v. Whitney, 172 Neb. 220, 109 N.W.2d 167 (1961).

Petition is required to set out the matters in dispute. Towner v. Western Contracting Corp., 164 Neb. 235, 82 N.W.2d 253 (1957).

Either party at interest may initiate workmen's compensation proceeding. Fidelity & Casualty Co. v. Kennard, 162 Neb. 220, 75 N.W.2d 553 (1956).

Either party may file petition in case of dispute. Krajeski v. Beem, 157 Neb. 586, 60 N.W.2d 651 (1953).

This section provides for the filing of petition in the compensation court. Clark v. Village of Hemingford, 147 Neb. 1044, 26 N.W.2d 15 (1947).

Petition must be filed within one year from date of accident unless true character of the injuries was not known at the time. Surratt v. Otoe Food Products Co., 146 Neb. 854, 21 N.W.2d 862 (1946).

48-174. Summons; service; return.

Upon the filing of such petition a summons shall issue and be served upon the adverse party, as in civil causes, together with a copy of the petition. Return of service shall be made within fourteen days after the date of issue. An acknowledgment on the summons or the voluntary appearance of a defendant is equivalent to service.

Source:Laws 1935, c. 57, § 13, p. 192; C.S.Supp.,1941, § 48-174; R.S.1943, § 48-174; Laws 1978, LB 649, § 6; Laws 2000, LB 1221, § 13; Laws 2023, LB191, § 10.
Operative Date: September 2, 2023

Annotations

Where on appeal there was timely service in fact of petition on adverse party and no prejudice resulted from the use of regular mail instead of certified or registered mail, motion to dismiss was properly overruled. Bourn v. James, 191 Neb. 635, 216 N.W.2d 739 (1974).

Service of summons may be made either as in civil cases or by registered mail. Clark v. Village of Hemingford, 147 Neb. 1044, 26 N.W.2d 15 (1947).

48-175. Summons; service.

(1) Whenever the post office address of the defendant is known or may be ascertained by the officer or person charged with the duty of serving the same, such summons may be served by such officer or person by certified mail.

(2) In the event the party to be served, in accordance with subsection (1) of this section, is a corporation, a partnership, or a limited liability company, a certified copy of the summons shall be directed to the proper officer, agent, or member of such organization who is authorized by law to accept service of process.

(3) The officer in making his or her return of all processes served, in accordance with subsection (1) or (2) of this section, shall append to and file with the original return the return receipt as herein set forth. Any judge of the Nebraska Workers' Compensation Court may serve or cause to be served such summons by certified mail as provided in this section.

Source:Laws 1935, c. 57, § 13, p. 192; C.S.Supp.,1941, § 48-174; R.S.1943, § 48-175; Laws 1953, c. 163, § 2, p. 513; Laws 1957, c. 242, § 41, p. 853; Laws 1983, LB 447, § 69; Laws 1986, LB 811, § 107; Laws 1993, LB 121, § 285.

Annotations

Where on appeal there was timely service in fact of petition on adverse party and no prejudice resulted from the use of regular mail instead of certified or registered mail, motion to dismiss was properly overruled. Bourn v. James, 191 Neb. 635, 216 N.W.2d 739 (1974).

Certified copy of summons must be served. Clark v. Village of Hemingford, 147 Neb. 1044, 26 N.W.2d 15 (1947).

Voluntary appearance entered by Attorney General in compensation case does not waive immunity of state from suit. Anstine v. State, 137 Neb. 148, 288 N.W. 525 (1939).

48-175.01. Nonresident employer; service of process; manner of service; continuance; record.

(1)(a) The performance of work in the State of Nebraska (i) by an employer, who is a nonresident of the State of Nebraska, (ii) by any resident employer who becomes a nonresident of this state after the occurrence of an injury to an employee, or (iii) by any agent of such an employer shall be deemed an appointment by such employer of the clerk of the Nebraska Workers' Compensation Court as a true and lawful attorney and agent upon whom may be served all legal processes in any action or proceeding against him or her, arising out of or under the provisions of the Nebraska Workers' Compensation Act, and such performance of work shall be a signification of the employer's agreement that any such process, which is so served in any action against him or her, shall be of the same legal force and validity as if served upon him or her personally within this state. The appointment of agent, thus made, shall not be revocable by death but shall continue and be binding upon the executor or administrator of such employer.

(b) For purposes of this section, performance of work shall include, but not be limited to, situations in which (i) the injury or injury resulting in death occurred within this state, (ii) the employment was principally localized within this state, or (iii) the contract of hire was made within this state.

(2) Service of such process, as referred to in subsection (1) of this section, shall be made by serving a copy thereof upon the clerk of the Nebraska Workers' Compensation Court, personally in his or her office or upon someone who, previous to such service, has been designated in writing by the clerk of the Nebraska Workers' Compensation Court as the person or one of the persons with whom such copy may be left for such service upon the clerk of the Nebraska Workers' Compensation Court, and such service shall be sufficient service upon the employer. In making such service, a copy of the petition and a copy of the process shall, within ten days after the date of service, be sent by the clerk of the Nebraska Workers' Compensation Court, or such person acting for him or her in his or her office, to the defendant by registered or certified mail addressed to the defendant's last-known address, and the defendant's return receipt and affidavit of the clerk of the Nebraska Workers' Compensation Court, or such person in his or her office acting for him or her, of compliance therewith shall be appended to such petition and filed in the office of the clerk of the Nebraska Workers' Compensation Court. The date of the mailing and the date of the receipt of the return card aforesaid shall be properly endorsed on such petition and filed by the clerk of the Nebraska Workers' Compensation Court, or someone acting for him or her.

(3) The Nebraska Workers' Compensation Court shall, on its own motion, order such continuance of answer day and trial date, as may to the compensation court seem necessary to afford the defendant reasonable opportunity to plead and to defend. No such continuance shall be for more than ninety days except for good cause shown.

(4) It shall be the duty of the clerk of the Nebraska Workers' Compensation Court to keep a record of all processes so served, in accordance with subsections (1) and (2) of this section, which record shall show the date of such service, and to so arrange and index such record as to make the same readily accessible and convenient for inspection.

Source:Laws 1957, c. 202, § 2, p. 708; Laws 1973, LB 150, § 2; Laws 1986, LB 811, § 108; Laws 2011, LB151, § 8.

48-176. Answer; filing; contents.

Within seven days after the return day of such summons the party at interest upon whom the same is served shall file an answer to such petition, which shall admit or deny the substantial averments of the petition, and shall state the contention of the defendant with reference to the matters in dispute as disclosed by the petition.

Source:Laws 1935, c. 57, § 13, p. 193; C.S.Supp.,1941, § 48-174; R.S.1943, § 48-176; Laws 1978, LB 649, § 7.

Annotations

Answer is required to state the contention of the defendant with respect to the matters in dispute. Shada v. Whitney, 172 Neb. 220, 109 N.W.2d 167 (1961).

Evidence of second injury was admissible under general denial. Towner v. Western Contracting Corp., 164 Neb. 235, 82 N.W.2d 253 (1957).

48-177. Hearing; judge; place; dismissal; procedure; manner of conducting hearings.

(1) At the time a petition or motion is filed, one of the judges of the Nebraska Workers' Compensation Court shall be assigned to hear the cause. It shall be heard in the county in which the accident occurred, except as otherwise provided in section 25-412.02 and except that, upon the written stipulation of the parties, filed with the compensation court at least fourteen days before the date of hearing, the cause may be heard in any other county in the state.

(2) Any such cause may be dismissed without prejudice to a future action (a) by the plaintiff, if represented by legal counsel, before the final submission of the case to the compensation court or (b) by the compensation court upon a stipulation of the parties that a dispute between the parties no longer exists.

(3) Notwithstanding subsection (1) of this section, all nonevidentiary hearings, and any evidentiary hearings approved by the compensation court and by stipulation of the parties, may be heard by the court telephonically or by videoconferencing or similar equipment at any location within the state as ordered by the court and in a manner that ensures the preservation of an accurate record. Hearings conducted in this manner shall be consistent with the public's access to the courts.

Source:Laws 1935, c. 57, §§ 13, 15, pp. 193, 195; C.S.Supp.,1941, §§ 48-174, 48-176; R.S.1943, § 48-177; Laws 1945, c. 113, § 8, p. 366; Laws 1949, c. 161, § 5, p. 413; Laws 1975, LB 97, § 8; Laws 1978, LB 649, § 8; Laws 1986, LB 811, § 109; Laws 1997, LB 128, § 6; Laws 2005, LB 13, § 29; Laws 2011, LB151, § 9.

Annotations

The procedure to dismiss a case under this section is analogous to a voluntary dismissal and removes the case from the compensation court's docket. Fentress v. Westin, Inc., 304 Neb. 619, 935 N.W.2d 911 (2019).

This section gives a workers' compensation plaintiff the explicit right to dismiss the cause without prejudice so long as the plaintiff is represented by counsel and requests dismissal before the final submission of the case to the court. Interiano-Lopez v. Tyson Fresh Meats, 294 Neb. 586, 883 N.W.2d 676 (2016).

This section is not jurisdictional; it simply specifies the venue for hearing the cause. Hofferber v. Hastings Utilities, 282 Neb. 215, 803 N.W.2d 1 (2011).

The right of a plaintiff in a workers' compensation case to voluntary dismissal is a right that is not a matter of judicial grace or discretion. Knapp v. Village of Beaver City, 273 Neb. 156, 728 N.W.2d 96 (2007).

A plaintiff in a suit before the Workers' Compensation Court does not have an absolute right to a dismissal of the suit without prejudice. Grady v. Visiting Nurse Assn., 246 Neb. 1013, 524 N.W.2d 559 (1994).

Absent statutory disqualification, bias, or other cause shown, it is not prejudicial for the one judge of the Workmen's Compensation Court to serve as one of the judges of that court on rehearing. Schademann v. Casey, 194 Neb. 149, 231 N.W.2d 116 (1975).

This and succeeding sections prescribe two procedures for processing workmen's compensation claims carrying over rules that governed the compensation commissioner. Adler v. Jerryco Motors, Inc., 187 Neb. 757, 193 N.W.2d 757 (1972).

Initial hearing is before one judge of the workmen's compensation court. Light v. Nebraska Workmen's Compensation Court, 166 Neb. 540, 89 N.W.2d 833 (1958).

Compensation case may be heard by stipulation of parties in appeal from compensation court and by the district court for any county, and a party invoking the court's jurisdiction is estopped to object thereto afterward. McCall v. Hamilton County Farmers Telephone Assn., 135 Neb. 70, 280 N.W. 254 (1938).

48-178. Hearing; judgment; when conclusive; record of proceedings; costs; payment.

The judge shall make such findings and orders, awards, or judgments as the Nebraska Workers' Compensation Court or judge is authorized by law to make. Such findings, orders, awards, and judgments shall be signed by the judge before whom such proceedings were had. When proceedings are had before a judge of the compensation court, his or her findings, orders, awards, and judgments shall be conclusive upon all parties at interest unless reversed or modified upon appeal as hereinafter provided. A shorthand record or tape recording shall be made of all testimony and evidence submitted in such proceedings. The compensation court or judge thereof, at the party's expense, may appoint a court reporter or may direct a party to furnish a court reporter to be present and report or, by adequate mechanical means, to record and, if necessary, transcribe proceedings of any hearing. The charges for attendance shall be paid initially to the reporter by the employer or, if insured, by the employer's workers' compensation insurer. The charges shall be taxed as costs and the party initially paying the expense shall be reimbursed by the party or parties taxed with the costs. The compensation court or judge thereof may award and tax such costs and apportion the same between the parties or may order the compensation court to pay such costs as in its discretion it may think right and equitable. If the expense is unpaid, the expense shall be paid by the party or parties taxed with the costs or may be paid by the compensation court. The reporter shall faithfully and accurately report or record the proceedings.

Source:Laws 1935, c. 57, § 13, p. 193; C.S.Supp.,1941, § 48-174; R.S.1943, § 48-178; Laws 1945, c. 113, § 9, p. 367; Laws 1986, LB 811, § 110; Laws 1992, LB 360, § 20; Laws 2005, LB 238, § 14; Laws 2011, LB151, § 10.

Annotations

Hearing before one judge is authorized. Shada v. Whitney, 172 Neb. 220, 109 N.W.2d 167 (1961).

Where there is no increase or decrease in incapacity to work, award is conclusive unless reversed or modified on appeal. Riedel v. Smith Baking Co., 150 Neb. 28, 33 N.W.2d 287 (1948).

When a judge of the compensation court enters a judgment which he is authorized by law to make, such judgment is conclusive on all parties at interest. Gilmore v. State, 146 Neb. 647, 20 N.W.2d 918 (1945).

A party invoking the court's jurisdiction in a case where a court has jurisdiction of the subject matter is estopped to object thereto afterward. McCall v. Hamilton County Farmers Telephone Assn., 135 Neb. 70, 280 N.W. 254 (1938).

Awards for compensation cannot be based on possibilities. O'Connor v. Abbott, 134 Neb. 471, 279 N.W. 207 (1938).

Parties are entitled to a final determination of the character of the disability, the full amount to be recovered and times when this amount shall be paid. Dymak v. Haskins Bros. & Co., 132 Neb. 308, 271 N.W. 860 (1937).

48-178.01. Payment of compensation when claimant's right to compensation not in issue.

Whenever any petition is filed and the claimant's right to compensation is not in issue, but the issue of liability is raised as between an employer, a workers' compensation insurer, or a risk management pool or between two or more employers, workers' compensation insurers, or risk management pools, the Nebraska Workers' Compensation Court may order payment of compensation to be made immediately by one or more of such employers, workers' compensation insurers, or risk management pools. When the issue is finally resolved, an employer, workers' compensation insurer, or risk management pool held not liable shall be reimbursed for any such payments by the employer, workers' compensation insurer, or risk management pool held liable.

Source:Laws 1971, LB 572, § 17; Laws 1986, LB 811, § 111; Laws 1987, LB 398, § 47; Laws 2005, LB 238, § 15.

Cross References

Risk management pool, defined, see section 44-4303.

Annotations

The Workers' Compensation Court has no jurisdiction to determine workers' compensation insurance coverage disputes. Thomas v. Omega Re-Bar, Inc., 234 Neb. 449, 451 N.W.2d 396 (1990).

This section applies only where the claimant's right to recovery was not at issue and the compensation court has entered an order of immediate payment. Bryson v. Vickers, Inc., 7 Neb. App. 595, 584 N.W.2d 44 (1998).

48-179. Repealed. Laws 2011, LB 151, § 20.

48-180. Findings, order, award, or judgment; modification; effect.

The Nebraska Workers' Compensation Court may, on its own motion or on the motion of any party, modify or change its findings, order, award, or judgment at any time before appeal and within fourteen days after the date of such findings, order, award, or judgment. The time for appeal shall not be lengthened because of the modification or change unless the correction substantially changes the result of the award.

Source:Laws 1935, c. 57, § 13, p. 193; C.S.Supp.,1941, § 48-174; R.S.1943, § 48-180; Laws 1986, LB 811, § 113; Laws 1992, LB 360, § 22; Laws 2011, LB151, § 11.

Annotations

1. Scope of modification permitted

2. Nunc pro tunc

3. Court's general powers

4. Miscellaneous

1. Scope of modification permitted

This section does not limit the reasons for which a compensation court may modify its findings, order, award, or judgment. Parks v. Hy-Vee, 307 Neb. 927, 951 N.W.2d 504 (2020).

Power is granted to workmen's compensation court to correct ambiguity or clerical error on its own motion. Light v. Nebraska Workmen's Compensation Court, 166 Neb. 540, 89 N.W.2d 833 (1958).

The 2011 amendment to this section eliminated a limitation to a modification under this section to permit a compensation court to modify only through nunc pro tunc orders and expanded a compensation court's ability to modify a previously entered judgment. Carr v. Ganz, 26 Neb. App. 14, 916 N.W.2d 437 (2018).

The compensation court may, on its own motion or on the motion of any party, modify or change its findings, order, award, or judgment at any time before appeal and within 14 days after the date of such findings, order, award, or judgment. Yost v. Davita, Inc., 23 Neb. App. 482, 873 N.W.2d 435 (2015).

2. Nunc pro tunc

The office of an order nunc pro tunc is to correct a record which has been made so that it truly records the actions had, which, through inadvertence or mistake, were not truly recorded. It is not the function of an order nunc pro tunc to change or revise a judgment or order, or to set aside a judgment actually rendered, even though such order was not the order intended. Green v. Drivers Mgmt., Inc., 263 Neb. 197, 639 N.W.2d 94 (2002).

This section is the statutory embodiment of nunc pro tunc principles, and pursuant to this section, the Nebraska Workers' Compensation Court is statutorily authorized to issue proper nunc pro tunc orders. Walsh v. City of Omaha, 11 Neb. App. 747, 660 N.W.2d 187 (2003).

3. Court's general powers

In the absence of specific statutory authority to correct an ambiguity by a procedure other than as described in this section, the compensation court does not have authority to enter an order revising one of its awards. Black v. Sioux City Foundry Co., 224 Neb. 824, 401 N.W.2d 679 (1987).

In Nebraska, in civil cases, a court of general jurisdiction has the inherent power to vacate or modify its own judgment during the term at which it was rendered. This is a common law rule which does not apply to statutory tribunals such as the compensation court. Smith v. Fremont Contract Carriers, 218 Neb. 652, 358 N.W.2d 211 (1984).

The Workmen's Compensation Court is a tribunal of limited and special jurisdiction and has only such authority as has been conferred on it by statute. A decree or award in a compensation case is final unless the petitioner seeking to reopen the case can bring it within the terms of any statute to that effect. Smith v. Fremont Contract Carriers, 218 Neb. 652, 358 N.W.2d 211 (1984).

4. Miscellaneous

This section and section 48-170 of the Nebraska Workers' Compensation Act are clear that if the court fails to modify its order within 10 days and the parties fail to file an application for review within 14 days of the original order, such order becomes final and binding upon the parties. Thach v. Quality Pork International, 253 Neb. 544, 570 N.W.2d 830 (1997).

The Workers' Compensation Court lacks jurisdiction to consider a motion seeking modification of judgment if the motion is filed more than 10 days after entry of the judgment that is to be modified. Dobson-Grosz v. University of Neb. Med. Ctr., 1 Neb. App. 434, 499 N.W.2d 83 (1993).

48-181. Repealed. Laws 2011, LB 7, § 1.

48-182. Notice of appeal; bill of exceptions; requirements; waiver of payment; when; extension of time; filing of order.

In case either party at interest refuses to accept any final order of the Nebraska Workers' Compensation Court, such party may, within thirty days thereafter, file with the compensation court a notice of appeal and at the same time the notice of appeal is filed, file with the compensation court a praecipe for a bill of exceptions. Within seven weeks from the date the notice of appeal is filed, the court reporter or transcriber shall deliver to the clerk of the Nebraska Workers' Compensation Court a bill of exceptions which shall include a transcribed copy of the testimony and the evidence taken before the compensation court at the hearing, which transcribed copy when certified to by the person who made or transcribed the record shall constitute the bill of exceptions. The transcript and bill of exceptions shall be paid for by the party ordering the same, except that upon the affidavit of any claimant for workers' compensation, filed with or before the praecipe, that he or she is without means with which to pay and unable to secure such means, payment may, in the discretion of the compensation court, be waived as to such claimant and the bill of exceptions shall be paid for by the compensation court in the same manner as other compensation court expenses.

The procedure for preparation, settlement, signature, allowance, certification, filing, and amendment of a bill of exceptions shall be regulated and governed by rules of practice prescribed by the Supreme Court except as otherwise provided in this section.

When a bill of exceptions has been ordered according to law and the court reporter or transcriber fails to prepare and file the bill of exceptions with the clerk of the Nebraska Workers' Compensation Court within seven weeks from the date the notice of appeal is filed, the Supreme Court may, on the motion of any party accompanied by a proper showing, grant additional time for the preparation and filing of the bill of exceptions under such conditions as the court may require. Applications for such an extension of time shall be regulated and governed by rules of practice prescribed by the Supreme Court. A copy of such order granting an extension of time shall be filed with the Nebraska Workers' Compensation Court by the party requesting such extension within five days after the date of such order.

Source:Laws 1935, c. 57, §§ 13, 15, pp. 194, 195; C.S.Supp.,1941, §§ 48-174, 48-176; R.S.1943, § 48-182; Laws 1967, c. 294, § 2, p. 801; Laws 1971, LB 252, § 1; Laws 1973, LB 192, § 1; Laws 1975, LB 187, § 13; Laws 1986, LB 811, § 114; Laws 1986, LB 529, § 51; Laws 1991, LB 732, § 111; Laws 1992, LB 360, § 23; Laws 2011, LB151, § 12; Laws 2013, LB141, § 2.

Annotations

Appeals from a workers' compensation trial court to a review panel are controlled by the statutory provisions found in the Nebraska Workers' Compensation Act, and specifically, section 48-179 and this section, which provide for the review procedure for appeals brought from the trial court to the review panel. Section 48-179 and this section pertain to the same subject matter and must be construed, if at all possible, as consistent with one another and in a sensible manner. Notwithstanding the individuation of examples of rulings listed in section 48-179, this section makes clear that when reading the two provisions together, an order appealed from a workers' compensation trial court to a review panel must be a "final order" of the workers' compensation trial court. Neither section 48-179 nor this section defines a "final order" for purposes of a workers' compensation appeal from a trial court to a review panel, and accordingly, one must look to section 25-1902, which defines three types of final orders which may be reviewed on appeal, and the case law under it to define "final order" for purposes of an appeal from the trial court to the review panel. Thompson v. Kiewit Constr. Co., 258 Neb. 323, 603 N.W.2d 368 (1999).

On appeal to district court, the filing of a petition and transcript of the proceedings is required. Spangler v. Terry Carpenter, Inc., 177 Neb. 740, 131 N.W.2d 159 (1964).

Motion for new trial is not a necessary prerequisite to trial de novo on appeal. Peek v. Ayres Auto Supply, 155 Neb. 233, 51 N.W.2d 387 (1952).

Filing of verified petition on appeal is required. Solheim v. Hastings Housing Co., 151 Neb. 264, 37 N.W.2d 212 (1949).

Both petition and transcript must be filed within fourteen days to confer jurisdiction on appeal. Geller v. Elastic Stop Nut Corporation, 147 Neb. 330, 23 N.W.2d 271 (1946).

Appeal from award of compensation court sitting en banc is complete when petition and transcript are filed in district court within fourteen days. Henderson v. Wilson, 137 Neb. 693, 291 N.W. 96 (1940).

On appeal from the compensation court, the bill of exceptions need not be served upon the adverse party or his attorney before it is filed in district court. Wrede v. City of David City, 137 Neb. 194, 288 N.W. 542 (1939).

An award wherein the court ordered a further hearing on medical expenses and mileage is not a final order. Hamm v. Champion Manuf. Homes, 11 Neb. App. 183, 645 N.W.2d 571 (2002).

48-182.01. Repealed. Laws 1986, LB 811, § 149.

48-183. Repealed. Laws 1975, LB 187, § 19.

48-184. Repealed. Laws 1975, LB 187, § 19.

48-185. Appeal; procedure; judgment by Nebraska Workers' Compensation Court; effect; grounds for modification or reversal.

Any appeal from the judgment of the Nebraska Workers' Compensation Court shall be prosecuted and the procedure, including the designation of parties, handling of costs and the amounts thereof, filing of briefs, certifying the opinion of the Supreme Court or decision of the Court of Appeals to the compensation court, handling of the bill of exceptions, and issuance of the mandate, shall be in accordance with the general laws of the state and procedures regulating appeals in actions at law from the district courts except as otherwise provided in section 48-182 and this section. The proceedings to obtain a reversal, vacation, or modification of judgments, awards, or final orders made by the compensation court shall be by filing in the office of the clerk of the Nebraska Workers' Compensation Court, within thirty days after the entry of such judgment, decree, or final order, a notice of appeal signed by the appellant or his or her attorney of record. No motion for a new trial shall be filed. An appeal shall be deemed perfected and the appellate court shall have jurisdiction of the cause when such notice of appeal shall have been filed in the office of the clerk of the Nebraska Workers' Compensation Court, and after being so perfected no appeal shall be dismissed without notice, and no step other than the filing of such notice of appeal shall be deemed jurisdictional. The clerk of the Nebraska Workers' Compensation Court shall forthwith forward a certified copy of such notice of appeal to the Clerk of the Supreme Court, whereupon the Clerk of the Supreme Court shall forthwith docket such appeal. Within thirty days after the date of filing of notice of appeal, the clerk of the Nebraska Workers' Compensation Court shall prepare and file with the Clerk of the Supreme Court a transcript certified as a true copy of the proceedings contained therein. The transcript shall contain the judgment, decree, or final order sought to be reversed, vacated, or modified and all pleadings filed with such clerk. Neither the form nor the substance of such transcript shall affect the jurisdiction of the appellate court. Such appeal shall be perfected within thirty days after the entry of judgment by the compensation court, the cause shall be advanced for argument before the appellate court, and the appellate court shall render its judgment and write an opinion, if any, in such cases as speedily as possible. The judgment made by the compensation court shall have the same force and effect as a jury verdict in a civil case. A judgment, order, or award of the compensation court may be modified, reversed, or set aside only upon the grounds that (1) the compensation court acted without or in excess of its powers, (2) the judgment, order, or award was procured by fraud, (3) there is not sufficient competent evidence in the record to warrant the making of the order, judgment, or award, or (4) the findings of fact by the compensation court do not support the order or award.

Source:Laws 1935, c. 57, § 13, p. 195; C.S.Supp.,1941, § 48-174; R.S.1943, § 48-185; Laws 1953, c. 165, § 1, p. 517; Laws 1957, c. 207, § 1, p. 726; Laws 1975, LB 187, § 14; Laws 1986, LB 811, § 115; Laws 1986, LB 529, § 52; Laws 1991, LB 732, § 112; Laws 1992, LB 360, § 24; Laws 1999, LB 43, § 25; Laws 2011, LB151, § 13.

Annotations

1. Perfecting appeal

2. Review

3. Miscellaneous

1. Perfecting appeal

After final judgment, the filing of a motion to withdraw a party's rest is not treated as a motion for a new trial and fails to extend the time for appeal. Battiato v. Falstaff Brewing Corp., 212 Neb. 474, 323 N.W.2d 105 (1982).

Appeal may be taken within thirty days from overruling of motion for a new trial. Meester v. Schultz, 151 Neb. 614, 38 N.W.2d 739 (1949).

Method of perfecting appeal to Supreme Court, including settling bill of exceptions, is governed by general laws regulating appeals in actions at law. Ratay v. Wylie, 147 Neb. 201, 22 N.W.2d 622 (1946).

Appeal to Supreme Court from district court is governed by general laws regulating appeals except the appeal must be perfected within thirty days from entry of judgment. Adkisson v. Gamble, 143 Neb. 417, 9 N.W.2d 711 (1943).

Upon appeal to Supreme Court in a compensation case, jurisdiction is conferred where transcript is filed within thirty days and bill of exceptions may be filed thereafter in accordance with general law. Fallis v. Vogel, 137 Neb. 598, 290 N.W. 461 (1940).

Appeal from district court should be dismissed for lack of jurisdiction, where transcript in compensation case was not filed within thirty days of the entry of the judgment. Dobesh v. Associated Asphalt Contractors, 137 Neb. 1, 288 N.W. 32 (1939).

Statutory fees for filing appeal in Supreme Court do not apply to cases under workmen's compensation law. Scott v. Dohrse, 130 Neb. 847, 266 N.W. 709 (1936).

2. Review

Pursuant to this section, an appellate court may modify, reverse, or set aside a Workers' Compensation Court decision only when (1) the compensation court acted without or in excess of its powers; (2) the judgment, order, or award was procured by fraud; (3) there is not sufficient competent evidence in the record to warrant the making of the order, judgment, or award; or (4) the findings of fact by the compensation court do not support the order or award. Picard v. P & C Group 1, 306 Neb. 292, 945 N.W.2d 183 (2020); Aboytes-Mosqueda v. LFA Inc., 306 Neb. 277, 944 N.W.2d 765 (2020); Arroyo v. Caring for People Servs., 29 Neb. App. 93, 952 N.W.2d 11 (2020); Moss v. C&A Indus., 25 Neb. App. 877, 915 N.W.2d 615 (2018); Moyers v. International Paper Co., 25 Neb. App. 282, 905 N.W.2d 87 (2017).

Findings of fact made by the Workers' Compensation Court have the same force and effect as a jury verdict and will not be set aside unless clearly erroneous. Hintz v. Farmers Co-op Assn., 297 Neb. 903, 902 N.W.2d 131 (2017); Hull v. Aetna Ins. Co., 247 Neb. 713, 529 N.W.2d 783 (1995).

An appellate court may modify an award of the compensation court when there is not sufficient competent evidence in the record to support the award. Nichols v. Fairway Bldg. Prods., 294 Neb. 657, 884 N.W.2d 124 (2016).

Where there was sufficient evidence to support a factual finding that knee surgery was not required by the prior work-related injury, a three-judge panel of the Workers' Compensation Court did not have grounds under this section to reverse the decision of a single judge of the Workers' Compensation Court denying compensability for the surgery. Pearson v. Archer-Daniels-Midland Milling Co., 285 Neb. 568, 828 N.W.2d 154 (2013).

An appellate court may modify, reverse, or set aside a Workers' Compensation Court decision only upon the grounds set forth in this section. Worline v. ABB/Alstom Power Integrated CE Services, 272 Neb. 797, 725 N.W.2d 148 (2006).

Pursuant to this section, an appellate court may modify, reverse, or set aside a Workers' Compensation Court decision only when (1) the compensation court acted without or in excess of its powers, (2) the judgment, order, or award was procured by fraud, (3) there is not sufficient competent evidence in the record to warrant the making of the order, judgment, or award, or (4) the findings of fact by the compensation court do not support the order or award. Torres v. Aulick Leasing, 258 Neb. 859, 606 N.W.2d 98 (2000); Variano v. Dial Corp., 256 Neb. 318, 589 N.W.2d 845 (1999); Crouch v. Goodyear Tire & Rubber Co., 255 Neb. 128, 582 N.W.2d 356 (1998); Owen v. American Hydraulics, Inc., 254 Neb. 685, 578 N.W.2d 57 (1998).

This section does not provide for appeal to the Supreme Court or the Court of Appeals without a properly constituted review by the Workers' Compensation Court. Hagelstein v. Swift-Eckrich Div. of ConAgra, 257 Neb. 312, 597 N.W.2d 394 (1999).

The findings of fact made by a workers' compensation court trial judge are not to be disturbed upon appeal to a workers' compensation court review panel unless they are clearly wrong on the evidence or the decision was contrary to law. McBee v. Goodyear Tire & Rubber Co., Inc., 255 Neb. 903, 587 N.W.2d 687 (1999).

This section precludes an appellate court's substitution of its view of the facts for that of the Workers' Compensation Court if the record contains evidence to substantiate the factual conclusions reached by the Workers' Compensation Court. Cords v. City of Lincoln, 249 Neb. 748, 545 N.W.2d 112 (1996).

In testing the sufficiency of evidence to support findings of fact made by the Nebraska Workers' Compensation Court, the evidence must be considered in the light most favorable to the successful party. Paulsen v. State, 249 Neb. 112, 541 N.W.2d 636 (1996).

This section precludes an appellate court from substituting its view of the facts for that of the compensation court if the record contains evidence to substantiate the factual conclusions reached by the compensation court. Surratt v. Watts Trucking, 249 Neb. 35, 541 N.W.2d 41 (1995).

Factual determinations made by the Workers' Compensation Court will not be set aside on appeal unless such determinations are clearly erroneous. An appellate court may not substitute its view of the facts for that of the compensation court if the record contains evidence to substantiate the factual conclusions reached by the compensation court. Aken v. Nebraska Methodist Hosp., 245 Neb. 161, 511 N.W.2d 762 (1994).

Findings of fact by the Workers' Compensation Court on rehearing have the same force and effect as a jury verdict in a civil case and will not be set aside on appeal where there is evidence sufficient to support them. Willuhn v. Omaha Box Co., 240 Neb. 571, 483 N.W.2d 130 (1992); McGee v. Panhandle Technical Sys., 223 Neb. 56, 387 N.W.2d 709 (1986).

Procedural and evidentiary rulings of the Workers' Compensation Court may predicate reversal or modification of the court's order on appeal if the court in so ruling acted without or in excess of its powers. As the trier of fact, the Workers' Compensation Court is the sole judge of the credibility of witnesses and the weight to be given testimony; furthermore, the appellate court will presume the compensation court resolved any conflicts in the evidence in favor of the successful party. Findings of fact by the Workers' Compensation Court have the same force and effect as a jury verdict and will, therefore, not be set aside unless clearly wrong. Hernandez v. Hawkins Construction Co., 240 Neb. 129, 480 N.W.2d 424 (1992).

Findings of fact by the Nebraska Workers' Compensation Court after rehearing have the same force and effect as a jury verdict in a civil case and will not be set aside on appeal unless clearly wrong. Cline v. County Seat Lounge, 239 Neb. 42, 473 N.W.2d 404 (1991); Brazee v. City of Lincoln, 234 Neb. 680, 452 N.W.2d 529 (1990); Elliott v. Midlands Animal Products, 229 Neb. 823, 428 N.W.2d 920 (1988); Gilbert v. Sioux City Foundry, 228 Neb. 379, 422 N.W.2d 367 (1988); Knudsen v. Metropolitan Utilities Dist., 220 Neb. 902, 374 N.W.2d 56 (1985); Guerra v. Iowa Beef Processors, Inc., 211 Neb. 433, 318 N.W.2d 887 (1982); White v. Father Flanagan's Boys' Home, 207 Neb. 528, 300 N.W.2d 15 (1980).

Under subsection (4) of this section, an order based on findings of fact made by the compensation court may be reversed if those findings do not support the court's order. Clobes v. Nebraska Boxed Beef, 238 Neb. 612, 472 N.W.2d 893 (1991).

To determine whether findings of fact made by the compensation court support an order granting or denying vocational rehabilitation benefits, the Supreme Court must consider the findings of fact in light of section 48-162.01. Yager v. Bellco Midwest, 236 Neb. 888, 464 N.W.2d 335 (1991).

Under subsection (4) of this section, an order based on findings of fact made by the compensation court may be reversed if those findings do not support the court's order. Yager v. Bellco Midwest, 236 Neb. 888, 464 N.W.2d 335 (1991).

The Workers' Compensation Court's judgment may not be set aside on appeal where there is evidence sufficient to support its judgment. Bindrum v. Foote & Davies, 235 Neb. 903, 457 N.W.2d 828 (1990); Luehring v. Tibbs Constr. Co., 235 Neb. 883, 457 N.W.2d 815 (1990).

Regarding facts determined and findings made after rehearing in the compensation court, this section precludes the Supreme Court's substitution of its view of facts for that of the compensation court if the record contains evidence to substantiate the factual conclusions reached by the compensation court. Gardner v. Beatrice Foods Co., 231 Neb. 464, 436 N.W.2d 542 (1989).

The findings of fact of the Nebraska Workers' Compensation Court have the same force and effect as a jury verdict in a civil case and will not be set aside where they are supported by credible evidence and are not clearly wrong. Kalhorn v. City of Bellevue, 227 Neb. 880, 420 N.W.2d 713 (1988).

Where the record presents nothing more than conflicting medical testimony, the Supreme Court will not substitute its judgment for that of the Workers' Compensation Court. The nature and number of examinations by a physician are factors affecting credibility of a medical witness and weight to be attached to testimony from such witness. Vredeveld v. Gelco Express, 222 Neb. 363, 383 N.W.2d 780 (1986).

The findings of fact made by the Workers' Compensation Court after rehearing will not be set aside unless clearly wrong. Gast v. Continental Can Co., 220 Neb. 456, 370 N.W.2d 172 (1985).

Where there is not sufficient competent evidence to support an award, this court must modify, reverse, or set aside the award. Hare v. Watts Trucking Service, 220 Neb. 403, 370 N.W.2d 143 (1985).

Under Nebraska law, it is well settled that findings of fact by the Workmen's Compensation Court on rehearing have the same force and effect as a jury verdict in a civil case and will not be set aside unless clearly wrong. Rutt v. Midwest Refuse Service, 220 Neb. 255, 369 N.W.2d 93 (1985); Paris v. J. A. Baldwin Mfg. Co., 216 Neb. 151, 342 N.W.2d 198 (1984); Earnest v. Lutheran Memorial Hospital, 211 Neb. 438, 319 N.W.2d 66 (1982); Shaw v. Gooch Feed Mill Corp., 210 Neb. 17, 312 N.W.2d 682 (1981).

The findings of fact made by the Nebraska Workmen's Compensation Court on rehearing have the same force and effect as a jury verdict in a civil case and will not be reversed or set aside unless there is insufficient evidence in the record to warrant the award. Tranmer v. Mass Merchandisers, 218 Neb. 151, 352 N.W.2d 610 (1984).

The compensation court's findings of fact after rehearing have the same effect as a jury verdict in a civil case and will not be set aside unless clearly wrong. The decision of the compensation court after rehearing must be considered in the light most favorable to the successful party, and every controverted fact must be decided in its favor. Noah v. Creighton Omaha Health Care Corp., 213 Neb. 169, 328 N.W.2d 203 (1982).

The Supreme Court is not at liberty to substitute its views for those of the Workmen's Compensation Court regarding questions of fact if there is evidence in the record to substantiate its conclusions. Thomas v. Kayser-Roth Corp., 211 Neb. 704, 320 N.W.2d 111 (1982).

Where there is not sufficient competent evidence in the record to warrant the making of the award, or the findings of fact do not support the award, the award must be modified, reversed, or set aside by the Supreme Court on appeal. A workmen's compensation award cannot be based upon possibility or speculation. Husted v. Peter Kiewit & Sons Constr. Co., 210 Neb. 109, 313 N.W.2d 248 (1981).

An award of the Workmen's Compensation Court will be reversed or modified where there is not sufficient evidence in the record to warrant the order, judgment, or award, or the findings of fact do not support the order or award. Akins v. Happy Hour, Inc., 209 Neb. 236, 306 N.W.2d 914 (1981).

The final determination of whether there exists a master and servant relationship is an issue of law for this court and not for the trier of fact. Stephens v. Celeryvale Transport, Inc., 205 Neb. 12, 286 N.W.2d 420 (1979).

Under the provisions of this section, the findings of fact made by the Nebraska Workmen's Compensation Court after rehearing have the same force and effect as a jury verdict in a civil case. There is no longer any provision in the statutes for de novo review by the Supreme Court of workmen's compensation cases. Herold v. Constructors, Inc., 201 Neb. 697, 271 N.W.2d 542 (1978).

In testing sufficiency of evidence to support findings of fact of Workmen's Compensation Court after rehearing, it must be considered in light most favorable to successful party. Salinas v. Cyprus Industrial Minerals Co., 197 Neb. 198, 247 N.W.2d 451 (1976).

In workmen's compensation cases, the judgment, order, or award will not be modified on appeal for insufficiency of the evidence, if there is reasonable competent evidence to support the findings of fact upon which it is based. Voycheske v. Osborn, 196 Neb. 510, 244 N.W.2d 74 (1976).

The Supreme Court in a workmen's compensation case may set aside the judgment of the district court upon grounds provided by statute only which include "(3) the findings of fact are not supported by the evidence as disclosed by the record." McPhillips v. Knox Constr. Co., Inc., 190 Neb. 306, 208 N.W.2d 261 (1973).

In a workmen's compensation proceeding, a district court finding against a party will be set aside if the evidence compels a finding for that party. Adler v. Jerryco Motors, Inc., 187 Neb. 757, 193 N.W.2d 757 (1972).

Under this section, unless the district court acted without or in excess of its powers or the judgment, order, or award was procured by fraud, the judgment, order, or award may be modified or set aside only if the findings of fact do not support it. Conn v. ITL, Inc., 187 Neb. 112, 187 N.W.2d 641 (1971).

If there is reasonable competent evidence to support findings of fact in trial court's judgment, order or award will not be modified for insufficiency of the evidence. Cause will be considered de novo in the Supreme Court only where the findings of fact are not supported by the evidence as disclosed by the record. Conflicting holdings in Rapp v. Hale, 170 Neb. 620, 103 N.W.2d 851 (1960), overruled. Gifford v. Ag Lime, Sand & Gravel Co., 187 Neb. 57, 187 N.W.2d 285 (1971).

Supreme Court may only modify or set aside order of district court on four grounds. Turpin v. State, 135 Neb. 389, 281 N.W. 800 (1938).

If award for permanent total disability is not supported by the evidence, it will be set aside. Pillard v. Lincoln Packing Co., 133 Neb. 898, 277 N.W. 587 (1938).

Under this section, the judgment made by the compensation court shall have the same force and effect as a jury verdict in a civil case and may be modified, reversed, or set aside only upon the grounds that (1) the compensation court acted without or in excess of its powers; (2) the judgment, order, or award was procured by fraud; (3) there is not sufficient competent evidence in the record to warrant the making of the order, judgment, or award; or (4) the findings of fact by the compensation court do not support the order or award. Coughlin v. County of Colfax, 27 Neb. App. 41, 926 N.W.2d 675 (2019).

An appellate court may modify, reverse, or set aside a Workers' Compensation Court decision only when (1) the compensation court acted without or in excess of its powers; (2) the judgment, order, or award was procured by fraud; (3) there is no sufficient competent evidence in the record to warrant the making of the order, judgment, or award; or (4) the findings of fact by the compensation court do not support the order or award. Nerison v. National Fire Ins. Co. of Hartford, 17 Neb. App. 161, 757 N.W.2d 21 (2008); McKay v. Hershey Food Corp., 16 Neb. App. 79, 740 N.W.2d 378 (2007); Davis v. Crete Carrier Corp., 15 Neb. App. 241, 725 N.W.2d 562 (2006); Shade v. Ayars & Ayars, Inc., 2 Neb. App. 730, 513 N.W.2d 881 (1994).

An appellate court may not substitute its view of the facts for that of the Workers' Compensation Court if the record contains sufficient evidence to substantiate the factual conclusions reached by the Workers' Compensation Court. Nerison v. National Fire Ins. Co. of Hartford, 17 Neb. App. 161, 757 N.W.2d 21 (2008).

This section precludes an appellate court's substitution of its view of the facts for that of the Workers' Compensation Court if the record contains sufficient evidence to substantiate the factual conclusions reached by the Workers' Compensation Court. Godsey v. Casey's General Stores, 15 Neb. App. 854, 738 N.W.2d 863 (2007).

In determining whether to affirm, modify, reverse, or set aside a judgment of a Workers' Compensation Court review panel, a higher appellate court reviews the findings of the trial judge who conducted the original hearing. Mendoza v. Pepsi Cola Bottling Co., 8 Neb. App. 778, 603 N.W.2d 156 (1999).

In an appeal from a review where the panel affirms the order of the trial judge, the higher appellate court may still modify, revise, or set aside the order of the review panel if the panel was clearly wrong in failing to find that (1) the trial judge acted without or in excess of his or her powers; (2) the judgment, order, or award was procured by fraud; (3) there is not sufficient competent evidence in the record to warrant the making of the order, judgment, or award; or (4) the findings of fact by the trial judge do not support the order or award. Fordham v. West Lumber Co., 2 Neb. App. 716, 513 N.W.2d 52 (1994).

If a Workers' Compensation Court review panel makes different findings of fact from those of the trial judge when there is evidence in the record before the trial judge to support the judge's findings, then the review panel has acted in excess of its powers. Pearson v. Lincoln Telephone Co., 2 Neb. App. 703, 513 N.W.2d 361 (1994).

3. Miscellaneous

Sufficient evidence supported the Workers' Compensation Court's finding that a workers' compensation claimant's mental illness arose out of a compensable workplace injury sustained during an assault by a patient at the hospital where claimant worked as a nurse and the aggravation of that injury in two further workplace assaults. The claimant was consistently employed for over 15 years before the first assault without significant or relevant physical or mental incident, during which time she worked, was married, and had a family, and the claimant required extensive treatment after the three assaults, including electroconvulsive therapy. Hynes v. Good Samaritan Hosp., 291 Neb. 757, 869 N.W.2d 78 (2015).

A direct appeal to the Supreme Court from the order of a single judge of the Workers' Compensation Court is not authorized. Schmidt v. Shoftstall Alfalfa, 239 Neb. 248, 475 N.W.2d 523 (1991).

An award of vocational rehabilitation benefits must be supported by evidence which shows the workman is unable to perform work for which he has previous training and experience. Bender v. Norfolk Iron & Metal Co., 224 Neb. 706, 400 N.W.2d 859 (1987).

A good-faith conflict due to self-contradiction of an expert's opinions presents a question to be resolved by the trier of fact. Vredeveld v. Gelco Express, 222 Neb. 363, 383 N.W.2d 780 (1986).

Workmen's Compensation Court denial of benefits, to applicant with blood alcohol content of .175 percent when injured, affirmed. Sandage v. Adolf's Roofing, Inc., 198 Neb. 539, 254 N.W.2d 77 (1977).

A compensable injury to the ball and socket of the hip joint, where the residual impairment is not limited to the leg, is not a schedule injury under section 48-121, subdivision (3), but a disability under subdivision (1) or (2) relating to earning capacity and employability. Jeffers v. Pappas Trucking, Inc., 198 Neb. 379, 253 N.W.2d 30 (1977).

An accidental injury sustained by an employee on premises where employed, occurring during lunch period while employee is going to or coming from work, is an injury arising out of and in the course of employment. Buck v. Iowa Beef Processors, Inc., 198 Neb. 125, 251 N.W.2d 875 (1977).

Disability under this act refers to employability and earning capacity rather than loss of bodily functions. Johnson v. Village of Winnebago, 197 Neb. 845, 251 N.W.2d 176 (1977).

Compensation court disability award reversed where claimant suffered no objective injuries and only medical evidence negated disability assertion. Evans v. Gear Drilling Co., 197 Neb. 841, 251 N.W.2d 173 (1977).

Filing of transcript on appeal to Supreme Court was duty of clerk of district court. Miller v. Peterson, 165 Neb. 344, 85 N.W.2d 700 (1957).

Powers of district judge may be exercised at chambers. Mueller v. Keeley, 163 Neb. 613, 80 N.W.2d 707 (1957).

Hearsay evidence admitted without objection may sustain a finding of fact in compensation case. Maul v. Iowa-Nebraska Light & Power Co., 137 Neb. 128, 288 N.W. 532 (1939).

48-186. Accidents occurring outside state; hearing; location; exception.

In all cases when the accident occurred outside of the State of Nebraska, the hearing before a judge of the Nebraska Workers' Compensation Court shall be at Lincoln, Nebraska, or in any other county in the state at the discretion of the compensation court, unless otherwise stipulated by the parties at least fourteen days before the date of hearing.

Source:Laws 1935, c. 57, § 15, p. 195; C.S.Supp.,1941, § 48-176; R.S.1943, § 48-186; Laws 1975, LB 187, § 15; Laws 1986, LB 811, § 116; Laws 1989, LB 261, § 1.

Annotations

Where accident occurred in another state, appeal was taken to district court for Lancaster County. Krajeski v. Beem, 157 Neb. 586, 60 N.W.2d 651 (1953).

Nebraska act applies to workmen who are employed in Nebraska industries, even though injury may occur in performance of duties of workman in another state. McRae v. Ulrich, 147 Neb. 214, 22 N.W.2d 697 (1946).

48-187. Filing fees; clerks of courts; what permitted.

No filing fees shall be charged by the clerk of any court for any service required by the Nebraska Workers' Compensation Act except as provided in sections 48-138, 48-139, and 48-188.

Source:Laws 1935, c. 57, § 14, p. 195; C.S.Supp.,1941, § 48-175; R.S.1943, § 48-187; Laws 1959, c. 140, § 6, p. 548; Laws 1961, c. 235, § 1, p. 694; Laws 1961, c. 157, § 2, p. 481; Laws 1986, LB 811, § 117; Laws 1993, LB 757, § 28.

Annotations

No filing fee is required in workmen's compensation cases. Elliott v. Gooch Feed Mill Co., 147 Neb. 309, 23 N.W.2d 262 (1946).

Filing fees for appeals under Workmen's Compensation Act are not required. Lee v. Lincoln Cleaning & Dye Works, 144 Neb. 659, 14 N.W.2d 227 (1944).

All costs other than filing fees are taxable, and bond or cash deposit must be provided in perfecting appeal to Supreme Court. Hoffman v. State, 142 Neb. 821, 8 N.W.2d 200 (1943).

The Workmen's Compensation Act, being complete and independent in itself, amends the statutory provisions heretofore existing relating to fees on filing appeals in Supreme Court, and filing fee is not required on filing appeal to Supreme Court in compensation case. Scott v. Dohrse, 130 Neb. 847, 266 N.W. 709 (1936).

48-188. Order, award, or judgment; filed with district court; filing fee; effect.

Any order, award, or judgment by the Nebraska Workers' Compensation Court, or any judge thereof, which is certified by the clerk of the compensation court or any order, award, or judgment made pursuant to the Nebraska Workers' Compensation Act by the Court of Appeals or Supreme Court which is certified by the Clerk of the Supreme Court may, as soon as the same becomes conclusive upon the parties at interest, be filed with the district court of any county or counties in the State of Nebraska upon the payment of a fee of two dollars to the clerk of the district court or courts where such order, award, or judgment is filed. Upon filing, such order, award, or judgment shall have the same force and effect as a judgment of such district court or courts and all proceedings in relation thereto shall thereafter be the same as though the order, award, or judgment had been rendered in a suit duly heard and determined by such district court or courts.

Source:Laws 1935, c. 57, § 16, p. 196; C.S.Supp.,1941, § 48-177; R.S.1943, § 48-188; Laws 1951, c. 153, § 2, p. 623; Laws 1975, LB 187, § 16; Laws 1986, LB 811, § 118; Laws 1991, LB 732, § 113; Laws 2005, LB 13, § 30.

Annotations

The date on which a workers' compensation court award is filed in a district court pursuant to this section is the date of the judgment for purposes of computing when the judgment becomes dormant under section 25-1515. Weber v. Gas `N Shop, 278 Neb. 49, 767 N.W.2d 746 (2009).

The dormancy provisions of section 25-1515 apply to an award of the Nebraska Workers' Compensation Court which is filed in the district court pursuant to this section, and the date on which a workers' compensation award is filed in district court is the date of judgment for purposes of computing when the judgment becomes dormant. Allen v. Immanuel Med. Ctr., 278 Neb. 41, 767 N.W.2d 502 (2009).

This section has a nunc pro tunc, or "now for then," effect. Koterzina v. Copple Chevrolet, 249 Neb. 158, 542 N.W.2d 696 (1996).

Appellate award of attorney fees could be enforced under this section, where party had filed a copy of the award from the Workers' Compensation Court and had entered the appellate award into evidence. An award by the Supreme Court becomes "conclusive upon the parties" when it issues a mandate. Sherard v. State, 244 Neb. 743, 509 N.W.2d 194 (1993).

Workmen's Compensation Act, being complete and independent in itself, amends statutes already existing relative to filing fees without violating the constitutional provision relating to amendments, and no filing fees are required in compensation cases. Scott v. Dohrse, 130 Neb. 847, 266 N.W. 709 (1936).

48-189. Repealed. Laws 1951, c. 155, § 1.

48-190. Suit against state or governmental agency; summons; service.

The state and governmental agencies created by the state may be sued in the Nebraska Workers' Compensation Court upon claims for compensation benefits under the Nebraska Workers' Compensation Act in the same manner as provided by such act for suits against individuals and corporations. In such proceedings summons issued by the compensation court shall be served in the manner provided for service of a summons in section 25-510.02. The issuance and service of summons in such manner shall be binding upon the state and such agencies in such actions, and the Attorney General is hereby authorized and empowered to waive the issuance and service of summons and enter voluntary appearance in such suits against the State of Nebraska.

Source:Laws 1940, Spec. Sess., c. 1, § 1, p. 53; C.S.Supp.,1941, § 48-180; R.S.1943, § 48-190; Laws 1983, LB 447, § 70; Laws 1986, LB 811, § 119; Laws 1997, LB 165, § 3.

48-191. Time; how computed.

Notwithstanding any more general or special law respecting the subject matter hereof, whenever the last day of the period within which a party to an action may file any document or pleading with the Nebraska Workers' Compensation Court, or take any other action with respect to a claim for compensation, falls on a Saturday, a Sunday, any day on which the compensation court is closed by order of the Chief Justice of the Supreme Court, or any day declared by statutory enactment or proclamation of the Governor to be a holiday, the next following day, which is not a Saturday, a Sunday, a day on which the compensation court is closed by order of the Chief Justice of the Supreme Court, or a day declared by such enactment or proclamation to be a holiday, shall be deemed to be the last day for filing any such document or pleading or taking any such other action with respect to a claim for compensation.

Source:Laws 1955, c. 187, § 1, p. 535; Laws 1986, LB 811, § 120; Laws 2003, LB 760, § 16; Laws 2011, LB151, § 14.

Annotations

The plain language of this section is broad enough to include not only transactions between a party and the court, but also transactions between the parties. Herrington v. P.R. Ventures, 279 Neb. 754, 781 N.W.2d 196 (2010).

48-192. Purpose of sections.

The Legislature declares that it is its intent and purpose through sections 48-192 to 48-1,109 to provide uniform procedures for the bringing of workers' compensation claims against the state, and that the procedures provided by sections 48-192 to 48-1,109 shall be used to the exclusion of all others.

Source:Laws 1971, LB 390, § 1; Laws 1986, LB 811, § 121.

48-193. Terms, defined.

For purposes of sections 48-192 to 48-1,109, unless the context otherwise requires:

(1) State agency shall include all departments, agencies, boards, courts, bureaus, and commissions of the State of Nebraska and corporations the primary function of which is to act as, and while acting as, instrumentalities or agencies of the State of Nebraska, including the University of Nebraska and the state colleges, but shall not include corporations that are essentially private corporations or entities created pursuant to the Interlocal Cooperation Act or the Joint Public Agency Act. State agency shall not be construed to include any contractor with the State of Nebraska except and unless such contractor comes within the provisions of section 48-116;

(2) Employee of the state shall mean any one or more officers or employees of the state or any state agency and shall include duly appointed members of boards or commissions when they are acting in their official capacity. State employee shall not be construed to include any employee of an entity created pursuant to the Interlocal Cooperation Act or the Joint Public Agency Act or any contractor with the State of Nebraska unless such contractor comes within the provisions of section 48-116;

(3) Workers' compensation claim shall mean any claim against the State of Nebraska arising under the Nebraska Workers' Compensation Act; and

(4) Award shall mean any amount determined by the Risk Manager and the Attorney General to be payable to a claimant under sections 48-192 to 48-1,109 or the amount of any compromise or settlement under such sections.

Source:Laws 1971, LB 390, § 2; Laws 1986, LB 811, § 122; Laws 1991, LB 6, § 1; Laws 1991, LB 81, § 3; Laws 1999, LB 87, § 75; Laws 2019, LB418, § 2.

Cross References

Interlocal Cooperation Act, see section 13-801.

Joint Public Agency Act, see section 13-2501.

48-194. Risk Manager; authority; Attorney General; duties.

The Risk Manager with the advice of the Attorney General shall have the authority to pay claims of all workers' compensation benefits when liability is undisputed. In any claims when liability or the amount of liability is disputed by the Attorney General, authority is hereby conferred upon the Attorney General to consider, ascertain, adjust, determine, and allow any workers' compensation claim. If any such claim is compromised or settled, the approval of the claimant, the Risk Manager, and the Attorney General shall be required and such settlements also shall be approved by the Nebraska Workers' Compensation Court following the procedure in the Nebraska Workers' Compensation Act.

Source:Laws 1971, LB 390, § 3; Laws 1972, LB 1334, § 1; Laws 1981, LB 273, § 10; Laws 1986, LB 811, § 123; Laws 1993, LB 757, § 29; Laws 2019, LB418, § 3.

48-195. Rules and regulations.

The risk management and state claims division of the Department of Administrative Services may, pursuant to the Administrative Procedure Act, adopt and promulgate such rules and regulations as are necessary to carry out sections 48-192 to 48-1,109.

Source:Laws 1971, LB 390, § 4; Laws 1986, LB 811, § 124; Laws 2000, LB 1221, § 15; Laws 2019, LB418, § 4.

Cross References

Administrative Procedure Act, see section 84-920.

48-196. State agency; handle claims; Attorney General; supervision.

The Risk Manager may delegate to a state agency the handling of workers' compensation claims of employees of that agency, under the supervision and direction of the Attorney General.

Source:Laws 1971, LB 390, § 5; Laws 1986, LB 811, § 125; Laws 2000, LB 1221, § 16; Laws 2019, LB418, § 5.

48-197. Claims; filing; investigation; report.

All claims under sections 48-192 to 48-1,109 shall be filed with the Risk Manager. The Risk Manager shall immediately advise the Attorney General of the filing of any claim. It shall be the duty of the Attorney General to cause a complete investigation to be made of all such claims. Whenever any state agency receives notice or has knowledge of any alleged injury under the Nebraska Workers' Compensation Act, such state agency shall immediately file a first report of such alleged injury with the Nebraska Workers' Compensation Court and the Risk Manager and shall file such other forms as may be required by such court or the Risk Manager.

Source:Laws 1971, LB 390, § 6; Laws 1972, LB 1334, § 2; Laws 1981, LB 273, § 11; Laws 1986, LB 811, § 126; Laws 1992, Third Spec. Sess., LB 14, § 2; Laws 2019, LB418, § 6.

48-198. Suits; filing; attorney's fee; expenses; allowance.

Suits shall be brought in the Nebraska Workers' Compensation Court as set out in the Nebraska Workers' Compensation Act, and the compensation court shall in each case designate and allow the amount of the attorney's fee and expenses to be paid from, but not in addition to, the award or judgment to the attorney representing the employee or his or her personal representatives, except as provided in section 48-125.

Source:Laws 1971, LB 390, § 7; Laws 1986, LB 811, § 127.

48-199. Suits; liability of state.

In all suits brought under sections 48-192 to 48-1,109, the state shall be liable in the same manner and to the same extent as a private individual under like circumstances, except that no writ of execution shall issue against the state or any state agency, and disposition of or offer to settle any claim made under sections 48-192 to 48-1,109 shall not be competent evidence of liability of the state or any employee or amount of damages.

Source:Laws 1971, LB 390, § 8.

Annotations

Under former law, in order to harmonize this section and sections 48-1,102 and 48-125 in the context of waiting-time penalties in a manner which is consistent with the overall purpose of the Nebraska Workers' Compensation Act, the Supreme Court holds that in order to avoid assessment of a waiting-time penalty with respect to that portion of a workers' compensation award against the State which exceeds $50,000, the State must request review and appropriation of such amount during the first legislative session following the date the award became final and must pay such amount within 30 calendar days after the approval of the appropriation by the Legislature. Soto v. State, 270 Neb. 40, 699 N.W.2d 819 (2005).

One of the tests of compensability under the Workmen's Compensation Act, in cases related to recreational or social activities, is whether the employer derives substantial direct benefit from the activity. Kuethe v. State, 191 Neb. 167, 214 N.W.2d 380 (1974).

48-1,100. Attorney General; represent state; duties; powers.

The Attorney General shall represent the state in any suit brought under sections 48-192 to 48-1,109, and is authorized to compromise or settle any such suit, with the approval of the Nebraska Workers' Compensation Court.

Source:Laws 1971, LB 390, § 9; Laws 1975, LB 187, § 17; Laws 1986, LB 811, § 128.

48-1,101. Attorney General; delegation of powers and duties.

The Attorney General may authorize the deputy attorney general in charge of the Claims Division of the Department of Justice to perform any of the duties imposed upon the Attorney General by sections 48-192 to 48-1,109, and may employ other persons, firms, or corporations to investigate claims under sections 48-192 to 48-1,109.

Source:Laws 1971, LB 390, § 10.

48-1,102. Award or judgment; payment; procedure.

Any final, nonappealable award or judgment in favor of a claimant under sections 48-192 to 48-1,109 shall be certified by the Attorney General to the Risk Manager and to the Director of Administrative Services. The Director of Administrative Services shall promptly issue his or her warrant for payment of such award or judgment out of the Workers' Compensation Claims Revolving Fund, if sufficient money is available in such fund, except that no portion in excess of one hundred thousand dollars of any award or judgment shall be paid until such award or judgment has been reviewed by the Legislature and specific appropriation made therefor. Notice of any portion of an award or judgment in excess of one hundred thousand dollars shall be delivered by the Risk Manager to the chairperson of the Business and Labor Committee of the Legislature at the next regular session of the Legislature convening after the date the award or judgment becomes final and nonappealable. Delivery of any warrant in satisfaction of an award or judgment shall be made only upon receipt of a written receipt by the claimant in a form provided by the Attorney General.

Source:Laws 1971, LB 390, § 11; Laws 1986, LB 811, § 129; Laws 1994, LB 1211, § 2; Laws 2005, LB 13, § 31.

Annotations

Under former law, in order to harmonize this section and sections 48-199 and 48-125 in the context of waiting-time penalties in a manner which is consistent with the overall purpose of the Nebraska Workers' Compensation Act, the Supreme Court holds that in order to avoid assessment of a waiting-time penalty with respect to that portion of a workers' compensation award against the State which exceeds $50,000, the State must request review and appropriation of such amount during the first legislative session following the date the award became final and must pay such amount within 30 calendar days after the approval of the appropriation by the Legislature. Soto v. State, 270 Neb. 40, 699 N.W.2d 819 (2005).

Under former law, with respect to that portion of a workers' compensation award against the State which exceeds $50,000, the 30-day period specified in subsection (1) of section 48-125 does not begin until the first day after the judgment becomes final on which the State could request review and appropriation pursuant to this section during a regular session of the Legislature. A waiting-time penalty may be assessed pursuant to section 48-125 if payment is not made within 30 calendar days thereafter. Soto v. State, 269 Neb. 337, 693 N.W.2d 491 (2005).

48-1,103. Workers' Compensation Claims Revolving Fund; established; deficiency; notify Legislature; investment.

There is hereby established in the state treasury a Workers' Compensation Claims Revolving Fund, to be administered by the Risk Manager, from which all workers' compensation costs, including prevention and administration, shall be paid. The fund may also be used to pay the costs of administering the Risk Management Program. The fund shall receive deposits from assessments against state agencies charged by the Risk Manager to pay for workers' compensation costs. When the amount of money in the Workers' Compensation Claims Revolving Fund is not sufficient to pay any awards or judgments under sections 48-192 to 48-1,109, the Risk Manager shall immediately advise the Legislature and request an emergency appropriation to satisfy such awards and judgments. Any money in the Workers' Compensation Claims Revolving Fund available for investment shall be invested by the state investment officer pursuant to the Nebraska Capital Expansion Act and the Nebraska State Funds Investment Act.

Source:Laws 1971, LB 390, § 12; Laws 1981, LB 273, § 12; Laws 1986, LB 811, § 130; Laws 1994, LB 1211, § 3; Laws 1995, LB 7, § 45; Laws 2011, LB378, § 22.

Cross References

Nebraska Capital Expansion Act, see section 72-1269.

Nebraska State Funds Investment Act, see section 72-1260.

48-1,104. Risk Manager; report; contents.

The Risk Manager shall submit electronically a report to the Clerk of the Legislature by January 15 of each year, which report shall include the number of claims for which payments have been made, the amounts paid by categories of medical, hospital, compensation, and other costs separated by the agency and program or activity under which the claim arose. Each member of the Legislature shall receive an electronic copy of such report by making a request for it to the Risk Manager.

Source:Laws 1971, LB 390, § 13; Laws 1972, LB 1334, § 3; Laws 1977, LB 399, § 1; Laws 1979, LB 322, § 16; Laws 1981, LB 545, § 52; Laws 1981, LB 273, § 13; Laws 2012, LB782, § 59.

48-1,105. Immunity of state reserved; exception.

From and after August 27, 1971, the authority of any state agency to sue or be sued in its own name shall not be construed to authorize suits against such state agency on workers' compensation claims except as authorized in sections 48-192 to 48-1,109. The remedies provided by sections 48-192 to 48-1,109 in such cases shall be exclusive.

Source:Laws 1971, LB 390, § 14; Laws 1986, LB 811, § 131.

48-1,106. Sections, how construed.

Nothing in sections 48-192 to 48-1,109 shall be deemed to repeal any provision of law authorizing any state agency to consider, ascertain, adjust, compromise, settle, determine, allow, or pay any claim other than a workers' compensation claim as defined in sections 48-192 to 48-1,109.

Source:Laws 1971, LB 390, § 15; Laws 1986, LB 811, § 132.

48-1,107. Insurance; Risk Manager; purchase; when.

The Risk Manager may, if after proper investigation he or she deems it to be in the best interests of the state, purchase a policy or policies of insurance for investigation, servicing, and payment, or any one or two of such factors, of workers' compensation to protect the agencies and their employees. Such policy or policies shall contain such conditions, requirements, limitations, and amounts deemed necessary by the Risk Manager. The Risk Manager shall purchase such policy or policies by public letting and payment shall be made therefor out of the State Insurance Fund created pursuant to section 81-8,239.02.

Source:Laws 1971, LB 390, § 16; Laws 1981, LB 273, § 14; Laws 1986, LB 811, § 133; Laws 2000, LB 1221, § 17.

48-1,108. Insurance policy; applicability; company; Attorney General; Risk Manager; cooperate.

Whenever a claim or suit against the state is covered by workers' compensation insurance, the provisions of the insurance policy on defense and settlement shall be applicable notwithstanding any inconsistent provisions of sections 48-192 to 48-1,109. The Attorney General and the Risk Manager shall cooperate with the insurance company.

Source:Laws 1971, LB 390, § 17; Laws 1986, LB 811, § 134; Laws 2019, LB418, § 7.

48-1,109. Employees; information; furnish; refusal; effect.

When any employee is injured in any accident or suffers any occupational disease arising out of or in the course of his or her employment, such employee as soon as practicable shall report full information on such occurrence to the head of the agency by which he or she is employed. The head of the agency shall furnish immediately all available information on such occurrence to the Risk Manager. All employees shall cooperate fully with the Attorney General in the investigation of all workers' compensation claims. Failure to comply with this section shall constitute grounds for dismissal from employment.

Source:Laws 1971, LB 390, § 18; Laws 1972, LB 1334, § 4; Laws 1981, LB 273, § 15; Laws 1986, LB 811, § 135.

48-1,110. Act, how cited.

Sections 48-101 to 48-1,117 shall be known and may be cited as the Nebraska Workers' Compensation Act.

Source:Laws 1986, LB 811, § 136; Laws 1986, LB 1036, § 2; Laws 1990, LB 313, § 4; Laws 1992, LB 360, § 26; Laws 1993, LB 757, § 30; Laws 1997, LB 128, § 7; Laws 1997, LB 474, § 7; Laws 2005, LB 13, § 32; Laws 2007, LB588, § 5; Laws 2010, LB780, § 3; Laws 2011, LB151, § 16; Laws 2015, LB480, § 5; Laws 2019, LB418, § 9.

48-1,111. Repealed. Laws 2013, LB21, § 2.

48-1,112. Laws 2011, LB151, changes; applicability.

Cases pending before the Nebraska Workers' Compensation Court on August 27, 2011, in which a hearing on the merits has been held prior to such date shall not be affected by the changes made in sections 48-125, 48-145.01, 48-155, 48-156, 48-170, 48-178, 48-180, 48-182, and 48-185 by Laws 2011, LB151. Any cause of action not in suit on August 27, 2011, and any cause of action in suit in which a hearing on the merits has not been held prior to such date shall follow the procedures in such sections as amended by Laws 2011, LB151.

Source:Laws 2011, LB151, § 15.

Annotations

The hearing on a motion to enforce an award of compensation is the hearing on the merits referenced in this section. The hearing prior to the entry of the award is not the hearing on the merits referenced in this section. DeLeon v. Reinke Mfg. Co., 287 Neb. 419, 843 N.W.2d 601 (2014).

48-1,113. Insurance company and risk management pool; annual payment; amount; Director of Insurance; powers and duties.

Every insurance company which is transacting workers' compensation insurance business in this state shall on or before March 1 of each year pay to the Director of Insurance an amount equal to one percent of the gross amount of direct writing premiums received by the company during the preceding calendar year for workers' compensation insurance business transacted in this state. Every risk management pool providing workers' compensation group self-insurance coverage to any of its members shall on or before March 1 of each year pay to the Director of Insurance an amount equal to one percent of the annual contributions received by the pool to provide workers' compensation coverage less any amount paid for excess or aggregate workers' compensation insurance during the immediately preceding calendar year. For the purpose of calculating the amount due, a pool which has a scheme of operations that contemplates a return of a portion of the contributions of pool members without such members being claimants under the pool's insuring agreements may deduct such return contributions and any dividends paid during the immediately preceding calendar year that are attributable to workers' compensation. The computation of the amount shall be made on forms furnished by the Department of Insurance and shall be forwarded to the department together with a sworn statement by an appropriate fiscal officer of the company or the pool's chief operating officer attesting the accuracy of the computation. The department shall furnish the forms to the companies and risk management pools prior to the end of the year for which the amounts are payable together with any information deemed necessary or appropriate by the department.

Upon receipt of the payment, the director shall audit and examine the computations to determine that the proper amount has been paid. After notice and hearing in accordance with the Administrative Procedure Act, the Director of Insurance may rescind or refuse to reissue the certificate of authority of any company which fails to remit the amount due.

The Director of Insurance shall remit the amounts paid to the State Treasurer for credit to the Compensation Court Cash Fund, except that (1) when there is a dispute as to the amount payable, the proceeds shall be credited to a suspense account in the state treasury until disposition of the controversy and (2) one percent of the amounts received shall be credited to the Department of Insurance to cover the costs of administration.

Source:Laws 1993, LB 757, § 19; Laws 1999, LB 259, § 15.

Cross References

Administrative Procedure Act, see section 84-920.

48-1,114. Self-insurer; annual payment; amount.

Every employer in the occupations described in section 48-106 who qualifies as a self-insurer and is issued a permit to self-insure shall remit to the State Treasurer for credit to the Compensation Court Cash Fund an annual amount equal to one and one-quarter percent of the prospective loss costs for like employment but in no event less than one hundred dollars. Prospective loss costs is defined in section 48-151. The compensation court is the sole judge as to the prospective loss costs that shall be used.

Source:Laws 1993, LB 757, § 20; Laws 1999, LB 216, § 17.

48-1,115. Other payments; cumulative.

The amounts required to be paid by insurance companies, risk management pools, and self-insurers under sections 48-1,113 and 48-1,114 shall be in addition to any other amounts, either in taxes, assessments, or otherwise, required by any other law of this state.

Source:Laws 1993, LB 757, § 21.

48-1,116. Compensation Court Cash Fund; created; use; investment.

The Compensation Court Cash Fund is hereby created. The fund shall be used to aid in providing for the expense of administering the Nebraska Workers' Compensation Act and the payment of the salaries and expenses of the personnel of the Nebraska Workers' Compensation Court.

All fees received pursuant to sections 48-120, 48-120.02, 48-138, 48-139, 48-145.04, and 48-165 shall be remitted to the State Treasurer for credit to the Compensation Court Cash Fund. The fund shall also consist of amounts credited to the fund pursuant to sections 48-1,113, 48-1,114, and 77-912. The State Treasurer may receive and credit to the fund any money which may at any time be contributed to the state or the fund by the federal government or any agency thereof to which the state may be or become entitled under any act of Congress or otherwise by reason of any payment made from the fund.

Any money in the fund available for investment shall be invested by the state investment officer pursuant to the Nebraska Capital Expansion Act and the Nebraska State Funds Investment Act.

Source:Laws 1993, LB 757, § 22; Laws 1994, LB 1066, § 35; Laws 2002, LB 1310, § 5; Laws 2005, LB 13, § 33; Laws 2009, First Spec. Sess., LB3, § 24; Laws 2017, LB331, § 24; Laws 2018, LB945, § 11; Laws 2019, LB293, § 30.

Cross References

Nebraska Capital Expansion Act, see section 72-1269.

Nebraska State Funds Investment Act, see section 72-1260.

48-1,117. Compensation Court Cash Fund; accounting; abatement of contributions.

The Department of Administrative Services shall furnish monthly to the Nebraska Workers' Compensation Court a statement of the Compensation Court Cash Fund setting forth the balance in the fund as of the first day of the preceding month, the income and its sources, the payments from the fund in itemized form, and the balance in the fund on hand as of the last day of the preceding month.

At the close of business on June 30 of any year, if the balance in the fund is equal to or exceeds three times the sum expended and encumbered in the fiscal year then ending, the contributions to the fund pursuant to sections 48-1,113 and 48-1,114 shall abate for the calendar year next ensuing and only for that year and the compensation court shall notify all self-insurers and the Director of Insurance who shall notify all workers' compensation insurers and risk management pools of such abatement and of the date when such contributions shall resume. No abatement shall ever extend beyond one year.

Source:Laws 1993, LB 757, § 23; Laws 2005, LB 238, § 16.

48-1,118. Cost-benefit analysis and review of Laws 1993, LB 757; reports.

On January 1, 1997, the Governor shall direct the Director of Insurance and the Commissioner of Labor to conduct and complete a cost-benefit analysis and a review of the effectiveness of the changes made by Laws 1993, LB 757, to control or reduce the cost of workers' compensation premiums. Information for the study may be elicited from interested persons and from the Nebraska Workers' Compensation Court. The director and the commissioner shall submit a report, which may include recommendations for further legislation, to the chairperson of the Business and Labor Committee of the Legislature, the Clerk of the Legislature, and the Governor by October 1, 1997. The Business and Labor Committee of the Legislature shall hold a public hearing on the study and shall submit a report to the Legislature by December 1, 1997. The Governor or the Legislature, by resolution, may require a similar study in 1999 and every two years thereafter. Any report submitted to the committee and the Clerk of the Legislature shall be submitted electronically.

Source:Laws 1993, LB 757, § 40; Laws 2012, LB782, § 60.

48-201. Current or former employer; disclosure of information; immunity from civil liability; consent; form; period valid; applicability of section.

(1)(a) A current or former employer may disclose the following information about a current or former employee's employment history to a prospective employer of the current or former employee upon receipt of written consent from the current or former employee:

(i) Date and duration of employment;

(ii) Pay rate and wage history on the date of receipt of written consent;

(iii) Job description and duties;

(iv) The most recent written performance evaluation prepared prior to the date of the request and provided to the employee during the course of his or her employment;

(v) Attendance information;

(vi) Results of drug or alcohol tests administered within one year prior to the request;

(vii) Threats of violence, harassing acts, or threatening behavior related to the workplace or directed at another employee;

(viii) Whether the employee was voluntarily or involuntarily separated from employment and the reasons for the separation; and

(ix) Whether the employee is eligible for rehire.

(b) The current or former employer disclosing such information shall be presumed to be acting in good faith and shall be immune from civil liability for the disclosure or any consequences of such disclosure unless the presumption of good faith is rebutted upon a showing by a preponderance of the evidence that the information disclosed by the current or former employer was false, and the current or former employer had knowledge of its falsity or acted with malice or reckless disregard for the truth.

(2)(a) The consent required in subsection (1) of this section shall be on a separate form from the application form or, if included in the application form, shall be in bold letters and in larger typeface than the largest typeface in the text of the application form. The consent form shall state, at a minimum, language similar to the following:

I, (applicant), hereby give consent to any and all prior employers of mine to provide information with regard to my employment with prior employers to (prospective employer).

(b) The consent must be signed and dated by the applicant.

(c) The consent will be valid for no longer than six months.

(3) This section shall also apply to any current or former employee, agent, or other representative of the current or former employer who is authorized to provide and who provides information in accordance with this section.

(4)(a) This section does not require any prospective employer to request employment history on a prospective employee and does not require any current or former employer to disclose employment history to any prospective employer.

(b) Except as specifically amended in this section, the common law of this state remains unchanged as it relates to providing employment information on current and former employees.

(c) This section applies only to causes of action accruing on and after July 19, 2012.

(5) The immunity conferred by this section shall not apply when an employer discriminates or retaliates against an employee because the employee has exercised or is believed to have exercised any federal or state statutory right or undertaken any action encouraged by the public policy of this state.

Source:Laws 2012, LB959, § 1.

48-202. Public employer; applicant; disclosure of criminal record or history; limitation.

(1) Except as otherwise provided in this section, a public employer shall not ask an applicant for employment to disclose, orally or in writing, information concerning the applicant's criminal record or history, including any inquiry on any employment application, until the public employer has determined the applicant meets the minimum employment qualifications.

(2) This section does not apply to any law enforcement agency, to any position for which a public employer is required by federal or state law to conduct a criminal history record information check, or to any position for which federal or state law specifically disqualifies an applicant with a criminal background.

(3)(a) This section does not prevent a public employer that is a school district or educational service unit from requiring an applicant for employment to disclose an applicant's criminal record or history relating to sexual or physical abuse.

(b) This section does not prevent a public employer from preparing or delivering an employment application that conspicuously states that a criminal history record information check is required by federal law, state law, or the employer's policy.

(c) This section does not prevent a public employer from conducting a criminal history record information check after the public employer has determined that the applicant meets the minimum employment qualifications.

(4) For purposes of this section:

(a) Law enforcement agency means an agency or department of this state or of any political subdivision of this state which is responsible for the prevention and detection of crime, the enforcement of the penal, traffic, or highway laws of this state or any political subdivision of this state, and the enforcement of arrest warrants. Law enforcement agency includes a police department, an office of the town marshal, an office of the county sheriff, the Nebraska State Patrol, and any department to which a deputy state sheriff is assigned as provided in section 84-106; and

(b) Public employer means an agency or department of this state or of any political subdivision of this state.

Source:Laws 2014, LB907, § 12.

48-203. Legislative findings, declarations, and intent; veterans' program coordinator; qualifications; duties; Department of Veterans' Affairs; duties.

(1) The Legislature finds and declares that:

(a) Nebraska is a welcoming state for veterans and their families; and

(b) Nebraska is committed to workforce development initiatives that help attract and retain veterans and their families.

(2) It is the intent of the Legislature to:

(a) Increase efforts to create public awareness among veterans and their families about the benefits of living and working in Nebraska, including special initiatives enacted to make Nebraska a veteran-friendly state; and

(b) Develop new initiatives to better connect veterans to Nebraska's job market and the workforce development needs of employers.

(3) The position of veterans' program coordinator shall be maintained by the Department of Labor. The coordinator shall be a veteran and a full-time employee of the Department of Labor and shall:

(a) Seek advice and input from the Commission on Military and Veteran Affairs related to veterans' workforce development issues;

(b) Be a nonvoting, ex officio member of the Commission on Military and Veteran Affairs; and

(c) Submit an annual progress report to the Commission on Military and Veteran Affairs.

(4) The Department of Labor shall provide the necessary staff to assist the veterans' program coordinator in carrying out the purposes of this section.

(5) The Department of Veterans' Affairs shall:

(a) Develop a website, in collaboration with the Department of Labor, with a job-search tool specific to veterans. Such website shall be implemented on a date designated by the Director of Veterans' Affairs when sufficient cash funds have accumulated in the Veterans Employment Program Fund to develop such website, but no later than June 30, 2024; and

(b) Research best practices and websites specific to veterans from other states.

Source:Laws 2019, LB138, § 1.

48-204. Repealed. Laws 1969, c. 398, § 1.

48-205. Repealed. Laws 1969, c. 398, § 1.

48-206. Repealed. Laws 1969, c. 398, § 1.

48-207. Repealed. Laws 1969, c. 398, § 1.

48-208. Repealed. Laws 1969, c. 398, § 1.

48-209. Repealed. Laws 2020, LB1016, § 12.

48-210. Repealed. Laws 2020, LB1016, § 12.

48-211. Repealed. Laws 2020, LB1016, § 12.

48-212. Lunch hour; requirements; applicability.

Any person, firm, or corporation owning or operating an assembling plant, workshop, or mechanical establishment employing one or more persons shall allow all of their employees not less than thirty consecutive minutes for lunch in each eight-hour shift, and during such time it shall be unlawful for any such employer to require such employee or employees to remain in buildings or on the premises where their labor is performed. This section does not apply to employment that is covered by a valid collective-bargaining agreement or other written agreement between an employer and employee.

Source:Laws 1931, c. 96, § 1, p. 265; C.S.Supp.,1941, § 48-215; R.S.1943, § 48-212; Laws 1955, c. 188, § 1, p. 536; Laws 2004, LB 382, § 1.

48-213. Lunch hour; violation; penalty.

Any person, firm or corporation violating any of the provisions of section 48-212 shall be guilty of a Class III misdemeanor.

Source:Laws 1931, c. 96, § 2, p. 266; C.S.Supp.,1941, § 48-216; R.S.1943, § 48-213; Laws 1977, LB 40, § 275.

48-214. Collective bargaining; race or color discrimination prohibited.

It is hereby declared to be the policy of this state that no representative agency of labor, in collective bargaining with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment or other conditions of work, shall, in such collective bargaining, discriminate against any person because of his race or color. The Department of Labor shall be and hereby is charged with the duty of enforcement of this policy in conformity with Article I of the Constitution of Nebraska and section 1 of the Fourteenth Amendment to the Constitution of the United States of America.

Source:Laws 1941, c. 96, § 1, p. 406; C.S.Supp.,1941, § 48-801; R.S.1943, § 48-214.

Cross References

Actions of employees in collective bargaining with employers, designation of plaintiff, process, and execution of judgment, see sections 25-313 and 25-530.08.

Civil rights, see Chapter 20.

Annotations

Enforcement of policy of collective bargaining in labor disputes was a matter of statewide and not local concern. Midwest Employers Council, Inc. v. City of Omaha, 177 Neb. 877, 131 N.W.2d 609 (1964).

48-215. Military supplies; production; distribution; discrimination prohibited.

It shall be unlawful for any person, firm or corporation, engaged to any extent whatsoever in the State of Nebraska in the production, manufacture or distribution of military or naval material, equipment or supplies for the State of Nebraska or the government of the United States, to refuse to employ any person in any capacity, if said person is a citizen and is qualified, on account of the race, color, creed, religion or national origin of said person.

Source:Laws 1943, c. 114, § 1, p. 400; R.S.1943, § 48-215.

Annotations

This section prohibits racial discrimination by persons producing or distributing military or naval supplies. Midwest Employers Council, Inc. v. City of Omaha, 177 Neb. 877, 131 N.W.2d 609 (1964).

48-216. Military supplies; discrimination; violation; penalty.

Any person, firm or corporation, violating any of the provisions of section 48-215, shall be guilty of a Class III misdemeanor. Each violation of section 48-215 shall be a separate offense.

Source:Laws 1943, c. 114, § 2, p. 400; R.S.1943, § 48-216; Laws 1977, LB 40, § 276.

48-217. Labor organizations; membership or nonmembership; prohibited acts.

To make operative the provisions of sections 13, 14 and 15 of Article XV of the Constitution of Nebraska, no person shall be denied employment because of membership in or affiliation with, or resignation or expulsion from a labor organization or because of refusal to join, affiliate with, or pay a fee either directly or indirectly to a labor organization; nor shall any individual or corporation or association of any kind enter into any contract, written or oral, to exclude persons from employment because of membership in or nonmembership in a labor organization.

Source:Laws 1947, c. 177, § 1, p. 585; Laws 1961, c. 236, § 1, p. 699.

Annotations

Right to work was a right guaranteed by both state and federal Constitutions. Hanson v. Union Pacific R.R. Co., 160 Neb. 669, 71 N.W.2d 526 (1955).

Provisions of federal Railway Labor Act superseded and were controlling over requirements of this section. Railway Employees Department, American Federation of Labor v. Hanson, 351 U.S. 225 (1956).

Public policy that employment not be denied on basis of union membership includes public as well as private employment. American Federation of State, Co., & Mun. Emp. v. Woodward, 406 F.2d 137 (8th Cir. 1969).

48-218. Labor organization, defined.

The term labor organization means any organization of any kind, or any agency or employee representation committee or plan, which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.

Source:Laws 1947, c. 177, § 2, p. 585.

48-219. Labor organization; violation; penalty.

Any individual, corporation or association that enters into a contract after September 7, 1947, in violation of the provisions of section 48-217, shall be guilty of a Class IV misdemeanor.

Source:Laws 1947, c. 177, § 3, p. 585; Laws 1977, LB 40, § 277.

48-220. Medical examinations; employer, defined.

As used in sections 48-220 to 48-223, unless the context otherwise requires, employer shall mean and include an individual, a partnership, a limited liability company, an association, a corporation, a legal representative, a trustee, a receiver, a trustee in bankruptcy, and any common carrier by rail, motor, water, air, or express company doing business in or operating within the state.

Source:Laws 1963, c. 280, § 1, p. 837; Laws 1993, LB 121, § 286.

48-221. Medical examination; cost to applicant as condition of employment; unlawful; cost to employer.

It shall be unlawful for any employer, as defined in section 48-220, to require any applicant for employment, to pay the cost of a medical examination required by the employer as a condition of employment. When the employer requests an applicant for a position to submit to a medical examination, the employer shall assume the cost thereof.

Source:Laws 1963, c. 280, § 2, p. 837.

48-222. Medical examination as condition of employment; violation; penalty.

Any employer who violates the provisions of section 48-221 shall be guilty of a Class V misdemeanor. Each violation shall constitute a separate offense. It shall be the duty of the Commissioner of Labor to enforce the provisions of sections 48-220 to 48-223.

Source:Laws 1963, c. 280, § 3, p. 837; Laws 1977, LB 40, § 278.

48-223. Medical examination as condition of employment; exemptions from sections.

The provisions of sections 48-220 to 48-223 shall not apply to any employment relationship entered into by the state or any subdivision of the state when a physical examination is required by law as a condition of employment.

Source:Laws 1963, c. 280, § 4, p. 838.

48-224. Withholding of wages; when authorized.

(1) Any employee of the State of Nebraska, any municipal corporation, or any public body or agency created by the laws of this state, who desires to participate voluntarily in any employee organization, credit union, or any community charity or public welfare plan approved by the Governor and the Director of Administrative Services, in the case of employees of the State of Nebraska, or by the duly elected governing body of such municipal corporation or other public body or agency, may execute an order authorizing the withholding from any wages or salary paid to such employee of a sum each month or pay period and the same to be paid to the designated recipient thereof. For purposes of this section, community charity includes any not-for-profit federation of health and human services agencies and associations.

(2) If a not-for-profit federation of health and human services agencies and associations is authorized pursuant to subsection (1) of this section, approval to similar not-for-profit federations shall also be granted on a similar equitable basis. For purposes of this subsection, a similar not-for-profit federation shall meet the following requirements:

(a) The federation has had an established office in the state for at least the last five years;

(b) The federation represents at least ten Nebraska-based health and human services agencies and associations in addition to the federation;

(c) The federation is a Nebraska corporation in good standing which holds a valid 501(c)(3) designation by the Internal Revenue Code;

(d) The federation and its agencies have an active, voluntary board which exercises administrative control over the federation and holds regular meetings; and

(e) The federation has a program focus and service delivery which is organized on either a statewide or regional basis.

Source:Laws 1967, c. 571, § 1, p. 1878; Laws 1997, LB 622, § 76.

Annotations

A political subdivision is not compelled to check off dues for a union because it has certified the union and agreed to bargain with it. State ex rel. Council #32 v. City of Hastings, 214 Neb. 20, 332 N.W.2d 661 (1983).

Cited as indicating public policy allowing public employees to join labor union. American Federation of State, Co., & Mun. Emp. v. Woodward, 406 F.2d 137 (8th Cir. 1969).

48-225. Veterans preference; terms, defined.

For purposes of sections 48-225 to 48-231:

(1) Servicemember means a person who serves on active duty in the armed forces of the United States except for training;

(2) Veteran means:

(a) A person who served full-time duty with military pay and allowances in the armed forces of the United States, except for training or for determining physical fitness, and was discharged or otherwise separated with a characterization of honorable or general (under honorable conditions); or

(b) The spouse of a veteran who has a one hundred percent permanent disability as determined by the United States Department of Veterans Affairs;

(3) Full-time duty means duty during time of war or during a period recognized by the United States Department of Veterans Affairs as qualifying for veterans benefits administered by the department and that such duty from January 31, 1955, to February 28, 1961, exceeded one hundred eighty days unless lesser duty was the result of a service-connected or service-aggravated disability;

(4) Disabled veteran means an individual who has served on active duty in the armed forces of the United States, has been discharged or otherwise separated with a characterization of honorable or general (under honorable conditions) therefrom, and has established the present existence of a service-connected disability or is receiving compensation, disability retirement benefits, or pension because of a public statute administered by the United States Department of Veterans Affairs or a military department; and

(5) Preference eligible means any veteran as defined in this section or the spouse of a servicemember as defined in this section, except that for a spouse of a servicemember such preference is limited to the time during which the servicemember serves on active duty as described in subdivision (1) of this section and up to one hundred eighty days after the servicemember's discharge or separation from service.

Source:Laws 1969, c. 751, § 1, p. 2826; Laws 1991, LB 2, § 6; Laws 2001, LB 368, § 1; Laws 2005, LB 54, § 7; Laws 2014, LB588, § 2; Laws 2017, LB639, § 1.

48-226. Veterans preference; required, when.

A preference shall be given to preference eligibles seeking employment with the State of Nebraska or its governmental subdivisions. Such preference includes initial employment or a return to employment with the State of Nebraska or its governmental subdivisions if termination of previous employment was for other than disciplinary reasons.

Source:Laws 1969, c. 751, § 2, p. 2827; Laws 1997, LB 5, § 1; Laws 2017, LB639, § 2.

48-227. Veterans preference; examination or numerical scoring; notice and application; statement; veteran; duty; notice; contents.

(1) Veterans who obtain passing scores on all parts or phases of an examination or numerical scoring shall have five percent added to their passing score if a claim for such preference is made on the application. An additional five percent shall be added to the passing score or numerical scoring of any disabled veteran.

(2) When no examination or numerical scoring is used, the preference shall be given to the qualifying veteran if two or more equally qualified candidates are being considered for the position.

(3) All notices of positions of employment available for veterans preference and all applications for such positions by the state or its governmental subdivisions shall state that the position is subject to a veterans preference.

(4) A veteran desiring to use a veterans preference shall provide the hiring authority with a copy of the veteran's Department of Defense Form 214, also known as the DD Form 214, or its successor form or record. A spouse of a veteran desiring to use a veterans preference shall provide the hiring authority with a copy of the veteran's Department of Defense Form 214 or its successor form or record, a copy of the veteran's disability verification from the United States Department of Veterans Affairs demonstrating a one hundred percent permanent disability rating, and proof of marriage to the veteran. Any marriage claimed for veterans preference must be valid under Nebraska law.

(5) Within thirty days after filling a position, veterans who have applied and are not hired shall be notified by regular mail, electronic mail, telephone call, or personal service that they have not been hired. Such notice also shall advise the veteran of any administrative appeal available.

Source:Laws 1969, c. 751, § 3, p. 2827; Laws 1997, LB 5, § 2; Laws 2005, LB 54, § 8; Laws 2014, LB588, § 3; Laws 2018, LB497, § 1.

48-228. Repealed. Laws 1997, LB 5, § 5.

48-229. Veterans preference; Commissioner of Labor; duties.

It shall be the duty of the Commissioner of Labor to enforce the provisions of sections 48-225 to 48-231. The commissioner shall act on preference claims as follows:

(1) When the employing agency and the claimant are in disagreement or when there is doubt as to any preference claim, the commissioner shall adjudicate the claim based on information given in the claim, the documents supporting the claim, and information which may be received from the armed forces of the United States, the United States Department of Veterans Affairs, or the National Archives and Records Administration;

(2) The commissioner shall allow a tentative five-percent preference, pending receipt of additional information, to any person who claims either a five-percent or a ten-percent preference but who furnishes insufficient information to establish entitlement thereto at the time of examination; and

(3) The commissioner shall decide appeals from preference determinations made by any employing agency.

Source:Laws 1969, c. 751, § 5, p. 2827; Laws 1991, LB 2, § 7; Laws 2005, LB 54, § 9.

48-230. Veterans preference; violations; penalty.

Any person who violates sections 48-225 to 48-231 shall be guilty of a Class IV misdemeanor. Such person shall be prohibited from receiving any compensation from public funds until he or she complies with sections 48-225 to 48-231.

Source:Laws 1969, c. 751, § 6, p. 2827; Laws 1977, LB 40, § 279; Laws 2002, LB 722, § 1.

48-231. Veterans preference; county attorney; duties.

The county attorneys, in their respective counties, shall prosecute, before any court of appropriate jurisdiction, all persons charged with violating sections 48-225 to 48-231.

Source:Laws 1969, c. 751, § 7, p. 2827; Laws 2002, LB 722, § 2.

48-232. Anabolic steroids; terms, defined.

For purposes of section 48-233:

(1) Anabolic steroid shall have the definition found in section 28-401;

(2) Employee shall mean any person, paid or unpaid, who in any way assists an entity in carrying out the business activities of such entity. Employee shall include an independent contractor;

(3) Institution shall mean any public elementary, secondary, or postsecondary educational institution;

(4) Political subdivision shall have the definition found in section 13-903;

(5) State agency shall have the definition of agency as found in section 81-1705; and

(6) Subordinate employee shall mean a person employed by the same employer as and directly or indirectly supervised in the course of such employment by an employee.

Source:Laws 1990, LB 571, § 8; Laws 1992, LB 1019, § 35.

48-233. Anabolic steroids; employees; prohibited acts; sanction.

(1) In addition to the penalties provided in the Uniform Controlled Substances Act, any employee of a state agency, political subdivision, or institution who possesses, dispenses, delivers, administers, uses, or knowingly allows a subordinate employee or a student attending such employee's employing institution to possess, dispense, deliver, administer, or use an anabolic steroid unless such substance is needed for a valid medical purpose:

(a) For the first conviction, shall be dismissed from employment and shall not be an employee of the dismissing entity or any other state agency, political subdivision, or institution for a period of one year after his or her dismissal; and

(b) For a second or any subsequent conviction, shall be dismissed from employment and shall not thereafter be an employee of the dismissing entity or any other state agency, political subdivision, or institution.

(2) Any sanction imposed pursuant to this section shall be subject to the Administrative Procedure Act except for those employees governed by sections 79-824 to 79-842.

(3) The use of an anabolic steroid for the purpose of hormonal manipulation that is intended to increase muscle mass, strength, or weight without a medical necessity to do so or for the intended purpose of improving physical appearance or performance in any form of exercise, sport, or game shall not be a valid medical purpose or in the course of professional practice.

Source:Laws 1990, LB 571, § 9; Laws 1992, LB 1019, § 36; Laws 1996, LB 900, § 1053.

Cross References

Administrative Procedure Act, see section 84-920.

Uniform Controlled Substances Act, see section 28-401.01.

48-234. Adoptive parent; leave of absence authorized; enforcement; attorney's fees.

(1) Except as provided in subsection (2) of this section, whenever an employer, including a governmental agency, permits an employee to take a leave of absence upon the birth of the employee's child, an adoptive parent, following the commencement of the parent-child relationship, is entitled to the same leave upon the same terms.

(2) The adoptive parent leave of absence is not required if the child being adopted is a special needs child over eighteen years of age, a child who is over eight years of age and is not a special needs child, a stepchild being adopted by his or her stepparent, a foster child being adopted by his or her foster parent, or a child who was originally under a voluntary placement for purposes other than adoption without assistance from an attorney, physician, or other individual or agency which later results in a petition for the adoption of the child by the person with whom the voluntary placement was made.

(3) For purposes of this section, commencement of the parent-child relationship means when the child is placed with the employee for the purposes of adoption.

(4) Whenever an employer, including a governmental agency, refuses to extend a child-care leave of absence to an adoptive parent in violation of this section, an aggrieved adoptive parent may bring an action for equitable relief and damages. In all actions brought pursuant to this section, reasonable attorney's fees, as determined by the court, shall be awarded to the prevailing party if the prevailing party is the adoptive parent.

Source:Laws 1999, LB 134, § 1.

48-235. Law enforcement officers; ticket quota requirements; prohibited.

A state agency or political subdivision shall not directly require a law enforcement officer employed by the state agency or political subdivision to issue a certain number or percentage of traffic citations, police citations, memoranda of traffic violations, memoranda of faulty equipment, or any other type of citation on any periodic basis. The purpose of this section is to prohibit all types of ticket quota requirements for law enforcement officers. For purposes of this section, law enforcement officer includes peace officers as defined in section 49-801 and conservation officers of the Game and Parks Commission.

Source:Laws 2000, LB 204, § 1.

48-236. Genetic testing; restrictions.

(1) For purposes of this section:

(a) Employee does not include an individual employed in the domestic service of any person;

(b) Employer means a person who has one or more employees;

(c) Genetic information means information about a gene, gene product, or inherited characteristic derived from a genetic test; and

(d) Genetic test means the analysis of human DNA, RNA, and chromosomes and those proteins and metabolites used to detect heritable or somatic disease-related genotypes or karyotypes for clinical purposes. A genetic test must be generally accepted in the scientific and medical communities as being specifically determinative for the presence, absence, or mutation of a gene or chromosome in order to qualify under this definition. Genetic test does not include a routine physical examination or a routine analysis, including a chemical analysis, of body fluids unless conducted specifically to determine the presence, absence, or mutation of a gene or chromosome.

(2) Except as otherwise required by federal law, an employer shall not:

(a) Fail or refuse to hire, recruit, or promote an employee or applicant for employment because of genetic information that is unrelated to the ability to perform the duties of a particular job or position;

(b) Discharge or otherwise discriminate against an employee or applicant with respect to compensation or the terms, conditions, or privileges of employment because of genetic information that is unrelated to the ability to perform the duties of a particular job or position;

(c) Limit, segregate, or classify an employee or applicant for employment in a way which deprives or tends to deprive an employee or applicant of employment opportunities or otherwise adversely affects the status of an employee or applicant because of genetic information that is unrelated to the ability to perform the duties of a particular job or position; or

(d) Require an employee or applicant for employment to submit to a genetic test or to provide genetic information as a condition of employment or promotion.

(3) Subsection (2) of this section does not prohibit an employee from voluntarily providing to an employer genetic information that is related to the employee's health or safety in the workspace. Subsection (2) of this section does not prohibit an employer from using genetic information received from an employee under this subsection to protect the employee's health or safety.

(4) This section shall not apply to the employment of an individual by his or her parent, spouse, or child.

Source:Laws 2001, LB 432, § 3.

48-237. Employer; prohibited use of social security numbers; exceptions; violations; penalty; conviction; how treated.

(1) For purposes of this section:

(a) Employer means a person which employs any individual within this state as an employee;

(b) Employee means any individual permitted to work by an employer pursuant to an employment relationship or who has contracted to sell the goods of an employer and to be compensated by commission. Services performed by an individual for an employer shall be deemed to be employment, unless it is shown that (i) such individual has been and will continue to be free from control or direction over the performance of such services, both under his or her contract of service and in fact, (ii) such service is either outside the usual course of business for which such service is performed or such service is performed outside of all the places of business of the enterprise for which such service is performed, and (iii) such individual is customarily engaged in an independently established trade, occupation, profession, or business. This subdivision is not intended to be a codification of the common law and shall be considered complete as written;

(c) Person means the state or any individual, partnership, limited liability company, association, joint-stock company, trust, corporation, political subdivision, or personal representative of the estate of a deceased individual, or the receiver, trustee, or successor thereof;

(d) Temporary employee means an employee of a temporary help firm assigned to work for the clients of such temporary help firm; and

(e) Temporary help firm means a firm that hires its own employees and assigns them to clients to support or supplement the client's workforce in work situations such as employee absences, temporary skill shortages, seasonal workloads, and special assignments and projects.

(2) Except as otherwise provided in subsection (3) of this section, an employer shall not:

(a) Publicly post or publicly display in any manner more than the last four digits of an employee's social security number, including intentional communication of more than the last four digits of the social security number or otherwise making more than the last four digits of the social security number available to the general public or to an employee's coworkers;

(b) Require an employee to transmit more than the last four digits of his or her social security number over the Internet unless the connection is secure or the information is encrypted;

(c) Require an employee to use more than the last four digits of his or her social security number to access an Internet website unless a password, unique personal identification number, or other authentication device is also required to access the Internet website; or

(d) Require an employee to use more than the last four digits of his or her social security number as an employee number for any type of employment-related activity.

(3)(a) Except as otherwise provided in subdivision (b) of this subsection, an employer shall be permitted to use more than the last four digits of an employee's social security number only for:

(i) Compliance with state or federal laws, rules, or regulations;

(ii) Internal administrative purposes, including provision of more than the last four digits of social security numbers to third parties for such purposes as administration of personnel benefit provisions for the employer and employment screening and staffing; and

(iii) Commercial transactions freely and voluntarily entered into by the employee with the employer for the purchase of goods or services.

(b) The following uses for internal administrative purposes described in subdivision (a)(ii) of this subsection shall not be permitted:

(i) As an identification number for occupational licensing;

(ii) As an identification number for drug-testing purposes except when required by state or federal law;

(iii) As an identification number for company meetings;

(iv) In files with unrestricted access within the company;

(v) In files accessible by any temporary employee unless the temporary employee is bonded or insured under a blanket corporate surety bond or equivalent commercial insurance; or

(vi) For posting any type of company information.

(4) An employer who violates this section is guilty of a Class V misdemeanor.

(5) Evidence of a conviction under this section is admissible in evidence at a civil trial as evidence of the employer's negligence.

Source:Laws 2007, LB674, § 16.

48-238. Veterans preference in private employment; policy; notice to Commissioner of Labor; registry.

(1) For purposes of this section:

(a) Private employer means a sole proprietorship, a corporation, a partnership, an association, a limited liability company, or any other entity with one or more employees;

(b) Veteran means (i) a person who served full-time duty with military pay and allowances in the armed forces of the United States, except for training or for determining physical fitness, and was discharged or otherwise separated with a characterization of honorable or general (under honorable conditions), or (ii) the spouse of a veteran who (A) has a one hundred percent permanent disability as determined by the United States Department of Veterans Affairs or (B) was killed in hostile action; and

(c) Voluntary veterans preference employment policy means a private employer's voluntary preference for hiring and promoting a veteran over another equally qualified applicant or employee.

(2) A private employer may adopt a voluntary veterans preference employment policy. Such policy shall be in writing and applied uniformly to decisions regarding hiring and promotion.

(3) If a private employer offers a voluntary veterans preference employment policy, a veteran desiring to use such policy shall provide the private employer with a copy of the veteran's Department of Defense Form 214, also known as the DD Form 214, or its successor form or record. A spouse of a veteran desiring to use such preference shall provide the private employer with a copy of the veteran's Department of Defense Form 214 or its successor form or record, proof of marriage to the veteran, and either (a) a copy of the veteran's disability verification from the United States Department of Veterans Affairs demonstrating a one hundred percent permanent disability rating or (b) a copy of the veteran's Department of Defense Form 1300 or its successor form documenting that the veteran was killed in hostile action.

(4) If a private employer implements a voluntary veterans preference employment policy, it shall notify the Commissioner of Labor of such policy. The commissioner shall use the information to maintain a registry of the private employers that have a voluntary veterans preference employment policy in Nebraska.

(5) A voluntary veterans preference employment policy shall not be considered a violation of any state or local equal employment opportunity law including the Nebraska Fair Employment Practice Act.

Source:Laws 2015, LB272, § 1; Laws 2018, LB497, § 2.

Cross References

Nebraska Fair Employment Practice Act, see section 48-1125.

48-239. COVID-19 vaccine; employer; requirements; vaccine exemption form; contents.

(1) For purposes of this section:

(a) COVID-19 means the novel coronavirus identified as SARS-CoV-2; any disease caused by SARS-CoV-2, its viral fragments, or a virus mutation therefrom; and all conditions associated with the disease which are caused by SARS-CoV-2, its viral fragments, or a virus mutation therefrom;

(b) Department means the Department of Health and Human Services;

(c)(i) Employer means a person engaged in an industry who has one or more employees;

(ii) Employer also includes any party whose business is financed in whole or in part under the Nebraska Investment Finance Authority Act regardless of the number of employees and includes the State of Nebraska, governmental agencies, and political subdivisions; and

(iii) Employer does not include (A) the United States, a corporation wholly owned by the government of the United States, or an Indian tribe or (B) a bona fide private membership club, other than a labor organization, which is exempt from taxation under section 501(c) of the Internal Revenue Code;

(d) Health care practitioner means a person licensed under (i) the Medicine and Surgery Practice Act to practice medicine and surgery or osteopathic medicine and surgery, (ii) the Medicine and Surgery Practice Act to practice as a physician assistant, or (iii) the Advanced Practice Registered Nurse Practice Act to practice as an advanced practice registered nurse;

(e) Medicare-certified or medicaid-certified provider or supplier means any entity, including, but not limited to, a health care facility as defined in section 71-413, that is a medicare-certified or medicaid-certified provider or supplier and that is subject to the federal Centers for Medicare and Medicaid Services' COVID-19 health care staff vaccination requirements; and

(f) Vaccine exemption form means the form created by the department under subsection (2) of this section.

(2)(a) The department shall develop a vaccine exemption form for an individual to claim an exemption from receiving a COVID-19 vaccine as provided in this section. The department shall make the form available on the department's website within fifteen days after March 1, 2022.

(b) The form shall include a declaration by the individual seeking an exemption that:

(i) A health care practitioner has provided the individual with a signed written statement that, in the health care practitioner's opinion, (A) receiving a COVID-19 vaccine is medically contraindicated for the individual or (B) medical necessity requires the individual to delay receiving such vaccine; or

(ii) Receiving a COVID-19 vaccine would conflict with the individual's sincerely held religious belief, practice, or observance.

(3) Subject to subsection (5) of this section, an employer that requires applicants or employees to be vaccinated against COVID-19 shall allow for an exemption to such requirement for an individual who provides the employer with:

(a) A completed vaccine exemption form; and

(b) For an individual claiming an exemption based on the statement of a health care practitioner, a copy of such signed written statement.

(4) An employer may require an employee granted an exemption under this section to:

(a) Be periodically tested for COVID-19 at the employer's expense; and

(b) Wear or use personal protective equipment provided by the employer.

(5) A medicare-certified or medicaid-certified provider or supplier or a federal contractor may require additional processes, documentation, or accommodations as necessary to be in compliance with federal law and to maintain compliance with the rules and regulations of the federal Centers for Medicare and Medicaid Services.

Source:Laws 2022, LB906, § 1.

Cross References

Advanced Practice Registered Nurse Practice Act, see section 38-201.

Health Care Facility Licensure Act, see section 71-401.

Medicine and Surgery Practice Act, see section 38-2001.

Nebraska Investment Finance Authority Act, see section 58-201.

48-301. Terms, defined.

For purposes of sections 48-302 to 48-313:

(1) Employment means (a) service for wages or (b) being under a contract of hire, written or oral, express or implied. Employment, other than detasseling, does not include any employment for which the employer is not liable for payment of the combined tax or payment in lieu of contributions under section 48-648, 48-649 to 48-649.04, or 48-660.01; and

(2) Detasseling means the removal of weeds, off-type and rogue plants, and corn tassels in hand pollinating and in any other engagement in hand labor in the production of seed.

Source:Laws 1995, LB 330, § 1; Laws 2001, LB 180, § 3; Laws 2017, LB172, § 3.

48-302. Children under sixteen; employment certificate required; enforcement of section.

(1) No child under sixteen years of age shall be employed or permitted or suffered to work in any employment as defined in section 48-301 within this state unless the person or corporation employing the child procures and keeps on file, accessible to the attendance officers and to the Department of Labor and its assistants and employees, an employment certificate as prescribed in section 48-304 and keeps one complete list of all such children employed in the building on file in the building in which such children are employed.

(2) Upon the termination of the employment of a child so registered whose certificate is so filed, such certificate shall be transmitted by the employer to the person authorizing the certificate pursuant to section 48-303 and shall be turned over to such child upon demand.

(3) Any attendance officer or the Department of Labor or its assistants and employees may demand that any employer in whose place of business a child apparently under the age of sixteen years is employed or permitted or suffered to work, and whose employment certificate is not then filed as required by this section, either furnish within ten days satisfactory evidence that such child is in fact over sixteen years of age or cease to employ or permit or suffer such child to work in such place of business. The same evidence of the age of such child may be required from such employer as is required on the issuance of an employment certificate as provided in section 48-304, and the employer furnishing such evidence shall not be required to furnish any further evidence of the age of the child.

(4) In case such employer fails to produce and deliver to the attendance officer or the Commissioner of Labor within ten days after demand such evidence of the age of any child as may be required under the provisions of section 48-304 and continues to employ such child or permit or suffer such child to work in such place of business, proof of the giving of such notice and of such failure to produce and file such evidence shall be prima facie evidence in any prosecution brought for a violation of this section that such child is under sixteen years of age and is unlawfully employed.

Source:Laws 1907, c. 66, § 2, p. 259; R.S.1913, § 3576; Laws 1919, c. 190, tit. IV, art. III, § 2, p. 550; C.S.1922, § 7670; C.S.1929, § 48-302; R.S.1943, § 48-302; Laws 1963, c. 290, § 2, p. 868; Laws 1967, c. 296, § 1, p. 804; Laws 1995, LB 330, § 2; Laws 1999, LB 272, § 18; Laws 2022, LB780, § 3.

Annotations

Employer's failure to procure certificate is not proximate cause of injury; and is material only to sustain minor's right of action. Benner v. Evans Laundry Co., 117 Neb. 701, 222 N.W. 630 (1929).

Main purpose of requiring certificate is educational. Benner v. Evans Laundry Co., 117 Neb. 701, 222 N.W. 630 (1929); Rookstool v. Cudahy Packing Co., 100 Neb. 851, 161 N.W. 583 (1917).

This section has no application where pleadings and trial of case were on theory of common-law liability of employer. Rookstool v. Cudahy Packing Co., 100 Neb. 851, 161 N.W. 583 (1917).

If unlawful employment is cause of injury, master is liable. Hankins v. Reimers, 86 Neb. 307, 125 N.W. 516 (1910).

48-302.01. Children; golf caddy; exempt from provisions of section.

Section 48-302 shall not be construed to apply to the employment of any child solely as a caddy on any golf course or place where golf is played.

Source:Laws 1961, c. 237, § 1, p. 700; Laws 1987, LB 35, § 1.

48-302.02. Parent or person standing in loco parentis; exemption.

Section 48-302 shall not apply to a parent or a person standing in loco parentis who employs and directly supervises his or her own child or a child in his or her custody in a business owned and operated by such parent or person standing in loco parentis. This section shall not exempt such an employer from the restrictions on hours of work, work, or place of performance described in sections 48-310 and 48-313.

Source:Laws 1993, LB 162, § 1.

48-302.03. Detasseling; employment; conditions; exemption.

(1) A child under the age of twelve shall not be employed in detasseling.

(2) A child who is at least twelve years but less than sixteen years of age may be employed in detasseling if:

(a) The employment is outside of school hours during the month of June, July, or August;

(b) The employer of such child obtains the written consent of a parent of the child or a person standing in loco parentis to the child for the child to be so employed;

(c) The child is domiciled within seventy-five miles of the location where the labor is to be performed; and

(d) The child does not work more than forty-eight hours in any one week, nor more than nine hours in any one day, nor before the hour of 6 in the morning, nor after the hour of 8 in the evening if the child is under the age of fourteen, nor after the hour of 10 in the evening if the child is between the ages of fourteen and sixteen. Transportation time shall not be counted under this subdivision nor shall time spent during work breaks or waiting time spent during storm events if no work is required during those periods.

(3) Sections 48-302 and 48-310 do not apply to employment of a child in detasseling if the requirements of subsection (2) of this section are met.

(4) This section does not apply to a parent or a person standing in loco parentis who employs and directly supervises his or her own child or a child in his or her custody in a business owned and operated by such parent or person standing in loco parentis.

Source:Laws 2001, LB 180, § 1.

48-302.04. Detasseling; employer; requirements.

(1) An employer who employs a child under sixteen years of age in detasseling shall provide at least two supervisors who are eighteen years of age or older at each location where detasseling is being performed by a child under sixteen years of age. The supervisors shall be capable of assisting with issues of health, safety, and wages, including bonuses and incentive payments.

(2) An employer who employs a child under sixteen years of age in detasseling shall provide the parents of such child with an information sheet defining the terms of employment, including, but not limited to, the availability of water and sanitary facilities on the job and wage, bonus, and incentive payment information. The information sheet shall set forth the name, address, and telephone number of the Division of Safety and Labor Standards of the Department of Labor for purposes of filing complaints concerning nonpayment of wages.

Source:Laws 2001, LB 180, § 2.

48-303. Employment certificate; approval by school officer; report; investigation.

Except as otherwise provided in this section, an employment certificate shall be approved only by the principal of the school the child attends or by a person authorized by him or her in writing or, when there is no principal, by a person authorized by the chief administrative officer of the school or the superintendent of the school district in which the child resides, except that no person authorized by this section may approve such certificate for any child then in or about to enter his or her own employment or the employment of a firm or corporation of which he or she is a member, officer, or employee or in whose business he or she is interested. If a child who resides in an adjoining state seeks to work in Nebraska, the Department of Labor may approve the employment certificate. The officer or person approving such certificate may administer the oath provided for therein or in any investigation or examination necessary for the approval thereof. No fee shall be charged for approving any such certificate or for administering any oath or rendering any services related thereto. The school approving the employment certificate, or the department if the department has approved the employment certificate, shall establish and maintain proper records where copies of all such certificates and all documents connected therewith shall be filed and preserved and shall provide the necessary clerical services for carrying out sections 48-302 to 48-313. The person who issued the employment certificate shall report to the department any complaint concerning the conditions of employment of a child for whom a certificate is in force. Upon receipt of the report, the department shall make such investigation as it deems advisable to protect an individual child or to promote the youth-work program.

Source:Laws 1907, c. 66, § 3, p. 260; R.S.1913, § 3577; Laws 1919, c. 190, tit. IV, art. III, § 3, p. 551; C.S.1922, § 7671; C.S.1929, § 48-303; R.S.1943, § 48-303; Laws 1967, c. 296, § 2, p. 805; Laws 1987, LB 35, § 2; Laws 1999, LB 272, § 19; Laws 2001, LB 180, § 4; Laws 2018, LB377, § 6; Laws 2022, LB780, § 4.

48-304. Employment certificate; issuance; conditions.

The person authorized to issue an employment certificate under section 48-303 shall not issue such certificate until he or she has received, examined, approved, and filed the following papers duly executed: (1) The school record of the child, properly filled out and signed as provided in section 48-306, showing the child has completed the work of the sixth grade of the public schools, or its equivalent, or is regularly attending night school in compliance with section 48-308; and (2) a passport or duly attested transcript of the certificate of birth or baptism or other religious or official record showing the date and place of birth of such child. A duly attested transcript of the birth certificate filed according to law with a registrar of vital statistics, or other officer charged with the duty of recording births, shall be conclusive evidence of the age of such child. The affidavit of the parent, guardian, or custodian of a child shall be required only in case none of such documents can be produced and filed, showing the place and date of birth of such child, which affidavit must be taken before the officer issuing the employment certificate. Such employment certificate shall not be issued until such child has personally appeared before and been examined by the officer issuing the certificate and until such officer, after making such examination, signs and files in his or her office a statement that the child can read and legibly write simple sentences in the English language and that, in his or her opinion, the child has reached the normal development of a child of such child's age, and the child is in sound health and is physically able to perform the work which such child intends to do. In doubtful cases such physical fitness shall be determined by a physician provided by the Department of Labor. In addition to the requirements of this section, if the child is under fourteen years of age, the employment certificate shall be issued only for employment in connection with an employment program supervised and sponsored by the school or school district such child attends. Whenever the person authorized to issue the employment certificate is in doubt about the age of a child, he or she may require the party or parties making application for the certificate to appear before the judge of the juvenile court or the county judge where the question of the age of the child shall be determined and the judgment of the court shall be final and binding upon the person issuing the certificate. Notice of the hearing before the court shall be given to some one of the persons authorized to demand inspection of employment certificates. Every employment certificate shall be signed in the presence of the officer issuing the certificate by the child in whose name it is issued.

Source:Laws 1907, c. 66, § 4, p. 260; R.S.1913, § 3578; Laws 1919, c. 190, tit. IV, art. III, § 4, p. 551; C.S.1922, § 7672; C.S.1929, § 48-304; R.S.1943, § 48-304; Laws 1967, c. 296, § 3, p. 806; Laws 1999, LB 813, § 3.

48-305. Employment certificate; contents.

Such certificate shall state the date and place of birth of such child and describe the color of the hair and eyes, the height and weight and any distinguishing facial marks of such child, and that the papers required by section 48-304 have been duly examined, approved and filed, and that the child named in such certificate has appeared before the officer signing the certificate and been examined.

Source:Laws 1907, c. 66, § 5, p. 262; R.S.1913, § 3579; Laws 1919, c. 190, tit. IV, art. III, § 5, p. 552; C.S.1922, § 7673; C.S.1929, § 48-305; R.S.1943, § 48-305.

48-306. School record; contents.

The school record shall be signed by the teacher and principal of the school which such child has attended and shall be furnished on demand to a child entitled thereto. It shall contain a statement certifying that the child has regularly attended the public schools, or schools equivalent thereto or parochial schools for not less than three-fourths of the school year prior to applying for such school record, and is able to read and write simple sentences in the English language. It shall also state the amount of work completed by such child, measured by the grade of the public day schools in the city or county. Such school record shall also give the age and residence of the child as shown on the records of the school, and the name of its parent, guardian or custodian.

Source:Laws 1907, c. 66, § 6, p. 262; R.S.1913, § 3580; Laws 1919, c. 190, tit. IV, art. III, § 6, p. 553; C.S.1922, § 7674; C.S.1929, § 48-306; R.S.1943, § 48-306; Laws 1967, c. 296, § 4, p. 807.

48-307. Employment certificate; filing with Department of Labor.

The superintendent of public schools in all cities having a population of more than one thousand inhabitants as determined by the most recent federal decennial census or the most recent revised certified count by the United States Bureau of the Census and the presiding officer of all other school boards shall furnish a duplicate copy of all certificates issued under sections 48-302 to 48-313 to the Department of Labor. The duplicate certificates in the form set forth in section 48-309 shall be filed with the Department of Labor at the time of the issuance of the original certificate.

Source:Laws 1907, c. 66, § 7, p. 262; R.S.1913, § 3581; Laws 1919, c. 190, tit. IV, art. III, § 7, p. 553; C.S.1922, § 7675; C.S.1929, § 48-307; R.S.1943, § 48-307; Laws 1987, LB 35, § 3; Laws 2017, LB113, § 45.

48-308. Employment certificate; evening school; attendance record.

Regular attendance of a child at any public evening school, maintained in any city or village when instruction is given not less than twenty weeks each year, three evenings each week, and two hours each evening, shall authorize the issuance of a certificate of employment when the schooling certificate fails to show that the child has completed the work of the sixth grade if the schooling certificate and all other certificates are otherwise in due form and the applicant further produces a certificate from the superintendent or principal of such public evening school showing the regular attendance of such child at such evening school and if the child employed under such certificate furnishes to his or her employer a weekly certificate showing regular attendance each week while the evening school is in session.

Source:Laws 1907, c. 66, § 8, p. 262; R.S.1913, § 3582; Laws 1919, c. 190, tit. IV, art. III, § 8, p. 553; C.S.1922, § 7676; C.S.1929, § 48-308; R.S.1943, § 48-308; Laws 1967, c. 296, § 5, p. 807; Laws 1987, LB 35, § 4.

48-309. Age and schooling certificate; Department of Labor to prescribe form.

The age and schooling certificate provided for herein shall be made out upon blank forms prescribed and furnished in triplicate by the Department of Labor.

Source:Laws 1907, c. 66, § 9, p. 263; R.S.1913, § 3583; Laws 1919, c. 190, tit. IV, art. III, § 9, p. 554; C.S.1922, § 7677; C.S.1929, § 48-309; R.S.1943, § 48-309; Laws 1945, c. 116, § 1, p. 389.

48-310. Children under sixteen; working hours; limit; posting of notice; fee; special permit; exceptions.

(1) No person under sixteen years of age shall be employed or permitted to work in any employment as defined in section 48-301 more than forty-eight hours in any one week, nor more than eight hours in any one day, nor before the hour of 6 in the morning, nor after the hour of 8 in the evening if the child is under the age of fourteen, nor after the hour of 10 in the evening if such child is between the ages of fourteen and sixteen. The person issuing the work certificate may limit or extend the stated hour in individual cases by endorsement on the certificate, except a child shall only be permitted to work after the hour of 10 p.m. if there is no school scheduled for the following day and, if he or she is between fourteen and sixteen years of age, he or she has consented to such extension by signing his or her name on the endorsement extension, and his or her employer has obtained a special permit from the Department of Labor. The Department of Labor may issue a special permit to allow employment of such child beyond 10 p.m. upon being satisfied, after inspection of the working conditions, of the safety, healthfulness, and general welfare to the child of the business premises. The special permit may be issued for periods not to exceed ninety days and may be renewed only after reinspection. The fee for each permit or renewal shall be established by rule and regulation of the Commissioner of Labor, and all money so collected by the commissioner shall be remitted to the State Treasurer who shall credit the funds to the General Fund. Every employer shall post in a conspicuous place in every room where such children are employed a printed notice stating the hours required of them each day, the hours of commencing and stopping work, and the time allowed for meals. The printed form of such notice shall be furnished by the Department of Labor.

(2) Except as provided in subsections (3) and (4) of this section, no person under sixteen years of age shall be employed or permitted to work as a door-to-door solicitor.

(3) A person under sixteen years of age engaged in the delivery or distribution of newspapers or shopping news may be employed or permitted to work as a door-to-door solicitor of existing customers of such newspapers or shopping news.

(4) A person under sixteen years of age is permitted to work as a door-to-door solicitor if he or she is working on behalf of his or her own individual entrepreneurial endeavor.

Source:Laws 1907, c. 66, § 10, p. 266; R.S.1913, § 3584; Laws 1919, c. 190, tit. IV, art. III, § 10, p. 556; C.S.1922, § 7678; C.S.1929, § 48-310; R.S.1943, § 48-310; Laws 1963, c. 290, § 3, p. 869; Laws 1967, c. 296, § 6, p. 808; Laws 1969, c. 399, § 1, p. 1389; Laws 1995, LB 330, § 3; Laws 2005, LB 484, § 1.

48-310.01. Performing arts; special permit; fee.

When the Department of Labor finds it to be in the best interests of the child, the Department of Labor may issue a special permit waiving any requirement or restriction imposed on employment of a child pursuant to sections 48-302 to 48-313 for any child employed as a performer in the performing arts subject to such conditions as the Department of Labor deems necessary. For purposes of this section, performing arts means musical and theatrical presentations and productions, including motion picture, theatre, radio, and television productions. Before any such waiver is issued, the written consent of a parent or a person standing in loco parentis to the child is required. The Department of Labor may charge a fee established by rule and regulation of the Commissioner of Labor for each special permit issued pursuant to this section.

Source:Laws 1995, LB 330, § 4.

48-310.02. Special permits; fees; limitation.

The fees established by the Commissioner of Labor pursuant to sections 48-310 and 48-310.01 shall be established with due regard for the costs of administering sections 48-310 and 48-310.01. The fees shall not exceed the amount necessary to meet the costs of administering sections 48-310 and 48-310.01.

Source:Laws 1996, LB 1047, § 1.

48-311. Violations; penalties.

Whoever employs a child under sixteen years of age and whoever, having under his or her control a child under such age, causes or permits such child to be employed in violation of sections 48-302 to 48-313 is guilty of a Class II misdemeanor. Whoever continues to employ any child in violation of any of such sections, after being notified by an attendance officer or by the Department of Labor or by its assistants or employees, is, for every day thereafter that such employment continues, guilty of a Class II misdemeanor.

The failure of an employer of child labor to produce, upon request of a person authorized to demand the same, any employment certificate or list required by such sections shall be prima facie evidence of the illegal employment of any child whose employment certificate is not produced or whose name is not listed. Any corporation or employer retaining employment certificates in violation of such sections is guilty of a Class II misdemeanor.

Every person authorized or required to sign any certificate or statement prescribed by such sections who knowingly certifies or makes oath to any material false statement therein or who violates any of the provisions of such sections is guilty of a Class II misdemeanor.

Every person who refuses admittance to any person authorized to visit or inspect any premises or place of business under the provisions of such sections and to produce all certificates and lists he or she may have when demanded, after such person shall have announced his or her name and the office he or she holds and the purpose of his or her visit, or otherwise obstructs such persons in the performance of their duties prescribed by such sections is guilty of a Class II misdemeanor.

Source:Laws 1907, c. 66, § 11, p. 266; R.S.1913, § 3585; Laws 1919, c. 190, tit. IV, art. III, § 11, p. 556; C.S.1922, § 7679; C.S.1929, § 48-311; R.S.1943, § 48-311; Laws 1967, c. 296, § 7, p. 808; Laws 1977, LB 40, § 280; Laws 1987, LB 35, § 5; Laws 1995, LB 330, § 5; Laws 2001, LB 180, § 5.

48-312. Unlawful employment; evidence; visitation; reports.

The presence of a child under sixteen years of age, apparently at work, in a place of employment as defined in section 48-301 is prima facie evidence of his or her employment there. Attendance officers shall visit the places of employment to ascertain whether any children are employed contrary to the provisions of sections 48-302 to 48-313, and the attendance officers shall report any cases of illegal employment to the Department of Labor and to the county attorney.

Source:Laws 1919, c. 190, tit. IV, art. III, § 12, p. 557; C.S.1922, § 7680; C.S.1929, § 48-312; R.S.1943, § 48-312; Laws 1967, c. 296, § 8, p. 809; Laws 1995, LB 330, § 6.

48-313. Children under sixteen; dangerous, unhealthy, or immoral employment.

No child under the age of sixteen years shall be employed in any work which by reason of the nature of the work or place of performance is dangerous to life or limb or in which his or her health may be injured or his or her morals may be depraved. No parent, guardian, or other person, who has under his or her control any child, shall cause or permit such child to work or be employed in violation of this section.

Source:Laws 1907, c. 66, § 13, p. 268; R.S.1913, § 3587; Laws 1919, c. 190, tit. IV, art. III, § 13, p. 558; C.S.1922, § 7681; C.S.1929, § 48-313; R.S.1943, § 48-313; Laws 1977, LB 40, § 281; Laws 1987, LB 35, § 6.

48-401. Water closets; duty of employer to provide.

Every factory, mill, workshop, mercantile or mechanical establishment or other building, where one or more persons are employed, shall be provided within reasonable access, with a sufficient number of water closets, earth closets or privies for the reasonable use of the persons employed therein, and wherever male and female persons are employed as aforesaid together, water closets, earth closets or privies separate and apart, shall be provided for the use of each sex, and plainly so designated, and no person shall be allowed to use such closet or privy assigned to the other sex. Such closet shall be properly enclosed and ventilated and at all times kept in a clean and sanitary condition. When the number employed is more than twenty of either sex, there shall be provided an additional closet for each sex up to the number of forty and above that number in the same ratio. The Department of Labor or any person authorized by the department may require such changes in the placing of such closets as the department may deem necessary and may require other changes which may serve the best interest of morals and sanitation.

Source:Laws 1911, c. 67, § 1, p. 299; Laws 1913, c. 103, § 1, p. 258; R.S.1913, § 3588; Laws 1919, c. 190, tit. IV, art. IV, § 1, p. 558; C.S.1922, § 7682; C.S.1929, § 48-401; R.S.1943, § 48-401.

Annotations

The state, by its Legislature, has extensively entered the field of labor. Midwest Employers Council, Inc. v. City of Omaha, 177 Neb. 877, 131 N.W.2d 609 (1964).

Safety regulations do not apply to nonoperating owner of building. Quist v. Duda, 159 Neb. 393, 67 N.W.2d 481 (1954).

Petition of employee was insufficient to state cause of action under this section where it merely showed contracting of unusual disease by employee. Russo v. Swift & Co., 136 Neb. 406, 286 N.W. 291 (1939).

48-402. Dressing rooms; duty to provide; rights of lessee.

In factories, mills, workshops, mercantile or mechanical establishments, or other places where the labor performed by the operator is of such a character that it becomes necessary to change the clothing, wholly or in part, before leaving the building at the close of the day's work, separate dressing rooms shall be provided for females whenever so required by the Department of Labor. It shall be the duty of every occupant, whether owner or lessee of any such premises used as specified by sections 48-401 to 48-424, to make all the changes and additions thereto. In case such changes are made upon the order of the department to the lessee of the premises, the lessee may at any time within thirty days after the completion thereof, bring an action against any person, corporation, partnership, or limited liability company having an interest in such premises and may recover such proportion of expenses of making such changes and additions as the court adjudges should justly and equitably be borne by such defendant.

Source:Laws 1911, c. 67, § 2, p. 300; Laws 1913, c. 103, § 1, p. 258; R.S.1913, § 3589; Laws 1919, c. 190, tit. IV, art. IV, § 2, p. 558; C.S.1922, § 7683; C.S.1929, § 48-402; R.S.1943, § 48-402; Laws 1993, LB 121, § 287.

Annotations

Lessee is given a cause of action against parties having interest in premises for share of cost of changes and additions. Quist v. Duda, 159 Neb. 393, 67 N.W.2d 481 (1954).

48-403. Ventilation; dust and fumes; fans required.

If in any of the aforesaid places any process is carried on by which dust or fumes are caused, which may be inhaled by the persons employed therein, or if the air shall become exhausted or impure, there shall be provided a fan or other such mechanical device as will substantially carry away all such dust or fumes or other impurities, subject to the approval of the Department of Labor.

Source:Laws 1911, c. 67, § 3, p. 300; Laws 1913, c. 103, § 1, p. 259; R.S.1913, § 3590; Laws 1919, c. 190, tit. IV, art. IV, § 3, p. 559; C.S.1922, § 7684; C.S.1929, § 48-403; R.S.1943, § 48-403.

Annotations

The "aforesaid places" referred to in this section are those which are mentioned in sections 48-401 and 48-402: factories, mills, workshops, mercantile or mechanical establishments, or other buildings where one or more persons are employed. Anderson v. Nashua Corp., 246 Neb. 420, 519 N.W.2d 275 (1994).

Burden is on employee to prove that injury resulted proximately from failure of employer to install a fan to carry off fumes of paint shop. Smith v. Morton Motor Co., 145 Neb. 396, 16 N.W.2d 843 (1944).

Fact that employee contracted disease of echinococcosis does not show violation of this section. Russo v. Swift & Co., 136 Neb. 406, 286 N.W. 291 (1939).

Where employer provides foundry with ample ventilation and suitable equipment, and such foundry is inspected about twice a year by representative of Nebraska Department of Labor who makes no additional requirements, employer has complied with the statute. Rzeszotarski v. American Smelting & Refining Co., 133 Neb. 825, 277 N.W. 334 (1938).

Where ventilators and windows would tend to carry away dust and fumes, trial court was not required to instruct jury with reference to this section. Grover v. Aaron Ferer & Sons, 122 Neb. 755, 241 N.W. 539 (1932).

Employer has burden of proof to show that the installation of a fan or other device for the removal of dust and fumes is not practicable. Grant Storage Battery Co. v. DeLay, 87 F.2d 726 (8th Cir. 1937).

48-404. Sanitation; duty of employer.

All of the aforesaid places shall be kept clean and free from effluvia arising from any drain, privy or nuisance, and shall be ventilated and kept in a sanitary condition. The Department of Labor or any person authorized by the department may require such changes or additions to be made in any of the aforesaid places as will promote the best measures of sanitation.

Source:Laws 1911, c. 67, § 4, p. 300; Laws 1913, c. 103, § 1, p. 259; R.S.1913, § 3591; Laws 1919, c. 190, tit. IV, art. IV, § 4, p. 559; C.S.1922, § 7685; C.S.1929, § 48-404; R.S.1943, § 48-404.

48-405. Grinding machines; dust; blowers required.

All persons, companies or corporations operating any factory or workshop where grinding wheels, or grinding machines, emery wheels or emery belts of any description are used, whether solid emery, leather covered, felt, canvas, linen, paper, cotton or wheels or belts rolled or coated with emery or carborundum or cotton wheels used as buffs, shall, when deemed necessary by the Department of Labor, provide such wheels or belts with blowers or similar apparatus, which shall be placed over, beside or under such wheels or belts in such manner as to protect the person or persons using the same from particles of dust produced and caused thereby, and to carry away the dust arising from or thrown off by such wheels or belts while in operation, directly to the outside of the building or to some receptacle placed so as to receive and confine such dust; Provided, grinding machines upon which water is used at the point of grinding contact and other wheels used for tool grinding shall be exempt from the provisions of this section.

Source:Laws 1911, c. 67, § 5, p. 301; Laws 1913, c. 103, § 1, p. 259; R.S.1913, § 3592; Laws 1919, c. 190, tit. IV, art. IV, § 5, p. 559; C.S.1922, § 7686; C.S.1929, § 48-405; R.S.1943, § 48-405.

Annotations

Applicability of act is limited to those operating factory or workshop. Quist v. Duda, 159 Neb. 393, 67 N.W.2d 481 (1954).

48-406. Emery wheels and grindstones; use and operation.

No emery wheels or grindstones in any factory, mill or workshop, shall be used when known to the person using the same to be cracked or otherwise defective, nor operated at a greater speed than indicated or guaranteed by the manufacturer of such emery wheel or grindstone.

Source:Laws 1911, c. 67, § 6, p. 301; R.S.1913, § 3593; Laws 1919, c. 190, tit. IV, art. IV, § 6, p. 560; C.S.1922, § 7687; C.S.1929, § 48-406; R.S.1943, § 48-406.

48-407. Emery wheels and grindstones; hoods or hoppers required.

Every emery wheel and grindstone shall be fitted with a sheet or cast iron hood or hopper, of such form so adjusted that the dust or refuse therefrom will fall or be thrown into such hood or hopper by centrifugal force, and be carried off by the current of air into a suction pipe.

Source:Laws 1911, c. 67, § 7, p. 301; R.S.1913, § 3594; Laws 1919, c. 190, tit. IV, art. IV, § 7, p. 560; C.S.1922, § 7688; C.S.1929, § 48-407; R.S.1943, § 48-407.

Annotations

Applicability of act is limited to those operating factory or workshop. Quist v. Duda, 159 Neb. 393, 67 N.W.2d 481 (1954).

48-408. Emery wheels; suction pipes required; capacity.

Every such wheel six inches or less in diameter shall be provided with a three-inch suction pipe; wheels six inches to twenty-four inches in diameter, with a four-inch suction pipe; wheels from twenty-four inches to thirty-six inches in diameter, with a five-inch suction pipe; and every wheel exceeding thirty-six inches in diameter shall be provided with a suction pipe not less than six inches in diameter.

The suction pipe from each wheel shall be of full size to its terminus, and a suction pipe to which smaller pipes are attached shall, in its capacity, be equal to the combined capacities of all smaller pipes attached thereto, and the discharge pipe shall be of as large capacity as, or larger capacity than, the combined capacities of all suction pipes.

Source:Laws 1911, c. 67, § 8, p. 302; R.S.1913, § 3595; Laws 1919, c. 190, tit. IV, art. IV, § 8, p. 560; C.S.1922, § 7689; C.S.1929, § 48-408; R.S.1943, § 48-408.

48-409. Machinery; safety devices required.

Every person operating a plant where machinery is used, shall provide such guards, boxing, screens or other appliances as will protect employees against injury from belting, shafting, gearing, elevators, drums, saws, cogs, electric currents, molten metal or hot liquid. He shall also furnish and supply belt shifters which can be operated from the floor. All exposed cogs or gears shall be enclosed in metal casings or woven wire screens. Protruding set screws in collars and couplings of shafting or other revolving machinery shall be countersunk or covered with metal boxing. Pulleys, belts and projections of or from ends of shaftings shall be protected by boxing or enclosing with metal or other suitable material. Belts shall not rest on shafting in motion, but rest hooks shall be provided to hold belting free therefrom. Roll guards shall be placed on roll-feed machines fed by hand at the point where the material is fed, and a device for instantly stopping the machine by the hand or foot shall also be provided within reach of the operator when operating the machine.

Source:Laws 1911, c. 67, § 9, p. 302; Laws 1913, c. 103, § 1, p. 260; R.S.1913, § 3597; Laws 1919, c. 190, tit. IV, art. IV, § 9, p. 560; C.S.1922, § 7690; C.S.1929, § 48-409; R.S.1943, § 48-409.

Annotations

Employee's acceptance of benefits under Workmen's Compensation Act ordinarily constitutes release to employer of claims at law arising from the injury. Edelman v. Ralph Printing & Lithographing, Inc., 189 Neb. 763, 205 N.W.2d 340 (1973).

Evidence did not establish violation of this section. Goodwin v. Epsen Lithographing Co., 183 Neb. 281, 160 N.W.2d 183 (1968).

Words "operating a plant" would include corporation carrying on an elevator business. Fosler v. Aden, 175 Neb. 535, 122 N.W.2d 494 (1963).

Applicability of section is limited to operator of plant. Quist v. Duda, 159 Neb. 393, 67 N.W.2d 481 (1954).

A farming and stockfeeding business is not a plant within this section. Groat v. Clausen, 139 Neb. 689, 298 N.W. 563 (1941).

Factory act is not intended to narrow compensation act. Fact that employer's violation of this section was cause of injury to employee does not entitle latter to sue at common law. Navracel v. Cudahy Packing Co., 109 Neb. 506, 191 N.W. 659 (1922), reh'g denied, 109 Neb. 512, 193 N.W. 768 (1923).

Where defendant failed to provide rest hook to hold belting free from shafting, it was proper to submit to jury failure to comply with statute as evidence of negligence. Hellerich v. Central Granaries Co., 104 Neb. 818, 178 N.W. 919 (1920).

Violation of this section constituted gross negligence. McCarthy v. Village of Ravenna, 99 Neb. 674, 157 N.W. 629 (1916).

48-410. Revolving machines; screens required.

A metal or other suitable screen shall be placed around each laundry extractor or other exposed high-speed revolving machinery.

Source:Laws 1919, c. 190, tit. IV, art. IV, § 10, p. 561; C.S.1922, § 7691; C.S.1929, § 48-410; R.S.1943, § 48-410.

48-411. Woodworking machinery; safety devices.

Wood planers, wood shapers, swing saws, equalizing saws, circular heading jointers, wood polishers, buzz planers, lathe bolters, and all similar machinery, shall be equipped with requisite safety appliances.

Source:Laws 1919, c. 190, tit. IV, art. IV, § 11, p. 561; C.S.1922, § 7692; C.S.1929, § 48-411; R.S.1943, § 48-411.

48-412. Safety appliances; codes and standards.

All safety appliances prescribed by sections 48-401 to 48-424 shall be subject to the approval of the Commissioner of Labor. The commissioner is directed and empowered to formulate, adopt, publish and enforce such safety codes, orders, rules and standards as he deems necessary, in order that all employments and places of employment shall be, in all respects, so constructed, equipped, arranged, operated and maintained as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein and frequenting the same, as the nature of the employment will reasonably permit. Such codes as may be adopted shall be subject to modification, amendment or repeal at any time, in the discretion of the commissioner.

Source:Laws 1919, c. 190, tit. IV, art. IV, § 12, p. 561; C.S.1922, § 7693; Laws 1929, c. 138, § 1, p. 492; C.S.1929, § 48-412; R.S.1943, § 48-412; Laws 1969, c. 400, § 1, p. 1390.

Annotations

Safety appliance codes apply only where the relationship of employer and employee exists. Quist v. Duda, 159 Neb. 393, 67 N.W.2d 481 (1954).

The violation of a provision of a safety code intended to protect life, health, and safety of employees constitutes actionable negligence but such negligence must be shown to have been the proximate cause of the injury. Wertz v. Lincoln Liberty Life Ins. Co., 152 Neb. 451, 41 N.W.2d 740 (1950).

Rules of Department of Labor are not applicable to a farming and stockraising business. Groat v. Clausen, 139 Neb. 689, 298 N.W. 563 (1941).

48-413. Safety codes; adopt, amend, or repeal; Nebraska Safety Code for Building Construction; procedures.

(1) The Commissioner of Labor shall, from time to time, create advisory committees composed of employers, employees, and such other persons as the commissioner may designate, to advise him in formulating, adopting, amending or repealing such codes, orders, rules and standards. Before any code is adopted, amended or repealed there shall be a public hearing thereon, notice of which hearing shall be given such publicity as the commissioner deems necessary. The commissioner may make or cause to be made such investigations and surveys as will assist in the formulation and modification of such codes, orders, rules and standards.

(2) A safety code may be adopted as a regulation by the Commissioner of Labor and shall thereafter be known as the Nebraska Safety Code for Building Construction. A copy of this code, if so adopted, shall be kept on file in the office of the Commissioner of Labor. Any amendment or change thereafter made in such code shall become effective in this state only after public notice and hearing thereon as provided in the Administrative Procedure Act.

Source:Laws 1929, c. 138, § 1, p. 493; C.S.1929, § 48-412; R.S.1943, § 48-413; Laws 1969, c. 400, § 2, p. 1391.

Cross References

Administrative Procedure Act, see section 84-920.

48-414. Safety codes; enforcement; violation; penalty; coverage of sections.

It shall be the duty of the Commissioner of Labor to make or cause to be made periodic inspections of all places of employment for the purpose of enforcing the provisions of such safety codes as have been adopted, and any inspector or employee of the commissioner may order the discontinuance of the use or operation of any machine or device, or the discontinuance of work at any location, which does not conform to the provisions of the code or codes pertaining thereto. The commissioner shall adopt a suitable label to be attached to any such machine or device stating that the use or operation of such machine or device is dangerous and has been ordered discontinued. The commissioner shall adopt a similar label or sign to be posted at any location where work has been ordered discontinued. Such label shall not be removed except upon authority from the commissioner. Any employer or employee who uses or operates, or causes to be used or operated, any machine or device so labeled, or who continues work at any location where work has been ordered discontinued, shall be guilty of a Class II misdemeanor. Railroad companies engaged in interstate or foreign commerce are not within the provisions of sections 48-412 to 48-416. Public power and irrigation districts, under Chapter 70, article 6, are subject to the provisions of Chapter 48, article 4.

Source:Laws 1929, c. 138, § 1, p. 493; C.S.1929, § 48-412; R.S.1943, § 48-414; Laws 1969, c. 400, § 3, p. 1391; Laws 1977, LB 40, § 282; Laws 1979, LB 467, § 1.

Annotations

Evidence that Department of Labor has inspected and approved a particular machine is prima facie evidence that its use is not in violation of this act. Goodwin v. Epsen Lithographing Co., 183 Neb. 281, 160 N.W.2d 183 (1968).

48-415. Safety codes; validity or reasonableness; appeal to Commissioner of Labor.

Any person in interest, or his duly authorized agent, may file a petition with the Commissioner of Labor for a review of the validity or reasonableness of any code, order, rule or standard made under the provisions of section 48-412. The commissioner shall, as soon as practicable thereafter, hold a hearing to determine the issues raised, and shall give ample notice of the time and place of such hearing to the petitioner, and to such other interested persons as the commissioner may determine.

Source:Laws 1929, c. 138, § 1, p. 493; C.S.1929, § 48-412; R.S.1943, § 48-415; Laws 1969, c. 400, § 4, p. 1392.

48-416. Appeal; procedure.

Any person in interest who is dissatisfied with the decision of the Commissioner of Labor may appeal the decision, and the decision shall be in accordance with the Administrative Procedure Act.

Source:Laws 1929, c. 138, § 1, p. 494; C.S.1929, § 48-412; R.S.1943, § 48-416; Laws 1969, c. 400, § 5, p. 1392; Laws 1988, LB 352, § 84.

Cross References

Administrative Procedure Act, see section 84-920.

48-417. Electric plants; safety regulations.

Signs or indicating lamps shall be placed at all switches in electric light and power plants or other places where high-pressure currents are used, to show whether the current is on or off the circuit. When current is turned off a circuit for repair, the switch shall first be tagged, the tag bearing the name of the person for whom it is turned off. The tag shall not be removed or the current turned on until the person for whom it was tagged shall notify the operator that his work has ceased.

Source:Laws 1919, c. 190, tit. IV, art. IV, § 13, p. 561; C.S.1922, § 7694; C.S.1929, § 48-413; R.S.1943, § 48-417.

48-418. Transferred to section 48-2512.01.

48-418.01. Repealed. Laws 2007, LB 265, § 38.

48-418.02. Repealed. Laws 2007, LB 265, § 38.

48-418.03. Repealed. Laws 2007, LB 265, § 38.

48-418.04. Repealed. Laws 2007, LB 265, § 38.

48-418.05. Repealed. Laws 2007, LB 265, § 38.

48-418.06. Repealed. Laws 2007, LB 265, § 38.

48-418.07. Repealed. Laws 2007, LB 265, § 38.

48-418.08. Repealed. Laws 2007, LB 265, § 38.

48-418.09. Repealed. Laws 2007, LB 265, § 38.

48-418.10. Repealed. Laws 2007, LB 265, § 38.

48-418.11. Repealed. Laws 2007, LB 265, § 38.

48-418.12. Repealed. Laws 2007, LB 265, § 38.

48-418.13. Repealed. Laws 1993, LB 45, § 2.

48-418.14. Repealed. Laws 2007, LB 265, § 38.

48-419. Steam boilers; repairs; safety regulations.

Where a number of boilers deliver to a common steam main, they shall be equipped with a shutoff or throttle valve for each boiler to take it out of service for repairs and inspection necessitating the entry therein of workmen. A metal shield shall be constructed covering the hand wheel of the valve hinging in the center and containing hasp and lock. The shield shall be painted red and marked with the words Man in boiler. The workman shall be allowed to retain key in his possession while in such boiler.

Source:Laws 1919, c. 190, tit. IV, art. IV, § 15, p. 561; C.S.1922, § 7696; C.S.1929, § 48-415; R.S.1943, § 48-419.

48-420. Fire escapes; when required.

Every factory or other institution, more than two stories in height, shall be equipped with outside fireproof iron stairways, chutes or toboggans, and one automatic fire escape for every fifteen persons working or congregating therein at any time, who, for any reason, are unable to reach or use the outside fireproof stairways, chutes or toboggans.

Source:Laws 1919, c. 190, tit. IV, art. IV, § 16, p. 562; C.S.1922, § 7697; C.S.1929, § 48-416; R.S.1943, § 48-420.

Annotations

Under former penal statute relating to fire escapes, law will not be extended to include agents of owners who fail, after notice, to erect fire escapes. State v. Dailey, 76 Neb. 770, 107 N.W. 1094 (1906).

48-421. Accidents; reports; contents.

Every person operating a plant where machinery is used, shall report in writing to the Department of Labor all fatal accidents within forty-eight hours after their occurrence, and all other accidents within two weeks after their occurrence. Such report shall state fully the cause of the accidents, the nature and extent of the injuries, and the probable loss of time which will result therefrom.

Source:Laws 1911, c. 67, § 10, p. 302; Laws 1913, c. 103, § 1, p. 261; R.S.1913, § 3598; Laws 1919, c. 190, tit. IV, art. IV, § 17, p. 562; C.S.1922, § 7698; C.S.1929, § 48-417; R.S.1943, § 48-421.

Annotations

Applicability of act is limited to operator. Quist v. Duda, 159 Neb. 393, 67 N.W.2d 481 (1954).

48-422. Violations; liability for injuries.

Every person operating a plant where machinery is used who shall violate any of the provisions of sections 48-401 to 48-424 shall be liable in damages to any person injured, as a result thereof, or to the heirs of any person who shall have died as a result thereof.

Source:Laws 1919, c. 190, tit. IV, art. IV, § 18, p. 562; C.S.1922, § 7699; C.S.1929, § 48-418; R.S.1943, § 48-422.

Annotations

Employee's acceptance of benefits under Workmen's Compensation Act ordinarily constitutes release to employer of claims at law arising from the injury. Edelman v. Ralph Printing & Lithographing, Inc., 189 Neb. 763, 205 N.W.2d 340 (1973).

Recovery was denied in action brought under this section against manager of elevator. Fosler v. Aden, 175 Neb. 535, 122 N.W.2d 494 (1963).

Applicability of act is limited to operator. Quist v. Duda, 159 Neb. 393, 67 N.W.2d 481 (1954).

Employer failing to comply with statutory duty for benefit of employees can be held liable for injuries to employees only if there is a causal connection between his negligence and the injury of which the employee complains. Smith v. Morton Motor Co., 145 Neb. 396, 16 N.W.2d 843 (1944).

Where evidence failed to show that any machinery was used in room where plaintiff worked, court was not required to instruct jury with reference to this section. Grover v. Aaron Ferer & Sons, 122 Neb. 755, 241 N.W. 539 (1932).

Notwithstanding injury to minor employee was caused by employer's violation of statute requiring screens to protect from machinery, Workmen's Compensation Act applied and employer was not liable at common law. Navracel v. Cudahy Packing Co., 109 Neb. 506, 191 N.W. 659 (1922), reh'g denied, 109 Neb. 512, 193 N.W. 768 (1923).

Where appliances furnished for protection of employee are of standard make and in common use, and no defect is shown therein, cause of action is not made out for not furnishing proper appliances. Grant Storage Battery Co. v. DeLay, 87 F.2d 726 (8th Cir. 1937).

48-423. Violations; assumption of risk.

The continuance by any person in the employ of any such operator shall not be deemed an assumption of the risks of such employment.

Source:Laws 1919, c. 190, tit. IV, art. IV, § 19, p. 562; C.S.1922, § 7700; C.S.1929, § 48-419; R.S.1943, § 48-423.

Cross References

Actions against railroad or street railroad company, employee shall not be held to have assumed risk where company or its agents, servants, or employees have been guilty of negligence, see section 25-21,184.

Annotations

Applicability of act is limited to operator. Quist v. Duda, 159 Neb. 393, 67 N.W.2d 481 (1954).

Employee assumes risk arising from lead poisoning, where adequate warning and instructions to prevent injury are given. Grant Storage Battery Co. v. DeLay, 87 F.2d 726 (8th Cir. 1937).

48-424. Health and safety regulations; violations; penalty.

Every person who shall violate any of the provisions of sections 48-401 to 48-423 shall be guilty of a Class II misdemeanor.

Source:Laws 1919, c. 190, tit. IV, art. IV, § 20, p. 562; C.S.1922, § 7701; C.S.1929, § 48-420; R.S.1943, § 48-424; Laws 1965, c. 284, § 1, p. 813; Laws 1977, LB 40, § 284.

Annotations

Requirements of act did not apply to a landlord who was not occupant of building or operator of safety device. Quist v. Duda, 159 Neb. 393, 67 N.W.2d 481 (1954).

48-425. Scaffolds or staging; safety requirements.

All scaffolds, hoists, cranes, stays, ladders, supports or other mechanical contrivances used in the erection, repairing, alteration, removal or painting of any house, building, bridge, viaduct or other structure, shall be erected and constructed in a safe, suitable and proper manner. Scaffolding or staging, swung or suspended from an overhead support and more than twenty feet from the ground floor, shall have, where practicable, a safety rail properly bolted, secured and braced, rising at least thirty-four inches above the floor or main portion of such scaffolding or staging, and extending along the entire length of the outside and ends thereof and properly attached thereto, and such scaffolding and staging shall be so fastened as to prevent the same from swaying from the building or structure.

Source:Laws 1911, c. 65, § 1, p. 289; R.S.1913, § 3602; Laws 1919, c. 190, tit. IV, art. IV, § 21, p. 562; C.S.1922, § 7702; C.S.1929, § 48-421; R.S.1943, § 48-425.

Annotations

1. Scaffolding or staging

2. Miscellaneous

1. Scaffolding or staging

This section does not preclude indemnification against a breach of the statutory duty concerning scaffolding. Oddo v. Speedway Scaffold Co., 233 Neb. 1, 443 N.W.2d 596 (1989).

It is the responsibility of a subcontractor who owns, erects, and controls scaffold for use of his own employees to comply with safety regulations hereunder. Hand v. Rorick Constr. Co., 190 Neb. 191, 206 N.W.2d 835 (1973).

Duty to secure ladder was that of plaintiff independent contractor rather than of defendant general contractor. Laaker v. Hartman, 186 Neb. 774, 186 N.W.2d 494 (1971).

Defective scaffold formed the basis of cross-petition by defendant against codefendant. Rogers v. Western Electric Co., 179 Neb. 359, 138 N.W.2d 423 (1965).

Prior case involving scaffolding on building is distinguished. Fosler v. Aden, 175 Neb. 535, 122 N.W.2d 494 (1963).

Where scaffold was supplied under contract of bailment, bailor was liable if scaffold did not meet requirements of statute. Baer v. Schaap, 168 Neb. 578, 97 N.W.2d 207 (1959).

Scaffold must be safe, suitable, and proper for the purpose for which it is used, and employer is liable if it does not meet this requirement. Johnson v. Weborg, 142 Neb. 516, 7 N.W.2d 65 (1942).

Issue of responsibility for proper erection and maintenance of ladder was question for a jury. Farmers Co-op Elevator Ass'n. v. Strand, 382 F.2d 224 (8th Cir. 1967).

Erection of an unsafe scaffold is negligence per se. Continental Can Co. v. Horton, 250 F.2d 637 (8th Cir. 1957).

2. Miscellaneous

This section does not apply to employer-independent contractor relationships. Semler v. Sears, Roebuck, & Co., 268 Neb. 857, 689 N.W.2d 327 (2004).

Section is constitutional as to owner of real estate. Butera v. Mardis Co., 99 Neb. 815, 157 N.W. 1024 (1916).

48-426. Buildings; construction; supports, floor strength.

If in any house, building or structure in process of erection or construction, except a private barn, or a private house, the distance between the enclosed walls is more than twenty-four feet in the clear, there shall be built, kept and maintained, proper intermediate supports for the joists, which supports shall be either brick walls or iron or steel columns, beams, trusses or girders. The floors in all such houses, buildings or structures shall be capable of bearing in all their parts, in addition to the weight of the floor construction, partitions and permanent fixtures and mechanisms that may be set upon the same, a live load of fifty pounds for every square foot of floor surface.

Source:Laws 1911, c. 65, § 2, p. 290; R.S.1913, § 3603; Laws 1919, c. 190, tit. IV, art. IV, § 22, p. 563; C.S.1922, § 7703; C.S.1929, § 48-422; R.S.1943, § 48-426.

48-427. Buildings; construction; floor loads; notice.

The owner of every house, building or structure, except a private barn or a private house, shall affix and display conspicuously on each floor of such building during construction, a placard, stating the load per square foot of floor surface which may, with safety, be applied to the particular floor during construction. If the strength of different parts of any floor varies, then there shall be placards for each varying part of such floor. It shall be unlawful to load any such floors, or any part thereof, to a greater extent than the load indicated on the placard, and all such placards shall be verified and approved by the Department of Labor, or other proper authority in the city or village charged with the enforcement of building laws.

Source:Laws 1911, c. 65, § 3, p. 290; R.S.1913, § 3604; Laws 1919, c. 190, tit. IV, art. IV, § 23, p. 563; C.S.1922, § 7704; C.S.1929, § 48-423; R.S.1943, § 48-427.

48-428. Scaffolding; platforms; inspection; notice; duty to render safe.

Whenever it shall come to the notice of the Department of Labor or the local authority in any city or village of this state, charged with the duty of enforcing the building laws, that the scaffolding or the slings, hangers, blocks, pulleys, stays, braces, ladders, irons or ropes of any swinging or stationary scaffolding, platform or other similar device, used in the construction, alteration, removing, repairing, cleaning or painting of buildings, bridges or viaducts within this state are unsafe, or liable to prove dangerous to the life or limb of any person, the department, or such local authority or authorities, shall immediately cause an inspection to be made of such scaffolding, platform or device, or the slings, hammocks, blocks, pulleys, stays, braces, ladders, iron or other parts connected therewith. If, after examination, such scaffolding, platform or device, or any of such parts, is found to be dangerous to the life or limb of any person, the department or such local authority shall at once notify the person responsible for its erection or maintenance of such fact and warn him against the use, maintenance or operation thereof and prohibit the use thereof, and require the same to be altered and reconstructed so as to avoid such danger. Such notice may be served personally upon the person responsible for its erection or maintenance or by conspicuously affixing it to the scaffold, platform or other such device, or the part thereof declared to be unsafe. After such notice has been so served or affixed the person responsible therefor shall cease using and immediately remove such scaffolding, platform or other device or part thereof, and alter or strengthen it in such manner as to render it safe. The department, or such local authority, whose duty it is to examine or test any scaffolding, platform or other similar device, or part thereof, required to be erected and maintained by this section, shall have free access at all reasonable hours to any building or structure or premises containing such scaffolding, platform or other similar device, or parts thereof, or where they may be in use. All swinging and stationary scaffolding, platforms or other devices shall be so constructed as to bear four times the maximum weight required to be dependent thereon, or placed thereon when in use, and such swing, scaffolding, platform or other device shall not be so overloaded or crowded as to render the same unsafe or dangerous.

Source:Laws 1911, c. 65, § 4, p. 291; R.S.1913, § 3605; Laws 1919, c. 190, tit. IV, art. IV, § 24, p. 563; C.S.1922, § 7705; C.S.1929, § 48-424; R.S.1943, § 48-428.

Annotations

It is the responsibility of a subcontractor who owns, erects, and controls scaffold for use of his own employees to comply with safety regulations hereunder. Hand v. Rorick Constr. Co., 190 Neb. 191, 206 N.W.2d 835 (1973).

48-429. Scaffolding; staging; safety devices.

Any person employing or directing another to perform labor of any kind in the erecting, altering, repairing or painting of any water pipe, standpipe, tank, smokestack, chimney, tower, steeple, pole, staff, dome or cupola, when the use of any scaffolding, staging, swing, hammock, support, temporary platform or other similar contrivance is required or used in the performance of such labor, shall keep and maintain at all times, while such labor is being performed, and such mechanical device is in use or operation, a safe and proper scaffold, stay, support or other suitable device, not more than sixteen feet below such working scaffold, staging, swing, hammock, support, or temporary platform, when such work is being performed at a height of thirty-two feet or more.

Source:Laws 1911, c. 65, § 5, p. 292; R.S.1913, § 3606; Laws 1919, c. 190, tit. IV, art. IV, § 25, p. 564; C.S.1922, § 7706; C.S.1929, § 48-425; R.S.1943, § 48-429.

48-430. Buildings; floors; safety regulations.

All contractors and owners, when constructing buildings where the plans and specifications require the floors to be arched between the beams thereof, or where the floors or filling in between the floors are fireproof material or brick work, shall complete the flooring or filling in as the building progresses, to within at least two tiers or beams below that on which the iron work is being erected. If the plans and specifications of such building do not require filling in between the beams of floors with brick or fireproof material, all contractors for carpenter work in the course of construction shall lay the underflooring thereof, or a safe temporary floor on each story as the building progresses to within at least two stories or floors below the story where the work is being performed. If the floor beams are of iron or steel, the contractors for the iron or steel work of buildings in the course of construction, or the owners of such buildings shall thoroughly plank over the entire tier or iron or steel beams on which the structural iron or steel work is being erected, except such spaces as may be reasonably required for the proper construction of such iron or steel work and for the raising and lowering of materials to be used in the construction of buildings, or such spaces as may be designated by the plans and specifications for stairways and elevator shafts.

Source:Laws 1911, c. 65, § 6, p. 293; R.S.1913, § 3607; Laws 1919, c. 190, tit. IV, art. IV, § 26, p. 565; C.S.1922, § 7707; C.S.1929, § 48-426; R.S.1943, § 48-430.

48-431. Buildings; construction; elevating machines or hoists; safety regulations.

If elevating machines or hoisting apparatus are used within a building in the course of construction for the purpose of lifting materials to be used in such construction, the contractors or owners shall cause the shafts or openings in each floor to be enclosed or fenced in on all sides by a substantial barrier or railing at least eight feet in height. Any hoisting machines or engines used in such building construction shall, where practicable, be set up or placed on the ground, and where it is necessary in the construction of such building to place such hoisting machine or engine on some floor above the ground floor, such machine or engine must be properly secured and supported with a foundation capable of safely sustaining twice the weight of such machine or engine. If a building in course of construction is five stories or more in height, no material needed for such construction shall be hoisted or lifted over public streets or alleys unless such street or alley shall be barricaded from use by the public. The chief officer in any city or village charged with the enforcement of local building laws and ordinances, shall cooperate with the Department of Labor in enforcing the provisions of sections 48-425 to 48-435.

Source:Laws 1911, c. 65, § 7, p. 293; R.S.1913, § 3608; Laws 1919, c. 190, tit. IV, art. IV, § 27, p. 565; C.S.1922, § 7708; C.S.1929, § 48-427; R.S.1943, § 48-431.

48-432. Buildings; elevating machines or hoists; signals.

If elevating machines or hoisting apparatus, operated or controlled by other than hand power, are used in the construction, alteration or removal of any building or other structure, a complete and adequate system of communication by means of signals shall be provided and maintained by the owner, contractor or subcontractor, during the use and operation of such elevating machines or hoisting apparatus.

Source:Laws 1911, c. 65, § 8, p. 294; R.S.1913, § 3609; Laws 1919, c. 190, tit. IV, art. IV, § 28, p. 566; C.S.1922, § 7709; C.S.1929, § 48-428; R.S.1943, § 48-432.

48-433. Building plans; duty of architects or draftsmen; violation; penalty.

All architects or draftsmen in preparing plans, specifications or drawings to be used in the erection, repairing, altering or removing of any building or structure within the terms and provisions of sections 48-425 to 48-435, shall provide in such plans, specifications and drawings for all the permanent structural features or requirements specified in said sections. Any person violating the provisions of this section shall be guilty of a Class IV misdemeanor.

Source:Laws 1911, c. 65, § 9, p. 294; R.S.1913, § 3610; Laws 1919, c. 190, tit. IV, art. IV, § 29, p. 566; C.S.1922, § 7710; C.S.1929, § 48-429; R.S.1943, § 48-433; Laws 1977, LB 40, § 285.

48-434. Violations; penalty; prosecution.

(1) Any person violating any of the provisions of sections 48-425 to 48-432 shall be guilty of a Class II misdemeanor.

(2) All prosecutions for offenses relating to health and safety laws and regulations under sections 48-401 to 48-435 shall be brought in the name of the State of Nebraska before any court having jurisdiction thereof. It shall be the duty of all county attorneys in their respective counties to prosecute all persons charged with offenses against the health and safety laws and regulations of this state.

Source:Laws 1911, c. 65, § 10, p. 295; R.S.1913, § 3611; Laws 1919, c. 190, tit. IV, art. IV, § 30, p. 566; C.S.1922, § 7711; C.S.1929, § 48-430; R.S.1943, § 48-434; Laws 1969, c. 400, § 6, p. 1393; Laws 1973, LB 2, § 1; Laws 1977, LB 40, § 286.

Annotations

Effect of 1919 amendment to this section discussed. Quist v. Duda, 159 Neb. 393, 67 N.W.2d 481 (1954).

48-435. Buildings; construction; violations; assumption of risk.

The continuance by any person in the employ of any such operator shall not be deemed an assumption of the risk of such employment.

Source:Laws 1911, c. 65, § 11, p. 296; R.S.1913, § 3612; Laws 1919, c. 190, tit. IV, art. IV, § 31, p. 567; C.S.1922, § 7712; C.S.1929, § 48-431; R.S.1943, § 48-435.

Annotations

This section did not apply to plaintiff independent contractor as he was not employee of defendant general contractor. Laaker v. Hartman, 186 Neb. 774, 186 N.W.2d 494 (1971).

Effect of 1919 amendment to this section discussed. Quist v. Duda, 159 Neb. 393, 67 N.W.2d 481 (1954).

Statute, insofar as it makes liable owner of lot on which building is being erected, is constitutional. Butera v. Mardis Co., 99 Neb. 815, 157 N.W. 1024 (1916).

Assumption of risk doctrine had no bearing in determining negligence of owner of property. Farmers Co-op Elevator Assn. v. Strand, 382 F.2d 224 (8th Cir. 1967).

48-436. Terms, defined.

For purposes of sections 48-436 to 48-442, unless the context otherwise requires:

(1) High voltage means a voltage in excess of six hundred volts, measured between conductors, or measured between the conductor and the ground; and

(2) Authorized and qualified persons includes employees of any electric utility, public power district, or public power and irrigation district with respect to the electrical systems of such utilities, employees of communications utilities, common carriers engaged in interstate commerce, state, county, or municipal agencies with respect to work relating to their facilities on the poles or structures of an electric utility or railway transportation system, employees of a railway transportation system or a metropolitan utilities district engaged in the normal operation of such system, and employees of a contractor with respect to work under his or her supervision when such work is being performed under contract for, or as an agent of, the owner of the above utilities, companies, or agencies, so long as all such persons meet the requirements for working near overhead high voltage conductors as provided in 29 C.F.R. 1910.269(a)(2)(ii) through 1910.269(a)(3), as such regulations existed on July 19, 2012.

Source:Laws 1969, c. 390, § 1, p. 1370; Laws 2012, LB997, § 1.

48-437. High voltage lines; prohibited acts; penalty.

(1) No person, firm, or corporation, or agent of such person, firm, or corporation, shall require or permit any employee, except an authorized and qualified person, to perform and no person, except an authorized and qualified person, shall perform any function within the distances from overhead high voltage conductors prohibited by sections 48-436 to 48-442; or enter upon any land, building, or other premises, and there to engage in any excavation, demolition, construction, repair, or other operations, or to erect, install, operate, or store in or upon such premises any tools, machinery, equipment, materials, or structures, including house-moving, well-drilling, pile-driving, or hoisting equipment, within the distances from overhead high voltage conductors prohibited by sections 48-436 to 48-442, unless and until danger from accidental contact with such high voltage conductors has been effectively guarded against in the manner prescribed in sections 48-436 to 48-442.

(2)(a) No person except an authorized and qualified person shall manipulate overhead high voltage conductors or other components, including the poles and other structures, of an electric utility. Under no circumstances shall an authorized and qualified person work on the electrical system of an electric utility that he or she is not employed by unless written authorization has been obtained from such electric utility. This subsection shall not be construed to apply to activities performed by an authorized and qualified person employed by an electric utility on the electrical system of another electric utility when the nonowning or nonoperating electric utility has a written agreement with the owning and operating electric utility (i) providing for the joint use of or interconnection of the electrical systems of both the electric utilities or (ii) approving authorized and qualified persons employed by the nonowning or nonoperating electric utility to work on the electrical system of the owning or operating electric utility on an ongoing basis.

(b) Any person, firm, or corporation, or any employee thereof, violating any provisions of this subsection shall be guilty of a Class II misdemeanor.

Source:Laws 1969, c. 390, § 2, p. 1371; Laws 2012, LB997, § 2; Laws 2016, LB973, § 1.

48-438. High voltage lines; tools, equipment, materials, or buildings; operation, movement, or erection; use; conditions.

(1) Except as provided in subsections (2) and (3) of this section, the operation or erection of any tools, machinery, or equipment, or any part thereof capable of vertical, lateral, or swinging motion, or the handling or storage of any supplies, materials, or apparatus or the moving of any house or other building, or any part thereof, under, over, by, or near overhead high voltage conductors, shall be prohibited if, at any time during such operation or other manipulation, it is possible to bring such equipment, tools, materials, building, or any part thereof within ten feet of such overhead high voltage conductors, except where such high voltage conductors have been effectively guarded against danger from accidental contact, by any of the following:

(a) Erection of mechanical barriers to prevent physical contact with high voltage conductors;

(b) Deenergizing of the high voltage conductors and grounding where necessary; or

(c) Temporary relocation of overhead high voltage conductors.

(2) The minimum distance required by this section for cranes or other boom type equipment in transit with no load and with raiseable portions lowered shall be four feet.

(3) Nothing in sections 48-436 to 48-442 shall prohibit the moving of general farm equipment under high voltage conductors where clearances required by sections 48-436 to 48-442 are maintained.

(4) The activities performed as described in subdivisions (1)(a), (b), and (c) of this section shall be performed only by the owner or operator of the high voltage conductors unless written authorization has been obtained from such owner or operator. This subsection shall not be construed to apply to activities performed by an electric utility on high voltage conductors of another electric utility when the electric utilities have a written agreement (a) providing for joint use of poles or structures supporting the high voltage conductors of the electric utilities or (b) approving the nonowning electric utility's performance of the activities described in subdivisions (1)(a), (b), and (c) of this section on an ongoing basis on the owning or operating electric utility's high voltage conductors.

Source:Laws 1969, c. 390, § 3, p. 1371; Laws 2012, LB997, § 3.

48-439. Posting of warning signs.

The owner, agent or employer responsible for the operation of equipment shall post and maintain in plain view of the operator on each crane, derrick, driver, or similar apparatus, any part of which is capable of vertical, lateral or swinging motion, an approved weather resistant warning sign legible at twelve feet reading: Warning—Unlawful to operate this equipment within ten feet of high voltage conductors; and shall post and maintain similar signs on the outside of the equipment in such locations as to be readily visible to other persons engaged in the work operation or in the vicinity of the work operation.

Source:Laws 1969, c. 390, § 4, p. 1372.

48-440. Repealed. Laws 2020, LB1016, § 12.

48-441. Sections, when not applicable.

Nothing in sections 48-436 to 48-442 shall apply to any authorized or qualified person as defined in section 48-436 or the owner, agent, or employer of such persons in the performance of work or the moving of equipment in the conduct of its business.

Source:Laws 1969, c. 390, § 6, p. 1373.

48-442. Violations; penalty.

Except as provided in subdivision (2)(b) of section 48-437, any person, firm, or corporation, or any employee thereof, violating any provisions of sections 48-436 to 48-442 shall be guilty of a Class V misdemeanor. Each day's failure to comply with any of the provisions of sections 48-436 to 48-442 shall constitute a separate violation.

Source:Laws 1969, c. 390, § 7, p. 1373; Laws 1977, LB 40, § 287; Laws 2016, LB973, § 2.

48-443. Safety committee; when required; membership; employee rights and remedies.

(1)(a) Not later than January 1, 1994, every public and private employer subject to the Nebraska Workers' Compensation Act shall establish a safety committee. Such committee shall adopt and maintain an effective written injury prevention program.

(b) A client of a professional employer organization is not relieved of its obligation to establish a safety committee based on its workers being co-employees of the professional employer organization. A professional employer agreement shall not allocate the client's responsibility to establish a safety committee to the professional employer organization. For purposes of this subdivision, the terms client, professional employer organization, and professional employer agreement shall have the same meaning as in section 48-2702. This subdivision becomes operative on January 1, 2012.

(2)(a) For employers subject to collective-bargaining agreements, the establishment of the safety committee shall be accomplished through the collective-bargaining process.

(b) For employers not subject to collective-bargaining agreements, the safety committee shall be composed of an equal number of members representing employees and the employer. Employee members shall not be selected by the employer but shall be selected pursuant to procedures prescribed in rules and regulations adopted and promulgated by the Commissioner of Labor.

(c) The cost of maintaining and operating the safety committee shall be minimal to the employer.

(3) An employer shall compensate employee members of the safety committee at their regular hourly wage plus their regular benefits while the employees are attending committee meetings or otherwise engaged in committee duties.

(4) An employee shall not be discharged or discriminated against by his or her employer because he or she makes any oral or written complaint to the safety committee or any governmental agency having regulatory responsibility for occupational safety and health, and any employee so discharged or discriminated against shall be reinstated and shall receive reimbursement for lost wages and work benefits caused by the employer's action.

Source:Laws 1993, LB 757, § 32; Laws 2010, LB579, § 19.

Cross References

Nebraska Workers' Compensation Act, see section 48-1,110.

48-444. Safety committee; failure to establish; violation; penalty.

If the Commissioner of Labor finds, after notice and hearing, that an employer has failed to establish a safety committee pursuant to section 48-443 within fifteen days after notification by the Commissioner of Labor of the obligation to do so, the Commissioner of Labor may order payment of a civil penalty of not more than one thousand dollars for each violation. Each day of continued violation shall constitute a separate violation.

Source:Laws 1993, LB 757, § 33.

48-445. Safety committee; rules and regulations.

The Commissioner of Labor shall adopt and promulgate rules and regulations to carry out sections 48-443 and 48-444.

Source:Laws 1993, LB 757, § 34.

48-446. Workplace Safety Consultation Program; created; inspections and consultations; elimination of hazards; fees; Workplace Safety Consultation Program Cash Fund; created; use; investment; records; violation; penalty; Department of Labor; powers and duties; liability.

(1) There is hereby created the Workplace Safety Consultation Program. It is the intent of the Legislature that such program help provide employees in Nebraska with safe and healthful workplaces.

(2) Under the Workplace Safety Consultation Program, the Department of Labor may conduct workplace inspections and consultations to determine whether employers are complying with standards issued by the federal Occupational Safety and Health Administration or the federal Mine Safety and Health Administration for safe and healthful workplaces. Workplace inspections and safety consultations shall be performed by employees of the Department of Labor who are knowledgeable and experienced in the occupational safety and health field and who are trained in the federal standards and in the recognition of safety and health hazards. The Department of Labor may employ qualified persons as may be necessary to carry out this section.

(3) All employers shall be subject to occupational safety and health inspections covering their Nebraska operations. Employers shall be selected by the Commissioner of Labor for inspection on the basis of factors intended to identify the likelihood of workplace injuries and to achieve the most efficient utilization of safety personnel of the Department of Labor. Such factors shall include:

(a) The amount of premium paid by the employer for workers' compensation insurance;

(b) The experience modification produced by the experience rating system referenced in section 44-7524;

(c) Whether the employer is covered by workers' compensation insurance under section 44-3,158;

(d) The relative hazard of the employer's type of business as evidenced by insurance rates or loss costs filed with the Director of Insurance for the insurance rating classification or classifications applicable to the employer;

(e) The nature, type, or frequency of accidents for the employer as may be reported to the Department of Insurance, the Nebraska Workers' Compensation Court, or the Department of Labor;

(f) Workplace hazards as may be reported to the Department of Insurance, the Nebraska Workers' Compensation Court, or the Department of Labor;

(g) Previous safety and health history;

(h) Possible employee exposure to toxic substances;

(i) Requests by employers for the Department of Labor to inspect their workplaces or otherwise provide consulting services on a basis by which the employer will reimburse the Department of Labor; and

(j) All other relevant factors.

(4) Hazards identified by an inspection shall be eliminated within a reasonable time as specified by the Commissioner of Labor.

(5) An employer who refuses to eliminate workplace hazards in compliance with an inspection shall be referred to the federal Occupational Safety and Health Administration or the federal Mine Safety and Health Administration for enforcement.

(6) At the discretion of the Commissioner of Labor, inspection of an employer may be repeated to ensure compliance by the employer, with the expenses incurred by the Department of Labor to be paid by the employer.

(7) The Commissioner of Labor shall adopt and promulgate rules and regulations establishing a schedule of fees for consultations and inspections. Such fees shall be established with due regard for the costs of administering the Workplace Safety Consultation Program. The cost of consultations and inspections shall be borne by each employer for which these services are rendered.

(8) There is hereby created the Workplace Safety Consultation Program Cash Fund. All fees collected pursuant to the Workplace Safety Consultation Program shall be remitted to the State Treasurer for credit to the fund and shall be used for the sole purpose of administering the program. Any money in the fund available for investment shall be invested by the state investment officer pursuant to the Nebraska Capital Expansion Act and the Nebraska State Funds Investment Act.

(9) Each employer provided a consultation or inspection by the Department of Labor shall retain up-to-date records for each place of employment as recommended by the inspection or consultation. The employer shall make such records available to the Department of Labor upon request to ensure continued progress of the employer's efforts to comply with the federal Occupational Safety and Health Administration or the federal Mine Safety and Health Administration standards.

(10) Any person who knowingly operates or causes to be operated a business in violation of recommendations to correct serious or imminent hazards as identified by the Workplace Safety Consultation Program shall be referred to the federal Occupational Safety and Health Administration or the federal Mine Safety and Health Administration.

(11) The Attorney General, acting on behalf of the Commissioner of Labor, or the county attorney in a county in which a business is located or operated may apply to the district court for an order against any employer in violation of this section.

(12) The Workplace Safety Consultation Program shall not be construed to alter the duty of care or the liability of an owner or a business for injuries or death of any person or damage to any property. The state and its officers and employees shall not be construed to assume liability arising out of an accident involving a business by reason of administration of the Workplace Safety Consultation Program.

(13) Inspectors employed by the Department of Labor may inspect any place of employment with or without notice during normal hours of operation. Such inspectors may suspend the operation of equipment determined to constitute an imminent danger situation. Operation of such equipment shall not resume until the hazardous or unsafe condition is corrected to the satisfaction of the inspector.

(14) No person with a reasonable cause to believe the truth of the information shall be subject to civil liability for libel, slander, or any other relevant tort cause of action by virtue of providing information without malice on workplace hazards or the nature, type, or frequency of accidents to the Department of Insurance, the Nebraska Workers' Compensation Court, or the Department of Labor.

(15) Safety and health inspectors employed by the Department of Labor shall have the right and power to enter any premise, building, or structure, public or private, for the purpose of inspecting any work area or equipment. A refusal by the employer of entry by a safety and health inspector employed by the Department of Labor shall be a violation of this subsection. If the Commissioner of Labor finds, after notice and hearing, that an employer has violated this subsection, he or she may order payment of a civil penalty of not more than one thousand dollars for each violation. Each day of continued violation shall constitute a separate violation.

(16) The Commissioner of Labor shall adopt and promulgate rules and regulations to carry out this section.

Source:Laws 1993, LB 757, § 36; Laws 1994, LB 1066, § 37; Laws 2000, LB 1119, § 41; Laws 2001, LB 180, § 6; Laws 2007, LB117, § 34.

Cross References

Nebraska Capital Expansion Act, see section 72-1269.

Nebraska State Funds Investment Act, see section 72-1260.

48-447. Repealed. Laws 1999, LB 2, § 3.

48-448. Repealed. Laws 1999, LB 2, § 3.

48-449. Repealed. Laws 1999, LB 2, § 3.

48-501. Repealed. Laws 1977, LB 162, § 24.

48-501.01. Repealed. Laws 2020, LB1016, § 12.

48-502. Repealed. Laws 1977, LB 162, § 24.

48-503. Repealed. Laws 2020, LB1016, § 12.

48-504. Repealed. Laws 2020, LB1016, § 12.

48-505. Repealed. Laws 2020, LB1016, § 12.

48-506. Repealed. Laws 2020, LB1016, § 12.

48-507. Repealed. Laws 2020, LB1016, § 12.

48-508. Repealed. Laws 2020, LB1016, § 12.

48-509. Repealed. Laws 1972, LB 1460, § 17.

48-510. Repealed. Laws 2020, LB1016, § 12.

48-511. Repealed. Laws 2020, LB1016, § 12.

48-512. Repealed. Laws 2020, LB1016, § 12.

48-513. Repealed. Laws 2020, LB1016, § 12.

48-514. Repealed. Laws 2020, LB1016, § 12.

48-515. Repealed. Laws 2020, LB1016, § 12.

48-516. Repealed. Laws 2020, LB1016, § 12.

48-517. Repealed. Laws 2020, LB1016, § 12.

48-518. Repealed. Laws 2020, LB1016, § 12.

48-519. Repealed. Laws 2020, LB1016, § 12.

48-520. Repealed. Laws 2020, LB1016, § 12.

48-521. Repealed. Laws 2020, LB1016, § 12.

48-522. Repealed. Laws 1977, LB 162, § 24.

48-523. Repealed. Laws 2020, LB1016, § 12.

48-524. Repealed. Laws 2020, LB1016, § 12.

48-601. Act, how cited.

Sections 48-601 to 48-683 shall be known and may be cited as the Employment Security Law.

Source:Laws 1937, c. 108, § 1, p. 370; Laws 1941, c. 94, § 14, p. 401; C.S.Supp.,1941, § 48-701; R.S.1943, § 48-601; Laws 1949, c. 163, § 1, p. 417; Laws 1953, c. 167, § 1, p. 520; Laws 1981, LB 470, § 1; Laws 1985, LB 339, § 1; Laws 1985, LB 343, § 1; Laws 1994, LB 1337, § 1; Laws 1996, LB 1072, § 1; Laws 2001, LB 192, § 1; Laws 2005, LB 484, § 2; Laws 2005, LB 739, § 1; Laws 2007, LB265, § 3; Laws 2010, LB1020, § 1; Laws 2014, LB961, § 12; Laws 2017, LB172, § 4.

Annotations

Appeals to the Supreme Court under the provisions of the Employment Security Law are reviewed de novo on the record. Smith v. Sorensen, 222 Neb. 599, 386 N.W.2d 5 (1986).

The Employment Security Law provides one avenue of judicial appeal when the dispute concerns benefit liability and another when the dispute concerns contribution liability. Northern Messenger v. Sorensen, 218 Neb. 846, 359 N.W.2d 787 (1984).

The state, by its Legislature, has extensively entered the field of labor. Midwest Employers Council, Inc. v. City of Omaha, 177 Neb. 877, 131 N.W.2d 609 (1964).

A compensable claim for benefits under the unemployment compensation act must have some relation to, or connection with, the employment which employee has lost. Woodmen of the World Life Ins. Soc. v. Olsen, 141 Neb. 776, 4 N.W.2d 923 (1942).

48-602. Terms, defined.

For purposes of the Employment Security Law, unless the context otherwise requires:

(1) Agricultural labor means services performed:

(a) On a farm, in the employ of any employer, in connection with cultivating the soil or in connection with raising or harvesting any agricultural or horticultural commodity, including the raising, shearing, feeding, caring for, training, and management of livestock, bees, poultry, fur-bearing animals, and wildlife;

(b) In the employ of the owner, tenant, or other operator of a farm, in connection with the operation, management, conservation, improvement, or maintenance of such farm and its tools and equipment or in salvaging timber or clearing land of brush and other debris left by a windstorm, if the major part of such service is performed on a farm;

(c) In connection with the production or harvesting of any commodity in connection with the operation or maintenance of ditches, canals, reservoirs, or waterways, not owned or operated for profit, used exclusively for supplying and storing water for farming purposes;

(d)(i) In the employ of the operator of a farm in handling, planting, drying, packing, packaging, processing, freezing, grading, storing, or delivering to storage or to market or to a carrier for transportation to market, in its unmanufactured state, any agricultural or horticultural commodity, but only if such operator produced more than one-half of the commodity with respect to which such service is performed, or (ii) in the employ of a group of operators of farms, or a cooperative organization of which such operators are members, in the performance of service described in subdivision (1)(d)(i) of this section, but only if such operators produced more than one-half of the commodity with respect to which such service is performed. Subdivisions (1)(d)(i) and (ii) of this section shall not be deemed to be applicable with respect to service performed in connection with commercial canning or commercial freezing or in connection with any agricultural or horticultural commodity after its delivery to a terminal market for distribution for consumption; or

(e) On a farm operated for profit if such service is not in the course of the employer's trade or business;

(2) Base period means the first four of the last five completed calendar quarters immediately preceding the first day of an individual's benefit year, except that if the individual is not monetarily eligible for unemployment benefits as determined pursuant to section 48-627.01 based upon wages paid during the first four of the five most recently completed calendar quarters, the department shall make a redetermination of monetary eligibility based upon an alternative base period which consists of the last four completed calendar quarters immediately preceding the first day of the claimant's benefit year;

(3) Benefits means the money payments payable to an individual with respect to his or her unemployment;

(4) Benefit year, with respect to any individual, means the one-year period beginning with the first day of the first week with respect to which the individual first files a valid claim for benefits, and thereafter the one-year period beginning with the first day of the first week with respect to which the individual next files a valid claim for benefits after the termination of his or her last preceding benefit year. Any claim for benefits made in accordance with section 48-629 shall be deemed to be a valid claim for the purpose of this subdivision if the individual has been paid the wages for insured work required under section 48-627.01. For the purposes of this subdivision a week with respect to which an individual files a valid claim shall be deemed to be in, within, or during that benefit year which includes the greater part of such week;

(5) Calendar quarter means the period of three consecutive calendar months ending on March 31, June 30, September 30, or December 31, or the equivalent thereof as the Commissioner of Labor may by rule and regulation prescribe;

(6) Client means any individual, partnership, limited liability company, corporation, or other legally recognized entity that contracts with a professional employer organization to obtain professional employer services relating to worksite employees through a professional employer agreement;

(7) Combined tax means the employer liability consisting of contributions and the state unemployment insurance tax;

(8) Combined tax rate means the rate which is applied to wages to determine the combined taxes due;

(9) Commissioner means the Commissioner of Labor;

(10) Commodity means an agricultural commodity as defined in section 15(g) of the federal Agricultural Marketing Act, as amended, 12 U.S.C. 1141j;

(11) Contribution rate means the percentage of the combined tax rate used to determine the contribution portion of the combined tax;

(12) Contributions means that portion of the combined tax based upon the contribution rate portion of the combined tax rate which is deposited in the state Unemployment Compensation Fund as required by sections 48-648 and 48-649 to 48-649.04;

(13) Crew leader means an individual who furnishes individuals to perform service in agricultural labor for any other person, pays, either on his or her own behalf or on behalf of such other person, the individuals so furnished by him or her for the service in agricultural labor performed by them, and has not entered into a written agreement with such other person under which such individual is designated as an employee of such other person;

(14) Department means the Department of Labor;

(15) Employers engaged in the construction industry means all employers primarily engaged in business activities classified as sector 23 business activities under the North American Industry Classification System;

(16) Employment office means a free public employment office or branch thereof, operated by this state or maintained as a part of a state-controlled system of public employment offices, including public employment offices operated by an agency of a foreign government;

(17) Farm means stock, dairy, poultry, fruit, fur-bearing animal, and truck farms, plantations, ranches, nurseries, ranges, greenhouses, or other similar structures used primarily for the raising of agricultural or horticultural commodities, and orchards;

(18) Fund means the Unemployment Compensation Fund established by section 48-617 to which all contributions and payments in lieu of contributions required and from which all benefits provided shall be paid;

(19) Hearing officer means a person employed by the Department of Labor who conducts hearings, contested cases, or other proceedings pursuant to the Employment Security Law;

(20) Hospital means an institution which has been licensed, certified, or approved by the Department of Health and Human Services as a hospital;

(21) Insured work means employment for employers;

(22) Leave of absence means any absence from work: (a) Mutually and voluntarily agreed to by the employer and the employee; (b) mutually and voluntarily agreed to between the employer and the employee's bargaining agent; or (c) to which the employee is entitled as a matter of state or federal law;

(23) Paid vacation leave means a period of time while employed or following separation from employment in which the individual renders no services to the employer but is entitled to receive vacation pay equal to or exceeding his or her base weekly wage;

(24) Payments in lieu of contributions means the money payments to the Unemployment Compensation Fund required by sections 48-649.04, 48-652, 48-660.01, and 48-661;

(25) Professional employer agreement means a written professional employer services contract whereby:

(a) A professional employer organization agrees to provide payroll services, employee benefit administration, or personnel services for a majority of the employees providing services to the client at a client worksite;

(b) The agreement is intended to be ongoing rather than temporary in nature; and

(c) Employer responsibilities for worksite employees, including those of hiring, firing, and disciplining, are shared between the professional employer organization and the client by contract. The term professional employer agreement shall not include a contract between a parent corporation, company, or other entity and a wholly owned subsidiary;

(26) Professional employer organization means any individual, partnership, limited liability company, corporation, or other legally recognized entity that enters into a professional employer agreement with a client or clients for a majority of a client's workforce at a client worksite. The term professional employer organization does not include an insurer as defined in section 44-103 or a temporary help firm;

(27) Standard rate means the rate assigned to category twenty for that year under section 48-649.03. The standard rate shall be not less than five and four-tenths percent of the employer's annual taxable payroll;

(28) State includes, in addition to the states of the United States of America, any dependency of the United States, the Commonwealth of Puerto Rico, the Virgin Islands, and the District of Columbia;

(29) State unemployment insurance tax means that portion of the combined tax which is based upon the state unemployment insurance tax rate portion of the combined tax rate and which is deposited in the State Unemployment Insurance Trust Fund as required by sections 48-648 and 48-649 to 48-649.04;

(30) State unemployment insurance tax rate means the percentage of the combined tax rate used to determine the state unemployment insurance tax portion of the combined tax;

(31) Temporary employee means an employee of a temporary help firm assigned to work for the clients of such temporary help firm;

(32) Temporary help firm means a firm that hires its own employees and assigns them to clients to support or supplement the client's workforce in work situations such as employee absences, temporary skill shortages, seasonal workloads, and special assignments and projects;

(33) Unemployed means an individual during any week in which the individual performs no service and with respect to which no wages are payable to the individual or any week of less than full-time work if the wages payable with respect to such week are less than the individual's weekly benefit amount, but does not include any individual on a leave of absence or on paid vacation leave. When an agreement between the employer and a bargaining unit representative does not allocate vacation pay allowance or pay in lieu of vacation to a specified period of time during a period of temporary layoff or plant shutdown, the payment by the employer or his or her designated representative will be deemed to be wages as defined in this section in the week or weeks the vacation is actually taken;

(34) Unemployment Trust Fund means the trust fund in the Treasury of the United States of America established under section 904 of the federal Social Security Act, 42 U.S.C. 1104, as such section existed on January 1, 2015, which receives credit from the state Unemployment Compensation Fund;

(35) Wages, except with respect to services performed in employment as provided in subdivisions (4)(c) and (d) of section 48-604, means all remuneration for personal services, including commissions and bonuses, remuneration for personal services paid under a contract of hire, and the cash value of all remunerations in any medium other than cash. The reasonable cash value of remuneration in any medium other than cash shall be estimated and determined in accordance with rules and regulations adopted and promulgated by the commissioner. Wages includes tips which are received while performing services which constitute employment and which are included in a written statement furnished to the employer pursuant to section 6053(a) of the Internal Revenue Code as defined in section 49-801.01.

With respect to services performed in employment in agricultural labor as is provided in subdivision (4)(c) of section 48-604, wages means cash remuneration and the cash value of commodities not intended for personal consumption by the worker and his or her immediate family for such services. With respect to services performed in employment in domestic service as is provided in subdivision (4)(d) of section 48-604, wages means cash remuneration for such services.

The term wages does not include:

(a) The amount of any payment, including any amount paid by an employer for insurance or annuities or into a fund to provide for such payment, made to, or on behalf of, an individual in employment or any of his or her dependents under a plan or system established by an employer which makes provision for such individuals generally or for a class or classes of such individuals, including any amount paid by an employer for insurance or annuities or into a fund to provide for any such payment, on account of (i) sickness or accident disability, except, in the case of payments made to an employee or any of his or her dependents, this subdivision (i) shall exclude from wages only payments which are received under a workers' compensation law, (ii) medical and hospitalization expenses in connection with sickness or accident disability, or (iii) death;

(b) The payment by an employer, without deduction from the remuneration of the employee, of the tax imposed upon an employee under section 3101 of the Internal Revenue Code as defined in section 49-801.01;

(c) Any payment on account of sickness or accident disability, or medical or hospitalization expenses in connection with sickness or accident disability, made by an employer to, or on behalf of, an individual after the expiration of six calendar months following the last calendar month in which such individual worked for such employer;

(d) Any payment made to, or on behalf of, an individual or his or her beneficiary (i) from or to a trust described in section 401(a) of the Internal Revenue Code as defined in section 49-801.01 which is exempt from tax under section 501(a) of the Internal Revenue Code as defined in section 49-801.01 at the time of such payment unless such payment is made to an employee of the trust as remuneration for services rendered as such employee and not as a beneficiary of the trust or (ii) under or to an annuity plan which, at the time of such payment, meets the requirements of section 401 of the Internal Revenue Code as defined in section 49-801.01;

(e) Any payment made to, or on behalf of, an employee or his or her beneficiary (i) under a simplified employee pension as defined by the commissioner, (ii) under or to an annuity contract as defined by the commissioner, other than a payment for the purchase of such contract which is made by reason of a salary reduction agreement, whether evidenced by a written instrument or otherwise, (iii) under or to an exempt governmental deferred compensation plan as defined by the commissioner, (iv) to supplement pension benefits under a plan or trust, as defined by the commissioner, to take into account some portion or all of the increase in the cost of living since retirement, but only if such supplemental payments are under a plan which is treated as a welfare plan, or (v) under a cafeteria benefits plan;

(f) Remuneration paid in any medium other than cash to an individual for service not in the course of the employer's trade or business;

(g) Benefits paid under a supplemental unemployment benefit plan which satisfies the eight points set forth in Internal Revenue Service Revenue Ruling 56-249 as the ruling existed on January 1, 2015, and is in compliance with the standards set forth in Internal Revenue Service Revenue Rulings 58-128 and 60-330 as the rulings existed on January 1, 2015; and

(h) Remuneration for service performed in the employ of any state in the exercise of his or her duties as a member of the Army National Guard or Air National Guard or in the employ of the United States of America as a member of any military reserve unit;

(36) Week means such period of seven consecutive days as the commissioner may by rule and regulation prescribe;

(37) Week of unemployment with respect to any individual means any week during which he or she performs less than full-time work and the wages payable to him or her with respect to such week are less than his or her weekly benefit amount;

(38) Wholly owned subsidiary means a corporation, company, or other entity which has eighty percent or more of its outstanding voting stock or membership owned or controlled, directly or indirectly, by the parent entity; and

(39) Worksite employee has the same meaning as the term covered employee in section 48-2702.

Source:Laws 1937, c. 108, § 2, p. 370; Laws 1939, c. 56, § 1, p. 229; Laws 1940, Spec. Sess., c. 2, § 1, p. 54; Laws 1941, c. 94, § 1, p. 373; C.S.Supp.,1941, § 48-702; Laws 1943, c. 111, §§ 1, 2, p. 390; R.S.1943, § 48-602; Laws 1947, c. 175, § 1, p. 563; Laws 1949, c. 163, § 2, p. 417; Laws 1951, c. 156, § 1, p. 626; Laws 1953, c. 167, § 2, p. 520; Laws 1961, c. 235, § 3, p. 695; Laws 1961, c. 238, § 1, p. 701; Laws 1971, LB 651, § 1; Laws 1972, LB 1392, § 1; Laws 1977, LB 509, § 1; Laws 1979, LB 581, § 1; Laws 1980, LB 800, § 1; Laws 1983, LB 248, § 1; Laws 1985, LB 339, § 2; Laws 1986, LB 950, § 1; Laws 1988, LB 1033, § 1; Laws 1992, LB 879, § 1; Laws 1993, LB 121, § 289; Laws 1994, LB 286, § 1; Laws 1994, LB 1337, § 2; Laws 1995, LB 77, § 1; Laws 1995, LB 574, § 51; Laws 1996, LB 1044, § 274; Laws 1999, LB 168, § 1; Laws 1999, LB 608, § 1; Laws 2001, LB 192, § 3; Laws 2002, LB 921, § 1; Laws 2005, LB 484, § 3; Laws 2005, LB 739, § 2; Laws 2007, LB265, § 4; Laws 2007, LB296, § 216; Laws 2010, LB579, § 20; Laws 2010, LB1020, § 2; Laws 2015, LB271, § 1; Laws 2017, LB172, § 5.

Annotations

Based upon the plain and ordinary meaning of the first definition contained in subsection (27) of this section, two elements must be satisfied to demonstrate unemployment: First, the individual must not perform any services for the relevant time period; and second, no wages may be payable with respect to that time period. Wadkins v. Lecuona, 274 Neb. 352, 740 N.W.2d 34 (2007).

In determining whether wages are payable with respect to a time period, within the meaning of subsection (27) of this section, the test is not in what week the remuneration is received but in what week it is earned or to which it may reasonably be considered to apply. Generally speaking, wages are tied to the week of work and not to the week in which they are paid. Wadkins v. Lecuona, 274 Neb. 352, 740 N.W.2d 34 (2007).

Vacation pay, within the meaning of subsection (18) of this section, is generally regarded, not as a gratuity or gift, but as additional wages for services performed. It is not in the nature of compensation for the calendar days it covers — it is more like a contracted-for bonus for a whole year's work. A "vacation" is also understood to be a respite from active duty, during which activity or work is suspended, purposed for rest, relaxation, and personal pursuits. Wadkins v. Lecuona, 274 Neb. 352, 740 N.W.2d 34 (2007).

Under former law, wages may include noncash benefits under certain circumstances. In-kind benefits received in return for services provided may constitute wages for purposes of determining eligibility for unemployment compensation benefits. Lecuona v. McCord, 270 Neb. 213, 699 N.W.2d 403 (2005).

As a requisite matter, for an entity to be denominated an employee leasing company under subsection (11) of this section, it must be in the business of leasing employees to another entity. American Employers Group Inc. v. Department of Labor, 260 Neb. 405, 617 N.W.2d 808 (2000).

Under the former law, pursuant to subsection (24) of this section, employees who agree to take their earned vacation at a specific period of time for the employer's convenience under the expectation that their employment will continue after that period are not unemployed for the purpose of receiving unemployment insurance benefits. Vlasic Foods International v. Lecuona, 260 Neb. 397, 618 N.W.2d 403 (2000).

One performing services under a contract but not receiving wages, as defined by subsection (16) of this section, performs services under a contract of hire unless one is an independent contractor, as defined by the common law. Omaha World-Herald v. Dernier, 253 Neb. 215, 570 N.W.2d 508 (1997).

A professional symphony musician employed under a seasonal contract rather than an annual contract was entitled to unemployment benefits for the time he was unemployed during the symphony's "off season". Hanlon v. Boden, 209 Neb. 169, 306 N.W.2d 858 (1981).

48-603. Employer, defined.

As used in the Employment Security Law, unless the context clearly requires otherwise, employer shall mean:

(1) Any individual or type of organization, including any partnership, limited liability company, association, trust, estate, joint-stock company, insurance company or corporation, whether domestic or foreign, or the receiver, trustee in bankruptcy, trustee or successor thereof, or the legal representative of a deceased person, which for some portion of a day but not necessarily simultaneously in each of twenty different calendar weeks, whether or not such weeks are or were consecutive, within either the current or preceding calendar year, and for the purpose of this definition, if any week includes both December 31 and January 1, the days up to January 1 shall be deemed one calendar week and the days beginning January 1 another such week, has or had in employment one or more individuals, irrespective of whether the same individuals are or were employed in each such day; all individuals performing services for any employer of any person in this state, who maintains two or more separate establishments within this state, shall be deemed to be employed by a single employer; any artifice or device, including any contract or subcontract, by an employer for the performance of work, which is a part of such employer's usual trade, occupation, profession, or business, entered into for the purpose or with the intent of evading the application of this section to such employer, is hereby prohibited and declared to be unlawful;

(2) Any employer of any person in this state who in any calendar quarter in either the current or preceding calendar year has paid wages for employment in the total sum of fifteen hundred dollars or more;

(3) Any individual or employer of any person in this state which acquired the organization, trade, or business, or substantially all the assets thereof, of another employer which, at the time of such acquisition, was an employer subject to the Employment Security Law;

(4) Any employer of any person in this state, which acquired the organization, trade, or business, or substantially all the assets thereof, of another employer of any person in this state, not an employer subject to such law, and which, if subsequent to such acquisition it were treated as a single unit with such other employer, would be an employer under subdivision (1) or (2) of this section;

(5) Any employer of any person in this state which, having become an employer under any provision of the Employment Security Law and which has not, under section 48-661, ceased to be an employer subject to such law;

(6) For the effective period of its election pursuant to section 48-661, any other employer of any person in this state who has elected to become fully subject to the Employment Security Law;

(7) Any employer of any person in this state not an employer by reason of any other subdivision of this section (a) for which services in employment are or were performed with respect to which such employer is liable for any federal tax against which credit may be taken for contributions required to be paid into a state unemployment compensation fund; or (b) which, as a condition for approval of the Employment Security Law for full tax credit against the tax imposed by the Federal Unemployment Tax Act, is required, pursuant to such act, to be an employer under the Employment Security Law;

(8) The state or any political subdivision thereof and any instrumentality of any one or more of the foregoing;

(9) Any organization for which service in employment as defined in subdivision (4)(b) of section 48-604 is performed;

(10) Any individual or employing unit for which service in employment as defined in subdivision (4)(c) of section 48-604 is performed;

(11) Any individual or employing unit for which service in employment as defined in subdivision (4)(d) of section 48-604 is performed; and

(12)(a) In determining whether or not an employing unit for which service other than domestic service is also performed is an employer under subdivision (1) or (10) of this section, the wages earned or the employment of an employee performing domestic service shall not be taken into account; and

(b) In determining whether or not an employing unit for which agricultural labor is also performed is an employer under subdivision (11) of this section, the wages earned or the employment of an employee performing services in agricultural labor shall not be taken into account. If an employing unit is determined an employer of agricultural labor, such employing unit shall be determined an employer for the purposes of subdivision (1) of this section.

Source:Laws 1937, c. 108, § 2, p. 371; Laws 1939, c. 56, § 1, p. 229; Laws 1940, Spec. Sess., c. 2, § 1, p. 54; Laws 1941, c. 94, § 1, p. 374; C.S.Supp.,1941, § 48-702; R.S.1943, § 48-603; Laws 1945, c. 114, § 1, p. 369; Laws 1955, c. 190, § 1, p. 538; Laws 1971, LB 651, § 2; Laws 1977, LB 509, § 2; Laws 1985, LB 339, § 3; Laws 1993, LB 121, § 290; Laws 2015, LB271, § 2.

48-603.01. Indian tribes; applicability of Employment Security Law.

(1) For purposes of the Employment Security Law, unless the context otherwise requires, the term employer shall include any Indian tribe for which services in employment as provided in subdivision (4)(a) of section 48-604 are performed.

(2) The term employment shall include service performed in the employ of an Indian tribe, as defined in 26 U.S.C. 3306(u), as such section existed on January 1, 2015, if such service is excluded from employment as defined in the Federal Unemployment Tax Act solely by reason of 26 U.S.C. 3306(c)(7), as such section existed on January 1, 2015, and is not otherwise excluded from employment under the Employment Security Law. For purposes of this section, the exclusions from employment in subdivisions (6)(f) and (6)(g) of section 48-604 shall be applicable to services performed in the employment of an Indian tribe.

(3) Benefits based on service in employment defined in this section shall be payable in the same amount, on the same terms, and subject to the same conditions as benefits payable on the basis of other covered employment under the Employment Security Law. Section 48-628.06 shall apply to services performed in an educational institution or educational service agency owned or operated by an Indian tribe.

(4)(a) Indian tribes or tribal units, subdivisions, subsidiaries, or business enterprises wholly owned by such Indian tribes, subject to the Employment Security Law, shall pay combined tax under the same terms and conditions as all other subject employers, unless they elect to make payments in lieu of contributions equal to the amount of benefits attributable to service in the employ of the Indian tribe.

(b) Indian tribes electing to make payments in lieu of contributions shall make such election in the same manner and under the same conditions as provided in section 48-649.04 pertaining to state and local governments subject to the Employment Security Law. Indian tribes shall determine if reimbursement for benefits paid will be elected by the tribe as a whole, by individual tribal units, or by combinations of individual tribal units.

(c) Except as provided in subsection (7) of this section, Indian tribes or tribal units shall be billed for the full amount of benefits attributable to service in the employ of the Indian tribe or tribal unit on the same schedule as other employing units that have elected to make payments in lieu of contributions.

(d) At the discretion of the commissioner, any Indian tribe or tribal unit that elects to become liable for payments in lieu of contributions shall be required within thirty days after the effective date of its election to:

(i) Execute and file with the commissioner a surety bond approved by the commissioner; or

(ii) Deposit with the commissioner money or securities on the same basis as other employers with the same election option.

(5)(a)(i) Failure of the Indian tribe or tribal unit to make required payments, including assessments of interest and penalty, within ninety days of receipt of the bill will cause the Indian tribe to lose the option to make payments in lieu of contributions, as described in subsection (4) of this section, for the following tax year unless payment in full is received before combined tax rates for the next tax year are computed.

(ii) Any Indian tribe that loses the option to make payments in lieu of contributions due to late payment or nonpayment, as described in subdivision (5)(a)(i) of this section, shall have such option reinstated if, after a period of one year, all combined taxes have been paid timely and no combined tax, payments in lieu of contributions for benefits paid, penalties, or interest remain outstanding.

(b)(i) Failure of the Indian tribe or any tribal unit thereof to make required payments, including assessments of interest and penalty, after all collection activities deemed necessary by the commissioner have been exhausted will cause services performed for such tribe to not be treated as employment for purposes of subsection (2) of this section.

(ii) The commissioner may determine that any Indian tribe that loses coverage under subdivision (5)(b)(i) of this section may have services performed for such tribe again included as employment for purposes of subsection (2) of this section if all contributions, payments in lieu of contributions, penalties, and interest have been paid.

(6) Notices of payment and reporting delinquency to Indian tribes or their tribal units shall include information that failure to make full payment within the prescribed timeframe:

(a) Will cause the Indian tribe to be liable for taxes under the Federal Unemployment Tax Act, as the act existed on January 1, 2015;

(b) Will cause the Indian tribe to lose the option to make payments in lieu of contributions; and

(c) Could cause the Indian tribe to be excepted from the definition of employer, as provided in subsection (1) of this section, and services in the employ of the Indian tribe, as provided in subsection (2) of this section, to be excepted from employment.

(7) Extended benefits paid that are attributable to service in the employ of an Indian tribe and not reimbursed by the federal government shall be financed in their entirety by such Indian tribe.

(8) If an Indian tribe fails to make payments required under this section, including assessments of interest and penalty, within ninety days after a final notice of delinquency, the commissioner shall immediately notify the United States Internal Revenue Service and the United States Department of Labor.

Source:Laws 2001, LB 192, § 2; Laws 2003, LB 199, § 1; Laws 2005, LB 739, § 4; Laws 2015, LB271, § 3; Laws 2017, LB172, § 6.

48-604. Employment, defined.

As used in the Employment Security Law, unless the context otherwise requires, employment shall mean:

(1) Any service performed, including service in interstate commerce, for wages under a contract of hire, written or oral, express or implied;

(2) The term employment shall include an individual's entire service, performed within or both within and without this state if (a) the service is localized in this state, (b) the service is not localized in any state but some of the service is performed in this state and the base of operations or, if there is no base of operations, then the place from which such service is directed or controlled is in this state or the base of operations or place from which such service is directed or controlled is not in any state in which some part of the service is performed but the individual's residence is in this state, (c) the service shall be deemed to be localized within a state if (i) the service is performed entirely within such state or (ii) the service is performed both within and without such state, but the service performed without such state is incidental to the individual's service within the state, for example, is temporary or transitory in nature or consists of isolated transactions;

(3) Services performed outside the state and services performed outside the United States as follows:

(a) Services not covered under subdivision (2) of this section and performed entirely without this state, with respect to no part of which contributions are required under an unemployment compensation law of any other state or of the federal government, shall be deemed to be employment subject to the Employment Security Law if the commissioner approves the election of the employer, for whom such services are performed, that the entire service of such individual shall be deemed to be employment subject to such law;

(b) Services of an individual wherever performed within the United States or Canada if (i) such service is not covered under the employment compensation law of any other state or Canada and (ii) the place from which the service is directed or controlled is in this state; and

(c)(i) Services of an individual who is a citizen of the United States, performed outside the United States except in Canada in the employ of an American employer, other than service which is deemed employment under subdivisions (2) and (3)(a) and (b) of this section or the parallel provisions of another state's law, if:

(A) The employer's principal place of business in the United States is located in this state;

(B) The employer has no place of business in the United States, but the employer is an individual who is a resident of this state; the employer is a corporation or limited liability company which is organized under the laws of this state; or the employer is a partnership or a trust and the number of the partners or trustees who are residents of this state is greater than the number who are residents of any other state; or

(C) None of the criteria of subdivisions (A) and (B) of this subdivision are met, but the employer has elected coverage in this state or, the employer having failed to elect coverage in any state, the individual has filed a claim for benefits based on such service under the laws of this state.

(ii) American employer, for the purposes of this subdivision, shall mean: (A) An individual who is a resident of the United States; (B) a partnership if two-thirds or more of the partners are residents of the United States; (C) a trust if all the trustees are residents of the United States; or (D) a corporation or limited liability company organized under the laws of the United States or of any state.

(iii) The term United States for the purpose of this section includes the states, the District of Columbia, the Virgin Islands, and the Commonwealth of Puerto Rico;

(4)(a) Service performed in the employ of this state or any political subdivision thereof or any instrumentality of any one or more of the foregoing or any instrumentality which is wholly owned by this state and one or more other states or political subdivisions, or any service performed in the employ of any instrumentality of this state or of any political subdivision thereof and one or more other states or political subdivisions if such service is excluded from employment as defined in the Federal Unemployment Tax Act, as amended, solely by reason of 26 U.S.C. 3306(c)(7), and is not otherwise excluded under this section;

(b) Service performed by an individual in the employ of a religious, charitable, educational, or other organization, but only if the following conditions are met: (i) The service is excluded from employment as defined in the Federal Unemployment Tax Act, as amended, solely by reason of 26 U.S.C. 3306(c)(8), and is not otherwise excluded under this section; and (ii) the organization had four or more individuals in employment for some portion of a day in each of twenty different weeks, whether or not such weeks were consecutive, within either the current or preceding calendar year, regardless of whether they were employed at the same moment of time;

(c)(i) Service performed by an individual in agricultural labor if such service is performed for a person who during any calendar quarter in either the current or preceding calendar year paid remuneration in cash of twenty thousand dollars or more to individuals employed in agricultural labor, or for some portion of a day in each of twenty different calendar weeks, whether or not such weeks were consecutive, in either the current or the preceding calendar year, employed in agricultural labor ten or more individuals, regardless of whether they were employed at the same moment of time.

(ii) For purposes of this subdivision:

(A) Any individual who is a member of a crew furnished by a crew leader to perform services in agricultural labor for any other person shall be treated as an employee of such crew leader if such crew leader holds a valid certificate of registration under the Migrant and Seasonal Agricultural Worker Protection Act, as amended, 29 U.S.C. 1801 et seq.; substantially all the members of such crew operate or maintain tractors, mechanized harvesting or cropdusting equipment, or any other mechanized equipment, which is provided by such crew leader; and such individual is not an employee of such other person within the meaning of any other provisions of this section; and

(B) In case any individual who is furnished by a crew leader to perform service in agricultural labor for any other person and who is not treated as an employee of such crew leader under subdivision (A) of this subdivision, such other person and not the crew leader shall be treated as the employer of such individual and such other person shall be treated as having paid cash remuneration to such individual in an amount equal to the amount of cash remuneration paid to such individual by the crew leader, either on his or her own behalf or on behalf of such other person, for the service in agricultural labor performed for such other person; and

(d) Service performed by an individual in domestic service in a private home, local college club, or local chapter of a college fraternity or sorority if performed for a person who paid cash remuneration of one thousand dollars or more in the current calendar year or the preceding calendar year to individuals employed in such domestic service in any calendar quarter;

(5) Services performed by an individual for wages, including wages received under a contract of hire, shall be deemed to be employment unless it is shown to the satisfaction of the commissioner that (a) such individual has been and will continue to be free from control or direction over the performance of such services, both under his or her contract of service and in fact, (b) such service is either outside the usual course of the business for which such service is performed or such service is performed outside of all the places of business of the enterprise for which such service is performed, and (c) such individual is customarily engaged in an independently established trade, occupation, profession, or business. The provisions of this subdivision are not intended to be a codification of the common law and shall be considered complete as written;

(6) The term employment shall not include:

(a) Agricultural labor, except as provided in subdivision (4)(c) of this section;

(b) Domestic service, except as provided in subdivision (4)(d) of this section, in a private home, local college club, or local chapter of a college fraternity or sorority;

(c) Service not in the course of the employer's trade or business performed in any calendar quarter by an employee, unless the cash remuneration paid for such service is fifty dollars or more and such service is performed by an individual who is regularly employed by such employer to perform such service and, for the purposes of this subdivision, an individual shall be deemed to be regularly employed by an employer during a calendar quarter only if (i) on each of some twenty-four days during such quarter such individual performs for such employer for some portion of the day service not in the course of the employer's trade or business, or (ii) such individual was regularly employed, as determined under subdivision (c)(i) of this subdivision, by such employer in the performance of such service during the preceding calendar quarter;

(d) Service performed by an individual in the employ of his or her son, daughter, or spouse and service performed by a child under the age of twenty-one in the employ of his or her father or mother;

(e) Service performed in the employ of the United States Government or an instrumentality of the United States immune under the Constitution of the United States from the contributions imposed by sections 48-648 and 48-649 to 48-649.04, except that, to the extent that the Congress of the United States shall permit states to require any instrumentalities of the United States to make payments into an unemployment fund under a state unemployment compensation act, all of the Employment Security Law shall be applicable to such instrumentalities and to services performed for such instrumentalities in the same manner, to the same extent, and on the same terms as to all other employers, individuals, and services, except that if this state is not certified for any year by the Secretary of Labor of the United States under section 3304 of the Internal Revenue Code as defined in section 49-801.01, the payments required of such instrumentalities with respect to such year shall be refunded by the commissioner from the fund in the same manner and within the same period as is provided in section 48-660, with respect to contributions erroneously collected;

(f) Service performed in the employ of this state or any political subdivision thereof or any instrumentality of any one or more of the foregoing if such services are performed by an individual in the exercise of his or her duties: (i) As an elected official; (ii) as a member of the legislative body or a member of the judiciary of a state or political subdivision thereof; (iii) as a member of the Army National Guard or Air National Guard; (iv) as an employee serving on a temporary basis in case of fire, storm, snow, earthquake, flood, or similar emergency; or (v) as an election official or election worker if the amount of remuneration received by the individual during the calendar year for services as an election official or election worker is less than one thousand dollars;

(g) For the purposes of subdivisions (4)(a) and (4)(b) of this section, service performed:

(i) In the employ of (A) a church or convention or association of churches or (B) an organization which is operated primarily for religious purposes and which is operated, supervised, controlled, or principally supported by a church or convention or association of churches;

(ii) By a duly ordained, commissioned, or licensed minister of a church in the exercise of his or her ministry or by a member of a religious order in the exercise of the duties required by such order;

(iii) In a facility conducted for the purpose of carrying out a program of rehabilitation for an individual whose earning capacity is impaired by age or physical or mental deficiency or injury, or providing remunerative work for the individuals who because of their impaired physical or mental capacity cannot be readily absorbed in the competitive labor market, by an individual receiving such rehabilitation or remunerative work;

(iv) As part of an unemployment work relief or work-training program assisted or financed in whole or in part by any federal agency or an agency of a state or political subdivision thereof, by an individual receiving such work relief or work training; or

(v) By an inmate of a custodial or penal institution;

(h) Service with respect to which unemployment compensation is payable under an unemployment compensation system established by an act of Congress;

(i) Service performed in any calendar quarter in the employ of any organization exempt from income tax under section 501(a) of the Internal Revenue Code as defined in section 49-801.01, other than an organization described in section 401(a) of the Internal Revenue Code as defined in section 49-801.01, or under section 521 thereof, if the remuneration for such service is less than fifty dollars;

(j) Service performed in the employ of a school, college, or university, if such service is performed (i) by a student who is enrolled, regularly attending classes at, and working for such school, college, or university pursuant to a financial assistance arrangement with such school, college, or university or (ii) by the spouse of such student, if such spouse is advised, at the time such spouse commences to perform such service, that (A) the employment of such spouse to perform such service is provided under a program to provide financial assistance to such student by such school, college, or university and (B) such employment will not be covered by any program of unemployment insurance;

(k) Service performed as a student nurse in the employ of a hospital or nurses training school by an individual who is enrolled and is regularly attending classes in a nurses training school chartered or approved pursuant to state law; and service performed as an intern in the employ of a hospital by an individual who has completed a four-year course in a medical school chartered or approved pursuant to state law;

(l) Service performed by an individual as a real estate salesperson, as an insurance agent, or as an insurance solicitor, if all such service performed by such individual is performed for remuneration solely by way of commission;

(m) Service performed by an individual under the age of eighteen in the delivery or distribution of newspapers or shopping news, not including delivery or distribution to any point for subsequent delivery or distribution;

(n) Service performed by an individual in the sale, delivery, or distribution of newspapers or magazines under a written contract in which (i) the individual acknowledges that the individual performing the service and the service are not covered and (ii) the newspapers and magazines are sold by him or her at a fixed price with his or her compensation being based on the retention of the excess of such price over the amount at which the newspapers or magazines are charged to him or her, whether or not he or she is guaranteed a minimum amount of compensation for such service, or is entitled to be credited with the unsold newspapers or magazines turned back;

(o) Service performed by an individual who is enrolled at a nonprofit or public educational institution which normally maintains a regular faculty and curriculum and normally has a regularly organized body of students in attendance at the place where its educational activities are carried on, as a student in a full-time program, taken for credit at such institution, which combines academic instruction with work experience, if such service is an integral part of such program, and such institution has so certified to the employer, except that this subdivision shall not apply to service performed in a program established for or on behalf of an employer or a group of employers;

(p) Service performed in the employ of a hospital, if such service is performed by a patient of the hospital;

(q) Service performed for a motor carrier, as defined in 49 U.S.C. 13102 or section 75-302, as amended, by a lessor leasing one or more motor vehicles driven by the lessor or one or more drivers provided by the lessor under a lease, with the motor carrier as lessee, executed pursuant to 49 C.F.R. part 376, Title 291, Chapter 3, as amended, of the rules and regulations of the Public Service Commission, or the rules and regulations of the Division of Motor Carrier Services. This shall not preclude the determination of an employment relationship between the lessor and any personnel provided by the lessor in the conduct of the service performed for the lessee;

(r) Service performed by an individual for a business engaged in compilation of marketing databases if such service consists only of the processing of data and is performed in the residence of the individual;

(s) Service performed by an individual as a volunteer research subject who is paid on a per study basis for scientific, medical, or drug-related testing for any organization other than one described in section 501(c)(3) of the Internal Revenue Code as defined in section 49-801.01 or any governmental entity;

(t) Service performed by a direct seller if:

(i) Such person is engaged in sales primarily in person and is:

(A) Engaged in the trade or business of selling or soliciting the sale of consumer products or services to any buyer on a buy-sell basis or a deposit-commission basis for resale, by the buyer or any other person, in the home or otherwise than in a permanent retail establishment;

(B) Engaged in the trade or business of selling or soliciting the sale of consumer products or services in the home or otherwise than in a permanent retail establishment; or

(C) Engaged in the trade or business of the delivering or distribution of newspapers or shopping news, including any services directly related to such trade or business;

(ii) Substantially all the remuneration, whether or not paid in cash, for the performance of the services described in subdivision (t)(i) of this subdivision is directly related to sales or other output, including the performance of services, rather than to the number of hours worked; and

(iii) The services performed by the person are performed pursuant to a written contract between such person and the person for whom the services are performed and the contract provides that the person will not be treated as an employee for federal and state tax purposes. Sales by a person whose business is conducted primarily by telephone or any other form of electronic sales or solicitation is not service performed by a direct seller under this subdivision;

(u) Service performed by an individual who is a participant in the National and Community Service State Grant Program, also known as AmeriCorps, because a participant is not considered an employee of the organization receiving assistance under the national service laws through which the participant is engaging in service pursuant to 42 U.S.C. 12511(30)(B); and

(v) Service performed at a penal or custodial institution by a person committed to a penal or custodial institution;

(7) If the services performed during one-half or more of any pay period by an individual for the person employing him or her constitute employment, all the services of such individual for such period shall be deemed to be employment, but if the services performed during more than one-half of any such pay period by an individual for the person employing him or her do not constitute employment, then none of the services of such individual for such period shall be deemed to be employment. As used in this subdivision, the term pay period means a period, of not more than thirty-one consecutive days, for which a payment of remuneration is ordinarily made to such individual by the person employing him or her. This subdivision shall not be applicable with respect to services performed in a pay period by an individual for the person employing him or her when any of such service is excepted by subdivision (6)(h) of this section; and

(8) Notwithstanding the foregoing exclusions from the definition of employment, services shall be deemed to be in employment if with respect to such services a tax is required to be paid under any federal law imposing a tax against which credit may be taken for contributions required to be paid into a state unemployment compensation fund or which as a condition for full tax credit against the tax imposed by the Federal Unemployment Tax Act, as amended, is required to be covered under the Employment Security Law.

Source:Laws 1937, c. 108, § 2, p. 372; Laws 1939, c. 56, § 1, p. 230; Laws 1940, Spec. Sess., c. 2, § 1, p. 54; Laws 1941, c. 94, § 1, p. 375; C.S.Supp.,1941, § 48-702; R.S.1943, § 48-604; Laws 1945, c. 115, § 1, p. 376; Laws 1947, c. 175, § 2, p. 566; Laws 1953, c. 167, § 3, p. 523; Laws 1959, c. 228, § 1, p. 795; Laws 1961, c. 238, § 2, p. 704; Laws 1971, LB 651, § 3; Laws 1972, LB 1392, § 2; Laws 1977, LB 509, § 3; Laws 1979, LB 581, § 2; Laws 1983, LB 248, § 2; Laws 1983, LB 319, § 1; Laws 1984, LB 745, § 1; Laws 1985, LB 339, § 4; Laws 1986, LB 799, § 1; Laws 1993, LB 121, § 291; Laws 1994, LB 1337, § 3; Laws 1995, LB 424, § 1; Laws 1995, LB 574, § 52; Laws 1997, LB 79, § 1; Laws 1997, LB 129, § 1; Laws 1997, LB 130, § 1; Laws 1999, LB 168, § 2; Laws 2000, LB 953, § 1; Laws 2001, LB 387, § 1; Laws 2003, LB 199, § 2; Laws 2011, LB261, § 1; Laws 2016, LB830, § 1; Laws 2017, LB172, § 7.

Annotations

Services performed in the position of county attorney are excepted from the definition of employment, and thus, wages earned in that capacity are not for covered “employment” for purposes of unemployment insurance benefits. Lang v. Howard County, 287 Neb. 66, 840 N.W.2d 876 (2013).

The position of county attorney is one that has been designated “a major nontenured policymaking or advisory position” under or pursuant to Nebraska law. Lang v. Howard County, 287 Neb. 66, 840 N.W.2d 876 (2013).

Since subsection (5) of this section refers only to services performed for wages, the ABC test embodied therein does not apply in determining whether one engages in employment under a contract of hire. Omaha World-Herald v. Dernier, 253 Neb. 215, 570 N.W.2d 508 (1997).

For the purpose of determining unemployment tax liability, the common-law definition of independent contractor is superseded by the definition found in this section. Commissioner of Labor v. Lyric Co., 224 Neb. 190, 397 N.W.2d 32 (1986).

Individuals who provide services for welfare recipients at the request of the Nebraska Department of Public Welfare, now Department of Social Services, pursuant to 42 U.S.C. 1397 (1982) are independent contractors and not employees of the Department of Public Welfare within the meaning of this section. State v. Saville, 219 Neb. 81, 361 N.W.2d 215 (1985).

Where school has certified to an employer that work-study is an integral part of its educational program, the employer should be allowed to rely on that assurance, particularly when such conclusion is adequately supported by the record. The exemption from the term "employment" in section 48-604(6)(o) includes participation in a voluntary work-study program as long as grades and credits received are applied toward high school degree and it is part of an approved course of study. Exclusion of section 48-604(6)(o) is intended to encourage employers to participate in cooperative educational plans. Seldin Development & Management Co. v. Chizek, 208 Neb. 315, 303 N.W.2d 300 (1981).

Where orchestra leader was engaged by hotel for specific services at a fixed price, hired his own employees and paid and controlled them in the performance of their duties without interference, leader was an independent contractor and hotel was not liable for unemployment compensation for member of orchestra. Hill Hotel Co. v. Kinney, 138 Neb. 760, 295 N.W. 397 (1940).

The term "places of business" in subsection (5)(b) of this section includes the jobsites and the office of a construction company. Bay Constr. Co. v. Dolan, 2 Neb. App. 739, 513 N.W.2d 555 (1994).

48-605. Commissioner; salary.

The commissioner, for his or her services with respect to the administration of the Employment Security Law, shall receive the salary of the commissioner as set out in section 81-103.

Source:Laws 1937, c. 108, § 10, p. 389; Laws 1939, c. 56, § 15, p. 254; Laws 1941, c. 94, § 15, p. 401; C.S.Supp.,1941, § 48-710; R.S.1943, § 48-605; Laws 1947, c. 175, § 3, p. 572; Laws 1949, c. 163, § 3, p. 420; Laws 1961, c. 239, § 1, p. 712; Laws 1984, LB 747, § 1; Laws 1985, LB 339, § 5; Laws 2015, LB271, § 4.

48-606. Commissioner; duties; powers; annual report; schedule of fees.

(1) It shall be the duty of the Commissioner of Labor to administer the Employment Security Law. He or she shall have the power and authority to employ such persons, make such expenditures, require such reports, make such investigations, and take such other action as he or she deems necessary or suitable, if consistent with the Employment Security Law. The commissioner shall determine his or her own organization and methods of procedure in accordance with such law and shall have an official seal which shall be judicially noticed. Not later than the first day of January of each year, the commissioner shall submit to the Governor a report covering the administration and operation of such law during the preceding combined tax rate computational period ending September 30. The report shall include a balance sheet of the money in the fund in which there shall be provided a reserve against the liability in future years to pay benefits in excess of the then current contributions. The reserve shall be set up by the commissioner. Whenever the commissioner believes that a change in contribution or benefit rates will become necessary to protect the solvency of the fund, he or she shall promptly inform the Governor and the Clerk of the Legislature and make recommendations with respect thereto. Such information and recommendations submitted to the Clerk of the Legislature shall be submitted electronically. Each member of the Legislature shall receive an electronic copy of such information upon request to the commissioner.

(2) The commissioner may establish a schedule of fees to recover the cost of services including, but not limited to, copying, preparation of forms and other materials, responding to inquiries for information, payments for returned check charges and electronic payments not accepted, and furnishing publications prepared by the commissioner pursuant to the Employment Security Law. Fees received pursuant to this subsection shall be deposited in the Employment Security Administration Fund.

(3) Nothing in this section shall be construed to allow the department to charge any fee for making a claim for unemployment benefits or receiving assistance from the state employment service established pursuant to section 48-662 when performing functions within the purview of the federal Wagner-Peyser Act, 29 U.S.C. 49 et seq., as amended.

Source:Laws 1937, c. 108, § 11, p. 390; Laws 1941, c. 94, § 8, p. 396; C.S.Supp.,1941, § 48-711; R.S.1943, § 48-606; Laws 1953, c. 167, § 4(1), p. 529; Laws 1955, c. 231, § 8, p. 720; Laws 1979, LB 322, § 17; Laws 1985, LB 339, § 6; Laws 1987, LB 278, § 1; Laws 2003, LB 195, § 1; Laws 2007, LB265, § 5; Laws 2012, LB782, § 61; Laws 2017, LB172, § 8.

48-606.01. Commissioner; office space; acquire; approval of Department of Administrative Services.

The commissioner, with the written consent of the Department of Administrative Services, is authorized and empowered to use any funds available under either subdivision (1)(a) or (1)(b) of section 48-621, for the purpose of acquiring suitable office space within the corporate limits of the state capital city for the administration of the Employment Security Law. Office space may be acquired by purchase, by contract, or in any other manner including the right to use such funds, or any part thereof, to assist in financing the construction of any building erected by the State of Nebraska or any of its agencies. If the Department of Labor assists in financing the construction of any building erected by the State of Nebraska or any of its agencies under a lease or contract between the commissioner and the State of Nebraska or such other agency, the Department of Labor shall continue to occupy such space rent free after the cost of financing such building has been liquidated. The commissioner, upon approval by the Department of Administrative Services, is authorized and empowered to use any such funds to acquire suitable office space for local employment offices anywhere in the State of Nebraska.

Source:Laws 1953, c. 167, § 4(2), p. 530; Laws 1955, c. 190, § 2, p. 540; Laws 1961, c. 239, § 2, p. 713; Laws 1975, LB 359, § 1; Laws 1984, LB 747, § 2; Laws 1985, LB 339, § 7; Laws 1995, LB 1, § 1; Laws 2000, LB 953, § 2; Laws 2017, LB172, § 9.

48-607. Rules and regulations; adoption; procedure.

The commissioner shall adopt and promulgate rules and regulations necessary to carry out the Employment Security Law pursuant to the Administrative Procedure Act. This section shall not be construed to invalidate any rules or regulations in effect on September 6, 1985.

Source:Laws 1937, c. 108, § 11, p. 390; C.S.Supp.,1941, § 48-711; R.S.1943, § 48-607; Laws 1985, LB 339, § 8.

Cross References

Administrative Procedure Act, see section 84-920.

48-608. Commissioner; distribution; duty.

The Commissioner of Labor shall furnish eight copies of the text of the Employment Security Law and his or her rules and regulations to the Nebraska Publications Clearinghouse.

Source:Laws 1937, c. 108, § 11, p. 391; C.S.Supp.,1941, § 48-711; R.S.1943, § 48-608; Laws 1972, LB 1284, § 16; Laws 1981, LB 545, § 10; Laws 1985, LB 339, § 9; Laws 2001, LB 192, § 4.

48-609. Personnel; powers of commissioner; bond or insurance; retirement system.

(1) Subject to other provisions of the Employment Security Law, the Commissioner of Labor is authorized to appoint, fix the compensation of, and prescribe the duties and powers of such officers, accountants, attorneys, experts, and other persons as may be necessary in the performance of his or her duties under such law. The commissioner may delegate to any such person such power and authority as he or she deems reasonable and proper for the effective administration of such law. Employees handling money or signing warrants under such law shall be bonded or insured as required by section 11-201. The commissioner may pay the share of the premium from the Employment Security Administration Fund. The commissioner shall classify positions under such law and shall establish salary schedules and minimum personnel standards for the positions so classified. The commissioner shall follow State Personnel System rules, regulations, and contract requirements for appointments, promotions, demotions, and terminations for cause based upon ratings of efficiency and fitness.

(2) Any person employed by the department and paid from funds provided pursuant to Title III of the Social Security Act or funds from other federal sources shall be enrolled in the State Employees Retirement System of the State of Nebraska when he or she becomes eligible.

Source:Laws 1937, c. 108, § 11, p. 391; Laws 1939, c. 56, § 8, p. 246; C.S.Supp.,1941, § 48-711; R.S.1943, § 48-609; Laws 1961, c. 240, § 1, p. 715; Laws 1978, LB 653, § 10; Laws 1984, LB 747, § 3; Laws 1985, LB 339, § 10; Laws 1987, LB 272, § 1; Laws 1989, LB 29, § 1; Laws 2004, LB 884, § 21; Laws 2017, LB172, § 10.

Cross References

State Employees Retirement Act, see section 84-1331.

48-610. Repealed. Laws 2009, LB 631, § 15.

48-611. Commissioner; general duties.

The Commissioner of Labor, with the advice and aid of advisory councils, shall take all appropriate steps to reduce and prevent unemployment; to encourage and assist in the adoption of practical methods of vocational training, retraining, and vocational guidance; to investigate, recommend, advise, and assist in the establishment and operation, by municipalities, counties, school districts, and the state, of reserves for public works to be used in times of business depression and unemployment; to promote the reemployment of unemployed workers throughout the state in every other way that may be feasible; and to these ends to carry on and publish the results of investigations and research studies.

Source:Laws 1937, c. 108, § 11, p. 392; C.S.Supp.,1941, § 48-711; R.S.1943, § 48-611; Laws 1984, LB 747, § 4.

48-612. Employers; records and reports required; privileged communications; violation; penalty.

(1) Each employer, whether or not subject to the Employment Security Law, shall keep true and accurate work records containing such information as required by the Commissioner of Labor. Such records shall be open to inspection and be subject to being copied by the commissioner or his or her authorized representatives at any reasonable time and as often as may be necessary. The commissioner and a hearing officer may require from any such employer any sworn or unsworn reports, with respect to persons employed by it, deemed necessary for the effective administration of such law. Except as otherwise provided in section 48-612.01, information obtained pursuant to this section or obtained from any employer or individual pursuant to the administration of the Employment Security Law shall be held confidential.

(2) Any employee of the commissioner who violates any provision of sections 48-606 to 48-616 shall be guilty of a Class III misdemeanor.

(3) All letters, reports, communications, or any other matters, either oral or written, from an employer or his or her workers to each other or to the commissioner or any of his or her agents, representatives, or employees written or made in connection with the requirements and administration of the Employment Security Law, or the rules and regulations thereunder, shall be absolutely privileged. Any such letters, reports, communications, or other matters shall not be made the subject matter or basis for any suit for slander or libel in any court of this state, unless the same be false in fact and malicious in intent.

Source:Laws 1937, c. 108, § 11, p. 392; C.S.Supp.,1941, § 48-711; R.S.1943, § 48-612; Laws 1945, c. 115, § 2, p. 381; Laws 1977, LB 40, § 290; Laws 1985, LB 339, § 11; Laws 1993, LB 757, § 31; Laws 2001, LB 192, § 5; Laws 2007, LB265, § 6; Laws 2017, LB172, § 11.

Annotations

Information provided to the Department of Labor in connection with the requirements of the Employment Security Law is privileged and cannot be the basis for a libel suit unless the information is both false and malicious. Molt v. Lindsay Mfg. Co., 248 Neb. 81, 532 N.W.2d 11 (1995).

48-612.01. Employer information; disclosure authorized; costs; prohibited redisclosure; penalty.

(1) Information obtained pursuant to subsection (1) of section 48-612 may be disclosed under the following circumstances:

(a) Any claimant or employer or representative of a claimant or employer, as a party before a hearing officer or court regarding an unemployment claim or tax appeal, shall be supplied with information obtained in the administration of the Employment Security Law, to the extent necessary for the proper presentation of the claim or appeal;

(b) The names, addresses, and identification numbers of employers may be disclosed to the Nebraska Workers' Compensation Court which may use such information for purposes of enforcement of the Nebraska Workers' Compensation Act;

(c) Hearing officer decisions rendered pursuant to the Employment Security Law and designated as precedential by the commissioner on the coverage of employers, employment, wages, and benefit eligibility may be published in printed or electronic format if all social security numbers have been removed and disclosure is consistent with federal and state law;

(d) To a public official for use in the performance of his or her official duties. For purposes of this subdivision, performance of official duties means the administration or enforcement of law or the execution of the official responsibilities of a federal, state, or local elected official. Administration of law includes research related to the law administered by the public official. Execution of official responsibilities does not include solicitation of contributions or expenditures to or on behalf of a candidate for public office or to a political party;

(e) To an agent or contractor of a public official to whom disclosure is permissible under subdivision (d) of this subsection;

(f) For use in reports and publications containing information collected exclusively for statistical purposes under a cooperative agreement with the federal Bureau of Labor Statistics. This subdivision does not restrict or impose any condition on the transfer of any other information to the federal Bureau of Labor Statistics under an agreement or the federal Bureau of Labor Statistics' disclosure or use of such information; and

(g) In response to a court order.

(2) Information about an individual or employer obtained pursuant to subsection (1) of section 48-612 may be disclosed to:

(a) One who acts as an agent for the individual or employer when the agent presents a written release from the individual or employer, where practicable, or other evidence of authority to act on behalf of the individual or employer;

(b) An elected official who is performing constituent services if the official presents reasonable evidence that the individual or employer has authorized such disclosure;

(c) An attorney who presents written evidence that he or she is representing the individual or employer in a matter arising under the Employment Security Law; or

(d) A third party or its agent carrying out the administration or evaluation of a public program. The third party or agent must obtain a written release from the individual or employer to whom the information pertains. To constitute informed consent, the release shall be signed and shall include a statement:

(i) Specifically identifying the information that is to be disclosed;

(ii) That state government files will be accessed to obtain that information;

(iii) Identifying the specific purpose or purposes for which the information is sought and that information obtained under the release will only be used for that purpose or purposes; and

(iv) Identifying and describing all the parties who may receive the disclosed information.

(3) Information obtained pursuant to subsection (1) of section 48-612 may be disclosed under the following circumstances:

(a) To an individual or employer if the information requested pertains only to the individual or employer making the request;

(b) To a local, state, or federal governmental official, other than a clerk of court, attorney, or notary public acting on behalf of a litigant, with authority to obtain such information by subpoena under state or federal law; and

(c) To a federal official for purposes of unemployment compensation program oversight and audits, including disclosures under 20 C.F.R. part 601 and 29 C.F.R. parts 96 and 97 as they existed on January 1, 2007.

(4) If the purpose for which information is provided under subsection (1), (2), or (3) of this section is not related to the administration of the Employment Security Law or the unemployment insurance compensation program of another jurisdiction, the commissioner shall recover the costs of providing such information from the requesting individual or entity prior to providing the information. Costs shall be recovered unless the costs are nominal or the entity is a governmental agency which the commissioner has determined provides reciprocal services.

(5) Any person who receives information under subsection (1) or (2) of this section and rediscloses such information for any purpose other than the purpose for which it was originally obtained shall be guilty of a Class III misdemeanor.

Source:Laws 2007, LB265, § 7; Laws 2009, LB631, § 1; Laws 2017, LB172, § 12.

Cross References

Nebraska Workers' Compensation Act, see section 48-1,110.

48-613. Oaths; depositions; subpoenas.

In the discharge of the duties imposed by the Employment Security Law, the Commissioner of Labor, an impartial hearing officer employed by the Department of Labor, and any duly authorized representative of any of them shall have power to administer oaths and affirmations, take depositions, certify to official acts, and issue subpoenas to compel the attendance of witnesses and the production of books, papers, correspondence, memoranda, and other records deemed necessary as evidence in connection with a disputed claim or the administration of such law.

Source:Laws 1937, c. 108, § 11, p. 393; C.S.Supp.,1941, § 48-711; R.S.1943, § 48-613; Laws 1985, LB 339, § 12; Laws 2001, LB 192, § 6; Laws 2017, LB172, § 13.

48-614. Subpoenas; contumacy or disobedience; punishable as contempt; penalty.

The Commissioner of Labor, a hearing officer, or a duly authorized representative of the commissioner may petition a court to enforce a subpoena issued by the commissioner or a hearing officer in case of contumacy by any person or refusal of any person to obey such a subpoena. Any court of this state which has subject matter jurisdiction and has venue jurisdiction of the place where the person guilty of contumacy or refusal to obey is found, resides, or transacts business has jurisdiction to issue such person an order requiring him or her to appear before the commissioner, a hearing officer, or a duly authorized representative and to produce evidence or give testimony if so ordered touching the matter under investigation or in question. Any failure to obey such order of the court may be punished by the court as contempt. Any person who without just cause fails or refuses to attend and testify or to answer any lawful inquiry or to produce books, papers, correspondence, memoranda, and other records, if it is in his or her power so to do, in obedience to a subpoena of the commissioner, a hearing officer, or a duly authorized representative shall be guilty of a Class III misdemeanor. Each day such violation continues shall be a separate offense.

Source:Laws 1937, c. 108, § 11, p. 393; C.S.Supp.,1941, § 48-711; R.S.1943, § 48-614; Laws 1977, LB 40, § 291; Laws 2001, LB 192, § 7; Laws 2017, LB172, § 14.

48-615. Repealed. Laws 1987, LB 277, § 1.

48-616. Commissioner of Labor; cooperation with Secretary of Labor of the United States; duties.

In the administration of the Employment Security Law, the Commissioner of Labor shall cooperate, to the fullest extent consistent with such law, with the Secretary of Labor of the United States. The commissioner is authorized and directed to adopt appropriate rules and regulations, administrative methods, and standards, as may be necessary to secure to this state and its citizens all advantages available under the Social Security Act, under sections 3303 and 3304 of the Federal Unemployment Tax Act, and under the Act of Congress entitled An act to provide for the establishment of a national employment system and for cooperation with states in the promotion of such system, and for other purposes, approved June 6, 1933, as amended. The commissioner shall comply with the regulations of the Secretary of Labor relating to the receipt or expenditure by this state of money granted under any of such acts. The commissioner shall make such reports, in such form and containing such information as the Secretary of Labor may from time to time require, and shall comply with such provisions as the Secretary of Labor may from time to time find necessary to assure the correctness and verification of such reports. Upon request, the commissioner shall furnish to any agency of the United States charged with the administration of public works or assistance through public employment the name, address, ordinary occupation, and employment status of each recipient of benefits and such recipient's rights to further benefits under the Employment Security Law. The commissioner may afford reasonable cooperation with every agency of the United States charged with the administration of any unemployment insurance law.

Source:Laws 1937, c. 108, § 11, p. 394; Laws 1939, c. 56, § 8, p. 247; Laws 1941, c. 94, § 16, p. 401; C.S.Supp.,1941, § 48-711; R.S.1943, § 48-616; Laws 1961, c. 238, § 3, p. 709; Laws 1985, LB 339, § 13; Laws 2017, LB172, § 15.

48-617. Unemployment Compensation Fund; establishment; composition; investment.

(1) There is hereby established as a special fund, separate and apart from all public money or funds of this state, an Unemployment Compensation Fund. The fund shall be administered by the Commissioner of Labor exclusively for the purposes of the Employment Security Law. The fund shall consist of:

(a) All contributions and payments in lieu of contributions collected under such law together with any interest thereon collected pursuant to sections 48-655 to 48-660.01, except as provided in subdivision (1)(b) of section 48-621;

(b) Interest earned upon any money in the fund;

(c) Any property or securities acquired through the use of money belonging to the fund;

(d) All earnings of such property or securities;

(e) All money credited to this state's account in the Unemployment Trust Fund pursuant to section 903 of the federal Social Security Act, as amended; and

(f) All other money received for the fund from any other source.

(2) Any money in the Unemployment Compensation Fund available for investment by the State of Nebraska shall be invested by the state investment officer pursuant to the Nebraska Capital Expansion Act and the Nebraska State Funds Investment Act.

Source:Laws 1937, c. 108, § 9, p. 387; Laws 1939, c. 56, § 7, p. 243; C.S.Supp.,1941, § 48-709; R.S.1943, § 48-617; Laws 1947, c. 175, § 4, p. 572; Laws 1957, c. 208, § 1, p. 728; Laws 1969, c. 584, § 48, p. 2374; Laws 1972, LB 1392, § 3; Laws 1985, LB 339, § 14; Laws 1995, LB 1, § 2; Laws 1995, LB 7, § 46; Laws 2000, LB 953, § 3; Laws 2017, LB172, § 16.

Cross References

Nebraska Capital Expansion Act, see section 72-1269.

Nebraska State Funds Investment Act, see section 72-1260.

48-618. Unemployment Compensation Fund; treasurer; accounts; transfer of interest; depositories; Unemployment Trust Fund; investment; bond or insurance.

(1) The Commissioner of Labor shall designate a treasurer and custodian of the Unemployment Compensation Fund, who shall be selected in accordance with section 48-609. The treasurer shall administer the Unemployment Compensation Fund in accordance with the directions of the commissioner and shall issue his or her warrants upon it in accordance with such rules and regulations as adopted and promulgated by the commissioner. The treasurer shall maintain within the Unemployment Compensation Fund three separate accounts:

(a) A clearing account;

(b) An Unemployment Trust Fund account; and

(c) A benefit account.

(2) All money payable to the Unemployment Compensation Fund, upon receipt by the commissioner, shall be forwarded to the treasurer. The treasurer shall immediately deposit the same in the clearing account or the benefit account to be used to offset future benefit draws from the Unemployment Trust Fund. Transfers of interest on delinquent contributions pursuant to subdivision (1)(b) of section 48-621 and refunds payable pursuant to section 48-660 may be paid from the clearing account upon warrants issued by the treasurer of the Unemployment Compensation Fund under the direction of the commissioner. After clearance, all other money in the clearing account shall be immediately deposited with the Secretary of the Treasury of the United States of America to the credit of the account of this state in the Unemployment Trust Fund. The benefit account shall consist of all money requisitioned from this state's account in the Unemployment Trust Fund. Except as herein otherwise provided, money in the clearing and benefit accounts may be deposited by the treasurer under the direction of the commissioner in any bank or public depository in which general funds of the state may be deposited. No public deposit insurance charge or premium shall be paid out of the Unemployment Compensation Fund.

(3) The Unemployment Trust Fund is to be maintained pursuant to section 904 of the Social Security Act, any provisions of law in this state relating to the deposit, administration, release, or disbursement of money in the possession or custody of this state to the contrary notwithstanding.

(4) Any money in the Unemployment Trust Fund available for investment by the State of Nebraska shall be invested by the state investment officer pursuant to the Nebraska Capital Expansion Act and the Nebraska State Funds Investment Act.

(5) The treasurer shall be bonded or insured as required by section 11-201.

Source:Laws 1937, c. 108, § 9, p. 387; Laws 1939, c. 56, § 7, p. 243; Laws 1941, c. 94, § 7, p. 395; C.S.Supp.,1941, § 48-709; R.S.1943, § 48-618; Laws 1947, c. 175, § 5, p. 573; Laws 1955, c. 190, § 4, p. 541; Laws 1978, LB 653, § 11; Laws 1985, LB 339, § 15; Laws 1995, LB 1, § 3; Laws 2000, LB 953, § 4; Laws 2004, LB 884, § 22; Laws 2017, LB172, § 17; Laws 2019, LB359, § 1.

Cross References

Nebraska Capital Expansion Act, see section 72-1269.

Nebraska State Funds Investment Act, see section 72-1260.

48-619. Unemployment Trust Fund; withdrawals.

(1) Money shall be requisitioned from this state's account in the Unemployment Trust Fund solely for the payment of benefits in accordance with lawful rules and regulations adopted and promulgated by the Commissioner of Labor, except that money credited to this fund pursuant to section 903 of the federal Social Security Act, as amended, may be appropriated by the Legislature in accordance with section 903 of the federal Social Security Act for the administration of the Employment Security Law. For such purposes and to the extent required, credits to the account pursuant to section 903 of the federal Social Security Act may be transferred to the Employment Security Administration Fund established in subdivision (1)(a) of section 48-621. The commissioner shall from time to time requisition from the Unemployment Trust Fund such amounts as he or she deems necessary for the payment of benefits for a reasonable future period, not to exceed the amounts standing to this state's account therein. Upon receipt thereof, the treasurer shall deposit such money in the benefit account and shall issue his or her warrants as provided by law for the payment of benefits solely from such benefit account. Expenditures of such money in the benefit account and refunds from the clearing account shall not be subject to any provisions of law requiring specific appropriations.

(2) Any balance of money requisitioned from the Unemployment Trust Fund, which remains unclaimed or unpaid in the benefit account after the expiration of the period for which such sums were requisitioned, shall, at the discretion of the commissioner, either be:

(a) Deducted from estimates for, and may be utilized for the payment of, benefits during succeeding periods; or

(b) Redeposited with the Secretary of the Treasury of the United States of America, to the credit of this state's account in the Unemployment Trust Fund, as provided in section 48-618.

(3) Any warrant issued for the payment of benefits that is duly issued and delivered or mailed to a claimant and not presented for payment within one year from the date of its issue may be invalidated and the amount thereof credited to the benefit account, except that a substitute warrant may be issued and charged to the benefit account on proper showing at any time within the year next following. A claim for payment of an invalidated warrant not made within one year of original issuance may be presented for payment as a miscellaneous claim under the State Miscellaneous Claims Act. Any charge made to an employer's account pursuant to section 48-652 for any such invalidated benefit warrant shall stand as originally made.

(4) As used in this section, the term warrant shall include a signature negotiable instrument, electronic funds transfer system, telephonic funds transfer system, electric funds transfer system, funds transfers as provided for in article 4A, Uniform Commercial Code, mechanical funds transfer system, or other funds transfer system established by the treasurer. The warrant, when it is a dual signature negotiable instrument, shall affect the state's cash balance in the bank when redeemed by the treasurer, not when cashed by a financial institution.

Source:Laws 1937, c. 108, § 9, p. 388; Laws 1939, c. 56, § 7, p. 244; C.S.Supp.,1941, § 48-709; R.S.1943, § 48-619; Laws 1957, c. 208, § 2, p. 728; Laws 1985, LB 339, § 16; Laws 1995, LB 1, § 4; Laws 2000, LB 953, § 5; Laws 2005, LB 484, § 4; Laws 2017, LB172, § 18; Laws 2019, LB359, § 2.

Cross References

State Miscellaneous Claims Act, see section 81-8,294.

48-620. Unemployment Trust Fund; discontinuance.

(1) The provisions of sections 48-617 to 48-619, to the extent that they relate to the Unemployment Trust Fund, shall be operative only so long as such Unemployment Trust Fund continues to exist and so long as the Secretary of the Treasury of the United States of America continues to maintain for this state a separate book account of all funds deposited therein by this state for benefit purposes. The separate book account for this state shall also include the state's proportionate share of earnings from the Unemployment Trust Fund, from which no other state is permitted to make withdrawals. If and when the Unemployment Trust Fund ceases to exist or such separate book account is no longer maintained, all money, properties, or securities therein belonging to the Unemployment Compensation Fund of this state shall be transferred to the treasurer of the Unemployment Compensation Fund.

(2) If advances to the Unemployment Trust Fund under Title XII of the federal Social Security Act are necessary, any interest required to be paid on such advances shall be paid in a timely manner and shall not be paid by this state, directly or indirectly, by an equivalent reduction in state unemployment taxes or otherwise, from amounts in the Unemployment Compensation Fund.

Source:Laws 1937, c. 108, § 9, p. 388; Laws 1939, c. 56, § 7, p. 245; C.S.Supp.,1941, § 48-709; R.S.1943, § 48-620; Laws 1969, c. 584, § 49, p. 2375; Laws 1984, LB 746, § 1; Laws 1995, LB 7, § 47; Laws 2017, LB172, § 19.

48-621. Employment Security Administration Fund; Employment Security Special Contingent Fund; created; use; investment; federal funds; treatment.

(1) The administrative fund shall consist of the Employment Security Administration Fund and the Employment Security Special Contingent Fund. Each fund shall be maintained as a separate and distinct account in all respects, as follows:

(a) There is hereby created in the state treasury a special fund to be known as the Employment Security Administration Fund. All money credited to this fund is hereby appropriated and made available to the Commissioner of Labor. All money in this fund shall be expended solely for the purposes and in the amounts found necessary as defined by the specific federal programs, state statutes, and contract obligations for the proper and efficient administration of all programs of the Department of Labor. The fund shall consist of all money appropriated by this state and all money received from the United States of America or any agency thereof, including the Department of Labor and the Railroad Retirement Board, or from any other source for such purpose. Money received from any agency of the United States or any other state as compensation for services or facilities supplied to such agency, any amounts received pursuant to any surety bond or insurance policy for losses sustained by the Employment Security Administration Fund or by reason of damage to equipment or supplies purchased from money in such fund, and any proceeds realized from the sale or disposition of any equipment or supplies which may no longer be necessary for the proper administration of such programs shall also be credited to this fund. All money in the Employment Security Administration Fund shall be deposited, administered, and disbursed in the same manner and under the same conditions and requirements as provided by law for other special funds in the state treasury. Any balances in this fund, except balances of money therein appropriated from the General Fund of this state, shall not lapse at any time. Fund balances shall be continuously available to the commissioner for expenditure consistent with the Employment Security Law. Any money in the Employment Security Administration Fund available for investment shall be invested by the state investment officer pursuant to the Nebraska Capital Expansion Act and the Nebraska State Funds Investment Act; and

(b) There is hereby created in the state treasury a special fund to be known as the Employment Security Special Contingent Fund. Any money in the Employment Security Special Contingent Fund available for investment shall be invested by the state investment officer pursuant to the Nebraska Capital Expansion Act and the Nebraska State Funds Investment Act. All money collected under section 48-655 as interest on delinquent contributions, less refunds, shall be credited to this fund from the clearing account of the Unemployment Compensation Fund at the end of each calendar quarter. Such money shall not be expended or available for expenditure in any manner to permit substitution for, or a corresponding reduction in, federal funds which, in the absence of such money, would be available to finance expenditures for the administration of the unemployment insurance law. However, nothing in this section shall prevent the money in the Employment Security Special Contingent Fund from being used as a revolving fund to cover necessary and proper expenditures under the law for which federal, state, or contractual funds are owed but have not yet been received. Upon receipt of such funds, covered expenditures shall be charged against such funds. Money in the Employment Security Special Contingent Fund may only be used by the Commissioner of Labor as follows:

(i) To replace within a reasonable time any money received by this state pursuant to section 302 of the federal Social Security Act, as amended, and required to be paid under section 48-622;

(ii) To meet special extraordinary and contingent expenses which are deemed essential for good administration but which are not provided in grants from the Secretary of Labor of the United States. No expenditures shall be made from this fund for this purpose except on written authorization by the Governor at the request of the Commissioner of Labor; and

(iii) To be transferred to the Job Training Cash Fund.

(2)(a) Money credited to the account of this state in the Unemployment Trust Fund by the United States Secretary of the Treasury pursuant to section 903 of the Social Security Act may not be requisitioned from this state's account or used except:

(i) For the payment of benefits pursuant to section 48-619; and

(ii) For the payment of expenses incurred for the administration of the Employment Security Law and public employment offices. Money requisitioned or used for this purpose must be pursuant to a specific appropriation by the Legislature. Any such appropriation law shall specify the amount and purposes for which the money is appropriated and must be enacted before expenses may be incurred and money may be requisitioned. Such appropriation is subject to the following conditions:

(A) Money may be obligated for a limited period ending not more than two years after the effective date of the appropriation law; and

(B) An obligated amount shall not exceed the aggregate amounts transferred to the account of this state pursuant to section 903 of the Social Security Act less the aggregate of amounts used by this state pursuant to the Employment Security Law and amounts charged against the amounts transferred to the account of this state.

(b) For purposes of subdivision (2)(a)(ii)(B) of this section, amounts appropriated for administrative purposes shall be charged against transferred amounts when the obligation is entered into.

(c) The appropriation, obligation, and expenditure or other disposition of money appropriated under this subsection shall be accounted for in accordance with standards established by the United States Secretary of Labor.

(d) Money appropriated as provided in this subsection for the payment of administration expenses shall be requisitioned as needed for the payment of obligations incurred under such appropriation. Upon requisition, administration expenses shall be credited to the Employment Security Administration Fund from which such payments shall be made. Money so credited shall, until expended, remain a part of the Employment Security Administration Fund. If not immediately expended, credited money shall be returned promptly to the account of this state in the Unemployment Trust Fund.

(e) Notwithstanding subdivision (2)(a) of this section, money credited with respect to federal fiscal years 1999, 2000, and 2001 shall be used solely for the administration of the unemployment compensation program and are not subject to appropriation by the Legislature.

Source:Laws 1937, c. 108, § 13, p. 397; Laws 1939, c. 56, § 10, p. 248; Laws 1941, c. 94, § 10, p. 398; C.S.Supp.,1941, § 48-712; R.S.1943, § 48-621; Laws 1947, c. 175, § 6, p. 574; Laws 1949, c. 163, § 5, p. 421; Laws 1957, c. 208, § 3, p. 729; Laws 1969, c. 584, § 50, p. 2375; Laws 1985, LB 339, § 17; Laws 1989, LB 305, § 4; Laws 1994, LB 1066, § 38; Laws 1995, LB 1, § 5; Laws 1996, LB 1072, § 3; Laws 1999, LB 608, § 2; Laws 2000, LB 953, § 6; Laws 2003, LB 197, § 1; Laws 2012, LB782, § 62; Laws 2012, LB946, § 9; Laws 2017, LB172, § 20; Laws 2019, LB359, § 3.

Cross References

Nebraska Capital Expansion Act, see section 72-1269.

Nebraska State Funds Investment Act, see section 72-1260.

48-622. Funds lost and improper expenditures; replacement; reimbursement.

This state recognizes its obligation to replace, and hereby pledges the faith of this state that funds will be provided in the future, and applied to the replacement of, any money received from the Secretary of Labor of the United States under Title III of the Social Security Act, any unencumbered balances in the Employment Security Administration Fund, any money granted to this state pursuant to the Wagner-Peyser Act, and any money made available by the state or its political subdivisions and matched by such money granted to this state pursuant to the Wagner-Peyser Act, which the Secretary of Labor finds has, because of any action or contingency, been lost or has been expended for purposes other than, or in amounts in excess of, those found necessary by the Secretary of Labor for the proper administration of the Employment Security Law. To the extent possible such money shall be promptly replaced by money appropriated for such purpose from the Employment Security Special Contingent Fund of this state to the Employment Security Administration Fund for expenditure as provided in section 48-621.

Source:Laws 1941, c. 94, § 10, p. 398; C.S.Supp.,1941, § 48-712; R.S.1943, § 48-622; Laws 1949, c. 163, § 6, p. 423; Laws 1961, c. 238, § 4, p. 710; Laws 1985, LB 339, § 18.

48-622.01. State Unemployment Insurance Trust Fund; created; use; investment; commissioner; powers and duties; cessation of state unemployment insurance tax; effect.

(1) There is hereby created in the state treasury a special fund to be known as the State Unemployment Insurance Trust Fund. All state unemployment insurance tax collected under sections 48-648 to 48-661, less refunds, shall be paid into the fund. Such money shall be held in trust for payment of unemployment insurance benefits. Any money in the fund available for investment shall be invested by the state investment officer pursuant to the Nebraska Capital Expansion Act and the Nebraska State Funds Investment Act, except that interest earned on money in the fund shall be credited to the Nebraska Training and Support Cash Fund at the end of each calendar quarter.

(2) The commissioner shall have the authority to determine when and in what amounts withdrawals from the State Unemployment Insurance Trust Fund for payment of benefits are necessary. Amounts withdrawn for payment of benefits shall be immediately forwarded to the Secretary of the Treasury of the United States of America to the credit of the state's account in the Unemployment Trust Fund, any provision of law in this state relating to the deposit, administration, release, or disbursement of money in the possession or custody of this state to the contrary notwithstanding.

(3) If and when the state unemployment insurance tax ceases to exist as determined by the Governor, all money then in the State Unemployment Insurance Trust Fund less accrued interest shall be immediately transferred to the credit of the state's account in the Unemployment Trust Fund, any provision of law in this state relating to the deposit, administration, release, or disbursement of money in the possession or custody of this state to the contrary notwithstanding. The determination to eliminate the state unemployment insurance tax shall be based on the solvency of the state's account in the Unemployment Trust Fund and the need for training of Nebraska workers. Accrued interest in the State Unemployment Insurance Trust Fund shall be credited to the Nebraska Training and Support Cash Fund.

Source:Laws 1994, LB 1337, § 4; Laws 1995, LB 7, § 48; Laws 2009, LB631, § 2; Laws 2011, LB378, § 23; Laws 2014, LB906, § 16; Laws 2014, LB997, § 1; Laws 2017, LB172, § 21.

Cross References

Nebraska Capital Expansion Act, see section 72-1269.

Nebraska State Funds Investment Act, see section 72-1260.

48-622.02. Nebraska Training and Support Cash Fund; created; use; investment; Administrative Costs Reserve Account; created; use.

(1) The Nebraska Training and Support Cash Fund is created. Any money in the fund available for investment shall be invested by the state investment officer pursuant to the Nebraska Capital Expansion Act and the Nebraska State Funds Investment Act. No expenditures shall be made from the Nebraska Training and Support Cash Fund without the written authorization of the Governor upon the recommendation of the commissioner. Any interest earned on money in the State Unemployment Insurance Trust Fund shall be credited to the Nebraska Training and Support Cash Fund.

(2) Money in the Nebraska Training and Support Cash Fund shall be used for (a) administrative costs of establishing, assessing, collecting, and maintaining state unemployment insurance tax liability and payments, (b) administrative costs of creating, operating, maintaining, and dissolving the State Unemployment Insurance Trust Fund and the Nebraska Training and Support Cash Fund, (c) support of public and private job training programs designed to train, retrain, or upgrade work skills of existing Nebraska workers of for-profit and not-for-profit businesses, (d) recruitment of workers to Nebraska, (e) training new employees of expanding Nebraska businesses, (f) retention of existing employees of Nebraska businesses, (g) the costs of creating a common web portal for the attraction of businesses and workers to Nebraska, (h) developing and conducting labor availability and skills gap studies pursuant to the Sector Partnership Program Act, for which money may be transferred to the Sector Partnership Program Fund as directed by the Legislature, and (i) payment of unemployment insurance benefits if solvency of the state's account in the Unemployment Trust Fund and of the State Unemployment Insurance Trust Fund so require.

(3) The Administrative Costs Reserve Account is created within the Nebraska Training and Support Cash Fund. Money shall be allocated from the Nebraska Training and Support Cash Fund to the Administrative Costs Reserve Account in amounts sufficient to pay the anticipated administrative costs identified in subsection (2) of this section.

(4) The State Treasurer shall transfer two hundred fifty thousand dollars from the Nebraska Training and Support Cash Fund to the Sector Partnership Program Fund no later than July 15, 2016.

Source:Laws 1994, LB 1337, § 5; Laws 1995, LB 7, § 49; Laws 2009, LB631, § 3; Laws 2012, LB911, § 1; Laws 2014, LB997, § 2; Laws 2016, LB1110, § 13; Laws 2017, LB172, § 22; Laws 2023, LB191, § 11.
Operative Date: September 2, 2023

Cross References

Nebraska Capital Expansion Act, see section 72-1269.

Nebraska State Funds Investment Act, see section 72-1260.

Sector Partnership Program Act, see section 48-3401.

48-622.03. Nebraska Worker Training Board; created; members; chairperson; annual program plan; report.

(1) There is hereby created the Nebraska Worker Training Board. The board shall consist of seven members appointed and serving for terms determined by the Governor as follows:

(a) A representative of employers in Nebraska;

(b) A representative of employees in Nebraska;

(c) A representative of the public;

(d) The Commissioner of Labor or a designee;

(e) The Director of Economic Development or a designee;

(f) The Commissioner of Education or a designee; and

(g) The chairperson of the governing board of the Nebraska Community College Association or a designee.

(2) The chairperson of the Nebraska Worker Training Board shall be the representative of the employers in Nebraska.

(3) By July 1 of each year, the board shall prepare an annual program plan for the upcoming fiscal year containing guidelines for the program financed by the Nebraska Training and Support Cash Fund. The guidelines shall include, but not be limited to, guidelines for certifying training providers, criteria for evaluating requests for the use of money under section 48-622.02, and guidelines for requiring employers to provide matching funds. The guidelines shall give priority to training that contributes to the expansion of the Nebraska workforce and increasing the pool of highly skilled workers in Nebraska.

(4) By December 31 of each year, the Department of Labor shall provide a report to the Governor covering the activities of the program financed by the Nebraska Training and Support Cash Fund for the previous fiscal year. The report shall contain an assessment of the effectiveness of the program and its administration.

Source:Laws 1994, LB 1337, § 6; Laws 2009, LB631, § 4; Laws 2014, LB997, § 3; Laws 2017, LB172, § 23; Laws 2019, LB359, § 4; Laws 2020, LB1016, § 1.

48-623. Benefits; how paid.

All benefits provided in the Employment Security Law shall be payable from the Unemployment Compensation Fund. All benefits shall be paid through employment offices in accordance with rules and regulations adopted and promulgated by the Commissioner of Labor.

Source:Laws 1937, c. 108, § 3, p. 374; Laws 1939, c. 56, § 2, p. 233; Laws 1941, c. 94, § 2, p. 381; C.S.Supp.,1941, § 48-703; R.S.1943, § 48-623; Laws 1985, LB 339, § 19; Laws 2017, LB172, § 24.

48-624. Benefits; weekly benefit amount; calculation.

For any benefit year beginning on or after January 1, 2018:

(1) An individual's weekly benefit amount shall be one-half of his or her average weekly wage rounded down to the nearest even whole dollar amount, but shall not exceed one-half of the state average weekly wage as annually determined under section 48-121.02;

(2) For purposes of this section, an individual's average weekly wage shall equal the wages paid for insured work in the highest quarter of the base period divided by thirteen; and

(3) Any change in the weekly benefit amounts prescribed in this section or in the maximum annual benefit amount prescribed in section 48-626 shall be applicable for the calendar year following the annual determination made pursuant to section 48-121.02.

Source:Laws 1937, c. 108, § 3, p. 375; Laws 1939, c. 56, § 2, p. 233; Laws 1941, c. 94, § 2, p. 381; C.S.Supp.,1941, § 48-703; R.S.1943, § 48-624; Laws 1945, c. 114, § 2, p. 371; Laws 1949, c. 163, § 1, p. 423; Laws 1951, c. 157, § 1, p. 630; Laws 1953, c. 168, § 1, p. 541; Laws 1955, c. 190, § 5, p. 542; Laws 1957, c. 209, § 1, p. 738; Laws 1959, c. 229, § 1, p. 802; Laws 1963, c. 291, § 1, p. 870; Laws 1965, c. 286, § 1, p. 819; Laws 1967, c. 299, § 1, p. 814; Laws 1969, c. 401, § 1, p. 1394; Laws 1971, LB 651, § 4; Laws 1972, LB 1391, § 1; Laws 1973, LB 333, § 1; Laws 1974, LB 775, § 1; Laws 1975, LB 475, § 1; Laws 1977, LB 337, § 1; Laws 1979, LB 183, § 1; Laws 1983, LB 524, § 1; Laws 1985, LB 216, § 1; Laws 1987, LB 446, § 1; Laws 1990, LB 315, § 1; Laws 1994, LB 286, § 2; Laws 1998, LB 225, § 1; Laws 2005, LB 739, § 5; Laws 2007, LB265, § 8; Laws 2017, LB172, § 25.

48-625. Benefits; weekly payment; how computed; suspension; conditions.

(1) Except as provided in subsection (4) of this section, each eligible individual who is unemployed in any week shall be paid with respect to such week a benefit in an amount equal to his or her full weekly benefit amount if he or she has wages payable to him or her with respect to such week equal to one-fourth of such benefit amount or less. In the event he or she has wages payable to him or her with respect to such week greater than one-fourth of such benefit amount, he or she shall be paid with respect to that week an amount equal to the individual's weekly benefit amount less that part of wages payable to the individual with respect to that week in excess of one-fourth of the individual's weekly benefit amount. In the event there is any deduction from such individual's weekly benefit amount because of earned wages pursuant to this subsection or as a result of the application of section 48-628.02, the resulting benefit payment, if not an exact dollar amount, shall be computed to the next lower dollar amount.

(2) Any amount of unemployment compensation payable to any individual for any week, if not an even dollar amount, shall be rounded to the next lower full dollar amount.

(3) The percentage of benefits and the percentage of extended benefits which are federally funded may be adjusted in accordance with the Balanced Budget and Emergency Deficit Control Act of 1985, Public Law 99-177.

(4) To the extent authorized under federal law, if an individual is eligible for an equal or greater weekly benefit amount under a federal unemployment program than the weekly benefit amount which the individual is eligible for under the Employment Security Law, the commissioner shall suspend the payment of state unemployment benefits to such individual while such individual is receiving the federal unemployment benefit. Such suspension shall terminate upon the individual's exhaustion of benefits available under the federal unemployment program. An individual shall not be eligible to receive the federal weekly benefit and the state unemployment weekly benefit during the same week. This subsection shall not apply to any federal unemployment benefit which is paid in addition to the state weekly benefit amount.

Source:Laws 1937, c. 108, § 3, p. 375; Laws 1939, c. 56, § 2, p. 234; Laws 1941, c. 94, § 2, p. 382; C.S.Supp.,1941, § 48-703; R.S.1943, § 48-625; Laws 1949, c. 163, § 8, p. 424; Laws 1953, c. 167, § 5, p. 531; Laws 1980, LB 800, § 2; Laws 1982, LB 801, § 1; Laws 1983, LB 248, § 3; Laws 1986, LB 950, § 2; Laws 1987, LB 461, § 1; Laws 1995, LB 1, § 6; Laws 1999, LB 608, § 3; Laws 2005, LB 739, § 8; Laws 2015, LB271, § 5; Laws 2017, LB172, § 26; Laws 2022, LB567, § 1.

48-626. Benefits; maximum annual amount; determination.

(1) For any benefit year beginning before July 21, 2022, any otherwise eligible individual shall be entitled during any benefit year to a total amount of benefits equal to whichever is the lesser of (a) twenty-six times his or her weekly benefit amount or (b) one-third of his or her wages in the employment of each employer per calendar quarter of his or her base period; except that when any individual has been separated from his or her employment with a base period employer under circumstances under which he or she was or could have been determined disqualified under section 48-628.10 or 48-628.12, the total benefit amount based on the employment from which he or she was so separated shall be reduced by an amount determined pursuant to subsection (2) of this section, but not more than one reduction may be made for each separation. In no event shall the benefit amount based on employment for any employer be reduced to less than one benefit week when the individual was or could have been determined disqualified under section 48-628.12.

(2) For purposes of determining the reduction of benefits described in subsection (1) of this section:

(a) If the claimant has been separated from his or her employment under circumstances under which he or she was or could have been determined disqualified under section 48-628.12, his or her total benefit amount shall be reduced by:

(i) Two times his or her weekly benefit amount if he or she left work voluntarily for the sole purpose of accepting previously secured, permanent, full-time, insured work, which he or she does accept, which offers a reasonable expectation of betterment of wages or working conditions, or both, and for which he or she earns wages payable to him or her; or

(ii) Thirteen times his or her weekly benefit amount if he or she left work voluntarily without good cause for any reason other than that described in subdivision (2)(a)(i) of this section; and

(b) If the claimant has been separated from his or her employment under circumstances under which he or she was or could have been determined disqualified under section 48-628.10, his or her total benefit amount shall be reduced by fourteen times his or her weekly benefit amount.

(3) For any benefit year beginning on or after July 21, 2022, any otherwise eligible individual shall be entitled during any benefit year to a total amount of benefits equal to whichever is the lesser of (a) twenty-six times his or her weekly benefit amount or (b) one-third of his or her wages in the employment of each employer per calendar quarter of his or her base period; except that when any individual has been separated from his or her employment with the most recent insured employer under circumstances under which he or she was or could have been determined disqualified under section 48-628.10 or 48-628.12, the total benefit amount based on the employment from which he or she was so separated shall be reduced by an amount determined pursuant to subsection (4) of this section, but not more than one reduction may be made for such separation. In no event shall the benefit amount based on employment for any employer be reduced to less than one benefit week when the individual was or could have been determined disqualified under section 48-628.12.

(4) For purposes of determining the reduction of benefits described in subsection (3) of this section:

(a) If the claimant has been separated from his or her employment under circumstances under which he or she was or could have been determined disqualified under section 48-628.12, his or her total benefit amount shall be reduced by thirteen times his or her weekly benefit amount if he or she left work voluntarily without good cause; and

(b) If the claimant has been separated from his or her employment under circumstances under which he or she was or could have been determined disqualified under section 48-628.10, his or her total benefit amount shall be reduced by fourteen times his or her weekly benefit amount.

(5) For purposes of sections 48-623 to 48-626, wages shall be counted as wages for insured work for benefit purposes with respect to any benefit year only if such benefit year begins subsequent to the date on which the employer by whom such wages were paid has satisfied the conditions of section 48-603 or subsection (3) of section 48-661 with respect to becoming an employer.

(6) In order to determine the benefits due under this section and sections 48-624 and 48-625, each employer shall make reports, in conformity with reasonable rules and regulations adopted and promulgated by the commissioner, of the wages of any claimant. If any employer fails to make such a report within the time prescribed, the commissioner may accept the statement of such claimant as to his or her wages, and any benefit payments based on such statement of earnings, in the absence of fraud or collusion, shall be final as to the amount.

Source:Laws 1937, c. 108, § 3, p. 375; Laws 1939, c. 56, § 2, p. 235; Laws 1941, c. 94, § 2, p. 382; C.S.Supp.,1941, § 48-703; R.S.1943, § 48-626; Laws 1945, c. 114, § 3, p. 372; Laws 1949, c. 163, § 9, p. 425; Laws 1959, c. 229, § 2, p. 802; Laws 1963, c. 291, § 2, p. 871; Laws 1967, c. 300, § 1, p. 816; Laws 1972, LB 1392, § 4; Laws 1980, LB 800, § 3; Laws 1985, LB 339, § 20; Laws 1986, LB 950, § 3; Laws 1995, LB 1, § 7; Laws 2017, LB172, § 27; Laws 2017, LB203, § 1; Laws 2022, LB567, § 2.

Annotations

The duration of maximum benefits is not affected by discharge for ordinary misconduct. Grand Island Baking Co. v. Frantz, 141 Neb. 803, 4 N.W.2d 921 (1942).

48-627. Benefits; eligibility conditions; availability for work; requirements.

An unemployed individual shall be eligible to receive benefits with respect to any week, only if the Commissioner of Labor finds:

(1) He or she has registered for work at an employment office, is actively searching for work, and thereafter reports at an employment office in accordance with such rules and regulations as the commissioner may adopt and promulgate. The commissioner may, by rule and regulation, waive or alter any of the requirements of this subdivision as to individuals attached to regular jobs and as to such other types of cases or situations if the commissioner finds that compliance with such requirements would be oppressive or inconsistent with the purposes of the Employment Security Law;

(2) He or she has made a claim for benefits in accordance with section 48-629;

(3)(a) He or she is able to work and is available for work.

(b) No individual, who is otherwise eligible, shall be deemed ineligible, or unavailable for work, because he or she is on vacation without pay during such week, if such vacation is not the result of his or her own action as distinguished from any collective action by a collective-bargaining agent or other action beyond his or her individual control, and regardless of whether he or she was notified of the vacation at the time of his or her hiring.

(c) An individual who is otherwise eligible shall not be deemed unavailable for work or failing to engage in an active work search solely because such individual is seeking part-time work if the majority of the weeks of work in an individual's base period include part-time work. For purposes of this subdivision, seeking only part-time work shall mean seeking less than full-time work having comparable hours to the individual's part-time work in the base period, except that the individual must be available for work at least twenty hours per week.

(d) Receipt of a non-service-connected total disability pension by a veteran at the age of sixty-five or more shall not of itself bar the veteran from benefits as not able to work.

(e) An otherwise eligible individual while engaged in a training course approved for him or her by the commissioner shall be considered available for work for the purposes of this section.

(f) An inmate sentenced to and in custody of a penal or custodial institution shall be considered unavailable for work for purposes of this section;

(4) He or she has been unemployed for a waiting period of one week. No week shall be counted as a week of unemployment for the purpose of this subdivision (a) unless it occurs within the benefit year, which includes the week with respect to which he or she claims payment of benefits, (b) if benefits have been paid with respect thereto, or (c) unless the individual was eligible for benefits with respect thereto, as provided in sections 48-627, 48-627.01, 48-628, and 48-628.02 to 48-628.12, except for the requirements of this subdivision; and

(5) He or she is participating in reemployment services at no cost to such individual as directed by the commissioner, such as job search assistance services, if the individual has been determined to be likely to exhaust regular benefits and to need reemployment services pursuant to a profiling system established by rule and regulation of the commissioner which is in compliance with section 303(j)(1) of the federal Social Security Act, unless the commissioner determines that:

(a) The individual has completed such services; or

(b) There is justifiable cause for the claimant's failure to participate in such services.

Source:Laws 1937, c. 108, § 4, p. 376; Laws 1939, c. 56, § 3, p. 235; Laws 1941, c. 94, § 3, p. 383; C.S.Supp.,1941, § 48-704; R.S.1943, § 48-627; Laws 1945, c. 115, § 3, p. 382; Laws 1949, c. 163, § 10, p. 425; Laws 1953, c. 167, § 6, p. 531; Laws 1955, c. 190, § 6, p. 543; Laws 1957, c. 209, § 2, p. 739; Laws 1959, c. 230, § 1, p. 804; Laws 1961, c. 241, § 1, p. 717; Laws 1963, c. 291, § 3, p. 872; Laws 1963, c. 292, § 1, p. 875; Laws 1971, LB 651, § 5; Laws 1973, LB 372, § 1; Laws 1977, LB 509, § 4; Laws 1981, LB 470, § 2; Laws 1985, LB 339, § 21; Laws 1987, LB 446, § 2; Laws 1987, LB 469, § 1; Laws 1988, LB 1033, § 2; Laws 1995, LB 1, § 8; Laws 1995, LB 240, § 1; Laws 1998, LB 225, § 2; Laws 2005, LB 484, § 5; Laws 2005, LB 739, § 9; Laws 2010, LB1020, § 3; Laws 2017, LB172, § 28; Laws 2017, LB203, § 2.

Annotations

Availability is required for eligibility to receive unemployment compensation benefits. Robinson v. Commissioner of Labor, 267 Neb. 579, 675 N.W.2d 683 (2004).

Without an order from the sentencing court granting the privilege to leave the jail for work, an inmate was not "available" for work under this section. Robinson v. Commissioner of Labor, 267 Neb. 579, 675 N.W.2d 683 (2004).

This section describes weekly requirements for continuing eligibility and does not address the reasons why a person became unemployed or threshold questions of eligibility. Ponderosa Villa v. Hughes, 224 Neb. 627, 399 N.W.2d 813 (1987).

A lump-sum severance allowance paid to a claimant is not to be prorated to the calendar quarters immediately following the date of payment in order to determine whether the monetary eligibility requirements of subdivision (e) of this section have been met. Sorensen v. Meyer, 220 Neb. 457, 370 N.W.2d 173 (1985).

The provision that a claimant earn a certain amount of wages during any benefit year and during each of two quarters thereof is intended to prevent a claimant from electing to simply collect unemployment benefits rather than work. Sorensen v. Meyer, 220 Neb. 457, 370 N.W.2d 173 (1985).

A professional symphony musician employed under a seasonal contract rather than an annual contract was entitled to unemployment benefits for the time he was unemployed during the symphony's "off season". Hanlon v. Boden, 209 Neb. 169, 306 N.W.2d 858 (1981).

Registration for work alone is not sufficient to show prima facie a right to benefits. Hunter v. Miller, 148 Neb. 402, 27 N.W.2d 638 (1947).

For purposes of section 48-628(7), a student is not "registered for full attendance" and therefore disqualified from receiving unemployment benefits if the student's educational program allows him or her to remain "available for work" pursuant to subdivision (3) of this section. Lecuona v. Cramer, 14 Neb. App. 770, 714 N.W.2d 786 (2006).

48-627.01. Benefits; monetary eligibility; earned wages; adjustment.

(1) In addition to the requirements of section 48-627, for any benefit year beginning on or after January 1, 2018, an unemployed individual shall be monetarily eligible to receive benefits if the commissioner finds he or she has:

(a) Earned total wages for employment by employers equal to not less than four thousand one hundred forty-five dollars and seventy-four cents within his or her base period. Of such total wages, at least one thousand eight hundred fifty dollars shall have been paid in one quarter in his or her base period and eight hundred dollars shall have been paid in a second quarter of his or her base period; and

(b) Earned wages in insured work of at least six times his or her weekly benefit amount for the previous benefit year subsequent to filing the claim which establishes the previous benefit year.

(2) Beginning on January 1, 2019, and each January 1 thereafter, the amount which an individual is required to earn within his or her base period under subdivision (1)(a) of this section shall be adjusted annually. The adjusted amount shall be equal to the then current amount adjusted by the cumulative percentage change in the Consumer Price Index for All Urban Consumers published by the Federal Bureau of Labor Statistics for the one-year period ending on the previous September 30. If such adjusted amount is not a whole dollar amount, the adjusted amount shall be rounded down to the nearest whole dollar amount.

(3) For purposes of this section:

(a) For the determination of monetary eligibility, wages paid within a base period shall not include wages from any calendar quarter previously used to establish a valid claim for benefits; and

(b) For benefit purposes, wages shall be counted as wages for insured work with respect to any benefit year only if such benefit year begins subsequent to the date on which the employer, by whom such wages were paid, has satisfied the conditions of section 48-603 or subsection (3) of section 48-661 with respect to becoming an employer.

Source:Laws 2017, LB172, § 29.

48-628. Benefits; conditions disqualifying applicant; exceptions.

(1) An individual shall be disqualified for benefits for any week of unemployment in which the commissioner finds he or she has failed, without good cause, to apply for available, suitable work when so directed by the employment office or the commissioner, to accept suitable work offered him or her, or to return to his or her customary self-employment, if any, and for the twelve weeks immediately thereafter. The total benefit amount to which he or she is then entitled shall be reduced by an amount equal to the number of weeks for which he or she has been disqualified by the commissioner.

(2) In determining whether or not any work is suitable for an individual, the commissioner shall consider the following:

(a) The degree of risk involved to the individual's health, safety, and morals;

(b) His or her physical fitness and prior training;

(c) His or her experience and prior earnings;

(d) His or her length of unemployment and prospects for securing local work in his or her customary occupation; and

(e) The distance of the available work from his or her residence.

(3) Notwithstanding any other provisions of the Employment Security Law, no work shall be deemed suitable and benefits shall not be denied under such law to any otherwise eligible individual for refusing to accept new work under any of the following conditions:

(a) If the position offered is vacant due directly to a strike, lockout, or other labor dispute;

(b) If the wages, hours, or other conditions of the work offered are substantially less favorable to the individual than those prevailing for similar work in the locality; or

(c) If, as a condition of being employed, the individual would be required to join a company union or to resign from or refrain from joining any bona fide labor organization.

(4) Notwithstanding any other provisions in this section relating to failure to apply for or a refusal to accept suitable work, no otherwise eligible individual shall be denied benefits with respect to any week in which he or she is in training with the approval of the commissioner.

(5) No individual shall be disqualified for refusing to apply for available, full-time work or accept full-time work under subsection (1) of this section solely because such individual is seeking part-time work if the majority of the weeks of work in an individual's base period include part-time work. For purposes of this subsection, seeking only part-time work shall mean seeking less than full-time work having comparable hours to the individual's part-time work in the base period, except that the individual must be available for work at least twenty hours per week.

Source:Laws 1937, c. 108, § 5, p. 377; Laws 1939, c. 56, § 4, p. 236; C.S.Supp.,1941, § 48-705; R.S.1943, § 48-628; Laws 1945, c. 114, § 4, p. 372; Laws 1955, c. 190, § 7, p. 545; Laws 1961, c. 241, § 2, p. 718; Laws 1965, c. 287, § 1, p. 821; Laws 1967, c. 301, § 1, p. 818; Laws 1969, c. 402, § 1, p. 1395; Laws 1971, LB 651, § 6; Laws 1975, LB 370, § 1; Laws 1976, LB 819, § 1; Laws 1977, LB 509, § 5; Laws 1978, LB 128, § 1; Laws 1979, LB 581, § 3; Laws 1980, LB 800, § 4; Laws 1981, LB 470, § 3; Laws 1982, LB 801, § 2; Laws 1983, LB 248, § 4; Laws 1983, LB 432, § 1; Laws 1984, LB 746, § 2; Laws 1985, LB 339, § 22; Laws 1985, LB 341, § 1; Laws 1987, LB 276, § 1; Laws 1987, LB 469, § 2; Laws 1989, LB 605, § 1; Laws 1991, LB 498, § 1; Laws 1992, LB 878, § 1; Laws 1994, LB 286, § 3; Laws 1994, LB 913, § 1; Laws 1995, LB 1, § 9; Laws 1995, LB 77, § 2; Laws 1995, LB 291, § 1; Laws 1995, LB 759, § 1; Laws 1996, LB 633, § 1; Laws 1998, LB 225, § 3; Laws 2000, LB 953, § 7; Laws 2001, LB 192, § 8; Laws 2002, LB 921, § 2; Laws 2005, LB 484, § 6; Laws 2005, LB 739, § 10; Laws 2010, LB1020, § 4; Laws 2017, LB172, § 30; Laws 2017, LB203, § 3.

Annotations

1. Eligibility for benefits

2. Voluntary termination of employment

3. Stoppage of work

4. Misconduct

5. Miscellaneous

1. Eligibility for benefits

In the circumstances of multiple employment, a decision to voluntarily leave part-time employment without good cause does not disqualify one from receiving full unemployment compensation benefits resulting from being laid off from one's full-time position. Fountain v. Hanlon, 214 Neb. 700, 335 N.W.2d 319 (1983).

When determining if an employee, discharged for violating a company rule forbidding company employees from having contact with prior employees, is to be disqualified from receiving benefits under this statute, it must be determined if the rule has a reasonable relationship to the employer's interest. Rule here held not to be so related to the employer's interest. Snyder Industries, Inc. v. Otto, 212 Neb. 40, 321 N.W.2d 77 (1982).

The disqualification of employees of educational institutions and professional athletes for unemployment benefits under this provision does not include professional symphony musicians. The provisions of the unemployment compensation act should be liberally construed in favor of those claiming benefits under it. Hanlon v. Boden, 209 Neb. 169, 306 N.W.2d 858 (1981).

Pursuant to subsection (5)(b) of this section, receipt of workers' compensation temporary disability benefits disqualifies a person from receiving unemployment benefits unless the amount of workers' compensation benefits is less than the amount recoverable for unemployment. In that situation, the individual is entitled to the difference. Hernandez v. JBS USA, 20 Neb. App. 634, 828 N.W.2d 765 (2013).

For purposes of subdivision (7) of this section, a student is not "registered for full attendance" and therefore disqualified from receiving unemployment benefits if the student's educational program allows him or her to remain "available for work" pursuant to section 48-627(3). Lecuona v. Cramer, 14 Neb. App. 770, 714 N.W.2d 786 (2006).

2. Voluntary termination of employment

In the context of subsection (1)(a) of this section, to leave work voluntarily means to sever the employment relationship with the intent not to return to, or to intentionally terminate, the employment. Lancaster Cty. Sch. Dist. No. 0001 v. State Dept. of Labor, 260 Neb. 108, 615 N.W.2d 441 (2000).

Pursuant to subsection (1)(a) of this section, a court will separately consider the circumstances under which each of multiple employments was terminated in determining the benefits against which the statutory disqualification shall apply. Lancaster Cty. Sch. Dist. No. 0001 v. State Dept. of Labor, 260 Neb. 108, 615 N.W.2d 441 (2000).

Pursuant to subsection (1)(a) of this section, a paraeducator comes within the scope of this statutory provision. Lancaster Cty. Sch. Dist. No. 0001 v. State Dept. of Labor, 260 Neb. 108, 615 N.W.2d 441 (2000).

Pursuant to subsection (1)(a) of this section, an employee has "good cause" for voluntarily leaving employment if the employee's decision to leave is prompted by a circumstance which has some justifiably reasonable connection with or relation to the conditions of the employment. Lancaster Cty. Sch. Dist. No. 0001 v. State Dept. of Labor, 260 Neb. 108, 615 N.W.2d 441 (2000).

For purposes of subsection (a)(1) of this section, an employee has not "left work voluntarily without good cause" when the employee voluntarily resigns from work but is subsequently terminated by the employer during the notice period. Dillard Dept. Stores v. Polinsky, 247 Neb. 821, 530 N.W.2d 637 (1995).

An employee who has engaged in no misconduct and who desires to keep his or her employment, but nonetheless resigns because the employer has clearly manifested that the employment will be terminated, has not left his or her employment "voluntarily," as that term is used in subsection (a)(1) of this section. Perkins v. Equal Opportunity Comm., 234 Neb. 359, 451 N.W.2d 91 (1990).

An employee has good cause for voluntarily leaving employment if the employee's decision to leave is prompted by a circumstance which has some justifiably reasonable connection with or relation to the conditions of the employment. Stackley v. State, 222 Neb. 767, 386 N.W.2d 884 (1986).

A change in work hours, absent some compelling circumstance, does not constitute good cause for leaving employment under subsection (a)(1) of this section. Montclair Nursing Center v. Wills, 220 Neb. 547, 371 N.W.2d 121 (1985).

Employee failed to meet burden of proof as to good cause of employment termination where employee failed to offer competent medical evidence to substantiate claim that her health would be affected by a change in work hours. Montclair Nursing Center v. Wills, 220 Neb. 547, 371 N.W.2d 121 (1985).

An employer acts within the meaning of subsection (a) of this section by removing duties after a job change due to the physical incapacity to carry out those particular duties. Norman v. Sorensen, 220 Neb. 408, 370 N.W.2d 147 (1985).

To leave work voluntarily means to intentionally terminate the employment, but such leaving is with good cause if it has some justifiably reasonable connection with or relation to the conditions of employment. McClemens v. United Parcel Serv., 218 Neb. 689, 358 N.W.2d 748 (1984).

The burden of proof is on the employee to show that he involuntarily left his employment or did so with good cause. Taylor v. Collateral Control Corp., 218 Neb. 432, 355 N.W.2d 788 (1984).

One is disqualified for benefits if, by leaving work voluntarily and without good cause, one thereby makes oneself unemployed. Each job and the facts of its termination must be considered separately with regard to disqualification for benefits. Gilbert v. Hanlon, 214 Neb. 676, 335 N.W.2d 548 (1983).

Evidence held to show that claimant left work voluntarily. To leave work voluntarily under this section means to intentionally sever the employment relationship with the intent not to return to, or to intentionally terminate, the employment. Gastineau v. Tomahawk Oil Co., Limited, 211 Neb. 537, 319 N.W.2d 107 (1982).

An employee who desires to retain his employment but resigns because the employer has clearly indicated that if he does not resign his employment will be terminated has not left his employment voluntarily. School Dist. No. 20 v. Commissioner of Labor, 208 Neb. 663, 305 N.W.2d 367 (1981).

A wife who voluntarily leaves her employment for the sole and only reason of being with her husband in another city does so without good cause and disqualifies herself as a claimant for unemployment benefits. Woodmen of the World Life Ins. Soc. v. Olsen, 141 Neb. 776, 4 N.W.2d 923 (1942).

An employee who leaves work voluntarily has the burden to prove that he or she left employment with good cause. Speedway Motors v. Commissioner of Labor, 1 Neb. App. 606, 510 N.W.2d 341 (1993).

3. Stoppage of work

A work stoppage cannot be determined solely on the basis of the proportionate number of employees affected. Bell Fed. Credit Union v. Christianson, 237 Neb. 519, 466 N.W.2d 546 (1991).

Depending on the facts of the case, various factors become relevant as to the determination of a work stoppage within the meaning of subsection (d) of this section. Bell Fed. Credit Union v. Christianson, 237 Neb. 519, 466 N.W.2d 546 (1991).

One disqualified from receiving benefits under subdivision (d) of this section can avoid continued disqualification if the employer fails to prove that for the week in question, the cause of work stoppage is the labor dispute. IBP, Inc. v. Aanenson, 234 Neb. 603, 452 N.W.2d 59 (1990).

No work stoppage occurred where workers' refusing to cross a picket line resulted in a four and nine-tenths percent loss in production, together with a two and nine-tenths percent loss of total work hours; there was no total operational shutdown at the plant; ninety-eight percent of the affected positions were filled by the end of the first week following the establishment of the picket line; and the company informed the Department of Labor that no work stoppage had occurred. George A. Hormel & Co. v. Hair, 229 Neb. 284, 426 N.W.2d 281 (1988).

One who is a member of the same grade or class of workers participating in a labor dispute is ineligible for unemployment compensation benefits. Laursen v. Kiewit Constr. Co., 223 Neb. 471, 390 N.W.2d 534 (1986).

Members of nonstriking unions and nonunion employees who are not participating in or financing or directly interested in a labor dispute which caused a work stoppage and who do not belong to a grade or class of workers who, immediately before the commencement of the stoppage, were members employed at the premises at which the stoppage occurs, and are participating in, financing, or directly interested in the labor dispute, are not disqualified from receiving benefits. An employee is not directly interested in a labor dispute within the meaning of this provision merely because the employee may obtain a benefit by reason of the labor dispute. Gilmore Constr. Co. v. Miller, 213 Neb. 133, 327 N.W.2d 628 (1982).

Disqualification for benefits exists when unemployment is due to stoppage of work because of a labor dispute. A. Borchman Sons v. Carpenter, 166 Neb. 322, 89 N.W.2d 123 (1958).

Where a labor dispute develops into a strike, causing a substantial stoppage of work in the business of the employer, the employees striking are not entitled to benefits under the Unemployment Compensation Act. Magner v. Kinney, 141 Neb. 122, 2 N.W.2d 689 (1942).

The term stoppage of work, as used in Unemployment Compensation Act, means a substantial curtailment of work in an employing establishment. Deshler Broom Factory v. Kinney, 140 Neb. 889, 2 N.W.2d 332 (1942).

4. Misconduct

An employee's actions do not rise to the level of misconduct if the individual is merely unable to perform the duties of the job. Meyers v. Nebraska State Penitentiary, 280 Neb. 958, 791 N.W.2d 607 (2010).

Under subsection (2) of this section, an individual shall be disqualified for unemployment benefits for misconduct related to his work. Meyers v. Nebraska State Penitentiary, 280 Neb. 958, 791 N.W.2d 607 (2010).

The degree of damage caused should not be a determining factor in whether an employee engaged in misconduct under subsection (2) of this section. Instead, the focus should be on the employee's culpability as demonstrated by his or her conduct and intentions. NEBCO, Inc. v. Murphy, 280 Neb. 145, 784 N.W.2d 447 (2010).

Misconduct has been defined, pursuant to this section, as behavior evidencing (1) wanton and willful disregard of the employer's interests, (2) deliberate violation of rules, (3) disregard of standards of behavior which the employer can rightfully expect from the employee, or (4) negligence which manifests culpability, wrongful intent, evil design, or intentional and substantial disregard of the employer's interests or of the employee's duties and obligations. Douglas Cty. Sch. Dist. 001 v. Dutcher, 254 Neb. 317, 576 N.W.2d 469 (1998).

In order for a violation of an employer's rule to constitute misconduct, the rule must bear a reasonable relationship to the employer's interests. Dolan v. Svitak, 247 Neb. 410, 527 N.W.2d 621 (1995).

Under subsection (b) of this section, conduct of a governmental employee which evinces a conscious and intentional disregard of standards of behavior which his or her governmental employer would have a right to expect from such employee constitutes misconduct in connection with the employee's employment, where continued employment would create a genuine threat to the integrity of the governmental employer and reflect unfavorably upon the governmental employer in the eyes of the general public. Poore v. City of Minden, 237 Neb. 78, 464 N.W.2d 791 (1991).

An employee who is discharged for misconduct may be disqualified from unemployment compensation benefits. Caudill v. Surgical Concepts, Inc., 236 Neb. 266, 460 N.W.2d 662 (1990).

The term "misconduct," as used in subsection (b) of this section, includes behavior that evidences wanton and willful disregard of the employer's interests; deliberate violations of rules; disregard of standards of behavior rightfully expected from the employee; or negligence which manifests culpability, wrongful intent, evil design, or intentional and substantial disregard of the employer's interests or of the employee's duties and obligations. Jensen v. Mary Lanning Memorial Hosp., 233 Neb. 66, 443 N.W.2d 891 (1989).

Where an employee has close personal contact with persons served by the employer, it is not unreasonable for the employer to require the employee to report to work without the odor of alcohol on his breath. Violation of the requirement, after warnings to the employee, is misconduct under subsection (b) of the statute. Jensen v. Mary Lanning Memorial Hosp., 233 Neb. 66, 443 N.W.2d 891 (1989).

Misconduct for which a disqualification from receiving unemployment benefits under subsection (b) of this section may result must be committed in connection with the employee's work. Failure to cooperate with an employer which is attempting to furnish a smoke-free environment by a good faith trial and error method constitutes misconduct in connection with the employee's work sufficient to disqualify the employee from receiving unemployment compensation benefits. Failure to furnish medical justification for prolonged absences from employment, when an employee has stated that such justification will be furnished, also constitutes sufficient misconduct in connection with the employee's work. Tuma v. Omaha Public Power Dist., 226 Neb. 19, 409 N.W.2d 306 (1987).

Misconduct for which a disqualification from receiving unemployment benefits may result must be committed in connection with the employee's work. Conduct of an employee in so acting as to create a situation where garnishments are filed with his or her employer is not "misconduct connected with his or her work" and therefore will not disqualify a discharged employee from receiving unemployment compensation benefits. Great Plains Container Co. v. Hiatt, 225 Neb. 558, 407 N.W.2d 166 (1987).

While absences due to illness may not constitute an employee's misconduct, an employee's chronic and excessive absenteeism demonstrates a wanton and willful disregard of the employer's interests for the purpose of this section. O'Keefe v. Tabitha, Inc., 224 Neb. 574, 399 N.W.2d 798 (1987).

Misconduct under subsection (b) of this section is defined as behavior which evidences (1) wanton and willful disregard of the employer's interests, (2) deliberate violation of rules, (3) disregard of standards of behavior which the employer can rightfully expect from the employee, or (4) negligence which manifests culpability, wrongful intent, evil design, or intentional and substantial disregard of the employer's interests or of the employee's duties and obligations. Smith v. Sorensen, 222 Neb. 599, 386 N.W.2d 5 (1986).

The falsifying of entries by an employee of his employer's work records constitutes misconduct. What constitutes misconduct is a fact question. In order for a violation of an employer's rules to constitute misconduct, it is necessary that the rule be a reasonable one. Smith v. Sorensen, 222 Neb. 599, 386 N.W.2d 5 (1986).

Misconduct within the meaning of this statute is a deliberate, willful, or wanton disregard of an employer's interest or of the standards of behavior which the employer has a right to expect of his employees, or carelessness or negligence of such a degree or recurrence as to manifest culpability, wrongful intent, or evil design. Barada v. Sorensen, 222 Neb. 391, 383 N.W.2d 799 (1986).

Excessive absences from work, except when excused or authorized by employment rules, may constitute misconduct. McCorison v. City of Lincoln, 215 Neb. 474, 339 N.W.2d 294 (1983).

Misconduct, under this section, is the deliberate, willful, or wanton disregard of an employer's interest or of the standards of behavior which the employer has a right to expect of his employees, or carelessness or negligence of such a degree or recurrence as to manifest culpability, wrongful intent, or evil design. Bristol v. Hanlon, 210 Neb. 37, 312 N.W.2d 694 (1981).

5. Miscellaneous

The language of subsection (5)(b) of this section in its current form does not include temporary total disability as a disqualifying event for the receipt of unemployment benefits. Memorial Hosp. of Dodge Cty. v. Porter, 251 Neb. 327, 557 N.W.2d 21 (1996).

In an appeal regarding disqualification under subsection (b) of this section, the Supreme Court retries factual questions de novo on the record and reaches conclusions independent of those reached by the district court. Jensen v. Mary Lanning Memorial Hosp., 233 Neb. 66, 443 N.W.2d 891 (1989).

Subsection (c) of this section disqualifies unemployed persons refusing suitable work from receiving benefits. This subsection does not apply to employed persons who reject demotions. Ponderosa Villa v. Hughes, 224 Neb. 627, 399 N.W.2d 813 (1987).

The correct inquiry in cases where an employed person refuses a demotion and quits is whether the employee left with or without good cause. Ponderosa Villa v. Hughes, 224 Neb. 627, 399 N.W.2d 813 (1987).

In an appeal regarding disqualification of benefits under this section, the Supreme Court retries factual questions de novo on the record and reaches conclusions independent of those reached by the district court. O'Keefe v. Tabitha, Inc., 224 Neb. 574, 399 N.W.2d 798 (1987).

The burden of proof under subsection (a)(1) of this section is upon the employee to show that he or she left his or her employment for good cause. Montclair Nursing Center v. Wills, 220 Neb. 547, 371 N.W.2d 121 (1985).

The requirement of subdivision (e) of this section, that a lump-sum severance allowance be prorated, is intended to prevent a claimant from receiving double payments for the same period of time in the form of unemployment benefits and severance compensation. Sorensen v. Meyer, 220 Neb. 457, 370 N.W.2d 173 (1985).

Subsection (c) of this section provides an employer with an additional reason for disqualification from benefits when a person refuses suitable work, and work is suitable when duties are excused upon the employee's showing of physical incapacity to perform the particular duties. Norman v. Sorensen, 220 Neb. 408, 370 N.W.2d 147 (1985).

Regular terms refers to definite period representing regular division of academic year and does not include six-week summer program. School Dist. No. 21 v. Ochoa, 216 Neb. 191, 342 N.W.2d 665 (1984).

"Good cause" as used herein does not include a mere disappointment at not being assigned to a particular job or task. Heimsoth v. Kellwood Co., 211 Neb. 167, 318 N.W.2d 1 (1982).

Up to the point of appeal to district court, interpretation and application of law to facts in each case is made by administrative agency. Beecham v. Falstaff Brewing Corporation, 150 Neb. 792, 36 N.W.2d 233 (1949).

The receipt of workers' compensation benefits for temporary total disability is not a disqualifying event for unemployment benefits. Memorial Hosp. of Dodge Cty. v. Porter, 4 Neb. App. 716, 548 N.W.2d 361 (1996).

48-628.01. Benefits; disqualification; receipt of other unemployment benefits.

An individual shall be disqualified for benefits for any week with respect to which, or a part of which, he or she has received or is seeking unemployment benefits under an unemployment compensation law of any other state or of the United States. If the appropriate agency of such other state or of the United States finally determines that he or she is not entitled to such unemployment benefits, the disqualification provided in this section shall not apply.

Source:Laws 2017, LB172, § 31.

48-628.02. Benefits; disqualification; receipt of other remuneration.

(1) An individual shall be disqualified for benefits for any week in which he or she is receiving or has received remuneration in the form of:

(a) Wages in lieu of notice or a dismissal or separation allowance;

(b) Vacation leave pay, including that received in a lump sum or upon separation from employment;

(c) Compensation for temporary disability under the workers’ compensation law of any state or under a similar law of the United States;

(d) Retirement or retired pay, pension, annuity, or other similar periodic payment under a plan maintained or contributed to by a base period or chargeable employer; or

(e) A gratuity or a bonus from an employer, paid after termination of employment, on account of prior length of service, or disability not compensated under the workers’ compensation law.

(2) Payments described in subsection (1) of this section that are made in a lump sum shall be prorated in an amount which is reasonably attributable to such week. If the prorated remuneration is less than the benefits which would otherwise be due, he or she shall be entitled to receive for such week, if otherwise eligible, benefits reduced by the amount of such remuneration. The prorated remuneration shall be considered wages for the quarter to which it is attributed.

(3) Military service-connected disability compensation payable under 38 U.S.C. chapter 11 and primary insurance benefits payable under Title II of the Social Security Act, as amended, or similar payments under any act of Congress shall not be deemed to be disqualifying or deductible from the benefit amount.

(4) No deduction shall be made for the part of any retirement pension which represents return of payments made by the individual. In the case of a transfer by an individual or his or her employer of an amount from one retirement plan to a second qualified retirement plan under the Internal Revenue Code, the amount transferred shall not be deemed to be received by the claimant until actually paid from the second retirement plan to the claimant.

(5) No deduction shall be made for any benefit received under a supplemental unemployment benefit plan described in subdivision (35)(g) of section 48-602.

(6) No deduction shall be made for any supplemental payments received by a claimant under the provisions of subsection (b) of section 408 of Title IV of the Veterans’ Readjustment Assistance Act of 1952.

Source:Laws 2017, LB172, § 32.

48-628.03. Benefits; disqualification; student.

(1) An individual shall be disqualified for benefits for any week of unemployment if such individual is a student unless the major portion of his or her wages for insured work during his or her base period was for services performed while attending school. Attendance at a school, college, or university for training purposes, under a plan approved by the commissioner for such individual, shall not be disqualifying.

(2) For purposes of this section, student means an individual who is registered for full-time status at and regularly attends an established school, college, university, training facility, or other educational institution or who is on vacation during or between two successive academic years or terms.

Source:Laws 2017, LB172, § 33.

48-628.04. Benefits; disqualification; alien.

(1) An individual shall be disqualified for unemployment benefits for any week if the services upon which such benefits are based are performed by an alien. This section shall apply unless such alien:

(a) Is an individual who was lawfully admitted for permanent residence at the time such services were performed;

(b) Was lawfully present for purposes of performing such services; or

(c) Was permanently residing in the United States under color of law at the time such services were performed, including an alien who was lawfully present in the United States as a result of the application of section 212(d)(5) of the Immigration and Nationality Act, 8 U.S.C. 1182(d)(5).

(2) Any data or information required of individuals applying for benefits to determine whether benefits are not payable to them because of their alien status shall be uniformly required from all applicants for benefits. In the case of an individual whose application for benefits would otherwise be approved, no determination that benefits to such individual are not payable because of his or her alien status shall be made except upon a preponderance of the evidence.

Source:Laws 2017, LB172, § 34.

48-628.05. Benefits; disqualification; sports or athletic events.

An individual shall be disqualified for unemployment benefits for any week if substantially all the services upon which such benefits are based consist of participating in sports or athletic events or training or preparing to so participate, if:

(1) Such week of unemployment begins during the period between two successive sport seasons or similar periods;

(2) Such individual performed such services in the first of such seasons or similar periods; and

(3) There is a reasonable assurance that such individual will perform such services in the later of such seasons or similar periods.

Source:Laws 2017, LB172, § 35.

48-628.06. Benefits; disqualification; educational institution.

An individual shall be disqualified for benefits for any week of unemployment if claimed benefits are based on services performed:

(1) In an instructional, research, or principal administrative capacity for an educational institution, if:

(a) Such week commences during the period between two successive academic years or terms, or when an agreement provides instead for a similar period between two regular, but not successive, terms during such period;

(b) Such individual performs such services in the first of such academic years or terms; and

(c) There is a contract or reasonable assurance that such individual will perform services in any such capacity for any educational institution in the second of such academic years or terms;

(2) In any other capacity for an educational institution, if such week commences during a period between two successive academic years or terms, such individual performs such services in the first of such academic years or terms, and there is a reasonable assurance that such individual will perform such services in the second of such academic years or terms. If benefits are denied to any individual for any week under this subdivision and such individual was not offered an opportunity to perform such services for the educational institution for the second of such academic years or terms, such individual shall be entitled to a retroactive payment of the benefits for each week for which the individual filed a timely claim for benefits and for which benefits were denied solely by reason of this subdivision;

(3) In any capacity described in subdivision (1) or (2) of this section in an educational institution while in the employ of an educational service agency, and such individual shall be disqualified as specified in subdivisions (1) and (2) of this section. As used in this subdivision, educational service agency means a governmental agency or governmental entity which is established and operated exclusively for the purpose of providing services to one or more educational institutions;

(4) In any capacity described in subdivision (1) or (2) of this section in an educational institution if such services are provided to or on behalf of the educational institution while in the employ of an organization or entity described in section 3306(c)(7) or 3306(c)(8) of the Federal Unemployment Tax Act, 26 U.S.C. 3306(c)(7) or (8), and such individual shall be disqualified as specified in subdivisions (1), (2), and (3) of this section; and

(5) In any capacity described in subdivision (1) or (2) of this section if such week commences during an established and customary vacation period or holiday recess if such individual performs such services in the period immediately before such vacation period or holiday recess, and there is a reasonable assurance that such individual will perform such services in the period immediately following such vacation period or holiday recess.

Source:Laws 2017, LB172, § 36.

48-628.07. Benefits; training.

(1) Notwithstanding any other provisions of the Employment Security Law, no otherwise eligible individual shall be denied benefits for any week because he or she is in training approved under section 236(a)(1) of the federal Trade Act of 1974, 19 U.S.C. 2296(a)(1). Such an individual shall not be denied benefits by reason of leaving work to enter such training if the work left is not suitable employment or because of the application to any such week in training of provisions of the Employment Security Law, or any applicable federal unemployment compensation law, relating to availability for work, active search for work, or refusal to accept work.

(2) For purposes of this section, suitable employment means, with respect to an individual, work of a substantially equal or higher skill level than the individual's past adversely affected employment, as defined for purposes of the federal Trade Act of 1974, and wages for such work at not less than eighty percent of the individual's average weekly wage as determined for purposes of such act.

Source:Laws 2017, LB172, § 37.

48-628.08. Benefits; disqualification; leave of absence.

An individual shall be disqualified for benefits for any week during which the individual is on a leave of absence.

Source:Laws 2017, LB172, § 38.

48-628.09. Benefits; disqualification; labor dispute.

(1) An individual shall be disqualified for benefits for any week with respect to which the commissioner finds that his or her total unemployment is due to a stoppage of work which exists because of a labor dispute at the factory, establishment, or other premises where he or she is or was last employed. This section shall not apply if it is shown to the satisfaction of the commissioner that:

(a) The individual is not participating in, financing, or directly interested in the labor dispute which caused the stoppage of work; and

(b) He or she does not belong to a grade or class of workers that includes members who, immediately before the commencement of the stoppage, were employed at the premises where the stoppage occurs and who are participating, financing, or directly interested in the dispute.

(2) If in any case, separate branches of work, which are commonly conducted as separate businesses in separate premises, are conducted in separate departments of the same premises, each such department shall, for purposes of this section, be deemed to be a separate factory, establishment, or other premises.

Source:Laws 2017, LB172, § 39.

48-628.10. Benefits; disqualification; discharge for misconduct.

(1) An individual shall be disqualified for benefits for the week in which he or she has been discharged for misconduct connected with his or her work, if so found by the commissioner, and for the fourteen weeks immediately thereafter.

(2) If the commissioner finds that the individual was discharged for misconduct that was not gross, flagrant, and willful or unlawful but which included being under the influence of any intoxicating beverage or any controlled substance listed in section 28-405 not prescribed by a physician licensed to practice medicine or surgery while the individual is on the worksite or while the individual is engaged in work for the employer, the commissioner shall cancel all wage credits earned as a result of employment with the discharging employer.

(3) If the commissioner finds that the individual’s misconduct was gross, flagrant, and willful, or was unlawful, the commissioner shall totally disqualify such individual from receiving benefits with respect to wage credits earned prior to discharge for such misconduct.

Source:Laws 2017, LB172, § 40.

Annotations

An employee who is discharged for refusing an employer's order to complete a task is discharged for misconduct only if the order refused was reasonable under the circumstances. Badawi v. Albin, 311 Neb. 603, 973 N.W.2d 714 (2022).

In a disputed claim for unemployment benefits, the employer bears the burden of proving an individual is disqualified from receiving benefits because he or she was discharged for misconduct. Badawi v. Albin, 311 Neb. 603, 973 N.W.2d 714 (2022).

Misconduct includes behavior which evidences (1) wanton and willful disregard of the employer's interests, (2) deliberate violation of rules, (3) disregard of standards of behavior which the employer can rightfully expect from the employee, or (4) negligence which manifests culpability, wrongful intent, evil design, or intentional and substantial disregard of the employer's interests or of the employee's duties and obligations. Badawi v. Albin, 311 Neb. 603, 973 N.W.2d 714 (2022).

48-628.11. Benefits; disqualification; multiple disqualifications for prohibited acts by employee.

An individual shall be disqualified for benefits for any week of unemployment benefits or for waiting week credit if he or she has been disqualified from the receipt of benefits pursuant to section 48-663.01 two or more times in the five-year period immediately prior to filing his or her most recent claim. This section shall not apply if the individual has repaid in full all overpayments established in conjunction with the disqualifications assessed under section 48-663.01 during that five-year period.

Source:Laws 2017, LB172, § 41.

48-628.12. Benefits; disqualification; leave work voluntarily without good cause.

An individual shall be disqualified for benefits:

(1) For any benefit year beginning before October 1, 2018:

(a) For the week in which he or she has left work voluntarily without good cause, if so found by the commissioner, and for the thirteen weeks immediately thereafter. For purposes of this subdivision, a temporary employee of a temporary help firm has left work voluntarily without good cause if the temporary employee does not contact the temporary help firm for reassignment upon completion of an assignment and the temporary employee has been advised by the temporary help firm of his or her obligation to contact the temporary help firm upon completion of assignments and has been advised by the temporary help firm that the temporary employee may be denied benefits for failure to do so; or

(b) For the week in which he or she has left work voluntarily for the sole purpose of accepting previously secured, permanent, full-time, insured work, if so found by the commissioner, and for the two weeks immediately thereafter. For this subdivision to apply, such work shall:

(i) Be accepted by the individual;

(ii) Offer a reasonable expectation of betterment of wages or working conditions, or both; and

(iii) Enable the individual to earn wages payable to him or her; or

(2) For any benefit year beginning on or after October 1, 2018, for the week in which he or she has left work voluntarily without good cause, if so found by the commissioner, and for all subsequent weeks until the individual has earned wages in insured work in an amount of at least four times his or her weekly benefit amount and has separated from the most recent subsequent employment under nondisqualifying conditions. For purposes of this subdivision, a temporary employee of a temporary help firm has left work voluntarily without good cause if the temporary employee does not contact the temporary help firm for reassignment upon completion of an assignment and the temporary employee has been advised by the temporary help firm of his or her obligation to contact the temporary help firm upon completion of assignments and has been advised by the temporary help firm that the temporary employee may be denied benefits for failure to do so.

Source:Laws 2017, LB172, § 42.

48-628.13. Good cause for voluntarily leaving employment, defined.

Good cause for voluntarily leaving employment shall include, but not be limited to, the following reasons:

(1) An individual has made all reasonable efforts to preserve the employment but voluntarily leaves his or her work for the necessary purpose of escaping abuse at the place of employment or abuse as defined in section 42-903 between household members;

(2) An individual left his or her employment voluntarily due to a bona fide non-work-connected illness or injury that prevented him or her from continuing the employment or from continuing the employment without undue risk of harm to the individual;

(3) An individual left his or her employment to accompany his or her spouse to the spouse's employment in a different city or new military duty station;

(4) An individual left his or her employment because his or her employer required the employee to relocate;

(5)(a) An individual is a construction worker and left his or her employment voluntarily for the purpose of accepting previously secured insured work in the construction industry if the commissioner finds that:

(i)(A) The quit occurred within thirty days immediately prior to the established termination date of the job which the individual voluntarily leaves, (B) the specific starting date of the new job is prior to the established termination date of the job which the worker quits, (C) the new job offered employment for a longer period of time than remained available on the job which the construction worker voluntarily quit, and (D) the worker had worked at least twenty days or more at the new job after the established termination date of the previous job unless the new job was terminated by a contract cancellation; or

(ii)(A) The construction worksite of the job which the worker quit was more than fifty miles from his or her place of residence, (B) the new construction job was fifty or more miles closer to his or her residence than the job which he or she quit, and (C) the worker actually worked twenty days or more at the new job unless the new job was terminated by a contract cancellation.

(b) The provisions of this subdivision (5) shall not apply if the individual is separated from the new job under conditions resulting in a disqualification from benefits under section 48-628.10 or 48-628.12;

(6) An individual accepted a voluntary layoff to avoid bumping another worker;

(7) An individual left his or her employment as a result of being directed to perform an illegal act;

(8) An individual left his or her employment because of unlawful discrimination or workplace harassment on the basis of race, sex, or age;

(9) An individual left his or her employment because of unsafe working conditions;

(10) An individual left his or her employment to attend school;

(11) An individual has made all reasonable efforts to preserve employment but voluntarily leaves employment for the purpose of caring for a family member with a serious health condition. For purposes of this subdivision:

(a) Family member means:

(i) A biological, adopted, or foster child, a stepchild, or a legal ward of the individual or the individual's spouse or a person to whom the individual or the individual's spouse stood in loco parentis when such person was a minor child, regardless of the age or dependency status of such child, stepchild, legal ward, or person;

(ii) A biological, adoptive, or foster parent, a stepparent, or a legal guardian of the individual or the individual's spouse or a person who stood in loco parentis to the individual or the individual's spouse when the individual or the individual's spouse was a minor child;

(iii) The individual's spouse; or

(iv) A grandparent, grandchild, or sibling, whether of a biological, foster, adoptive, or step relationship, of the individual or the individual's spouse; and

(b) Serious health condition has the same meaning as in 29 U.S.C. 2611, as such section existed on January 1, 2021; or

(12) Equity and good conscience demand a finding of good cause.

Source:Laws 2005, LB 739, § 7; R.S.1943, (2010), § 48-628.01; Laws 2017, LB172, § 43; Laws 2021, LB260, § 1.

48-628.14. Extended benefits; terms, defined; weekly extended benefit amount; payment of emergency unemployment compensation.

(1) As used in the Employment Security Law, unless the context otherwise requires:

(a) Extended benefit period means a period which begins with the third week after a week for which there is a state "on" indicator and ends with either of the following weeks, whichever occurs later: (i) The third week after the first week for which there is a state "off" indicator or (ii) the thirteenth consecutive week of such period, except that no extended benefit period may begin by reason of a state "on" indicator before the fourteenth week following the end of a prior extended benefit period which was in effect with respect to this state;

(b) Extended benefits means benefits, including benefits payable to federal civilian employees and to ex-servicemen or ex-servicewomen pursuant to 5 U.S.C. chapter 85, payable to an individual for weeks of unemployment in his or her eligibility period;

(c) Eligibility period of an individual means the period consisting of the weeks in his or her benefit year which begin in an extended benefit period and, if his or her benefit year ends within such extended benefit period, any weeks thereafter which begin in such period. Notwithstanding any other provision of the Employment Security Law, if the benefit year of any individual ends within an extended benefit period, the remaining balance of extended benefits that such individual would, but for this section, be entitled to receive in that extended benefit period, with respect to weeks of unemployment beginning after the end of the benefit year, shall be reduced, but not below zero, by the product of the number of weeks for which the individual received any amounts as trade readjustment allowances within that benefit year multiplied by the individual's weekly benefit amount for extended benefits;

(d) Exhaustee means an individual who, with respect to any week of unemployment in his or her eligibility period:

(i)(A) Has received, prior to such week, all of the regular benefits that were available to him or her under the Employment Security Law of this state or under the unemployment insurance law of any other state, including dependents' allowances and benefits payable to federal civilian employees and ex-servicemen or ex-servicewomen under 5 U.S.C. chapter 85, in his or her current benefit year that includes such week, except for the purposes of this subdivision, an individual shall be deemed to have received all of the regular benefits that were available to him or her although as a result of a pending appeal with respect to wages or employment or both wages and employment that were not considered in the original monetary determination in his or her benefit year, he or she may subsequently be determined to be entitled to added regular benefits; or (B) his or her benefit year having expired prior to such week, has no, or insufficient, wages or employment or both wages and employment on the basis of which he or she could establish a new benefit year that would include such week;

(ii) Has no right to unemployment benefits or allowances, as the case may be, under the Railroad Unemployment Insurance Act, the Trade Expansion Act of 1962, the Automotive Products Trade Act of 1965, and such other federal laws as are specified in regulations issued by the United States Secretary of Labor; and

(iii) Has not received and is not seeking unemployment benefits under the unemployment compensation law of Canada, but if he or she is seeking such benefits and the appropriate agency finally determines that he or she is not entitled to benefits under such law, he or she is considered an exhaustee;

(e) Rate of insured unemployment means the percentage, used by the commissioner in determining whether there is a state "on" or state "off" indicator, derived by dividing (i) the average weekly number of individuals filing claims for regular compensation under the Employment Security Law for weeks of unemployment with respect to the most recent thirteen-consecutive-week period, as determined by the commissioner on the basis of his or her reports to the United States Secretary of Labor, by (ii) the average monthly employment covered under the Employment Security Law for the first four of the most recent six completed calendar quarters ending before the end of such thirteen-week period;

(f) Regular benefits means benefits payable to an individual under the Employment Security Law of this state or under the unemployment insurance law of any other state, including benefits payable to federal civilian employees and to ex-servicemen or ex-servicewomen pursuant to 5 U.S.C. chapter 85, other than extended benefits;

(g) State "off" indicator means a week for which the commissioner determines that, for the period consisting of such week and the immediately preceding twelve weeks, neither subdivision (1)(h)(i) or (1)(h)(ii) of this section was satisfied; and

(h) State "on" indicator means a week for which the commissioner determines that, for the period consisting of such week and the immediately preceding twelve weeks, the rate of insured unemployment, not seasonally adjusted, under the Employment Security Law: (i) Equaled or exceeded one hundred twenty percent of the average of such rates for the corresponding thirteen-week period ending in each of the preceding two calendar years and equaled or exceeded five percent or (ii) equaled or exceeded six percent.

(2) Except when the result would be inconsistent with the other provisions of this section, as provided in the rules and regulations of the commissioner, the provisions of the Employment Security Law which apply to claims for or payment of regular benefits shall apply to claims for and payment of extended benefits. An individual shall be eligible to receive extended benefits with respect to any week of unemployment in his or her eligibility period only if the commissioner finds that with respect to such week:

(a) Such individual is an exhaustee;

(b) Such individual has satisfied the requirements of the Employment Security Law for the receipt of regular benefits that are applicable to individuals claiming extended benefits, including not being subject to a disqualification for the receipt of benefits;

(c) Sections 48-628.15 and 48-628.16 do not apply; and

(d) Such individual has been paid wages for insured work during the individual's base period equal to at least one and one-half times the wages paid in that calendar quarter of the individual's base period in which such wages were highest.

(3) The weekly extended benefit amount payable to an individual for a week of total unemployment in his or her eligibility period shall be an amount equal to the weekly benefit amount payable to him or her during his or her applicable benefit year. The total extended benefit amount payable to any eligible individual with respect to his or her applicable benefit year shall be the least of the following amounts:

(a) Fifty percent of the total amount of regular benefits which were payable to him or her under the Employment Security Law in his or her applicable benefit year; or

(b) Thirteen times his or her weekly benefit amount which was payable to him or her under the Employment Security Law for a week of total unemployment in the applicable benefit year.

(4) Whenever an extended benefit period is to become effective in this state as a result of a state "on" indicator or an extended benefit period is to be terminated in this state as a result of a state "off" indicator, the commissioner shall make an appropriate public announcement. Computations required to determine the rate of insured unemployment shall be made by the commissioner in accordance with regulations prescribed by the United States Secretary of Labor. Any amount of extended benefits payable to any individual for any week, if not an even dollar amount, shall be rounded to the next lower full dollar amount.

(5) Notwithstanding any other provision of the Employment Security Law, during an extended benefit period, the Governor may provide for the payment of emergency unemployment compensation pursuant to Public Law 110-252, as amended, or any substantially similar federal unemployment compensation paid entirely from federal funds to individuals prior to the payment of extended benefits pursuant to this section and sections 48-628.15 and 48-628.16.

Source:Laws 1971, LB 651, § 7; Laws 1972, LB 1392, § 5; Laws 1977, LB 509, § 6; Laws 1979, LB 581, § 4; Laws 1981, LB 470, § 4; Laws 1982, LB 801, § 3; Laws 1984, LB 746, § 3; Laws 1985, LB 339, § 23; Laws 2010, LB1055, § 1; R.S.1943, (2010), § 48-628.02; Laws 2017, LB172, § 44.

48-628.15. Extended benefits; eligibility; seek or accept suitable work; suitable work, defined.

(1) An individual shall be ineligible for payment of extended benefits for any week of unemployment in his or her eligibility period if the commissioner finds that during such period (a) he or she failed to accept any offer of suitable work or failed to apply for any suitable work to which he or she was referred by the commissioner or (b) he or she failed to actively engage in seeking work as prescribed under subsection (5) of this section.

(2) Any individual who has been found ineligible for extended benefits by reason of subsection (1) of this section shall also be denied benefits beginning with the first day of the week following the week in which such failure occurred and until he or she (a) has been employed in each of four subsequent weeks, whether or not consecutive, and (b) has earned remuneration equal to not less than four times the extended weekly benefit amount.

(3) For purposes of this section, the term suitable work means, with respect to any individual, any work which is within such individual's capabilities and for which the gross average weekly remuneration payable for the work exceeds the sum of the individual's average weekly benefit amount payable to him or her during his or her applicable benefit year, plus the amount, if any, of supplemental unemployment compensation benefits as defined in section 501(c)(17)(D) of the Internal Revenue Code payable to such individual for such week. Such work must also pay wages equal to the higher of the federal minimum wage or the applicable state or local minimum wage. No individual shall be denied extended benefits for failure to accept an offer or referral to any job which meets the definition of suitability contained in this subsection if (a) the position was not offered to such individual in writing or was not listed with the employment service, (b) such failure could not result in a denial of benefits under the definition of suitable work for regular benefit claimants in section 48-628, to the extent that the criteria of suitability in that section are not inconsistent with the provisions of this subsection, or (c) the individual furnishes satisfactory evidence to the commissioner that his or her prospects for obtaining work in his or her customary occupation within a reasonably short period are good. If such evidence is deemed satisfactory for this purpose, the determination of whether any work is suitable with respect to such individual shall be made in accordance with the definition of suitable work in section 48-628 without regard to the definition specified by this subsection.

(4) Notwithstanding the provisions of subsection (3) of this section to the contrary, no work shall be deemed to be suitable work for an individual which does not accord with the labor standard provisions set forth under subsection (3) of section 48-628, nor shall an individual be denied benefits if such benefits would not be deniable by reason of subsection (4) of section 48-628.

(5) For the purposes of subsection (1) of this section, an individual shall be treated as actively engaged in seeking work during any week if the individual has engaged in a systematic and sustained effort to obtain work during such week and the individual furnishes tangible evidence that he or she has engaged in such effort during such week.

(6) The state employment service shall refer any claimant entitled to extended benefits under this section to any suitable work which meets the criteria prescribed in subsection (3) of this section.

(7) An individual shall not be eligible to receive extended benefits with respect to any week of unemployment in his or her eligibility period if such individual has been disqualified for benefits under section 48-628, 48-628.10, or 48-628.12 unless such individual has earned wages for services performed in subsequent employment in an amount not less than four hundred dollars.

Source:Laws 1981, LB 470, § 5; Laws 1982, LB 801, § 4; Laws 1993, LB 47, § 1; Laws 1995, LB 1, § 10; Laws 1995, LB 574, § 53; Laws 2000, LB 953, § 8; Laws 2010, LB1055, § 2; R.S.1943, (2010), § 48-628.03; Laws 2017, LB172, § 45.

48-628.16. Extended benefits; payments not required; when.

(1) Except as provided in subsection (2) of this section, payment of extended benefits shall not be made to any individual for any week if (a) extended benefits would, but for this section, have been payable for such week pursuant to an interstate claim filed in any state under the interstate benefit payment plan, and (b) an extended benefit period is not in effect for such week in such state.

(2) Subsection (1) of this section shall not apply with respect to the first two weeks for which extended benefits are payable, determined without regard to this section, pursuant to an interstate claim filed under the interstate benefit payment plan to the individual from the extended benefit account established for the benefit year.

Source:Laws 1981, LB 470, § 6; R.S.1943, (2010), § 48-628.04; Laws 2017, LB172, § 46.

48-628.17. Additional unemployment benefits; conditions; amount; when benefits payable.

(1) In addition to any other unemployment benefits to which an individual is entitled under the Employment Security Law, an individual who has exhausted all regular unemployment benefits for which he or she has been determined eligible shall continue to be eligible for up to twenty-six additional weeks of unemployment benefits if such individual:

(a)(i) Was involuntarily separated from employment as a result of a permanent reduction of operations at the individual's place of employment or (ii) is unemployed as the result of a separation from a declining occupation;

(b) Is enrolled and making satisfactory progress in a (i) training program approved for him or her by the commissioner or (ii) job training program authorized under the federal Workforce Innovation and Opportunity Act, as amended;

(c) Is receiving training which is preparing the individual for entry into a high-demand occupation;

(d) Is enrolled in training no later than the end of the benefit year established with respect to the separation that makes the individual eligible for the training benefit. Individuals shall be notified of the enrollment requirement at the time of their initial determination of eligibility for regular benefits; and

(e) Is not receiving similar stipends or other training allowances for nontraining costs. Similar stipend means an amount provided under a program with similar aims, such as providing training to increase employability, and in approximately the same amounts.

(2) The amount of unemployment benefits payable to an individual for a week of unemployment under this section shall be equal to the amount of unemployment benefits which he or she has been determined eligible for under section 48-624 less any deductions or offsets authorized under the Employment Security Law.

(3) If an individual begins to receive unemployment benefits under this section while enrolled in a training program described in subsection (1) of this section during a benefit year, such individual shall continue to receive such benefits so long as he or she continues to make satisfactory progress in such training program, except that such benefits shall not exceed twenty-six times the individual's weekly benefit amount for the most recent benefit year as determined under section 48-624.

(4) No benefits shall be payable under this section until the individual has exhausted all (a) regular unemployment benefits, (b) extended benefits as defined in subdivision (1)(b) of section 48-628.14, and (c) unemployment benefits paid entirely from federal funds to which he or she is entitled, including, but not limited to, trade readjustment assistance, emergency unemployment compensation, or other similar federally funded unemployment benefits.

(5) For purposes of this section, regular unemployment benefits means all unemployment benefits for which an individual is eligible payable under sections 48-624 to 48-626, extended unemployment benefits payable under section 48-628.14, and any unemployment benefits funded solely by the federal government.

Source:Laws 2010, LB1020, § 5; R.S.1943, (2010), § 48-628.05; Laws 2017, LB172, § 47.

48-629. Claims; rules and regulations for filing.

Claims for benefits shall be made in accordance with such rules and regulations as the commissioner may adopt and promulgate. Each employer shall post and maintain printed statements of such rules and regulations in places readily accessible to individuals in his or her service and shall make available to each such individual, at the time he or she becomes unemployed, a printed statement of such rules and regulations. Such printed statements shall be supplied by the commissioner to each employer without cost to the employer.

Source:Laws 1937, c. 108, § 6, p. 378; Laws 1941, c. 94, § 4, p. 384; C.S.Supp.,1941, § 48-706; R.S.1943, § 48-629; Laws 1985, LB 339, § 24; Laws 2017, LB172, § 48.

Annotations

Claims for benefits were filed under this section. A. Borchman Sons v. Carpenter, 166 Neb. 322, 89 N.W.2d 123 (1958).

48-629.01. Claims; advisement to claimant; amounts deducted; how treated.

(1) An individual filing a new claim for unemployment compensation shall, at the time of the filing of such claim, be advised that:

(a) Unemployment compensation is subject to federal and state income tax;

(b) Requirements exist pertaining to estimated tax payments;

(c) The individual may elect to have federal income tax withheld from the individual's payment of unemployment compensation at the amount specified in the Internal Revenue Code;

(d) The individual may elect to have state income tax withheld from the individual's payment of unemployment compensation at the rate of five percent; and

(e) The individual shall be permitted to change a previously elected withholding status.

(2) Amounts deducted and withheld from unemployment compensation for federal income tax purposes shall remain in the Unemployment Compensation Fund until transferred to the federal Internal Revenue Service as a payment of income tax. Amounts deducted and withheld from unemployment compensation for state income tax purposes shall remain in the Unemployment Compensation Fund until transferred to the Department of Revenue as a payment of income tax.

(3) The commissioner shall follow all procedures specified by the United States Department of Labor and the federal Internal Revenue Service pertaining to the deducting and withholding of income tax.

(4) Amounts shall be deducted and withheld under this section only after amounts are deducted and withheld for any overpayments of unemployment compensation, child support obligations, or any other amounts required to be withheld under the Employment Security Law.

Source:Laws 1996, LB 1072, § 2; Laws 2017, LB172, § 49.

48-630. Claims; determinations by adjudicator.

(1) A determination upon a claim filed pursuant to section 48-629 shall be made promptly by a representative designated by the commissioner, hereinafter referred to as an adjudicator.

(2) A determination shall include a statement as to whether and in what amount claimant is entitled to benefits for the week with respect to which the determination is made. A determination with respect to the first week of a benefit year shall also include a statement as to whether the claimant has been paid the wages required under section 48-627.01, and, if so, the first day of the benefit year, his or her weekly benefit amount, and the maximum total amount of benefits payable to him or her with respect to such benefit year. Whenever any claim involves the application of the provisions of section 48-628.09, the adjudicator shall promptly transmit his or her full findings of fact, with respect to such section, to the commissioner, who, on the basis of the evidence submitted and such additional evidence as he or she may require, shall affirm, modify, or set aside such findings of fact and transmit to the adjudicator a decision upon the issue involved under such section, which shall be deemed to be the decision of the adjudicator. All claims arising out of the same alleged labor dispute may be considered at the same time.

(3) In the event a claim is denied, a determination shall state the reasons therefor. Regardless of the outcome, the parties shall be promptly notified of the determination, together with the reasons therefor, and such determination shall be deemed to be the final decision on the claim, unless an appeal is filed with the department in the manner prescribed in section 48-634.

(4) Any benefits for which a claimant has been found eligible shall not be withheld because of an appeal filed under section 48-634, and such benefits shall be paid until a hearing officer has rendered a decision modifying or reversing the determination allowing such benefits if the claimant is otherwise eligible. Any benefits received by any person to which he or she had been found not entitled, under a redetermination or decision pursuant to sections 48-630 to 48-638, shall be treated as erroneous payments in accordance with section 48-665.

Source:Laws 1937, c. 108, § 6, p. 379; Laws 1941, c. 94, § 4, p. 384; C.S.Supp.,1941, § 48-706; R.S.1943, § 48-630; Laws 1969, c. 403, § 1, p. 1399; Laws 1972, LB 1392, § 6; Laws 1985, LB 338, § 1; Laws 1995, LB 1, § 11; Laws 1995, LB 240, § 2; Laws 2012, LB1058, § 1; Laws 2017, LB172, § 50.

Annotations

Deputy commissioner of labor is agent who is required initially to make determination of case. Beecham v. Falstaff Brewing Corporation, 150 Neb. 792, 36 N.W.2d 233 (1949).

48-631. Claims; redetermination; time; notice; appeal.

(1) The adjudicator may reconsider a determination if he or she finds that:

(a) An error in computation or identity has occurred in connection with the determination;

(b) Wages of the claimant pertinent to such determination, but not considered in connection therewith, have been newly discovered; or

(c) Benefits have been allowed or denied or the amount of benefits has been set based on misrepresentations of fact.

(2) No such redetermination shall be made after two years from the date of the original determination.

(3) Notice of any redetermination shall be promptly given to the parties entitled to notice of the original determination, in the manner prescribed in section 48-630 with respect to notice of an original determination.

(4) If the amount of benefits is increased or decreased by a redetermination, an appeal therefrom may be filed solely with respect to the matters involved in such increase or decrease in the manner and subject to the limitations provided in section 48-634. Subject to the same limitations and for the same reasons, the Commissioner of Labor may reconsider the determination, in any case in which the final decision has been rendered by a hearing officer or a court, and may apply to the hearing officer or court which rendered such final decision to issue a revised decision. In the event that an appeal involving an original determination is pending as of the date a redetermination is issued, such appeal, unless withdrawn, shall be treated as an appeal of the redetermination.

Source:Laws 1941, c. 94, § 4, p. 385; C.S.Supp.,1941, § 48-706; R.S.1943, § 48-631; Laws 1961, c. 238, § 5, p. 711; Laws 2011, LB11, § 1; Laws 2017, LB172, § 51.

48-632. Claims; determination; notice; persons entitled; employer; rights; duties.

(1) Notice of a determination upon a claim shall be promptly given to the claimant by electronic notice or by mailing such notice to his or her last-known address. A claimant shall elect to receive either electronic notice or mailed notice when he or she files a new claim or establishes a new benefit year. A claimant may change his or her election at any time. In addition, notice of any determination, together with the reasons therefor, shall be promptly given in the same manner to any employer from whom the claimant received wages on or after the first day of the base period for his or her most recent claim if such employer has indicated prior to the determination, in such manner as required by rule and regulation of the commissioner, that such individual may be ineligible or disqualified under any provision of the Employment Security Law. An employer shall provide information to the department in respect to the request for information within ten days after the mailing or electronic transmission of a request.

(2) If the employer provided information pursuant to subsection (6) of section 48-652 on the claim establishing the previous benefit year but did not receive a determination because of no involvement of base period wages and there are wages from that employer in the base period for the most recent claim, the employer shall be provided the opportunity to provide new information that such individual may be ineligible or disqualified under any provision of the Employment Security Law on the current claim. This subsection shall not apply to employers who did not receive a determination because the separation was determined to result from a lack of work.

(3) If an employer fails to provide information to the department within the time period specified in subsection (1) of this section, the employer shall forfeit any appeal rights otherwise available pursuant to section 48-634.

Source:Laws 1941, c. 94, § 4, p. 385; C.S.Supp.,1941, § 48-706; R.S.1943, § 48-632; Laws 1985, LB 339, § 25; Laws 2012, LB1058, § 2; Laws 2017, LB172, § 52; Laws 2017, LB203, § 4.

48-633. Repealed. Laws 2012, LB 1058, § 17.

48-634. Administrative appeal; notice; time allowed; hearing; parties.

(1) The claimant or any other party entitled to notice of a determination as provided in section 48-632 may file an appeal from such determination with the department.

(2) An appeal must be in writing or in accordance with rules and regulations adopted and promulgated by the commissioner and must be delivered and received within twenty days after the date of mailing of the notice of determination to the parties' last-known address or, if such notice is not mailed, after the date of delivery of such notice of determination, except that for good cause shown an appeal filed outside the prescribed time period may be heard.

(3) In accordance with section 303 of the federal Social Security Act, 42 U.S.C. 503, the commissioner shall provide the opportunity for a fair hearing before an impartial hearing officer on each appeal.

(4) Unless the appeal is withdrawn, a hearing officer, after affording the parties reasonable opportunities for a fair hearing, shall make findings and conclusions and on the basis thereof affirm, modify, or reverse such determination.

(5) If an appeal involves a question as to whether services were performed by the claimant in employment or for an employer, a hearing officer shall give special notice of such issue and of the pendency of the appeal to the employer and to the commissioner, both of whom shall be parties to the proceeding and be afforded a reasonable opportunity to adduce evidence bearing on such question.

(6) The parties shall be promptly notified of a hearing officer's decision and shall be furnished with a copy of the decision and the findings and conclusions in support of the decision.

(7) The commissioner shall be a party entitled to notice in any proceeding involving a claim for benefits before a hearing officer.

Source:Laws 1941, c. 94, § 4, p. 386; C.S.Supp.,1941, § 48-706; R.S.1943, § 48-634; Laws 1979, LB 328, § 1; Laws 1995, LB 239, § 1; Laws 2001, LB 192, § 10; Laws 2012, LB1058, § 3; Laws 2017, LB172, § 53.

Annotations

Before appeal tribunal of Labor Department may take jurisdiction over appeal filed beyond limitation date for newly discovered evidence, appellant must demonstrate new evidence would make a valid claim or defense. Nicholson v. City of Bellevue, 215 Neb. 540, 339 N.W.2d 758 (1983).

A notice of appeal filed pursuant to this section, which is properly addressed and to which sufficient postage has been affixed, shall be valid if it is deposited in the United States mail within ten days after the mailing of the notice of the deputy's determination. Parson v. Chizek, 201 Neb. 754, 272 N.W.2d 48 (1978).

Administrative appeal within division is provided. A. Borchman Sons v. Carpenter, 166 Neb. 322, 89 N.W.2d 123 (1958).

48-635. Administrative appeal; procedure; rules of evidence; record.

(1) The presentation of disputed claims and the conduct of hearings and appeals shall be in accordance with the rules and regulations adopted and promulgated by the commissioner for determining the rights of the parties, whether or not such rules and regulations conform to common-law or statutory rules of evidence and other technical rules of procedure.

(2) A full and complete record shall be kept of all proceedings in connection with the disputed claims.

(3) All testimony at any hearing upon a disputed claim shall be recorded, but need not be transcribed unless the disputed claim is further appealed.

Source:Laws 1937, c. 108, § 6, p. 380; Laws 1941, c. 94, § 4, p. 387; C.S.Supp.,1941, § 48-706; R.S.1943, § 48-635; Laws 1985, LB 339, § 26; Laws 2017, LB172, § 54.

48-636. Administrative appeal; decision; conclusiveness.

Except insofar as reconsideration of any determination is had under sections 48-630 to 48-632, any right, fact, or matter in issue, directly passed upon or necessarily involved in a determination or redetermination which has become final, or in a decision on appeal which has become final, shall be conclusive for all the purposes of the Employment Security Law as between the Commissioner of Labor, the claimant, and all employers who had notice of such determination, redetermination, or decision. Subject to appeal proceedings and judicial review as provided in sections 48-634 to 48-644, any determination, redetermination, or decision as to rights to benefits shall be conclusive for all the purposes of such law and shall not be subject to collateral attack by any employer.

Source:Laws 1941, c. 94, § 4, p. 387; C.S.Supp.,1941, § 48-706; R.S.1943, § 48-636; Laws 1953, c. 167, § 7, p. 533; Laws 1985, LB 339, § 27; Laws 2012, LB1058, § 4.

Annotations

A determination made pursuant to the Employment Security Law is conclusive only for the purpose of proceedings governed by the Employment Security Law. Ballard v. Giltner Pub. Sch., 241 Neb. 970, 492 N.W.2d 855 (1992).

Denial of unemployment compensation benefits on ground of employee misconduct was not res judicata precluding employee's action for breach of employment contract. A determination made pursuant to Employment Security Law is conclusive only for purpose of proceedings governed by Employment Security Law. Ballard v. Giltner Public Schools, School District No. 2, Hamilton County, 241 Neb. 970, 492 N.W.2d 855 (1992).

Administrative law judge's decision reversing finding at initial unemployment determination that employees were guilty of willful intentional misconduct was not entitled to res judicata effect in employees' subsequent action against their employer challenging their discharge. White v. Ardan, Inc., 230 Neb. 11, 430 N.W.2d 27 (1988).

48-637. Administrative appeal; decision; effect in subsequent proceeding; certification of question.

The final decisions of a hearing officer and the principles of law declared by him or her in arriving at such decisions, unless expressly or impliedly overruled by a later decision of a hearing officer or by a court of competent jurisdiction, shall be binding upon the commissioner and any adjudicator in subsequent proceedings which involve similar questions of law, except that if in connection with any subsequent proceeding the commissioner or an adjudicator has serious doubt as to the correctness of any principle so declared, he or she may certify his or her findings of fact in such case together with the question of law involved to a hearing officer who, after giving notice and reasonable opportunity for hearing upon the law to all parties to such proceedings, shall thereupon certify to the commissioner, such adjudicator, and such parties his or her answer to the question submitted. If the question thus certified to a hearing officer arises in connection with a claim for benefits, a hearing officer in his or her discretion may remove to himself or herself the entire proceedings on such claim and, after proceeding in accordance with the requirements of sections 48-634 to 48-643 with respect to proceedings before a hearing officer, shall render his or her decision upon the entire claim.

Source:Laws 1941, c. 94, § 4, p. 387; C.S.Supp.,1941, § 48-706; R.S.1943, § 48-637; Laws 2012, LB1058, § 5; Laws 2017, LB172, § 55.

Annotations

Provision is made for appeal to district court from determination of appeal tribunal. Beecham v. Falstaff Brewing Corporation, 150 Neb. 792, 36 N.W.2d 233 (1949).

48-638. Appeal to district court; procedure.

(1) Any party to the proceedings before a hearing officer may appeal the hearing officer's decision by filing a petition (a) in the district court of the county in which the individual claiming benefits claims to have been last employed or in which such claimant resides, (b) in any district court of this state upon which the parties may agree, or (c) if neither subdivision (1)(a) or (b) of this section applies, then in the district court of Lancaster County.

(2) If the commissioner is not the petitioning party, he or she shall be a party defendant in every appeal. Such appeal shall otherwise be governed by the Administrative Procedure Act.

(3) An appeal may be taken from the decision of the district court to the Court of Appeals in accordance with the Administrative Procedure Act.

(4) No bond shall be required as a condition of initiating a proceeding for judicial review or entering an appeal from the decision of the court upon such review. Costs which would be otherwise taxed to a claimant shall be taxed in such courts to the commissioner regardless of the result of the action unless justice and equity otherwise require. Notwithstanding any general statute to the contrary, no filing fee shall be charged by a hearing officer or by the clerk of any court for any service required by sections 48-634 to 48-638.

(5) In any proceeding for judicial review pursuant to this section, the commissioner may be represented by any qualified attorney employed and designated by the commissioner for that purpose or, at the commissioner's request, by the Attorney General.

Source:Laws 1941, c. 94, § 4, p. 388; C.S.Supp.,1941, § 48-706; R.S.1943, § 48-638; Laws 1945, c. 115, § 4, p. 384; Laws 1957, c. 208, § 4, p. 731; Laws 1979, LB 328, § 2; Laws 1986, LB 950, § 4; Laws 1988, LB 352, § 85; Laws 1996, LB 1072, § 4; Laws 2017, LB172, § 56.

Cross References

Administrative Procedure Act, see section 84-920.

Annotations

In an appeal to the district court under this section by the Commissioner of Labor the filing of the transcript required by the statute is not jurisdictional. The transcript filing requirement in this section is distinguishable from that in an error proceeding because it applies only to the commissioner, review in the district court is de novo, and the statute permits the introduction of additional evidence in the review proceeding. Sorensen v. Bernhardt, 223 Neb. 395, 389 N.W.2d 583 (1986).

The Employment Security Law provides one avenue of judicial appeal when the dispute concerns benefit liability and another when the dispute concerns contribution liability. Northern Messenger v. Sorensen, 218 Neb. 846, 359 N.W.2d 787 (1984).

Appeal from decision of appeal tribunal is provided. A. Borchman Sons v. Carpenter, 166 Neb. 322, 89 N.W.2d 123 (1958).

The Commissioner of Labor is an interested party in any action under the provisions of the Unemployment Compensation Act, and may appeal when he feels himself aggrieved. Woodmen of the World Life Ins. Soc. v. Olsen, 141 Neb. 12, 2 N.W.2d 353 (1942).

An employee who has established rights to benefits under the Unemployment Compensation Act is a necessary party for a review of the decision on appeal. Brown v. Haith, 140 Neb. 717, 1 N.W.2d 825 (1942).

48-639. Repealed. Laws 1988, LB 352, § 190.

48-640. Repealed. Laws 2017, LB172, § 89.

48-641. Repealed. Laws 2017, LB172, § 89.

48-642. Repealed. Laws 2017, LB172, § 89.

48-643. Witnesses; fees.

Witnesses subpoenaed pursuant to sections 48-629 to 48-644 shall be allowed fees at a rate fixed by the commissioner, not to exceed the amount allowed for witness fees in district court. Such fees shall be deemed an expense of administering the Employment Security Law.

Source:Laws 1937, c. 108, § 6, p. 380; Laws 1941, c. 94, § 4, p. 389; C.S.Supp.,1941, § 48-706; R.S.1943, § 48-643; Laws 1985, LB 339, § 29; Laws 2017, LB172, § 57.

Cross References

For witness fees in district court, see section 33-139.

48-644. Benefits; payment; appeal not a supersedeas; reversal; effect.

(1) Benefits shall be promptly paid in accordance with a determination or redetermination.

(2) If pursuant to a determination or redetermination benefits are payable in any amount as to which there is no dispute, such amount of benefits shall be promptly paid regardless of any appeal.

(3) The commencement of a proceeding for judicial review pursuant to section 48-638 shall not operate as a supersedeas or stay.

(4) If an employer is otherwise entitled to noncharging of benefits pursuant to sections 48-630 and 48-652, and a decision allowing benefits is finally reversed, no employer's account shall be charged with benefits paid pursuant to the erroneous determination, and benefits shall not be paid for any subsequent weeks of unemployment involved in such reversal.

Source:Laws 1941, c. 94, § 4, p. 389; C.S.Supp.,1941, § 48-706; R.S.1943, § 48-644; Laws 1972, LB 1392, § 7; Laws 2012, LB1058, § 6; Laws 2017, LB172, § 58.

Annotations

Generally, where there has been an award of benefits, the employee is not to be left without those benefits during appeal. Gibson v. Kurt Mfg., 255 Neb. 255, 583 N.W.2d 767 (1998).

48-645. Benefits; waiver, release, and deductions void; discrimination in hire or tenure unlawful; penalty.

(1) Any agreement by an individual to waive, release, or commute his or her rights to benefits or any other rights under the Employment Security Law shall be void.

(2) Any agreement by an individual in the employ of any person or concern to pay all or any portion of an employer's contributions required under such law from such employer, shall be void.

(3) No employer shall:

(a) Directly or indirectly make, require, or accept any deduction from wages to finance the employer's contributions required from him or her;

(b) Require or accept any waiver of any right hereunder by any individual in his or her employ;

(c) Discriminate in regard to the hiring, rehiring, or tenure of work of any individual on account of any claim made by such individual for benefits under the Employment Security Law; or

(d) Obstruct or impede the filing of claims for benefits in any manner.

(4) Any employer, officer, or agent of an employer who violates any provision of this section shall be guilty of a Class II misdemeanor.

Source:Laws 1937, c. 108, § 15, p. 399; Laws 1941, c. 94, § 11, p. 399; C.S.Supp.,1941, § 48-714; R.S.1943, § 48-645; Laws 1977, LB 40, § 292; Laws 1985, LB 339, § 30; Laws 2017, LB172, § 59.

48-646. Repealed. Laws 2017, LB172, § 89.

48-647. Benefits; assignments void; exemption from legal process; exception; child support obligations; Supplemental Nutrition Assistance Program benefits overissuance; disclosure required; collection.

(1)(a) Any assignment, pledge, or encumbrance of any right to benefits which are or may become due or payable under sections 48-623 to 48-626 shall be void except as set forth in this section. Such rights to benefits shall be exempt from levy, execution, attachment, or any other remedy provided for the collection of debt. Benefits received by any individual, so long as they are not mingled with other funds of the recipient, shall be exempt from any remedy for the collection of all debts, except debts incurred for necessaries furnished to such individual or his or her spouse or dependents during the time when such individual was unemployed.

(b) Any assignment, pledge, or encumbrance of any right or claim to contributions or to any money credited to any employer's reserve account in the Unemployment Compensation Fund shall be void. Such right or claim to contributions or money shall be exempt from levy, execution, attachment, or any other remedy provided for the collection of debt.

(c) Any waiver of any exemption provided for in this section shall be void.

(2)(a) An individual filing a new claim for unemployment compensation shall, at the time of filing such claim, disclose whether or not he or she owes child support obligations as defined under subdivision (h) of this subsection. If such individual discloses that he or she owes child support obligations and is determined to be eligible for unemployment compensation, the commissioner shall notify the Department of Health and Human Services that the individual has been determined to be eligible for unemployment compensation.

(b) The commissioner shall deduct and withhold from any unemployment compensation otherwise payable to an individual disclosing child support obligations:

(i) The amount specified by the individual to the commissioner to be deducted under this subsection, if neither subdivision (ii) nor (iii) of this subdivision is applicable;

(ii) The amount, if any, determined pursuant to an agreement between the Department of Health and Human Services and such individual owing the child support obligations to have a specified amount withheld if such agreement is submitted to the commissioner, unless subdivision (iii) of this subdivision is applicable; or

(iii) The amount otherwise required to be deducted and withheld from such unemployment compensation pursuant to legal process, as that term is defined in subdivision (2)(i) of this section, properly served upon the commissioner.

(c) Any amount deducted and withheld under subdivision (b) of this subsection shall be paid by the commissioner to the Department of Health and Human Services.

(d) Any amount deducted and withheld under subdivision (b) or (g) of this subsection shall for all purposes be treated as if it were paid to the individual as unemployment compensation and paid by such individual to the Department of Health and Human Services in satisfaction of his or her child support obligations.

(e) For purposes of subdivisions (a) through (d) and (g) of this subsection, the term unemployment compensation shall mean any compensation payable under the Employment Security Law, including amounts payable by the commissioner pursuant to an agreement under any federal law providing for compensation, assistance, or allowances with respect to unemployment.

(f) This subsection shall apply only if appropriate arrangements have been made for reimbursement by the Department of Health and Human Services for the administrative costs incurred by the commissioner under this section which are attributable to child support obligations being enforced by the department.

(g) The Department of Health and Human Services and the commissioner shall develop and implement a collection system to carry out the intent of this subdivision. The collection system shall, at a minimum, provide that:

(i) The commissioner shall periodically notify the Department of Health and Human Services of the information listed in section 43-1719 with respect to individuals determined to be eligible for unemployment compensation during such period;

(ii) Unless the county attorney, the authorized attorney, or the Department of Health and Human Services has sent a notice on the same support order under section 43-1720, upon the notification required by subdivision (2)(g)(i) of this section, the Department of Health and Human Services shall send notice to any such individual who owes child support obligations and who is subject to income withholding pursuant to subdivision (2)(a), (2)(b)(ii), or (2)(b)(iii) of section 43-1718.01. The notice shall be sent by certified mail to the last-known address of the individual and shall state the same information as required under section 43-1720;

(iii)(A) If the support obligation is not based on a foreign support order entered pursuant to section 43-1729 and the individual requests a hearing, the Department of Health and Human Services shall hold a hearing within fifteen days of the date of receipt of the request. The hearing shall be in accordance with the Administrative Procedure Act. The assignment shall be held in abeyance pending the outcome of the hearing. The department shall notify the individual and the commissioner of its decision within fifteen days of the hearing; and

(B) If the support obligation is based on a foreign support order entered pursuant to section 43-1729 and the individual requests a hearing, the county attorney or authorized attorney shall apply the procedures described in sections 43-1732 to 43-1742;

(iv)(A) If no hearing is requested by the individual under this subsection or pursuant to a notice sent under section 43-1720, (B) if after a hearing under this subsection or section 43-1721 the Department of Health and Human Services determines that the assignment should go into effect, (C) in cases in which the court has ordered income withholding for child support pursuant to subsection (1) of section 43-1718.01, or (D) in cases in which the court has ordered income withholding for child support pursuant to section 43-1718.02 and the case subsequently becomes one in which child support collection services are being provided under Title IV-D of the federal Social Security Act, as amended, the Department of Health and Human Services shall certify to the commissioner the amount to be withheld for child support obligations from the individual's unemployment compensation. Such amount shall not exceed the maximum amount permitted to be withheld under section 303(b) of the federal Consumer Credit Protection Act, 15 U.S.C. 1673(b)(2)(A) and (B), and the amount withheld to satisfy a debt of child support when added to the amount withheld to pay current support shall not exceed such maximum amount;

(v) The collection system shall comply with the requirements of Title III and Title IV-D of the federal Social Security Act, as amended;

(vi) The collection system shall be in addition to and not in substitution for or derogation of any other available remedy; and

(vii) The Department of Health and Human Services and the commissioner shall adopt and promulgate rules and regulations to carry out subdivision (2)(g) of this section.

(h) For purposes of this subsection, the term child support obligations shall include only obligations which are being enforced pursuant to a plan described in section 454 of the federal Social Security Act which has been approved by the Secretary of Health and Human Services under Part D of Title IV of the federal Social Security Act.

(i) For purposes of this subsection, the term legal process shall mean any writ, order, summons, or other similar process in the nature of garnishment, which:

(i) Is issued by a court of competent jurisdiction of any state, territory, or possession of the United States or an authorized official pursuant to order of such a court of competent jurisdiction or pursuant to state law. For purposes of this subdivision, the chief executive officer of the Department of Health and Human Services shall be deemed an authorized official pursuant to order of a court of competent jurisdiction or pursuant to state law; and

(ii) Is directed to, and the purpose of which is to compel, the commissioner to make a payment for unemployment compensation otherwise payable to an individual in order to satisfy a legal obligation of such individual to provide child support.

(j) Nothing in this subsection shall be construed to authorize withholding from unemployment compensation of any support obligation other than child support obligations.

(3)(a) An individual filing a new claim for unemployment compensation shall, at the time of filing such claim, disclose whether or not he or she owes an uncollected overissuance, as defined in 7 U.S.C. 2022(c)(1) as such section existed on January 1, 2017, of Supplemental Nutrition Assistance Program benefits, if not otherwise known or disclosed to the state Supplemental Nutrition Assistance Program agency. The commissioner shall notify the state Supplemental Nutrition Assistance Program agency enforcing such obligation of any individual disclosing that he or she owes an uncollected overissuance whom the commissioner determines is eligible for unemployment compensation.

(b) The commissioner shall deduct and withhold from any unemployment compensation payable to an individual who owes an uncollected overissuance:

(i) The amount specified by the individual to the commissioner to be deducted and withheld under this subsection;

(ii) The amount, if any, determined pursuant to an agreement submitted to the state Supplemental Nutrition Assistance Program agency under 7 U.S.C. 2022(c)(3)(A), as such section existed on January 1, 2017; or

(iii) Any amount otherwise required to be deducted and withheld from unemployment compensation pursuant to 7 U.S.C. 2022(c)(3)(B), as such section existed on January 1, 2017.

(c) Any amount deducted and withheld under this subsection shall be paid by the commissioner to the state Supplemental Nutrition Assistance Program agency.

(d) Any amount deducted and withheld under subdivision (b) of this subsection shall be treated as if it were paid to the individual as unemployment compensation and paid by such individual to the state Supplemental Nutrition Assistance Program agency as repayment of the individual's uncollected overissuance.

(e) For purposes of this subsection, unemployment compensation means any compensation payable under the Employment Security Law, including amounts payable by the commissioner pursuant to an agreement under any federal law providing for compensation, assistance, or allowances with respect to unemployment.

(f) This subsection applies only if arrangements have been made for reimbursement by the state Supplemental Nutrition Assistance Program agency for the administrative costs incurred by the commissioner under this subsection which are attributable to the repayment of uncollected overissuances to the state Supplemental Nutrition Assistance Program agency.

Source:Laws 1937, c. 108, § 15, p. 400; C.S.Supp.,1941, § 48-714; R.S.1943, § 48-647; Laws 1982, LB 801, § 5; Laws 1985, LB 339, § 32; Laws 1985, Second Spec. Sess., LB 7, § 76; Laws 1990, LB 974, § 1; Laws 1993, LB 523, § 26; Laws 1994, LB 1224, § 81; Laws 1995, LB 240, § 3; Laws 1996, LB 1044, § 275; Laws 1996, LB 1155, § 21; Laws 1997, LB 307, § 106; Laws 1997, LB 864, § 5; Laws 1998, LB 1073, § 56; Laws 2007, LB296, § 217; Laws 2009, LB288, § 15; Laws 2017, LB172, § 60.

Cross References

Administrative Procedure Act, see section 84-920.

48-648. Combined tax; employer; payment; rules and regulations governing; related corporations or limited liability companies; professional employer organization.

(1) With respect to wages for employment, combined tax shall accrue and become payable by each employer not otherwise entitled to make payments in lieu of contributions for each calendar year in which he or she is subject to the Employment Security Law. Such combined tax shall become due and be paid by each employer to the commissioner for the State Unemployment Insurance Trust Fund and the Unemployment Trust Fund in such manner and at such times as the commissioner may, by rule and regulation, prescribe. Such combined tax shall not be deducted, in whole or in part, from the wages of individuals in such employer's employ.

(2) The commissioner may require any employer whose annual payroll for either of the two preceding calendar years has equaled or exceeded one hundred thousand dollars to file combined tax returns and pay combined taxes owed by an electronic method approved by the commissioner, except when the employer establishes to the satisfaction of the commissioner that filing the combined tax return or payment of the tax by an electronic method would create a hardship for the employer.

(3) In the payment of any combined tax, a fractional part of a cent shall be disregarded unless it amounts to one-half cent or more, in which case it shall be increased to one cent. If the combined tax due for any reporting period is less than five dollars, the employer need not remit the combined tax.

(4) If two or more related corporations or limited liability companies concurrently employ the same individual and compensate such individual through a common paymaster which is one of such corporations or limited liability companies, each such corporation or limited liability company shall be considered to have paid as remuneration to such individual only the amounts actually disbursed by it to such individual and shall not be considered to have paid as remuneration to such individual amounts actually disbursed to such individual by another of such corporations or limited liability companies. An employee of a wholly owned subsidiary shall be considered to be concurrently employed by the parent corporation, company, or other entity and the wholly owned subsidiary whether or not both companies separately provide remuneration.

(5) The professional employer organization shall report and pay combined tax, penalties, and interest owed for wages earned by worksite employees under the client's employer account number using the client's combined tax rate. The client is liable for the payment of unpaid combined tax, penalties, and interest owed for wages paid to worksite employees, and the worksite employees shall be considered employees of the client for purposes of the Employment Security Law.

(6) The Commissioner of Labor may require by rule and regulation that each employer subject to the Employment Security Law shall submit to the commissioner quarterly wage reports on such forms and in such manner as the commissioner may prescribe. The commissioner may require any employer whose annual payroll for either of the two preceding calendar years has equaled or exceeded one hundred thousand dollars to file wage reports by an electronic method approved by the commissioner, except when the employer establishes to the satisfaction of the commissioner that filing by an electronic method would create a hardship for the employer. The quarterly wage reports shall be used by the commissioner to make monetary determinations of claims for benefits.

Source:Laws 1937, c. 108, § 7, p. 382; Laws 1941, c. 94, § 5, p. 390; C.S.Supp.,1941, § 48-707; R.S.1943, § 48-648; Laws 1971, LB 651, § 8; Laws 1981, LB 279, § 1; Laws 1985, LB 339, § 33; Laws 1992, LB 879, § 2; Laws 1994, LB 1337, § 7; Laws 1998, LB 834, § 1; Laws 2002, LB 921, § 3; Laws 2005, LB 484, § 7; Laws 2009, LB631, § 5; Laws 2015, LB271, § 6; Laws 2017, LB172, § 61.

48-648.01. Repealed. Laws 2017, LB172, § 89.

48-648.02. Wages, defined.

(1) For tax years beginning before January 1, 2020, as used in sections 48-648 and 48-649 to 48-649.04 only, the term wages shall not include that part of the remuneration paid to an individual by an employer or by the predecessor of such employer with respect to employment within this or any other state during a calendar year which exceeds nine thousand dollars unless that part of the remuneration is subject to a federal law imposing a tax against which credit may be taken for contributions required to be paid into a state unemployment fund.

(2) For tax years beginning on or after January 1, 2020, as used in sections 48-648 and 48-649 to 48-649.04 only:

(a) Except as to employers assigned to category twenty under section 48-649.03, the term wages shall not include that part of the remuneration paid to an individual by an employer or by the predecessor of such employer with respect to employment within this or any other state during a calendar year which exceeds nine thousand dollars unless that part of the remuneration is subject to a federal law imposing a tax against which credit may be taken for contributions required to be paid into a state unemployment fund; and

(b) For employers assigned to category twenty under section 48-649.03, the term wages shall not include that part of the remuneration paid to an individual by an employer or by the predecessor of such employer with respect to employment within this or any other state during a calendar year which exceeds twenty-four thousand dollars unless that part of the remuneration is subject to a federal law imposing a tax against which credit may be taken for contributions required to be paid into a state unemployment fund.

Source:Laws 2005, LB 739, § 6; Laws 2017, LB172, § 62; Laws 2019, LB428, § 1.

48-649. Combined tax rate.

The commissioner shall, for each calendar year, determine the combined tax rate applicable to each employer on the basis of his or her actual experience in the payment of contributions and with respect to benefits charged against his or her separate experience account in accordance with sections 48-649.01 to 48-649.04.

Source:Laws 1937, c. 108, § 7, p. 382; Laws 1939, c. 56, § 5, p. 239; Laws 1941, c. 94, § 5, p. 390; C.S.Supp.,1941, § 48-707; R.S.1943, § 48-649; Laws 1947, c. 175, § 10, p. 577; Laws 1949, c. 163, § 12, p. 427; Laws 1953, c. 167, § 8, p. 533; Laws 1955, c. 190, § 9, p. 548; Laws 1972, LB 1392, § 8; Laws 1976, LB 819, § 2; Laws 1977, LB 509, § 7; Laws 1984, LB 249, § 1; Laws 1985, LB 339, § 34; Laws 1994, LB 1337, § 8; Laws 1995, LB 334, § 1; Laws 2005, LB 484, § 9; Laws 2005, LB 739, § 11; Laws 2007, LB265, § 9; Laws 2009, LB631, § 7; Laws 2017, LB172, § 63.

Annotations

Under the Nebraska Employment Security Law, the contribution type of financing as provided by section 48-649, R.R.S.1943, and reimbursement financing under section 48-660.01, R.R.S.1943, are separate and distinct systems, and a nonprofit organization must elect to use one or the other. West Nebraska General Hospital v. Hanlon, 208 Neb. 173, 302 N.W.2d 694 (1981).

48-649.01. State unemployment insurance tax rate.

(1) By December 1 of each calendar year, the commissioner shall determine the state unemployment insurance tax rate for the following year based on information available through the department. The state unemployment insurance tax rate shall be zero percent if:

(a) The average balance in the State Unemployment Insurance Trust Fund at the end of any three months in the preceding calendar year is greater than one percent of state taxable wages for the same preceding year; or

(b) The balance in the State Unemployment Insurance Trust Fund equals or exceeds thirty percent of the average month end balance of the state's account in the Unemployment Trust Fund for the three lowest calendar months in the preceding year.

(2) If the state unemployment insurance tax rate is determined to be zero percent pursuant to subsection (1) of this section, the contribution rate for all employers shall equal one hundred percent of the combined tax rate.

(3) If the state unemployment insurance tax rate is not zero percent as determined in this section, the combined tax rate shall be divided so that not less than eighty percent of the combined tax rate equals the contribution rate and not more than twenty percent of the combined tax rate equals the state unemployment insurance tax rate except for employers who are assigned a combined tax rate of five and four-tenths percent or more. For those employers, the state unemployment insurance tax rate shall equal zero and their combined tax rate shall equal their contribution rate.

Source:Laws 2017, LB172, § 64.

48-649.02. Employer's combined tax rate before benefits have been payable.

(1) Until benefits have been payable from and chargeable to an employer’s experience account throughout the preceding four calendar quarters and wages for employment have been paid by the employer in each of the two preceding four-calendar-quarter periods, the employer’s combined tax rate shall be:

(a) For employers not engaged in the construction industry, the lesser of the value of the state's average combined tax rate as determined pursuant to section 48-649.03 or two and five-tenths percent; and

(b) For employers engaged in the construction industry, the value of the category twenty rate determined pursuant to section 48-649.03.

(2) In no event shall the combined tax rate under subsection (1) of this section be less than one and twenty-five hundredths percent.

(3) For any employer who has not paid wages for employment during each of the two preceding four-calendar-quarter periods ending on September 30, but has paid wages for employment in any two four-calendar-quarter periods, regardless of whether such four-calendar-quarter periods are consecutive, such employer's combined tax rate for the following tax year shall be:

(a) The highest combined tax rate for employers with a positive experience account balance if the employer's experience account balance exhibits a positive balance as of September 30 of the year of rate computation; or

(b) The standard rate if the employer's experience account exhibits a negative balance as of September 30 of the year of rate computation.

Source:Laws 2017, LB172, § 65.

48-649.03. Employer's combined tax rate once benefits payable from experience account; experience factor.

(1) Once benefits have been payable from and chargeable to an employer's experience account throughout the preceding four calendar quarters and wages for employment have been paid by the employer in each of the two preceding four-calendar-quarter periods, the employer's combined tax rate shall be calculated according to this section. The combined tax rate shall be based upon the employer's experience rating record and determined from the employer's reserve ratio.

(2) The employer's reserve ratio is the percent obtained by dividing (a) the amount by which the employer's contributions credited from the time the employer first or most recently became an employer, whichever date is later, and up to and including September 30 of the year the rate computation is made, plus any part of the employer's contributions due for that year paid on or before October 31 of such year, exceed the employer's benefits charged during the same period, by (b) the employer's average annual taxable payroll for the sixteen-consecutive-calendar-quarter period ending September 30 of the year in which the rate computation is made. For an employer with less than sixteen consecutive calendar quarters of contribution experience, the employer's average taxable payroll shall be determined based upon the four-calendar-quarter periods for which contributions were payable.

(3) Each eligible experience rated employer shall be assigned to one of twenty rate categories with a corresponding experience factor as follows:

Category Experience Factor

1 0.00

2 0.25

3 0.40

4 0.45

5 0.50

6 0.60

7 0.65

8 0.70

9 0.80

10 0.90

11 0.95

12 1.00

13 1.05

14 1.10

15 1.20

16 1.35

17 1.55

18 1.80

19 2.15

20 2.60

Eligible experience rated employers shall be assigned to rate categories from highest to lowest according to their experience reserve ratio, with category one assigned to accounts with the highest reserve ratios and category twenty assigned to accounts with the lowest reserve ratios. Each category shall be limited to no more than five percent of the state's total taxable payroll, except that:

(a) Any employer with a portion of its taxable wages falling into two consecutive categories shall be assigned to the lower category;

(b) No employer with a reserve ratio calculated to five decimal places equal to the similarly calculated reserve ratio of another employer shall be assigned to a higher rate than the employer to which it has the equal reserve ratio; and

(c) No employer with a positive experience account balance shall be assigned to category twenty.

(4) The state's reserve ratio shall be calculated annually by dividing the amount available to pay benefits in the Unemployment Trust Fund and the State Unemployment Insurance Trust Fund as of September 30, plus any amount of combined tax owed by employers eligible for and electing annual payment status for the four most recent quarters ending on September 30 in accordance with rules and regulations adopted by the commissioner, by the state's total wages from the four calendar quarters ending on September 30. For purposes of this section, total wages means all remuneration paid by an employer in employment. The state's reserve ratio shall be applied to the table in this subsection to determine the yield factor for the upcoming rate year.

State's Reserve Ratio Yield Factor

1.45 percent and above = 0.70

1.30 percent up to but not including 1.45 = 0.75

1.15 percent up to but not including 1.30 = 0.80

1.00 percent up to but not including 1.15 = 0.90

0.85 percent up to but not including 1.00 = 1.00

0.70 percent up to but not including 0.85 = 1.10

0.60 percent up to but not including 0.70 = 1.20

0.50 percent up to but not including 0.60 = 1.25

0.45 percent up to but not including 0.50 = 1.30

0.40 percent up to but not including 0.45 = 1.35

0.35 percent up to but not including 0.40 = 1.40

0.30 percent up to but not including 0.35 = 1.45

Below 0.30 percent = 1.50

The commissioner may adjust the yield factor determined pursuant to the preceding table to a lower scheduled yield factor if the state's reserve ratio is 1.00 percent or greater. Once the yield factor for the upcoming rate year has been determined, it is multiplied by the amount of unemployment benefits paid from combined tax during the four calendar quarters ending September 30 of the preceding year. The resulting figure is the planned yield for the rate year. The planned yield is divided by the total taxable wages for the four calendar quarters ending September 30 of the previous year and carried to four decimal places to create the average combined tax rate for the rate year.

(5) The average combined tax rate is assigned to rate category twelve as established in subsection (3) of this section. Rates for each of the remaining nineteen categories are determined by multiplying the average combined tax rate by the experience factor associated with each category and carried to four decimal places. Employers who are delinquent in filing their combined tax reports as of October 31 of any year shall be assigned to category twenty for the following calendar year unless the delinquency is corrected prior to December 31 of the year of rate calculation.

(6) In addition to required contributions, an employer may make voluntary contributions to the fund to be credited to his or her account. Voluntary contributions by employers may be made up to the amount necessary to qualify for one rate category reduction. Voluntary contributions received after February 28 shall not be used in rate calculations for the same calendar year.

(7) As used in sections 48-648 to 48-654, the term payroll means the total amount of wages during a calendar year, except as otherwise provided in section 48-654, by which the combined tax was measured.

Source:Laws 2017, LB172, § 66; Laws 2019, LB359, § 5; Laws 2023, LB191, § 12.
Operative Date: September 2, 2023

48-649.04. State or political subdivision; combined tax; election to make payments in lieu of contributions.

(1) The state or any of its political subdivisions and any instrumentality of one or more of the foregoing or any other governmental entity for which services in employment as provided in subdivision (4)(a) of section 48-604 are performed shall be required to pay combined tax on wages paid for services rendered in its or their employment on the same basis as any other employer who is liable for the payment of combined tax under the Employment Security Law, unless the state or any political subdivision thereof and any instrumentality of one or more of the foregoing or any other governmental entity for which such services are performed files with the commissioner its written election not later than thirty days after such employer becomes subject to this section to become liable to make payments in lieu of contributions in an amount equal to the full amount of regular benefits plus the full amount of extended benefits paid during each calendar quarter that is attributable to service in employment of such electing employer.

(2) Eligible employers electing to make payments in lieu of contributions shall not be liable for combined tax payments.

(3) The commissioner, after the end of each calendar quarter, shall notify any such employer that has elected to make payments in lieu of contributions of the amount of benefits for which it is liable to pay pursuant to its election that have been paid that are attributable to service in its employment and the employer so notified shall reimburse the fund within thirty days after receipt of such notice.

(4) Any employer which makes an election in accordance with this section to become liable for payments in lieu of contributions shall continue to be liable for payments in lieu of contributions for all benefits paid based upon wages paid for service in employment of such employer while such election is effective. Any such election shall continue until such employer files with the commissioner, not later than December 1 of any calendar year, a written notice terminating its election as of December 31 of that year. Upon termination of the election, such employer shall again be liable for the payment of contributions and for the reimbursement of such benefits as may be paid based upon wages paid for services in employment of such employer while such election was effective.

(5) The commissioner may require any employer subject to this section whose annual payroll for either of the two preceding calendar years has equaled or exceeded one hundred thousand dollars to pay the amount owed pursuant to this section by an electronic method approved by the commissioner, except when the employer establishes to the satisfaction of the commissioner that payment by an electronic method would create a hardship for the employer.

Source:Laws 2017, LB172, § 67.

48-650. Combined tax rate; determination of employment; notice, method; review; redetermination; proceedings; appeal.

(1) The commissioner shall determine the rate of combined tax applicable to each employer pursuant to sections 48-649 to 48-649.04 and may determine, at any time during the year, whether services performed by an individual were employment or for an employer.

(2) Notice of a determination of liability or combined tax rate shall be promptly given to the employer by electronic notice or by mailing such notice to the employer's last-known address or the address of a representative designated in writing by the employer. The address of record of an employer on September 2, 2023, shall continue to be the address of record of such employer unless changed by the employer. An employer that becomes subject to the Employment Security Law on or after September 2, 2023, shall designate its preferred method of contact and designated representative, if any, at the time of its initial registration. An employer may change its election at any time.

(3) Any determination under subsection (1) of this section shall become conclusive and binding upon the employer unless, within thirty days after receiving notice, the employer files an appeal with the department in accordance with rules and regulations adopted and promulgated by the commissioner. No employer shall have standing, in any proceeding involving his or her combined tax rate or combined tax liability, to contest the chargeability to his or her account of any benefits paid in accordance with a determination, redetermination, or decision pursuant to sections 48-629 to 48-644 except upon the ground that the services on the basis of which such benefits were found to be chargeable did not constitute services performed in employment for him or her and only in the event that he or she was not a party to such determination, redetermination, or decision or to any other proceedings under the Employment Security Law in which the character of such services was determined. A full and complete record shall be kept of all proceedings in connection with such hearing. All testimony at any such hearing shall be recorded but need not be transcribed unless there is a further appeal. The employer shall be promptly notified of a hearing officer's decision which shall become final unless the employer or the commissioner appeals within thirty days after the date of service of the decision of the hearing officer. The appeal shall otherwise be governed by the Administrative Procedure Act.

Source:Laws 1941, c. 94, § 5, p. 391; C.S.Supp.,1941, § 48-707; R.S.1943, § 48-650; Laws 1985, LB 339, § 35; Laws 1985, LB 342, § 1; Laws 1988, LB 352, § 88; Laws 1994, LB 1337, § 9; Laws 2001, LB 192, § 11; Laws 2017, LB172, § 68; Laws 2023, LB191, § 13.
Operative Date: September 2, 2023

Cross References

Administrative Procedure Act, see section 84-920.

Annotations

A petition for judicial review of the Nebraska Commissioner of Labor's determination of an employer's unemployment insurance contributions must be filed in the county where the first adjudicated hearing of a disputed claim took place. Metro Renovation v. State, 249 Neb. 337, 543 N.W.2d 715 (1996).

The Employment Security Law provides one avenue of judicial appeal when the dispute concerns benefit liability and another when the dispute concerns contribution liability. Northern Messenger v. Sorensen, 218 Neb. 846, 359 N.W.2d 787 (1984).

Judicial review of decision of the Nebraska Appeal Tribunal reviewing a decision under this section of the Nebraska Department of Labor, Division of Employment, may only be had in the District Court of Lancaster County. Whitehouse Energy Savers v. Hanlon, 214 Neb. 572, 334 N.W.2d 802 (1983).

48-651. Employer's account; benefit payments; notice; effect.

(1) The commissioner may provide for the following by rule and regulation:

(a) Periodic notification to employers of benefits paid and chargeable to their accounts or of the status of such accounts; and

(b) Notification to all base period employers of any individual of the establishment of such individual's benefit year.

(2) Any such notification, in the absence of an application for redetermination filed in such manner and within such period as the commissioner may prescribe, shall become conclusive and binding upon the employer for all purposes. Such redeterminations, made after notice and opportunity for hearing, and the commissioner's findings of fact in connection therewith may be introduced in any subsequent administrative or judicial proceedings involving the determination of the combined tax rate of any employer for any calendar year.

Source:Laws 1941, c. 94, § 5, p. 392; C.S.Supp.,1941, § 48-707; R.S.1943, § 48-651; Laws 1985, LB 339, § 36; Laws 1994, LB 1337, § 10; Laws 2017, LB172, § 69.

48-652. Employer's experience account; reimbursement account; combined tax; liability; termination; reinstatement.

(1)(a) A separate experience account shall be established for each employer who is liable for payment of combined tax. Whenever and wherever in the Employment Security Law the terms reserve account or experience account are used, unless the context clearly indicates otherwise, such terms shall be deemed interchangeable and synonymous and reference to either of such accounts shall refer to and also include the other.

(b) A separate reimbursement account shall be established for each employer who is liable for payments in lieu of contributions. All benefits paid with respect to service in employment for such employer shall be charged to his or her reimbursement account, and such employer shall be billed for and shall be liable for the payment of the amount charged when billed by the commissioner. Payments in lieu of contributions received by the commissioner on behalf of each such employer shall be credited to such employer's reimbursement account, and two or more employers who are liable for payments in lieu of contributions may jointly apply to the commissioner for establishment of a group account for the purpose of sharing the cost of benefits paid that are attributable to service in the employ of such employers. The commissioner shall adopt and promulgate such rules and regulations as he or she deems necessary with respect to applications for establishment, maintenance, and termination of group accounts authorized by this subdivision.

(2) All contributions paid by an employer shall be credited to the experience account of such employer. State unemployment insurance tax payments shall not be credited to the experience account of each employer. Partial payments of combined tax shall be credited so that at least eighty percent of the combined tax payment excluding interest and penalty is credited first to contributions due. Contributions with respect to prior years which are received on or before January 31 of any year shall be considered as having been paid at the beginning of the calendar year. All voluntary contributions which are received on or before February 28 of any year shall be considered as having been paid at the beginning of the calendar year.

(3)(a) Each experience account shall be charged only for benefits based upon wages paid by such employer. No benefits shall be charged to the experience account of any employer if:

(i) Such benefits were paid on the basis of a period of employment from which the claimant (A) left work voluntarily without good cause, (B) left work voluntarily due to a nonwork-connected illness or injury, (C) left work voluntarily with good cause to escape abuse as defined in section 42-903 between household members as provided in subdivision (1) of section 48-628.13, (D) left work from which he or she was discharged for misconduct connected with his or her work, (E) left work voluntarily and is entitled to unemployment benefits without disqualification in accordance with subdivision (3), (5), or (11) of section 48-628.13, or (F) was involuntarily separated from employment and such benefits were paid pursuant to section 48-628.17; and

(ii) The employer has filed timely notice of the facts on which such exemption is claimed in accordance with rules and regulations adopted and promulgated by the commissioner.

(b) No benefits shall be charged to the experience account of any employer if such benefits were paid during a week when the individual was participating in training approved under section 236(a)(1) of the federal Trade Act of 1974, 19 U.S.C. 2296(a)(1).

(c) Each reimbursement account shall be charged only for benefits paid that were based upon wages paid by such employer in the base period that were wages for insured work solely by reason of section 48-627.01.

(d) Benefits paid to an eligible individual shall be charged against the account of his or her most recent employers within his or her base period against whose accounts the maximum charges hereunder have not previously been made in the inverse chronological order in which the employment of such individual occurred. The maximum amount so charged against the account of any employer, other than an employer for which services in employment as provided in subdivision (4)(a) of section 48-604 are performed, shall not exceed the total benefit amount to which such individual was entitled as set out in section 48-626 with respect to base period wages of such individual paid by such employer plus one-half the amount of extended benefits paid to such eligible individual with respect to base period wages of such individual paid by such employer. The commissioner shall adopt and promulgate rules and regulations determining the manner in which benefits shall be charged against the account of several employers for whom an individual performed employment during the same quarter or during the same base period.

(4)(a) An employer's experience account shall be terminated one calendar year after such employer has ceased to be subject to the Employment Security Law, except that if the commissioner finds that an employer's business is closed solely because one or more of the owners, officers, partners, or limited liability company members or the majority stockholder entered the armed forces of the United States, or of any of its allies, such employer's account shall not be terminated and, if the business is resumed within two years after the discharge or release from active duty in the armed forces of such person or persons, the employer's experience account shall be deemed to have been continuous throughout such period.

(b) An experience account terminated pursuant to this subsection shall be reinstated if:

(i) The employer becomes subject again to the Employment Security Law within one calendar year after termination of such experience account;

(ii) The employer makes a written application for reinstatement of such experience account to the commissioner within two calendar years after termination of such experience account; and

(iii) The commissioner finds that the employer is operating substantially the same business as prior to the termination of such experience account.

(5) All money in the Unemployment Compensation Fund shall be kept mingled and undivided. In no case shall the payment of benefits to an individual be denied or withheld because the experience account of any employer does not have a total of contributions paid in excess of benefits charged to such experience account.

(6)(a) For benefit years beginning before September 3, 2017, if an individual's base period wage credits represent part-time employment for a contributory employer and the contributory employer continues to employ the individual to the same extent as during the base period, then the contributory employer's experience account shall not be charged if the contributory employer has filed timely notice of the facts on which such exemption is claimed in accordance with rules and regulations adopted and promulgated by the commissioner.

(b) For benefit years beginning on or after September 3, 2017, if an individual's base period wage credits represent part-time employment for an employer and the employer continues to employ the individual to the same extent as during the base period, then the employer's experience account, in the case of a contributory employer, or the employer's reimbursement account, in the case of a reimbursable employer, shall not be charged if the employer has filed timely notice of the facts on which such exemption is claimed in accordance with rules and regulations prescribed by the commissioner.

(7) If a contributory employer responds to the department's request for information within the time period set forth in subsection (1) of section 48-632 and provides accurate information as known to the employer at the time of the response, the employer's experience account shall not be charged if the individual's separation from employment is voluntary and without good cause as determined under section 48-628.12.

Source:Laws 1937, c. 108, § 7, p. 383; Laws 1939, c. 56, § 5, p. 240; Laws 1941, c. 94, § 5, p. 392; C.S.Supp.,1941, § 48-707; R.S.1943, § 48-652; Laws 1947, c. 175, § 11, p. 579; Laws 1949, c. 163, § 13, p. 428; Laws 1953, c. 167, § 9, p. 534; Laws 1957, c. 208, § 5, p. 732; Laws 1971, LB 651, § 9; Laws 1977, LB 509, § 8; Laws 1980, LB 800, § 5; Laws 1984, LB 995, § 1; Laws 1985, LB 339, § 37; Laws 1986, LB 901, § 1; Laws 1987, LB 275, § 1; Laws 1988, LB 1033, § 3; Laws 1993, LB 121, § 292; Laws 1994, LB 884, § 65; Laws 1994, LB 1337, § 11; Laws 1995, LB 1, § 12; Laws 1995, LB 240, § 4; Laws 2000, LB 953, § 9; Laws 2001, LB 418, § 1; Laws 2005, LB 739, § 12; Laws 2007, LB265, § 10; Laws 2008, LB500, § 1; Laws 2009, LB631, § 8; Laws 2010, LB1020, § 6; Laws 2012, LB1058, § 7; Laws 2017, LB172, § 70; Laws 2017, LB519, § 1; Laws 2019, LB359, § 6; Laws 2021, LB260, § 2; Laws 2023, LB191, § 14.
Operative Date: September 2, 2023

Annotations

Where employees have left work voluntarily without good cause or have been discharged for misconduct, an employer is not charged with benefits paid to its employees. Fauss v. Messerly, 200 Neb. 326, 263 N.W.2d 668 (1978).

48-653. Repealed. Laws 1949, c. 163, § 19.

48-654. Employer's experience account; acquisition by transferee-employer; transfer; contribution rate.

(1) Subject to section 48-654.01, any employer that acquires the organization, trade, or business, or substantially all the assets of another employer shall immediately notify the commissioner of the acquisition and may, pursuant to rules and regulations adopted and promulgated by the commissioner, assume the position of such acquired employer with respect to the resources and liabilities of such acquired employer's experience account as if no change with respect to such acquired employer's experience account has occurred.

(2) The commissioner may provide by rule and regulation for partial transfers of experience accounts, except that such partial transfers of accounts shall be construed to allow computation and fixing of contribution rates only where an employer has transferred at any time a definable and segregable portion of his or her payroll and business to a transferee-employer.

(3) For an acquisition which occurs during either of the first two calendar quarters of a calendar year or during the fourth quarter of the preceding calendar year, a new rate of contributions, payable by the transferee-employer with respect to wages paid by him or her after midnight of the last day of the calendar quarter in which such acquisition occurs and prior to midnight of the following September 30, shall be computed in accordance with this section. For the purpose of computing such new rate of contributions, the computation date with respect to any such acquisition shall be September 30 of the preceding calendar year and the term payroll shall mean the total amount of wages by which contributions to the transferee's account and to the transferor's account were measured for four calendar quarters ending September 30 preceding the computation date.

Source:Laws 1937, c. 108, § 7, p. 385; Laws 1941, c. 94, § 5, p. 394; C.S.Supp.,1941, § 48-707; R.S.1943, § 48-654; Laws 1945, c. 115, § 6, p. 386; Laws 1947, c. 175, § 13, p. 582; Laws 1953, c. 169, § 1, p. 543; Laws 1985, LB 336, § 1; Laws 1985, LB 339, § 38; Laws 2005, LB 484, § 10; Laws 2009, LB631, § 9; Laws 2015, LB271, § 8; Laws 2017, LB172, § 71.

Annotations

This section, which allows an acquiring organization to assume the position of its predecessor with respect to the latter's experience account, is referring to the contribution rate of that employer. The experience account balance is used to determine the rate at which the employer must contribute, and it is not a cash account which may be treated as a liquid asset. West Nebraska General Hospital v. Hanlon, 208 Neb. 173, 302 N.W.2d 694 (1981).

48-654.01. Employer's experience account; transferable; when; violation; penalty.

(1) For purposes of this section:

(a) Knowingly means having actual knowledge of or acting with deliberate ignorance or reckless disregard of the prohibition involved;

(b) Person means an individual, a partnership, a limited liability company, a corporation, or any other legally recognized entity;

(c) Trade or business includes the employer's workforce; and

(d) Violates or attempts to violate includes intent to evade, misrepresentation, or willful nondisclosure.

(2) Notwithstanding any other provision of law, the following shall apply regarding assignment of combined tax rates and transfer of an employer's experience account:

(a) If an employer transfers its trade or business, or a portion thereof, to another employer and, at the time of the transfer, there is substantially common ownership, management, or control of the two employers, then the employer's experience account attributable to the transferred trade or business shall be transferred to the employer to whom such business is transferred. The rates of both employers shall be recalculated in accordance with section 48-654. The transfer of some or all of an employer's workforce to another employer shall be considered a transfer of trade or business when, as the result of such transfer, the transferring employer no longer performs trade or business with respect to the transferred workforce and such trade or business is performed by the employer to whom the workforce is transferred. If, following a transfer of experience under this subdivision, the commissioner determines that a substantial purpose of the transfer of trade or business was to obtain a lower combined tax rate, then the experience rating accounts of the employers involved shall be combined into a single account and a single rate assigned to such account; or

(b) Whenever a person is not an employer at the time it acquires the trade or business of an employer, the employer's experience account of the acquired business shall not be transferred to such person if the commissioner finds that the business was acquired solely or primarily for the purpose of obtaining a lower combined tax rate. Instead, such person shall be assigned the new employer combined tax rate under sections 48-649 and 48-649.02. In determining whether the business was acquired solely or primarily for the purpose of obtaining a lower combined tax rate, the commissioner shall use objective factors which may include:

(i) The cost of acquiring the business;

(ii) Whether the person continued the business enterprise of the acquired business;

(iii) How long such business enterprise was continued; or

(iv) Whether a substantial number of new employees were hired for performance of duties unrelated to the business activity conducted prior to the acquisition.

(3)(a) If a person knowingly violates or attempts to violate this section, or if a person knowingly advises another person in a way that results in a violation of this section and:

(i) The person is an employer, such employer shall be assigned the highest combined tax rate assignable under sections 48-649 to 48-649.04 for the rate year during which the violation or attempted violation occurred and for the three rate years immediately following such rate year. However, if the person's business is already at the highest combined tax rate or if the amount of increase in the combined tax rate would be less than two percent, then a penalty combined tax rate of two percent of taxable wages shall be imposed for the rate year during which the violation or attempted violation occurred and for the three rate years immediately following such year; or

(ii) The person is not an employer, such person shall be subject to a civil penalty of not more than five thousand dollars.

(b) In addition to any civil penalties that may apply under this subsection, such person shall be guilty of a Class IV felony.

(4) The commissioner shall establish procedures to identify the transfer or acquisition of a business for purposes of evading combined tax liability.

Source:Laws 2005, LB 484, § 11; Laws 2017, LB172, § 72.

48-655. Combined taxes; payments in lieu of contributions; collections; setoffs; interest; actions; setoff against federal income tax refund; procedure.

(1) Combined taxes or payments in lieu of contributions unpaid on the date on which they are due and payable, as prescribed by the commissioner, shall bear interest at the rate of one and one-half percent per month from such date until payment, plus accrued interest, is received by the commissioner, except that no interest shall be charged subsequent to the date of the erroneous payment of an amount equal to the amount of the delayed payment into the unemployment trust fund of another state or to the federal government. Interest collected pursuant to this section shall be paid in accordance with subdivision (1)(b) of section 48-621. If, after due notice, any employer defaults in any payment of combined taxes or payments in lieu of contributions or interest thereon, the amount due may be collected (a) by civil action in the name of the commissioner and the employer adjudged in default shall pay the costs of such action, (b) by setoff against any state income tax refund due the employer pursuant to sections 77-27,197 to 77-27,209, or (c) as provided in subsection (2) of this section. Civil actions brought under this section to collect combined taxes or interest thereon or payments in lieu of contributions or interest thereon from an employer shall be heard by the court at the earliest possible date and shall be entitled to preference upon the calendar of the court over all other civil actions except petitions for judicial review under section 48-638.

(2) The commissioner may recover a covered unemployment compensation debt, as defined in 26 U.S.C. 6402, by setoff against a liable party's federal income tax refund. Such setoff shall be made in accordance with such section and United States Treasury regulations and guidelines adopted pursuant thereto. The commissioner shall notify the debtor that the commissioner plans to recover the debt through setoff against any federal income tax refund, and the debtor shall be given sixty days to present evidence that all or part of the liability is either not legally enforceable or is not a covered unemployment compensation debt. The commissioner shall review any evidence presented and determine that the debt is legally enforceable and is a covered unemployment compensation debt before proceeding further with the offset. The amount recovered, less any administrative fees charged by the United States Treasury, shall be credited to the debt owed. Any determination rendered under this subsection that the liable party's federal income tax refund is not subject to setoff does not require the commissioner to amend the commissioner's initial determination that formed the basis for the proposed setoff.

Source:Laws 1937, c. 108, § 14, p. 398; Laws 1939, c. 56, § 11, p. 249; C.S.Supp.,1941, § 48-713; R.S.1943, § 48-655; Laws 1947, c. 175, § 14, p. 582; Laws 1949, c. 163, § 14(1), p. 429; Laws 1971, LB 651, § 10; Laws 1985, LB 337, § 1; Laws 1986, LB 811, § 137; Laws 1993, LB 46, § 14; Laws 1994, LB 1337, § 12; Laws 1995, LB 1, § 13; Laws 2000, LB 953, § 10; Laws 2009, LB631, § 10; Laws 2012, LB1058, § 8; Laws 2017, LB172, § 73.

48-655.01. State; jurisdiction over employer; when.

Employing one or more individuals to perform service within this state shall constitute sufficient contact with this state for the exercise of personal jurisdiction over such employer in any action under sections 48-655 to 48-655.02.

Source:Laws 1949, c. 163, § 14(2), p. 430; Laws 1957, c. 208, § 6, p. 734; Laws 1983, LB 447, § 71.

48-655.02. Combined taxes; courts; jurisdiction; actions.

The courts of this state shall in the manner provided in sections 48-655 to 48-655.02 entertain actions to collect combined taxes or interest thereon for which liability has accrued under the employment security law of any other state or of the federal government.

Source:Laws 1949, c. 163, § 14(3), p. 430; Laws 1994, LB 1337, § 13.

48-656. Combined taxes; report or return; requirements; assessment; notice; protest; penalty.

(1) If any employer fails to file a report or return required by the commissioner for the determination of combined taxes, the commissioner may make such reports or returns or cause them to be made and determine the combined taxes payable, on the basis of such information as he or she may be able to obtain, and shall collect the combined taxes as determined together with any interest thereon due under section 48-655. The commissioner shall immediately notify the employer of the assessment, in writing, by registered or certified mail, in the usual course, and such assessment shall be final unless the employer protests such assessment within fifteen days after the mailing of the notice. If the employer protests such assessment, the employer shall have an opportunity to be heard by a hearing officer upon written request therefor. After the hearing, the hearing officer shall immediately notify the employer in writing of his or her decision, and the assessment, if any, shall be final upon issuance of such notice.

(2) If any employer files a report or return required by the commissioner for the determination of combined taxes but fails to pay all or some part of the combined taxes actually due for the reported period, the commissioner may determine the combined taxes actually payable on the basis of such information as he or she may be able to obtain and shall collect the combined taxes as determined together with any interest due under section 48-655. The commissioner shall immediately notify the employer of the assessment, in writing by registered or certified mail in the usual course, and such assessment shall be final unless the employer protests such assessment within fifteen days after the mailing of the notice. If the employer protests such assessment, the employer shall have an opportunity to be heard by a hearing officer upon a written request therefor. After the hearing, the hearing officer shall immediately notify the employer in writing of his or her decision and the assessment, if any, shall be final upon issuance of such notice.

(3) Any employer or any officer or agent of an employer who fails to file a required quarterly combined tax report and wage schedule by the tenth day of the second month following the end of the calendar quarter shall pay a penalty to the commissioner of one-tenth of one percent of the total wages paid during the quarter, except that the penalty shall not be less than twenty-five nor more than two hundred dollars. For good cause shown, the commissioner may waive the penalty in accordance with rules and regulations adopted and promulgated by the commissioner. The commissioner shall remit any penalty collected to the State Treasurer who shall credit it to the pool account of the Employment Security Special Contingent Fund.

Source:Laws 1939, c. 56, § 11, p. 249; C.S.Supp.,1941, § 48-713; R.S.1943, § 48-656; Laws 1957, c. 208, § 7, p. 735; Laws 1989, LB 414, § 1; Laws 1994, LB 1337, § 14; Laws 2001, LB 192, § 12; Laws 2017, LB172, § 74.

48-657. Combined tax or interest; default; lien; contracts for public works; requirements.

(1)(a) If any employer defaults in any payment of combined tax or interest, the commissioner may make in any manner feasible and cause to be filed as a secured transaction as provided in article 9, Uniform Commercial Code, and in the real estate mortgage records of any county in which such employer is engaged in business or owns real or personal property, a statement, under oath, showing the amount of combined tax and interest in default, which statement, when filed for record, shall operate as a lien and mortgage on all of the real and personal property of the employer, subject only to the liens of prior record, and the property of such employer shall be subject to seizure and sale for the payment of such combined taxes and interest. Such lien on personal property may be enforced or dissolved in the manner provided by article 9, Uniform Commercial Code, and such liens on real estate may be enforced or dissolved in the manner provided by Chapter 25, article 21, in the enforcing and dissolving of real estate mortgages. This subdivision shall only apply to liens filed prior to May 1, 1999.

(b) A lien for unpaid combined taxes filed or recorded pursuant to subdivision (a) of this subsection shall lapse at the earlier of its expiration date or the fifth anniversary of the filing or recording date, unless the commissioner files a notice of continuation in the place of the original filing or recording and with the appropriate filing officer in the manner provided for in the Uniform State Tax Lien Registration and Enforcement Act before such lien lapses. A notice of continuation shall include all of the information required by the act, the date of the filing or recording of the original lien, and a statement that the original lien is to be continued for ten years. Thereafter, such lien shall be enforced and notices of continuation filed in accordance with the act.

(c) On and after May 1, 1999, if any employer defaults in any payment of combined tax or interest, the commissioner may file a lien against such employer in accordance with the Uniform State Tax Lien Registration and Enforcement Act. Such liens shall set forth the amount of combined tax and interest in default and shall be continued and enforced as provided in the Uniform State Tax Lien Registration and Enforcement Act.

(2) It shall be the duty of the State of Nebraska, or any department or agency thereof, county boards, the contracting board of all cities, villages, and school districts, all public boards empowered by law to enter into a contract by public bidding for the erecting and finishing or the repairing of any public building, bridge, highway, or other public structure or improvement, and any officer or officers so empowered by law to enter into such contract to provide in such contract that the person, persons, firm, or corporation to whom the contract is awarded will pay to the Unemployment Compensation Fund of the State of Nebraska and the State Unemployment Insurance Trust Fund unemployment combined tax and interest due under the Employment Security Law on wages paid to individuals employed in the performance of such contract.

(3) No contract referred to in subsection (2) of this section shall be entered into by the State of Nebraska, a department or agency thereof, an officer or officers, or a board referred to in such subsection unless the contract contains the proviso mentioned in such subsection.

(4) Before final payment may be made on the final three percent of any such contract awarded on or after June 1, 1957, the State of Nebraska, department or agency thereof, officer or officers, or board awarding the contract must have received from the contractor a written clearance from the commissioner certifying that all payments then due of combined tax or interest which may have arisen under such contract have been made by the contractor or his or her subcontractor to the Unemployment Compensation Fund.

(5) The final three percent of any such contract referred to in subsection (4) of this section may be paid if the contractor has supplied a bond with a satisfactory surety company guaranteeing full payment to the Unemployment Compensation Fund and the State Unemployment Insurance Trust Fund of all combined tax and interest due under the Employment Security Law.

Source:Laws 1937, c. 108, § 14, p. 398; Laws 1939, c. 56, § 11, p. 250; C.S.Supp.,1941, § 48-713; R.S.1943, § 48-657; Laws 1957, c. 208, § 8, p. 735; Laws 1969, c. 404, § 1, p. 1401; Laws 1969, c. 405, § 1, p. 1403; Laws 1985, LB 339, § 39; Laws 1993, LB 604, § 1; Laws 1994, LB 1337, § 15; Laws 1999, LB 165, § 1; Laws 1999, LB 550, § 10; Laws 2001, LB 192, § 13.

Cross References

Uniform State Tax Lien Registration and Enforcement Act, see section 77-3901.

Annotations

Statutory lien for unemployment taxes, even though recorded, was subject to lien for federal income taxes. In re Kobiela, 152 F.Supp. 489 (D. Neb. 1957).

48-658. Combined tax; transfer of business; notice; succeeding employer's liability; action.

Any person, group of individuals, partnership, limited liability company, corporation, or employer which acquires the organization, trade, or business or substantially all the assets thereof of an employer shall notify the commissioner thereof in writing by registered or certified mail not later than five days prior to the acquisition. Unless such notice is given such acquisition shall be void as against the commissioner if, at the time of the acquisition, any combined tax is due and unpaid by the previous employer. The commissioner shall have the right to proceed against such person, group of individuals, partnership, limited liability company, corporation, or employer and the assets so acquired.

Source:Laws 1939, c. 56, § 11, p. 250; C.S.Supp.,1941, § 48-713; R.S.1943, § 48-658; Laws 1957, c. 208, § 9, p. 737; Laws 1993, LB 121, § 293; Laws 1994, LB 1337, § 16.

48-659. Combined tax and interest; legal distribution of employer's assets; priorities.

In the event of any distribution of an employer's assets pursuant to an order of any court under the laws of this state, including dissolution, reorganization, administration of estates of decedents, receivership, assignment for benefit of creditors, adjudicated insolvency, composition, or similar proceeding, any claims for combined tax and interest thereon due or accrued under the Employment Security Law which have not been reduced to a lien in accordance with section 48-657 shall receive the priority of a tax.

Source:Laws 1937, c. 108, § 14, p. 398; Laws 1939, c. 56, § 11, p. 251; C.S.Supp.,1941, § 48-713; R.S.1943, § 48-659; Laws 1953, c. 167, § 10, p. 536; Laws 1985, LB 339, § 40; Laws 1994, LB 1337, § 17.

48-660. Combined tax or interest; adjustments; refunds.

If more than the correct amounts of combined tax or interest are collected, then, under rules and regulations made under section 48-607, proper adjustments with respect thereto shall be made, without interest, in connection with subsequent combined tax. If such adjustment cannot be made within a reasonable time, the commissioner shall refund the excess from the appropriate fund. Applications for adjustments or refunds shall be made within four years after the date of such overcollection.

Source:Laws 1937, c. 108, § 14, p. 399; Laws 1939, c. 56, § 11, p. 251; C.S.Supp.,1941, § 48-713; R.S.1943, § 48-660; Laws 1945, c. 115, § 7, p. 386; Laws 1985, LB 339, § 41; Laws 1994, LB 1337, § 18.

48-660.01. Benefits; nonprofit organizations; combined tax; payments in lieu of contributions; election; notice; appeal; lien; liability.

(1) Benefits paid to employees of nonprofit organizations shall be financed in accordance with this section. For the purpose of this section, a nonprofit organization is an organization, or group of organizations, described in subdivision (9) of section 48-603.

(2)(a) Any nonprofit organization which is, or becomes, subject to the Employment Security Law shall pay combined tax under sections 48-648 to 48-661 unless it elects, in accordance with this subsection, to pay to the commissioner for the unemployment fund an amount, equal to the amount of regular benefits and of one-half of the extended benefits paid, that is attributable to service in the employ of such nonprofit organization, to individuals for weeks of unemployment which begin during the effective period of such election.

(b) Any nonprofit organization which is, or becomes, subject to the Employment Security Law may elect to become liable for payments in lieu of contributions for a period of not less than twelve months beginning with the date on which such subjectivity begins by filing a written notice of its election with the commissioner not later than thirty days immediately following the date of the determination of such subjectivity.

(c) Any nonprofit organization which makes an election in accordance with subdivision (b) of this subsection shall continue to be liable for payments in lieu of contributions until it files with the commissioner a written notice terminating its election not later than thirty days prior to the beginning of the taxable year for which such termination shall first be effective.

(d) Any nonprofit organization which has been paying combined tax under the Employment Security Law may change to a reimbursable basis by filing with the commissioner not later than thirty days prior to the beginning of any taxable year a written notice of election to become liable for payments in lieu of contributions. Such election shall not be terminable by the organization for that and the next year.

(e) The commissioner may for good cause extend the period within which a notice of election, or a notice of termination, must be filed and may permit an election to be retroactive but not any earlier than with respect to benefits paid after December 31, 1969.

(f) The commissioner, in accordance with such rules and regulations as he or she may adopt and promulgate, shall notify each nonprofit organization of any determination which he or she may make of its status as an employer and of the effective date of any election which it makes and of any termination of such election. Such determinations shall be subject to redetermination and appeal, and the appeal shall be in accordance with the Administrative Procedure Act.

(3) Payments in lieu of contributions shall be made in accordance with this subsection as follows:

(a) At the end of each calendar quarter, or at the end of any other period as determined by the commissioner, the commissioner shall bill each nonprofit organization, or group of such organizations, which has elected to make payment in lieu of contributions for an amount equal to the full amount of regular benefits plus one-half of the amount of extended benefits paid during such quarter or other prescribed period that is attributable to service in the employ of such organization;

(b) Payment of any bill rendered under subdivision (a) of this subsection shall be made not later than thirty days after such bill was mailed to the last-known address of the nonprofit organization or was otherwise delivered to it unless there has been an application for review and redetermination in accordance with subdivision (d) of this subsection;

(c) Payments made by any nonprofit organization under this subsection shall not be deducted or deductible, in whole or in part, from the remuneration of individuals in the employ of the organization;

(d) The amount due specified in any bill from the commissioner shall be conclusive on the organization unless, not later than thirty days after the bill was mailed to its last-known address or otherwise delivered to it, the organization files an application for redetermination by the commissioner setting forth the grounds for such application. The commissioner shall promptly review and reconsider the amount due specified in the bill and shall thereafter issue a redetermination in any case in which such application for redetermination has been filed. Any such redetermination shall be conclusive on the organization unless the organization appeals the redetermination, and the appeal shall be in accordance with the Administrative Procedure Act; and

(e) Past-due payments of amounts in lieu of contributions shall be subject to the same interest that, pursuant to section 48-655, applies to past-due contributions, and the commissioner may file a lien against such nonprofit organization in accordance with the Uniform State Tax Lien Registration and Enforcement Act. Such liens shall set forth the amount of payments in lieu of contributions and interest in default and shall be enforced as provided in the Uniform State Tax Lien Registration and Enforcement Act.

(4) If any nonprofit organization is delinquent in making payments in lieu of contributions as required under subsection (3) of this section, the commissioner may terminate such organization's election to make payments in lieu of contributions as of the beginning of the next taxable year, and such termination shall be effective for that and the next taxable year.

(5) Each employer that is liable for payments in lieu of contributions shall pay to the commissioner for the fund the amount of regular benefits plus the amount of one-half of extended benefits paid that are attributable to service in the employ of such employer. If benefits paid to an individual are based on wages paid by more than one employer and one or more of such employers are liable for payments in lieu of contributions, the amount payable to the fund by each employer that is liable for such payments shall be determined in accordance with section 48-652.

Source:Laws 1971, LB 651, § 11; Laws 1985, LB 339, § 42; Laws 1988, LB 352, § 89; Laws 1994, LB 1337, § 19; Laws 1999, LB 165, § 2; Laws 2015, LB271, § 9; Laws 2017, LB172, § 75.

Cross References

Administrative Procedure Act, see section 84-920.

Uniform State Tax Lien Registration and Enforcement Act, see section 77-3901.

Annotations

Under the Nebraska Employment Security Law, the contribution type of financing as provided by section 48-649, R.R.S.1943, and reimbursement financing under section 48-660.01, R.R.S.1943, are separate and distinct systems, and a nonprofit organization must elect to use one or the other. West Nebraska General Hospital v. Hanlon, 208 Neb. 173, 302 N.W.2d 694 (1981).

48-661. Employer; election to become subject to Employment Security Law; written election to become or cease to be an employer; termination of coverage.

(1) Except as otherwise provided in subsections (2) and (3) of this section, any employer not otherwise subject to the Employment Security Law, who is or becomes an employer subject to such law within any calendar year, shall be subject to such law during the whole of such calendar year.

(2) Except as otherwise provided in subsection (3) of this section, an employer, other than an employer subject by reason of subdivision (4)(a) of section 48-604, shall cease to be an employer subject to the Employment Security Law only as of January 1 of any calendar year, if he or she files with the commissioner, on or before January 31 of such year, a written application for termination of coverage, and the commissioner finds: (a) That there were no twenty different days, each day being in a different calendar week, within the preceding calendar year within which such employer employed one or more individuals in employment subject to such law and there was no calendar quarter within the preceding calendar year in which such employer paid wages for employment in the total sum of fifteen hundred dollars or more; (b) if the employer is subject by reason of subdivision (9) of section 48-603 there were no twenty different days, each being in a different calendar week, within the preceding calendar year within which such employer employed four or more individuals in employment subject to that section; (c) if the employer is subject by reason of subdivision (10) of section 48-603 there were no twenty different days, each being in a different calendar week, within the preceding calendar year within which such employer employed ten or more individuals in employment subject to that section and there was no calendar quarter within the preceding calendar year in which such employer paid remuneration in cash for employment subject to that section in the total sum of twenty thousand dollars or more; or (d) if the employer is subject by reason of subdivision (11) of section 48-603 there was no calendar quarter within the preceding calendar year in which such employer paid cash remuneration in the total sum of one thousand dollars or more for services in employment subject to that section. The commissioner may on his or her motion terminate the coverage of any employer who has not made such written request, but is otherwise eligible to terminate. Any employer whose entire experience account has been transferred to another employer under section 48-654 may request termination as of the date of such transfer if such request is made within thirty days after the determination is made allowing the transfer.

(3) An employer not otherwise subject to the Employment Security Law, who files with the commissioner his or her written election to become an employer subject thereto for not less than two calendar years, shall, with the written approval of such election by the commissioner, become an employer subject thereto to the same extent as all other employers, as of the date stated in such approval, and shall cease to be subject thereto as of January 1 of any calendar year subsequent to such two calendar years, only if on or before January 31 of such year, he or she has filed with the commissioner a written notice to that effect. Any employer of any person in this state for whom services that do not constitute employment as defined in section 48-604 are performed, may file with the commissioner a written election that all such services performed by individuals in his or her employ in one or more distinct establishments or places of business shall be deemed to constitute employment for all the purposes of the Employment Security Law for not less than two calendar years. Upon the written approval of such election by the commissioner, such services shall be deemed to constitute employment subject to such law from and after the date stated in such approval. Such services shall cease to be deemed employment subject hereto as of January 1 of any calendar year subsequent to such two calendar years, only if on or before January 31 of such year such employer has filed with the commissioner a written notice to that effect.

Source:Laws 1937, c. 108, § 8, p. 386; Laws 1939, c. 56, § 6, p. 243; Laws 1941, c. 94, § 6, p. 394; C.S.Supp.,1941, § 48-708; R.S.1943, § 48-661; Laws 1953, c. 167, § 11, p. 537; Laws 1955, c. 190, § 10, p. 549; Laws 1963, c. 293, § 1, p. 878; Laws 1967, c. 302, § 1, p. 821; Laws 1971, LB 651, § 12; Laws 1973, LB 35, § 1; Laws 1977, LB 509, § 9; Laws 1985, LB 339, § 43; Laws 1995, LB 1, § 14.

48-662. State employment service; establishment; functions; funds available; agreements authorized.

The state employment service is hereby established in the Department of Labor, State of Nebraska. The commissioner of such department, in the conduct of such service, shall establish and maintain free public employment offices in such number and in such places as may be necessary for the proper administration of the Employment Security Law and for the purpose of performing such functions as are within the purview of the Act of Congress entitled An act to provide for the establishment of a national employment system and for cooperation with the states in the promotion of such system, and for other purposes, approved June 6, 1933, (48 Stat. 113; 29 U.S.C. 49 (c)), as amended, herein referred to as the Wagner-Peyser Act. The provisions of the Act of Congress are hereby accepted by this state and the Department of Labor is hereby designated and constituted the agency of this state for the purposes of such act. All money received by this state under the Act of Congress shall be paid into the Employment Security Administration Fund and shall be expended solely for the maintenance of the state system of public employment offices. There shall also be credited to the Employment Security Administration Fund for the same purpose, any sums appropriated by the Legislature from the General Fund of the state for the purposes of maintaining public employment offices or of matching funds granted under the Wagner-Peyser Act. For the purpose of establishing and maintaining free public employment offices and promoting the use of their facilities, the commissioner is authorized to enter into agreements with the Railroad Retirement Board, any other agency of the United States or of this or any other state charged with the administration of any law whose purposes are reasonably related to the purposes of the Employment Security Law, any political subdivision of this state, or any private nonprofit organization and as a part of such agreements may accept money, services, or quarters as a contribution to the maintenance of the state system of public employment offices or as reimbursement for services performed. All money received for such purposes shall be paid into the Employment Security Administration Fund.

Source:Laws 1941, c. 94, § 17, p. 402; C.S.Supp.,1941, § 48-726; R.S.1943, § 48-662; Laws 1949, c. 163, § 15, p. 430; Laws 1961, c. 239, § 3, p. 713; Laws 1984, LB 747, § 5; Laws 1985, LB 339, § 44; Laws 2017, LB172, § 76.

48-663. Benefits; prohibited acts by employee; penalty; limitation of time for prosecution.

Whoever obtains or increases any benefit or other payment under sections 48-623 to 48-629 or under an employment security law of any other state, the federal government, or a foreign government, either for himself or herself or for any other person, (1) by making a false statement or representation knowing it to be false by oral, written, or electronic communication that can be attributed to such person by use of a personal identification number or other identification process or (2) by knowingly failing to disclose a material fact shall be guilty of a Class III misdemeanor. Each such false statement or representation or failure to disclose a material fact shall constitute a separate offense. Prosecution under this section may be instituted within three years after the time the offense was committed in any county where any part of the crime was committed, including the county in which the person received the benefits.

Source:Laws 1937, c. 108, § 16, p. 400; C.S.Supp.,1941, § 48-715; R.S.1943, § 48-663; Laws 1949, c. 163, § 16(1), p. 432; Laws 1953, c. 167, § 12, p. 538; Laws 1957, c. 208, § 10, p. 737; Laws 1977, LB 40, § 294; Laws 1985, LB 340, § 1; Laws 1986, LB 950, § 7; Laws 2001, LB 192, § 14; Laws 2017, LB172, § 77.

48-663.01. Benefits; false statements by employee; forfeit; appeal; failure to repay overpayment of benefits; penalty; levy authorized; procedure; failure or refusal to honor levy; liability.

(1)(a) Notwithstanding any other provision of this section, or of section 48-627 or 48-663, an individual who willfully fails to disclose amounts earned during any week with respect to which benefits are claimed by him or her or who willfully fails to disclose or has falsified as to any fact which would have disqualified him or her or rendered him or her ineligible for benefits during such week, shall forfeit all or part of his or her benefit rights, as determined by an adjudicator, with respect to uncharged wage credits accrued prior to the date of such failure or to the date of such falsifications.

(b) In addition to any benefits which he or she may be required to repay pursuant to subdivision (1)(a) of this section, if an overpayment is established pursuant to this section, an individual shall be required to pay to the department a penalty equal to fifteen percent of the amount of benefits received as a result of such willful failure to disclose or falsification. All amounts collected pursuant to this subdivision shall be remitted for credit to the Unemployment Compensation Fund.

(c) An appeal may be taken from any determination made pursuant to subdivision (1)(a) of this section in the manner provided in section 48-634.

(2)(a) If any person liable to repay an overpayment of unemployment benefits resulting from a determination under subdivision (1)(a) of this section and pay the penalty required under subdivision (1)(b) of this section fails or refuses to repay such overpayment and pay any penalty assessed within twelve months after the date the overpayment determination becomes final, the commissioner may issue a levy on salary, wages, or other regular payments due to or received by such person and such levy shall be continuous from the date the levy is served until the amount of the levy is satisfied. Notice of the levy shall be mailed to the person whose salary, wages, or other regular payment is levied upon at his or her last-known address not later than the date that the levy is served. Exemptions or limitations on the amount of salary, wages, or other regular payment that can be garnished or levied upon by a judgment creditor shall apply to levies made pursuant to this section. Appeal of a levy may be made in the manner provided in section 48-634, but such appeal shall not act as a stay of the levy.

(b) Any person upon whom a levy is served who fails or refuses to honor the levy without cause may be held liable for the amount of the levy up to the value of the assets of the person liable to repay the overpayment that are under the control of the person upon whom the levy is served at the time of service and thereafter.

Source:Laws 1949, c. 163, § 16(2), p. 432; Laws 2007, LB265, § 11; Laws 2012, LB1058, § 9; Laws 2015, LB271, § 10; Laws 2017, LB172, § 78.

48-664. Benefits; false statements by employer; penalty; failure or refusal to make combined tax payment.

Any employer, whether or not subject to the Employment Security Law, or any officer or agent of such an employer or any other person who makes a false statement or representation knowing it to be false, or who knowingly fails to disclose a material fact, to prevent or reduce the payment of benefits to any individual entitled thereto, to obtain benefits for an individual not entitled thereto, to avoid becoming or remaining subject to such law, or to avoid or reduce any contribution or other payment required from an employer under sections 48-648 and 48-649 to 48-649.04, or who willfully fails or refuses to make any such contributions or other payment or to furnish any reports required under the Employment Security Law or to produce or permit the inspection or copying of records as required under such law, shall be guilty of a Class III misdemeanor. Each such false statement or representation or failure to disclose a material fact and each day of such failure or refusal shall constitute a separate offense. An individual employer, partner, corporate officer, or member of a limited liability company or limited liability partnership who willfully fails or refuses to make any combined tax payment shall be jointly and severally liable for the payment of such combined tax and any penalties and interest owed thereon. When an unemployment benefit overpayment occurs, in whole or in part, as the result of a violation of this section by an employer, the amount of the overpayment recovered shall not be credited back to such employer's experience account.

Source:Laws 1937, c. 108, § 16, p. 400; C.S.Supp.,1941, § 48-715; R.S.1943, § 48-664; Laws 1953, c. 167, § 13, p. 539; Laws 1977, LB 40, § 295; Laws 1985, LB 339, § 45; Laws 2005, LB 484, § 12; Laws 2007, LB265, § 12; Laws 2017, LB172, § 79.

48-665. Benefits; erroneous payments; recovery; setoff against federal income tax refund; procedure.

(1) Any person who has received any sum as benefits under the Employment Security Law to which he or she was not entitled shall be liable to repay such sum to the commissioner for the fund. Any such erroneous benefit payments shall be collectible (a) without interest by civil action in the name of the commissioner, (b) by offset against any future benefits payable to the claimant with respect to the benefit year current at the time of such receipt or any benefit year which may commence within three years after the end of such current benefit year, except that no such recoupment by the withholding of future benefits shall be had if such sum was received by such person without fault on his or her part and such recoupment would defeat the purpose of the Employment Security Law or would be against equity and good conscience, (c) by setoff against any state income tax refund due the claimant pursuant to sections 77-27,197 to 77-27,209, or (d) as provided in subsection (2) of this section.

(2) The commissioner may recover a covered unemployment compensation debt, as defined in 26 U.S.C. 6402, by setoff against a liable party's federal income tax refund. Such setoff shall be made in accordance with such section and United States Treasury regulations and guidelines adopted pursuant thereto. The commissioner shall notify the debtor that the commissioner plans to recover the debt through setoff against any federal income tax refund, and the debtor shall be given sixty days to present evidence that all or part of the liability is either not legally enforceable or is not a covered unemployment compensation debt. The commissioner shall review any evidence presented and determine that the debt is legally enforceable and is a covered unemployment compensation debt before proceeding further with the offset. The amount recovered, less any administrative fees charged by the United States Treasury, shall be credited to the debt owed. Any determination rendered under this subsection that the liable party's federal income tax refund is not subject to setoff does not require the commissioner to amend the commissioner's initial determination that formed the basis for the proposed setoff.

Source:Laws 1937, c. 108, § 16, p. 401; Laws 1941, c. 94, § 12, p. 400; C.S.Supp.,1941, § 48-715; R.S.1943, § 48-665; Laws 1953, c. 167, § 14(1), p. 539; Laws 1969, c. 403, § 2, p. 1400; Laws 1980, LB 798, § 1; Laws 1985, LB 339, § 46; Laws 1986, LB 950, § 8; Laws 1993, LB 46, § 15; Laws 2009, LB631, § 11; Laws 2012, LB1058, § 10; Laws 2017, LB172, § 80.

Annotations

The time limitations provided for in sections 25-206 and 25-218 do not infringe upon the Department of Labor's ability to collect an overpayment by setoff under this section. McCoy v. Albin, 298 Neb. 297, 903 N.W.2d 902 (2017).

48-665.01. Benefits; unlawful payments from foreign state or government; recovery.

Any person who has received any sum as benefits to which he or she was not entitled from any agency which administers an employment security law of another state or foreign government and who has been found liable to repay benefits received under such law may be required to repay to the commissioner for such state or foreign government the amount found due. Such amount, without interest, may be collected (1) by civil action in the name of the commissioner acting as agent for such agency, (2) by offset against any future benefits payable to the claimant under the Employment Security Law for any benefit year which may commence within three years after the claimant was notified such amount was due, except that no such recoupment by the withholding of future benefits shall be had if such sum was received by such person without fault on his or her part and such recoupment would defeat the purpose of the Employment Security Law or would be against equity and good conscience, (3) by setoff against any state income tax refund due the claimant pursuant to sections 77-27,197 to 77-27,209, or (4) as provided in subsection (2) of section 48-665.

Source:Laws 1953, c. 167, § 14(2), p. 540; Laws 1986, LB 950, § 9; Laws 1993, LB 46, § 16; Laws 2012, LB1058, § 11.

48-666. Violations; general penalty.

Any person who shall willfully violate any provision of the Employment Security Law or any order, rule, or regulation thereunder, the violation of which is made unlawful or the observance of which is required under the terms of such law, and for which a penalty is neither prescribed in such law nor provided by any other applicable statute, shall be guilty of a Class III misdemeanor. Each day such violation continues shall be a separate offense.

Source:Laws 1937, c. 108, § 16, p. 401; C.S.Supp.,1941, § 48-715; R.S.1943, § 48-666; Laws 1977, LB 40, § 296; Laws 1985, LB 339, § 47.

48-667. Commissioner of Labor; civil and criminal actions; representation.

(1) In any civil action to enforce the Employment Security Law, the commissioner and the state may be represented by any qualified attorney who is employed by the commissioner and is designated by him or her for this purpose or at the commissioner's request by the Attorney General.

(2) All criminal actions for violation of any provision of the Employment Security Law or of any rules or regulations issued pursuant thereto shall be prosecuted by the county attorney of any county in which the violation, or a part thereof, occurred.

Source:Laws 1937, c. 108, § 17, p. 402; C.S.Supp.,1941, § 48-716; R.S.1943, § 48-667; Laws 1953, c. 167, § 15, p. 540; Laws 1985, LB 339, § 48.

48-668. Unemployment compensation; services performed in another state; arrangements with other states.

(1) The commissioner is hereby authorized to enter into arrangements with the appropriate and duly authorized agencies of other states or the federal government, or both, whereby:

(a) Services performed by an individual for a single employer for which services are customarily performed by such individual in more than one state shall be deemed to be services performed entirely within any one of the states in which (i) any part of such individual's service is performed, (ii) such individual has his or her residence, or (iii) the employer maintains a place of business, if there is in effect, as to such services, an election by an employer with the acquiescence of such individual, approved by the agency charged with the administration of such state's unemployment compensation law, pursuant to which services performed by such individual for such employer are deemed to be performed entirely within such state;

(b) Service performed by not more than three individuals, on any portion of a day but not necessarily simultaneously, for a single employer which customarily operates in more than one state shall be deemed to be service performed entirely within the state in which such employer maintains the headquarters of his or her business if there is in effect, as to such service, an approved election by an employer with the affirmative consent of each such individual, pursuant to which service performed by such individual for such employer is deemed to be performed entirely within such state;

(c) Potential rights to benefits under the Employment Security Law may constitute the basis for payment of benefits by another state or the federal government and potential rights to benefits accumulated under the law of another state or the federal government may constitute the basis for the payment of benefits by this state. Such benefits shall be paid under the Employment Security Law or under the law of such state or the federal government or under such combination of the provisions of both laws, as may be agreed upon as being fair and reasonable to all affected interests. No such arrangement shall be entered into unless it contains provisions for reimbursement to the fund for such benefits as are paid on the basis of wages and service subject to the law of another state or the federal government, and provision for reimbursement from the fund for such benefits as are paid by another state or the federal government on the basis of wages and service subject to the Employment Security Law. Reimbursements paid from the fund pursuant to this section shall be deemed to be benefits for the purposes of the Employment Security Law; and

(d) Wages, upon the basis of which an individual may become entitled to benefits under an employment security law of another state or of the federal government, shall be deemed to be wages for insured work for the purpose of determining his or her benefits under the Employment Security Law; and wages for insured work, on the basis of which an individual may become entitled to benefits under the Employment Security Law, shall be deemed to be wages on the basis of which unemployment insurance is payable under such law of another state or of the federal government. No such arrangement shall be entered into unless it contains provisions for reimbursement to the fund for such of the benefits paid under the Employment Security Law upon the basis of such wages and provision for reimbursement from the fund for such benefits paid under such other law upon the basis of wages for insured work, as the commissioner finds will be fair and reasonable to all affected interests. Reimbursement paid from the fund pursuant to this section shall be deemed to be benefits for the purposes of the Employment Security Law.

(2) Notwithstanding any other provisions of this section, the commissioner shall participate in any arrangements for the payment of benefits on the basis of combining an individual's wages and employment covered under the Employment Security Law with his or her wages and employment covered under the unemployment compensation laws of other states which are approved by the United States Secretary of Labor in consultation with the state unemployment compensation agencies as reasonably calculated to assure the prompt and full payment of benefits in such situations and which include provisions for (a) applying the base period of a single state law to a claim involving the combining of an individual's wages and employment covered under two or more state unemployment compensation laws and (b) avoiding the duplicate use of wages and employment by reason of such combining. However, no benefits paid pursuant to an agreement to combine wages entered into under this subsection shall be charged against any employer's experience account if the employer's experience account, under the same or similar circumstances, would not be charged under the Employment Security Law. Benefits received by a claimant pursuant to an agreement entered into under this subsection to which he or she is not entitled shall be credited to an employer's experience account or reimbursement account in the same manner as claims paid based solely upon the laws of this state.

Source:Laws 1937, c. 108, § 18, p. 402; Laws 1939, c. 56, § 12, p. 251; C.S.Supp.,1941, § 48-717; R.S.1943, § 48-668; Laws 1945, c. 115, § 8, p. 387; Laws 1949, c. 163, § 17(1), p. 432; Laws 1971, LB 651, § 13; Laws 1985, LB 339, § 49; Laws 2009, LB631, § 12.

48-668.01. Unemployment compensation; services performed in another state; arrangements with other states; alter.

If after entering into an arrangement provided by sections 48-668 to 48-668.03 the commissioner finds that the employment security law of any state or of the federal government participating in such arrangement has been changed in a material respect, the commissioner shall make a new finding as to whether such arrangement shall be continued with such state or with the federal government.

Source:Laws 1949, c. 163, § 17(2), p. 434.

48-668.02. Unemployment compensation; services performed in another state; reimbursements to and from other states.

Reimbursements paid from the fund pursuant to subdivisions (1)(c) and (1)(d) of section 48-668 shall be deemed to be benefits for the purposes of the Employment Security Law. The commissioner is authorized to make to other state or federal agencies and to receive from such other state or federal agencies reimbursements from or to the fund in accordance with arrangements entered into pursuant to section 48-668.

Source:Laws 1937, c. 108, § 18, p. 402; Laws 1939, c. 56, § 12, p. 251; C.S.Supp.,1941, § 48-717; R.S.1943, § 48-668; Laws 1945, c. 115, § 8, p. 387; Laws 1949, c. 163, § 17(3), p. 434; Laws 1985, LB 339, § 50; Laws 2009, LB631, § 13.

48-668.03. Unemployment compensation; services performed in foreign country; facilities and services; utilize.

To the extent permissible under the laws and Constitution of the United States, the commissioner is authorized to enter into or cooperate in arrangements whereby facilities and services provided under the Employment Security Law and facilities and services provided under the unemployment compensation law of any foreign government may be utilized for the taking of claims and the payment of benefits under the unemployment insurance law of this state or under a similar law of such government.

Source:Laws 1937, c. 108, § 18, p. 402; Laws 1939, c. 56, § 12, p. 251; C.S.Supp.,1941, § 48-717; R.S.1943, § 48-668; Laws 1945, c. 115, § 8, p. 387; Laws 1949, c. 163, § 17(4), p. 434; Laws 1985, LB 339, § 51.

48-669. Repealed. Laws 2017, LB172, § 89.

48-670. Federal law; adjudged unconstitutional, invalid, or stayed; effect.

If Public Law 94-566 or the federal acts it amends is adjudged unconstitutional or invalid in its application or stayed pendente lite by any court of competent jurisdiction, then the coverage under the Employment Security Law of those employees of any political subdivision is automatically stayed or repealed.

Source:Laws 1977, LB 509, § 10; Laws 1985, LB 339, § 52.

48-671. City or village; levy a tax; when; limitation.

Any city or village of the state which makes any contributions or payments required to be made by the Employment Security Law shall levy a tax in order to defray the cost to such city or village in meeting the obligations arising by reason of such law. Such tax shall be in excess of and in addition to all other taxes now or hereafter authorized to be levied by such city. The revenue so raised shall be limited to the amount needed to defray the cost to such city or village in meeting the obligations arising by reason of the Employment Security Law and shall be used for no other purpose.

Source:Laws 1977, LB 509, § 11; Laws 1985, LB 339, § 53.

48-672. Short-time compensation program created.

Sections 48-672 to 48-683 create the short-time compensation program.

Source:Laws 2014, LB961, § 13.

48-673. Short-time compensation program; terms, defined.

For purposes of sections 48-672 to 48-683:

(1) Affected unit means a specified plant, department, shift, or other definable unit which includes three or more employees to which an approved short-time compensation plan applies;

(2) Commissioner means the Commissioner of Labor or any delegate or subordinate responsible for approving applications for participation in a short-time compensation plan;

(3) Health and retirement benefits means employer-provided health benefits and retirement benefits under a defined benefit plan, as defined in section 414(j) of the Internal Revenue Code, or contributions under a defined contribution plan, as defined in section 414(i) of the Internal Revenue Code, which are incidents of employment in addition to the cash remuneration earned;

(4) Short-time compensation means the unemployment benefits payable to employees in an affected unit under an approved short-time compensation plan, as distinguished from the unemployment benefits otherwise payable under the Employment Security Law;

(5) Short-time compensation plan means a plan submitted by an employer, for written approval by the commissioner, under which the employer requests the payment of short-time compensation to workers in an affected unit of the employer to avert layoffs;

(6) Unemployment compensation means the unemployment benefits payable under the Employment Security Law other than short-time compensation and includes any amounts payable pursuant to an agreement under any federal law providing for compensation, assistance, or allowances with respect to unemployment; and

(7) Usual weekly hours of work means the usual hours of work for full-time or part-time employees in the affected unit when that unit is operating on its regular basis, not to exceed forty hours and not including hours of overtime work.

Source:Laws 2014, LB961, § 14.

48-674. Short-time compensation program; participation; application; form; contents.

An employer wishing to participate in the short-time compensation program shall submit a signed written short-time compensation plan to the commissioner for approval. The commissioner shall develop an application form to request approval of a short-time compensation plan and an approval process. The application shall include:

(1) The affected unit or units covered by the plan, including the number of full-time or part-time employees in such unit, the percentage of employees in the affected unit covered by the plan, identification of each individual employee in the affected unit by name, social security number, and the employer's unemployment tax account number, and any other information required by the commissioner to identify plan participants;

(2) A description of how employees in the affected unit will be notified of the employer's participation in the short-time compensation plan if such application is approved, including how the employer will notify those employees in a collective-bargaining unit as well as any employees in the affected unit who are not in a collective-bargaining unit. If the employer will not provide advance notice to employees in the affected unit, the employer shall explain in a statement in the application why it is not feasible to provide such notice;

(3) A requirement that the employer identify the usual weekly hours of work for employees in the affected unit and the specific percentage by which their hours will be reduced during all weeks covered by the plan. An application shall specify the percentage of reduction for which a short-time compensation plan application may be approved which shall be not less than ten percent and not more than sixty percent. If the plan includes any week for which the employer regularly provides no work due to a holiday or other plant closing, then such week shall be identified in the application;

(4)(a) Certification by the employer that, if the employer provides health and retirement benefits to any employee whose usual weekly hours of work are reduced under the program, such benefits will continue to be provided to employees participating in the short-time compensation program under the same terms and conditions as though the usual weekly hours of work of such employee had not been reduced or to the same extent as other employees not participating in the short-time compensation program.

(b) For defined benefit retirement plans, the hours that are reduced under the short-time compensation plan shall be credited for purposes of participation, vesting, and accrual of benefits as though the usual weekly hours of work had not been reduced. The dollar amount of employer contributions to a defined contribution plan that are based on a percentage of compensation may be less due to the reduction in the employee's compensation.

(c) Notwithstanding subdivisions (4)(a) and (b) of this section, an application may contain the required certification when a reduction in health and retirement benefits scheduled to occur during the duration of the plan will be applicable equally to employees who are not participating in the short-time compensation program and to those employees who are participating;

(5) Certification by the employer that the aggregate reduction in work hours is in lieu of layoffs, temporary or permanent layoffs, or both. The application shall include an estimate of the number of employees who would have been laid off in the absence of the short-time compensation plan;

(6) Certification by the employer that the short-time compensation program shall not serve as a subsidy of seasonal employment during the off-season, nor as a subsidy of temporary part-time or intermittent employment;

(7) Agreement by the employer to: Furnish reports to the commissioner relating to the proper conduct of the plan; allow the commissioner access to all records necessary to approve or disapprove the plan application and, after approval of a plan, to monitor and evaluate the plan; and follow any other directives the commissioner deems necessary for the agency to implement the plan and which are consistent with the requirements for short-time compensation plan applications;

(8) Certification by the employer that participation in the short-time compensation plan and its implementation is consistent with the employer's obligations under applicable federal and state laws;

(9) The effective date and duration of the plan that shall expire not later than the end of the twelfth full calendar month after the effective date;

(10) Certification by the employer that it has obtained the written approval of any applicable collective-bargaining unit representative and has notified all affected employees who are not in a collective-bargaining unit of the proposed short-time compensation plan;

(11) Certification by the employer that it will not hire additional part-time or full-time employees for the affected unit while the short-time compensation plan is in effect; and

(12) Any other provision added to the application by the commissioner that the United States Secretary of Labor determines to be appropriate for purposes of a short-time compensation program.

Source:Laws 2014, LB961, § 15.

48-675. Short-time compensation program; commissioner; decision; eligibility.

(1) The commissioner shall approve or disapprove a short-time compensation plan in writing within thirty days after its receipt and promptly communicate the decision to the employer. A decision disapproving the plan shall clearly identify the reasons for the disapproval. The disapproval shall be final, but the employer shall be allowed to submit another short-time compensation plan for approval not earlier than forty-five days after the date of the disapproval, except that the commissioner may, for good cause shown, approve a plan for an employer within such forty-five-day period.

(2) Except as provided in subsection (4) of this section, a short-time compensation plan will only be approved for a contributory employer that (a) is eligible for experience rating under section 48-649.03, (b) has a positive balance in the employer's experience account, (c) has filed all quarterly reports and other reports required under the Employment Security Law, and (d) has paid all obligation assessments, contributions, interest, and penalties due through the date of the employer's application.

(3) Except as provided in subsection (4) of this section, a short-time compensation plan will only be approved for an employer liable for making payments in lieu of contributions that has filed all quarterly reports and other reports required under the Employment Security Law and has paid all obligation assessments, payments in lieu of contributions, interest, and penalties due through the date of the employer's application.

(4) The commissioner may, for good cause shown, waive any requirement in subsection (2) or (3) of this section.

Source:Laws 2014, LB961, § 16; Laws 2017, LB172, § 81; Laws 2022, LB780, § 5.

48-676. Short-time compensation program; plan; effective date; notice of approval; expiration; revocation; termination.

(1) A short-time compensation plan shall be effective on the date that is mutually agreed upon by the employer and the commissioner, which shall be specified in the notice of approval to the employer. The plan shall expire on the date specified in the notice of approval, which shall be either the date at the end of the twelfth full calendar month after its effective date or an earlier date mutually agreed upon by the employer and the commissioner.

(2) If a short-time compensation plan is revoked by the commissioner under section 48-677, the plan shall terminate on the date specified in the commissioner's written order of revocation.

(3) An employer may terminate a short-time compensation plan at any time upon written notice to the commissioner. Upon receipt of such notice from the employer, the commissioner shall promptly notify each member of the affected unit of the termination date.

(4) An employer may submit a new application to participate in another short-time compensation plan at any time after the expiration or termination date.

Source:Laws 2014, LB961, § 17.

48-677. Short-time compensation program; plan; revocation; procedure; grounds; order.

(1) The commissioner may revoke approval of a short-time compensation plan for good cause at any time, including upon the request of any of the affected unit's employees. The revocation order shall be in writing and shall specify the reasons for the revocation and the date the revocation is effective.

(2) The commissioner may periodically review the operation of each employer's short-time compensation plan to assure that no good cause exists for revocation of the approval of the plan. Good cause shall include, but not be limited to, failure to comply with the assurances given in the plan, unreasonable revision of productivity standards for the affected unit, conduct or occurrences tending to defeat the intent and effective operation of the short-time compensation plan, and violation of any criteria on which approval of the plan was based.

Source:Laws 2014, LB961, § 18.

48-678. Short-time compensation program; plan; modification; request; decision; employer; report.

(1) An employer may request a modification of an approved plan by filing a written request with the commissioner. The request shall identify the specific provisions proposed to be modified and provide an explanation of why the proposed modification is appropriate for the short-time compensation plan. The commissioner shall approve or disapprove the proposed modification in writing within thirty days after receipt and promptly communicate the decision to the employer.

(2) The commissioner may approve a request for modification of the plan based on conditions that have changed since the plan was approved if the modification is consistent with and supports the purposes for which the plan was initially approved. A modification does not extend the expiration date of the original plan, and the commissioner shall promptly notify the employer whether the plan modification has been approved and, if approved, the effective date of the modification.

(3) An employer is not required to request approval of a plan modification from the commissioner if the change is not substantial, but the employer must report every change to the plan to the commissioner promptly and in writing. The commissioner may terminate an employer's plan if the employer fails to meet this reporting requirement. If the commissioner determines that the reported change is substantial, the commissioner shall require the employer to request a modification to the plan.

Source:Laws 2014, LB961, § 19.

48-679. Short-time compensation program; individual; eligibility.

An individual is eligible to receive short-time compensation with respect to any week only if the individual is monetarily eligible for unemployment compensation, not otherwise disqualified for unemployment compensation, and:

(1) During the week, the individual is employed as a member of an affected unit under an approved short-time compensation plan, which was approved prior to that week, and the plan is in effect with respect to the week for which short-time compensation is claimed;

(2) Notwithstanding any other provisions of the Employment Security Law relating to availability for work and actively seeking work, the individual is available for the individual's usual hours of work with the short-time compensation employer, which may include, for purposes of this section, participating in training to enhance job skills that is approved by the commissioner such as employer-sponsored training or training funded under the federal Workforce Innovation and Opportunity Act, 29 U.S.C. 3101 et seq.; and

(3) Notwithstanding any other provision of law, an individual covered by a short-time compensation plan is deemed unemployed in any week during the duration of such plan if the individual's remuneration as an employee in an affected unit is reduced based on a reduction of the individual's usual weekly hours of work under an approved short-time compensation plan.

Source:Laws 2014, LB961, § 20; Laws 2017, LB172, § 82.

48-680. Short-time compensation program; weekly benefit amount; provisions applicable to individuals.

(1) The short-time compensation weekly benefit amount shall be the product of the regular weekly unemployment compensation amount for a week of total unemployment multiplied by the percentage of reduction in the individual's usual weekly hours of work.

(2) An individual may be eligible for short-time compensation or unemployment compensation, as appropriate, except that no individual shall be eligible for combined benefits in any benefit year in an amount more than the maximum entitlement established for regular unemployment compensation, nor shall an individual be paid short-time compensation benefits for more than fifty-two weeks under a short-time compensation plan.

(3) The short-time compensation paid to an individual shall be deducted from the maximum entitlement amount of unemployment compensation established for that individual's benefit year.

(4) Provisions applicable to unemployment compensation claimants shall apply to short-time compensation claimants to the extent that they are not inconsistent with short-time compensation provisions. An individual who files an initial claim for short-time compensation benefits shall receive a monetary determination.

(5) The following provisions apply to individuals who work for both a short-time compensation employer and another employer during weeks covered by the approved short-time compensation plan:

(a) If combined hours of work in a week for both employers does not result in a reduction of at least ten percent, or, if higher, the minimum percentage of reduction required to be eligible for a short-time compensation, of the usual weekly hours of work with the short-time employer, the individual shall not be entitled to short-time compensation;

(b) If the combined hours of work for both employers results in a reduction equal to or greater than ten percent, or, if higher, the minimum percentage reduction required to be eligible for short-time compensation, of the usual weekly hours of work for the short-time compensation employer, the short-time compensation payable to the individual is reduced for that week and is determined by multiplying the weekly unemployment benefit amount for a week of total unemployment by the percentage by which the combined hours of work have been reduced by ten percent, or, if higher, the minimum percentage reduction required to be eligible for short-time compensation, or more of the individual's usual weekly hours of work. A week for which benefits are paid under this subdivision shall be reported as a week of short-time compensation; and

(c) If an individual worked the reduced percentage of the usual weekly hours of work for the short-time compensation employer and is available for all his or her usual hours of work with the short-time compensation employer, and the individual did not work any hours for the other employer, either because of the lack of work with that employer or because the individual is excused from work with the other employer, the individual shall be eligible for short-time compensation for that week. The benefit amount for such week shall be calculated as provided in subsection (1) of this section.

(6) An individual who is not provided any work during a week by the short-time compensation employer, or any other employer, and who is otherwise eligible for unemployment compensation shall be eligible for the amount of unemployment compensation to which he or she would otherwise be eligible.

(7) An individual who is not provided any work by the short-time compensation employer during a week, but who works for another employer and is otherwise eligible, may be paid unemployment compensation for that week subject to the disqualifying income and other provisions applicable to claims for regular compensation.

Source:Laws 2014, LB961, § 21.

48-681. Short-time compensation; charged to employer's experience account.

Short-time compensation shall be charged to the employer's experience account in the same manner as unemployment compensation is charged. Employers liable for payments in lieu of contributions shall have short-time compensation attributed to service in their employ in the same manner as unemployment compensation is attributed.

Source:Laws 2014, LB961, § 22.

48-682. Short-time compensation; when considered exhaustee.

An individual who has received all of the short-time compensation or combined unemployment compensation and short-time compensation available in a benefit year shall be considered an exhaustee for purposes of extended benefits under section 48-628.14 and, if otherwise eligible under such section, shall be eligible to receive extended benefits.

Source:Laws 2014, LB961, § 23; Laws 2017, LB172, § 83.

48-683. Short-time compensation program; department; funding; report.

(1) The department shall not use General Funds to implement the short-time compensation program. The department shall use any and all available federal funds to implement the short-time compensation program, including, but not limited to, federal funds distributed to the state under sections 903(c), 903(d), 903(f), and 903(g) of the federal Social Security Act, as amended.

(2) The department shall submit an annual report to the Governor and electronically to the Legislature on the short-time compensation program trends, including the number of employers filing short-time compensation program plans, the number of layoffs averted through the use of the short-time compensation program, the amount of short-time compensation program benefits paid, and other information pertinent to the short-time compensation program.

Source:Laws 2014, LB961, § 24.

48-701. Transferred to section 48-721.

48-702. Transferred to section 48-722.

48-703. Transferred to section 48-723.

48-704. Transferred to section 48-724.

48-705. Transferred to section 48-725.

48-706. Transferred to section 48-726.

48-707. Transferred to section 48-727.

48-708. Transferred to section 48-728.

48-709. Transferred to section 48-729.

48-710. Transferred to section 48-730.

48-711. Repealed. Laws 1961, c. 284, § 1.

48-712. Transferred to section 48-731.

48-713. Transferred to section 48-732.

48-714. Transferred to section 48-733.

48-714.01. Repealed. Laws 1987, LB 462, § 21.

48-714.02. Transferred to section 48-734.

48-715. Transferred to section 48-735.

48-716. Transferred to section 48-736.

48-717. Transferred to section 48-737.

48-718. Transferred to section 48-738.

48-719. Transferred to section 81-5,165.

48-720. Transferred to section 81-5,166.

48-721. Transferred to section 81-5,167.

48-722. Transferred to section 81-5,168.

48-723. Transferred to section 81-5,169.

48-724. Transferred to section 81-5,170.

48-725. Transferred to section 81-5,171.

48-726. Transferred to section 81-5,172.

48-727. Transferred to section 81-5,173.

48-728. Transferred to section 81-5,174.

48-729. Transferred to section 81-5,175.

48-730. Transferred to section 81-5,176.

48-731. Transferred to section 81-5,177.

48-732. Transferred to section 81-5,178.

48-733. Transferred to section 81-5,179.

48-734. Repealed. Laws 1995, LB 438, § 17.

48-735. Repealed. Laws 1995, LB 438, § 17.

48-735.01. Transferred to section 81-5,180.

48-736. Transferred to section 81-5,181.

48-737. Transferred to section 81-5,182.

48-738. Transferred to section 81-5,183.

48-739. Transferred to section 81-5,184.

48-740. Transferred to section 81-5,185.

48-741. Transferred to section 81-5,186.

48-742. Transferred to section 81-5,187.

48-743. Transferred to section 81-5,188.

48-801. Terms, defined.

As used in the Industrial Relations Act, unless the context otherwise requires:

(1) Certificated employee has the same meaning as in section 79-824;

(2) Commission means the Commission of Industrial Relations;

(3) Commissioner means a member of the commission;

(4) Governmental service means all services performed under employment by the State of Nebraska or any political or governmental subdivision thereof, including public corporations, municipalities, and public utilities;

(5) Industrial dispute includes any controversy between public employers and public employees concerning terms, tenure, or conditions of employment; the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment; or refusal to discuss terms or conditions of employment;

(6) Instructional employee means an employee of a community college who provides direct instruction to students;

(7) Labor organization means any organization of any kind or any agency or employee representation committee or plan, in which public employees participate and which exists for the purpose, in whole or in part, of dealing with public employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work;

(8) Metropolitan statistical area means a metropolitan statistical area as defined by the United States Office of Management and Budget;

(9) Municipality means any city or village in Nebraska;

(10) Noncertificated and noninstructional school employee means a school district, educational service unit, or community college employee who is not a certificated or instructional employee;

(11) Public employee includes any person employed by a public employer;

(12) Public employer means the State of Nebraska or any political or governmental subdivision of the State of Nebraska except the Nebraska National Guard or state militia;

(13) Public utility includes any person or governmental entity, including any public corporation, public power district, or public power and irrigation district, which carries on an intrastate business in this state and over which the government of the United States has not assumed exclusive regulation and control, that furnishes transportation for hire, telephone service, telegraph service, electric light, heat, or power service, gas for heating or illuminating, whether natural or artificial, or water service, or any one or more thereof; and

(14) Supervisor means any public employee having authority, in the interest of the public employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other public employees, or responsibility to direct them, to adjust their grievances, or effectively to recommend such action, if in connection with such action the exercise of such authority is not of a merely routine or clerical nature but requires the use of independent judgment.

Source:Laws 1947, c. 178, § 1, p. 586; Laws 1967, c. 303, § 1, p. 823; Laws 1967, c. 304, § 1, p. 826; Laws 1969, c. 407, § 1, p. 1405; Laws 1972, LB 1228, § 1; Laws 1985, LB 213, § 1; Laws 1986, LB 809, § 2; Laws 1993, LB 121, § 294; Laws 2007, LB472, § 1; Laws 2011, LB397, § 1.

Annotations

1. Constitutionality

2. Jurisdiction of commission

3. Bargaining units

4. Miscellaneous

1. Constitutionality

The statutes which give the Court of Industrial Relations jurisdiction over public employees are not unconstitutional. American Fed. of S., C. & M. Emp. v. Department of Public Institutions, 195 Neb. 253, 237 N.W.2d 841 (1976).

To pass scrutiny of Constitution of the United States, Nebraska Court of Industrial Relations, in case within its jurisdiction, must be deemed to have sufficient power to fully vindicate, preserve, and protect a federal constitutional right. Teamsters Pub. Emp. U. Loc. 594 v. City of West Point, 338 F.Supp. 927 (D. Neb. 1972).

2. Jurisdiction of commission

A mere request by a union for information regarding employee transfer lists and test results which is declined by the employer does not constitute an industrial dispute. Neb. Pub. Emp. v. City of Omaha, 235 Neb. 768, 457 N.W.2d 429 (1990).

A uniquely personal termination of employment does not constitute an industrial dispute, notwithstanding the fact it may involve a controversy concerning terms, tenure, or conditions of employment. Wood v. Tesch, 222 Neb. 654, 386 N.W.2d 436 (1986).

The Commission of Industrial Relations has jurisdiction, that is, authorized power, to resolve industrial disputes between agencies or departments of the State of Nebraska and their employees. State Code Agencies Ed. Assn. v. Department of Pub. Insts., 219 Neb. 555, 364 N.W.2d 44 (1985).

The authority of the Court of Industrial Relations, now Commission of Industrial Relations, is limited to industrial disputes, as defined in this section. University Police Officers Union v. University of Nebraska, 203 Neb. 4, 277 N.W.2d 529 (1979).

The University of Nebraska has the primary authority for establishing its own schedule of wages, terms and conditions of employment, and hours of labor but when an industrial dispute, as defined in this section, arises, the Commission of Industrial Relations acquires jurisdiction for the limited purpose of resolving such dispute. University Police Officers Union v. University of Nebraska, 203 Neb. 4, 277 N.W.2d 529 (1979).

3. Bargaining units

House officers of the University of Nebraska Medical Center are employees of the state entitled to participate in an appropriate bargaining unit. House Officers Assn. v. University of Nebraska Medical Center, 198 Neb. 697, 255 N.W.2d 258 (1977).

Supervisory or managerial personnel may not enter into a bargaining unit with rank and file employees and may not retain the same bargaining agent. Nebraska Assn. of Pub. Emp. v. Nebraska Game & Parks Commission, 197 Neb. 178, 247 N.W.2d 449 (1976).

4. Miscellaneous

Employees lose the statutory protection of the Industrial Relations Act for conduct or speech if it is flagrant misconduct, which includes, but is not limited to, statements or actions that (1) are of an outrageous and insubordinate nature, (2) compromise the public employer's ability to accomplish its mission, or (3) disrupt discipline, as well as conduct that is clearly outside the bounds of any protection such as assault and battery or racial discrimination. Omaha Police Union Local 101 v. City of Omaha, 274 Neb. 70, 736 N.W.2d 375 (2007).

Public employees belonging to a labor organization have the protected right to engage in conduct and make remarks, including publishing statements through the media, concerning wages, hours, or terms and conditions of employment. Omaha Police Union Local 101 v. City of Omaha, 274 Neb. 70, 736 N.W.2d 375 (2007).

The Commission of Industrial Relations must balance the employee's right to engage in protected activity, which permits some leeway for impulsive behavior, against the employer's right to maintain order and respect for its supervisory staff. Factors that the commission may consider, but would not necessarily be determinative, include: (1) the place and subject matter of the conduct or speech, (2) whether the employee's conduct or speech was impulsive or designed, (3) whether the conduct or speech was provoked by the employer's conduct, and (4) the nature of the intemperate language or conduct. Omaha Police Union Local 101 v. City of Omaha, 274 Neb. 70, 736 N.W.2d 375 (2007).

The Industrial Relations Act is not only an attempt to level the employment playing field, but is also a mechanism designed to protect the citizens of Nebraska from the effects and consequences of labor strife in public sector employment. Omaha Police Union Local 101 v. City of Omaha, 274 Neb. 70, 736 N.W.2d 375 (2007).

Teachers in Class III, IV, and VI school districts are subject to provisions of Teachers' Professional Negotiation Act. Lincoln Ed. Assn. v. School Dist. of Lincoln, 214 Neb. 895, 336 N.W.2d 587 (1983).

School districts are employers and teachers are employees within terms of this act. Sidney Education Assn. v. School Dist. of Sidney, 189 Neb. 540, 203 N.W.2d 762 (1973).

48-801.01. Act, how cited.

Sections 48-801 to 48-839 shall be known and may be cited as the Industrial Relations Act.

Source:Laws 1986, LB 809, § 1; Laws 1995, LB 365, § 1; Laws 1995, LB 382, § 3; Laws 2011, LB397, § 2.

48-802. Public policy.

To make operative the provisions of section 9, Article XV, of the Constitution of Nebraska, the public policy of the State of Nebraska is hereby declared to be as follows:

(1) The continuous, uninterrupted and proper functioning and operation of the governmental service including governmental service in a proprietary capacity and of public utilities engaged in the business of furnishing transportation for hire, telephone service, telegraph service, electric light, heat, or power service, gas for heating or illuminating, whether natural or artificial, or water service, or any one or more of them, to the people of Nebraska are hereby declared to be essential to their welfare, health, and safety. It is contrary to the public policy of the state to permit any substantial impairment or suspension of the operation of governmental service, including governmental service in a proprietary capacity or any such utility by reason of industrial disputes therein. It is the duty of the State of Nebraska to exercise all available means and every power at its command to prevent the same so as to protect its citizens from any dangers, perils, calamities, or catastrophes which would result therefrom. It is therefor further declared that governmental service, including governmental service in a proprietary capacity, and the service of such public utilities are clothed with a vital public interest and to protect the same it is necessary that the relations between the public employers and public employees in such industries be regulated by the State of Nebraska to the extent and in the manner provided in the Industrial Relations Act;

(2) No right shall exist in any natural or corporate person or group of persons to hinder, delay, limit, or suspend the continuity or efficiency of any governmental service or governmental service in a proprietary capacity of this state, either by strike, lockout, or other means; and

(3) No right shall exist in any natural or corporate person or group of persons to hinder, delay, limit, or suspend the continuity or efficiency of any public utility service, either by strike, lockout, or other means.

Source:Laws 1947, c. 178, § 2, p. 587; Laws 2011, LB397, § 3.

Annotations

If the Commission of Industrial Relations finds that an accused party has committed a prohibited practice under subsection (2) of section 48-825, it has the authority to order an appropriate remedy, and such authority is to be liberally construed to effectuate the public policy enunciated in this section. Operating Engrs. Local 571 v. City of Plattsmouth, 265 Neb. 817, 660 N.W.2d 480 (2003).

If public employees may not refuse to work without risk of discharge, public employers may not refuse to pay employees the wage established by the governmental employer for such work. AFSCME Local No. 2088 v. County of Douglas, 208 Neb. 511, 304 N.W.2d 368 (1981).

It is the public interest in having uninterrupted public service that is principally sought to be protected by the Commission of Industrial Relations Act, not the creation of a specialty forum for the trying of breach of contract cases by public employees. Transport Workers of America v. Transit Authority of City of Omaha, 205 Neb. 26, 286 N.W.2d 102 (1979).

Supervisory or managerial personnel may not enter into a bargaining unit with rank and file employees and may not retain the same bargaining agent. Nebraska Assn. of Pub. Emp. v. Nebraska Game & Parks Commission, 197 Neb. 178, 247 N.W.2d 449 (1976).

While there are many nebulous areas that may overlap working conditions, school boards should not be required to enter into negotiations which are predominately of educational policy, management prerogatives, or statutory duties of the board of education. School Dist. of Seward Education Assn. v. School Dist. of Seward, 188 Neb. 772, 199 N.W.2d 752 (1972).

48-803. Commission of Industrial Relations; created.

In order to carry out the public policy of the State of Nebraska as set forth in section 48-802, there is hereby created an industrial commission to be known as the Commission of Industrial Relations.

Source:Laws 1947, c. 178, § 3, p. 588; Laws 1979, LB 444, § 1.

48-804. Commissioners, appointment, term; vacancy; removal; presiding officer; selection; duties; quorum; applicability of law.

(1) The Commission of Industrial Relations shall be composed of five commissioners appointed by the Governor, with the advice and consent of the Legislature. The commissioners shall be representative of the public. Each commissioner shall be appointed and hold office for a term of six years and until a successor has qualified. In case of a vacancy, the Governor shall appoint a successor to fill the vacancy for the unexpired term.

(2) Any commissioner may be removed by the Governor for the same causes as a judge of the district court may be removed.

(3) The commissioners shall, on July 1 of every odd-numbered year by a majority vote, select one of their number as presiding officer for the next two years, who shall preside at all hearings by the commission en banc, and shall assign the work of the commission to the several commissioners and perform such other supervisory duties as the needs of the commission may require. A majority of the commissioners shall constitute a quorum to transact business. The act or decision of any three of the commissioners shall in all cases be deemed the act or decision of the commission. Three commissioners shall preside over and decide all industrial disputes where the matter at issue is the comparability of wages, benefits, and terms and conditions of employment.

(4) The commission shall not be subject to the Administrative Procedure Act.

Source:Laws 1947, c. 178, § 4, p. 588; Laws 1969, c. 407, § 2, p. 1407; Laws 1974, LB 819, § 1; Laws 1979, LB 444, § 2; Laws 2007, LB472, § 2; Laws 2011, LB397, § 4.

Cross References

Administrative Procedure Act, see section 84-920.

48-804.01. Presiding officer; clerk; personnel; appointment; duties.

The presiding officer of the commission shall, with the advice and consent of the Governor, appoint a clerk of such commission who shall hold office at the pleasure of the commission. The presiding officer shall in like manner appoint such other assistants and employees as he or she may deem necessary. The clerk shall, under the direction of the presiding officer, keep a full and true record of the proceedings of the commission and record all pleadings and other papers filed with the commission, and no other action shall be taken thereon until the same has been recorded. The clerk shall in like manner issue all necessary notices and writs, superintend the business of the commission, and perform such other duties as the commission may direct. All other assistants and employees of the commission shall perform such duties, pertaining to the affairs thereof, as the commission may direct. The clerk of the commission shall administratively determine, prior to a hearing on the question of representation, the validity of the employee authorizations for representation by an employee labor organization.

Source:Laws 1974, LB 819, § 3; Laws 2007, LB472, § 3.

48-804.02. Clerk, employees; salaries; approval by Governor; expenses.

The clerk and all other assistants and employees of the commission shall receive such salaries as the commission may with the approval of the Governor determine, but not to exceed the amount of the appropriation made for such purpose. Such salaries shall be payable in the same manner as the salaries of other state employees. The clerk and other assistants and employees of the commission shall be entitled, while traveling on the business of the commission, to be reimbursed by the state for necessary traveling expenses as provided in sections 81-1174 to 81-1177 for state employees.

Source:Laws 1974, LB 819, § 4; Laws 1981, LB 204, § 82.

48-804.03. Clerk; bond or insurance; oath.

The clerk of the Commission of Industrial Relations shall be bonded or insured as required by section 11-201 before entering upon or discharging any of the duties of his or her office. Such clerk shall, before entering upon the duties of his or her office, take and subscribe the statutory oath of office.

Source:Laws 1974, LB 819, § 5; Laws 1978, LB 653, § 13; Laws 2004, LB 884, § 24.

48-805. Commissioners; qualifications.

The commissioners shall not be appointed because they are representatives of either capital or labor, but they shall be appointed because of their experience and knowledge in legal, financial, labor, and industrial matters.

Source:Laws 1947, c. 178, § 5, p. 589; Laws 2007, LB472, § 4.

48-806. Commissioner; compensation; expenses.

As soon as the same may be legally paid under the Constitution of Nebraska, the compensation of each commissioner shall be four hundred seventy-five dollars per day for each day's time actually engaged in the performance of the duties of his or her office. Each commissioner shall also be paid his or her necessary traveling expenses incurred while away from his or her place of residence upon business of the commission in accordance with sections 81-1174 to 81-1177.

Source:Laws 1947, c. 178, § 6, p. 599; Laws 1971, LB 822, § 1; Laws 1976, LB 710, § 1; Laws 1977, LB 302, § 1; Laws 1979, LB 444, § 3; Laws 1981, LB 188, § 1; Laws 1981, LB 204, § 83; Laws 1991, LB 856, § 1; Laws 2007, LB211, § 1; Laws 2007, LB472, § 5.

48-807. Commission; office; location; records.

The Commission of Industrial Relations may have its office at the Capitol in the city of Lincoln or such other location as the commission may, with the approval of the Governor, determine. It shall keep a record of all of its proceedings, which shall be a public record and subject to inspection the same as other public records of this state.

Source:Laws 1947, c. 178, § 7, p. 589; Laws 1974, LB 819, § 2.

48-808. Reporter; duties.

The commission may also appoint a reporter to report and transcribe in duplicate all testimony given in hearings and trials before the commission and file such testimony with the commission. The commission shall certify and transmit one copy to the Clerk of the Supreme Court in all cases in which there is an appeal under section 48-812.

Source:Laws 1947, c. 178, § 8, p. 589; Laws 1974, LB 819, § 6; Laws 1986, LB 809, § 3; Laws 1991, LB 732, § 115; Laws 1992, LB 360, § 27.

48-809. Commission; powers.

The commission may adopt all reasonable and proper regulations to govern its proceedings, the filing of pleadings, the issuance and service of process, and the issuance of subpoenas for attendance of witnesses, may administer oaths, and may regulate the mode and manner of all its investigations, inspections, hearings, and trials. Except as otherwise provided in the Industrial Relations Act or the State Employees Collective Bargaining Act, in the taking of evidence, the rules of evidence, prevailing in the trial of civil cases in Nebraska, shall be observed by the commission.

Source:Laws 1947, c. 178, § 9, p. 590; Laws 2011, LB397, § 5.

Cross References

State Employees Collective Bargaining Act, see section 81-1369.

Annotations

Under powers granted in this section, Court of Industrial Relations may adopt rules required under the Administrative Procedures Act. School Dist. of Seward Education Assn. v. School Dist. of Seward, 188 Neb. 772, 199 N.W.2d 752 (1972).

48-810. Commission; jurisdiction.

Except as provided in the State Employees Collective Bargaining Act, industrial disputes involving governmental service, service of a public utility, or other disputes as the Legislature may provide shall be settled by invoking the jurisdiction of the Commission of Industrial Relations.

Source:Laws 1947, c. 178, § 10, p. 590; Laws 1965, c. 289, § 14, p. 829; Laws 1967, c. 305, § 1, p. 828; Laws 1969, c. 407, § 3, p. 1407; Laws 1987, LB 524, § 1; Laws 1987, LB 661, § 23.

Cross References

State Employees Collective Bargaining Act, see section 81-1369.

Annotations

The statutory jurisdiction of the Commission of Industrial Relations is to settle pending controversies. NAPE v. Game & Parks Comm., 220 Neb. 883, 374 N.W.2d 46 (1985).

The provisions of the Teachers' Professional Negotiation Act must be exhausted by covered teachers before the action can be taken before the Commission of Industrial Relations. Lincoln Ed. Assn. v. School Dist. of Lincoln, 214 Neb. 895, 336 N.W.2d 587 (1983).

A uniquely personal termination of office does not constitute an industrial dispute. Nebraska Dept. of Roads Employees Assn. v. Department of Roads, 189 Neb. 754, 205 N.W.2d 110 (1973).

Employees covered by the Teachers' Professional Negotiations Act must await exhaustion thereof before invoking jurisdiction of the Court of Industrial Relations, but this does not deny them the right to invoke that jurisdiction. Sidney Education Assn. v. School Dist. of Sidney, 189 Neb. 540, 203 N.W.2d 762 (1973).

Labor organization organized under provisions of the act may file a petition with the Court of Industrial Relations when industrial dispute exists between parties as set forth in this section. Mid-Plains Education Assn. v. Mid-Plains Nebraska Tech. College, 189 Neb. 37, 199 N.W.2d 747 (1972).

While Court of Industrial Relations may not order a school district to enter into a contract, it has the power to settle a dispute. School Dist. of Seward Education Assn. v. School Dist. of Seward, 188 Neb. 772, 199 N.W.2d 752 (1972).

Judicial remedies given employee discharged for joining labor union inadequate. American Federation of State, Co., & Mun. Emp. v. Woodward, 406 F.2d 137 (8th Cir. 1969).

48-810.01. State or political subdivision; exempt from contract with labor organization.

Notwithstanding any other provision of law, the State of Nebraska and any political or governmental subdivision thereof cannot be compelled to enter into any contract or agreement, written or otherwise, with any labor organization concerning grievances, labor disputes, rates of pay, hours of employment or conditions of work.

Source:Laws 1967, c. 304, § 2, p. 827.

Annotations

A contract continuation clause is not a contract for a future contract year in violation of this section. Central City Ed. Assn. v. Merrick Cty. Sch. Dist., 280 Neb. 27, 783 N.W.2d 600 (2010).

If a school district refuses to recognize a teachers organization it cannot be compelled to do so, and the problems are then for solution by the Court of Industrial Relations. Sidney Education Assn. v. School Dist. of Sidney, 189 Neb. 540, 203 N.W.2d 762 (1973).

While Court of Industrial Relations may not order a school district to enter into a contract, it has the power to settle a dispute. School Dist. of Seward Education Assn. v. School Dist. of Seward, 188 Neb. 772, 199 N.W.2d 752 (1972).

48-810.02. Repealed. Laws 1969, c. 407, § 8.

48-811. Commission; filing of petition; effect; change in employment status, wages, or terms and conditions of employment; motion; hearing; order authorized; exception.

(1) Except as provided in the State Employees Collective Bargaining Act, any public employer, public employee, or labor organization, or the Attorney General of Nebraska on his or her own initiative or by order of the Governor, when any industrial dispute exists between parties as set forth in section 48-810, may file a petition with the commission invoking its jurisdiction. No adverse action by threat or harassment shall be taken against any public employee because of any petition filing by such employee, and the employment status of such employee shall not be altered in any way pending disposition of the petition by the commission except as provided in subsection (2) of this section.

(2) If a change in the employment status or in wages or terms and conditions of employment is necessary, a motion by either party or by the parties jointly may be presented to the commission at that time and if the commission finds, based on a showing of evidence at a hearing thereon, that the requested change is both reasonable and necessary to serve an important public interest and that the employer has not considered a change in the employment status, wages, or terms and conditions of employment as a policy alternative on an equal basis with other policy alternatives to achieve budgetary savings, the commission may order that the requested change be allowed pending final resolution of the pending industrial dispute.

(3) Subsection (2) of this section does not apply to public employers subject to the State Employees Collective Bargaining Act.

Source:Laws 1947, c. 178, § 11, p. 590; Laws 1969, c. 407, § 4, p. 1408; Laws 1987, LB 661, § 24; Laws 2011, LB397, § 6.

Cross References

State Employees Collective Bargaining Act, see section 81-1369.

Annotations

The statutory words employment status mean that no employer may without cause change an employee's status as an employee under this section, pending disposition of the petition. Transport Workers v. Transit Auth. of Omaha, 216 Neb. 455, 344 N.W.2d 459 (1984).

Prior to its amendment, this section did not give the Commission of Industrial Relations jurisdiction to generally find and declare what is known elsewhere in labor law as "unfair labor practices". University Police Officers Union v. University of Nebraska, 203 Neb. 4, 277 N.W.2d 529 (1979).

Labor organization organized under provisions of the act may file a petition with the Court of Industrial Relations when industrial dispute exists between the parties as set forth in section 48-810, R.S.Supp.,1969. Mid-Plains Education Assn. v. Mid-Plains Nebraska Tech. College, 189 Neb. 37, 199 N.W.2d 747 (1972).

48-811.01. Docket fee; disposition.

Any person who files a petition with the Commission of Industrial Relations pursuant to section 48-811 shall, at the time of such filing, pay a docket fee of one hundred dollars to the clerk of such commission. All fees so collected shall be deposited in the state treasury and by the State Treasurer credited to the General Fund.

Source:Laws 1983, LB 617, § 1.

48-811.02. Repealed. Laws 2011, LB 397, § 35.

48-812. Commission; proceedings; appeal.

Except as modified by the commission under section 48-809 or the other provisions of the Industrial Relations Act, proceedings before the commission shall conform to the code of civil procedure applicable to the district courts of the state and appeals from its final orders shall be taken in the same manner and time as appeals from the district court, except that an order determining a bargaining unit or units shall not be appealable until after the results of the election have been certified by the commission. Appeals shall be heard and disposed of in the appellate court in the manner provided by law.

Source:Laws 1947, c. 178, § 12, p. 590; Laws 1979, LB 444, § 4; Laws 1986, LB 809, § 4; Laws 1991, LB 732, § 116; Laws 1992, LB 360, § 28.

Annotations

1. Right to appeal

2. Manner of consideration

3. Miscellaneous

1. Right to appeal

A party appealing from an order of the Commission of Industrial Relations is not required to file a motion for new trial before the commission as a prerequisite to an appeal to the Nebraska Supreme Court. Fraternal Order of Police v. County of Adams, 205 Neb. 682, 289 N.W.2d 535 (1980); Plattsmouth Police Dept. Collective Bargaining Committee v. City of Plattsmouth, 205 Neb. 567, 288 N.W.2d 729 (1980).

In the absence of a specific statute requiring it, the filing of a motion for new trial is not a prerequisite to the appeal of a decision of an administrative body. This section creates no such requirement for appeals from the Commission of Industrial Relations. Plattsmouth Pol. Dept. Collective Bargaining Committee v. City of Plattsmouth, 205 Neb. 567, 288 N.W.2d 729 (1980).

An order of the Court of Industrial Relations establishing bargaining units is a final order under this section, and becomes immediately appealable. American Assn. of University Professors v. Board of Regents, 198 Neb. 243, 253 N.W.2d 1 (1977).

2. Manner of consideration

In reviewing the findings and order of the Commission of Industrial Relations, the Supreme Court will only consider whether the order of the commission is supported by substantial evidence, whether the commission acted within the scope of its authority, and whether its action was arbitrary, capricious, or unreasonable. Fraternal Order of Police v. County of Adams, 205 Neb. 682, 289 N.W.2d 535 (1980).

Review of collective bargaining decision by Court of Industrial Relations is in manner provided for disposition of equity cases. American Fed. S., C., & M. Emp., AFL-CIO v. County of Lancaster, 196 Neb. 89, 241 N.W.2d 523 (1976).

Appeals from the Court of Industrial Relations are to be heard and disposed of de novo, but the superior position of the original trier of fact is to be respected and accorded great weight. Crete Education Assn. v. School Dist. of Crete, 193 Neb. 245, 226 N.W.2d 752 (1975); Mid-Plains Education Assn. v. Mid-Plains Nebraska Tech. College, 189 Neb. 37, 199 N.W.2d 747 (1972).

3. Miscellaneous

Adversary proceedings before the Commission of Industrial Relations must conform to the code of civil procedure applicable to district courts. IAFF Local 831 v. City of No. Platte, 215 Neb. 89, 337 N.W.2d 716 (1983).

An intervenor in a proceeding before the Commission of Industrial Relations may be required to make a reasonable showing of interest in support of the intervention. American Assn. of University Professors v. Board of Regents, 203 Neb. 628, 279 N.W.2d 621 (1979).

48-813. Commission; notice of pendency of proceedings; service; response; filing; final offer; included with petition; included with answers; procedure; exception; hearing; waiver of notice.

(1) Whenever the jurisdiction of the commission is invoked, notice of the pendency of the proceedings shall be given in such manner as the commission shall provide for serving a copy of the petition and notice of filing upon the adverse party. A public employer or labor organization may be served by sending a copy of the petition filed to institute the proceedings and a notice of filing, which shall show the filing date, in the manner provided for service of a summons in a civil action. Such employer or labor organization shall have twenty days after receipt of the petition and notice of filing in which to serve and file its response.

(2) The petitioner shall include its final offer, as voted by the petitioner, the governing body, or the bargaining unit or as considered pursuant to a ratification process, with its petition. The respondent shall include its final offer, as voted by the respondent, the governing body, or the bargaining unit or as considered pursuant to a ratification process, with its answer. Within fourteen days after filing of the answer, the parties shall vote to accept or reject or consider pursuant to a ratification process the other's final offer and file a subsequent pleading indicating the result. The vote concerning the governing body's final offer shall be published on its agenda and held where the public may attend. The commission shall not enter a final order on wages or conditions of employment unless both parties have rejected the others' final offer. This subsection does not apply to public employers subject to the State Employees Collective Bargaining Act.

(3) When a petition is filed to resolve an industrial dispute, a hearing shall mandatorily be held within sixty days from the date of filing thereof. A recommended decision and order in cases arising under section 48-818, an order in cases not arising under section 48-818, and findings if required, shall mandatorily be made and entered thereon within thirty days after such hearing. The time requirements specified in this section may be extended for good cause shown on the record or by agreement of the parties. Failure to meet such mandatory time requirements shall not deprive the commission of jurisdiction. However, if the commission fails to hold a hearing on the industrial dispute within sixty days of filing or has failed to make a recommended decision and order, and findings of fact if required, in cases arising under section 48-818, or an order, and findings of fact if required, in cases not arising under section 48-818, and findings, within thirty days after the hearing and good cause is not shown on the record or the parties to the dispute have not jointly stipulated to the enlargement of the time limit, then either party may file an action for mandamus in the district court for Lancaster County to require the commission to hold the hearing or to render its order and findings if required. For purposes of this section, the hearing on an industrial dispute shall not be deemed completed until the record is prepared and counsel briefs have been submitted, if such are required by the commission.

(4) Any party, including the State of Nebraska or any of its employer-representatives as defined in section 81-1371 or any political subdivision of the State of Nebraska, may waive such notice and may enter a voluntary appearance in any matter in the commission. The giving of such notice in such manner shall subject the public employers, the labor organizations, and the persons therein to the jurisdiction of the commission.

Source:Laws 1947, c. 178, § 13, p. 590; Laws 1972, LB 1228, § 2; Laws 1974, LB 819, § 7; Laws 1983, LB 447, § 72; Laws 1984, LB 832, § 1; Laws 1987, LB 661, § 25; Laws 2011, LB397, § 7.

Cross References

State Employees Collective Bargaining Act, see section 81-1369.

Annotations

The Commission of Industrial Relations, as an administrative body, has only that authority specifically conferred upon it by statute or by construction necessary to achieve the purpose of the relevant act. Jolly v. State, 252 Neb. 289, 562 N.W.2d 61 (1997).

Under the Industrial Relations Act, section 48-801 et seq., and the State Employees Collective Bargaining Act, section 81-1369 et seq., the Commission of Industrial Relations does not have the statutory authority to entertain or grant motions for summary judgment. Jolly v. State, 252 Neb. 289, 562 N.W.2d 61 (1997).

A city attorney is not a "principal officer" within the meaning of that phrase in this section. Communication Workers of America, AFL-CIO v. City of Hastings, 198 Neb. 668, 254 N.W.2d 695 (1977).

The provision that a case shall be heard within sixty days and order entered thirty days thereafter is directory and not mandatory. Local Union No. 647 v. City of Grand Island, 196 Neb. 693, 244 N.W.2d 515 (1976).

48-814. Commission; employees; compensation.

The Commission of Industrial Relations may employ such expert accountants, engineers, stenographers, attorneys, and other employees as the commission finds necessary. Officers and employees of the commission, whose salaries are not fixed by law, shall be paid such compensation as may be fixed by the commission with the approval of the Governor.

Source:Laws 1947, c. 178, § 14, p. 591; Laws 1955, c. 78, § 2, p. 233; Laws 1974, LB 819, § 8.

48-815. Commission; seal; attendance of witnesses and parties; subpoena.

The commission shall provide itself with a proper seal and shall have the power and authority to issue subpoenas and to compel the attendance of witnesses and parties and to compel the production of relevant books, correspondence, files, records, and accounts of any person, corporation, association, or labor organization affected, and to make any and all investigations necessary to ascertain the truth in regard to the matters before the commission. Subpoenas for the production of books, correspondence, files, records and accounts shall be issued by the commission only after notice to the owner and person in possession thereof and opportunity to be heard as to the relevancy of such subpoena.

Source:Laws 1947, c. 178, § 15, p. 591; Laws 1974, LB 819, § 9.

48-816. Preliminary proceedings; commission; powers; duties; collective bargaining; posttrial conference.

(1)(a) After a petition has been filed under section 48-811, the clerk shall immediately notify the commission which shall promptly take such preliminary proceedings as may be necessary to ensure prompt hearing and speedy adjudication of the industrial dispute. The commission may, upon its own initiative or upon request of a party to the dispute, make such temporary findings and orders as necessary to preserve and protect the status of the parties, property, and public interest involved pending final determination of the issues. In the event of an industrial dispute between a public employer and a public employee or a labor organization when such public employer and public employee or labor organization have failed or refused to bargain in good faith concerning the matters in dispute, the commission may order such bargaining to begin or resume, as the case may be, and may make any such order or orders as appropriate to govern the situation pending such bargaining. The commission shall require good faith bargaining concerning the terms and conditions of employment of its employees by any public employer. Upon the request of either party, the commission shall require the parties to an industrial dispute to submit to mediation or factfinding. Before July 1, 2012, upon the request of both parties, a special master may be appointed if the parties are within the provisions of section 48-811.02. On and after July 1, 2012, upon the request of either party, a resolution officer may be appointed if the parties are within the provisions of section 48-818.01. The commission shall appoint mediators, factfinders, or before July 1, 2012, special masters and on and after such date resolution officers for such purpose. Such orders for bargaining, mediation, factfinding, or before July 1, 2012, a special master proceeding and on and after such date a resolution officer proceeding may be issued at any time during the pendency of an action to resolve an industrial dispute. To bargain in good faith means the performance of the mutual obligation of the public employer and the labor organization to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment or any question arising thereunder and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession.

(b) In negotiations between a municipality, municipally owned utility, or county and a labor organization, staffing related to issues of safety shall be mandatory subjects of bargaining and staffing relating to scheduling work, such as daily staffing, staffing by rank, and overall staffing requirements, shall be permissive subjects of bargaining.

(2) Except as provided in the State Employees Collective Bargaining Act, public employers may recognize employee organizations for the purpose of negotiating collectively in the determination of and administration of grievances arising under the terms and conditions of employment of their public employees as provided in the Industrial Relations Act and may negotiate and enter into written agreements with such employee organizations in determining such terms and conditions of employment.

(3)(a) Except as provided in subdivisions (b) and (c) of this subsection, a supervisor shall not be included in a single bargaining unit with any other public employee who is not a supervisor.

(b) All firefighters and police officers employed in the fire department or police department of any municipality in a position or classification subordinate to the chief of the department and his or her immediate assistant or assistants holding authority subordinate only to the chief shall be presumed to have a community of interest and may be included in a single bargaining unit represented by a public employee organization for the purposes of the Industrial Relations Act. Public employers shall be required to recognize a public employees bargaining unit composed of firefighters and police officers holding positions or classifications subordinate to the chief of the fire department or police department and his or her immediate assistant or assistants holding authority subordinate only to the chief when such bargaining unit is designated or elected by public employees in the unit.

(c) All administrators employed by a Class V school district shall be presumed to have a community of interest and may join a single bargaining unit composed otherwise of teachers and other certificated employees for purposes of the Industrial Relations Act, except that the following administrators shall be exempt: The superintendent, associate superintendent, assistant superintendent, secretary and assistant secretary of the board of education, executive director, administrators in charge of the offices of state and federal relations and research, chief negotiator, and administrators in the immediate office of the superintendent. A Class V school district shall recognize a public employees bargaining unit composed of teachers and other certificated employees and administrators, except the exempt administrators, when such bargaining unit is formed by the public employees as provided in section 48-838 and may recognize such a bargaining unit as provided in subsection (2) of this section. In addition, all administrators employed by a Class V school district, except the exempt administrators, may form a separate bargaining unit represented either by the same bargaining agent for all collective-bargaining purposes as the teachers and other certificated employees or by another collective-bargaining agent of such administrators' choice. If a separate bargaining unit is formed by election as provided in section 48-838, a Class V school district shall recognize the bargaining unit and its agent for all purposes of collective bargaining. Such separate bargaining unit may also be recognized by a Class V school district as provided in subsection (2) of this section.

(4) When a public employee organization has been certified as an exclusive collective-bargaining agent or recognized pursuant to any other provisions of the Industrial Relations Act, the appropriate public employer shall be and is hereby authorized to negotiate collectively with such public employee organization in the settlement of grievances arising under the terms and conditions of employment of the public employees as provided in such act and to negotiate and enter into written agreements with such public employee organizations in determining such terms and conditions of employment, including wages and hours.

(5) Upon receipt by a public employer of a request from a labor organization to bargain on behalf of public employees, the duty to engage in good faith bargaining shall arise if the labor organization has been certified by the commission or recognized by the public employer as the exclusive bargaining representative for the public employees in that bargaining unit.

(6) A party to an action filed with the commission may request the commission to send survey forms or data request forms. The requesting party shall prepare its own survey forms or data request forms and shall provide the commission the names and addresses of the entities to whom the documents shall be sent, not to exceed twenty addresses in any case. All costs resulting directly from the reproduction of such survey or data request forms and the cost of mailing such forms shall be taxed by the commission to the requesting party. The commission may (a) make studies and analyses of and act as a clearinghouse of information relating to conditions of employment of public employees throughout the state, (b) request from any government, and such governments are authorized to provide, such assistance, services, and data as will enable it properly to carry out its functions and powers, (c) conduct studies of problems involved in representation and negotiation, including, but not limited to, those subjects which are for determination solely by the appropriate legislative body, and make recommendations from time to time for legislation based upon the results of such studies, (d) make available to public employee organizations, governments, mediators, factfinding boards and joint study committees established by governments, and public employee organizations statistical data relating to wages, benefits, and employment practices in public and private employment applicable to various localities and occupations to assist them to resolve complex issues in negotiations, and (e) establish, after consulting representatives of public employee organizations and administrators of public services, panels of qualified persons broadly representative of the public to be available to serve as mediators, before July 1, 2012, special masters and on and after such date resolution officers, or members of factfinding boards.

(7)(a) Except for those cases arising under section 48-818, the commission shall make findings of facts in all cases in which one of the parties to the dispute requests findings. Such request shall be specific as to the issues on which the party wishes the commission to make findings of fact.

(b) In cases arising under section 48-818, findings of fact shall not be required of the commission unless both parties to the dispute stipulate to the request and to the specific issues on which findings of fact are to be made.

(c) If findings of fact are requested under subdivision (a) or (b) of this subsection, the commission may require the parties making the request to submit proposed findings of fact to the commission on the issues on which findings of facts are requested.

(d) In cases arising under section 48-818, the commission shall issue a recommended decision and order, which decision and order shall become final within twenty-five days of entry unless either party to the dispute files with the commission a request for a posttrial conference. If such a request is filed, the commission shall hold a posttrial conference within ten days of receipt of such request and shall issue an order within ten days after holding such posttrial conference, which order shall become the final order in the case. The purpose of such posttrial conference shall be to allow the commission to hear from the parties on those portions of the recommended decision and order which is not based upon or which mischaracterizes evidence in the record and to allow the commission to correct any such errors after having heard the matter in a conference setting in which all parties are represented.

Source:Laws 1947, c. 178, § 16, p. 591; Laws 1967, c. 303, § 2, p. 825; Laws 1969, c. 407, § 5, p. 1408; Laws 1972, LB 1402, § 1; Laws 1972, LB 1228, § 3; Laws 1979, LB 444, § 5; Laws 1984, LB 832, § 2; Laws 1985, LB 213, § 2; Laws 1986, LB 809, § 5; Laws 1987, LB 524, § 2; Laws 1987, LB 661, § 26; Laws 1988, LB 519, § 1; Laws 1988, LB 684, § 1; Laws 1988, LB 942, § 1; Laws 1995, LB 365, § 2; Laws 2011, LB397, § 8.

Cross References

State Employees Collective Bargaining Act, see section 81-1369.

Annotations

1. Commission authority

2. Collective bargaining units

3. Miscellaneous

1. Commission authority

Status quo orders issued by the Commission of Industrial Relations pursuant to subsection (1) of this section are limited to the pendency of the industrial dispute between the parties and are binding on the parties only until the dispute has been resolved. Professional Firefighters Assn. v. City of Omaha, 282 Neb. 200, 803 N.W.2d 17 (2011).

The Commission of Industrial Relations has the statutory authority to enter temporary orders concerning wages, hours, or terms and conditions of employment, pending the resolution of an industrial dispute. Transport Workers v. Transit Auth. of Omaha, 216 Neb. 455, 344 N.W.2d 459 (1984).

The authority granted to the Commission of Industrial Relations under this section is limited in nature. University Police Officers Union v. University of Nebraska, 203 Neb. 4, 277 N.W.2d 529 (1979).

While Court of Industrial Relations may not order a school district to enter into a contract, it has the power to settle a dispute. School Dist. of Seward Education Assn. v. School Dist. of Seward, 188 Neb. 772, 199 N.W.2d 752 (1972).

Court of Industrial Relations does not have power to order collective bargaining by a public utility operated by government in a proprietary capacity. International Brotherhood of Electrical Workers v. City of Hastings, 179 Neb. 455, 138 N.W.2d 822 (1965).

2. Collective bargaining units

Deputy assessor, deputy clerk, and deputy treasurer are considered statutory supervisors due to authority granted to those positions by state law. IBEW Local Union No. 1597 v. Sack, 280 Neb. 858, 793 N.W.2d 147 (2010).

A deviation clause in a teacher contract falls under the category of "wages, hours, and other terms of employment, or any question arising thereunder," as stated in subsection (1) of this section, and is a subject of mandatory bargaining. Hyannis Ed. Assn. v. Grant Cty. Sch. Dist. No. 38-0011, 269 Neb. 956, 698 N.W.2d 45 (2005).

Pursuant to subsection (3)(a) of this section, a single bargaining unit cannot include supervisors and those whom the supervisors responsibly direct. PLPSO v. Papillion/La Vista School Dist., 252 Neb. 308, 562 N.W.2d 335 (1997).

The enactment of subsection (3)(c) of this section, exempting certain Class V school district administrators from the operation of subsection (3)(a), does not evidence a legislative purpose or intent to permit like administrators in school districts of whatever class to do the same. PLPSO v. Papillion/La Vista School Dist., 252 Neb. 308, 562 N.W.2d 335 (1997).

A community of interest is presumed among all police officers holding positions subordinate to the chief of the department and his or her immediate assistants. City of Omaha v. Omaha Police Union Local 101, 222 Neb. 197, 382 N.W.2d 613 (1986).

Supervisory or managerial personnel may not enter into a bargaining unit with rank and file employees and may not retain the same bargaining agent. Nebraska Assn. of Pub. Emp. v. Nebraska Game & Parks Commission, 197 Neb. 178, 247 N.W.2d 449 (1976).

This section in classifying officers of municipal police and fire departments differently in regard to membership in bargaining units from officers in other departments is not thereby rendered unconstitutional as special legislation. Local Union No. 647 v. City of Grand Island, 196 Neb. 693, 244 N.W.2d 515 (1976).

The 1969 amendment authorizing public employers to recognize employee organizations and to negotiate collectively cannot be attacked as unconstitutional by city which invokes its provisions. City of Grand Island v. American Federation of S. C. & M. Employees, 186 Neb. 711, 185 N.W.2d 860 (1971).

3. Miscellaneous

Good faith bargaining includes the execution of a written contract incorporating the terms of an agreement reached pursuant to subsection (1) of this section. Scottsbluff Police Off. Assn. v. City of Scottsbluff, 282 Neb. 676, 805 N.W.2d 320 (2011).

Health insurance coverage and related benefits are mandatory subjects of bargaining under the Industrial Relations Act. Scottsbluff Police Off. Assn. v. City of Scottsbluff, 282 Neb. 676, 805 N.W.2d 320 (2011).

Police response time to a two-officer 911 emergency dispatch call relates to officer safety, and, thus, the manner in which it is determined affects a condition of employment. Omaha Police Union Local 101 v. City of Omaha, 274 Neb. 70, 736 N.W.2d 375 (2007).

For purposes of bringing error proceedings, this statute does not require public employers to act in a judicial manner when administering pay scale grievances. Kropp v. Grand Island Pub. Sch. Dist. No. 2, 246 Neb. 138, 517 N.W.2d 113 (1994).

Subsection (1) of this section requires good faith bargaining, but only after a petition has been filed invoking the jurisdiction of the commission. Subsection (4) of this section does not require good faith bargaining; it simply authorizes public employers to negotiate with unions regarding the settlement of grievances and the establishment of written agreements as to wages, hours, and other conditions of employment. Subsection (5) of this section requires good faith bargaining, but only after an employer receives a request to bargain from the union. This section, unlike the National Labor Relations Act, does not establish a duty to bargain. Without this statutory authorization, a public employer would not have the right to bargain with public employees. Kuhl v. Skinner, 245 Neb. 794, 515 N.W.2d 641 (1994).

48-816.01. Hearing officer; appointment; when.

The presiding officer of the commission may, when he or she deems it necessary to expedite the determination of cases filed with the commission, appoint a hearing officer to hear evidence and make recommended findings and orders in any case or to make recommended determinations after a representation election has been ordered and during the course of such election. Any person appointed as a hearing officer shall be an attorney admitted to practice in Nebraska and shall be knowledgeable in the rules of civil procedure and evidence applicable to the district courts.

Source:Laws 1979, LB 444, § 6; Laws 2007, LB472, § 6.

48-816.02. Temporary relief; initial hearing; when held.

In any request for temporary relief under the Industrial Relations Act, the commission shall mandatorily hold the initial hearing within ten days from the date of the filing.

Source:Laws 1984, LB 832, § 4; Laws 1986, LB 809, § 6.

48-817. Commission; findings; decisions; orders.

After the hearing and any investigation, the commission shall make all findings, findings of fact, recommended decisions and orders, and decisions and orders in writing, which findings, findings of fact, recommended decisions and orders, and decisions and orders shall be entered of record. Except as provided in the State Employees Collective Bargaining Act, the final decision and order or orders shall be in effect from and after the date therein fixed by the commission, but no such order or orders shall be retroactive except as provided otherwise in the Industrial Relations Act. Except as provided otherwise in the Industrial Relations Act, in the making of any findings or orders in connection with any such industrial dispute, the commission shall give no consideration to any evidence or information which it may obtain through an investigation or otherwise receive, except matters of which the district court might take judicial notice, unless such evidence or information is presented and made a part of the record in a hearing and opportunity is given, after reasonable notice to all parties to the controversy of the initiation of any investigation and the specific contents of the evidence or information obtained or received, to rebut such evidence or information either by cross-examination or testimony.

Source:Laws 1947, c. 178, § 17, p. 592; Laws 1979, LB 444, § 7; Laws 1984, LB 832, § 3; Laws 1987, LB 661, § 27; Laws 2011, LB397, § 9.

Cross References

State Employees Collective Bargaining Act, see section 81-1369.

Annotations

The provision prohibiting a retroactive order means that the orders of the Court of Industrial Relations cannot apply to a period prior to that embraced within the dispute submitted to it. Crete Education Assn. v. School Dist. of Crete, 193 Neb. 245, 226 N.W.2d 752 (1975).

48-818. Commission; findings; order; powers; duties; orders authorized; modification.

(1) Except as provided in the State Employees Collective Bargaining Act, the findings and order or orders may establish or alter the scale of wages, hours of labor, or conditions of employment, or any one or more of the same. In making such findings and order or orders, the commission shall establish rates of pay and conditions of employment which are comparable to the prevalent wage rates paid and conditions of employment maintained for the same or similar work of workers exhibiting like or similar skills under the same or similar working conditions. In establishing wage rates the commission shall take into consideration the overall compensation presently received by the employees, having regard not only to wages for time actually worked but also to wages for time not worked, including vacations, holidays, and other excused time, and all benefits received, including insurance and pensions, and the continuity and stability of employment enjoyed by the employees. Any order or orders entered may be modified on the commission's own motion or on application by any of the parties affected, but only upon a showing of a change in the conditions from those prevailing at the time the original order was entered.

(2) For purposes of industrial disputes involving public employers other than school districts, educational service units, and community colleges with their certificated and instructional employees and public employers subject to the State Employees Collective Bargaining Act:

(a) Job matches shall be sufficient for comparison if (i) evidence supports at least a seventy percent match based on a composite of the duties and time spent performing those duties and (ii) at least three job matches per classification are available for comparison. If three job matches are not available, the commission shall base its order on the historic relationship of wages paid to such position over the last three fiscal years, for which data is available, as compared to wages paid to a position for which a minimum of three job matches are available;

(b) The commission shall adhere to the following criteria when establishing an array:

(i) Geographically proximate public employers and Nebraska public employers are preferable for comparison;

(ii) The preferred size of an array is seven to nine members. As few as five members may be chosen if all array members are Nebraska employers. The commission shall include members mutually agreed to by the parties in the array;

(iii) If more than nine employers with job matches are available, the commission shall limit the array to nine members, based upon selecting array members with the highest number of job matches at the highest job match percentage;

(iv) Nothing in this subdivision (2)(b) of this section shall prevent parties from stipulating to an array member that does not otherwise meet the criteria in such subdivision, and nothing in such subdivision shall prevent parties from stipulating to less than seven or more than nine array members;

(v) The commission shall not require a balanced number of larger or smaller employers or a balanced number of Nebraska or out-of-state employers;

(vi) If the array includes a public employer in a metropolitan statistical area other than the metropolitan statistical area in which the employer before the commission is located, only one public employer from such metropolitan statistical area may be included in the array;

(vii) Arrays for public utilities with annual revenue of five hundred million dollars or more shall include both comparable public and privately owned utilities. Arrays for public utilities with annual revenue of less than five hundred million dollars may include both comparable public and privately owned utilities. Public utilities that produce radioactive material and energy pursuant to section 70-627.02 shall have at least four members in its array that produce radioactive material and energy when employees directly involved in this production are included in the bargaining unit. For public utilities that generate, transmit, and distribute power, the array shall include members that also perform these functions. For a public utility serving a city of the primary class, the array shall only include public power districts in Nebraska that generate, transmit, and distribute power and any out-of-state utilities whose number of meters served is not more than double or less than one-half of the number of meters served by the public utility serving a city of the primary class unless evidence establishes that there are substantial differences which cause the work or conditions of employment to be dissimilar;

(viii) In constructing an array for a public utility, the commission shall use fifty-mile concentric circles until it reaches the optimum array pursuant to subdivision (2)(b)(ii) of this section; and

(ix) For a statewide public utility that provides service to a majority of the counties in Nebraska, any Nebraska public or private job match may be used without regard to the population or full-time equivalent employment requirements of this section, and any out-of-state job match may be used if the full-time equivalent employment of the out-of-state employer is no more than double and no less than one-half of the full-time equivalent employment of the bargaining unit of the statewide public utility in question;

(c) In determining same or similar working conditions, the commission shall adhere to the following:

(i) Public employers in Nebraska shall be presumed to provide same or similar working conditions unless evidence establishes that there are substantial differences which cause the work or conditions of employment to be dissimilar;

(ii) Public employers shall be presumed to provide the same or similar working conditions if (A) for public employers that are counties or municipalities, the population of such public employer is not more than double or less than one-half of the population of the public employer before the commission, unless evidence establishes that there are substantial differences which cause the work or conditions of employment to be dissimilar, (B) for public employers that are public utilities, the number of such public employer's employees is not more than double or less than one-half of the number of employees of the public employer before the commission, unless evidence establishes that there are substantial differences which cause the work or conditions of employment to be dissimilar, or (C) for public employers that are school districts, educational service units, or community colleges with noncertificated and noninstructional school employees, the student enrollment of such public employer is not more than double or less than one-half of the student enrollment of the public employer before the commission, unless evidence establishes that there are substantial differences which cause the work or conditions of employment to be dissimilar;

(iii)(A) Public employers located within a metropolitan statistical area who meet the population requirements of subdivision (2)(c)(ii)(A) of this section, if the public employer is a county or municipality, or the student enrollment requirements of subdivision (2)(c)(ii)(C) of this section, if the public employer is a school district or an educational service unit, shall be presumed to provide the same or similar working conditions if the metropolitan statistical area population in which they are located is not more than double or less than one-half the metropolitan statistical area population of the public employer before the commission, unless evidence establishes that there are substantial differences which cause the work or conditions of employment to be dissimilar.

(B) The presumption created by subdivision (2)(c)(iii)(A) of this section may be overcome in situations where evidence establishes that there are substantial similarities which cause the work or conditions of employment to be similar, allowing the commission to consider public employers located within a metropolitan statistical area even if the metropolitan statistical area population in which that employer or employers are located is more than double or less than one-half the metropolitan statistical area population of the public employer before the commission. The burden of establishing sufficient similarity is on the party seeking to include a public employer pursuant to this subdivision (2)(c)(iii)(B) of this section; and

(iv) Public employers other than public utilities which are not located within a metropolitan statistical area shall not be compared to public employers located in a metropolitan statistical area. For purposes of this subdivision, metropolitan statistical area includes municipalities with populations of fifty thousand inhabitants or more;

(d) Prevalent shall be determined as follows: (i) For numeric values, prevalent shall be the midpoint between the arithmetic mean and the arithmetic median. For fringe benefits, prevalent shall be the midpoint between the arithmetic mean and the arithmetic median as long as a majority of the array members provide the benefit; and (ii) for nonnumeric comparisons, prevalent shall be the mode that the majority of the array members provide if the compared-to benefit is similar in nature. If there is no clear mode, the benefit or working condition shall remain unaltered by the commission;

(e) For any out-of-state employer, the parties may present economic variable evidence and the commission shall determine what, if any, adjustment is to be made if such evidence is presented. The commission shall not require that any such economic variable evidence be shown to directly impact the wages or benefits paid to employees by such out-of-state employer;

(f) In determining total or overall compensation, the commission shall value every economic item even if the year in question has expired. The commission shall require that all wage and benefit levels be leveled over the twelve-month period in dispute to account for increases or decreases which occur in the wage or benefit levels provided by any array member during such twelve-month period;

(g) In cases filed pursuant to this subsection (2) of this section, the commission shall not be bound by the usual common law or statutory rules of evidence or by any technical or formal rules of procedure, other than those adopted by rule pursuant to section 48-809. The commission shall receive evidence relating to array selection, job match, and wages and benefits which have been assembled by telephone, electronic transmission, or mail delivery, and any such evidence shall be accompanied by an affidavit from the employer or any other person with personal knowledge which affidavit shall demonstrate the affiant's personal knowledge and competency to testify on the matters thereon. The commission, with the consent of the parties to the dispute, and in the presence of the parties to the dispute, may contact an individual employed by an employer under consideration as an array member by telephone to inquire as to the nature or value of a working condition, wage, or benefit provided by that particular employer as long as the individual in question has personal knowledge about the information being sought. The commission may rely upon information gained in such inquiry for its decision. Opinion testimony shall be received by the commission based upon evidence provided in accordance with this subdivision. Testimony concerning job match shall be received if job match inquiries were conducted by telephone, electronic transmission, or mail delivery if the witness providing such testimony verifies the method of such job match inquiry and analysis;

(h) In determining the value of defined benefit and defined contribution retirement plans and health insurance plans or health benefit plans, the commission shall use an hourly rate value calculation as follows:

(i) Once the array has been chosen, each array member and the public employer of the subject bargaining unit shall provide a copy of its most recent defined benefit pension actuarial valuation report. Each array member and the public employer of the subject bargaining unit shall provide the most recent copy of its health insurance plans or health benefit plans, covering the preceding twelve-month period, with associated employer and employee costs, to the parties and the commission. Each array member shall also provide information concerning premium equivalent payments and contributions for health savings accounts. Each array member and the public employer of the subject bargaining unit shall indicate which plans are most used. The plans that are most used shall be used for comparison;

(ii) Once the actuarial valuation reports are received, the parties shall have thirty calendar days to determine whether to have the pensions actuarially valued at an hourly rate value other than equal. The hourly rate value for defined benefit plans shall be presumed to be equal to that of the array selected unless one or both of the parties presents evidence establishing that the actuarially derived annual normal cost of the pension benefit for each job classification in the subject bargaining unit is above or below the midpoint of the average normal cost. Consistent methods and assumptions are to be applied to determine the annual normal cost of any defined benefit pension plan of the subject bargaining unit and each array member. For this purpose, the entry age normal actuarial cost method is recommended. The actuarial assumptions that are selected for this purpose should reflect expectations for a defined benefit pension plan maintained for the employees of the subject bargaining unit and acknowledge the eligibility and benefit provisions for each respective defined benefit pension plan. In this regard, different eligibility and benefit provisions may suggest different retirement or termination of employment assumptions. The methods and assumptions shall be attested to by an actuary holding a current membership with the American Academy of Actuaries. Any party who requests or presents evidence regarding actuarial valuation of a defined benefit plan shall be responsible for costs associated with such valuation and testimony. The actuarial valuation is presumed valid, unless a party presents competent actuarial evidence that the valuation is invalid;

(iii) The hourly rate value for defined contribution plans shall be established upon comparison of employer contributions;

(iv) The hourly rate value for health insurance plans or health benefit plans shall be established based upon the public employer's premium payments, premium equivalent payments, and public employer and public employee contributions to health savings accounts;

(v) The commission shall not compare defined benefit plans to defined contribution plans or defined contribution plans to defined benefit plans; and

(vi) The commission shall order increases or decreases in wage rates by job classification based upon the hourly rate value for health-related benefits, benefits provided for retirement plans, and wages;

(i) For benefits other than defined benefit and defined contribution retirement plans and health insurance plans or health benefit plans, the commission shall issue an order based upon a determination of prevalency as determined under subdivision (2)(d) of this section; and

(j) The commission shall issue an order regarding increases or decreases in base wage rates or benefits as follows:

(i) The order shall be retroactive with respect to increases and decreases to the beginning of the bargaining year in dispute;

(ii) The commission shall determine whether the hourly rate value of the bargaining unit's members or classification falls within a ninety-eight percent to one hundred two percent range of the array's midpoint. If the hourly rate value falls within the ninety-eight percent to one hundred two percent range, the commission shall order no change in wage rates. If the hourly rate value is less than ninety-eight percent of the midpoint, the commission shall enter an order increasing wage rates to ninety-eight percent of the midpoint. If the hourly rate value is more than one hundred two percent of the midpoint, the commission shall enter an order decreasing wage rates to one hundred two percent of the midpoint. If the hourly rate value is more than one hundred seven percent of the midpoint, the commission shall enter an order reducing wage rates to one hundred two percent of the midpoint in three equal annual reductions. If the hourly rate value is less than ninety-three percent of the midpoint, the commission shall enter an order increasing wage rates to ninety-eight percent of the midpoint in three equal annual increases. If the commission finds that the year in dispute occurred during a time of recession, the applicable range will be ninety-five percent to one hundred two percent. For purposes of this subdivision (2)(j) of this section, recession occurrence means the two nearest quarters in time, excluding the immediately preceding quarter, to the effective date of the contract term in which the sum of the net state sales and use tax, individual income tax, and corporate income tax receipts are less than the same quarters for the prior year. Each of these receipts shall be rate and base adjusted for state law changes. The Department of Revenue shall report and publish such receipts on a quarterly basis;

(iii) The parties shall have twenty-five calendar days to negotiate modifications to wages and benefits. If no agreement is reached, the commission's order shall be followed as issued; and

(iv) The commission shall provide an offset to the public employer when a lump-sum payment is due because benefits were paid in excess of the prevalent as determined under subdivision (2)(d) of this section or when benefits were paid below the prevalent as so determined but wages were above prevalent.

Source:Laws 1947, c. 178, § 18, p. 592; Laws 1969, c. 407, § 6, p. 1410; Laws 1987, LB 661, § 28; Laws 2011, LB397, § 10.

Cross References

State Employees Collective Bargaining Act, see section 81-1369.

Annotations

1. Commission of Industrial Relations, powers and duties

2. Establishing wage rates

3. Miscellaneous

1. Commission of Industrial Relations, powers and duties

A contract continuation clause deals with hours, wages, or terms and conditions of employment as set forth in this section and thus is mandatorily bargainable. Central City Ed. Assn. v. Merrick Cty. Sch. Dist., 280 Neb. 27, 783 N.W.2d 600 (2010).

A prevalence determination by the Commission of Industrial Relations is a subjective determination, and the standard inherent in the word "prevalent" will be one of general practice, occurrence, or acceptance. Hyannis Ed. Assn. v. Grant Cty. Sch. Dist. No. 38-0011, 269 Neb. 956, 698 N.W.2d 45 (2005).

A valid prevalence analysis by the Commission of Industrial Relations does not require as a prerequisite a complete identity of provisions in the array. Hyannis Ed. Assn. v. Grant Cty. Sch. Dist. No. 38-0011, 269 Neb. 956, 698 N.W.2d 45 (2005).

When discussing the Commission of Industrial Relations' authority under this section, the Nebraska Supreme Court has acknowledged that a prevalent wage rate to be determined by the commission must almost invariably be determined after consideration of a combination of factors. Hyannis Ed. Assn. v. Grant Cty. Sch. Dist. No. 38-0011, 269 Neb. 956, 698 N.W.2d 45 (2005).

In industrial disputes involving governmental services, the Commission of Industrial Relations is empowered to establish rates of pay and conditions of employment comparable to those prevalent for the same or similar work of workers exhibiting like or similar skills under the same or similar working conditions. Employers selected for the comparative array must be demonstrated to be similar. The Commission is required to take into consideration the overall compensation received by the employees, including all fringe benefits, but dollar-for-dollar costing out of each benefit is not required. The Commission's findings and order may establish or alter the scale of wages, including establishing wage-step progression schedules. Lincoln Firefighters Assn. Local 644 v. City of Lincoln, 253 Neb. 837, 572 N.W.2d 369 (1998).

The Commission of Industrial Relations is without the power to declare that interest shall be due on its orders from the date of their entry since the power is not specifically conferred by statute, and such a construction is not necessary to accomplish the plain purpose of the act. IBEW Local 763 v. Omaha P.P. Dist., 209 Neb. 335, 307 N.W.2d 795 (1981).

The Commission of Industrial Relations has no jurisdiction to hear breach of contract cases. Such cases must be heard in a court of competent jurisdiction. The Commission of Industrial Relations also lacks jurisdiction to grant declaratory or equitable relief, both of which are judicial functions and may not be exercised by an administrative agency. State Coll. Ed. Assoc. & Chadron State Coll. v. Bd. of Trustees, 205 Neb. 107, 286 N.W.2d 433 (1979); Transport Workers of America v. Transit Authority of City of Omaha, 205 Neb. 26, 286 N.W.2d 102 (1979).

The Commission of Industrial Relations does not have authority to alter the terms of an existing agreement. Transport Workers of America v. Transit Authority of City of Omaha, 205 Neb. 26, 286 N.W.2d 102 (1979).

The Commission of Industrial Relations cannot in a section 48-818 case obtain evidence on its own motion unless the moving party has first made a prima facie case of noncomparability with prevalent conditions. General Driver and Helpers Union v. City of West Point, 204 Neb. 238, 281 N.W.2d 772 (1979).

The Commission of Industrial Relations' authority is limited to the provisions of this section which, at the time, provide that Commission of Industrial Relations' findings and orders may only establish or alter the scale of wages, hours of labor, or condition of employment. University Police Officers Union v. University of Nebraska, 203 Neb. 4, 277 N.W.2d 529 (1979).

While Court of Industrial Relations may not order a school district to enter into a contract, it has the power to settle a dispute. School Dist. of Seward Education Assn. v. School Dist. of Seward, 188 Neb. 772, 199 N.W.2d 752 (1972).

2. Establishing wage rates

Employees have no vested right to placement on the top step of a new pay plan based upon 1 year of employment, and the employer does not act arbitrarily or capriciously in placing the employees on the new pay plan. Nebraska Pub. Emp. v. City of Omaha, 247 Neb. 468, 528 N.W.2d 297 (1995).

In a case to establish or alter the scale of wages under this section, the burden is on the moving party to demonstrate that existing wages are not comparable to the prevalent wage rate. Douglas Cty. Health Dept. Emp. Assn. v. Douglas Cty., 229 Neb. 301, 427 N.W.2d 28 (1988).

Where large number of job classifications exist and established lines of progression and relationships are present, key job classifications may be utilized to establish wages, provided reasonable requirements of prevalence and relevance are met. IBEW Local 1536 v. City of Fremont, 216 Neb. 357, 345 N.W.2d 291 (1984).

With regard to comparability, the Commission of Industrial Relations will enter an order either adjusting condition of employment or find subject city's condition to be lesser or greater than prevalent and adjust overall compensation accordingly. IBEW Local 1536 v. City of Fremont, 216 Neb. 357, 345 N.W.2d 291 (1984).

The Commission of Industrial Relations is required to consider every possible array which is sufficiently representative so as to determine whether the wage paid or benefits given are comparable. The Commission of Industrial Relation's determination of an array consisting of Nebraska counties excluding outstate counties fully complied with the statutory standard. Lincoln Co. Sheriff's Emp. Assn. v. Co. of Lincoln, 216 Neb. 274, 343 N.W.2d 735 (1984).

Absent evidence to show dissimilarities of work performed, or working conditions, where there are local comparisons which can or should be made, the Commission of Industrial Relations cannot disregard them and create an array which is not reflective of the local labor market. The use of the "key job" classification system in situations involving a large number of employee classifications is approved. AFSCME Local No. 2088 v. County of Douglas, 208 Neb. 511, 304 N.W.2d 368 (1981).

Determinations made as to the acceptance and rejection of proposed "comparables" were within the expertise of the commission, were made after consideration and comparison of the evidence, and were arrived at by methods in accord with the requirements of this section, and are affirmed. Fraternal Order of Police v. County of Adams, 205 Neb. 682, 289 N.W.2d 535 (1980).

Prevalent wage rates for firemen must be determined by comparison with wages paid for comparable services in similar labor markets, determined upon the factors in this section, and adjusted for economic dissimilarities shown to exist with the compared markets. Lincoln Fire Fighters Assn. v. City of Lincoln, 198 Neb. 174, 252 N.W.2d 607 (1977).

In establishing wages, the Court of Industrial Relations must consider overall compensation, including fringe benefits, and it may compare with wages in similar labor markets. Omaha Assn. of Firefighters v. City of Omaha, 194 Neb. 436, 231 N.W.2d 710 (1975).

In selecting school districts for purpose of comparison, the ultimate question is whether those selected are sufficiently similar to the subject district and in establishing wage rates the entire situation, including fringe benefits, should be considered. Crete Education Assn. v. School Dist. of Crete, 193 Neb. 245, 226 N.W.2d 752 (1975).

3. Miscellaneous

Act establishing Court of Industrial Relations does not violate any constitutional provision and the standards for its guidance are adequate. Orleans Education Assn. v. School Dist. of Orleans, 193 Neb. 675, 229 N.W.2d 172 (1975).

This section lists the factors that the Court of Industrial Relations should consider in establishing wage scales, hours of labor, and conditions of employment. International Brotherhood of Electrical Workers v. City of Hastings, 179 Neb. 455, 138 N.W.2d 822 (1965).

48-818.01. School districts, educational service units, and community colleges; collective bargaining; timelines; procedure; resolution officer; powers; duties; action filed with commission; when; collective-bargaining agreement; contents.

(1) The Legislature finds that it is in the public's interest that collective bargaining involving school districts, educational service units, and community colleges and their certificated and instructional employees commence and conclude in a timely fashion consistent with school district budgeting and financing requirements. To that end, the timelines in this section shall apply when the public employer is a school district, educational service unit, or community college.

(2) On or before September 1 of the year preceding the contract year in question, the certificated and instructional employees' collective-bargaining agent shall request recognition as bargaining agent. The governing board shall respond to such request not later than the following October 1. A request for recognition need not be filed if the certificated and instructional employees' bargaining agent has been certified by the commission as the exclusive collective-bargaining agent. On or before November 1 of the year preceding the contract year in question, negotiations shall begin. There shall be no fewer than four negotiations meetings between the certificated and instructional employees' collective-bargaining agent and the governing board's bargaining agent. Either party may seek a bargaining order pursuant to subsection (1) of section 48-816 at any stage in the negotiations. If an agreement is not reached on or before the following February 8, the parties shall submit to mandatory mediation or factfinding as ordered by the commission pursuant to sections 48-811 and 48-816 unless the parties mutually agree in writing to forgo mandatory mediation or factfinding.

(3)(a) The mediator or factfinder as ordered by the commission under subsection (2) of this section shall be a resolution officer. The commission shall provide the parties with the names of five individuals qualified to serve as the resolution officer. If the parties cannot agree on an individual, each party shall alternately strike names. The remaining individual shall serve as the resolution officer.

(b) The resolution officer may:

(i) Determine whether the issues are ready for adjudication;

(ii) Identify for resolution terms and conditions of employment that are in dispute and which were negotiated in good faith but upon which no agreement was reached;

(iii) Accept stipulations;

(iv) Schedule hearings;

(v) Prescribe rules of conduct for conferences;

(vi) Order additional mediation if necessary;

(vii) Take any other action which may aid in resolution of the industrial dispute; and

(viii) Consult with a party ex parte only with the concurrence of all parties.

(c) The resolution officer shall choose the most reasonable final offer on each issue in dispute. In making such choice, he or she shall consider factors relevant to collective bargaining between public employers and public employees, including comparable rates of pay and conditions of employment as described in subsection (1) of section 48-818. The resolution officer shall not apply strict rules of evidence. Persons who are not attorneys may present cases to the resolution officer.

(d) If either party to a resolution officer proceeding is dissatisfied with the resolution officer's decision, such party shall have the right to file an action with the commission seeking a determination of terms and conditions of employment pursuant to subsection (1) of section 48-818. Such action shall not constitute an appeal of the resolution officer's decision, but rather shall be heard by the commission as an action brought pursuant to subsection (1) of section 48-818. The commission shall resolve, pursuant to the mandates of such section, all of the issues identified by either party and which were recognized by the resolution officer as an industrial dispute. If parties have not filed with the commission pursuant to subsection (6) of this section, the decision of the resolution officer shall be deemed final and binding.

(4) For purposes of this section, issue means broad subjects of negotiation which are presented to the resolution officer pursuant to this section. All aspects of wages are a single issue, all aspects of insurance are a single issue, and all other subjects of negotiations classified in broad categories are single issues.

(5) On or before March 25 of the year preceding the contract year in question or within twenty-five days after the certification of the amounts to be distributed to each local system and each school district pursuant to the Tax Equity and Educational Opportunities Support Act as provided in section 79-1022 for the contract year in question, whichever occurs last in time, negotiations, mediation, and factfinding shall end.

(6) If an agreement for the contract year in question has not been achieved on or before the date for negotiation, mediation, or factfinding to end in subsection (5) of this section, either party may, within fourteen days after such date, file a petition with the commission pursuant to section 48-811 and subsection (1) of section 48-818 to resolve the industrial dispute for the contract year in question. The commission shall render a decision on such industrial dispute on or before September 15 of the contract year in question.

(7) Any existing collective-bargaining agreement will continue in full force and effect until superseded by further agreement of the parties or by an order of the commission. The parties may continue to negotiate unresolved issues by mutual agreement while the matter is pending with the commission.

(8) All collective-bargaining agreements shall be written and executed by representatives of the governing board and representatives of the certificated and instructional employees' bargaining unit. The agreement shall contain at a minimum the following:

(a) A salary schedule or objective method of determining salaries;

(b) A description of benefits being provided or agreed upon including a specific level of coverage provided in any group insurance plan, a dollar amount, or percentage of premiums to be paid, and by whom; and

(c) A provision that the existing agreement will continue until replaced by a successor agreement or as amended by a final order of the commission.

Source:Laws 2011, LB397, § 11.

Cross References

Tax Equity and Educational Opportunities Support Act, see section 79-1001.

48-818.02. School district, educational service unit, or community college; total compensation; considerations.

When determining total compensation pursuant to subsection (1) of section 48-818 for a school district, educational service unit, or community college with their certificated and instructional employees, the commission shall consider the employer's contribution to retirement plans and health insurance premiums, premium equivalent payments, or cash equivalent payments and any other costs, including Federal Insurance Contributions Act contributions, associated with providing such benefits.

Source:Laws 2011, LB397, § 12.

48-818.03. School district, educational service unit, or community college; wage rates; commission; duties; orders authorized.

When establishing wage rates pursuant to subsection (1) of section 48-818 for a school district, educational service unit, or community college with their certificated and instructional employees, the commission shall determine whether the total compensation of the members of the bargaining unit or classification falls within a ninety-eight percent to one hundred two percent range of the array's midpoint. If the total compensation falls within the ninety-eight percent to one hundred two percent range, the commission shall order no change in wage rates. If the total compensation is less than ninety-eight percent of the midpoint, the commission shall enter an order increasing wage rates to ninety-eight percent of the midpoint. If the total compensation is more than one hundred two percent of the midpoint, the commission shall enter an order decreasing wage rates to one hundred two percent of the midpoint. If the total compensation is more than one hundred seven percent of the midpoint, the commission shall enter an order reducing wage rates to one hundred two percent of the midpoint in three equal annual reductions. If the total compensation is less than ninety-three percent of the midpoint, the commission shall enter an order increasing wage rates to ninety-eight percent of the midpoint in three equal annual increases. If the commission finds that the year in dispute occurred during a time of recession, the applicable range will be ninety-five percent to one hundred two percent. For purposes of this section, recession occurrence means the two nearest quarters in time, excluding the immediately preceding quarter, to the effective date of the contract term in which the sum of the net state sales and use tax, individual income tax, and corporate income tax receipts are less than the same quarters for the prior year. Each of these receipts shall be rate and base adjusted for state law changes. The Department of Revenue shall report and publish such receipts on a quarterly basis.

Source:Laws 2011, LB397, § 13.

48-819. Commission; orders; effect; contempt.

Orders, temporary or final, entered by the Commission of Industrial Relations shall be binding on all parties involved therein and shall be deemed to be of the same force and effect as like orders entered by a district court and shall be enforceable in appropriate proceedings in the courts of this state. Failure on the part of any person to obey any order, decree or judgment of the Commission of Industrial Relations, either temporary or final, shall constitute a contempt of such tribunal in all cases where a similar failure to obey a similar order, decree or judgment of a district court would constitute a contempt of such tribunal, and upon application to the appropriate district court of the state shall be dealt with as would a similar contempt of the said district court.

Source:Laws 1947, c. 178, § 19, p. 593.

Annotations

Once an order is entered by the Commission of Industrial Relations, the rights of the parties are established, but a suit to enforce those rights must be brought in the district court; and, while an order of the commission, once sued upon, may bear prejudgment interest, the commission is not authorized to order payment of interest as part of its order. IBEW Local 763 v. Omaha P.P. Dist., 209 Neb. 335, 307 N.W.2d 795 (1981).

The Commission of Industrial Relations cannot enforce its own order, it must resort to the appropriate district court. University Police Officers Union v. University of Nebraska, 203 Neb. 4, 277 N.W.2d 529 (1979).

To pass scrutiny of Constitution of the United States, Nebraska Court of Industrial Relations, in case within its jurisdiction, must be deemed to have sufficient power to fully vindicate, preserve, and protect a federal constitutional right. Teamsters Pub. Emp. U. Loc. 594 v. City of West Point, 338 F.Supp. 927 (D. Neb. 1972).

48-819.01. Commission; power to make findings and enter orders; when.

Whenever it is alleged that a party to an industrial dispute has engaged in an act which is in violation of any of the provisions of the Industrial Relations Act, or which interferes with, restrains, or coerces employees in the exercise of the rights provided in such act, the commission shall have the power and authority to make such findings and to enter such temporary or permanent orders as the commission may find necessary to provide adequate remedies to the injured party or parties, to effectuate the public policy enunciated in section 48-802, and to resolve the dispute.

Source:Laws 1979, LB 444, § 8; Laws 1986, LB 809, § 7.

Annotations

The Commission on Industrial Relations' issuance of cease and desist orders is the equivalent of the commission ordering a party to cease and desist violating provisions of the Industrial Relations Act. Such orders are appropriate and adequate remedies under this section and subsection (2) of section 48-825. Crete Ed. Assn. v. Saline Cty. Sch. Dist. No. 76-0002, 265 Neb. 8, 654 N.W.2d 166 (2002).

Under the facts presented in this case, the order of the Commission on Industrial Relations to post notices regarding the employer's violation of the Industrial Relations Act was not an appropriate and adequate remedy under this section and subsection (2) of section 48-825. Crete Ed. Assn. v. Saline Cty. Sch. Dist. No. 76-0002, 265 Neb. 8, 654 N.W.2d 166 (2002).

The Commission of Industrial Relations has the authority to allow interest on an award. IAFF Local 831 v. City of No. Platte, 215 Neb. 89, 337 N.W.2d 716 (1983).

48-820. Repealed. Laws 1969, c. 407, § 8.

48-821. Public service; interference; coercion; violation; penalty.

It shall be unlawful for any person:

(1) To hinder, delay, limit or suspend the continuity or efficiency of any governmental service or any governmental service in a proprietary capacity, or the service of any public utility, by lockout, strike, slowdown, or other work stoppage;

(2) To coerce, instigate, induce, conspire with, intimidate or encourage any person to participate in any lockout, strike, slowdown or other work stoppage, which would hinder, delay, limit or suspend the continuity or efficiency of any governmental service or governmental service in a proprietary capacity, or the service of any public utility; or

(3) To aid or assist any such lockout, strike, slowdown, or other work stoppage by giving direction or guidance in the conduct of any such lockout, strike, slowdown or other work stoppage or by providing funds for the conduct or direction thereof, or for the payment of strike, unemployment or other benefits to those participating therein.

Any person who willfully violates any of the provisions of this section shall be guilty of a Class I misdemeanor.

Source:Laws 1947, c. 178, § 21, p. 594; Laws 1977, LB 40, § 298.

48-822. Employees; no requirement to work without consent.

No provision of the Industrial Relations Act shall be construed to require an employee to work without his or her consent, or to make illegal the quitting of his or her job or withdrawal from his or her place of employment unless done in concert or by agreement with others.

Source:Laws 1947, c. 178, § 22, p. 594; Laws 1986, LB 809, § 8.

48-823. Act; liberal construction; commission; powers.

The Industrial Relations Act and all grants of power, authority, and jurisdiction made in such act to the commission shall be liberally construed to effectuate the public policy enunciated in section 48-802. All incidental powers necessary to carry into effect the Industrial Relations Act are hereby granted to and conferred upon the commission.

Source:Laws 1947, c. 178, § 23, p. 594; Laws 1986, LB 809, § 9.

Annotations

Supervisory or managerial personnel may not enter into a bargaining unit with rank and file employees and may not retain the same bargaining agent. Nebraska Assn. of Pub. Emp. v. Nebraska Game & Parks Commission, 197 Neb. 178, 247 N.W.2d 449 (1976).

48-824. Labor negotiations; prohibited practices.

(1) It is a prohibited practice for any public employer, public employee, public employee organization, or collective-bargaining agent to refuse to negotiate in good faith with respect to mandatory topics of bargaining.

(2) It is a prohibited practice for any public employer or the public employer's negotiator to:

(a) Interfere with, restrain, or coerce employees in the exercise of rights granted by the Industrial Relations Act;

(b) Dominate or interfere in the administration of any public employee organization;

(c) Encourage or discourage membership in any public employee organization, committee, or association by discrimination in hiring, tenure, or other terms or conditions of employment;

(d) Discharge or discriminate against a public employee because the employee has filed an affidavit, petition, or complaint or given any information or testimony under the Industrial Relations Act or because the public employee has formed, joined, or chosen to be represented by any public employee organization;

(e) Refuse to negotiate collectively with representatives of collective-bargaining agents as required by the Industrial Relations Act;

(f) Deny the rights accompanying certification or recognition granted by the Industrial Relations Act; and

(g) Refuse to participate in good faith in any impasse procedures for public employees as set forth in the Industrial Relations Act.

(3) It is a prohibited practice for any public employee, public employee organization, or bargaining unit or for any representative or collective-bargaining agent to:

(a) Interfere with, restrain, coerce, or harass any public employee with respect to any of the public employee's rights granted by the Industrial Relations Act;

(b) Interfere with, restrain, or coerce a public employer with respect to rights granted by the Industrial Relations Act or with respect to selecting a representative for the purposes of negotiating collectively on the adjustment of grievances;

(c) Refuse to bargain collectively with a public employer as required by the Industrial Relations Act; and

(d) Refuse to participate in good faith in any impasse procedures for public employees as set forth in the Industrial Relations Act.

(4) The expressing of any view, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, is not evidence of any unfair labor practice under any of the provisions of the Industrial Relations Act if such expression contains no threat of reprisal or force or promise of benefit.

Source:Laws 1995, LB 382, § 1; Laws 2011, LB397, § 14.

Annotations

1. Mandatory subject of bargaining

2. Appeals

3. Miscellaneous

1. Mandatory subject of bargaining

In determining whether a topic is covered by an agreement, an appellate court considers whether the topic is within the compass of the terms of the agreement or it is instead wholly absent or contained in so broad and vague a reservation as to negate the requirement of bargaining in good faith regarding subjects of mandatory bargaining. Fraternal Order of Police v. City of York, 309 Neb. 359, 960 N.W.2d 315 (2021).

Pursuant to subsection (1), a public employer is required to negotiate in good faith regarding a new vacation accrual policy, because such a policy relates to a mandatory subject of bargaining. Service Empl. Internat. v. Douglas Cty. Sch. Dist., 286 Neb. 755, 839 N.W.2d 290 (2013).

Where the organization representing public employees received notice of the public employer's intent to change the vacation accrual policy, the organization's failure to make a timely request to bargain over the changes constituted a waiver of the right to bargain over what would otherwise have been a mandatory subject of bargaining. Service Empl. Internat. v. Douglas Cty. Sch. Dist., 286 Neb. 755, 839 N.W.2d 290 (2013).

An employer may lawfully implement changes in terms and conditions of employment which are mandatory topics of bargaining only when three conditions have been met: (1) The parties have bargained to impasse, (2) the terms and conditions implemented were contained in a final offer, and (3) the implementation occurred before a petition regarding the year in dispute is filed with the Commission of Industrial Relations. IBEW Local 763 v. Omaha Pub. Power Dist., 280 Neb. 889, 791 N.W.2d 310 (2010).

The purpose of this section is to provide public sector employees with the protection from unfair labor practices that private sector employees enjoy under the National Labor Relations Act, by making refusals to negotiate in good faith regarding mandatory bargaining topics a prohibited practice. IBEW Local 763 v. Omaha Pub. Power Dist., 280 Neb. 889, 791 N.W.2d 310 (2010).

2. Appeals

In an appeal from a Commission of Industrial Relations order regarding prohibited practices stated in this section, an appellate court will affirm a factual finding of the commission, if, considering the whole record, a trier of fact could reasonably conclude that the finding is supported by a preponderance of the competent evidence. Omaha Police Union Local 101 v. City of Omaha, 274 Neb. 70, 736 N.W.2d 375 (2007).

In an appeal from an order of the Commission of Industrial Relations regarding prohibited practices under this section, concerning a factual finding, the court will affirm that finding if, considering the whole record, a trier of fact could reasonably conclude that the finding is supported by a preponderance of the competent evidence. The court will consider that fact that the commission, sitting as the trier of fact, saw and heard the witnesses and observed their demeanor while testifying and will give weight to the commission's judgment as to credibility. Nebraska Public Employees Local Union 251 v. Otoe Cty., 257 Neb. 50, 595 N.W.2d 237 (1999).

3. Miscellaneous

This section implicitly authorizes a duty of fair representation claim against a labor union by a member of that union. Lamb v. Fraternal Order of Police Lodge No. 36, 293 Neb. 138, 876 N.W.2d 388 (2016).

The "deliberate and reckless untruth" standard of the National Labor Relations Act is not the appropriate method to analyze the speech of public service employees under the Industrial Relations Act. Omaha Police Union Local 101 v. City of Omaha, 274 Neb. 70, 736 N.W.2d 375 (2007).

An analysis of a violation under this section ends if the county commissioners had no knowledge of any discharged employee's union organizing activities. Nebraska Public Employees Local Union 251 v. Otoe Cty., 257 Neb. 50, 595 N.W.2d 237 (1999).

The reasoning of Wright Line, 251 N.L.R.B. 1083 (1980), enforced 662 F.2d 899 (1st Cir. 1981), is adopted as the means for analyzing alleged prohibited practices under this section. Nebraska Public Employees Local Union 251 v. Otoe Cty., 257 Neb. 50, 595 N.W.2d 237 (1999).

48-825. Labor negotiations; prohibited practices; complaints; procedure.

(1) A proceeding against a party alleging a violation of section 48-824 is commenced by filing a complaint with the commission within one hundred eighty days after the alleged violation thereby causing a copy of the complaint to be served upon the accused party. The accused party has ten days within which to file a written answer to the complaint. If the commission determines that the complaint has no basis in fact, the commission may dismiss the complaint. If the complaint has a basis in fact, the commission shall set a time for hearing. The parties may be represented by counsel, summon witnesses, and request the commission to subpoena witnesses on the requester's behalf.

(2) The commission shall file its findings of fact and conclusions of law. If the commission finds that the party accused has committed a prohibited practice, the commission, within thirty days after its decision, shall order an appropriate remedy. Any party may petition the district court for injunctive relief pursuant to the rules of civil procedure.

(3) Any party aggrieved by any decision or order of the commission may, within thirty days after the date such decision or order is filed, appeal to the Court of Appeals.

(4) Any order or decision of the commission may be modified, reversed, or set aside by the appellate court on one or more of the following grounds and no other:

(a) If the commission acts without or in excess of its powers;

(b) If the order was procured by fraud or is contrary to law;

(c) If the facts found by the commission do not support the order; and

(d) If the order is not supported by a preponderance of the competent evidence on the record considered as a whole.

Source:Laws 1995, LB 382, § 2.

Annotations

In an appellate court's review of orders and decisions of the Commission of Industrial Relations involving an industrial dispute over wages and conditions of employment, the appellate court's standard of review is as follows: Any order or decision of the commission may be modified, reversed, or set aside by the appellate court on one or more of the following grounds and no other: (1) If the commission acts without or in excess of its powers, (2) if the order was procured by fraud or is contrary to law, (3) if the facts found by the commission do not support the order, and (4) if the order is not supported by a preponderance of the competent evidence on the record considered as a whole. Hyannis Ed. Assn. v. Grant Cty. Sch. Dist. No. 38-0011, 269 Neb. 956, 698 N.W.2d 45 (2005).

If the Commission of Industrial Relations finds that an accused party has committed a prohibited practice under subsection (2) of this section, it has the authority to order an appropriate remedy, and such authority is to be liberally construed to effectuate the public policy enunciated in section 48-802. Operating Engrs. Local 571 v. City of Plattsmouth, 265 Neb. 817, 660 N.W.2d 480 (2003).

The Commission on Industrial Relations' issuance of cease and desist orders is the equivalent of the commission ordering a party to cease and desist violating provisions of the Industrial Relations Act. Such orders are appropriate and adequate remedies under subsection (2) of this section and section 48-819.01. Crete Ed. Assn. v. Saline Cty. Sch. Dist. No. 76-0002, 265 Neb. 8, 654 N.W.2d 166 (2002).

Under the facts presented in this case, the order of the Commission on Industrial Relations to post notices regarding the employer's violation of the Industrial Relations Act was not an appropriate and adequate remedy under subsection (2) of this section and section 48-819.01. Crete Ed. Assn. v. Saline Cty. Sch. Dist. No. 76-0002, 265 Neb. 8, 654 N.W.2d 166 (2002).

48-826. Repealed. Laws 1969, c. 407, § 8.

48-827. Repealed. Laws 1969, c. 407, § 8.

48-828. Repealed. Laws 1969, c. 407, § 8.

48-829. Repealed. Laws 1969, c. 407, § 8.

48-830. Repealed. Laws 1969, c. 407, § 8.

48-831. Repealed. Laws 1969, c. 407, § 8.

48-832. Repealed. Laws 1969, c. 407, § 8.

48-833. Repealed. Laws 1969, c. 407, § 8.

48-834. Repealed. Laws 1969, c. 407, § 8.

48-835. Repealed. Laws 1969, c. 407, § 8.

48-836. Repealed. Laws 1969, c. 407, § 8.

48-837. Public employees; employee organization; bargaining.

Public employees shall have the right to form, join, and participate in or to refrain from forming, joining, or participating in any employee organization of their own choosing. Public employees shall have the right to be represented by employee organizations to negotiate collectively with their public employers in the determination of their terms and conditions of employment and the administration of grievances arising thereunder.

Source:Laws 1969, c. 407, § 7, p. 1410; Laws 1986, LB 258, § 7; Laws 1986, LB 1250, § 4; Laws 1987, LB 661, § 29.

Annotations

Under the provisions of Nebraska law, employees have not only a right to organize and be represented by a union but likewise have a right not to be organized and represented. Sheldon Station Employees Assn. v. Nebraska P.P.D., 202 Neb. 391, 275 N.W.2d 816 (1979).

A basic consideration in bargaining unit determination is whether a community of interest exists among the employees sufficient to warrant their inclusion in a single unit. American Assn. of University Professors v. Board of Regents, 198 Neb. 243, 253 N.W.2d 1 (1977).

It is unlawful for the employer of a public employee to exert pressure upon him to refrain from joining a recognized bargaining unit. Local Union No. 647 v. City of Grand Island, 196 Neb. 693, 244 N.W.2d 515 (1976).

A uniquely personal termination of employment does not violate any rights under this section. Nebraska Dept. of Roads Employees Assn. v. Department of Roads, 189 Neb. 754, 205 N.W.2d 110 (1973).

School teachers are public employees within terms of this act. Sidney Education Assn. v. School Dist. of Sidney, 189 Neb. 540, 203 N.W.2d 762 (1973).

A labor organization may invoke the jurisdiction of the Court of Industrial Relations in behalf of its affected members. Mid-Plains Education Assn. v. Mid-Plains Nebraska Tech. College, 189 Neb. 37, 199 N.W.2d 747 (1972).

48-838. Collective bargaining; questions of representation; elections; nonmember employee duty to reimburse; when.

(1) The commission shall determine questions of representation for purposes of collective bargaining for and on behalf of public employees and shall make rules and regulations for the conduct of elections to determine the exclusive collective-bargaining agent for public employees, except that in no event shall a contract between a public employer and an exclusive collective-bargaining agent act as a bar for more than three years to any other party seeking to represent public employees, nor shall any contract bar for more than three years a petition by public employees seeking an election to revoke the authority of an agent to represent them. Except as provided in the State Employees Collective Bargaining Act, the commission shall certify the exclusive collective-bargaining agent for employees affected by the Industrial Relations Act following an election by secret ballot, which election shall be conducted according to rules and regulations established by the commission.

(2) The election shall be conducted by one member of the commission who shall be designated to act in such capacity by the presiding officer of the commission, or the commission may appoint the clerk of the district court of the county in which the principal office of the public employer is located to conduct the election in accordance with the rules and regulations established by the commission. Except as provided in the State Employees Collective Bargaining Act, the commission shall also determine the appropriate unit for bargaining and for voting in the election, and in making such determination, the commission shall consider established bargaining units and established policies of the public employer. It shall be presumed, in the case of governmental subdivisions such as municipalities, counties, power districts, or utility districts with no previous history of collective bargaining, that units of public employees of less than departmental size shall not be appropriate.

(3) Except as provided in the State Employees Collective Bargaining Act, the commission shall not order an election until it has determined that at least thirty percent of the employees in an appropriate unit have requested in writing that the commission hold such an election. Such request in writing by an employee may be in any form in which an employee specifically either requests an election or authorizes the employee organization to represent him or her in bargaining, or otherwise evidences a desire that an election be conducted. Such request of an employee shall not become a matter of public record. No election shall be ordered in one unit more than once a year.

(4) Except as provided in the State Employees Collective Bargaining Act, the commission shall only certify an exclusive collective-bargaining agent if a majority of the employees voting in the election vote for the agent. A certified exclusive collective-bargaining agent shall represent all employees in the appropriate unit with respect to wages, hours, and conditions of employment, except that such right of exclusive recognition shall not preclude any employee, regardless of whether or not he or she is a member of a labor organization, from bringing matters to the attention of his or her superior or other appropriate officials.

Any employee may choose his or her own representative in any grievance or legal action regardless of whether or not an exclusive collective-bargaining agent has been certified. If an employee who is not a member of the labor organization chooses to have legal representation from the labor organization in any grievance or legal action, such employee shall reimburse the labor organization for his or her pro rata share of the actual legal fees and court costs incurred by the labor organization in representing the employee in such grievance or legal action.

The certification of an exclusive collective-bargaining agent shall not preclude any public employer from consulting with lawful religious, social, fraternal, or other similar associations on general matters affecting public employees so long as such contracts do not assume the character of formal negotiations in regard to wages, hours, and conditions of employment. Such consultations shall not alter any collective-bargaining agreement which may be in effect.

Source:Laws 1972, LB 1228, § 4; Laws 1974, LB 819, § 10; Laws 1986, LB 809, § 10; Laws 1987, LB 661, § 30; Laws 2002, LB 29, § 1; Laws 2007, LB472, § 7; Laws 2011, LB397, § 15.

Cross References

State Employees Collective Bargaining Act, see section 81-1369.

Annotations

Public employee bargaining units, created under the State Employees Collective Bargaining Act, section 81-1369 et seq., must file any petition seeking to decertify an exclusive collective bargaining agent, under the Rules of the Nebraska Commission of Industrial Relations 9(II)(C)(1) (rev. 2015), during the period preceding the commencement of the statutorily required bargaining period in section 81-1379. Nebraska Protective Servs. Unit v. State, 299 Neb. 797, 910 N.W.2d 767 (2018).

Before the restrictions prescribed by this section against undue fragmentation in the public employment area can be overcome, there must be strong evidence justifying the need and propriety of any additional division of a bargaining unit. Sheldon Station Employees Assn. v. Nebraska P.P.D., 202 Neb. 391, 275 N.W.2d 816 (1979).

The considerations set forth in this section, in regard to collective bargaining units of employees, are not exclusive and the Commission of Industrial Relations may consider additional relevant factors in determining what bargaining unit of employees is appropriate. American Fed. of S., C. & M. Emp. v. Counties of Douglas & Lancaster, 201 Neb. 295, 267 N.W.2d 736 (1978).

Since the policy of the statute is opposition to undue fragmentation of bargaining units, the statute is not limited in applicability only to those governmental subdivisions enumerated. American Fed. of S., C. & M. Emp. v. State, 200 Neb. 171, 263 N.W.2d 643 (1978).

House officers of the University Medical Center have a community of interest separate from graduate students and assistants sufficient to warrant a separate bargaining unit of house officers only. House Officers Assn. v. University of Nebraska Medical Center, 198 Neb. 697, 255 N.W.2d 258 (1977).

In determining appropriate bargaining units for public employees, the provisions of this section shall be considered and other relevant factors may be considered. American Assn. of University Professors v. Board of Regents, 198 Neb. 243, 253 N.W.2d 1 (1977).

48-839. Changes made by Laws 2011, LB397; applicability.

Changes made to the Industrial Relations Act by Laws 2011, LB397, shall apply to petitions filed with the commission on or after October 1, 2011, except for petitions filed involving school districts, educational service units, and community colleges with their certificated and instructional employees for which such changes shall apply on or after July 1, 2012.

Source:Laws 2011, LB397, § 16.

48-840. Repealed. Laws 1987, LB 782, § 4.

48-841. Repealed. Laws 1987, LB 782, § 4.

48-842. State employees; jurisdiction of commission; restricted.

The jurisdiction of the Commission of Industrial Relations to establish salary or base salary levels or other terms of compensation for state employees shall not be invoked before the end of the 1987 regular session of the Legislature and if so invoked shall only be effective beginning with fiscal year 1987-88 and each fiscal year thereafter. The Legislature may, during the 1987 regular session, prohibit by law any order of the Commission of Industrial Relations relating to state employees for fiscal year 1987-88 if it finds such order will be inconsistent with any legislation passed during the 1987 regular session dealing with collective bargaining by state employees. The Legislature hereby finds and declares that the State Employees Collective Bargaining Act is inconsistent with an order relating to state employees for fiscal year 1987-88 and therefor such orders shall be prohibited.

Source:Laws 1986, LB 1250, § 3; Laws 1987, LB 661, § 31.

Cross References

State Employees Collective Bargaining Act, see section 81-1369.

48-901. Public policy.

The public policy of the state as to employment relations in the furtherance of which sections 48-901 to 48-912 are passed is declared to be as follows:

(1) It recognizes that there are three major interests involved, namely: That of the public, the employee, and the employer. These three interests are to a considerable extent interrelated. It is the policy of the state to protect and promote each of these interests with due regard to the situation and to the rights of the others.

(2) Industrial peace, regular and adequate income for the employee, and uninterrupted production of goods and services are promotive of all of these interests. They are largely dependent upon the maintenance of fair, friendly and mutually satisfactory employment relations and the availability of suitable machinery for the peaceful adjustment of whatever controversies may arise. It is recognized that certain employers, including farmers and farmer cooperatives, in addition to their general employer problems, face special problems arising from perishable commodities and seasonal production which require adequate consideration. It is also recognized that whatever may be the rights of disputants with respect to each other in any controversy regarding employment relations, they should not be permitted, in the conduct of their controversy, to intrude directly into the primary rights of third parties to earn a livelihood, transact business and engage in the ordinary affairs of life by any lawful means and free from molestation, interference, restraint or coercion.

(3) Negotiation of terms and conditions of work should result from voluntary agreement between employer and employee. For the purpose of such negotiation an employee has the right, if he desires, to associate with others in organizing and bargaining collectively through representatives of his own choosing, without intimidation or coercion from any source.

(4) It is the policy of the state, in order to preserve and promote the interests of the public, the employee, and the employer alike, to establish standards of fair conduct in employment relations and to provide a convenient and expeditious method through the courts by which these interests may have their respective rights and obligations adjudicated. While limiting individual and group rights of aggression and defense, the state substitutes processes of justice for the more primitive methods of trial by combat.

Source:Laws 1959, c. 231, § 1, p. 806.

48-902. Terms, defined.

As used in sections 48-901 to 48-912, unless the context otherwise requires:

(1) Labor organization shall mean any organization, association, or group of any kind, or any agency or employee representation committee or plan, whether incorporated or unincorporated, which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work;

(2) Labor dispute shall mean any controversy between an employer and the majority of his or her employees concerning the right or process or details of collective bargaining or the designation of an employee representative. Any organization with which either the employer or such majority is affiliated may be considered a party to the labor dispute;

(3) Employer shall mean a person who engages the services of an employee, and includes any person acting on behalf of an employer within the scope of his or her authority, express or implied, but shall not include the state or any political subdivision thereof, or any labor organization or anyone acting in behalf of such organization other than when it is acting as an employer in fact;

(4) Person shall include one or more individuals, partnerships, limited liability companies, associations, corporations, legal representatives, trustees, or receivers; and

(5) Secondary boycott shall mean combining or conspiring to cause or threaten to cause injury to one with whom no labor dispute exists, whether by (a) withholding patronage, labor, or other beneficial business intercourse, or by intentionally and unreasonably hindering or delaying the same, (b) picketing, (c) refusing to handle, install, use, or work on particular materials, equipment, or supplies, (d) hindering or preventing, by threats, intimidation, force, coercion or sabotage, the obtaining, use, or disposition of materials, equipment, or services, or (e) by any other unlawful means, in order to bring him or her against his or her will into a concerted plan to coerce or inflict damage upon another.

Source:Laws 1959, c. 231, § 2, p. 808; Laws 1993, LB 121, § 295.

48-903. Secondary boycott; unlawful.

It shall be unlawful for any person to engage in a secondary boycott as herein defined, notwithstanding the provisions of any contract to the contrary; Provided, that nothing herein shall prevent sympathetic strikes in support of those in similar occupations working for other employers in the same craft.

Source:Laws 1959, c. 231, § 3, p. 809.

48-904. Employees' right of self-organization.

Employees shall have the right of self-organization and the right to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in lawful, concerted activities for the purpose of collective bargaining or other mutual aid or protection; and such employees shall also have the right to refrain from any or all of such activities.

Source:Laws 1959, c. 231, § 4, p. 809.

48-905. Secondary boycott; injury to business, property, or person; damages.

Any person injured in his business, property or person by reason of any unlawful act as defined in section 48-903, may sue therefor in the district courts of this state, and shall recover the damages sustained by him, trebled, his reasonable attorneys' fees and the cost of the litigation.

Source:Laws 1959, c. 231, § 5, p. 809.

48-906. Secondary boycott; temporary injunction; grounds.

Any person injured or threatened with injury in his business, property or person by reason of any commission or threat of an unlawful act as provided in section 48-903 may, if the remedy provided by section 48-905 be inadequate, obtain injunctive relief, including temporary relief pending trial upon showing of an emergency, in the district courts of this state in accordance with the statutes, rules and practices applicable in other civil cases.

Source:Laws 1959, c. 231, § 6, p. 809.

48-907. Remedies; cumulative.

The remedies herein provided are cumulative and shall be in addition to any other remedies, civil or criminal, now or hereafter provided by law.

Source:Laws 1959, c. 231, § 7, p. 809.

48-908. Remedies; venue; process.

An action under sections 48-901 to 48-912 may be brought in the district court of the county where the cause of action or some part thereof arose, or in the county where the defendant labor organization, or some one of the defendant labor organizations, maintains an office, or in which its agents are engaged in acting for or representing employees or in the county where the plaintiff resides and summons may be served upon the defendant labor organization or some one of the defendant labor organizations.

Source:Laws 1959, c. 231, § 8, p. 809.

Cross References

For other provisions for actions against labor organizations, see sections 25-313 and 25-530.08.

48-909. Labor organization; suits against; designation.

In any action brought under sections 48-901 to 48-912, any labor organization may be sued in its own name and without identification of any of the persons who are its members.

Source:Laws 1959, c. 231, § 9, p. 810; Laws 1983, LB 447, § 73.

Cross References

For other provisions for actions against labor organizations, see sections 25-313 and 25-530.08.

48-910. Sections; violations; penalty.

Any individual, association, or corporation that shall violate any of the provisions of sections 48-901 to 48-912 shall be guilty of a Class II misdemeanor.

Source:Laws 1959, c. 231, § 10, p. 810; Laws 1977, LB 40, § 299.

48-911. Right to strike; right to work; freedom of speech.

Except as otherwise specifically provided, nothing contained in sections 48-901 to 48-912 shall be construed so as to interfere with or impede or diminish in any way the right to strike or the right of individuals to work; nor shall anything in sections 48-901 to 48-912 be so construed as to invade unlawfully the right to freedom of speech.

Source:Laws 1959, c. 231, § 11, p. 810.

48-912. Sections; construction.

It is the intention of the Legislature that sections 48-901 to 48-912 shall operate according to their terms to the full extent permitted by the Constitutions of the State of Nebraska and of the United States of America. In the event any section or part of sections 48-901 to 48-912, or the application thereof to any person or situation shall be held unconstitutional, sections 48-901 to 48-912 shall nevertheless continue in full effect with respect to all parts and applications thereof not so held to be unconstitutional.

Source:Laws 1959, c. 231, § 12, p. 810.

48-1001. Act, how cited; discrimination in employment because of age; policy; declaration of purpose.

(1) Sections 48-1001 to 48-1010 shall be known and may be cited as the Age Discrimination in Employment Act.

(2)(a) The Legislature hereby finds that the practice of discriminating in employment against properly qualified persons because of their age is contrary to American principles of liberty and equality of opportunity, is incompatible with the Constitution, deprives the state of the fullest utilization of its capacities for production, and endangers the general welfare.

(b) Hiring bias against workers forty years or more of age deprives the state of its most important resource of experienced employees, adds to the number of persons receiving public assistance, and deprives older people of the dignity and status of self-support.

(c) The right to employment otherwise lawful without discrimination because of age, where the reasonable demands of the position do not require such an age distinction, is hereby recognized as and declared to be a right of all the people of the state which shall be protected as provided in the act.

(d) It is hereby declared to be the policy of the state to protect the right recognized and declared in subdivision (2)(c) of this section and to eliminate all such discrimination to the fullest extent permitted. The Age Discrimination in Employment Act shall be construed to effectuate such policy.

Source:Laws 1963, c. 281, § 1, p. 838; Laws 1972, LB 1357, § 1; Laws 2007, LB265, § 13.

Annotations

In an age discrimination suit brought under the Act Prohibiting Unjust Discrimination in Employment Because of Age, the jury is not to be instructed on the elements which constitute a submissible case. Although the ultimate burden of persuasion by a preponderance of the evidence in an age discrimination action at all times remains with plaintiff, the method of proof is for plaintiff to prove a prima facie case; if plaintiff succeeds in proving a prima facie case, defendant has the burden of articulating some legitimate, nondiscriminatory reason for its action. Should defendant succeed in so doing, plaintiff must establish by a preponderance of the evidence that the legitimate reasons offered by defendant were not its true reasons, but a pretext for discrimination. Humphrey v. Nebraska Public Power Dist., 243 Neb. 872, 503 N.W.2d 211 (1993).

Persons seeking relief under this section must allege a violation by an employer of 25 or more persons. Steier v. Crosier Fathers of Hastings, 242 Neb. 16, 492 N.W.2d 870 (1992).

The federal practice for cases arising under the federal Age Discrimination in Employment Act of 1967, 29 U.S.C. sec. 621 et seq. (1982), may be instructive as to cases arising under the subject act. Allen v. AT&T Technologies, 228 Neb. 503, 423 N.W.2d 424 (1988).

The state, through its Legislature, has acted to prohibit unjust discrimination in employment because of age. Midwest Employers Council, Inc. v. City of Omaha, 177 Neb. 877, 131 N.W.2d 609 (1964).

48-1002. Terms, defined.

For purposes of the Age Discrimination in Employment Act:

(1) Person includes one or more individuals, partnerships, limited liability companies, associations, labor organizations, corporations, business trusts, legal representatives, or any organized group of persons;

(2) Employer means any person having in his or her employ twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year and includes the State of Nebraska, governmental agencies, and political subdivisions, regardless of the number of employees, any person acting for or in the interest of an employer, directly or indirectly, and any party whose business is financed in whole or in part under the Nebraska Investment Finance Authority Act, but such term does not include (a) the United States, (b) a corporation wholly owned by the government of the United States, or (c) an Indian tribe;

(3) Labor organization means any organization of employees which exists for the purpose, in whole or in part, of collective bargaining or of dealing with employers concerning grievances, terms, or conditions of employment, or for other mutual aid or protection in connection with employment;

(4) Employee means an individual employed by any employer; and

(5) Employment agency means any person regularly undertaking with or without compensation to procure employees for an employer or to procure for employees opportunities to work for an employer and includes an agent of such a person, but does not include an agency of the United States, except that such term does include the United States Employment Service and the system of state and local employment services receiving federal assistance.

Source:Laws 1963, c. 281, § 2, p. 839; Laws 1972, LB 1357, § 2; Laws 1973, LB 265, § 1; Laws 1977, LB 162, § 20; Laws 1983, LB 424, § 1; Laws 1983, LB 626, § 73; Laws 1993, LB 121, § 296; Laws 2007, LB265, § 14.

Cross References

Nebraska Investment Finance Authority Act, see section 58-201.

Annotations

For the purpose of defining an employer under Nebraska's age discrimination act, two distinct entities may be considered a single employer if the two businesses have (1) interrelated operations, (2) centralized control of labor relations, (3) common management, and (4) common ownership or financial control. Billingsley v. BFM Liquor Mgmt., 264 Neb. 56, 645 N.W.2d 791 (2002).

Persons seeking relief under alleged violation of rights set out in section 48-1001 must be persons within the definitions set out in this section. Steier v. Crosier Fathers of Hastings, 242 Neb. 16, 492 N.W.2d 870 (1992).

48-1003. Limitation on prohibitions; practices not prevented or precluded.

(1) The prohibitions of the Age Discrimination in Employment Act shall be limited to the employment of individuals who are forty years or more of age.

(2) Nothing contained in the act shall be construed as making it unlawful for an employer, employment agency, or labor organization (a) to take action otherwise prohibited under the act when age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business, or when the differentiation is based on reasonable factors other than age, such as physical conditions; or (b) to discharge or otherwise discipline an employee for good cause.

Source:Laws 1963, c. 281, § 3, p. 839; Laws 1972, LB 1357, § 3; Laws 1979, LB 161, § 2; Laws 1983, LB 424, § 2; Laws 2007, LB265, § 15.

48-1004. Unlawful employment practices; enumerated.

(1) It shall be an unlawful employment practice for an employer:

(a) To refuse to hire, to discharge, or otherwise to discriminate against any individual with respect to the employee's terms, conditions, or privileges of employment, otherwise lawful, because of such individual's age, when the reasonable demands of the position do not require such an age distinction; or

(b) To willfully utilize in the hiring or recruitment of individuals for employment otherwise lawful, any employment agency, placement service, training school or center, labor organization, or any other source which so discriminates against individuals because of their age.

(2) It shall be an unlawful employment practice for any labor organization to so discriminate against any individual or to limit, segregate, or classify its membership in any way which would deprive or tend to deprive an individual of otherwise lawful employment opportunities, or would limit such employment opportunities or otherwise adversely affect his or her status as an employee or would affect adversely his or her wages, hours, or employment.

(3) It shall be an unlawful employment practice for an employment agency to fail or refuse to refer for employment or otherwise to discriminate against any individual because of such individual's age or to classify or refer for employment any individual on the basis of his or her age.

(4) It shall be an unlawful employment practice for any employer, employment agency, or labor organization to discharge, expel, or otherwise discriminate against any person because he or she opposed any unlawful employment practice specified in the Age Discrimination in Employment Act or has filed a charge or suit, testified, participated, or assisted in any proceeding under the act.

Source:Laws 1963, c. 281, § 4, p. 840; Laws 1972, LB 1357, § 4; Laws 1977, LB 162, § 21; Laws 2007, LB265, § 16.

Annotations

1. Ultimate issue

2. Miscellaneous

1. Ultimate issue

Although the burden of production shifts between the plaintiff and the employer, the plaintiff retains the ultimate burden of persuasion, and the ultimate question is discrimination or retaliation vel non. Oldfield v. Nebraska Machinery Co., 296 Neb. 469, 894 N.W.2d 278 (2017).

The ultimate issue in an age discrimination case is whether age was a determining factor in the employer's decision to take the adverse employment action. Oldfield v. Nebraska Machinery Co., 296 Neb. 469, 894 N.W.2d 278 (2017).

To survive summary judgment in a discrimination case, the nonmoving party must do more than simply create a factual dispute as to the issue of pretext; he or she must offer sufficient evidence for a reasonable trier of fact to infer discrimination. Oldfield v. Nebraska Machinery Co., 296 Neb. 469, 894 N.W.2d 278 (2017).

Once an age discrimination case has been fully tried on the merits, the focus is on the ultimate question of whether the employer intentionally discriminated against the employee and not on the adequacy of a party's showing at any particular stage of the trial. Although an employer's proffered reason for discharging an employee may not be truthful, that in and of itself does not prove a pretext; the pretext must be shown to be a pretext for discrimination. Synacek v. Omaha Cold Storage, 247 Neb. 244, 526 N.W.2d 91 (1995).

2. Miscellaneous

One isolated comment about retirement is not enough to demonstrate pretext for purposes of age discrimination. Oldfield v. Nebraska Machinery Co., 296 Neb. 469, 894 N.W.2d 278 (2017).

Retirement inquiries can sometimes be so unnecessary and excessive as to constitute evidence of discriminatory harassment. Oldfield v. Nebraska Machinery Co., 296 Neb. 469, 894 N.W.2d 278 (2017).

The McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), framework is a procedural device of order of proof and production, designed to force an employer to reveal information that is available only to the employer, i.e., any unstated reasons for the adverse employment action, as well as any discretionary factors underlying its decision. Oldfield v. Nebraska Machinery Co., 296 Neb. 469, 894 N.W.2d 278 (2017).

After the plaintiff proves a prima facie case of age discrimination in a suit brought under the disparate impact theory, the employer must show the employment practice is related to job performance or justified by job necessity. Although intent is irrelevant in a disparate impact theory, the plaintiff may then rebut the defendant's reason of business necessity by showing that an alternative practice lacking a discriminatory effect would satisfy the employer's legitimate interests. Allen v. AT&T Technologies, 228 Neb. 503, 423 N.W.2d 424 (1988).

Although the ultimate burden of persuasion by a preponderance of the evidence at all times remains with the plaintiff, the method of proof is for the plaintiff to prove a prima facie case; if the plaintiff succeeds in so doing, the defendant has the burden of articulating some legitimate, nondiscriminatory reason for its action. Should the defendant succeed in so doing, the plaintiff must establish by a preponderance of the evidence that the legitimate reasons offered by the defendant were a pretext for discrimination. Allen v. AT&T Technologies, 228 Neb. 503, 423 N.W.2d 424 (1988).

Following the lead of federal courts, a plaintiff may show pretext in an age discrimination case brought under the disparate treatment theory by showing either that the employment decision was motivated by a discriminatory reason or by showing the employer's stated reason is not worthy of credence. Allen v. AT&T Technologies, 228 Neb. 503, 423 N.W.2d 424 (1988).

Following the lead of the federal courts, a plaintiff may establish a prima facie case of age discrimination by virtue of disparate treatment by showing that (1) she or he was in the protected age category, (2) she or he met the applicable qualifications, (3) despite those qualifications she or he was not promoted, and (4) other employees of similar qualifications, who were not members of a protected group, were promoted at the time plaintiff's request for a promotion was denied. Allen v. AT&T Technologies, 228 Neb. 503, 423 N.W.2d 424 (1988).

In order to prove a prima facie case of retaliation, a plaintiff must show she or he was not promoted following protected activities of which the employer was aware. Allen v. AT&T Technologies, 228 Neb. 503, 423 N.W.2d 424 (1988).

To prove a prima facie case of disparate impact in an age discrimination suit under the federal Age Discrimination in Employment Act of 1967, 29 U.S.C. sec. 621 et seq. (1982), the plaintiff must show (1) an outwardly neutral employment practice, and (2) a significantly adverse or disproportionate impact on the protected age group produced by the facially neutral employment practice. Allen v. AT&T Technologies, 228 Neb. 503, 423 N.W.2d 424 (1988).

48-1005. Violations; penalty.

Any person who violates any provision of the Age Discrimination in Employment Act or who forcibly resists, opposes, impedes, intimidates, or interferes with the Equal Opportunity Commission or any of its duly authorized representatives while engaged in its, his, or her duties under the act shall be guilty of a Class III misdemeanor. No person shall be imprisoned under this section except for a second or subsequent conviction.

Source:Laws 1963, c. 281, § 5, p. 840; Laws 1972, LB 1357, § 8; Laws 1977, LB 40, § 300; Laws 2007, LB265, § 17.

48-1006. Repealed. Laws 2007, LB 265, § 40.

48-1007. Equal Opportunity Commission; enforcement; powers.

The Age Discrimination in Employment Act shall be administered by the Equal Opportunity Commission as established by section 48-1116. The commission shall have the power (1) to make delegations, to appoint such agents and employees and to pay for technical assistance, including legal assistance, on a fee-for-service basis, as it deems necessary to assist it in the performance of its functions under the act, (2) to cooperate with other federal, state, and local agencies and to cooperate with and furnish technical assistance to employers, labor organizations, and employment agencies to aid in effectuating the purposes of the act, (3) to make investigations, to issue or cause to be served interrogatories, and to require keeping of records necessary or appropriate for the administration of the act, and (4) to bring civil action in its name in any court of competent jurisdiction against any person deemed to be violating the act to compel compliance with the act or to enjoin any such person from continuing any practice that is deemed to be in violation of the act. The commission may seek judicial enforcement through the office of the Attorney General to require the answering of interrogatories and to gain access to evidence or records relevant to the charge under investigation.

Source:Laws 1972, LB 1357, § 5; Laws 1977, LB 162, § 22; Laws 2007, LB265, § 18.

48-1008. Alleged violation; aggrieved person; complaint; investigation; civil action, when; filing, effect; written change; limitation on action; respondent; file written response; commission; powers.

(1) Any person aggrieved by a suspected violation of the Age Discrimination in Employment Act shall file with the Equal Opportunity Commission a formal complaint in such manner and form prescribed by the commission. The commission shall make an investigation and may initiate an action to enforce the rights of such employee under the provisions of the act. If the commission does not initiate an action within sixty days after receipt of a complaint, the person aggrieved may bring a civil action in any court of competent jurisdiction for such legal or equitable relief as will effectuate the purposes of the act. Filing of an action by either the commission or the person aggrieved shall be a bar to the filing of the action by the other.

(2) A written charge alleging violation of the Age Discrimination in Employment Act shall be filed within three hundred days after the occurrence of the alleged unlawful employment practice, and notice of the charge, including a statement of the date, place, and circumstances of the alleged unlawful employment practice, shall be served upon the person against whom such charge is made within ten days thereafter.

(3) A respondent shall file with the commission a written response to the written charge of violation within thirty days after service upon the respondent. Failure to file a written response within thirty days, except for good cause shown, shall result in a mandatory reasonable cause finding against the respondent by the commission. Failure by any complainant to cooperate with the commission, its investigators, or its staff, except for good cause shown, shall result in dismissal of the complaint by the commission.

(4) In connection with any investigation of a charge filed under this section, the commission or its authorized agents may, at any time after a charge is filed, issue or cause to be served interrogatories and shall have at all reasonable times access to, for the purposes of examination, and the right to copy any evidence or records of any person being investigated or proceeded against that relate to unlawful employment practices covered by the act and are relevant to the charge under investigation. The commission may seek preparation of and judicial enforcement of any legal process or interrogatories through the office of the Attorney General.

Source:Laws 1972, LB 1357, § 6; Laws 1977, LB 162, § 23; Laws 1983, LB 424, § 3; Laws 2007, LB265, § 19.

Annotations

The thirty-day period herein is a condition precedent to the ripening of the cause of action of an aggrieved employee claiming age discrimination in employment. Equal Opportunity Commission v. Weyerhaeuser Co., 198 Neb. 104, 251 N.W.2d 730 (1977).

48-1009. Court; jurisdiction; relief.

In any action brought to enforce the Age Discrimination in Employment Act, the court shall have jurisdiction to grant such legal or equitable relief as the court deems appropriate to effectuate the purposes of the act, including judgments compelling employment, reinstatement, or promotion, or enforcing liability for amounts deemed to be unpaid minimum wages or unpaid overtime compensation.

Source:Laws 1972, LB 1357, § 7; Laws 2007, LB265, § 20.

Annotations

The proper procedure under this section is for the trial court to submit the damages issue to the jury, if one is empaneled, and reserve ruling on a plaintiff's requested equitable relief until after the jury renders a verdict. A trial court should then enter an order on the jury verdict and reserve entering judgment until after the court has considered any requests for equitable relief. Billingsley v. BFM Liquor Mgmt., Inc., 259 Neb. 992, 613 N.W.2d 478 (2000).

Age discrimination cases that seek mandatory injunctions as well as damages are equitable in nature. A jury empaneled in an equity case is advisory only. Synacek v. Omaha Cold Storage, 247 Neb. 244, 526 N.W.2d 91 (1995).

48-1010. Suits against governmental bodies; authorized.

The state, governmental agencies, and political subdivisions may be sued upon claims arising under the Age Discrimination in Employment Act in the same manner as provided by such act for suits against other employers.

Source:Laws 1983, LB 424, § 4; Laws 2007, LB265, § 21.

48-1101. Purpose.

It is the policy of this state to foster the employment of all employable persons in the state on the basis of merit regardless of their race, color, religion, sex, disability, or national origin and to safeguard their right to obtain and hold employment without discrimination because of their race, color, religion, sex, disability, or national origin. Denying equal opportunity for employment because of race, color, religion, sex, disability, or national origin is contrary to the principles of freedom and is a burden on the objectives of the public policy of this state. The policy of this state does not require any person to employ an applicant for employment because of his or her race, color, religion, sex, disability, or national origin, and the policy of this state does not require any employer, employment agency, labor organization, or joint labor-management committee to grant preferential treatment to any individual or to any group because of race, color, religion, sex, disability, or national origin.

It is the public policy of this state that all people in Nebraska, both with and without disabilities, shall have the right and opportunity to enjoy the benefits of living, working, and recreating within this state. It is the intent of the Legislature that state and local governments, Nebraska businesses, Nebraska labor organizations, and Nebraskans with disabilities understand their rights and responsibilities under the law regarding employment discrimination and the prevention of discrimination on the basis of disability.

Source:Laws 1965, c. 276, § 1, p. 782; Laws 1973, LB 266, § 1; Laws 1993, LB 360, § 2.

Annotations

1. Burden-shifting framework

2. Miscellaneous

1. Burden-shifting framework

The three-part burden-shifting framework from McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), is not the exclusive method of proving disparate treatment and was never intended to be rigid, mechanized, or ritualistic. Hartley v. Metropolitan Util. Dist., 294 Neb. 870, 885 N.W.2d 675 (2016).

In a discrimination suit brought under the provisions of the Nebraska Fair Employment Practice Act, the evidence presented on the issue of discrimination against a disabled person shall be as follows: (1) The complainant has the burden of proving a prima facie case of discrimination; (2) if the complainant succeeds in proving that prima facie case, the burden shifts to the respondent to articulate some legitimate, nondiscriminatory reason for the employee's rejection or discharge from employment; and (3) should the respondent carry the burden, the complainant must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the respondent were not its true reasons, but were a pretext for discrimination. IBP, Inc. v. Sands, 252 Neb. 573, 563 N.W.2d 353 (1997).

2. Miscellaneous

A plaintiff alleging he or she was subjected to retaliatory action based upon opposing or refusing to participate in a practice or action which was unlawful only has to show a reasonable, good faith belief such practice or action was unlawful. Haffke v. Signal 88, 306 Neb. 625, 947 N.W.2d 103 (2020).

In order to show retaliation under the Nebraska Fair Employment Practice Act, a plaintiff must establish (1) he or she engaged in protected conduct, (2) he or she was subjected to an adverse employment action, and (3) there was a causal connection between the protected conduct and the adverse action. Haffke v. Signal 88, 306 Neb. 625, 947 N.W.2d 103 (2020).

A prima facie case of discrimination may be proved by showing (1) that the complainant is a member of a protected class within the meaning of the Nebraska Fair Employment Practice Act; (2) that the complainant is qualified for the position of employment sought; (3) that the complainant applied for and was rejected or discharged from that position; and (4) that after the complainant was rejected or discharged, the job remained open. IBP, Inc. v. Sands, 252 Neb. 573, 563 N.W.2d 353 (1997).

Persons seeking relief under this section must allege a violation by an employer of 15 or more persons. Steier v. Crosier Fathers of Hastings, 242 Neb. 16, 492 N.W.2d 870 (1992).

A female is a member of a protected class. Lincoln County Sheriff's Office v. Horne, 228 Neb. 473, 423 N.W.2d 412 (1988).

"Disability" designates a protected class regarding employment in Nebraska. Father Flanagan's Boys' Home v. Goerke, 224 Neb. 731, 401 N.W.2d 461 (1987).

The purpose of the Fair Employment Practice Act is to establish a policy by the state to foster the employment of employable persons; the state policy does not require an employer to grant preferential treatment to any individual or group because of race, color, religion, sex, disability, or national origin. Nebraska P.P. Dist. v. Lacy, 215 Neb. 462, 339 N.W.2d 286 (1983).

These sections do not mandate the employment of firemen with visual defects which would affect their ability to engage in that occupation. McCrea v. Cunningham, 202 Neb. 638, 277 N.W.2d 52 (1979).

One hundred eighty day statute of limitations under Fair Employment Practices Act may not be applied in federal civil rights action. Chambers v. Omaha Public School Dist., 536 F.2d 222 (8th Cir. 1976).

Petition for civil rights relief alleging employment discrimination dismissed where requisite prior exhaustion of administrative remedies disregarded. Thorson v. City of Omaha, 445 F.Supp. 268 (D. Neb. 1978).

Under facts in this case, corporation did not violate Civil Rights Act by transferring employee to lower paying job when he refused to work on his Sabbath day. Dixon v. Omaha P.P. Dist., 385 F.Supp. 1382 (D. Neb. 1974).

48-1102. Terms, defined.

For purposes of the Nebraska Fair Employment Practice Act, unless the context otherwise requires:

(1) Person shall include one or more individuals, labor unions, partnerships, limited liability companies, associations, corporations, legal representatives, mutual companies, joint-stock companies, trusts, unincorporated organizations, trustees, trustees in bankruptcy, or receivers;

(2) Employer shall mean a person engaged in an industry who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, any agent of such a person, and any party whose business is financed in whole or in part under the Nebraska Investment Finance Authority Act regardless of the number of employees and shall include the State of Nebraska, governmental agencies, and political subdivisions, but such term shall not include (a) the United States, a corporation wholly owned by the government of the United States, or an Indian tribe or (b) a bona fide private membership club, other than a labor organization, which is exempt from taxation under section 501(c) of the Internal Revenue Code;

(3) Labor organization shall mean any organization which exists wholly or in part for one or more of the following purposes: Collective bargaining; dealing with employers concerning grievances, terms, or conditions of employment; or mutual aid or protection in relation to employment;

(4) Employment agency shall mean any person regularly undertaking with or without compensation to procure employees for an employer or to procure for employees opportunities to work for an employer and shall include an agent of such a person but shall not include an agency of the United States, except that such term shall include the United States Employment Service and the system of state and local employment services receiving federal assistance;

(5) Covered entity shall mean an employer, an employment agency, a labor organization, or a joint labor-management committee;

(6) Privileges of employment shall mean terms and conditions of any employer-employee relationship, opportunities for advancement of employees, and plant conveniences;

(7) Employee shall mean an individual employed by an employer;

(8) Commission shall mean the Equal Opportunity Commission;

(9) Disability shall mean (a) a physical or mental impairment that substantially limits one or more of the major life activities of such individual, (b) a record of such an impairment, or (c) being regarded as having such an impairment. Disability shall not include homosexuality, bisexuality, transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender-identity disorders not resulting in physical impairments, other sexual behavior disorders, problem gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from current illegal use of drugs;

(10)(a) Qualified individual with a disability shall mean an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. Consideration shall be given to the employer's judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job;

(b) Qualified individual with a disability shall not include any employee or applicant who is currently engaged in the illegal use of drugs when the covered entity acts on the basis of such use; and

(c) Nothing in this subdivision shall be construed to exclude as a qualified individual with a disability an individual who:

(i) Has successfully completed a supervised drug rehabilitation program or otherwise been rehabilitated successfully and is no longer engaging in the illegal use of drugs;

(ii) Is participating in a supervised rehabilitation program and is no longer engaging in such use; or

(iii) Is erroneously regarded as engaging in such use but is not engaging in such use;

(11) Reasonable accommodation, with respect to disability, shall include making existing facilities used by employees readily accessible to and usable by individuals with disabilities, job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modification of examinations, training manuals, or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities. Reasonable accommodation, with respect to pregnancy, childbirth, or related medical conditions, shall include acquisition of equipment for sitting, more frequent or longer breaks, periodic rest, assistance with manual labor, job restructuring, light-duty assignments, modified work schedules, temporary transfers to less strenuous or hazardous work, time off to recover from childbirth, or break time and appropriate facilities for breast-feeding or expressing breast milk. Reasonable accommodation shall not include accommodations which the covered entity can demonstrate require significant difficulty or expense thereby posing an undue hardship upon the covered entity. Factors to be considered in determining whether an accommodation would pose an undue hardship shall include:

(a) The nature and the cost of the accommodation needed under the Nebraska Fair Employment Practice Act;

(b) The overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation, the number of persons employed at such facility, the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility;

(c) The overall financial resources of the covered entity, the overall size of the business of a covered entity with respect to the number of its employees, and the number, type, and location of its facilities; and

(d) The type of operation or operations of the covered entity, including the composition, structure, and functions of the work force of such entity, and the geographic separateness and administrative or fiscal relationship of the facility or facilities in question to the covered entity;

(12) Marital status shall mean the status of a person whether married or single;

(13) Because of sex or on the basis of sex shall include, but not be limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions;

(14) Harass because of sex shall include making unwelcome sexual advances, requesting sexual favors, and engaging in other verbal or physical conduct of a sexual nature if (a) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, (b) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (c) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment;

(15) Unlawful under federal law or the laws of this state shall mean acting contrary to or in defiance of the law or disobeying or disregarding the law;

(16) Drug shall mean a controlled substance as defined in section 28-401;

(17) Illegal use of drugs shall mean the use of drugs, the possession or distribution of which is unlawful under the Uniform Controlled Substances Act, but shall not include the use of a drug taken under supervision by a licensed health care professional or any other use authorized by the Uniform Controlled Substances Act or other provisions of state law;

(18) Individual who is pregnant, who has given birth, or who has a related medical condition shall mean an individual with a known limitation who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds, desires, or may be temporarily assigned to. Consideration shall be given to the employer's judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job;

(19) Race is inclusive of characteristics such as skin color, hair texture, and protective hairstyles; and

(20) Protective hairstyles includes braids, locks, and twists.

Source:Laws 1965, c. 276, § 2, p. 783; Laws 1967, c. 306, § 1, p. 829; Laws 1969, c. 120, § 21, p. 551; Laws 1973, LB 265, § 2; Laws 1973, LB 266, § 2; Laws 1977, LB 161, § 1; Laws 1979, LB 67, § 1; Laws 1983, LB 626, § 74; Laws 1984, LB 14A, § 1; Laws 1985, LB 324, § 1; Laws 1986, LB 1108, § 1; Laws 1989, LB 176, § 1; Laws 1993, LB 121, § 297; Laws 1993, LB 124, § 1; Laws 1993, LB 360, § 3; Laws 2004, LB 1083, § 98; Laws 2015, LB627, § 1; Laws 2021, LB451, § 1.

Cross References

Nebraska Investment Finance Authority Act, see section 58-201.

Uniform Controlled Substances Act, see section 28-401.01.

Annotations

1. Major life activities

2. Drug use

3. Miscellaneous

1. Major life activities

Concentrating, thinking, and communicating are major life activities under subdivision (9) of this section. Marshall v. EyeCare Specialties, 293 Neb. 91, 876 N.W.2d 372 (2016).

Under subdivision (9) of this section, "major life activities" are those activities that are of central importance to daily life. Marshall v. EyeCare Specialties, 293 Neb. 91, 876 N.W.2d 372 (2016).

Under subdivision (9) of this section, to be substantially limited in the major life activity of working, the plaintiff must show that he or she was significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills, and abilities. Marshall v. EyeCare Specialties, 293 Neb. 91, 876 N.W.2d 372 (2016).

2. Drug use

Drug addiction is an impairment under subdivision (9) of this section, but it is not a disability unless it substantially limits a major life activity or is perceived by the employer to substantially limit a major life activity. Marshall v. EyeCare Specialties, 293 Neb. 91, 876 N.W.2d 372 (2016).

A qualified individual with a disability includes an individual who has been rehabilitated successfully or who is erroneously regarded as engaging in the illegal use of drugs. Marshall v. EyeCare Specialties, 291 Neb. 264, 865 N.W.2d 343 (2015).

3. Miscellaneous

To show that an employer regarded an employee as disabled under subdivision (9)(c) of this section, the employee must demonstrate either that (1) despite having no impairment at all, the employer mistakenly believed that the employee had an impairment that substantially limited one or more major life activities, or (2) the employee had a nonlimiting impairment that the employer mistakenly believed substantially limited one or more major life activities. Marshall v. EyeCare Specialties, 293 Neb. 91, 876 N.W.2d 372 (2016).

The threshold fact of consequence in a disability discrimination action is whether the plaintiff is a qualified individual with a disability⁚i.e., one who can perform the essential functions of the job with or without reasonable accommodations. Arens v. NEBCO, Inc., 291 Neb. 834, 870 N.W.2d 1 (2015).

The payroll method, in which an employee is counted on a given day if he or she was on the payroll on that day, should be used to determine whether an entity has the requisite number of employees to qualify as an employer as defined in subsection (2) of this section. Bluff's Vision Clinic v. Krzyzanowski, 251 Neb. 116, 555 N.W.2d 556 (1996).

Persons seeking relief under alleged violation of rights set out in section 48-1101 must be persons within the definitions set out in this section. Steier v. Crosier Fathers of Hastings, 242 Neb. 16, 492 N.W.2d 870 (1992).

Epilepsy is included within the definition of "disability," but only if the epilepsy is unrelated to the person's ability to engage in a particular occupation. Father Flanagan's Boys' Home v. Goerke, 224 Neb. 731, 401 N.W.2d 461 (1987).

These sections do not mandate the employment of firemen with visual defects which would affect their ability to engage in that occupation. McCrea v. Cunningham, 202 Neb. 638, 277 N.W.2d 52 (1979).

For purposes of subsection (2) of this section, to determine whether a person is an "employer", a "payroll method" shall be used, whereby a week is counted if an employer has 15 employees on the payroll for that week, regardless of whether or not each employee worked each day of the week in question. Bluff's Vision Clinic v. Krzyzanowski, 4 Neb. App. 380, 543 N.W.2d 761 (1996).

48-1103. Exceptions to act.

The Nebraska Fair Employment Practice Act shall not apply to:

(1) A religious corporation, association, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, or society of its religious activities; or

(2) The employment of any individual (a) by his or her parent, grandparent, spouse, child, or grandchild or (b) in the domestic service of any person.

Source:Laws 1965, c. 276, § 3, p. 784; Laws 1993, LB 360, § 7.

48-1104. Unlawful employment practice for an employer.

It shall be an unlawful employment practice for an employer:

(1) To fail or refuse to hire, to discharge, or to harass any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, disability, marital status, or national origin; or

(2) To limit, advertise, solicit, segregate, or classify employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect such individual's status as an employee, because of such individual's race, color, religion, sex, disability, marital status, or national origin.

Source:Laws 1965, c. 276, § 4, p. 785; Laws 1973, LB 266, § 3; Laws 1977, LB 161, § 2; Laws 1993, LB 124, § 2.

Annotations

1. Burden-shifting framework

2. Miscellaneous

1. Burden-shifting framework

Although the burden of production shifts between the plaintiff and the employer, the plaintiff retains the ultimate burden of persuasion, and the ultimate question is discrimination or retaliation vel non. Oldfield v. Nebraska Machinery Co., 296 Neb. 469, 894 N.W.2d 278 (2017).

The McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), framework is a procedural device of order of proof and production, designed to force an employer to reveal information that is available only to the employer, i.e., any unstated reasons for the adverse employment action, as well as any discretionary factors underlying its decision. Oldfield v. Nebraska Machinery Co., 296 Neb. 469, 894 N.W.2d 278 (2017).

To survive summary judgment in a discrimination case, the nonmoving party must do more than simply create a factual dispute as to the issue of pretext; he or she must offer sufficient evidence for a reasonable trier of fact to infer discrimination. Oldfield v. Nebraska Machinery Co., 296 Neb. 469, 894 N.W.2d 278 (2017).

The procedure to be followed in presenting evidence relevant to a question about discrimination against a disabled person is: (1) The complainant has the burden of proving a prima facie case of discrimination; (2) the respondent then must articulate some legitimate, nondiscriminatory reason for the rejection or firing; and (3) the complainant must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the respondent were not its true reasons, but were a pretext for discrimination. Father Flanagan's Boys' Home v. Goerke, 224 Neb. 731, 401 N.W.2d 461 (1987).

2. Miscellaneous

Generally, a temporal connection between the protected conduct and the adverse employment action by itself is not enough to present a genuine factual issue on retaliation. Oldfield v. Nebraska Machinery Co., 296 Neb. 469, 894 N.W.2d 278 (2017).

It is unlawful for an employer to discriminate against an individual because of a perceived disability. Marshall v. EyeCare Specialties, 291 Neb. 264, 865 N.W.2d 343 (2015).

The key inquiry in a discrimination case is whether the individual's condition inhibits his or her ability to perform his or her job safely and efficiently. IBP, Inc. v. Sands, 252 Neb. 573, 563 N.W.2d 353 (1997).

Volunteers are not employees and may not bring suit for damages under the Nebraska Fair Employment Practice Act. City of Fort Calhoun v. Collins, 243 Neb. 528, 500 N.W.2d 822 (1993).

A mere showing that one was not interviewed or hired for a position is insufficient to establish a violation of the Fair Employment Practice Act because in order to recover for a violation, complainant must prove by a preponderance of the evidence that complainant was refused hire on the basis of sex. Where there is no charge of a universal discriminatory practice, complainant must establish, by a preponderance of the evidence, an act done intentionally to discriminate. Nebraska P.P. Dist. v. Lacy, 215 Neb. 462, 339 N.W.2d 286 (1983).

A regulated interstate carrier, subject to superior federal law, had a valid defense to state statutes regarding employment discrimination based upon disability. Ranger Division v. Bayne, 214 Neb. 251, 333 N.W.2d 891 (1983).

It is not a violation of this section to refuse to hire a woman to the position of a police patrolman when in each instance, there were better qualified male applicants available for the position, even if the male applicants with the higher test scores were added to the list after the score of the female applicant had placed her at the top of the list. Snygg v. City of Scottsbluff Police Dept., 201 Neb. 16, 266 N.W.2d 76 (1978).

A classification based on pregnancy is not one based on sex. Richards v. Omaha Public Schools, 194 Neb. 463, 232 N.W.2d 29 (1975).

This section does not provide a private cause of action to a person claiming to be aggrieved by an employer's unlawful employment practice. Sections 48-1116 to 48-1120 do provide a comprehensive administrative remedy from which an appeal may be taken to state district court. Miller v. Union Pacific R. Co., 539 F.Supp. 134 (D. Neb. 1982).

An award of punitive damages is not required for a violation of this section unless necessary to fully protect any federal constitutional right involved. Gilliam v. City of Omaha, 331 F.Supp. 4 (D. Neb. 1971).

48-1105. Unlawful employment practice for employment agency.

It shall be an unlawful employment practice for an employment agency to fail or refuse to refer for employment, or otherwise to discriminate against, any individual because of race, color, religion, sex, disability, marital status, or national origin, or to classify or refer for employment any individual on the basis of race, color, religion, sex, disability, marital status, or national origin.

Source:Laws 1965, c. 276, § 5, p. 785; Laws 1973, LB 266, § 4; Laws 1977, LB 161, § 3.

48-1106. Unlawful employment practice for labor organization.

It shall be an unlawful employment practice for a labor organization:

(1) To exclude or to expel from its membership, or otherwise to discriminate against, any individual because of race, color, religion, sex, disability, marital status, or national origin;

(2) To limit, segregate, or classify its membership, or to classify or fail or refuse to refer for employment any individual, in any way which would deprive or tend to deprive any individual of employment opportunities, or would limit such employment opportunities or otherwise adversely affect such individual's status as an employee or as an applicant for employment, because of such individual's race, color, religion, sex, disability, marital status, or national origin; or

(3) To cause or attempt to cause an employer to discriminate against an individual in violation of this section.

Source:Laws 1965, c. 276, § 6, p. 785; Laws 1973, LB 266, § 5; Laws 1977, LB 161, § 4.

48-1107. Unlawful employment practice controlling apprenticeship or training programs.

It shall be an unlawful employment practice for any employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs to discriminate against any individual because of race, color, religion, sex, disability, marital status, or national origin in admission to, or employment in, any program established to provide apprenticeship or other training.

Source:Laws 1965, c. 276, § 7, p. 786; Laws 1973, LB 266, § 6; Laws 1977, LB 161, § 5.

48-1107.01. Unlawful employment practice for covered entity.

It shall be an unlawful employment practice for a covered entity to:

(1) Discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment; or

(2) Discriminate against an individual who is pregnant, who has given birth, or who has a related medical condition in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.

Source:Laws 1993, LB 360, § 5; Laws 2015, LB627, § 2.

Annotations

Apart from an exception for summary judgments, in a discrimination action brought under the Nebraska Fair Employment Practice Act, a court evaluates the evidence under the three-part burden-shifting framework from McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). Under that framework, (1) the plaintiff has the burden of proving a prima facie case of discrimination; (2) if the plaintiff proves a prima facie case, the burden shifts to the employer to articulate some legitimate, nondiscriminatory reason for the adverse employment action; and (3) if the employer articulates a nondiscriminatory reason for its action, the employee maintains the burden of proving that the stated reason was pretextual. Arens v. NEBCO, Inc., 291 Neb. 834, 870 N.W.2d 1 (2015).

The threshold fact of consequence in a disability discrimination action is whether the plaintiff is a qualified individual with a disability—i.e., one who can perform the essential functions of the job with or without reasonable accommodations. Arens v. NEBCO, Inc., 291 Neb. 834, 870 N.W.2d 1 (2015).

48-1107.02. Qualified individual with a disability; individual who is pregnant, who has given birth, or who has a related medical condition; discrimination, defined.

(1) When referring to a qualified individual with a disability, discrimination shall include:

(a) Limiting, segregating, or classifying a job applicant or employee in a way that adversely affects the opportunities or status of the applicant or employee because of the disability of the applicant or employee;

(b) Participating in a contractual or other arrangement or relationship that has the effect of subjecting a qualified individual with a disability to discrimination in the application or employment process, including a relationship with an employment agency, a labor union, an organization providing fringe benefits to an employee of the covered entity, or an organization providing training and apprenticeship programs;

(c) Utilizing standards, criteria, or methods of administration (i) that have the effect of discrimination on the basis of disability or (ii) that perpetuate the discrimination against others who are subject to common administrative control;

(d) Excluding or otherwise denying equal jobs or benefits to a qualified individual with a disability because of the known disability of an individual with whom the qualified individual with a disability is known to have a relationship or association;

(e) Not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of the covered entity;

(f) Denying employment opportunities to a job applicant or employee who is otherwise a qualified individual with a disability if the denial is based upon the need of such covered entity to make reasonable accommodation to the physical or mental impairments of the employee or applicant;

(g) Using qualification standards, employment tests, or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities unless the standard, test, or other selection criteria, as used by the covered entity, is shown to be job-related for the position in question and is consistent with business necessity;

(h) Failing to select and administer tests concerning employment in the most effective manner to ensure that, when the test is administered to a job applicant or employee who has a disability that impairs sensory, manual, or speaking skills, the test results accurately reflect the skills, aptitude, or whatever other factor of the applicant or employee that the test purports to measure rather than reflecting the impaired sensory, manual, or speaking skills of the employee or applicant except when such skills are the factors that the test purports to measure;

(i) Conducting a medical examination or making inquiries of a job applicant as to whether the applicant is an individual with a disability or as to the nature or severity of the disability, except that:

(i) A covered entity may make preemployment inquiries into the ability of an applicant to perform job-related functions;

(ii) A test to determine the illegal use of drugs shall not be considered a medical examination; and

(iii) A covered entity may require a medical examination after an offer of employment has been made to a job applicant and prior to the commencement of the employment duties of the applicant and may condition an offer of employment on the results of the examination if:

(A) All entering employees are subjected to such an examination regardless of disability;

(B) Information obtained regarding the medical condition or history of the applicant is collected and maintained on separate forms and in separate medical files and is treated as a confidential medical record, except that (I) supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodations, (II) first-aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment, (III) government officials investigating compliance with the Nebraska Fair Employment Practice Act shall be provided relevant information on request, and (IV) information shall be made available in accordance with the Nebraska Workers' Compensation Act; and

(C) The results of the examination are used only in a manner not inconsistent with the Nebraska Fair Employment Practice Act; and

(j) Requiring a medical examination or making inquiries of an employee as to whether the employee is an individual with a disability or as to the nature or severity of the disability, unless the examination or inquiry is shown to be job-related and consistent with business necessity. A test to determine the illegal use of drugs shall not be considered a medical examination. A covered entity may conduct voluntary medical examinations, including voluntary medical histories, which are part of an employee health program available to employees at the worksite and may make inquiries into the ability of an employee to perform job-related functions if the information obtained regarding the medical condition or history of the employee is subject to the requirements in subdivisions (1)(i)(iii)(B) and (C) of this section.

(2) When referring to an individual who is pregnant, who has given birth, or who has a related medical condition, discrimination shall include:

(a) Limiting, segregating, or classifying a job applicant or employee in a way that adversely affects the opportunities or status of the applicant or employee because of the pregnancy, childbirth, or related medical conditions of the applicant or employee;

(b) Participating in a contractual or other arrangement or relationship that has the effect of subjecting an individual who is pregnant, who has given birth, or who has a related medical condition to discrimination in the application or employment process, including a relationship with an employment agency, a labor union, an organization providing fringe benefits to an employee of the covered entity, or an organization providing training and apprenticeship programs;

(c) Utilizing standards, criteria, or methods of administration (i) that have the effect of discrimination on the basis of pregnancy, childbirth, or related medical conditions or (ii) that perpetuate the discrimination against others who are subject to common administrative control;

(d) Not making reasonable accommodations to the known physical limitations of an individual who is pregnant, who has given birth, or who has a related medical condition and who is an applicant or employee unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of the covered entity;

(e) Denying employment opportunities to a job applicant or employee who is pregnant, who has given birth, or who has a related medical condition if the denial is based upon the need of such covered entity to make reasonable accommodation to the physical limitations due to the pregnancy, childbirth, or related medical conditions of the employee or applicant;

(f) Using qualification standards, employment tests, or other selection criteria that screen out or tend to screen out an individual or a class of individuals who are pregnant, who have given birth, or who have a related medical condition unless the standard, test, or other selection criteria, as used by the covered entity, is shown to be job-related for the position in question and is consistent with business necessity;

(g) Conducting a medical examination or making inquiries of a job applicant as to whether the applicant is pregnant, has given birth, or has a related medical condition, except that:

(i) A covered entity may make preemployment inquiries into the ability of an applicant to perform job-related functions;

(ii) A test to determine the illegal use of drugs shall not be considered a medical examination; and

(iii) A covered entity may require a medical examination after an offer of employment has been made to a job applicant and prior to the commencement of the employment duties of the applicant and may condition an offer of employment on the results of the examination if:

(A) All entering employees are subjected to such an examination;

(B) Information obtained regarding the medical condition or history of the applicant is collected and maintained on separate forms and in separate medical files and is treated as a confidential medical record, except that (I) supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodations, (II) first-aid and safety personnel may be informed, when appropriate, if the pregnancy, childbirth, or related medical conditions might require emergency treatment, (III) government officials investigating compliance with the Nebraska Fair Employment Practice Act shall be provided relevant information on request, and (IV) information shall be made available in accordance with the Nebraska Workers' Compensation Act; and

(C) The results of the examination are used only in a manner not inconsistent with the Nebraska Fair Employment Practice Act;

(h) Requiring a medical examination or making inquiries of an employee as to whether the employee is pregnant, has given birth, or has a related medical condition unless the examination or inquiry is shown to be job-related and consistent with business necessity. A test to determine the illegal use of drugs shall not be considered a medical examination. A covered entity may conduct voluntary medical examinations, including voluntary medical histories, which are part of an employee health program available to employees at the worksite and may make inquiries into the ability of an employee to perform job-related functions if the information obtained regarding the medical condition or history of the employee is subject to the requirements in subdivisions (2)(g)(iii)(B) and (C) of this section;

(i) Requiring an employee to take leave under any leave law or policy of the covered entity if another reasonable accommodation can be provided to the known limitations related to the pregnancy, childbirth, or related medical conditions of the employee; and

(j) Taking adverse action against an employee in the terms, conditions, or privileges of employment for requesting or using a reasonable accommodation to the known limitations related to the pregnancy, childbirth, or related medical conditions of the employee.

Source:Laws 1993, LB 360, § 6; Laws 2015, LB627, § 3.

Cross References

Nebraska Workers' Compensation Act, see section 48-1,110.

Annotations

A covered employer's failure to make reasonable accommodations for a qualified individual's known physical or mental limitations is discrimination, unless the employer demonstrates that accommodating the individual's limitations would impose an undue hardship on business operations. Arens v. NEBCO, Inc., 291 Neb. 834, 870 N.W.2d 1 (2015).

Former subdivision (9)(c) of this section applies to entrance medical examinations of applicants who have been offered employment, whereas former subsection (10) applies to medical examinations of employees. The latter is prohibited unless the employer shows that the examination is job-related and consistent with business necessity. Arens v. NEBCO, Inc., 291 Neb. 834, 870 N.W.2d 1 (2015).

Psychological counseling is usually a medical examination under former subsection (10) of this section. Arens v. NEBCO, Inc., 291 Neb. 834, 870 N.W.2d 1 (2015).

The court erred in excluding the testimony of an employee's expert that was relevant to establishing the employee's permanent disability, the employer's knowledge of his disability, and whether he had previously performed his job with accommodations that the employer had considered reasonable. Arens v. NEBCO, Inc., 291 Neb. 834, 870 N.W.2d 1 (2015).

The threshold fact of consequence in a disability discrimination action is whether the plaintiff is a qualified individual with a disability—i.e., one who can perform the essential functions of the job with or without reasonable accommodations. Arens v. NEBCO, Inc., 291 Neb. 834, 870 N.W.2d 1 (2015).

Under former subsection (10) of this section, an employer's doubts about an employee's ability to perform the essential functions of a job may be created by an employee's request for accommodations, frequent absences, or request for leave because of his or her medical condition. Such doubts can also be raised by the employer's knowledge of an employee's behavior that poses a direct threat to the employee or others. Arens v. NEBCO, Inc., 291 Neb. 834, 870 N.W.2d 1 (2015).

Under former subsection (10) of this section, to show a business necessity for requiring an employee to submit to a medical examination, an employer has the burden to show that (1) the business necessity is vital to the business; (2) it has a legitimate, nondiscriminatory reason to doubt the employee's ability to perform the essential functions of his or her duties; and (3) the examination is no broader than necessary. There must be significant evidence that could cause a reasonable person to inquire as to whether an employee is still capable of performing his job. An employee's behavior cannot be merely annoying or inefficient to justify an examination; rather, there must be genuine reason to doubt whether that employee can perform job-related functions. Arens v. NEBCO, Inc., 291 Neb. 834, 870 N.W.2d 1 (2015).

Under former subsection (10) of this section, whether an employer requires similarly situated employees to submit to a medical examination is relevant to whether the employer considers such examinations a business necessity. But any comparison between employees must be made with an eye to the ultimate inquiry, i.e., the necessity of the examination of the plaintiff employee. An employer's disparate treatment of employees regarding medical examinations cannot override substantial evidence that the employer had good reason to doubt the employee's ability to perform the essential functions of the job. Arens v. NEBCO, Inc., 291 Neb. 834, 870 N.W.2d 1 (2015).

48-1108. Lawful employment practices.

Notwithstanding any other provision of the Nebraska Fair Employment Practice Act:

(1) It shall not be an unlawful employment practice for an employer to hire and employ employees, for an employment agency to classify or refer for employment any individual, for a labor organization to classify its membership or to classify or refer for employment any individual, or for an employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining programs to admit or employ any individual in any such program on the basis of religion, sex, disability, marital status, or national origin in those certain instances when religion, sex, disability, marital status, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise;

(2) It shall not be an unlawful employment practice for a school, college, university, or other educational institution or institution of learning to hire and employ employees of a particular religion if such school, college, university, or other educational institution or institution of learning is, in whole or in substantial part, owned, supported, controlled, or managed by a particular religion or by a particular religious corporation, association, or society or if the curriculum of such school, college, university, or other educational institution of learning is directed toward the propagation of a particular religion;

(3) It shall not be an unlawful employment practice for an employer to enact any bona fide health and safety standard that regulates characteristics associated with race if the employer demonstrates that:

(a) Without the implementation of such standard, it is reasonably certain that the health and safety of the applicant, employee, or other materially connected person will be impaired;

(b) The standard is adopted for nondiscriminatory reasons;

(c) The standard is applied equally; and

(d) The employer has engaged in good faith efforts to reasonably accommodate the applicant or employee; and

(4) It shall not be an unlawful employment practice for the Nebraska State Patrol, a county sheriff, a city or village police department, or any other law enforcement agency in this state or the Nebraska National Guard to impose its own dress and grooming standards.

Source:Laws 1965, c. 276, § 8, p. 786; Laws 1973, LB 266, § 7; Laws 1977, LB 161, § 6; Laws 1993, LB 360, § 8; Laws 2021, LB451, § 2.

Annotations

A classification based on sex is lawful if it is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business or enterprise. Richards v. Omaha Public Schools, 194 Neb. 463, 232 N.W.2d 29 (1975).

48-1108.01. Lawful employment practices for covered entity.

It shall not be an unlawful employment practice for a covered entity to:

(1) Prohibit the illegal use of drugs and the use of alcohol at the workplace by all employees;

(2) Require that employees not be under the influence of alcohol or be engaging in the illegal use of drugs at the workplace;

(3) Require employees to comply with any federal regulations concerning the use of alcohol or the illegal use of drugs which are applicable to the position of the employee or to the industry involved; or

(4) Hold an employee who engages in the illegal use of drugs or who is an alcoholic to the same qualification standards for employment or job performance and behavior that such entity holds other employees even if any unsatisfactory performance or behavior is related to the drug use or alcoholism of such employee.

Source:Laws 1993, LB 360, § 4.

48-1109. Repealed. Laws 2015, LB 627, § 7.

48-1110. National security employment; exception.

Notwithstanding any other provision of the Nebraska Fair Employment Practice Act, it shall not be an unlawful employment practice for an employer to fail or refuse to hire and employ any individual for any position, for an employer to discharge any individual from any position, for an employment agency to fail or refuse to refer any individual for employment in any position, or for a labor organization to fail or refuse to refer any individual for employment in any position, if:

(1) The occupancy of such position, or access to the premises in or upon which any part of the duties of such position is performed or is to be performed, is subject to any requirement imposed in the interest of the national security of the United States under any security program in effect pursuant to or administered under any statute of the United States or any Executive Order of the President; and

(2) Such individual has not fulfilled or has ceased to fulfill that requirement.

Source:Laws 1965, c. 276, § 10, p. 787; Laws 1993, LB 360, § 10.

48-1111. Different standards of compensation, conditions, or privileges of employment; lawful employment practices; effect of pregnancy and related medical conditions.

(1) Except as otherwise provided in the Nebraska Fair Employment Practice Act, it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit system or a system which measures earnings by quantity or quality of production or to employees who work in different locations, if such differences are not the result of an intention to discriminate because of race, color, religion, sex, disability, marital status, or national origin, nor shall it be an unlawful employment practice for an employer to give and to act upon the results of any professionally developed ability test if such test, its administration, or action upon the results is not designed, intended, or used to discriminate because of race, color, religion, sex, disability, marital status, or national origin.

It shall not be an unlawful employment practice for a covered entity to deny privileges of employment to an individual with a disability when the qualification standards, tests, or selection criteria that screen out or tend to screen out or otherwise deny a job or benefit to an individual with a disability:

(a) Have been shown to be job-related and consistent with business necessity and such performance cannot be accomplished by reasonable accommodation, as required by the Nebraska Fair Employment Practice Act and the federal Americans with Disabilities Act of 1990; or

(b) Include a requirement that an individual shall not pose a direct threat, involving a significant risk to the health or safety of other individuals in the workplace, that cannot be eliminated by reasonable accommodation.

It shall not be an unlawful employment practice to refuse employment based on a policy of not employing both husband and wife if such policy is equally applied to both sexes.

(2) Except as otherwise provided in the Nebraska Fair Employment Practice Act, women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of employee benefits, as other persons not so affected but similar in their ability or inability to work, and nothing in this section shall be interpreted to provide otherwise.

This section shall not require an employer to provide employee benefits for abortion except when medical complications have arisen from an abortion.

Nothing in this section shall preclude an employer from providing employee benefits for abortion under fringe benefit programs or otherwise affect bargaining agreements in regard to abortion.

Source:Laws 1965, c. 276, § 11, p. 787; Laws 1973, LB 266, § 8; Laws 1977, LB 161, § 7; Laws 1984, LB 14A, § 2; Laws 1993, LB 360, § 11; Laws 2015, LB627, § 4.

Annotations

A regulated interstate carrier, subject to superior federal law, had a valid defense to state statutes regarding employment discrimination based upon disability. Ranger Division v. Bayne, 214 Neb. 251, 333 N.W.2d 891 (1983).

48-1112. Indians; preferential treatment.

Nothing in the Nebraska Fair Employment Practice Act shall apply to any business or enterprise on or near an Indian reservation with respect to any publicly announced employment practice of such business or enterprise under which a preferential treatment is given to any individual because he or she is an Indian living on or near a reservation.

Source:Laws 1965, c. 276, § 12, p. 788; Laws 1993, LB 360, § 12.

48-1113. Preferential treatment; when not required.

Nothing in the Nebraska Fair Employment Practice Act shall be interpreted to require any employer, employment agency, labor organization, or joint labor-management committee subject to the act to grant preferential treatment to any individual or to any group because of the race, color, religion, sex, disability, marital status, or national origin of such individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of any race, color, religion, sex, disability, marital status, or national origin employed by any employer, referred or classified for employment by any employment agency or labor organization, admitted to membership or classified by any labor organization, or admitted to, or employed in, any apprenticeship or other training program, in comparison with the total number or percentage of persons of such race, color, religion, sex, disability, marital status, or national origin in any community, section, or other area, or in the available work force in any community, section, or other area.

Source:Laws 1965, c. 276, § 13, p. 788; Laws 1973, LB 266, § 9; Laws 1977, LB 161, § 8; Laws 1993, LB 360, § 13.

48-1114. Opposition to unlawful practice; participation in investigation; communication regarding employee wages, benefits, or other compensation; discrimination prohibited.

(1) It shall be an unlawful employment practice for an employer to discriminate against any of his or her employees or applicants for employment, for an employment agency to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because he or she (a) has opposed any practice made an unlawful employment practice by the Nebraska Fair Employment Practice Act, (b) has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under the act, (c) has opposed any practice or refused to carry out any action unlawful under federal law or the laws of this state, or (d) has inquired about, discussed, or disclosed information regarding employee wages, benefits, or other compensation. This subdivision (d) shall not apply to instances in which an employee who has authorized access to the information regarding wages, benefits, or other compensation of other employees as a part of such employee's job functions discloses such information to a person who does not otherwise have authorized access to such information, unless such disclosure is in response to a charge or complaint or in furtherance of an investigation, proceeding, hearing, or other action, including an investigation conducted by the employer.

(2) Nothing in this subsection or subdivision (1)(d) of this section shall be contrary to applicable state or federal law or:

(a) Create an obligation for any employer or employee to disclose information regarding employee wages, benefits, or other compensation;

(b) Permit an employee, without the written consent of the employer, to disclose proprietary information, trade secret information, or information that is otherwise subject to a legal privilege or protected by law. For purposes of this subdivision, proprietary information does not include information regarding employee wages, benefits, or other compensation;

(c) Permit an employee to disclose information regarding wages, benefits, or other compensation of other employees to a competitor of the employer;

(d) Apply to employers which are exempt from the Nebraska Fair Employment Practice Act under section 48-1102;

(e) Permit an employee to discuss information regarding employee wages, benefits, or other compensation during working hours, as defined in existing workplace policies, or in violation of specific contractual obligations; or

(f) Permit an employee to disseminate information regarding employee wages, benefits, or other compensation to the general public. For purposes of this subdivision, general public does not include public officials, judicial officers, legislators, trade associations, or other reasonable third parties for the employee's mutual aid or protection.

(3) The changes made to this section by Laws 2019, LB217, shall not be construed so as to impair or affect the obligation of any lawful contract in existence prior to September 1, 2019.

Source:Laws 1965, c. 276, § 14, p. 788; Laws 1985, LB 324, § 2; Laws 1986, LB 1108, § 2; Laws 1993, LB 360, § 14; Laws 2019, LB217, § 1.

Annotations

Employees who complained about coworkers' alleged unlawful practices failed to establish a prima facie case of retaliation because subdivision (1)(c) of this section refers to an unlawful practice of the employer and does not protect an employee's opposition to the unlawful activities of fellow employees. Baker-Heser v. State, 309 Neb. 979, 963 N.W.2d 59 (2021).

A plaintiff must establish a prima facie case of retaliation under this section by showing (1) he or she engaged in protected conduct, (2) he or she was subjected to an adverse employment action, and (3) there was a causal connection between the protected conduct and the adverse action. Knapp v. Ruser, 297 Neb. 639, 901 N.W.2d 31 (2017).

The unlawful practice, the opposition to which is protected by subsection (3) of this section, is that of the employer and not that of fellow employees. Wolfe v. Becton Dickinson & Co., 266 Neb. 53, 662 N.W.2d 599 (2003).

A violation of the provision of the Nebraska Fair Employment Practice Act prohibiting employers from discriminating against an employee who has opposed any practice or refused to carry out any action unlawful under federal or state law must include either the employee's opposition to an unlawful practice of the employer or the employee's refusal to honor an employer's demand that the employee do an unlawful act. Bonn v. City of Omaha, 19 Neb. App. 874, 814 N.W.2d 114 (2012).

The evil addressed by provision of the Nebraska Fair Employment Practice Act prohibiting employers from discriminating against an employee who has opposed any practice or refused to carry out any action unlawful under federal law or the laws of the state is the exploitation of the employer's power over the employee when used to coerce the employee to endorse, through participation or acquiescence, the unlawful acts of the employer. Bonn v. City of Omaha, 19 Neb. App. 874, 814 N.W.2d 114 (2012).

The Nebraska Fair Employment Practice Act makes it unlawful for an employer to discriminate against its employee on the basis of the employee's opposition to an unlawful practice. Bonn v. City of Omaha, 19 Neb. App. 874, 814 N.W.2d 114 (2012).

The provision of the Nebraska Fair Employment Practice Act prohibiting employers from discriminating against an employee who has opposed any practice or refused to carry out any action unlawful under federal or state law and reasonable policy dictate that an employee's opposition to any unlawful act of the employer, whether or not the employer pressures the employee to actively join in the illegal activity, is protected under the act. Bonn v. City of Omaha, 19 Neb. App. 874, 814 N.W.2d 114 (2012).

The public safety auditor for the city did not oppose an unlawful employment practice or refuse to honor the city's demand that she do an unlawful act by publishing her report critical of the police department's practices regarding traffic stops of minorities, as required to support her retaliation claim under the Nebraska Fair Employment Practice Act against the city following her termination; the auditor's claim was based on her contention that she was fired for opposing unlawful practices of the city, but the unlawful practices that the auditor opposed were the alleged discriminatory tactics by some police officers against minority members of the public, rather than unlawful practices of the city. Bonn v. City of Omaha, 19 Neb. App. 874, 814 N.W.2d 114 (2012).

The term "practice," as used in the Nebraska Fair Employment Practice Act provision making it unlawful for an employer to discriminate against an employee because he has opposed any practice unlawful under federal or state law, refers to an unlawful practice of the employer, not unlawful or prohibited actions of coemployees. Bonn v. City of Omaha, 19 Neb. App. 874, 814 N.W.2d 114 (2012).

An individual who has opposed discriminatory employment practices is protected by this section of the Nebraska Fair Employment Practice Act, making it unlawful for an employer to discriminate against an employee because he or she has opposed any practice unlawful under federal law or the laws of Nebraska. Helvering v. Union Pacific RR. Co., 13 Neb. App. 818, 703 N.W.2d 134 (2005).

48-1115. Notice of employment; preference or discrimination; race, color, religion, sex, disability, marital status, national origin; unlawful; exception.

It shall be an unlawful employment practice for an employer, labor organization, or employment agency to print or publish or cause to be printed or published any notice or advertisement relating to employment by such an employer or membership in or any classification or referral for employment by such a labor organization, or relating to any classification or referral for employment by such an employment agency, indicating any preference, limitation, specification, or discrimination based on race, color, religion, sex, disability, marital status, or national origin, except that such a notice or advertisement may indicate a preference, limitation, specification or discrimination based on religion, sex, disability, marital status, or national origin when religion, sex, disability, marital status, or national origin is a bona fide occupational qualification for employment.

Source:Laws 1965, c. 276, § 15, p. 789; Laws 1973, LB 266, § 10; Laws 1977, LB 161, § 9.

48-1116. Equal Opportunity Commission; members; appointment; term; quorum; compensation; executive director; representation.

There is hereby established an Equal Opportunity Commission to consist of seven members to be appointed by the Governor. Terms of members shall be three years. As the terms of the members expire, the Governor shall appoint or reappoint the members of the commission for terms of three years to succeed the members whose terms expire. The commission shall elect one member to serve as chairperson of the commission.

Four members of the commission shall constitute a quorum for the purpose of conducting the business thereof. Any action of the commission shall require at least four votes. A vacancy in the commission shall not impair the right of the remaining members to exercise all the powers of the commission.

Members of the commission shall receive fifty dollars per day for their services and shall be reimbursed for expenses incurred in the performance of their duties as provided in sections 81-1174 to 81-1177. Reimbursement shall be for not more than two regular meetings per month and not more than three training sessions for any one fiscal year. Any member of the commission may be removed by the Governor for inefficiency, neglect of duty, misconduct, or malfeasance in office after being given a written statement of the charges and an opportunity to be heard thereon.

The commission shall establish and maintain its principal office in the city of Lincoln and such other offices within the state as it may deem necessary. The commission may meet and function at any place within the state. The commission shall appoint an executive director who shall be directly responsible to the commission. The executive director may appoint such assistants, clerks, agents, and other employees as such executive director may deem necessary, fix their compensation within the limitations provided by law, and prescribe duties of such employees. The executive director may appoint additional staff as the commission deems necessary.

The Attorney General shall represent and appear for the commission in all actions and proceedings involving any question under the Nebraska Fair Employment Practice Act, the Nebraska Fair Housing Act, or section 20-123, 20-124, or 20-132 and shall aid in any investigation or hearing had under either act or any of such sections. The commission shall have an official seal which shall be judicially noticed.

Source:Laws 1965, c. 276, § 16, p. 789; Laws 1969, c. 120, § 22, p. 552; Laws 1977, LB 161, § 10; Laws 1981, LB 204, § 84; Laws 1989, LB 175, § 1; Laws 1991, LB 825, § 49; Laws 2020, LB381, § 39.

Cross References

Nebraska Fair Housing Act, see section 20-301.

48-1117. Commission; powers; duties; enumerated.

The commission shall have the following powers and duties:

(1) To receive, investigate, and pass upon charges of unlawful employment practices anywhere in the state;

(2) To hold hearings, subpoena witnesses, compel their attendance, administer oaths, and take the testimony of any person under oath and, in connection therewith, to require the production for examination of any books and papers relevant to any allegation of unlawful employment practice pending before the commission. The commission may make rules as to the issuance of subpoenas, subject to the approval by a constitutional majority of the elected members of the Legislature;

(3) To cooperate with the federal government and with local agencies to effectuate the purposes of the Nebraska Fair Employment Practice Act, including the sharing of information possessed by the commission on a case that has also been filed with the federal government or local agencies if both the employer and complainant have been notified of the filing;

(4) To attempt to eliminate unfair employment practices by means of conference, mediation, conciliation, arbitration, and persuasion;

(5) To require that every employer, employment agency, and labor organization subject to the act shall (a) make and keep such records relevant to the determinations of whether unlawful employment practices have been or are being committed, (b) preserve such records for such periods, and (c) make such reports therefrom, as the commission shall prescribe by regulation or order, after public hearing, as reasonable, necessary, or appropriate for the enforcement of the act or the regulations or orders thereunder. The commission shall, by regulation, require each employer, labor organization, and joint labor-management committee subject to the act which controls an apprenticeship or other training program to maintain such records as are reasonably necessary to carry out the purposes of the act, including, but not limited to, a list of applicants who wish to participate in such program, including the chronological order in which such applications were received, and to furnish to the commission, upon request, a detailed description of the manner in which persons are selected to participate in the apprenticeship or other training program. Any employer, employment agency, labor organization, or joint labor-management committee which believes that the application to it of any regulation or order issued under this section would result in undue hardship may either apply to the commission for an exemption from the application of such regulation or order or bring a civil action in the district court for the district where such records are kept. If the commission or the court, as the case may be, finds that the application of the regulation or order to the employer, employment agency, or labor organization in question would impose an undue hardship, the commission or the court, as the case may be, may grant appropriate relief;

(6) To report, not less than once every two years, to the Clerk of the Legislature and the Governor, on the hearings it has conducted and the decisions it has rendered, the other work performed by it to carry out the purposes of the act, and to make recommendations for such further legislation concerning abuses and discrimination because of race, color, religion, sex, disability, marital status, or national origin, as may be desirable. The report shall also include the number of complaints filed under the act alleging a violation of subdivision (2) of section 48-1107.01 and the resolution of such complaints. The report submitted to the Clerk of the Legislature shall be submitted electronically. Each member of the Legislature shall receive an electronic copy of the report required by this subdivision by making a request for it to the chairperson of the commission; and

(7) To adopt and promulgate rules and regulations necessary to carry out the duties prescribed in the act.

Source:Laws 1965, c. 276, § 17, p. 790; Laws 1973, LB 266, § 11; Laws 1977, LB 161, § 11; Laws 1979, LB 322, § 18; Laws 1981, LB 545, § 11; Laws 1984, LB 14A, § 3; Laws 1993, LB 124, § 3; Laws 1993, LB 360, § 15; Laws 2012, LB782, § 63; Laws 2015, LB627, § 5.

48-1118. Unlawful practice; charge; time for filing; prescreening procedure and determination; investigation; confidential informal actions; procedure; violation; penalty; interrogatories.

(1) Whenever it is charged in writing under oath or affirmation by or on behalf of a person or persons claiming to be aggrieved and such charge sets forth the facts upon which it is based that an employer, employment agency, or labor organization has engaged in an unlawful employment practice, the commission staff shall furnish such employer, employment agency, or labor organization with a copy of such charge within ten days, including a statement of the date, place, and circumstances of the alleged unlawful employment practice. Prior to initiating any investigation, the commission staff shall screen a charge pursuant to an established, clearly defined prescreening procedure to determine subject matter jurisdiction to handle such charge. Any charge without sufficient subject matter jurisdiction shall not be investigated and notice of such prescreening determination shall be promptly conveyed by the executive director to the person claiming to be aggrieved. When a charge is determined to be within the subject matter jurisdiction of the commission, the commission staff shall make an investigation of such charge, but such charge shall not be made public by the commission. If the executive director determines after such investigation that there is not reasonable cause to believe that the charge is true, the executive director shall dismiss the charge and promptly notify the person claiming to be aggrieved and the respondent of his or her action. If the executive director determines after such investigation that there is reasonable cause to believe that the charge is true, the commission shall endeavor to eliminate any such alleged unlawful employment practice and settle any claim by informal methods of conference, conciliation, persuasion, mediation, or arbitration. The settlement efforts shall be scheduled and completed within thirty days of the probable cause finding. Nothing said or done during and as a part of such endeavors may be made public by the commission without the written consent of the parties or used as evidence in a subsequent proceeding. Any officer or employee of the commission who makes public in any manner whatever any information in violation of this subsection shall be guilty of a Class III misdemeanor except as provided in subdivision (3) of section 48-1117.

(2) A written charge of violation of the Nebraska Fair Employment Practice Act shall be filed within three hundred days after the occurrence of the alleged unlawful employment practice and notice of the charge, including a statement of the date, place, and circumstances of the alleged unlawful employment practice, shall be served upon the person against whom such charge is made within ten days thereafter.

(3) A respondent shall be required to file with the commission a written response to the written charge of violation within thirty days after service upon the respondent. Failure to file a written response within thirty days, except for good cause shown, shall result in a mandatory reasonable cause finding against the respondent by the executive director. Failure by any complainant to cooperate with the commission, its investigators, or staff, except for good cause shown, shall result in dismissal of the complaint by the executive director.

(4) In connection with any investigation of a charge filed under this section, the commission or its authorized agents may, at any time after a charge is filed, issue or cause to be served interrogatories and shall have at all reasonable times access to, for the purposes of examination, and the right to copy any evidence or records of any person being investigated or proceeded against that relate to unlawful employment practices covered by the act and are relevant to the charge under investigation. The commission may seek preparation of and judicial enforcement of any legal process or interrogatories through the office of the Attorney General.

Source:Laws 1965, c. 276, § 18, p. 792; Laws 1973, LB 265, § 3; Laws 1977, LB 40, § 301; Laws 1977, LB 161, § 12; Laws 1979, LB 4, § 4; Laws 1989, LB 175, § 2; Laws 1993, LB 124, § 4.

Annotations

The 300-day statute of limitations began to run on the date that the employer notified the employee that she had been placed on furlough and that her employment would terminate months later if she did not obtain another position with the employer before that later date. Brown v. Regional West Med. Ctr., 300 Neb. 937, 916 N.W.2d 590 (2018).

Generally, when a private individual brings a discrimination action against an employer covered by the Nebraska Fair Employment Practice Act, the Nebraska Equal Opportunity Commission is not a proper party to any subsequent appeal. Zalkins Peerless Co. v. Nebraska Equal Opp. Comm., 217 Neb. 289, 348 N.W.2d 846 (1984).

One hundred eighty day statute of limitations under Fair Employment Practices Act may not be applied in federal civil rights action. Chambers v. Omaha Public School Dist., 536 F.2d 222 (8th Cir. 1976).

48-1119. Unlawful practice; complaint; notice; hearing; witnesses; evidence; findings; civil action authorized; order.

(1) In case of failure to eliminate any unlawful employment practice by informal methods of conference, conciliation, persuasion, mediation, or arbitration, the commission may order a public hearing. If such hearing is ordered, the commission shall cause to be issued and served a written notice, together with a copy of the complaint, requiring the person, employer, labor organization, or employment agency named in the complaint, hereinafter referred to as respondent, to answer such charges at a hearing before the commission at a time and place which shall be specified in such notice. Such hearing shall be within the county where the alleged unlawful employment practice occurred. The complainant shall be a party to the proceeding, and in the discretion of the commission any other person whose testimony has a bearing on the matter may be allowed to intervene therein. Both the complainant and the respondent, in addition to the commission, may introduce witnesses at the hearing. The respondent may file a verified answer to the allegations of the complaint and may appear at such hearing in person and with or without counsel. Testimony or other evidence may be introduced by either party. All evidence shall be under oath and a record thereof shall be made and preserved. Such proceedings shall, so far as practicable, be conducted in accordance with the rules of evidence applicable in the district courts of the State of Nebraska, and shall be of public record.

(2) No person shall be excused from testifying or from producing any book, document, paper, or account in any investigation, or inquiry by, or hearing before the commission when ordered to do so, upon the ground that the testimony or evidence, book, document, paper, or account required of such person may tend to incriminate such person in or subject such person to penalty or forfeiture; but no person shall be prosecuted, punished, or subjected to any forfeiture or penalty for or on account of any act, transaction, matter, or thing concerning which such person shall have been compelled under oath to testify or produce documentary evidence, except that no person so testifying shall be exempt from prosecution or punishment for any perjury committed by such person in his or her testimony. Such immunity shall extend only to a natural person who, in obedience to a subpoena, gives testimony under oath or produces evidence, documentary or otherwise, under oath. Nothing in this subsection shall be construed as precluding any person from claiming any right or privilege available to such person under the fifth amendment to the Constitution of the United States.

(3) After the conclusion of the hearing, the commission shall, within ten days of the receipt of the transcript or the receipt of the recommendations from the hearing officer, make and file its findings of fact and conclusions of law and make and enter an appropriate order. The hearing officer need not refer to the page and line numbers of the transcript when making his or her recommendation to the commission. Such findings of fact and conclusions of law shall be in sufficient detail to enable a court on appeal to determine the controverted questions presented by the proceedings and whether proper weight was given to the evidence. If the commission determines that the respondent has intentionally engaged in or is intentionally engaging in any unlawful employment practice, it shall issue and cause to be served on such respondent an order requiring such respondent to cease and desist from such unlawful employment practice and order such other affirmative action as may be appropriate which may include, but shall not be limited to, reinstatement or hiring of employees, with or without backpay. Backpay liability shall not accrue from a date more than two years prior to the filing of the charge with the commission. Interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the backpay otherwise allowable.

(4) A complainant who has suffered physical, emotional, or financial harm as a result of a violation of section 48-1104 or 48-1114 may, at any stage of the proceedings prior to dismissal, file an action directly in the district court of the county where such alleged violation occurred. If the complainant files a district court action on the charge, the complainant shall provide written notice of such filing to the commission, and such notification shall immediately terminate all proceedings before the commission. The district court shall file and try such case as any other civil action, and any successful complainant shall be entitled to appropriate relief, including temporary or permanent injunctive relief, general and special damages, reasonable attorney's fees, and costs.

(5) No order of the commission shall require the admission or reinstatement of an individual as a member of a labor organization or the hiring, reinstatement, or promotion of an individual as an employee, or the payment to him or her of any backpay, if such individual was refused admission, suspended, or expelled, or was refused employment or advancement or was suspended or discharged for any reason other than discrimination on account of race, color, religion, sex, disability, marital status, or national origin or in violation of section 48-1114. If the commission finds that a respondent has not engaged in any unfair employment practice, it shall within thirty days state its findings of fact and conclusions of law. A copy of any order shall be served upon the person against whom it runs or his or her attorney and notice thereof shall be given to the other parties to the proceedings or their attorneys. Such order shall take effect twenty days after service thereof unless otherwise provided and shall continue in force either for a period which may be designated therein or until changed or revoked by the commission.

(6) Except as provided in subsection (4) of this section, until a transcript of the record of the proceedings is filed in the district court as provided in section 48-1120, the commission may, at any time upon reasonable notice and in such a manner it shall deem proper, modify or set aside, in whole or in part, any finding or order made by it.

Source:Laws 1965, c. 276, § 19, p. 793; Laws 1973, LB 266, § 12; Laws 1977, LB 161, § 13; Laws 1993, LB 124, § 5; Laws 2003, LB 701, § 2; Laws 2018, LB193, § 84.

Annotations

Under subsection (3) of this section, in order to show a prima facie case of discrimination, the plaintiff must show that the discrimination was intentional. Lincoln County Sheriff's Office v. Horne, 228 Neb. 473, 423 N.W.2d 412 (1988).

Backpay awards under the Nebraska Fair Employment Practice Act must be reduced by earnings or amounts earnable with reasonable diligence by the person or persons discriminated against. Once an unlawfully discharged employee produces evidence in support of his claim for backpay, contending that he was unable to find comparable work, the employer has the burden of showing that the discharged employee did not exercise reasonable diligence in mitigating his damages. Airport Inn v. Nebraska Equal Opp. Comm., 217 Neb. 852, 353 N.W.2d 727 (1984).

Prejudgment interest is not generally allowed on backpay awards under the Nebraska Fair Employment Practice Act. Airport Inn v. Nebraska Equal Opp. Comm., 217 Neb. 852, 353 N.W.2d 727 (1984).

Unemployment compensation benefits should be deducted from a backpay award under the Nebraska Fair Employment Practice Act. Airport Inn v. Nebraska Equal Opp. Comm., 217 Neb. 852, 353 N.W.2d 727 (1984).

Generally, when a private individual brings a discrimination action against an employer covered by the Nebraska Fair Employment Practice Act, the Nebraska Equal Opportunity Commission is not a proper party to any subsequent appeal. Zalkins Peerless Co. v. Nebraska Equal Opp. Comm., 217 Neb. 289, 348 N.W.2d 846 (1984).

To sustain a charge of discrimination where there is no charge of a universal discriminatory practice or system, complainant, in the record, must establish that the employer intentionally engaged in acts which discriminated against complainant in violation of the statutory prohibitions. Duffy v. Physicians Mut. Ins. Co., 191 Neb. 233, 214 N.W.2d 471 (1974).

An award of punitive damages by the commission is not required for a statutory violation, but if it would be required to fully vindicate a federal constitutional right when before a federal court, it would be required before the commission or a state court. Gilliam v. City of Omaha, 331 F.Supp. 4 (D. Neb. 1971).

48-1120. Appeal; procedure; attorney's fees; failure to appeal; effect.

(1) Any party to a proceeding before the commission aggrieved by such decision and order and directly affected thereby may appeal the decision and order, and the appeal shall be in accordance with the Administrative Procedure Act.

(2) In any action or proceeding under the Nebraska Fair Employment Practice Act wherein an appeal is lodged in the district court, the court, in its discretion, may allow the prevailing party reasonable attorney's fees as part of the costs.

(3) If a respondent does not appeal an order, the commission may obtain a decree of the court for the enforcement of such order upon showing that respondent is subject to the commission's jurisdiction and resides or transacts business within the county in which the petition for enforcement is brought.

Source:Laws 1965, c. 276, § 20, p. 795; Laws 1977, LB 161, § 14; Laws 1988, LB 352, § 90.

Cross References

Administrative Procedure Act, see section 84-920.

Annotations

1. Standard of review

2. Attorney's fees

3. Miscellaneous

1. Standard of review

On appeal to the district court from an order of the Nebraska Equal Opportunity Commission, the review is by trial de novo upon the record. On further appeal to the Supreme Court, the district court's findings will not be disturbed if they are supported by substantial evidence. Hinzman v. Richman Gordman, 219 Neb. 875, 367 N.W.2d 131 (1985).

On appeal of review by the district court of an order of the Nebraska Equal Opportunity Commission, the Supreme Court will not disturb the district court's findings if they are supported by substantial evidence. Zalkins Peerless Co. v. Nebraska Equal Opp. Comm., 217 Neb. 289, 348 N.W.2d 846 (1984).

On appeal to the district court from an order of the Nebraska Equal Opportunity Commission, the review is by trial de novo upon the record. Zalkins Peerless Co. v. Nebraska Equal Opp. Comm., 217 Neb. 289, 348 N.W.2d 846 (1984).

The standard of review to be applied in review by the district court and the Supreme Court of an order entered by the Nebraska Equal Opportunity Commission is whether the findings of the commission in support of such order are unreasonable or arbitrary or not supported by a preponderance of the evidence. The court shall affirm if the finding is supported by substantial evidence on the record. Nebraska P.P. Dist. v. Lacy, 215 Neb. 462, 339 N.W.2d 286 (1983).

On appeal to district court from an order of the Equal Opportunity Commission, review is de novo upon the record to determine whether the order was based upon substantial evidence. Farmer v. Richman Gordman Stores, Inc., 203 Neb. 222, 278 N.W.2d 332 (1979).

Upon an appeal to the district court from an order of the Equal Opportunity Commission, the district court review is de novo on the record. Snygg v. City of Scottsbluff Police Dept., 201 Neb. 16, 266 N.W.2d 76 (1978).

2. Attorney's fees

The plain meaning of subsection (6) of this section is to permit an award of attorney fees only where they were necessarily incurred in determining an issue over which the district court had jurisdiction. Nebraska Dept. of Correctional Servs. v. Carroll, 222 Neb. 307, 383 N.W.2d 740 (1986).

While awarding of attorney fees under this section is discretionary with the district court, absent special circumstances, the failure to award such fees is an abuse of discretion. Williams v. Goodyear Tire & Rubber Co., 219 Neb. 748, 366 N.W.2d 132 (1985).

Unless there are special circumstances a prevailing plaintiff, under the Nebraska Fair Employment Practice Act, should be awarded a reasonable attorney fee for all stages of the proceedings. In any action or proceeding under the Nebraska Fair Employment Practice Act, the district court, in its discretion, may allow the prevailing party a reasonable attorney fee. Airport Inn v. Nebraska Equal Opp. Comm., 217 Neb. 852, 353 N.W.2d 727 (1984).

This section does not provide for an attorney fee for services provided in appeals taken from the district court. Northern States Beef v. Stennis, 2 Neb. App. 340, 509 N.W.2d 656 (1993).

3. Miscellaneous

This section requires the filing of a petition and a certified copy of the transcript of proceedings before the Nebraska Equal Opportunity Commission within 30 days from the date of the NEOC's final order in order to confer jurisdiction on the district court. Transcon Lines, Inc., v. O'Neal, 230 Neb. 31, 429 N.W.2d 718 (1988).

There has been no entry of the order of the Nebraska Equal Opportunity Commission until the date that written evidence of that order has been prepared, authoritatively signed, and placed of record in the public files of such commission. Lincoln Co. Sheriff's Office v. Horne, 221 Neb. 867, 381 N.W.2d 159 (1986).

Substantial compliance with this section will be adequate to meet the requirements thereof. Held facts of this case constituted substantial compliance. Ranger Division v. Bayne, 214 Neb. 251, 333 N.W.2d 891 (1983).

Appeal in proceedings under this act are governed by specific provision herein for manner and scope of appeal, rather than the appeal provisions of the Administrative Procedure Act, sections 84-901 to 84-919. Duffy v. Physicians Mut. Ins. Co., 191 Neb. 233, 214 N.W.2d 471 (1974).

Since award of back pay by commission would be equivalent to similar award in federal court and appeal is provided for, state administrative remedy is adequate. Gilliam v. City of Omaha, 331 F.Supp. 4 (D. Neb. 1971).

48-1120.01. Action in district court; deadline; notice by commission.

The deadline for filing an action directly in the district court is ninety days after the complainant receives notice of the last action the commission will take on the complaint or charge. When entering the last action on the complaint or charge, the commission shall issue written notice of such ninety-day deadline to the complainant by certified mail, return receipt requested. The last action on the complaint or charge includes the issuance of the final order after hearing, the determination of reasonable cause or no reasonable cause, and any other administrative action which ends the commission's involvement with the complaint or charge.

Source:Laws 2003, LB 701, § 1.

48-1121. Posting excerpts of law.

Every employer, employment agency, and labor organization subject to the Nebraska Fair Employment Practice Act shall post in a conspicuous place or places on his, her, or its premises a notice to be prepared or approved by the commission which shall set forth excerpts of the act and such other relevant information which the commission deems necessary to explain the act.

Source:Laws 1965, c. 276, § 21, p. 796; Laws 1993, LB 360, § 16.

48-1122. Contracts with state and political subdivisions; requirements.

Every contract to which the state or any of its political subdivisions is a party shall contain a provision requiring the contractor and his subcontractors not to discriminate against any employee or applicant for employment, to be employed in the performance of such contract, with respect to his hire, tenure, terms, conditions, or privileges of employment, because of his race, color, religion, sex, disability, or national origin.

Source:Laws 1965, c. 276, § 22, p. 797; Laws 1973, LB 266, § 13.

48-1123. Violations; penalty.

Any person, employer, labor organization, or employment agency who or which willfully resists, prevents, impedes, or interferes with the commission or any of its members or representatives in the performance of duty under the Nebraska Fair Employment Practice Act or willfully violates an order of the commission shall be guilty of a Class III misdemeanor. Procedure for the review of the order shall not be deemed to be such willful conduct.

Source:Laws 1965, c. 276, § 23, p. 797; Laws 1977, LB 40, § 302; Laws 1993, LB 360, § 17.

48-1124. Construction of act.

Nothing contained in the Nebraska Fair Employment Practice Act shall be deemed to repeal any of the provisions of the civil rights law, any other law of this state, or any municipal ordinance relating to discrimination because of race, creed, color, religion, sex, disability, or national origin.

Source:Laws 1965, c. 276, § 24, p. 797; Laws 1973, LB 266, § 14; Laws 1993, LB 360, § 18.

48-1125. Act, how cited.

Sections 48-1101 to 48-1125 shall be known and may be cited as the Nebraska Fair Employment Practice Act.

Source:Laws 1965, c. 276, § 26, p. 797; Laws 1993, LB 360, § 19; Laws 2003, LB 701, § 3.

48-1126. State and governmental agencies; suits against.

The state and governmental agencies created by the state may be sued upon claims arising under the Nebraska Fair Employment Practice Act in the same manner as provided by such law for suits against other employers.

Source:Laws 1979, LB 67, § 2; Laws 1983, LB 447, § 74.

Cross References

Nebraska Fair Employment Practice Act, see section 48-1125.

48-1201. Policy.

It is declared to be the policy of this state (1) to establish a minimum wage for all workers at levels consistent with their health, efficiency and general well-being, and (2) to safeguard existing minimum wage compensation standards which are adequate to maintain the health, efficiency and general well-being of workers against the unfair competition of wage and hours standards which do not provide adequate standards of living.

Source:Laws 1967, c. 285, § 1, p. 773.

Annotations

Parties may not waive the protections afforded under the Wage and Hour Act. Mays v. Midnite Dreams, 300 Neb. 485, 915 N.W.2d 71 (2018).

48-1202. Terms, defined.

For purposes of the Wage and Hour Act, unless the context otherwise requires:

(1) Employ shall include to permit to work;

(2) Employer shall include any individual, partnership, limited liability company, association, corporation, business trust, legal representative, or organized group of persons employing four or more employees at any one time except for seasonal employment of not more than twenty weeks in any calendar year, acting directly or indirectly in the interest of an employer in relation to an employee, but shall not include the United States, the state, or any political subdivision thereof;

(3) Employee shall include any individual employed by any employer but shall not include:

(a) Any individual employed in agriculture;

(b) Any individual employed as a baby-sitter in or about a private home;

(c) Any individual employed in a bona fide executive, administrative, or professional capacity or as a superintendent or supervisor;

(d) Any individual employed by the United States or by the state or any political subdivision thereof;

(e) Any individual engaged in the activities of an educational, charitable, religious, or nonprofit organization when the employer-employee relationship does not in fact exist or when the services rendered to such organization are on a voluntary basis;

(f) Apprentices and learners otherwise provided by law;

(g) Veterans in training under supervision of the United States Department of Veterans Affairs;

(h) A child in the employment of his or her parent or a parent in the employment of his or her child; or

(i) Any person who, directly or indirectly, is receiving any form of federal, state, county, or local aid or welfare and who is physically or mentally disabled and employed in a program of rehabilitation, who shall receive a wage at a level consistent with his or her health, efficiency, and general well-being;

(4) Occupational classification shall mean a classification established by the Dictionary of Occupational Titles prepared by the United States Department of Labor; and

(5) Wages shall mean all remuneration for personal services, including commissions and bonuses and the cash value of all remunerations in any medium other than cash.

Source:Laws 1967, c. 285, § 2, p. 773; Laws 1969, c. 408, § 1, p. 1411; Laws 1973, LB 343, § 1; Laws 1991, LB 2, § 8; Laws 1991, LB 297, § 1; Laws 1993, LB 121, § 298.

48-1203. Wages; minimum rate; adjustments.

(1) Except as otherwise provided in this section and section 48-1203.01, every employer shall pay to each of his or her employees a minimum wage of:

(a) Nine dollars per hour through December 31, 2022;

(b) Ten dollars and fifty cents per hour on and after January 1, 2023, through December 31, 2023;

(c) Twelve dollars per hour on and after January 1, 2024, through December 31, 2024;

(d) Thirteen dollars and fifty cents per hour on and after January 1, 2025, through December 31, 2025; and

(e) Fifteen dollars per hour on and after January 1, 2026, through December 31, 2026.

(2) The minimum wage established in subdivision (1)(e) of this section shall be increased on January 1, 2027, and on January 1 of successive years, by the increase in the cost of living. The increase in the cost of living shall be measured by the percentage increase, if any, as of August of the previous year over the level as of August of the year preceding that year in the consumer price index for all urban consumers (CPI-U) for the Midwest Region, or its successor index, as published by the U.S. Department of Labor, or its successor agency, with the amount of the minimum wage increase rounded up to the nearest multiple of five cents. No later than October 15 of each year, commencing October 15, 2026, the Nebraska Department of Labor shall calculate and publish the minimum wage rate that will take effect the following January 1.

(3) For persons compensated by way of gratuities such as waitresses, waiters, hotel bellhops, porters, and shoeshine persons, the employer shall pay wages at the minimum rate of two dollars and thirteen cents per hour, plus all gratuities given to them for services rendered. The sum of wages and gratuities received by each person compensated by way of gratuities shall equal or exceed the applicable minimum wage rate provided in subsection (1) or (2) of this section. In determining whether or not the individual is compensated by way of gratuities, the burden of proof shall be upon the employer.

(4) Any employer employing student-learners as part of a bona fide vocational training program shall pay such student-learners' wages at a rate of at least seventy-five percent of the minimum wage rate which would otherwise be applicable.

Source:Laws 1967, c. 285, § 3, p. 775; Laws 1969, c. 408, § 2, p. 1413; Laws 1973, LB 343, § 2; Laws 1987, LB 474, § 1; Laws 1989, LB 412, § 1; Laws 1991, LB 297, § 2; Laws 1997, LB 569, § 1; Laws 2007, LB265, § 22; Initiative Law 2014, No. 425, § 1; Initiative Law 2022, No. 433, § 1.

Annotations

Under subsection (2) of this section, an employer is not required to notify an employee that he or she will be compensated as a tipped employee. Instead, the employer only needs to prove the employee received tips sufficient to compensate the employee at a rate greater than or equal to the minimum wage. Mays v. Midnite Dreams, 300 Neb. 485, 915 N.W.2d 71 (2018).

48-1203.01. Training wage; rate; limitations.

An employer may pay a new employee who is younger than twenty years of age and is not a seasonal or migrant worker a training wage of at least seventy-five percent of the federal minimum wage for ninety days from the date the new employee was hired. An employer may pay such new employee the training wage rate for an additional ninety-day period while the new employee is participating in on-the-job training which (1) requires technical, personal, or other skills which are necessary for his or her employment and (2) is approved by the Commissioner of Labor. No more than one-fourth of the total hours paid by the employer shall be at the training wage rate.

An employer shall not pay the training wage rate if the hours of any other employee are reduced or if any other employee is laid off and the hours or position to be filled by the new employee is substantially similar to the hours or position of such other employee. An employer shall not dismiss or reduce the hours of any employee with the intention of replacing such employee or his or her hours with a new employee receiving the training wage rate.

Source:Laws 1991, LB 297, § 3; Laws 1997, LB 569, § 2; Laws 2007, LB265, § 23.

48-1204. Repealed. Laws 1987, LB 474, § 3.

48-1205. Sections; posting.

Every employer subject to the provisions of sections 48-1201 to 48-1209 shall keep a summary of sections 48-1201 to 48-1209, furnished by the Commissioner of Labor without charge, posted in a conspicuous place on or about the premises wherein any person subject to the provisions of sections 48-1201 to 48-1209 is employed.

Source:Laws 1967, c. 285, § 5, p. 775.

48-1206. Commissioner of Labor; subpoena records and witnesses; violations; penalty; civil actions.

(1) The Commissioner of Labor shall have the authority to subpoena records and witnesses related to the enforcement of section 48-1203 and this section. The commissioner or his or her agent may inspect all related records and gather testimony on any matter relative to the enforcement of the Wage and Hour Act.

(2) Any employer who violates any of the provisions of section 48-1203 shall be guilty of a Class IV misdemeanor.

(3) It shall be the duty of the county attorney for the county in which any violation of the Wage and Hour Act occurs to prosecute the same in the district court in the county where the offense occurred.

(4) Any employer who violates any provision of section 48-1203 shall be liable to the employees affected in the amount of their unpaid minimum wages, as the case may be.

(5) Action to recover unpaid minimum wages as provided in subsection (4) of this section may be maintained in any court of competent jurisdiction by any one or more employees for and in behalf of himself, herself, or themselves and other employees similarly situated, or such employee or employees may designate an agent or representative to maintain such action for and in behalf of all employees similarly situated. The court in which any action is brought under this subsection shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow costs of the action and reasonable attorney's fees to be paid by the defendant. In any proceedings brought pursuant to this subsection, the employee shall not be required to pay any filing fee or other court costs necessarily incurred in such proceedings.

Source:Laws 1967, c. 285, § 6, p. 775; Laws 1973, LB 343, § 4; Laws 1977, LB 40, § 303; Laws 1987, LB 474, § 2.

48-1207. Bargaining collectively; sections not applicable.

Nothing in sections 48-1201 to 48-1209 shall be deemed to interfere with, impede or in any way diminish the right of employees to bargain collectively with their employers through representatives of their own choosing in order to establish wages or other conditions of work in excess of the applicable minimum under the provisions of sections 48-1201 to 48-1209.

Source:Laws 1967, c. 285, § 7, p. 776.

48-1208. Other laws; applicability of sections.

Any standards relating to minimum wage, maximum hours, or other working conditions in effect on October 23, 1967, by or under any other law of this state, which are more favorable to employees than those applicable to such employees under the provisions of sections 48-1201 to 48-1209, shall not be deemed to be amended, rescinded, or otherwise affected by sections 48-1201 to 48-1209 but shall continue in full force and effect.

Source:Laws 1967, c. 285, § 8, p. 776.

48-1209. Act, how cited.

Sections 48-1201 to 48-1209 shall be known and may be cited as the Wage and Hour Act.

Source:Laws 1967, c. 285, § 9, p. 776; Laws 1991, LB 297, § 4.

48-1209.01. Police; firefighters; cities having a population of more than 10,000 inhabitants; minimum salaries.

The officers and members of the police and paid fire departments of cities of the metropolitan and primary classes and of cities of the first class having a population of more than ten thousand inhabitants as determined by the most recent federal decennial census or the most recent revised certified count by the United States Bureau of the Census shall each receive a salary of not less than three hundred fifty dollars per month. The city council may, by ordinance, at any time, change, fix or revise the salaries of the officers or members of the police and fire departments of such cities, but in no instance shall the minimum salary of any officer or member be less than three hundred fifty dollars per month.

Source:Laws 1965, c. 78, § 1, p. 313; Laws 1979, LB 80, § 63; R.S.1943, (1983), § 19-1824; Laws 2017, LB113, § 46.

48-1210. Repealed. Laws 1969, c. 389, § 10.

48-1211. Repealed. Laws 1969, c. 389, § 10.

48-1212. Repealed. Laws 1969, c. 389, § 10.

48-1213. Repealed. Laws 1969, c. 389, § 10.

48-1214. Repealed. Laws 1969, c. 389, § 10.

48-1215. Repealed. Laws 1969, c. 389, § 10.

48-1216. Repealed. Laws 1969, c. 389, § 10.

48-1217. Repealed. Laws 1969, c. 389, § 10.

48-1218. Repealed. Laws 1969, c. 389, § 10.

48-1219. Discriminatory wage practices based on sex; policy.

(1) The practice of discriminating on the basis of sex by paying wages to employees of one sex at a lesser rate than the rate paid to employees of the opposite sex for comparable work on jobs which have comparable requirements:

(a) Unjustly discriminates against the person receiving the lesser rate;

(b) Leads to low worker morale, high turnover, and frequent labor unrest;

(c) Discourages workers paid at the lesser wage rates from training for higher level jobs;

(d) Curtails employment opportunities, decreases workers' mobility, and increases labor costs;

(e) Impairs purchasing power and threatens the maintenance of an adequate standard of living by such workers and their families;

(f) Prevents optimum utilization of the state's available labor resources; and

(g) Threatens the well-being of citizens of this state, and adversely affects the general welfare.

(2) It is therefor declared to be the policy of this state through exercise of its police power to correct and, as rapidly as possible, to eliminate discriminatory wage practices based on sex.

Source:Laws 1969, c. 389, § 1, p. 1365.

48-1220. Terms, defined.

As used in sections 48-1219 to 48-1227.01, unless the context otherwise requires:

(1) Employee shall mean any individual employed by an employer, including individuals employed by the state or any of its political subdivisions including public bodies;

(2) Employer shall mean any person engaged in an industry who has two or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, any agent of such person, and any party whose business is financed in whole or in part under the Nebraska Investment Finance Authority Act, and includes the State of Nebraska, its governmental agencies, and political subdivisions, regardless of the number of employees, but such term shall not include the United States, a corporation wholly owned by the government of the United States, or an Indian tribe;

(3) Wage rate shall mean all compensation for employment including payment in kind and amounts paid by employers for employee benefits as defined by the commission in regulations issued under sections 48-1219 to 48-1227;

(4) Employ shall include to suffer or permit to work;

(5) Commission shall mean the Equal Opportunity Commission; and

(6) Person shall include one or more individuals, partnerships, limited liability companies, corporations, legal representatives, trustees, trustees in bankruptcy, or voluntary associations.

Source:Laws 1969, c. 389, § 2, p. 1366; Laws 1983, LB 424, § 5; Laws 1983, LB 626, § 75; Laws 1993, LB 121, § 299; Laws 2005, LB 10, § 1; Laws 2016, LB83, § 1.

Cross References

Nebraska Investment Finance Authority Act, see section 58-201.

48-1221. Prohibited acts.

(1) No employer shall discriminate between employees in the same establishment on the basis of sex, by paying wages to any employee in such establishment at a wage rate less than the rate at which the employer pays any employee of the opposite sex in such establishment for equal work on jobs which require equal skill, effort and responsibility under similar working conditions. Wage differentials are not within this prohibition where such payments are made pursuant to: (a) An established seniority system; (b) a merit increase system; or (c) a system which measures earning by quantity or quality of production or any factor other than sex.

(2) An employer who is paying a wage differential in violation of the provisions of sections 48-1219 to 48-1227 shall not, in order to comply with it, reduce the wage rates of any employee.

(3) No person shall cause or attempt to cause an employer to discriminate against any employee in violation of the provisions of sections 48-1219 to 48-1227.

(4) No employer may discharge or discriminate against any employee by reason of any action taken by such employee to invoke or assist in any manner the enforcement of the provisions of sections 48-1219 to 48-1227.

Source:Laws 1969, c. 389, § 3, p. 1366.

Annotations

When bringing a claim of wage discrimination based on sex under subsection (1) of this section, a plaintiff must first establish a prima facie case by showing by a preponderance of the evidence that (1) the plaintiff was paid less than a person of the opposite sex employed in the same establishment; (2) for equal work on jobs requiring equal skill, effort, and responsibility; (3) which were performed under similar working conditions. If a plaintiff establishes a prima facie case of wage discrimination based on sex, the burden then shifts to the defendant to prove one of the affirmative defenses set forth in subsection (1) of this section. Knapp v. Ruser, 297 Neb. 639, 901 N.W.2d 31 (2017).

48-1222. Equal Opportunity Commission; powers.

(1) The commission shall have the power and the duty to carry out the provisions of sections 48-1219 to 48-1227.

(2) For this purpose, the commission shall have the power to enter the place of employment of any employer to inspect and copy payrolls and other employment records, to compare character of work and operations on which persons employed by him are engaged, to question such person, and to obtain such other information as is reasonably necessary to the administration and enforcement of the provisions of sections 48-1219 to 48-1227.

(3) The commission shall have power to examine witnesses under oath, and to require by subpoena the attendance and testimony of witnesses and the production of any documentary evidence relating to the subject matter of any investigation undertaken pursuant to this section. Witnesses summoned by the commission shall be paid the same fees as are allowed witnesses attending the district court. In the event of the failure of a person to attend, testify or produce documents under or in response to a subpoena, the district court for the county in which the appearance is requested on application of the commission may issue an order requiring such person to appear before the commission, or to produce documentary evidence, and any failure to obey such order of the court may be punished by the court as a contempt thereof.

(4) The commission is authorized to endeavor to eliminate pay practices unlawful under the provisions of sections 48-1219 to 48-1227, by informal methods of conference, conciliation and persuasion, and to supervise the payment of wages owing to any employee under the provisions of sections 48-1219 to 48-1227.

(5) The commission shall have power to issue such regulations, not inconsistent with the purpose of sections 48-1219 to 48-1227, as it deems necessary or appropriate to carry out its provisions.

Source:Laws 1969, c. 389, § 4, p. 1367.

Cross References

For witness fees in district court, see section 33-139.

48-1223. Violation of sections; damages; attorney's fees; agreements, effect; action; order of court.

(1) Any employer who violates the provisions of section 48-1221 shall be liable to the employee or employees affected in the amount of their unpaid wages, and, in instances of willful violation, in employee suits under subsection (2) of this section up to an additional equal amount as liquidated damages.

(2) Action to recover such liability may be maintained in any court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. The court in such action shall, in cases of violation in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney's fee to be paid by the defendant, and costs of the action.

(3) No agreement by any such employee to work for less than the wage to which such employee is entitled under the provisions of sections 48-1219 to 48-1227 shall be a bar to any such action or to a voluntary wage restitution of the full amount due under the provisions of sections 48-1219 to 48-1227.

(4) At the written request of any employee claiming to have been paid less than the wage to which he may be entitled under the provisions of sections 48-1219 to 48-1227, the commission may bring any legal action necessary on behalf of the employee to collect such claim for unpaid wages. The commission shall not be required to pay the filing fee, or other costs, in connection with such action. The commission shall have power to join various claims against the employer in one cause of action.

(5) In proceedings under the provisions of this section, the court may order other affirmative action as appropriate, including reinstatement of employees discharged in violation of the provisions of sections 48-1219 to 48-1227.

(6) The commission shall have power to petition any court of competent jurisdiction to restrain violations of section 48-1221 and for such affirmative relief as the court may deem appropriate, including restoration of unpaid wages and reinstatement of employees, consistent with the purpose of sections 48-1219 to 48-1227.

Source:Laws 1969, c. 389, § 5, p. 1368.

48-1224. Limitation of action.

Court action under the provisions of sections 48-1219 to 48-1227 may be commenced no later than four years after the cause of action accrues.

Source:Laws 1969, c. 389, § 6, p. 1369.

48-1225. Records; employer keep and maintain; contents.

Every employer subject to the provisions of sections 48-1219 to 48-1227 shall make, keep, and maintain such records of the wages and wage rates, job classifications, and other terms and conditions of employment of the persons employed by him, and shall preserve such records for such periods of time, and shall make such reports therefrom as the commission shall prescribe.

Source:Laws 1969, c. 389, § 7, p. 1369.

48-1226. Copy or abstract of sections; post; furnish employers.

Every person subject to the provisions of sections 48-1219 to 48-1227 shall keep an abstract or copy of sections 48-1219 to 48-1227 posted in a conspicuous place in or about the premises wherein any employee is employed. Employers shall be furnished copies of abstracts of sections 48-1219 to 48-1227 by the state on request without charge.

Source:Laws 1969, c. 389, § 8, p. 1369.

48-1227. Violations; penalty.

(1) Any person who violates any provision of sections 48-1219 to 48-1227, or who discharges or in any other manner discriminates against any employee because such employee has made any complaint to his employer, the commission, or any other person, or has instituted, or caused to be instituted any proceeding under or related to sections 48-1219 to 48-1227, or has testified or is about to testify in any such proceeding, shall be guilty of a Class III misdemeanor.

(2) Any employer who violates the provisions of sections 48-1219 to 48-1227 by failing to keep the records required hereunder, or to furnish such records to the commission upon request, or who falsifies such records, or who hinders, delays, or otherwise interferes with the commission in the performance of its duties in the enforcement of the provisions of sections 48-1219 to 48-1227, or refuses official entry into any place of employment which it is authorized by the provisions of sections 48-1219 to 48-1227 to inspect, shall be guilty of a Class V misdemeanor.

Source:Laws 1969, c. 389, § 9, p. 1369; Laws 1977, LB 40, § 304.

48-1227.01. Suits against governmental bodies; authorized.

The state, governmental agencies, and political subdivisions may be sued upon claims arising under sections 48-1219 to 48-1227 in the same manner as provided by such sections for suits against other employers.

Source:Laws 1983, LB 424, § 6.

48-1228. Act, how cited.

Sections 48-1228 to 48-1236 shall be known and may be cited as the Nebraska Wage Payment and Collection Act.

Source:Laws 1977, LB 220A, § 1; Laws 2007, LB255, § 1; Laws 2014, LB560, § 1; Laws 2020, LB1016, § 2.

Annotations

The Nebraska Wage Payment and Collection Act does not prohibit employers from discharging employees, and it does not provide employees with any substantive rights. Coffey v. Planet Group, 287 Neb. 834, 845 N.W.2d 255 (2014).

The Nebraska Wage Payment and Collection Act does not represent a very clear mandate of public policy which would warrant recognition of an exception to the employment-at-will doctrine. Malone v. American Bus. Info., 262 Neb. 733, 634 N.W.2d 788 (2001).

Nebraska Wage Payment and Collection Act does not apply to severance payment which becomes due upon termination of employment. Babb v. United Food & Commercial Workers Local 271, 233 Neb. 826, 448 N.W.2d 168 (1989).

If an employer and employee agree upon a bonus to be paid upon certain conditions and the conditions are fulfilled, the bonus is wages under the Nebraska Wage Payment and Collection Act. Knutson v. Snyder Industries, Inc., 231 Neb. 374, 436 N.W.2d 496 (1989).

The Nebraska Wage Payment and Collection Act applies only to actions to recover wages due an employee for labor or services performed for an employer. Heimbouch v. Victorio Ins. Serv., Inc., 220 Neb. 279, 369 N.W.2d 620 (1985).

48-1229. Terms, defined.

For purposes of the Nebraska Wage Payment and Collection Act, unless the context otherwise requires:

(1) Employee means any individual permitted to work by an employer pursuant to an employment relationship or who has contracted to sell the goods or services of an employer and to be compensated by commission. Services performed by an individual for an employer shall be deemed to be employment, unless it is shown that (a) such individual has been and will continue to be free from control or direction over the performance of such services, both under his or her contract of service and in fact, (b) such service is either outside the usual course of business for which such service is performed or such service is performed outside of all the places of business of the enterprise for which such service is performed, and (c) such individual is customarily engaged in an independently established trade, occupation, profession, or business. This subdivision is not intended to be a codification of the common law and shall be considered complete as written;

(2) Employer means the state or any individual, partnership, limited liability company, association, joint-stock company, trust, corporation, political subdivision, or personal representative of the estate of a deceased individual, or the receiver, trustee, or successor thereof, within or without the state, employing any person within the state as an employee;

(3) Federally insured financial institution means a state or nationally chartered bank or a state or federally chartered savings and loan association, savings bank, or credit union whose deposits are insured by an agency of the United States Government;

(4) Fringe benefits includes sick and vacation leave plans, disability income protection plans, retirement, pension, or profit-sharing plans, health and accident benefit plans, and any other employee benefit plans or benefit programs regardless of whether the employee participates in such plans or programs;

(5) Payroll debit card means a stored-value card issued by or on behalf of a federally insured financial institution that provides an employee with immediate access for withdrawal or transfer of his or her wages through a network of automatic teller machines. Payroll debit card includes payroll debit cards, payroll cards, and paycards; and

(6) Wages means compensation for labor or services rendered by an employee, including fringe benefits, when previously agreed to and conditions stipulated have been met by the employee, whether the amount is determined on a time, task, fee, commission, or other basis. Paid leave, other than earned but unused vacation leave, provided as a fringe benefit by the employer shall not be included in the wages due and payable at the time of separation, unless the employer and the employee or the employer and the collective-bargaining representative have specifically agreed otherwise. Unless the employer and employee have specifically agreed otherwise through a contract effective at the commencement of employment or at least ninety days prior to separation, whichever is later, wages includes commissions on all orders delivered and all orders on file with the employer at the time of separation of employment less any orders returned or canceled at the time suit is filed.

Source:Laws 1977, LB 220A, § 2; Laws 1988, LB 1130, § 1; Laws 1989, LB 238, § 1; Laws 1991, LB 311, § 1; Laws 1993, LB 121, § 300; Laws 1999, LB 753, § 1; Laws 2007, LB255, § 2; Laws 2014, LB765, § 1.

Annotations

1. Vacation and sick leave

2. Consideration as wages

3. Miscellaneous

1. Vacation and sick leave

Former employees were not entitled to paid time off compensation under the Nebraska Wage Payment and Collection Act where they did not meet the written employment agreement's stated conditions to earn paid time off. Drought v. Marsh, 304 Neb. 860, 937 N.W.2d 229 (2020).

Under the 2007 amendments to this section, unused "paid time off" hours constitute unused vacation leave when the only stipulated condition for earning the hours is the rendering of services and an employee has an absolute right to take this time off for any purpose that he or she wishes. In that circumstance, an employee's unused paid time off hours are wages that an employer must pay upon separation of employment. Fisher v. PayFlex Systems USA, 285 Neb. 808, 829 N.W.2d 703 (2013).

The Nebraska Wage Payment and Collection Act does not prohibit an employer from providing a sick leave benefit which may be used only in the event of illness or injury and which has no monetary value upon termination of employment if it is not so used. Loves v. World Ins. Co., 277 Neb. 359, 773 N.W.2d 348 (2009).

The Nebraska Wage Payment and Collection Act does not prohibit an employer from providing a sick leave benefit which may be used only in the event of illness or injury and which has no monetary value upon termination of employment if it is not so used. Loves v. World Ins. Co., 276 Neb. 936, 758 N.W.2d 640 (2008).

Under the plain language of subsection (4) of this section, unused sick leave is not a part of wages payable to a separating employee unless there is a specific agreement otherwise. Loves v. World Ins. Co., 276 Neb. 936, 758 N.W.2d 640 (2008).

Accrued vacation time, which is part of an employment agreement, is due and payable as wages upon termination of employment. Roseland v. Strategic Staff Mgmt., 272 Neb. 434, 722 N.W.2d 499 (2006).

2. Consideration as wages

An appellate court will consider a payment a wage subject to the Nebraska Wage Payment and Collection Act if (1) it is compensation for labor or services, (2) it was previously agreed to, and (3) all the conditions stipulated have been met. Timberlake v. Douglas County, 291 Neb. 387, 865 N.W.2d 788 (2015).

The list of fringe benefits under the former subsection (3) of this section is not exclusive. Under the former subsection (4), "injured on duty" agreed-upon benefits for employees who are injured while performing a high-risk duty are wages that an employee can earn just by rendering the specified services. Timberlake v. Douglas County, 291 Neb. 387, 865 N.W.2d 788 (2015).

A payment will be considered a wage subject to the Nebraska Wage Payment and Collection Act if (1) it is compensation for labor or services, (2) it was previously agreed to, and (3) all the conditions stipulated have been met. Eikmeier v. City of Omaha, 280 Neb. 173, 783 N.W.2d 795 (2010).

Payments pursuant to a severance agreement that were not earned and did not accrue through continued employment are not compensation for labor or services rendered, and therefore, the employee is not entitled to attorney fees. Eikmeier v. City of Omaha, 280 Neb. 173, 783 N.W.2d 795 (2010).

Pursuant to subsection (3) of this section, deferred compensation constitutes wages under the Nebraska Wage Payment and Collection Act. Sindelar v. Canada Transport, Inc., 246 Neb. 559, 520 N.W.2d 203 (1994).

Where an employment contract provides for the sharing of possible financial losses, sums collected under such a provision are not "benefits" which could be considered "wages" under subsection (3) of this section. Brown v. Clayton Brokerage Co., 238 Neb. 646, 472 N.W.2d 381 (1991).

Where an employment agreement provides for sharing of possible financial losses, sums collected under such a provision are not "benefits" which could be considered "wages" under subsection (3) of this section. Waite v. A. S. Battiato Co., 238 Neb. 151, 469 N.W.2d 766 (1991).

An employee's share of the profits of his employer under a profit-sharing plan can be wages within the meaning of subsection (3) of this section. Suess v. Lee Sapp Leasing, 229 Neb. 755, 428 N.W.2d 899 (1988).

Subdivision (4) of this section provides that the term "wages" includes orders on file with the employer at the time of termination of employment. Thus, an employment agreement policy which clearly conflicts with such definition of wages, even though said policy is common within the industry, is void because it is prohibited by the Nebraska Wage Payment and Collection Act. Sanford v. Clear Channel Broadcasting, 14 Neb. App. 908, 719 N.W.2d 312 (2006).

Overtime wages can be claimed under the Nebraska Wage Payment and Collection Act only if those overtime wages were previously agreed to by the employer and the employee. Nonetheless, even in the absence of a previous agreement concerning overtime compensation, compensation for overtime can be claimed under the federal Fair Labor Standards Act for hours worked in excess of 40 during a given week. Freeman v. Central States Health & Life Co., 2 Neb. App. 803, 515 N.W.2d 131 (1994).

3. Miscellaneous

The Nebraska Wage Payment and Collection Act does not represent a very clear mandate of public policy which would warrant recognition of an exception to the employment-at-will doctrine. Malone v. American Bus. Info., 262 Neb. 733, 634 N.W.2d 788 (2001).

Statutory definitions applied to facts to reach conclusion that route salesman is an employee within the meaning of the Nebraska Wage Payment and Collection Act. Rudolf v. Tombstone Pizza Corp., 214 Neb. 276, 333 N.W.2d 673 (1983).

District court erred in finding that plaintiffs were not employees under the definition provided by this section. Tracy v. Tracy, 7 Neb. App. 143, 581 N.W.2d 96 (1998).

48-1230. Employer; regular paydays; altered; notice; deduct, withhold, or divert portion of wages; when; wage statement; use of payroll debit card; conditions; unpaid wages; when due.

(1) Except as otherwise provided in this section, each employer shall pay all wages due its employees on regular days designated by the employer or agreed upon by the employer and employee. Thirty days' written notice shall be given to an employee before regular paydays are altered by an employer. An employer may deduct, withhold, or divert a portion of an employee's wages only when the employer is required to or may do so by state or federal law or by order of a court of competent jurisdiction or the employer has a written agreement with the employee to deduct, withhold, or divert.

(2) On each regular payday, the employer shall deliver or make available to each employee, by mail or electronically, or shall provide at the employee's normal place of employment during employment hours for all shifts a wage statement showing, at a minimum, the identity of the employer, the hours for which the employee was paid, the wages earned by the employee, and deductions made for the employee. However, the employer need not provide information on hours worked for employees who are exempt from overtime under the federal Fair Labor Standards Act of 1938, under 29 C.F.R. part 541, unless the employer has established a policy or practice of paying to or on behalf of exempt employees overtime, or bonus or a payment based on hours worked, whereupon the employer shall send or otherwise provide a statement to the exempt employees showing the hours the employee worked or the payments made to the employee by the employer, as applicable.

(3) When an employer elects to pay wages with a payroll debit card, the employer shall comply with the compulsory-use requirements prescribed in 15 U.S.C. 1693k. Additionally, the employer shall allow an employee at least one means of fund access withdrawal per pay period, but not more frequently than once per week, at no cost to the employee for an amount up to and including the total amount of the employee's net wages, as stated on the employee's earnings statement. An employer shall not require an employee to pay any fees or costs incurred by the employer in connection with paying wages with a payroll debit card.

(4) Except as otherwise provided in section 48-1230.01:

(a) Whenever an employer, other than a political subdivision, separates an employee from the payroll, the unpaid wages shall become due on the next regular payday or within two weeks of the date of termination, whichever is sooner; and

(b) Whenever a political subdivision separates an employee from the payroll, the unpaid wages shall become due within two weeks of the next regularly scheduled meeting of the governing body of the political subdivision if such employee is separated from the payroll at least one week prior to such meeting, or if an employee of a political subdivision is separated from the payroll less than one week prior to the next regularly scheduled meeting of the governing body of the political subdivision, the unpaid wages shall be due within two weeks of the following regularly scheduled meeting of the governing body of the political subdivision.

Source:Laws 1977, LB 220A, § 3; Laws 1988, LB 1130, § 2; Laws 2007, LB255, § 3; Laws 2010, LB884, § 2; Laws 2014, LB560, § 4; Laws 2014, LB765, § 2.

Annotations

The Nebraska Wage Payment and Collection Act does not represent a very clear mandate of public policy which would warrant recognition of an exception to the employment-at-will doctrine. Malone v. American Bus. Info., 262 Neb. 733, 634 N.W.2d 788 (2001).

Application of the Wage Payment and Collection Act does not affect the need to satisfy the requisites of pursuing a claim against a city of the metropolitan class. Thompson v. City of Omaha, 235 Neb. 346, 455 N.W.2d 538 (1990).

48-1230.01. Employer; unpaid wages constituting commissions; duties.

Whenever an employer separates an employee from the payroll, the unpaid wages constituting commissions shall become due on the next regular payday following the employer's receipt of payment for the goods or services from the customer from which the commission was generated. The employer shall provide an employee with a periodic accounting of outstanding commissions until all commissions have been paid or the orders have been returned or canceled by the customer.

Source:Laws 2007, LB255, § 4.

48-1231. Employee; claim for wages or unlawful retaliation or discrimination; suit; judgment; costs and attorney's fees; failure to furnish wage statement; penalty.

(1) An employee having a claim for wages which are not paid within thirty days of the regular payday designated or agreed upon may institute suit for such unpaid wages in the proper court. If an employee establishes a claim and secures judgment on the claim, such employee shall be entitled to recover the full amount of the judgment and all costs of such suit, including reasonable attorney's fees. If the cause is taken to an appellate court and the employee recovers a judgment, the appellate court shall award reasonable attorney's fees to the employee. If the employee fails to recover a judgment in excess of the amount that may have been tendered within thirty days of the regular payday by an employer, such employee shall not recover the attorney's fees provided by this subsection. If the court finds that no reasonable dispute existed as to the fact that wages were owed or as to the amount of such wages, the court may order the employee to pay the employer's attorney's fees and costs of the action as assessed by the court.

(2) If an employee works for an employer that is not subject to the Nebraska Fair Employment Practice Act and such employee is aggrieved by a violation of section 48-1235, the employee may bring a suit against such employer in the proper court to recover the damages sustained by reason of such violation. If an employee prevails in a suit brought pursuant to this subsection, such employee shall be entitled to recover the full amount of the judgment and all costs of such suit, including reasonable attorney's fees. If the cause is taken to an appellate court and the employee recovers a judgment, the appellate court shall award reasonable attorney's fees to the employee.

(3) An employer who fails to furnish a wage statement under subsection (2) of section 48-1230 shall be guilty of an infraction as defined in section 29-431 and shall be subject to a fine pursuant to section 29-436.

(4) If an employee institutes suit against an employer under subsection (1) or (2) of this section, any citation that is issued against such employer under section 48-1234 and that relates directly to the facts in dispute shall be admitted into evidence unless specifically excluded by the court. If a citation has been contested as described in subsection (3) of section 48-1234, it shall not be admitted into evidence under this subsection until after such contest has been resolved.

Source:Laws 1977, LB 220A, § 4; Laws 1991, LB 311, § 2; Laws 2010, LB884, § 3; Laws 2014, LB560, § 5; Laws 2020, LB1016, § 4.

Cross References

Nebraska Fair Employment Practice Act, see section 48-1125.

Annotations

An employee was not entitled to relief under this section when the employer had never provided the employee with compensation and there was no provision in an employment agreement providing for compensation or a regular date of payment. Mays v. Midnite Dreams, 300 Neb. 485, 915 N.W.2d 71 (2018).

A court has discretion to award attorney fees higher than the statutory minimum required under this section, and an award of fees above the statutory minimum does not depend upon the presence of employer's unreasonable defenses or vexatious counterclaims. Fisher v. PayFlex Systems USA, 285 Neb. 808, 829 N.W.2d 703 (2013).

An appellate court reviews a lower court's award of attorney fees under this section for an abuse of discretion. Fisher v. PayFlex Systems USA, 285 Neb. 808, 829 N.W.2d 703 (2013).

A party has no viable claim to a wage that has not yet been received. Law Offices of Ronald J. Palagi v. Howard, 275 Neb. 334, 747 N.W.2d 1 (2008).

In a wage claim brought under section 15-841 against a city of the primary class, there is nothing in the plain language of this section that requires an employee to plead a specific cause of action for attorney fees or to file a separate proceeding for attorney fees in order to receive an award of attorney fees under the Nebraska Wage Payment and Collection Act. Rauscher v. City of Lincoln, 269 Neb. 267, 691 N.W.2d 844 (2005).

The Nebraska Wage Payment and Collection Act does not represent a very clear mandate of public policy which would warrant recognition of an exception to the employment-at-will doctrine. Malone v. American Bus. Info., 262 Neb. 733, 634 N.W.2d 788 (2001).

Employers will not be awarded attorney fees under the Nebraska Wage Payment and Collection Act if the employer has not tendered an amount to the employee within 30 days of the employee's regular payday. Brockley v. Lozier Corp., 241 Neb. 449, 488 N.W.2d 556 (1992).

Unpaid wages means wages which are not paid within 30 days of the regular payday designated or agreed upon. Polly v. Ray D. Hilderman & Co., 225 Neb. 662, 407 N.W.2d 751 (1987).

48-1232. Employee; claim; judgment; additional recovery from employer; when.

If an employee establishes a claim and secures judgment on such claim under subsection (1) of section 48-1231: (1) An amount equal to the judgment may be recovered from the employer; or (2) if the nonpayment of wages is found to be willful, an amount equal to two times the amount of unpaid wages shall be recovered from the employer. Any amount recovered pursuant to subdivision (1) or (2) of this section shall be remitted to the State Treasurer for distribution in accordance with Article VII, section 5, of the Constitution of Nebraska.

Source:Laws 1977, LB 220A, § 5; Laws 1989, LB 238, § 2; Laws 1990, LB 1178, § 1; Laws 2007, LB255, § 5; Laws 2010, LB884, § 4.

Annotations

It is in the court's discretion whether to order an employer to pay to the common schools fund an amount equal to the judgment. There was a reasonable dispute concerning whether payment for unused vacation leave was due to the employees. Roseland v. Strategic Staff Mgmt., 272 Neb. 434, 722 N.W.2d 499 (2006).

The amount of penalty ordered to be paid to a fund to be distributed to the common schools of the state is a matter left to the discretion of the trial court, subject to the limitations prescribed by statute. Kinney v. H.P. Smith Ford, 266 Neb. 591, 667 N.W.2d 529 (2003).

The Nebraska Wage Payment and Collection Act does not represent a very clear mandate of public policy which would warrant recognition of an exception to the employment-at-will doctrine. Malone v. American Bus. Info., 262 Neb. 733, 634 N.W.2d 788 (2001).

It is discretionary with the court whether to order the employer to pay to the common school fund an amount equal to the judgment. This section should not be invoked where there is a reasonable dispute as to the fact that wages are owed or as to the amount of the wages. Morris v. Rochester Midland Corp., 259 Neb. 870, 612 N.W.2d 921 (2000).

It is discretionary with the court whether to order the employer to pay to the common school fund an amount equal to the judgment. Suess v. Lee Sapp Leasing, 229 Neb. 755, 428 N.W.2d 899 (1988).

The award of an attorney fee of not less than twenty-five percent of the unpaid wages is mandatory under this act. Barbour v. Jenson Commercial Distributing Co., 212 Neb. 512, 323 N.W.2d 824 (1982).

48-1233. Commissioner of Labor; enforcement powers.

The Commissioner of Labor shall have the authority to subpoena records and witnesses related to the enforcement of the Nebraska Wage Payment and Collection Act. The commissioner or his or her agent may inspect all related records and gather testimony on any matter relative to the enforcement of the act when the information sought is relevant to a lawful investigative purpose and is reasonable in scope.

Source:Laws 2014, LB560, § 2.

48-1234. Commissioner of Labor; citation; notice of penalty; employer contest; hearing; unpaid citation, effect on government contracts.

(1) The Commissioner of Labor shall issue a citation to an employer when an investigation reveals that the employer may have violated the Nebraska Wage Payment and Collection Act, other than a violation of subsection (2) of section 48-1230.

(2) When a citation is issued, the commissioner shall notify the employer of the proposed administrative penalty, if any, by certified mail or any other manner of delivery by which the United States Postal Service can verify delivery or by any method of service recognized under Chapter 25, article 5. The administrative penalty shall be not more than five hundred dollars in the case of a first violation and not more than five thousand dollars in the case of a second or subsequent violation.

(3) The employer has fifteen working days after the date of the citation or penalty to contest such citation or penalty. Notice of contest shall be sent to the commissioner who shall provide a hearing in accordance with the Administrative Procedure Act.

(4) Any employer who has an unpaid citation for a violation of the Nebraska Wage Payment and Collection Act shall be barred from contracting with the state or any political subdivision until such citation is paid. If a citation has been contested as described in subsection (3) of this section, it shall not be considered an unpaid citation under this subsection until after such contest has been resolved.

(5) Citations issued under this section and the names of employers who have been issued a citation shall be made available to the public upon request, except that this subsection shall not apply to any citations that are being contested as described in subsection (3) of this section.

Source:Laws 2014, LB560, § 3; Laws 2019, LB359, § 7; Laws 2020, LB1016, § 5.

Cross References

Administrative Procedure Act, see section 84-920.

48-1235. Employer; retaliation or discrimination prohibited.

An employer shall not retaliate or discriminate against an employee because the employee:

(1) Files a suit or complaint under the Nebraska Wage Payment and Collection Act; or

(2) Testifies, assists, or participates in an investigation, proceeding, or action concerning a violation of the act.

Source:Laws 2020, LB1016, § 3.

48-1236. Department of Labor; post compliance and enforcement information.

No later than December 1 of each year, the Department of Labor shall post information on its website regarding compliance with and enforcement of the Nebraska Wage Payment and Collection Act and shall provide notice to the Legislature that the information was posted. The information shall include, but not be limited to, (1) the total number of reports of unpaid wages filed with the department in the prior calendar year, (2) the total number of reports investigated in the prior calendar year, (3) the results of all investigations completed in the prior calendar year, including, but not limited to, the number of cases in which wages were found to be owed to an employee, the number of cases in which the employer paid wages owed to the employee during the course of the investigation, and the number of cases in which it was found that no wages were owed to an employee, (4) the number of citations issued pursuant to section 48-1234 in the prior calendar year, (5) the total amount of wages owed to employees according to the citations issued in the prior calendar year, (6) the number of employers with more than two citations in the previous five years, and (7) the number and names of employers with at least one unpaid citation from the previous five years.

Source:Laws 2020, LB1016, § 6.

48-1301. Repealed. Laws 2009, LB 549, § 53.

48-1302. Repealed. Laws 2009, LB 549, § 53.

48-1303. Repealed. Laws 2009, LB 549, § 53.

48-1304. Repealed. Laws 2009, LB 549, § 53.

48-1305. Repealed. Laws 2009, LB 549, § 53.

48-1306. Repealed. Laws 2009, LB 549, § 53.

48-1307. Repealed. Laws 1981, LB 545, § 52.

48-1308. Repealed. Laws 1980, LB 663, § 2.

48-1309. Repealed. Laws 2009, LB 549, § 53.

48-1401. Political subdivisions; exception; deferred compensation plan; provisions; investment.

(1)(a) Any county, municipality, or other political subdivision, instrumentality, or agency of the State of Nebraska, except any agency subject to sections 84-1504 to 84-1506 or section 85-106, 85-320, or 85-606.01, may enter into an agreement to defer a portion of any individual's compensation derived from such county, municipality, or other political subdivision, instrumentality, or agency to a future period in time pursuant to section 457 of the Internal Revenue Code. Such plan of deferred compensation may provide for the deferral of an individual's compensation on either a pretax basis or an after-tax Roth contribution basis under a qualified Roth contribution program pursuant to section 402A of the Internal Revenue Code. Such deferred compensation plan shall be voluntary and shall be available to all regular employees and elected officials except as otherwise provided in this section.

(b) This section shall not authorize an entity excepted from this section pursuant to subdivision (1)(a) of this section to modify a plan of deferred compensation or establish a separate plan of deferred compensation. This section shall not require either the Public Employees Retirement Board or the Nebraska Public Employees Retirement Systems to modify a plan of deferred compensation established pursuant to sections 84-1504 to 84-1506 to allow for after-tax Roth contributions pursuant to a qualified Roth contributions program under section 402A of the Internal Revenue Code.

(2) All compensation to be deferred under this section may never exceed the total compensation to be received by the individual from the employer or exceed the limits established by the Internal Revenue Code for such a plan.

(3) All compensation deferred under the plan, all property and rights purchased with the deferred compensation, and all investment income attributable to the deferred compensation, property, or rights shall be held in trust for the exclusive benefit of participants and their beneficiaries by the county, municipality, or other political subdivision, instrumentality, or agency until such time as payments are made under the terms of the deferred compensation plan.

(4) The county, municipality, or other political subdivision, instrumentality, or agency shall designate its treasurer or an equivalent official, including the State Treasurer, to be the custodian of the funds and securities of the deferred compensation plan.

(5) The county, municipality, or other political subdivision, instrumentality, or agency may invest the compensation to be deferred under an agreement in or with: (a) Annuities; (b) mutual funds; (c) banks; (d) savings and loan associations; (e) trust companies qualified to act as fiduciaries in this state; (f) an organization established for the purpose of administering public employee deferred compensation retirement plans and authorized to do business in the State of Nebraska; or (g) investment advisers as defined in the federal Investment Advisers Act of 1940.

(6) The deferred compensation program authorized under this section shall exist and serve in addition to, and shall not be a part of, any existing retirement or pension system provided for state, county, municipal, or other political subdivision, instrumentality, or agency employees, or any other benefit program.

(7) Any compensation deferred under such a deferred compensation plan, including an individual's compensation deferred on either a pretax basis or an after-tax Roth contribution basis under a qualified Roth contribution program pursuant to section 402A of the Internal Revenue Code, shall continue to be included as regular compensation for the purpose of computing the retirement, pension, or social security contributions made or benefits earned by any employee.

(8)(a) Any sum so deferred on a pretax basis shall not be included in the computation of any federal or state taxes withheld on behalf of any such individual at the time of deferral.

(b) Any sum so deferred on an after-tax Roth contribution basis pursuant to a qualified Roth contribution program under section 402A of the Internal Revenue Code shall be included in the computation of any federal or state taxes withheld on behalf of any such individual at the time of deferral.

(9) The state, county, municipality, or other political subdivision, instrumentality, or agency shall not be responsible for any investment results entered into by the individual in the deferred compensation agreement.

(10) All compensation deferred under the plan, including compensation deferred on either a pretax basis or an after-tax Roth contribution basis under a qualified Roth contribution program pursuant to section 402A of the Internal Revenue Code, all property and rights purchased with the deferred compensation, and all investment income attributable to the deferred compensation, property, or rights shall not be subject to garnishment, attachment, levy, the operation of bankruptcy or insolvency laws, or any other process of law whatsoever and shall not be assignable.

(11) Nothing contained in this section shall in any way limit, restrict, alter, amend, invalidate, or nullify any deferred compensation plan previously instituted by any county, municipality, or other political subdivision, instrumentality, or agency of the State of Nebraska, and any such plan is hereby authorized and approved.

(12) If a county has not established a deferred compensation plan pursuant to this section, each individual may require that the county enter into an agreement with the individual to defer a portion of such individual's compensation and place it under the management and supervision of the state deferred compensation plan created pursuant to sections 84-1504 to 84-1506. If such an agreement is made, the county shall designate the State Treasurer as custodian of such deferred compensation funds and such deferred compensation funds shall become a part of the trust administered by the Public Employees Retirement Board or the Nebraska Public Employees Retirement Systems pursuant to sections 84-1504 to 84-1506. Nothing in this subsection shall require a plan of deferred compensation that is administered by the Public Employees Retirement Board or the Nebraska Public Employees Retirement Systems pursuant to sections 84-1504 to 84-1506 to provide for the ability of an individual to defer compensation on an after-tax Roth contribution basis pursuant to a qualified Roth contribution program under section 402A of the Internal Revenue Code.

(13) For purposes of this section, individual means (a) any person designated by the county, municipality, or other political subdivision, instrumentality, or agency of the State of Nebraska, except any agency subject to sections 84-1504 to 84-1506 or section 85-106, 85-320, or 85-606.01, as a permanent part-time or full-time employee of the county, municipality, or other political subdivision, instrumentality, or agency and (b) a person under contract providing services to the county, municipality, or other political subdivision, instrumentality, or agency of the State of Nebraska, except any agency subject to sections 84-1504 to 84-1506 or section 85-106, 85-320, or 85-606.01, and who has entered into a contract with such county, municipality, political subdivision, instrumentality, or agency to have compensation deferred prior to August 28, 1999.

Source:Laws 1977, LB 328, § 1; Laws 1997, LB 623, § 11; Laws 1999, LB 703, § 8; Laws 2012, LB916, § 18; Laws 2015, LB40, § 8; Laws 2021, LB209, § 1.

Cross References

Nebraska Public Employees Retirement Systems, see section 84-1503.

Public Employees Retirement Board, see sections 84-1501 to 84-1513.

48-1501. Sheltered workshop, defined.

As used in sections 48-1501 to 48-1506, unless the context otherwise requires, sheltered workshop shall mean a facility in Nebraska operated by a public agency or a private nonprofit corporation organized for the primary purpose of employment of and service to physically or mentally disabled clients in a program of rehabilitation. Such facility shall be certified as a sheltered workshop, a work activity center, or an equivalent by an independent accrediting agency and comply with the Fair Labor Standards Amendments of 1966, Public Law No. 89-601, 80 Stat. 830, as a sheltered workshop or a work activity center.

Source:Laws 1984, LB 540, § 1; Laws 1997, LB 238, § 5.

48-1502. Sheltered workshop; negotiate contracts; conditions.

To negotiate contracts pursuant to sections 48-1501 to 48-1506, a sheltered workshop shall:

(1) Employ a minimum of ten physically or mentally disabled clients;

(2) Provide disabled clients with a wage at a level consistent with their health, efficiency, and general well-being as required by Chapter 48, article 12;

(3) Provide a controlled work environment and a program designed to enable the disabled client enrolled in the program to progress toward normal living and develop, as far as possible, his or her capacity, performance, and relationship with other persons; and

(4) Provide a work experience sufficiently diverse to accommodate the needs of each disabled client enrolled in the program.

Source:Laws 1984, LB 540, § 2; Laws 1997, LB 238, § 6.

48-1503. Governmental subdivisions; direct negotiation for products and services; considerations; procedures; contract requirements.

Whenever the State of Nebraska, any department or any agency thereof, or any county, municipality, school district, township, or other governmental subdivision is required to advertise for bids pursuant to any statutes of the State of Nebraska, it may directly negotiate and contract for products and services with a sheltered workshop. Direct negotiation for products and services, notwithstanding the procedures for public lettings pursuant to sections 73-101 to 73-106, may be conducted if the department, agency, or subdivision gives consideration to the following elements:

(1) Whether the product or service contracted for is supplied by the sheltered workshop at a fair market price;

(2) Whether the product or service meets the specifications of the department, agency, or subdivision;

(3) The ability, capacity, and skill of the sheltered workshop to perform the contract required;

(4) The character, integrity, reputation, judgment, experience, and efficiency of the sheltered workshop;

(5) Whether the sheltered workshop can perform the contract within the time specified;

(6) The quality of performance of previous contracts;

(7) The previous and existing compliance by the sheltered workshop with laws relating to the contract;

(8) The life-cost of the product or service in relation to the purchase price and specific use of the item; and

(9) The performance of the product or service, taking into consideration any commonly accepted tests and standards of product usability and user requirements.

An agency, subdivision, or city under home rule charter shall furnish prior public notice of its intention to enter into such contract, the general nature of the proposed work, and the name of the person to be contacted for additional information by any sheltered workshop interested in contracting for such work.

Any contract negotiated pursuant to this section shall be in writing and shall be made available to the public by the purchasing party upon request. Such a contract shall include the purchase price, the quantity of product or service purchased, and the time period for which the product or service will be provided.

Source:Laws 1984, LB 540, § 3.

48-1504. Conduct prohibited.

No person shall engage in, aid, or abet any person in any conduct, fraudulent activity, or misrepresentation of the facts in violation of sections 48-1501 to 48-1503.

Source:Laws 1984, LB 540, § 4.

48-1505. Violations; penalty.

A person violating any provision of sections 48-1501 to 48-1504 shall be guilty of a Class IV misdemeanor. In the case of a continuing violation, each day shall constitute a separate offense.

Source:Laws 1984, LB 540, § 13.

48-1506. Home rule charter cities; direct negotiation for products and services.

Notwithstanding the provisions for public lettings required by a city home rule charter adopted pursuant to Article XI of the Constitution, the governing body of any such city may negotiate directly with a sheltered workshop pursuant to section 48-1503.

Source:Laws 1984, LB 540, § 5.

48-1601. Repealed. Laws 2001, LB 193, § 15.

48-1602. Repealed. Laws 2001, LB 193, § 15.

48-1603. Repealed. Laws 2001, LB 193, § 15.

48-1604. Repealed. Laws 2001, LB 193, § 15.

48-1605. Repealed. Laws 2001, LB 193, § 15.

48-1606. Repealed. Laws 2001, LB 193, § 15.

48-1607. Repealed. Laws 2001, LB 193, § 15.

48-1608. Repealed. Laws 2001, LB 193, § 15.

48-1609. Repealed. Laws 2001, LB 193, § 15.

48-1610. Repealed. Laws 2001, LB 193, § 15.

48-1611. Repealed. Laws 2001, LB 193, § 15.

48-1612. Repealed. Laws 2001, LB 193, § 15.

48-1613. Repealed. Laws 2001, LB 193, § 15.

48-1614. Repealed. Laws 2001, LB 193, § 15.

48-1615. Repealed. Laws 2001, LB 193, § 15.

48-1616. Repealed. Laws 2015, LB 334, § 3.

48-1617. Repealed. Laws 2015, LB 334, § 3.

48-1618. Repealed. Laws 2015, LB 334, § 3.

48-1619. Repealed. Laws 2015, LB 334, § 3.

48-1620. Repealed. Laws 2015, LB 334, § 3.

48-1621. Repealed. Laws 2015, LB 334, § 3.

48-1622. Repealed. Laws 2015, LB 334, § 3.

48-1623. Repealed. Laws 2015, LB 334, § 3.

48-1624. Repealed. Laws 2015, LB 334, § 3.

48-1625. Repealed. Laws 2015, LB 334, § 3.

48-1626. Repealed. Laws 2015, LB 334, § 3.

48-1627. Repealed. Laws 2015, LB 334, § 3.

48-1701. Act, how cited.

Sections 48-1701 to 48-1714 shall be known and may be cited as the Farm Labor Contractors Act.

Source:Laws 1987, LB 344, § 1.

48-1702. Terms, defined.

For purposes of the Farm Labor Contractors Act, unless the context otherwise requires:

(1) Department means the Department of Labor;

(2) Farm labor contractor means any individual, partnership, limited liability company, corporation, or cooperative association, other than an agricultural employer, an agricultural association, or an employee of an agricultural employer or agricultural association, who for any money or other valuable consideration paid or promised to be paid performs any farm labor contracting activity;

(3) Farm labor contracting activity means recruiting, soliciting, hiring, employing, furnishing, or transporting any migrant or seasonal agricultural worker;

(4) Non-English-speaking worker has the same meaning as non-English-speaking employee in section 48-2208; and

(5) Worker means a person who is employed or recruited by or who subcontracts with a farm labor contractor.

Source:Laws 1987, LB 344, § 2; Laws 1993, LB 121, § 301; Laws 2002, LB 931, § 1; Laws 2003, LB 418, § 9.

48-1703. Act; exclusions.

The following shall be excluded from the Farm Labor Contractors Act:

(1) Any individual who engages in a farm labor contracting activity on behalf of a farm, processing establishment, cannery, gin, packing shed, or nursery, which is owned and operated exclusively by such individual or a member of his or her immediate family, if such activities are performed only for such operation and exclusively by such individual or family member, but without regard to whether such individual has incorporated or otherwise organized for business purposes;

(2) Any common carrier which would be a farm labor contractor solely because it is engaged in transporting any migrant or seasonal agricultural worker. For purposes of this section, a common carrier is one which holds itself out to the general public to engage in transportation of passengers for hire, whether over regular or irregular routes, and which holds a valid certificate or authorization for such purposes from an appropriate local, state, or federal agency;

(3) Any labor organization as defined under applicable state law;

(4) Any nonprofit charitable organization or public or private nonprofit educational institution;

(5) Any custom combine, hay harvesting, sheep shearing, or custom poultry operations;

(6) Employees of exempt employers; and

(7) Any operation which has a workforce comprised of eighty percent or more individuals who are seventeen years of age or younger and which has obtained a certificate of exemption from the department. Any operator who meets the requirements of this subdivision shall be issued such certificate by the department. The department shall adopt and promulgate rules and regulations necessary to carry out this subdivision.

Source:Laws 1987, LB 344, § 3; Laws 1992, LB 452, § 1; Laws 2002, LB 931, § 2.

48-1704. Farm labor contractor; license; form; contents.

(1) Except as otherwise provided by the Farm Labor Contractors Act, no person shall act as a farm labor contractor and engage in farm labor contracting activity unless such person holds a valid license issued by the department.

(2) Farm labor contractor licenses may be issued by the department only as follows:

(a) To an individual operating as a sole proprietor under the person's own name or under an assumed business name registered with the state;

(b) To two or more individuals operating as a partnership under their own names or under an assumed business name registered with the state; and

(c) To a corporation, limited liability company, or cooperative association authorized to do business in Nebraska.

(3) An application for a license as a farm labor contractor shall be sworn to by the applicant and shall be written on a form prescribed by the department. The form shall include, but not be limited to, the following:

(a) The applicant's name and Nebraska address, all other temporary and permanent addresses the applicant uses or knows will be used in the future, and, if the applicant is an individual, the applicant's social security number;

(b) Information on all motor vehicles to be used by the applicant in operations as a farm labor contractor, including the license number and state of licensure, the vehicle number, and the name and address of the vehicle owner for all vehicles used for farm labor contracting activity;

(c) Whether or not the applicant was ever denied a license under the Farm Labor Contractors Act or in any other jurisdiction under a similar law or had such a license revoked or suspended; and

(d) The names and addresses of all persons financially interested, whether as partners, limited liability company members, shareholders, associates, or profit sharers in the applicant's proposed operations as a farm labor contractor, together with the amount of their respective interests, and whether or not, to the best of the applicant's knowledge, any of such persons was ever denied a license under the act or in any other jurisdiction or had such a license revoked or suspended.

Source:Laws 1987, LB 344, § 4; Laws 1993, LB 121, § 302; Laws 1994, LB 884, § 66; Laws 1997, LB 752, § 128.

48-1705. Applicant; proof of financial responsibility; payment of wage claims; procedure.

(1) Each applicant shall submit with the application and shall continually maintain proof of financial responsibility to ensure the prompt payment of wages of employees and other obligations that may arise under the Farm Labor Contractors Act. The proof shall be in the form of a corporate surety bond of a company licensed to do business in the State of Nebraska, a cash deposit, or a deposit the equivalent of cash. The department shall determine the amount of surety required, except that such amount shall not be less than five thousand dollars. In lieu of such surety, the farm labor contractor may establish a savings account at a financial institution in Nebraska in the name of the Commissioner of Labor as trustee for the employees of the farm labor contractor, and others as their interest may appear, and deliver the evidence of the account and the ability to withdraw funds to the department under terms approved by the department. No farm labor contractor license shall be issued to any applicant who has an unsatisfied final judgment of a court or decision of an administrative agency which would be covered by the bond or deposit required by the act against himself or herself. All corporate surety bonds filed under this section shall be executed to cover liability for a period of one year, during which the bond cannot be canceled or otherwise terminated.

(2) The surety company or the department shall make prompt and periodic payments on the farm labor contractor's liability to the extent of the total sum of the bond or deposit. Payments shall be made in the following manner:

(a) Payment shall be made based upon priority of wage claims over advances made by the grower or producer of agricultural commodities;

(b) Payment in full of all sums due to each person who presents adequate proof of a claim; and

(c) If there are insufficient funds to pay in full, the person next entitled to payment shall be paid in part.

(3) All claims against the bond or deposit shall be unenforceable unless request for payment of a judgment or other form of adequate proof of liability or a notice of the claim has been sent by certified mail to the surety or the department within six months from the end of the year for which the bond or deposit has been made.

(4) If the department has not received notice of the claim within six months after a farm labor contractor is no longer required to provide and maintain a surety bond or deposit, the department shall terminate and surrender any bond or any deposit under control of the department to the person who is entitled thereto upon receiving appropriate proof of such entitlement.

(5) The surety bond or deposit shall be payable to the Commissioner of Labor and shall be conditioned upon:

(a) Payment in full of all sums due on wage claims of employees; and

(b) Payment by the farm labor contractor of all sums due to the grower or producer of agricultural commodities for advances made to or on behalf of the farm labor contractor.

Source:Laws 1987, LB 344, § 5.

48-1706. Application fee.

Each application shall be accompanied by a fee. The Commissioner of Labor shall establish the amount of the fee, which shall not exceed seven hundred fifty dollars, by rule and regulation. The fee shall be established with due regard for the costs of administering the Farm Labor Contractors Act. All fees so collected shall be deposited in the Contractor and Professional Employer Organization Registration Cash Fund.

Source:Laws 1987, LB 344, § 6; Laws 2002, LB 931, § 3; Laws 2016, LB270, § 2.

48-1707. Repealed. Laws 2016, LB270, § 7.

48-1708. Department; adopt rules and regulations.

The department shall adopt and promulgate rules and regulations reasonably necessary for the administration and enforcement of the Farm Labor Contractors Act.

Source:Laws 1987, LB 344, § 8.

48-1709. Notice; posting.

Every farm labor contractor covered by the Farm Labor Contractors Act shall post conspicuously upon the premises where employees working under the contractor are employed, in both English and Spanish, a notice specifying the contractor's compliance with the act and the name and Nebraska address of the surety on the bond or a notice that a deposit in lieu of the bond has been made with the department together with the address of the department.

Source:Laws 1987, LB 344, § 9.

48-1710. Department; licensing duties; license; protest; term; renewal; fee.

(1) The department shall conduct an investigation of each applicant's character, competence, and reliability and any other matters relating to the applicant's operations as a farm labor contractor.

(2) The department shall issue a license within fifteen days of receipt of the application if the department determines that the applicant is of satisfactory character, competence, and reliability.

(3) Any person may protest the issuance of a license to any applicant at any time by filing with the department a written statement detailing such person's reasons for protesting.

(4) The licensing year shall run from April 1 to the following March 31 and each license shall expire on March 31 following the date of its issuance unless sooner revoked by the department.

(5) A license shall be renewed annually upon payment in advance of the required fee, except that the Commissioner of Labor may require any person seeking renewal to file a new application and may conduct a new investigation of the applicant's character, competence, and reliability and any other matters relating to the applicant's operations as a farm labor contractor.

(6) On its own initiative or upon receipt of a complaint or notice that a farm labor contractor is in violation of the Farm Labor Contractors Act, the department shall conduct an investigation of such contractor.

Source:Laws 1987, LB 344, § 10; Laws 2002, LB 931, § 4.

48-1711. Farm labor contractor; duties.

A farm labor contractor shall:

(1) Carry his or her farm labor contractor license at all times and exhibit such license upon request to any person with whom the contractor intends to deal in his or her capacity as a farm labor contractor;

(2) File immediately at the United States post office serving the farm labor contractor's address as noted on the license a correct change of address and notify the department each time an address change is made;

(3) Pay or distribute promptly when due to the individuals entitled all money or other things of value entrusted to the farm labor contractor by any person for that purpose;

(4) Comply with the terms and provisions of all legal and valid agreements or contracts entered into by the farm labor contractor;

(5) Comply with all state laws, rules, and regulations relevant to the activity as a farm labor contractor;

(6) Furnish to each worker at the time of hiring, recruiting, soliciting, or supplying such worker, whichever occurs first, a written statement in both English and Spanish which contains a description of:

(a) The method of computing the rate of compensation and the rate of compensation;

(b) The terms and conditions of any bonus offered and the manner of determining when the bonus is earned;

(c) The terms and conditions of any loan made to the worker;

(d) The conditions of any housing and health and day care to be provided;

(e) The terms and conditions of employment, including the approximate length of season or period of employment and the approximate starting and ending dates;

(f) The terms and conditions under which the worker is furnished clothing or equipment;

(g) The name and address of the owner of all operations where the worker will be working; and

(h) The worker's rights and remedies in plain and simple language in a form specified by the department;

(7) Furnish to the worker each time the worker receives a compensation payment from the farm labor contractor a written statement itemizing the total payment, the amount and purpose of each deduction therefrom, the hours worked, and, if the work is done on a piece basis, the number of pieces completed; and

(8) Provide a bilingual employee who shall be available at the worksite for each shift a non-English-speaking worker is employed if the farm labor contractor has a workforce of ten or more non-English-speaking workers who speak the same non-English language. The bilingual employee shall be conversant in the non-English language spoken by such workers.

Source:Laws 1987, LB 344, § 11; Laws 2002, LB 931, § 5.

48-1712. Farm labor contractor; applicant for license; prohibited acts.

A farm labor contractor or an applicant for a farm labor contractor license shall not:

(1) Make any misrepresentation, false statement, or willful concealment in the application for a license or in his or her dealing with workers;

(2) Solicit or induce or cause to be solicited or induced the violation of an existing contract of employment;

(3) Assist a person to act in violation of the Farm Labor Contractors Act; and

(4) By any force, intimidation, or threat, including threat of deportation, induce any worker employed or in a subcontracting relationship to the farm labor contractor to give up any part of the compensation to which the worker is entitled under the contract of employment or under federal or state wage laws.

Source:Laws 1987, LB 344, § 12.

48-1713. License; revocation, suspension, refuse renewal; when.

The department may revoke, suspend, or refuse to renew a farm labor contractor license upon the department's own motion or upon complaint by any individual if:

(1) The licensee or his or her agent has violated or failed to comply with any provision of the Farm Labor Contractors Act;

(2) The conditions under which the license was issued have changed or no longer exist; or

(3) The licensee's character, reliability, or competence makes him or her an unfit farm labor contractor.

Source:Laws 1987, LB 344, § 13.

48-1714. Violations; prohibited acts; penalty.

(1) Any person violating section 48-1711 or 48-1712 shall be guilty of a Class II misdemeanor.

(2) Any person who (a) intentionally defaces, alters, or changes a farm labor contractor license, (b) uses the license of another, (c) knowingly permits the use of another person's license, or (d) acts as a farm labor contractor without a license shall be guilty of a Class II misdemeanor.

Source:Laws 1987, LB 344, § 14.

48-1801. Transferred to section 81-5,190.

48-1802. Transferred to section 81-5,191.

48-1803. Transferred to section 81-5,192.

48-1804. Transferred to section 81-5,193.

48-1804.01. Transferred to section 81-5,194.

48-1805. Transferred to section 81-5,195.

48-1806. Transferred to section 81-5,196.

48-1807. Transferred to section 81-5,197.

48-1808. Transferred to section 81-5,198.

48-1809. Transferred to section 81-5,199.

48-1810. Repealed. Laws 2007, LB 265, § 38.

48-1811. Transferred to section 81-5,200.

48-1812. Transferred to section 81-5,201.

48-1813. Transferred to section 81-5,202.

48-1814. Transferred to section 81-5,203.

48-1815. Transferred to section 81-5,204.

48-1816. Transferred to section 81-5,205.

48-1817. Transferred to section 81-5,206.

48-1818. Transferred to section 81-5,207.

48-1819. Transferred to section 81-5,208.

48-1820. Repealed. Laws 2019, LB301, § 87.

48-1901. Legislative intent.

It is the intent of the Legislature through sections 48-1901 to 48-1910 to help in the treatment and elimination of drug and alcohol use and abuse in the workplace while protecting the employee's rights. Nothing in sections 48-1901 to 48-1910 shall be construed to require employers to conduct drug and alcohol testing of their employees nor shall sections 48-1901 to 48-1910 be determinative of the cases or circumstances under which such tests may be given.

Source:Laws 1988, LB 582, § 1.

48-1902. Terms, defined.

For purposes of sections 48-1901 to 48-1910, unless the context otherwise requires:

(1) Alcohol means any product of distillation of any fermented liquid, whether rectified or diluted, whatever may be the origin thereof, synthetic ethyl alcohol, the four varieties of liquor, alcohol, spirits, wine, and beer, as defined in sections 53-103.01, 53-103.03, 53-103.38, and 53-103.42, every liquid or solid, patented or not, containing alcohol, spirits, wine, or beer, and alcohol used in the manufacture of denatured alcohol, flavoring extracts, syrups, or medicinal, mechanical, scientific, culinary, and toilet preparations;

(2) Breath-testing device means intoxilyzer model 4011AS or other scientific testing equivalent as approved by and operated in accordance with the department rules and regulations;

(3) Breath-testing-device operator means a person who has obtained or been issued a permit pursuant to the department rules and regulations;

(4) Department means the Department of Health and Human Services;

(5) Department rules and regulations means the techniques and methods authorized pursuant to section 60-6,201;

(6) Drug means any substance, chemical, or compound as described, defined, or delineated in sections 28-405 and 28-419 or any metabolite or conjugated form thereof, except that any substance, chemical, or compound containing any product as defined in subdivision (1) of this section may also be defined as alcohol;

(7) Employee means any person who receives any remuneration, commission, bonus, or other form of wages in return for such person's actions which directly or indirectly benefit an employer; and

(8) Employer means the State of Nebraska and its political subdivisions, all other governmental entities, or any individual, association, corporation, or other organization doing business in the State of Nebraska unless it, he, or she employs a total of less than six full-time and part-time employees at any one time.

Source:Laws 1988, LB 582, § 2; Laws 1993, LB 370, § 44; Laws 1994, LB 859, § 1; Laws 1996, LB 1044, § 276; Laws 2007, LB296, § 218; Laws 2010, LB861, § 6.

48-1903. Test results; use; requirements.

Any results of any test performed on the body fluid or breath specimen of an employee, as directed by the employer, to determine the presence of drugs or alcohol shall not be used to deny any continued employment or in any disciplinary or administrative action unless the following requirements are met:

(1) A positive finding of drugs by preliminary screening procedures has been subsequently confirmed by gas chromatography-mass spectrometry or other scientific testing technique which has been or may be approved by the department; and

(2) A positive finding of alcohol by preliminary screening procedures is subsequently confirmed by either:

(a) Gas chromatography with a flame ionization detector or other scientific testing technique which has been or may be approved by the department; or

(b) A breath-testing device operated by a breath-testing-device operator. Nothing in this subdivision shall be construed to preclude an employee from immediately requesting further confirmation of any breath-testing results by a blood sample if the employee voluntarily submits to give a blood sample taken by qualified medical personnel in accordance with the rules and regulations adopted and promulgated by the department. If the confirmatory blood test results do not confirm a violation of the employer's work rules, any disciplinary or administrative action shall be rescinded.

Except for a confirmatory breath test as provided in subdivision (2)(b) of this section, all confirmatory tests shall be performed by a clinic, hospital, or laboratory which is certified pursuant to the federal Clinical Laboratories Improvement Act of 1967, 42 U.S.C. 263a.

Source:Laws 1988, LB 582, § 3; Laws 2000, LB 1115, § 5.

48-1904. Specimens; preservation.

Except for breath test specimens as provided in subdivision (2)(b) of section 48-1903, all specimens which result in a finding of drugs or alcohol shall be refrigerated and preserved in a sufficient quantity for retesting for a period of at least one hundred eighty days.

Source:Laws 1988, LB 582, § 4.

48-1905. Specimens; chain of custody.

Except for breath test specimens as provided in subdivision (2)(b) of section 48-1903, a written record of the chain of custody of the specimen shall be maintained from the time of the collection of the specimen until the specimen is no longer required.

Source:Laws 1988, LB 582, § 5.

48-1906. Test results; release or disclosure; when.

The employer or its, his, or her agents shall not release or disclose the test results to the public, except that such results shall be released as required by law or to the employee upon request. Test results may be released to those officers, agents, or employees of the employer who need to know the information for reasons connected with their employment.

Source:Laws 1988, LB 582, § 6.

48-1907. Sections, how construed.

Nothing in sections 48-1901 to 48-1906 shall be construed to establish any rule, right, or duty not expressly provided for in such sections.

Source:Laws 1988, LB 582, § 7.

48-1908. Body fluids; prohibited acts; penalty.

(1) It shall be unlawful to provide, acquire, or use body fluids for the purpose of altering the results of any test to determine the presence of drugs or alcohol.

(2) Any employee who violates subsection (1) of this section may be subjected to the same discipline as if the employee had refused the directive of the employer to provide a body fluid or breath sample.

(3) Any person, including an employee, who violates subsection (1) of this section shall be guilty of a Class I misdemeanor.

Source:Laws 1988, LB 582, § 8.

48-1909. Body fluids; tampering; penalty.

(1) No person shall tamper with or aid or assist another in tampering with body fluids at any time during or after the collection or analysis of such fluids for the purpose of altering the results of any test to determine the presence of drugs or alcohol.

(2) Any employee who violates subsection (1) of this section may be subjected to the same discipline as if the employee had refused the directive of the employer to provide a body fluid or breath sample.

(3) Any person, including an employee, who violates subsection (1) of this section shall be guilty of a Class I misdemeanor.

Source:Laws 1988, LB 582, § 9.

48-1910. Refusal to submit to test; effect.

Any employee who refuses the lawful directive of an employer to provide a body fluid or breath sample as provided in section 48-1903 may be subject to disciplinary or administrative action by the employer, including denial of continued employment.

Source:Laws 1988, LB 582, § 10.

48-2001. Employee trusts or plans; duration; restraints inapplicable.

Any trust or plan heretofore or hereafter created for the purposes and of the type enumerated in section 48-2002, whether in real or personal property or in both real and personal property, may continue in perpetuity or for such time as may be necessary to accomplish the purposes of the trust or plan. Such trust or plan shall not be invalid as violating any statute or rule of law against perpetuities, against accumulations of earnings, concerning the suspension of the power of alienation of the title to property, or otherwise limiting the duration of trusts or agreements.

Source:Laws 1957, c. 77, § 1, p. 313; R.S.1943, (1989), § 24-619; Laws 1990, LB 823, § 1.

48-2002. Employee trusts or plans; kinds; trustee; requirements.

(1) Trusts or plans which are entitled to the exemption from limitation as to their duration provided for in section 48-2001 shall be:

(a) Created by an employer or employers primarily for the benefit of some or all of the employees of such employer or employers, or the families or appointees of such employees, under any pension, profit-sharing, stock bonus, retirement, disability, death benefit, or other similar type of employee benefit plan;

(b) Contributed to by the employer or employees or both; and

(c) Existing for the purpose of distributing the earnings or principal, or earnings and principal, of the trust to or for the benefit of some or all of such employees, either before or after their employment ceases, or their families or appointees.

(2) In addition, in the case of such trusts hereafter created by public corporations, municipal corporations, or political subdivisions of this state, the trustee shall be qualified to act as a trustee and licensed to do business in Nebraska, the management of the affairs of the trust shall be carried on in this state, and the trust agreement shall contain provisions for termination of the trust and for substitution of trustees, by unilateral action of the public corporation, municipal corporation, or political subdivision which created the trust. If a qualified trust corporation licensed to do business in Nebraska with capital of not less than five hundred thousand dollars applies to the employer for appointment as successor trustee on a basis of cost for administering the trust, not in excess of the basis of cost then existing, no public corporation, municipal corporation, or political subdivision of this state shall incur any additional obligation, under existing agreements as to such trusts, which does not comply with this subsection. Any trust created which violates this subsection shall be void.

Source:Laws 1957, c. 77, § 2, p. 313; Laws 1976, LB 655, § 1; R.S.1943, (1989), § 24-620; Laws 1990, LB 823, § 2.

48-2101. Act, how cited.

Sections 48-2101 to 48-2117 shall be known and may be cited as the Contractor Registration Act.

Source:Laws 1994, LB 248, § 1; Laws 2009, LB162, § 1.

48-2102. Legislative intent.

It is the intent of the Legislature that all contractors doing business in Nebraska be registered with the department. It is not the intent of the Legislature to endorse the quality or performance of services provided by any individual contractor.

Source:Laws 1994, LB 248, § 2; Laws 2008, LB204, § 1.

48-2103. Terms, defined.

For purposes of the Contractor Registration Act:

(1) Commissioner means the Commissioner of Labor;

(2) Construction means work on real property and annexations, including new work, additions, alterations, reconstruction, installations, and repairs performed at one or more different sites which may be dispersed geographically;

(3) Contractor means an individual, firm, partnership, limited liability company, corporation, or other association of persons engaged in the business of the construction, alteration, repairing, dismantling, or demolition of buildings, roads, bridges, viaducts, sewers, water and gas mains, streets, disposal plants, water filters, tanks and towers, airports, dams, levees and canals, water wells, pipelines, transmission and power lines, and every other type of structure, project, development, or improvement within the definition of real property and personal property, including such construction, repairing, or alteration of such property to be held either for sale or rental. Contractor also includes any subcontractor engaged in the business of such activities and any person who is providing or arranging for labor for such activities, either as an employee or as an independent contractor, for any contractor or person;

(4) Department means the Department of Labor; and

(5) Working days means Mondays through Fridays but does not include Saturdays, Sundays, or federal or state holidays. In computing fifteen working days, the day of receipt of any notice is not included and the last day of the fifteen working days is included.

Source:Laws 1994, LB 248, § 3; Laws 2008, LB204, § 2; Laws 2009, LB162, § 2; Laws 2023, LB191, § 15.
Operative Date: September 2, 2023

48-2104. Registration required.

(1) Before performing any construction work in Nebraska, a contractor shall be registered with the department. If a contractor does business under more than one name, the contractor shall obtain a registration number for each name under which the contractor is doing business. Any person who performs work or has work performed on his or her own property or any person who earns less than five thousand dollars annually for construction services is not a contractor for purposes of the Contractor Registration Act.

(2) An exemption from the requirements under subsection (1) of this section does not exempt a contractor from withholding requirements under the Nebraska Revenue Act of 1967.

Source:Laws 1994, LB 248, § 4; Laws 2008, LB204, § 3; Laws 2009, LB162, § 3.

Cross References

Nebraska Revenue Act of 1967, see section 77-2701.

48-2105. Registration; application; contents; renewal.

Each contractor shall apply to the department for a registration number on an application form provided by the department. The application shall contain the following information:

(1) The name and federal employer identification number or, if the applicant is an individual, the social security number of the contractor;

(2) The principal place of business of the contractor in Nebraska. If the contractor's principal place of business is outside Nebraska, the application shall state the address of the contractor's principal place of business and the name and address of the contractor's registered agent in Nebraska;

(3) The telephone number of the contractor in the State of Nebraska. If the contractor's principal place of business is outside Nebraska, the application shall state the telephone number of the contractor's principal place of business and the telephone number of the contractor's registered agent in Nebraska;

(4) The type of business entity of the contractor such as corporation, partnership, limited liability company, sole proprietorship, or trust;

(5) The contractor option election to collect and remit sales and use tax on purchases of building materials and fixtures annexed to real property;

(6) The following information about the business entity:

(a) If the contractor is a corporation, the name, address, telephone number, and position of each officer of the corporation; and

(b) If the contractor is other than a corporation, the name, address, and telephone number of each owner;

(7) Proof of (a) a certificate or policy of insurance written by an insurance carrier duly authorized to do business in this state which gives the effective dates of workers' compensation insurance coverage indicating that it is in force, (b) a certificate evidencing approval of self-insurance privileges as provided by the Nebraska Workers' Compensation Court pursuant to section 48-145, or (c) a signed statement indicating that the contractor is not required to carry workers' compensation insurance pursuant to the Nebraska Workers' Compensation Act; and

(8) A description of the business which includes the employer's standard industrial classification code or the principal products and services provided.

Each application shall be renewed annually upon payment of the fee prescribed in section 48-2107.

Source:Laws 1994, LB 248, § 5; Laws 1997, LB 752, § 129; Laws 2009, LB162, § 4.

Cross References

Nebraska Workers' Compensation Act, see section 48-1,110.

48-2106. Application; report of change; amendments.

(1) A contractor shall report to the commissioner any change in the information originally reported on or with the application under section 48-2105 within fifteen days of the change, except that the contractor shall notify the commissioner of changes in workers' compensation insurance coverage at least ten days prior to any change in coverage.

(2) After the time specified in subsection (1) of this section, the commissioner, with good cause shown, may determine that amendments may be made to correct an application.

(3) Amendments to applications shall not be permitted when a change occurs in the business classification such as a change from a sole proprietorship to a corporation.

Source:Laws 1994, LB 248, § 6.

48-2107. Fees; exemption.

(1) Each application or renewal under section 48-2105 shall be signed by the applicant and accompanied by a fee not to exceed forty dollars. The commissioner may adopt and promulgate rules and regulations to establish the criteria for acceptability of filing documents and making payments electronically. The criteria may include requirements for electronic signatures. The commissioner may refuse to accept any electronic filings or payments that do not meet the criteria established. The fee shall not be required when an amendment to an application is submitted. The commissioner shall remit the fees collected under this subsection to the State Treasurer for credit to the Contractor and Professional Employer Organization Registration Cash Fund.

(2) A contractor shall not be required to pay the fee under subsection (1) of this section if (a) the contractor is self-employed and does not pay more than three thousand dollars annually to employ other persons in the business and the application contains a statement made under oath or equivalent affirmation setting forth such information or (b) the contractor only engages in the construction of water wells or installation of septic systems. At any time that a contractor no longer qualifies for exemption from the fee, the fee shall be paid to the department. Any false statement made under subdivision (2)(a) of this section shall be a violation of section 28-915.01.

Source:Laws 1994, LB 248, § 7; Laws 2008, LB204, § 4; Laws 2009, LB162, § 5; Laws 2016, LB270, § 3; Laws 2020, LB1016, § 7; Laws 2023, LB191, § 16.
Operative Date: September 2, 2023

48-2108. Registration number.

Within thirty days of receipt of a completed application, the commissioner shall issue to the contractor a registration number. The registration number shall be a five-digit number followed by a two-digit number indicating the year of issuance.

Source:Laws 1994, LB 248, § 8.

48-2109. Cancellation of workers' compensation insurance policy; notice required.

Any insurance company carrying a contractor's workers' compensation insurance policy shall notify the department in case of cancellation by either the insurance company or the contractor of such policy. The notice shall contain (1) the name of the insurance carrier, (2) the name of the insured contractor, and (3) the date the cancellation is effective. Contractors who are approved by the Nebraska Workers' Compensation Court for self-insurance shall notify the department at least ten days prior to the termination of such self-insurance.

Source:Laws 1994, LB 248, § 9.

48-2110. Failure to maintain workers' compensation insurance; notice of revocation.

The commissioner shall issue a notice of revocation of registration to a contractor when an investigation reveals that the contractor no longer meets the conditions of registration set out in section 48-2105 by failure to maintain compliance with the laws of this state relating to workers' compensation insurance coverage. If the commissioner receives a notice of cancellation of workers' compensation insurance coverage, the commissioner shall revoke the registration as of the time of cancellation unless the contractor provides a new certification of insurance prior to the cancellation date.

Source:Laws 1994, LB 248, § 14.

48-2111. Notice of revocation; service; hearing.

The commissioner shall serve notice of revocation on the contractor by mailing such notice by certified mail or any other manner of delivery by which the United States Postal Service can verify delivery to the address of the contractor or the contractor's registered agent listed in the application. Upon a showing of compliance with the application requirements set out in section 48-2105, the commissioner may temporarily reinstate the registration pending a hearing on the revocation. A registration revoked under this section shall not be permanently reinstated. To receive a new registration number, the contractor shall reapply to the commissioner.

Source:Laws 1994, LB 248, § 15; Laws 2001, LB 180, § 7.

48-2112. Investigatory powers.

(1) The commissioner may make investigations he or she finds necessary or appropriate to determine if there is compliance with the Contractor Registration Act. Investigations shall take place at the times and places as the commissioner directs. For purposes of any investigation under this section, the commissioner may interview persons at the worksite, take photographs, and utilize other reasonable investigatory techniques. The conduct of the investigation shall be such as to preclude unreasonable disruption of the operations of the worksite. Investigations may be conducted, without prior notice, by correspondence, telephone conversations, or review of materials submitted to the department.

(2) For purposes of any investigation or proceeding under this section, the commissioner or any officer designated by him or her may administer oaths and affirmations, subpoena witnesses, compel their attendance, take evidence, and require the production of any books, papers, correspondence, memoranda, agreements, or other documents or records which the commissioner deems relevant or material to the inquiry.

(3) In case of contumacy by or refusal to obey a subpoena issued to any person, any court of competent jurisdiction, upon application by the commissioner, may issue to such person an order requiring him or her to appear before the commissioner or the officer designated by the commissioner and produce documentary evidence if so ordered or give evidence touching the matter under investigation or in question. Any failure to obey the order of the court may be punished by the court as a contempt.

Source:Laws 1994, LB 248, § 10.

48-2113. Complaints.

Written complaints regarding the registration of a contractor made to the commissioner in which the complainant provides his or her name and address shall receive a written response as to the results of the investigation. A complainant's name and other identifying information shall not be released if the complaint was included as a part of another complaint when the complainant's identity would be protected under other statutes or rules and regulations.

Source:Laws 1994, LB 248, § 11.

48-2114. Violation; citation; penalty; legal representation.

(1) The commissioner shall issue a citation to a contractor when an investigation reveals that the contractor has violated:

(a) The requirement that the contractor be registered; or

(b) The requirement that the contractor's registration information be substantially complete and accurate.

(2) When a citation is issued, the commissioner shall notify the contractor of the proposed administrative penalty, if any, by certified mail or any other manner of delivery by which the United States Postal Service can verify delivery. The administrative penalty shall be not more than five hundred dollars in the case of a first violation and not more than five thousand dollars in the case of a second or subsequent violation.

(3) The contractor shall have fifteen working days from the date of the citation or penalty to contest such citation or penalty. Notice of contest shall be sent to the commissioner who shall provide a hearing pursuant to the Administrative Procedure Act.

(4) If the contractor has never been registered under the Contractor Registration Act, the contractor shall have sixty working days from the date of the citation to register. No administrative penalty shall be assessed if the contractor registers within such sixty-day period. This subsection shall remain in effect until March 1, 2009.

(5) In any civil action to enforce the Contractor Registration Act, the commissioner and the state may be represented by any qualified attorney who is employed by the commissioner and is designated by him or her for this purpose or at the commissioner's request by the Attorney General.

Source:Laws 1994, LB 248, § 12; Laws 2001, LB 180, § 8; Laws 2008, LB204, § 5.

Cross References

Administrative Procedure Act, see section 84-920.

48-2115. Repealed. Laws 2016, LB270, § 7.

48-2116. Applicability of act.

The Contractor Registration Act shall not apply to the state or any political subdivision thereof.

Source:Laws 1994, LB 248, § 16.

48-2117. Database of contractors; contents; removal.

(1) The Department of Labor, in conjunction with the Department of Revenue, shall create a database of contractors who are registered under the Contractor Registration Act and the Nebraska Revenue Act of 1967.

(2) The database shall be accessible on the website of the Department of Labor.

(3) The database shall include, but not be limited to, the following information with respect to each registered contractor:

(a) Whether the contractor carries workers' compensation insurance in accordance with the Nebraska Workers' Compensation Act;

(b) Whether the contractor is self-insured in accordance with the Nebraska Workers' Compensation Act; or

(c) Whether the contractor is a sole proprietor with no employees and does not carry workers' compensation insurance pursuant to the Nebraska Workers' Compensation Act.

(4) The information described in subdivision (3)(c) of this section, as it is listed in the database, creates a presumption of no coverage that may be rebutted by an insurer acknowledging coverage for a claimed covered event.

(5) The information required under subsection (3) of this section and the presumption provided in subsection (4) of this section are solely for the purpose of establishing premiums for workers' compensation insurance and shall not affect liability under the Nebraska Workers' Compensation Act or compliance efforts pursuant to section 48-145.01.

(6) Any contractor that fails to comply with the requirements of the Contractor Registration Act or Nebraska Revenue Act of 1967 shall be removed from the database.

Source:Laws 2009, LB162, § 6; Laws 2019, LB139, § 1.

Cross References

Nebraska Revenue Act of 1967, see section 77-2701.

Nebraska Workers' Compensation Act, see section 48-1,110.

48-2201. Transferred to section 48-2208.

48-2202. Transferred to section 48-2209.

48-2203. Transferred to section 48-2210.

48-2204. Transferred to section 48-2214.

48-2205. Transferred to section 48-2211.

48-2206. Transferred to section 48-2212.

48-2207. Act, how cited.

Sections 48-2207 to 48-2214 shall be known and may be cited as the Non-English-Speaking Workers Protection Act.

Source:Laws 2003, LB 418, § 1.

48-2208. Terms, defined.

For purposes of the Non-English-Speaking Workers Protection Act, unless the context otherwise requires:

(1) Actively recruit means any affirmative act, as defined by the department, done by or on behalf of an employer for the purpose of recruitment or hiring of non-English-speaking employees who reside more than five hundred miles from the place of employment;

(2) Commissioner means the Commissioner of Labor;

(3) Coordinator means the meatpacking industry worker rights coordinator appointed pursuant to section 48-2213;

(4) Department means the Department of Labor;

(5) Employ means to permit to work;

(6) Employee means any individual employed by any employer but does not include:

(a) Any individual employed in agriculture; or

(b) Any individual employed as a child care provider in or for a private home;

(7) Employer means any individual, partnership, limited liability company, association, corporation, business trust, legal representative, or organized group of persons employing one hundred or more employees at any one time, except for seasonal employment of not more than twenty weeks in any calendar year, or person acting directly or indirectly in the interest of an employer in relation to an employee but does not include the United States, the state, or any political subdivision thereof;

(8) Meatpacking operation means a business in which slaughtering, butchering, meat canning, meatpacking, meat manufacturing, poultry canning, poultry packing, poultry manufacturing, pet food manufacturing, processing of meatpacking products, or rendering is carried on;

(9) Meatpacking products includes livestock products and poultry products as such terms are defined in section 54-1902; and

(10) Non-English-speaking employee means an employee who does not speak, read, or understand English to the degree necessary for comprehension of the terms, conditions, and daily responsibilities of employment.

Source:Laws 1995, LB 20, § 1; R.S.1943, (1998), § 48-2201; Laws 2003, LB 418, § 2.

48-2209. Recruitment of non-English-speaking persons; employer; duties.

If an employer or a representative of an employer actively recruits any non-English-speaking persons for employment in this state and if more than ten percent of the employees of an employer are non-English-speaking employees and speak the same non-English language, the employer shall provide a bilingual employee who is conversant in the identified non-English language and available at the worksite for each shift during which a non-English-speaking employee is employed to (1) explain and respond to questions regarding the terms, conditions, and daily responsibilities of employment and (2) serve as a referral agent to community services for the non-English-speaking employees.

Source:Laws 1995, LB 20, § 2; R.S.1943, (1998), § 48-2202; Laws 2003, LB 418, § 3.

48-2210. Written statement required; when; contents; employer provide transportation; when.

(1) An employer or a representative of an employer who actively recruits any non-English-speaking persons for employment in this state and whose work force is more than ten percent non-English-speaking employees who speak the same non-English language shall file with the commissioner a written statement signed by the employer and each such employee which provides relevant information regarding the position of employment, including:

(a) The minimum number of hours the employee can expect to work on a weekly basis;

(b) The hourly wages of the position of employment including the starting hourly wage;

(c) A description of the responsibilities and tasks of the position of employment;

(d) A description of the transportation and housing to be provided, if any, including any costs to be charged for housing or transportation, the length of time such housing is to be provided, and whether or not such housing is in compliance with all applicable state and local housing standards; and

(e) Any occupational physical demands and hazards of the position of employment which are known to the employer.

The statement shall be written in English and in the identified language of the non-English-speaking employee, and the employer or the representative shall explain in detail the contents of the statement prior to obtaining the employee's signature. A copy of the statement shall be given to the employee.

It is a violation of this subsection if an employer or representative knowingly and willfully provides false or misleading information on the statement or regarding the contents of the statement.

(2) An employer shall provide transportation for a recruited employee, at no cost to the employee, to the location from which the employee was recruited if the employee:

(a) Resigns from employment within four weeks after the initial date of employment; and

(b) Requests transportation within not more than three days after the employee's last day of employment with the employer which recruited the employee.

Source:Laws 1995, LB 20, § 3; R.S.1943, (1998), § 48-2203; Laws 2003, LB 418, § 4.

48-2211. Violations; penalty.

Any employer who violates section 48-2209 or 48-2210 or the rules and regulations adopted and promulgated pursuant thereto is guilty of a Class IV misdemeanor.

Source:Laws 1995, LB 20, § 5; R.S.1943, (1998), § 48-2205; Laws 2003, LB 418, § 5.

48-2212. Civil action; injunctive relief; authorized.

Any person aggrieved as a result of a violation of section 48-2209 or 48-2210 or the rules and regulations adopted and promulgated pursuant thereto may file suit in any district court of this state. If the court finds that the respondent has intentionally violated section 48-2209 or 48-2210 or the rules and regulations adopted and promulgated pursuant thereto, the court may award damages up to and including an amount equal to the original damages and provide injunctive relief.

Source:Laws 1995, LB 20, § 6; R.S.1943, (1998), § 48-2206; Laws 2003, LB 418, § 6.

48-2213. Meatpacking industry worker rights coordinator; established; powers and duties.

(1) The position of meatpacking industry worker rights coordinator is established within the department. The coordinator shall be appointed by the commissioner.

(2) The duties of the coordinator shall be to inspect and review the practices and procedures of meatpacking operations in the State of Nebraska as they relate to the provisions of the Governor's Nebraska Meatpacking Industry Workers Bill of Rights, which rights are outlined as follows:

(a) The right to organize;

(b) The right to a safe workplace;

(c) The right to adequate facilities and the opportunity to use them;

(d) The right to complete information;

(e) The right to understand the information provided;

(f) The right to existing state and federal benefits and rights;

(g) The right to be free from discrimination;

(h) The right to continuing training, including training of supervisors;

(i) The right to compensation for work performed; and

(j) The right to seek state help.

(3) The coordinator and his or her designated representatives shall have access to all meatpacking operations in the State of Nebraska at any time meatpacking products are being processed and industry workers are on the job.

(4) Necessary office space, furniture, equipment, and supplies as well as necessary assistance for the coordinator shall be provided by the commissioner.

(5) Preference shall be given to applicants for the coordinator position who are fluent in the Spanish language.

(6) The coordinator shall, on or before December 1 of each year, submit a report to the members of the Legislature and the Governor regarding any recommended actions the coordinator deems necessary or appropriate to provide for the fair treatment of workers in the meatpacking industry. The report submitted to the members of the Legislature shall be submitted electronically.

Source:Laws 2000, LB 1363, § 4; R.S.Supp.,2002, § 81-404; Laws 2003, LB 418, § 7; Laws 2012, LB782, § 65; Laws 2019, LB359, § 8.

48-2214. Rules and regulations; commissioner; powers.

The commissioner shall adopt and promulgate rules and regulations necessary to carry out the Non-English-Speaking Workers Protection Act. The commissioner or a representative of the commissioner, including the coordinator, may:

(1) Inspect employment records of an employer relating to the total number of employees, the total number of non-English-speaking employees, and the services provided to non-English-speaking employees; and

(2) Interview an employer, any representative, any agent, or an employee of the employer during working hours or at other reasonable times.

Source:Laws 1995, LB 20, § 4; R.S.1943, (1998), § 48-2204; Laws 2003, LB 418, § 8.

48-2301. Act, how cited.

Sections 48-2301 to 48-2308 shall be known and may be cited as the New Hire Reporting Act.

Source:Laws 1997, LB 752, § 40.

48-2302. Terms, defined.

For purposes of the New Hire Reporting Act:

(1) Date of hire means the day an employee begins employment with an employer;

(2) Department means the Department of Health and Human Services;

(3) Employee means an independent contractor or a person who is compensated by or receives income from an employer or other payor, regardless of how such income is denominated;

(4) Employer means any individual, partnership, limited liability company, firm, corporation, association, political subdivision, or department or agency of the state or federal government, labor organization, or any other entity with an employee;

(5) Income means compensation paid, payable, due, or to be due for labor or personal services, whether denominated as wages, salary, earnings, income, commission, bonus, or otherwise;

(6) Payor includes a person, partnership, limited partnership, limited liability partnership, limited liability company, corporation, or other entity doing business or authorized to do business in the State of Nebraska, including a financial institution, or a department or an agency of state, county, or city government; and

(7) Rehire means the first day an employee begins employment with the employer following a termination of employment with such employer. Termination of employment does not include temporary separations from employment, such as an unpaid medical leave, an unpaid leave of absence, a temporary layoff of less than sixty days in length, or an absence for disability or maternity.

Source:Laws 1997, LB 752, § 41; Laws 2009, LB288, § 16; Laws 2012, LB1058, § 12.

48-2303. Employers; report to Department of Health and Human Services; when.

(1) Beginning October 1, 1997, employers who hire or rehire any employee, for any amount of income or compensation, shall report to the department within the time period specified in subsection (2) of this section the name, address, and social security number of that employee, the date of hire or rehire, and the name, address, and federal tax identification number of the employer. Employers shall transmit the required information to the department by forwarding a copy of the employee's federal W-4 with the date of hire or rehire inscribed upon it or any form approved in advance by the department. Employers may transmit the required information by first-class mail, fax, magnetic tape, disc, or electronic or any other means approved by the department.

(2) Employers shall report the hire or rehire of employees (a) within twenty days after the date of hire or rehire or (b) if reports are transmitted magnetically or electronically, by two monthly transmissions, if necessary, which are not less than twelve days or more than sixteen days apart.

Source:Laws 1997, LB 752, § 42; Laws 2004, LB 950, § 1.

48-2304. Employer; immunity.

An employer shall not be liable under any state law to any individual for disclosure of information or any other action taken in good faith compliance with the New Hire Reporting Act.

Source:Laws 1997, LB 752, § 43.

48-2305. Multistate employer; transmission of reports.

An employer that has employees who are employed in two or more states and that transmits reports magnetically or electronically may comply with the New Hire Reporting Act by designating one of such states in which the employer has employees as the state to which the employer will transmit the report described in section 48-2303. Any Nebraska employer that transmits reports pursuant to this section shall notify the department in writing of the state which such employer designates for the purpose of transmitting reports.

Source:Laws 1997, LB 752, § 44; Laws 2007, LB296, § 219.

48-2306. Employer; fine.

On and after October 1, 1998, the department may levy a fine not to exceed twenty-five dollars for each employee not reported by the employer to the department. The department shall determine whether or not to levy a fine based upon the good faith efforts of an employer to comply with the New Hire Reporting Act. The department shall remit fines collected under this section to the State Treasurer for distribution in accordance with Article VII, section 5, of the Constitution of Nebraska.

Source:Laws 1997, LB 752, § 45; Laws 2007, LB296, § 220.

48-2307. Department; report.

The department shall issue electronically a report to the Legislature on or before January 31 of each year which discloses the number of employees reported to the department and the number of matches during the preceding calendar year for purposes of the New Hire Reporting Act.

Source:Laws 1997, LB 752, § 46; Laws 2007, LB296, § 221; Laws 2012, LB782, § 66.

48-2308. Rules and regulations.

The department shall adopt and promulgate rules and regulations to carry out the New Hire Reporting Act.

Source:Laws 1997, LB 752, § 47.

48-2401. Repealed. Laws 2004, LB 940, § 4.

48-2402. Repealed. Laws 2004, LB 940, § 4.

48-2501. Transferred to section 81-5,210.

48-2502. Transferred to section 81-5,211.

48-2503. Transferred to section 81-5,212.

48-2504. Transferred to section 81-5,213.

48-2505. Repealed. Laws 2007, LB 265, § 38.

48-2506. Transferred to section 81-5,214.

48-2507. Transferred to section 81-5,215.

48-2508. Transferred to section 81-5,216.

48-2509. Transferred to section 81-5,217.

48-2510. Transferred to section 81-5,218.

48-2511. Transferred to section 81-5,219.

48-2512. Transferred to section 81-5,220.

48-2512.01. Transferred to section 81-5,221.

48-2513. Transferred to section 81-5,222.

48-2514. Transferred to section 81-5,223.

48-2515. Transferred to section 81-5,224.

48-2516. Transferred to section 81-5,225.

48-2517. Transferred to section 81-5,226.

48-2518. Transferred to section 81-5,227.

48-2519. Transferred to section 81-5,228.

48-2520. Transferred to section 81-5,229.

48-2521. Transferred to section 81-5,230.

48-2522. Transferred to section 81-5,231.

48-2523. Transferred to section 81-5,232.

48-2524. Transferred to section 81-5,233.

48-2525. Transferred to section 81-5,234.

48-2526. Transferred to section 81-5,235.

48-2527. Transferred to section 81-5,236.

48-2528. Transferred to section 81-5,237.

48-2529. Transferred to section 81-5,238.

48-2530. Transferred to section 81-5,239.

48-2531. Transferred to section 81-5,240.

48-2532. Transferred to section 81-5,241.

48-2533. Transferred to section 81-5,242.

48-2601. Act, how cited.

Sections 48-2601 to 48-2619 shall be known and may be cited as the Nebraska Uniform Athlete Agents Act.

Source:Laws 2009, LB292, § 1.

48-2602. Terms, defined.

In the Nebraska Uniform Athlete Agents Act:

(1) Agency contract means an agreement in which a student-athlete authorizes a person to negotiate or solicit on behalf of the student-athlete a professional-sports-services contract or an endorsement contract;

(2) Athlete agent means an individual who enters into an agency contract with a student-athlete or, directly or indirectly, recruits or solicits a student-athlete to enter into an agency contract. The term includes an individual who represents to the public that the individual is an athlete agent. The term does not include a spouse, parent, sibling, grandparent, or guardian of the student-athlete or an individual acting solely on behalf of a professional sports team or professional sports organization;

(3) Athletic director means an individual responsible for administering the overall athletic program of an educational institution or, if an educational institution has separately administered athletic programs for male students and female students, the athletic program for males or the athletic program for females, as appropriate;

(4) Contact means a communication, direct or indirect, between an athlete agent and a student-athlete, to recruit or solicit the student-athlete to enter into an agency contract;

(5) Endorsement contract means an agreement under which a student-athlete is employed or receives consideration to use on behalf of the other party any value that the student-athlete may have because of publicity, reputation, following, or fame obtained because of athletic ability or performance;

(6) Intercollegiate sport means a sport played at the collegiate level for which eligibility requirements for participation by a student-athlete are established by a national association for the promotion or regulation of collegiate athletics;

(7) Person means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, or government; governmental subdivision, agency, or instrumentality; public corporation; or any other legal or commercial entity;

(8) Professional-sports-services contract means an agreement under which an individual is employed, or agrees to render services, as a player on a professional sports team, with a professional sports organization, or as a professional athlete;

(9) Record means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form;

(10) Registration means registration as an athlete agent pursuant to the act;

(11) State means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States; and

(12) Student-athlete means an individual who engages in, is eligible to engage in, or may be eligible in the future to engage in, any intercollegiate sport. If an individual is permanently ineligible to participate in a particular intercollegiate sport, the individual is not a student-athlete for purposes of that sport.

Source:Laws 2009, LB292, § 2.

48-2603. Service of process; subpoenas.

(1) By acting as an athlete agent in this state, a nonresident individual appoints the Secretary of State as the individual's agent for service of process in any civil action in this state related to the individual's acting as an athlete agent in this state.

(2) The Secretary of State may issue subpoenas for any material that is relevant to the administration of the Nebraska Uniform Athlete Agents Act.

Source:Laws 2009, LB292, § 3.

48-2604. Athlete agent; registration required; void contracts.

(1) Except as otherwise provided in subsection (2) of this section, an individual may not act as an athlete agent in this state without holding a certificate of registration under section 48-2606 or 48-2608.

(2) Before being issued a certificate of registration, an individual may act as an athlete agent in this state for all purposes except signing an agency contract if:

(a) A student-athlete or another person acting on behalf of the student-athlete initiates communication with the individual; and

(b) Within seven days after an initial act as an athlete agent, the individual submits an application for registration as an athlete agent in this state.

(3) An agency contract resulting from conduct in violation of this section is void, and the athlete agent shall return any consideration received under the contract.

Source:Laws 2009, LB292, § 4.

48-2605. Registration as athlete agent; form; requirements.

(1) An applicant for registration shall submit an application for registration to the Secretary of State in a form prescribed by the Secretary of State. An application filed under this section is a public record. The application must be in the name of an individual and, except as otherwise provided in subsection (2) of this section, signed or otherwise authenticated by the applicant under penalty of perjury and state or contain:

(a) The name of the applicant and the address of the applicant's principal place of business;

(b) The name of the applicant's business or employer, if applicable;

(c) Any business or occupation engaged in by the applicant for the five years next preceding the date of submission of the application;

(d) A description of the applicant's:

(i) Formal training as an athlete agent;

(ii) Practical experience as an athlete agent; and

(iii) Educational background relating to the applicant's activities as an athlete agent;

(e) The names and addresses of three individuals not related to the applicant who are willing to serve as references;

(f) The name, sport, and last-known team for each individual for whom the applicant acted as an athlete agent during the five years next preceding the date of submission of the application;

(g) The names and addresses of all persons who are:

(i) With respect to the athlete agent's business if it is not a corporation, the partners, members, officers, managers, associates, or profit-sharers of the business; and

(ii) With respect to a corporation employing the athlete agent, the officers, directors, and any shareholder of the corporation having an interest of five percent or greater;

(h) Whether the applicant or any person named pursuant to subdivision (g) of this subsection has been convicted of a crime that, if committed in this state, would be a crime involving moral turpitude or a felony, and identify the crime;

(i) Whether there has been any administrative or judicial determination that the applicant or any person named pursuant to subdivision (g) of this subsection has made a false, misleading, deceptive, or fraudulent representation;

(j) Any instance in which the conduct of the applicant or any person named pursuant to subdivision (g) of this subsection resulted in the imposition of a sanction, suspension, or declaration of ineligibility to participate in an interscholastic or intercollegiate athletic event on a student-athlete or an educational institution;

(k) Any sanction, suspension, or disciplinary action taken against the applicant or any person named pursuant to subdivision (g) of this subsection arising out of occupational or professional conduct; and

(l) Whether there has been any denial of an application for, suspension or revocation of, or refusal to renew, the registration or licensure of the applicant or any person named pursuant to subdivision (g) of this subsection as an athlete agent in any state.

(2) An individual who has submitted an application for, and holds a certificate of, registration or licensure as an athlete agent in another state may submit a copy of the application and certificate in lieu of submitting an application in the form prescribed pursuant to subsection (1) of this section. The Secretary of State shall accept the application and the certificate from the other state as an application for registration in this state if the application to the other state:

(a) Was submitted in the other state within six months next preceding the submission of the application in this state and the applicant certifies that the information contained in the application is current;

(b) Contains information substantially similar to or more comprehensive than that required in an application submitted in this state; and

(c) Was signed by the applicant under penalty of perjury.

Source:Laws 2009, LB292, § 5.

48-2606. Certificate of registration; issuance or denial; renewal.

(1) Except as otherwise provided in subsection (2) of this section, the Secretary of State shall issue a certificate of registration to an individual who complies with subsection (1) of section 48-2605 or whose application has been accepted under subsection (2) of section 48-2605.

(2) The Secretary of State may refuse to issue a certificate of registration if the Secretary of State determines that the applicant has engaged in conduct that has a significant adverse effect on the applicant's fitness to act as an athlete agent. In making the determination, the Secretary of State may consider whether the applicant has:

(a) Been convicted of a crime that, if committed in this state, would be a crime involving moral turpitude or a felony;

(b) Made a materially false, misleading, deceptive, or fraudulent representation in the application or as an athlete agent;

(c) Engaged in conduct that would disqualify the applicant from serving in a fiduciary capacity;

(d) Engaged in conduct prohibited by section 48-2614;

(e) Had a registration or licensure as an athlete agent suspended, revoked, or denied or been refused renewal of registration or licensure as an athlete agent in any state;

(f) Engaged in conduct the consequence of which was that a sanction, suspension, or declaration of ineligibility to participate in an interscholastic or intercollegiate athletic event was imposed on a student-athlete or an educational institution; or

(g) Engaged in conduct that significantly adversely reflects on the applicant's credibility, honesty, or integrity.

(3) In making a determination under subsection (2) of this section, the Secretary of State shall consider:

(a) How recently the conduct occurred;

(b) The nature of the conduct and the context in which it occurred; and

(c) Any other relevant conduct of the applicant.

(4) An athlete agent may apply to renew a registration by submitting an application for renewal in a form prescribed by the Secretary of State. An application filed under this section is a public record. The application for renewal must be signed by the applicant under penalty of perjury and must contain current information on all matters required in an original registration.

(5) An individual who has submitted an application for renewal of registration or licensure in another state, in lieu of submitting an application for renewal in the form prescribed pursuant to subsection (4) of this section, may file a copy of the application for renewal and a valid certificate of registration or licensure from the other state. The Secretary of State shall accept the application for renewal from the other state as an application for renewal in this state if the application to the other state:

(a) Was submitted in the other state within six months next preceding the filing in this state and the applicant certifies the information contained in the application for renewal is current;

(b) Contains information substantially similar to or more comprehensive than that required in an application for renewal submitted in this state; and

(c) Was signed by the applicant under penalty of perjury.

(6) A certificate of registration or a renewal of a registration is valid for two years.

Source:Laws 2009, LB292, § 6.

48-2607. Suspension, revocation, or refusal to renew registration.

(1) The Secretary of State may suspend, revoke, or refuse to renew a registration for conduct that would have justified denial of registration under subsection (2) of section 48-2606.

(2) The Secretary of State may deny, suspend, revoke, or refuse to renew a certificate of registration or licensure only after proper notice and an opportunity for a hearing. The Administrative Procedure Act applies to the Nebraska Uniform Athlete Agents Act.

Source:Laws 2009, LB292, § 7.

Cross References

Administrative Procedure Act, see section 84-920.

48-2608. Temporary registration.

The Secretary of State may issue a temporary certificate of registration while an application for registration or renewal of registration is pending.

Source:Laws 2009, LB292, § 8.

48-2609. Registration and renewal fees.

(1) An application for registration or renewal of registration must be accompanied by either an application for registration fee or a renewal of registration fee, as applicable.

(2) The Secretary of State may, by rule and regulation, establish fees for applications for registration and renewals of registration at rates sufficient to cover the costs of administering the Nebraska Uniform Athlete Agents Act, in the event any such fees are required. Such fees shall be collected by the Secretary of State and remitted to the State Treasurer for credit to the Secretary of State Cash Fund.

Source:Laws 2009, LB292, § 9; Laws 2020, LB910, § 17.

48-2610. Required form of contract.

(1) An agency contract must be in a record, signed or otherwise authenticated by the parties.

(2) An agency contract must state or contain:

(a) The amount and method of calculating the consideration to be paid by the student-athlete for services to be provided by the athlete agent under the contract and any other consideration the athlete agent has received or will receive from any other source for entering into the contract or for providing the services;

(b) The name of any person not listed in the application for registration or renewal of registration who will be compensated because the student-athlete signed the agency contract;

(c) A description of any expenses that the student-athlete agrees to reimburse;

(d) A description of the services to be provided to the student-athlete;

(e) The duration of the contract; and

(f) The date of execution.

(3) An agency contract must contain, in close proximity to the signature of the student-athlete, a conspicuous notice in boldface type in capital letters stating:

WARNING TO STUDENT-ATHLETE

(1) IF YOU ENTER INTO NEGOTIATIONS FOR, OR SIGN, A PROFESSIONAL-SPORTS-SERVICES CONTRACT, YOU MAY LOSE YOUR ELIGIBILITY TO COMPETE AS A STUDENT-ATHLETE IN YOUR SPORT;

(2) IF YOU HAVE AN ATHLETIC DIRECTOR, WITHIN 72 HOURS AFTER ENTERING INTO THIS CONTRACT, BOTH YOU AND YOUR ATHLETE AGENT MUST NOTIFY YOUR ATHLETIC DIRECTOR; AND

(3) YOU MAY CANCEL THIS CONTRACT WITHIN 14 DAYS AFTER SIGNING IT.

(4) An agency contract that does not conform to this section is voidable by the student-athlete. If a student-athlete voids an agency contract, the student-athlete is not required to pay any consideration under the contract or to return any consideration received from the athlete agent to induce the student-athlete to enter into the contract.

(5) The athlete agent shall give a record of the signed or otherwise authenticated agency contract to the student-athlete at the time of execution.

Source:Laws 2009, LB292, § 10; Laws 2020, LB962, § 10.

48-2611. Notice to educational institution.

(1) Within seventy-two hours after entering into an agency contract or before the next scheduled athletic event in which the student-athlete may participate, whichever occurs first, the athlete agent shall give notice in a record of the existence of the contract to the athletic director of the educational institution at which the student-athlete is enrolled or the athlete agent has reasonable grounds to believe the student-athlete intends to enroll.

(2) Within seventy-two hours after entering into an agency contract or before the next athletic event in which the student-athlete may participate, whichever occurs first, the student-athlete shall inform the athletic director of the educational institution at which the student-athlete is enrolled that he or she has entered into an agency contract.

Source:Laws 2009, LB292, § 11.

48-2612. Student-athlete's right to cancel.

(1) A student-athlete may cancel an agency contract by giving notice of the cancellation to the athlete agent in a record within fourteen days after the contract is signed.

(2) A student-athlete may not waive the right to cancel an agency contract.

(3) If a student-athlete cancels an agency contract, the student-athlete is not required to pay any consideration under the contract or to return any consideration received from the athlete agent to induce the student-athlete to enter into the contract.

Source:Laws 2009, LB292, § 12.

48-2613. Required records.

(1) An athlete agent shall retain the following records for a period of five years:

(a) The name and address of each individual represented by the athlete agent;

(b) Any agency contract entered into by the athlete agent; and

(c) Any direct costs incurred by the athlete agent in the recruitment or solicitation of a student-athlete to enter into an agency contract.

(2) Records required by subsection (1) of this section to be retained are open to inspection by the Secretary of State during normal business hours.

Source:Laws 2009, LB292, § 13.

48-2614. Prohibited conduct.

(1) An athlete agent, with the intent to induce a student-athlete to enter into an agency contract, may not:

(a) Give any materially false or misleading information or make a materially false promise or representation;

(b) Furnish anything of value to a student-athlete before the student-athlete enters into the agency contract; or

(c) Furnish anything of value to any individual other than the student-athlete or another registered athlete agent.

(2) An athlete agent may not intentionally:

(a) Initiate contact with a student-athlete unless registered under the Nebraska Uniform Athlete Agents Act;

(b) Refuse or fail to retain or permit inspection of the records required to be retained by section 48-2613;

(c) Fail to register when required by section 48-2604;

(d) Provide materially false or misleading information in an application for registration or renewal of registration;

(e) Predate or postdate an agency contract; or

(f) Fail to notify a student-athlete before the student-athlete signs or otherwise authenticates an agency contract for a particular sport that entering into negotiations for, or signing, a professional-sports-services contract may make the student-athlete ineligible to participate as a student-athlete in that sport.

Source:Laws 2009, LB292, § 14; Laws 2020, LB962, § 11.

48-2615. Criminal penalty.

An athlete agent who violates section 48-2614 is guilty of a Class I misdemeanor.

Source:Laws 2009, LB292, § 15.

48-2616. Civil remedies.

(1) An educational institution has a right of action against an athlete agent or a former student-athlete for damages caused by a violation of the Nebraska Uniform Athlete Agents Act. In an action under this section, the court may award to the prevailing party costs and reasonable attorney's fees.

(2) Damages of an educational institution under subsection (1) of this section include losses and expenses incurred because, as a result of the conduct of an athlete agent or a former student-athlete, the educational institution was injured by a violation of the act or was penalized, disqualified, or suspended from participation in athletics by a national association for the promotion and regulation of athletics, by an athletic conference, or by reasonable self-imposed disciplinary action taken to mitigate sanctions likely to be imposed by such an organization.

(3) A right of action under this section does not accrue until the educational institution discovers or by the exercise of reasonable diligence would have discovered the violation by the athlete agent or former student-athlete.

(4) Any liability of the athlete agent or the former student-athlete under this section is several and not joint.

(5) The act does not restrict rights, remedies, or defenses of any person under law or equity.

Source:Laws 2009, LB292, § 16.

48-2617. Administrative penalty.

The Secretary of State may assess a civil penalty against an athlete agent not to exceed twenty-five thousand dollars for a violation of the Nebraska Uniform Athlete Agents Act.

Source:Laws 2009, LB292, § 17.

48-2618. Uniformity of application and construction.

In applying and construing this uniform act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

Source:Laws 2009, LB292, § 18.

48-2619. Electronic Signatures in Global and National Commerce Act.

The provisions of the Nebraska Uniform Athlete Agents Act governing the legal effect, validity, or enforceability of electronic records or signatures, and of contracts formed or performed with the use of such records or signatures, conform to the requirements of section 102 of the Electronic Signatures in Global and National Commerce Act, Public Law 106-229, 114 Stat. 464 (2000), as such act existed on January 1, 2009, and supersede, modify, and limit the Electronic Signatures in Global and National Commerce Act.

Source:Laws 2009, LB292, § 19.

48-2701. Act, how cited.

Sections 48-2701 to 48-2711 shall be known and may be cited as the Professional Employer Organization Registration Act.

Source:Laws 2010, LB579, § 1.

48-2702. Terms, defined.

For purposes of the Professional Employer Organization Registration Act:

(1) Client means any person who enters into a professional employer agreement with a professional employer organization;

(2) Co-employer means either a professional employer organization or a client;

(3) Co-employment relationship means a relationship which is intended to be an ongoing relationship rather than a temporary or project-specific one, wherein the rights, duties, and obligations of an employer which arise out of an employment relationship have been allocated between the client employer and a professional employer organization as co-employers pursuant to a professional employer agreement and the act. In such a co-employment relationship:

(a) The professional employer organization is entitled to enforce only such employer rights and is subject to only those employer obligations specifically allocated to the professional employer organization by the professional employer agreement or the act;

(b) The client is entitled to enforce those rights and is obligated to provide and perform those employer obligations allocated to such client by the professional employer agreement or the act; and

(c) The client is entitled to enforce any right and is obligated to perform any obligation of an employer not specifically allocated to the professional employer organization by the professional employer agreement or the act;

(4) Covered employee means an individual having a co-employment relationship with a professional employer organization and a client who meets all of the following criteria: (a) The individual has received written notice of co-employment with the professional employer organization; and (b) the individual's co-employment relationship is pursuant to a professional employer agreement subject to the act. Individuals who are officers, directors, shareholders, partners, and managers of the client or who are members of a limited liability company if such company is the client are covered employees to the extent the professional employer organization and the client have expressly agreed in the professional employer agreement that such individuals are covered employees, if such individuals meet the criteria of this subdivision and act as operational managers or perform day-to-day operational services for the client;

(5) Department means the Department of Labor;

(6) Direct-hire employee means an individual who is an employee of the professional employer organization within the meaning of the Nebraska Workers' Compensation Act and who is not an employee of a client and who is not a covered employee;

(7) Master policy means a workers' compensation insurance policy issued to a professional employer organization that provides coverage for more than one client and may provide coverage to the professional employer organization with respect to its direct-hire employees or that provides coverage for one client in addition to the professional employer organization's direct-hire employees. Two or more clients insured under the same policy solely because they are under common ownership are considered a single client for purposes of this subdivision;

(8) Multiple coordinated policy means a workers' compensation insurance policy that provides coverage for only a single client or group of clients under common ownership but with payment obligations and certain policy communications coordinated through the professional employer organization;

(9) Person means any individual, partnership, corporation, limited liability company, association, or any other form of legally recognized entity;

(10) Professional employer agreement means a written contract by and between a client and a professional employer organization that provides:

(a) For the co-employment of covered employees;

(b) For the allocation of employer rights and obligations between the client and the professional employer organization with respect to covered employees; and

(c) That the professional employer organization and the client assume the responsibilities required by the Professional Employer Organization Registration Act;

(11)(a) Professional employer organization means any person engaged in the business of providing professional employer services. The applicability of the act to a person engaged in the business of providing professional employer services shall be unaffected by the person's use of the term staff leasing company, administrative employer, employee leasing company, or any name other than professional employer organization or PEO.

(b) The following are not professional employer organizations or professional employment services for purposes of the act:

(i) Arrangements wherein a person, whose principal business activity is not entering into professional employer arrangements and which does not hold itself out as a professional employer organization, shares employees with a commonly owned company within the meaning of sections 414(b) and (c) of the Internal Revenue Code;

(ii) Independent contractor arrangements by which a person assumes responsibility for the product produced or service performed by such person or his or her agents and retains and exercises primary direction and control over the work performed by the individuals whose services are supplied under such arrangements; and

(iii) Providing temporary help services;

(12) Professional employer organization group means two or more professional employer organizations that are majority-owned or commonly controlled by the same entity, parent company, or controlling person;

(13) Professional employer services means the service of entering into co-employment relationships;

(14) Registrant means a professional employer organization registered under the act;

(15) Temporary help services means services consisting of a person:

(a) Recruiting and hiring its own employees;

(b) Finding other organizations that need the services of those employees;

(c) Assigning those employees (i) to perform work at or services for the other organizations to support or supplement the other organizations' workforces, (ii) to provide assistance in special work situations, including employee absences, skill shortages, or seasonal workloads, or (iii) to perform special assignments or projects; and

(d) Customarily attempting to reassign the employees to other organizations when they finish each assignment; and

(16) Working capital means current assets less current liabilities as defined by generally accepted accounting principles.

Source:Laws 2010, LB579, § 2.

Cross References

Nebraska Workers' Compensation Act, see section 48-1,110.

48-2703. Act; professional employer agreement; effect on rights or obligations; other requirements applicable; client rights and status.

(1) Nothing contained in the Professional Employer Organization Registration Act or in any professional employer agreement shall affect, modify, or amend any collective-bargaining agreement or the rights or obligations of any client, professional employer organization, or covered employee under the federal National Labor Relations Act, 29 U.S.C. 151 et seq., or the federal Railway Labor Act, 45 U.S.C. 151 et seq.

(2)(a) Nothing contained in the Professional Employer Organization Registration Act or any professional employer agreement shall:

(i) Diminish, abolish, or remove rights of covered employees as to a client or obligations of such client to a covered employee existing prior to the effective date of the professional employer agreement;

(ii) Affect, modify, or amend any contractual relationship or restrictive covenant between a covered employee and any client in effect at the time a professional employer agreement becomes effective, nor prohibit or amend any contractual relationship or restrictive covenant that is entered into subsequently between a client and a covered employee. A professional employer organization shall have no responsibility or liability in connection with, or arising out of, any such existing or new contractual relationship or restrictive covenant unless the professional employer organization has specifically agreed otherwise in writing;

(iii) Create any new or additional enforceable right of a covered employee against a professional employer organization that is not specifically provided by the professional employer agreement or the act; or

(iv) Diminish, abolish, or remove rights of covered employees as to a client or obligations of a client to covered employees, including, but not limited to, rights and obligations arising from civil rights laws guaranteeing nondiscrimination in employment practices. A co-employer shall, immediately after receipt of such notice, notify the other co-employer of such receipt and shall transmit a copy of the notice to the other co-employer within ten business days after such receipt.

(b)(i) Nothing contained in the act or any professional employer agreement shall affect, modify, or amend any state, local, or federal licensing, registration, or certification requirement applicable to any client or covered employee.

(ii) A covered employee who is required to be licensed, registered, or certified according to law or regulation is deemed solely an employee of the client for purposes of any such license, registration, or certification requirement.

(c) A professional employer organization shall not be deemed to engage in any occupation, trade, profession, or other activity that is subject to licensing, registration, or certification requirements, or is otherwise regulated by a governmental entity, solely by entering into and maintaining a co-employment relationship with a covered employee who is subject to such licensing, registration, or certification requirements.

(d) A client shall have the sole right to direct and control the professional or licensed activities of covered employees and of the client's business. Such covered employees and clients shall remain subject to regulation by the regulatory or governmental entity responsible for licensing, registration, or certification of such covered employees or clients.

(3) With respect to a bid, contract, purchase order, or agreement entered into with the state or a political subdivision of the state, a client company's status or certification as a small, minority-owned, disadvantaged, or woman-owned business enterprise or as a historically underutilized business is not affected because the client company has entered into a professional employer agreement with a professional employer organization or uses the services of a professional employer organization.

Source:Laws 2010, LB579, § 3.

48-2704. Registration required; restrictions on use of names or title; application; contents; initial registration; when required; limited registration application; interim operating permit; registration renewal; limited registration; eligibility; department; maintain list of registrants; department; powers and duties; confidentiality.

(1) A person engaged in the business of providing professional employer services pursuant to co-employment relationships in which all or a majority of the employees of a client are covered employees shall be registered under the Professional Employer Organization Registration Act.

(2) A person who is not registered under the Professional Employer Organization Registration Act shall not offer or provide professional employer services in this state and shall not use the names PEO, professional employer organization, staff leasing company, employee leasing company, administrative employer, or any other name or title representing professional employer services.

(3) Each applicant for registration under the act shall provide the department with the following information:

(a) The name or names under which the professional employer organization conducts business;

(b) The address of the principal place of business of the professional employer organization and the address of each office it maintains in this state;

(c) The professional employer organization's taxpayer or employer identification number;

(d) A list by jurisdiction of each name under which the professional employer organization has operated in the preceding five years, including any alternative names, names of predecessors and, if known, successor business entities;

(e) A statement of ownership, which shall include the name and evidence of the business experience of any person that, individually or acting in concert with one or more other persons, owns or controls, directly or indirectly, twenty-five percent or more of the equity interest of the professional employer organization;

(f) A statement of management, which shall include the name and evidence of the business experience of any individual who serves as president or chief executive officer or otherwise has the authority to act as senior executive officer of the professional employer organization; and

(g) A financial statement setting forth the financial condition of the professional employer organization or professional employer organization group. At the time of initial registration, the applicant shall submit the most recent audit of the applicant, which audit may not be older than thirteen months. Thereafter, a professional employer organization or professional employer organization group shall file on an annual basis, within one hundred eighty days after the end of the professional employer organization's fiscal year, a succeeding audit. An applicant may apply for an extension with the department, but any such request shall be accompanied by a letter from the auditor stating the reasons for the delay and the anticipated audit completion date.

The financial statement shall be prepared in accordance with generally accepted accounting principles and audited by an independent certified public accountant licensed to practice in the jurisdiction in which such accountant is located and shall be without qualification as to the going concern status of the professional employer organization. A professional employer organization group may submit combined or consolidated financial statements to meet the requirements of this section. A professional employer organization that has not had sufficient operating history to have audited financial statements based upon at least twelve months of operating history shall meet the financial responsibility requirements of section 48-2705 and present financial statements reviewed by a certified public accountant.

(4)(a) Each professional employer organization operating within this state as of January 1, 2012, shall complete its initial registration not later than one hundred eighty days after January 1, 2012. Such initial registration shall be valid until one hundred eighty days from the end of the professional employer organization's first fiscal year that is more than one year after January 1, 2012.

(b) Each professional employer organization not operating within this state as of January 1, 2012, shall complete its initial registration prior to initiating operations within this state. If a professional employer organization not registered in this state becomes aware that an existing client not based in this state has employees and operations in this state, the professional employer organization shall either decline to provide professional employer services for those employees or notify the department within five business days of its knowledge of this fact and file a limited registration application under subsection (7) of this section or a full registration if there are more than fifty covered employees. The department may issue an interim operating permit for the period the registration application is pending if the professional employer organization is currently registered or licensed by another state and the department determines it to be in the best interests of the potential covered employees.

(5) Within one hundred eighty days after the end of a registrant's fiscal year, such registrant shall renew its registration by notifying the department of any changes in the information provided in such registrant's most recent registration or renewal. A registrant's existing registration shall remain in effect during the pendency of a renewal application.

(6) Professional employer organizations in a professional employer organization group may satisfy any reporting and financial requirements of the Professional Employer Organization Registration Act on a combined or consolidated basis if each member of the professional employer organization group guarantees the financial capacity obligations under the act of each other member of the professional employer organization group. If a professional employer organization group submits a combined or consolidated audited financial statement including entities that are not professional employer organizations or that are not in the professional employer organization group, the controlling entity of the professional employer organization group under the consolidated or combined statement shall guarantee the obligations of the professional employer organizations in the professional employer organization group.

(7)(a) A professional employer organization is eligible for a limited registration under the act if such professional employer organization:

(i) Submits a properly executed request for limited registration on a form provided by the department;

(ii) Is domiciled outside this state and is licensed or registered as a professional employer organization in another state;

(iii) Does not maintain an office in this state or directly solicit clients located or domiciled within this state; and

(iv) Does not have more than fifty covered employees employed or domiciled in this state on any given day.

(b) A limited registration is valid for one year and may be renewed.

(c) A professional employer organization seeking limited registration under this section shall provide the department with information and documentation necessary to show that the professional employer organization qualifies for a limited registration.

(d) Section 48-2705 does not apply to applicants for limited registration.

(8) The department shall maintain a list of professional employer organizations registered under the act that is readily available to the public by electronic or other means.

(9) The department may prescribe forms necessary to promote the efficient administration of this section.

(10) The department shall, to the extent practical, permit by rule and regulation the acceptance of electronic filings, including applications, documents, reports, and other filings required by the department. Such rule and regulation may provide for the acceptance of electronic filings and other assurance by an independent and qualified entity approved by the department that provides satisfactory assurance of compliance acceptable to the department consistent with or in lieu of the requirements of this section and section 48-2705. Such rule and regulation shall permit a professional employer organization to authorize the entity approved by the department to act on the professional employer organization's behalf in complying with the registration requirements of the act, including electronic filings of information and payment of registration fees. Use of such an approved entity shall be optional and not mandatory for a registrant. Nothing in this subsection shall limit or change the department's authority to register or terminate registration of a professional employer organization or to investigate or enforce any provision of the act.

(11) All records, reports, and other information obtained from a professional employer organization under the act, except to the extent necessary for the proper administration of the act by the department, shall be confidential and shall not be published or open to public inspection other than to public employees in the performance of their public duties.

Source:Laws 2010, LB579, § 4.

48-2705. Financial commitment required; filing with department.

(1) Except as provided in subsections (7) and (10) of section 48-2704, each professional employer organization or professional employer organization group shall have either:

(a) Positive working capital of at least one hundred thousand dollars at the time of initial registration and each renewal thereafter as reflected in the financial statements submitted to the department with the initial registration and each annual renewal; or

(b)(i) If the positive working capital of the professional employer organization is less than one hundred thousand dollars, a bond, certificate of deposit, escrow account, or irrevocable letter of credit in an amount of not less than one hundred thousand dollars; or

(ii) If the financial statement submitted to the department indicates a deficit in working capital, a bond, certificate of deposit, escrow account, or irrevocable letter of credit in an amount that is not less than one hundred thousand dollars plus an amount that is sufficient to cover that deficit.

(2) The commitment described in subdivision (1)(b) of this section shall be in a form approved by the department, shall be held in a depository designated by the department, and shall secure the payment by the professional employer organization or professional employer organization group of any wages, salaries, employee benefits, workers' compensation insurance premiums, payroll taxes, unemployment insurance contributions, or other amounts that are payable to or with respect to an employee performing services for a client if the professional employer organization or professional employer organization group does not make those payments when due. The commitment shall be established in favor of or be made payable to the department, for the benefit of the state and any employee to whom or with respect to whom the professional employer organization or professional employer organization group does not make a payment described in this subsection when due. The professional employer organization or professional employer organization group shall file with the department any agreement, instrument, or other document that is necessary to enforce the commitment against the professional employer organization or professional employer organization group, against any relevant third party, or both.

Source:Laws 2010, LB579, § 5.

48-2706. Co-employment relationship; restrictions; rights and obligations; professional employer agreement; contents; written notice to employee; posting of notice; responsibilities of client; liability; sales tax liability; health benefit plan.

(1) No person shall knowingly enter into a co-employment relationship in which less than a majority of the employees of the client in this state are covered employees or in which less than one-half of the payroll of the client in this state is attributable to covered employees.

(2) Except as specifically provided in the Professional Employer Organization Registration Act or in the professional employer agreement, in each co-employment relationship:

(a) The client shall be entitled to exercise all rights and shall be obligated to perform all duties and responsibilities otherwise applicable to an employer in an employment relationship;

(b) The professional employer organization shall be entitled to exercise only those rights and obligated to perform only those duties and responsibilities specifically required by the act or in the professional employer agreement. The rights, duties, and obligations of the professional employer organization as co-employer with respect to any covered employee shall be limited to those arising pursuant to the professional employer agreement and the act during the term of co-employment by the professional employer organization of such covered employee; and

(c) Unless otherwise expressly agreed by the professional employer organization and the client in a professional employer agreement, the client retains the exclusive right to direct and control the covered employees as is necessary to conduct the client's business, to discharge any of the client's fiduciary responsibilities, or to comply with any licensure requirements applicable to the client or to the covered employees.

(3) Except as specifically provided in the Professional Employer Organization Registration Act, the co-employment relationship between the client and the professional employer organization, and between each co-employer and each covered employee, shall be governed by the professional employer agreement. Each professional employer agreement shall include the following:

(a) The allocation of rights, duties, and obligations as described in this section;

(b) A provision that the professional employer organization shall have responsibility to pay wages to covered employees; to withhold, collect, report, and remit payroll-related and unemployment taxes; and, to the extent the professional employer organization has assumed responsibility in the professional employer agreement, to make payments for employee benefits for covered employees. For purposes of this section, wages does not include any obligation between a client and a covered employee for payments beyond or in addition to the covered employee's salary, draw, or regular rate of pay, such as bonuses, commissions, severance pay, deferred compensation, profit sharing, or vacation, sick, or other paid time off pay, unless the professional employer organization has expressly agreed to assume liability for such payments in the professional employer agreement;

(c) A provision that the professional employer organization shall have a right to hire, discipline, and terminate a covered employee as may be necessary to fulfill the professional employer organization's responsibilities under the act and the professional employer agreement. The client shall have a right to hire, discipline, and terminate a covered employee; and

(d) A provision that the responsibility to obtain workers' compensation coverage for covered employees and for other employees of the client from an insurer licensed to do business in this state and otherwise in compliance with all applicable requirements shall be specified in the professional employer agreement in accordance with section 48-2709. The client shall not be relieved of its obligations under the Nebraska Workers' Compensation Act to provide workers' compensation coverage in the event that the professional employer organization fails to obtain workers' compensation insurance for which it has assumed responsibility.

(4) With respect to each professional employer agreement entered into by a professional employer organization, such professional employer organization shall provide written notice to each covered employee affected by such agreement. The professional employer organization shall provide, and the client shall post in a conspicuous place at the client's worksite, the following:

(a) Notice of the general nature of the co-employment relationship between and among the professional employer organization, the client, and any covered employees; and

(b) Any notice required by the state relating to unemployment compensation and the minimum wage.

(5) Except to the extent otherwise expressly provided by the applicable professional employer agreement:

(a) A client shall be solely responsible for the quality, adequacy, or safety of the goods or services produced or sold in the client's business;

(b) A client shall be solely responsible for (i) directing, supervising, training, and controlling the work of the covered employees with respect to the business activities of the client or when such employees are otherwise acting under the express direction and control of the client and (ii) the acts, errors, or omissions of the covered employees with regard to such activities or when such employees are otherwise acting under the express direction and control of the client;

(c) A client shall not be liable for the acts, errors, or omissions of a professional employer organization or of any covered employee of the client and a professional employer organization when such covered employee is acting under the express direction and control of the professional employer organization;

(d) Nothing in this subsection shall limit any contractual liability or obligation specifically provided in a professional employer agreement; and

(e) A covered employee is not, solely as the result of being a covered employee of a professional employer organization, an employee of the professional employer organization for purposes of general liability insurance, fidelity bonds, surety bonds, employer's liability which is not covered by workers' compensation, or liquor liability insurance carried by the professional employer organization unless the covered employee is included for such purposes by specific reference in the professional employer agreement and in any applicable prearranged employment contract, insurance contract, or bond.

(6) When a professional employer organization obtains workers' compensation coverage for its clients that is written by an authorized insurer, it shall not be considered to be an insurer based on its provision of workers' compensation insurance coverage to a client, even if the professional employer organization charges the client a different amount than it is charged by the authorized insurer.

(7) For purposes of this state or any county, municipality, or other political subdivision thereof:

(a) Covered employees whose services are subject to sales tax shall be deemed the employees of the client for purposes of collecting and levying sales tax on the services performed by the covered employee. Nothing contained in the Professional Employer Organization Registration Act shall relieve a client of any sales tax liability with respect to its goods or services;

(b) Any tax or assessment imposed upon professional employer services or any business license or other fee which is based upon gross receipts shall allow a deduction from the gross income or receipts of the business derived from performing professional employer services that is equal to that portion of the fee charged to a client that represents the actual cost of wages and salaries, benefits, workers' compensation, payroll taxes, withholding, or other assessments paid to or on behalf of a covered employee by the professional employer organization under a professional employer agreement;

(c) Any tax assessed or assessment or mandated expenditure on a per capita or per employee basis shall be assessed against the client for covered employees and against the professional employer organization for its employees who are not covered employees co-employed with a client. Any benefit or monetary consideration that meets the requirements of mandates imposed on a client and that is received by covered employees through the professional employer organization either through payroll or through benefit plans sponsored by the professional employer organization shall be credited against the client's obligation to fulfill such mandates; and

(d) In the case of a tax or an assessment imposed or calculated upon the basis of total payroll, the professional employer organization shall be eligible to apply any small business allowance or exemption available to the client for the covered employees for the purpose of computing the tax.

(8) A professional employer organization shall not offer its covered employees any health benefit plan which is not fully insured by an authorized insurer.

Source:Laws 2010, LB579, § 6.

Cross References

Nebraska Workers' Compensation Act, see section 48-1,110.

48-2707. Funds; records.

Any funds held by the professional employer organization in a fiduciary capacity shall be recorded separately and held in a fiduciary capacity on behalf of each client. The professional employer organization shall keep copies of all the records pertaining to such deposits and withdrawals and, upon request of a client, shall furnish the client with an accounting and copies of the records.

Source:Laws 2010, LB579, § 7.

48-2708. Retirement and employee welfare benefit plans.

(1) A client and a professional employer organization shall each be deemed an employer under the laws of this state for purposes of sponsoring retirement and employee welfare benefit plans for its covered employees.

(2) A fully insured employee welfare benefit plan offered to the covered employees of a single professional employer organization shall be for purposes of state law a single employee welfare benefit plan and shall not be considered a multiple employer welfare arrangement, as defined in section 44-7603, and shall be exempt from the registration requirements of the Multiple Employer Welfare Arrangement Act.

(3) For purposes of the Small Employer Health Insurance Availability Act, a professional employer organization shall be considered the employer of all of its covered employees and all covered employees of any client participating in a health benefit plan sponsored by a single professional employer organization shall be considered employees of the professional employer organization. Subject to any eligibility requirements imposed by the plan or policy, the insurer shall accept and insure all employees of the client and all beneficiaries of those employees.

Source:Laws 2010, LB579, § 8.

Cross References

Multiple Employer Welfare Arrangement Act, see section 44-7601.

Small Employer Health Insurance Availability Act, see section 44-5223.

48-2709. Workers' compensation coverage; allocation of responsibility; information to administrator of Nebraska Workers' Compensation Court; notice; posting; contents; notice of cancellation, nonrenewal, or termination; rights of client.

(1) The responsibility to obtain workers' compensation coverage for employees covered by the professional employer agreement and for other employees of the client shall be allocated in the professional employer agreement to the client, the professional employer organization, or both, in accordance with this section. If any such responsibility is allocated to the professional employer organization, the professional employer organization shall:

(a) Advise the client of the provisions of subdivisions (9) and (10) of section 48-115;

(b) Advise the client of its obligation to obtain an additional workers' compensation insurance policy if the professional employer organization's policy limits coverage to co-employees as specified in the professional employer agreement; and

(c) Provide the client with the name of the insurer providing coverage, the policy number, claim notification instructions, and any itemized charges that are to be made for workers' compensation coverage within ten days after enrollment.

(2)(a) If all employees of the client are not covered employees under the professional employer agreement, then a workers' compensation insurance policy obtained by the professional employer organization to cover employees of the client may be written to limit coverage to those employees who are co-employees of the professional employer organization and the client. If a professional employer organization's policy limits coverage to co-employees as specified in the professional employer agreement, then the client shall obtain an additional workers' compensation insurance policy. The policy obtained by the client shall be written to cover any and all employees not covered by the professional employer organization's policy, including any potential new or unknown employees. All insurance policies issued pursuant to this subsection shall be subject to and shall comply with the requirements of this subsection and any rule or regulation adopted by the Department of Insurance.

(b) If all employees of the client are covered employees under the professional employer agreement, then a workers' compensation insurance policy obtained by the professional employer organization to cover employees of the client must be written to cover any and all employees of the client, including potential new or unknown employees that may not be covered employees under the agreement.

(c) A professional employer organization shall not split coverage that it obtains for a client between two or more policies.

(d) A professional employer organization shall not split coverage for its direct-hire employees between two or more policies.

(e) The Department of Insurance may adopt and promulgate rules and regulations to implement this subsection.

(3) If the professional employer agreement allocates responsibility to the professional employer organization to obtain workers' compensation coverage only for co-employees, then the professional employer organization shall provide the following information to the administrator of the Nebraska Workers' Compensation Court. Such information shall be provided for any such professional employer agreement in effect on January 1, 2012, and prior to the effective date of any new professional employer agreement or any amendment of an agreement adding such a provision after January 1, 2012, and shall be provided in a form and manner prescribed by the administrator:

(a) The names and addresses of the client and the professional employer organization;

(b) The effective date of the professional employer agreement;

(c) A description of the employees covered under the professional employer agreement;

(d) Evidence that any and all other employees of the client are covered by a valid workers' compensation insurance policy; and

(e) Any other information the administrator may require regarding workers' compensation coverage of the professional employer organization, the client, or the covered employees.

(4) If workers' compensation coverage for a client's employees covered by the professional employer agreement and for other employees of the client is not entirely available in the voluntary market, then assigned risk workers' compensation coverage written subject to section 44-3,158 may only be written on a single policy that covers all employees and co-employees of the client. Assigned risk workers' compensation insurance for the professional employer organization may also be written, but only on a basis that covers its direct-hire employees and excludes employees and co-employees of its clients. The Department of Insurance may adopt and promulgate rules and regulations to implement this subsection.

(5) If a master policy or multiple coordinated policy providing coverage to a client is obtained by a professional employer organization, then the professional employer organization shall provide the client with a notice that the client shall conspicuously post at its workplace. Such notice shall provide the name and address of the workers' compensation insurer and the individual to whom claims shall be directed. If more than one workers' compensation insurer provides coverage for employees and co-employees of the client, the client shall post such information for all such workers' compensation insurers.

(6) Both the client and the professional employer organization shall be considered the employer for purposes of coverage under the Nebraska Workers' Compensation Act. The protection of the exclusive remedy provision of the act shall apply to the professional employer organization, to the client, and to all covered employees and other employees of the client regardless of which co-employer obtains such workers' compensation coverage.

(7) If a client receives notice of the cancellation, nonrenewal, or termination of workers' compensation coverage obtained by the professional employer organization, then the client may withdraw from the professional employer agreement without penalty unless the client is notified by the professional employer organization of replacement coverage within fifteen days after the notice.

(8) A professional employer organization shall not impose any fee increase on a client based on the actual or anticipated cost of workers' compensation coverage without giving the client at least thirty days' advance notice and an opportunity to withdraw from the professional employer agreement without penalty.

(9) The professional employer organization shall not make any materially inaccurate, misleading, or fraudulent representations to the client regarding the cost of workers' compensation coverage. If the professional employer organization charges the client an itemized amount for workers' compensation coverage, the professional employer organization shall provide the client with an accurate and concise description of the basis upon which it was calculated and the services that are included. A professional employer organization shall not charge a client an itemized amount for workers' compensation coverage that is materially inconsistent with the actual amounts that the professional employer organization is charged by the insurer, given reasonably anticipated loss-sensitive charges, if applicable, reasonable recognition of the professional employer organization's costs, and a margin for profit.

Source:Laws 2010, LB579, § 9.

Cross References

Nebraska Workers' Compensation Act, see section 48-1,110.

48-2710. Fees.

(1) The department shall adopt a schedule of fees for initial registration, annual registration renewal, and limited registration, not to exceed two thousand five hundred dollars for initial registration, one thousand five hundred dollars for annual registration renewal, and one thousand dollars for limited registration. Such fees shall not exceed those reasonably necessary for the administration of the Professional Employer Organization Registration Act.

(2) Fees imposed pursuant to this section shall be remitted to the State Treasurer for credit to the Contractor and Professional Employer Organization Registration Cash Fund.

Source:Laws 2010, LB579, § 10; Laws 2016, LB270, § 4.

48-2711. Prohibited acts; violation; penalty; disciplinary action; powers of department; rules and regulations.

(1)(a) A person shall not knowingly:

(i) Offer or provide professional employer services in this state or use the names PEO, professional employer organization, staff leasing, employee leasing, administrative employer, or other title representing professional employer services unless such person is registered under the Professional Employer Organization Registration Act;

(ii) Provide false or fraudulent information to the department in conjunction with any registration, renewal, or report required under the act; or

(iii) Enter into a co-employment relationship in which less than a majority of the employees of the client in this state are covered employees or in which less than one-half of the payroll of the client in this state is attributable to covered employees.

(b) Any person violating this subsection is guilty of a Class I misdemeanor.

(2) Disciplinary action may be taken by the department:

(a) Against a person for violation of subsection (1) of this section;

(b) Against a professional employer organization or a controlling person of a professional employer organization upon the conviction of a professional employer organization or a controlling person of a professional employer organization of a crime that relates to the operation of the professional employer organization or the ability of a registrant or a controlling person of a registrant to operate a professional employer organization;

(c) Against a professional employer organization or a controlling person of a professional employer organization for knowingly making a material misrepresentation to an insurer, an insurance producer, the department, or other governmental agency; or

(d) Against a professional employer organization or a controlling person of a professional employer organization for a willful violation of the act or any order or regulation issued by the department under the act.

(3)(a) Upon finding, after notice and opportunity for hearing, that a professional employer organization, a controlling person of a professional employer organization, or a person offering professional employer services has violated one or more provisions of this section, and subject to any appeal required, the department may:

(i) Deny an application for registration;

(ii) Revoke, restrict, or refuse to renew a registration;

(iii) Impose an administrative penalty in an amount not to exceed one thousand dollars for each material violation;

(iv) Place the registrant on probation for the period and subject to conditions that the department specifies; or

(v) Issue a cease and desist order.

(b) A decision by the department under this subsection may be appealed in accordance with the Administrative Procedure Act.

(4) The department may adopt and promulgate rules and regulations reasonably necessary for the administration and enforcement of this section and sections 48-2704, 48-2705, and 48-2710.

Source:Laws 2010, LB579, § 11.

Cross References

Administrative Procedure Act, see section 84-920.

48-2801. Repealed. Laws 2015, LB 5, § 1.

48-2802. Repealed. Laws 2015, LB 5, § 1.

48-2803. Repealed. Laws 2015, LB 5, § 1.

48-2804. Repealed. Laws 2015, LB 5, § 1.

48-2805. Repealed. Laws 2015, LB 5, § 1.

48-2901. Act, how cited.

Sections 48-2901 to 48-2912 shall be known and may be cited as the Employee Classification Act.

Source:Laws 2010, LB563, § 1.

48-2902. Terms, defined.

For purposes of the Employee Classification Act:

(1) Commissioner means the Commissioner of Labor;

(2) Construction has the same meaning as in section 48-2103;

(3) Contractor means an individual, partnership, limited liability company, corporation, or other business entity engaged in a delivery service or a construction contractor business, as contractor is defined in section 48-2103, and includes any subcontractor performing services for a contractor;

(4) Delivery service means the transport and delivery of goods, products, supplies, or raw materials upon the highways of this state;

(5) Department means the Department of Labor; and

(6) Performing services means the performance of construction labor or delivery services for remuneration.

Source:Laws 2010, LB563, § 2.

48-2903. Presumption; act; how construed.

(1) An individual performing construction labor services for a contractor is presumed an employee and not an independent contractor for purposes of the Employee Classification Act, unless:

(a) The individual meets the criteria found in subdivision (5) of section 48-604;

(b) The individual has been registered as a contractor pursuant to the Contractor Registration Act prior to commencing construction work for the contractor; and

(c) The individual has been assigned a combined tax rate pursuant to sections 48-649 to 48-649.04 or is exempted from unemployment insurance coverage pursuant to subdivision (6) of section 48-604.

(2) An individual performing delivery services for a contractor is presumed an employee and not an independent contractor for purposes of the Employee Classification Act, unless the individual meets the criteria found in subdivision (5) of section 48-604 or is exempted from unemployment insurance coverage pursuant to subdivision (6) of section 48-604.

(3) The Employee Classification Act shall not be construed to affect or apply to a common-law or statutory action providing for recovery in tort and shall not be construed to affect or change the common-law interpretation of independent contractor status as it relates to tort liability or a workers' compensation claim. The act shall also not be construed to affect or alter the use of the term independent contractor as interpreted by the Department of Revenue and shall not be construed to affect any action brought pursuant to the Nebraska Revenue Act of 1967.

Source:Laws 2010, LB563, § 3; Laws 2017, LB172, § 84.

Cross References

Contractor Registration Act, see section 48-2101.

Nebraska Revenue Act of 1967, see section 77-2701.

48-2904. Violation.

It is a violation of the Employee Classification Act for a contractor to designate an individual as an independent contractor who would be properly classified as an employee under section 48-2903.

Source:Laws 2010, LB563, § 4.

48-2905. Reports of suspected violations; department; duties; confidentiality.

The department shall establish and operate a hotline and website for individuals to report suspected violations of the Employee Classification Act. The hotline and website may be operated in conjunction with the requirements of the Contractor Registration Act. At a minimum, the department shall require the reporting individual to provide contact information and a description of the suspected violation including the name of the business and job site location. Except to the extent needed in any administrative hearing, civil action, or criminal proceeding brought to enforce the Employment Security Law, Nebraska Revenue Act of 1967, or Nebraska Workers' Compensation Act, information obtained by the department under this section or obtained from any individual pursuant to the administration of the Employee Classification Act shall be held confidential.

Source:Laws 2010, LB563, § 5.

Cross References

Contractor Registration Act, see section 48-2101.

Employment Security Law, see section 48-601.

Nebraska Revenue Act of 1967, see section 77-2701.

Nebraska Workers' Compensation Act, see section 48-1,110.

48-2906. Investigations.

The department shall timely investigate all credible reports made pursuant to section 48-2905.

Source:Laws 2010, LB563, § 6.

48-2907. Commissioner; citation; notice of penalty; contractor contest; hearing; unpaid administrative penalty, effect on government contracts.

(1) In addition to any other fines or penalties provided by law, the commissioner may issue a citation to a contractor when an investigation reveals that a contractor has violated the Employee Classification Act.

(2) When a citation is issued, the commissioner shall notify the contractor of the proposed administrative penalty, if any, by certified mail or any other manner of delivery by which the United States Postal Service can verify delivery or by any method of service recognized under Chapter 25, article 5. The administrative penalty shall be not more than five hundred dollars per misclassified individual for the first offense and not more than five thousand dollars per misclassified individual for each second or subsequent offense.

(3) The contractor has fifteen working days after the date of the citation or penalty to contest such citation or penalty. Notice of contest shall be sent to the commissioner who shall provide a hearing in accordance with the Administrative Procedure Act.

(4) A contractor who is assessed an administrative penalty for a violation of the Employee Classification Act shall pay such administrative penalty no later than ten days after the date the penalty becomes final and not subject to further appeal. A contractor who has an unpaid administrative penalty in violation of this subsection shall be barred from contracting with the state or any political subdivision until such administrative penalty is paid.

Source:Laws 2010, LB563, § 7; Laws 2018, LB953, § 2; Laws 2020, LB1016, § 8.

Cross References

Administrative Procedure Act, see section 84-920.

48-2908. Action to collect unpaid combined taxes plus interest; additional investigation and enforcement action.

Upon finding a contractor has violated the Employee Classification Act, the commissioner shall instigate proceedings pursuant to the Employment Security Law to collect any unpaid combined taxes plus interest. The commissioner shall share any violations with the Department of Revenue for analysis of violations of the Nebraska Revenue Act of 1967 and with the Nebraska Workers' Compensation Court. Upon receipt, the Department of Revenue shall promptly investigate and, if appropriate, proceed with the collection of any income tax not withheld plus interest and penalties. The commissioner, Department of Revenue, and Nebraska Workers' Compensation Court shall refer any violation reasonably believed to be a civil or criminal violation of the Employment Security Law, the Nebraska Revenue Act of 1967, the Nebraska Workers' Compensation Act, or another law to the appropriate prosecuting authority for appropriate action.

Source:Laws 2010, LB563, § 8.

Cross References

Employment Security Law, see section 48-601.

Nebraska Revenue Act of 1967, see section 77-2701.

Nebraska Workers' Compensation Act, see section 48-1,110.

48-2909. Report; contents.

The department shall provide electronically an annual report to the Legislature regarding compliance with and enforcement of the Employee Classification Act. The report shall include, but not be limited to, the number of reports received from both its hotline and website, the number of investigated reports, the findings of the reports, the amount of combined tax, interest, and fines collected, the number of referrals to the Department of Revenue, Nebraska Workers' Compensation Court, and appropriate prosecuting authority, and the outcome of such referrals.

Source:Laws 2010, LB563, § 9; Laws 2012, LB782, § 67.

48-2910. Contractor; post notice.

Every contractor shall post in a conspicuous place at the job site or place of business in English and Spanish the following notice:

(1) Every individual working for a contractor has the right to be properly classified by the contractor as an employee rather than an independent contractor if the individual does not meet the requirements of an independent contractor under the law known as the Employee Classification Act.

(2) If you believe you or someone else has not been properly classified as an employee or an independent contractor under the Employee Classification Act, contact the Department of Labor.

Source:Laws 2010, LB563, § 10.

48-2911. Contracts; affidavit required; rescission.

Any contract between the state or a political subdivision and a contractor shall require that each contractor who performs construction or delivery service pursuant to the contract submit to the state or political subdivision an affidavit attesting that (1) each individual performing services for such contractor is properly classified under the Employee Classification Act, (2) such contractor has completed a federal I-9 immigration form and has such form on file for each employee performing services, (3) such contractor has complied with section 4-114, (4) such contractor has no reasonable basis to believe that any individual performing services for such contractor is an undocumented worker, and (5) as of the time of the contract, such contractor is not barred from contracting with the state or any political subdivision pursuant to section 48-2907 or 48-2912. Such contract shall also require that the contractor follow the provisions of the Employee Classification Act. A violation of the act by a contractor is grounds for rescission of the contract by the state or political subdivision.

Source:Laws 2010, LB563, § 11; Laws 2018, LB953, § 3.

48-2912. Contractor; false affidavit; penalties.

Any contractor who knowingly provides a false affidavit under section 48-2911 to the state or political subdivision shall be subject to the penalties of perjury and upon a second or subsequent violation shall be barred from contracting with the state or any political subdivision for a period of three years after the date of discovery of the falsehood.

Source:Laws 2010, LB563, § 12.

Cross References

Perjury, penalty, see section 28-915.

48-3001. Act, how cited.

Sections 48-3001 to 48-3011 shall be known and may be cited as the Teleworker Job Creation Act.

Source:Laws 2010, LB1081, § 1.

48-3002. Legislative findings and declarations.

The Legislature hereby finds and declares that:

(1) Current economic conditions in the state have resulted in unemployment, loss of jobs, and difficulty in attracting new jobs; and

(2) It is the policy of the state to make revisions in Nebraska's job training structure to encourage businesses to promote the creation of and training for new jobs which can be performed in the home within the state.

Source:Laws 2010, LB1081, § 2.

48-3003. Terms, defined.

For purposes of the Teleworker Job Creation Act:

(1) Application filing date means the date that the employer files an application for an agreement with the director under the act;

(2) Base year means the three hundred sixty-five days immediately preceding the application filing date;

(3) Base-year employee means any individual who was employed in Nebraska and subject to the Nebraska income tax on compensation received from the employer or its predecessors during the base year and who is employed at the project;

(4) Director means the Director of Economic Development;

(5) Employer means a corporation, partnership, limited liability company, cooperative, limited cooperative association, or joint venture, together with such other entities that are, or would be if incorporated, members of the same unitary group as defined in section 77-2734.04, that employs the teleworkers for which the job training reimbursements are applied for under the act;

(6) Qualified training program means a training program which has the following features: (a) The program has at least fifteen hours of instruction per trainee, all of which will occur in the trainee's residence; (b) trainees are each paid at least the federal minimum hourly wage per hour of training performed; (c) trainees are being trained as teleworkers; and (d) the program requires the trainees to pass job-related tests established by the employer;

(7) Qualifying employee means a teleworker who has the following characteristics: (a) The teleworker constitutes an employee of the employer under section 77-2753; (b) the teleworker resides in Nebraska at the time of his or her employment application according to his or her statement on his or her employment application; (c) the teleworker completes a qualified training program; (d) the teleworker is not a base-year employee; (e) the teleworker is not required to purchase a computer from the employer; (f) the teleworker has passed such job-related tests required under the qualified training program; (g) the teleworker has passed a criminal background check as required by the employer; and (h) the teleworker has been allowed to complete the hiring process paperwork from his or her residence, except for any drug testing and notarized proof of identity, which can be performed at such location directed by the employer; and

(8) Teleworker means a person who works for the employer from his or her residence through the use of telecommunication systems, such as the telephone and the Internet, for inbound-only service and order-taking sales calls, which calls may also include the upselling of related products or services.

Source:Laws 2010, LB1081, § 3.

48-3004. Job training reimbursements; application; contents; confidentiality; director; duties; written agreement; contents.

(1) To earn the job training reimbursements set forth in the Teleworker Job Creation Act, an employer shall file an application for an agreement with the director. An application may be filed at any time on or after April 8, 2010.

(2) The application shall contain:

(a) A written statement describing the expected employment of qualifying employees in this state;

(b) Sufficient documents, plans, and specifications as required by the director to support the plan and to define a project; and

(c) A copy of the letter submitted to the director seeking approval of the employer's qualified training program.

(3) The application and all supporting information shall be confidential except, for each project:

(a) The name of the employer;

(b) The amount of the job training reimbursement;

(c) The number of persons trained, with such number divided into three categories: The number who reside in rural areas; the number who reside in poverty areas; and the number who reside in all other parts of Nebraska, based on the rural areas and poverty areas described in section 48-3006; and

(d) The amount of total wages and other payments subject to withholding, as defined in section 77-2753, paid by the employer to all teleworkers who reside in Nebraska, with such residence as determined by the statement of the qualifying employee on his or her employment application, within three hundred sixty-five days prior to the date of application, for the year of the project, and for the following twelve months.

The employer shall be required to provide this information to the director upon written request by the director.

(4)(a) The director shall approve the application and authorize the total amount of job training reimbursements expected to be earned as a result of the project if he or she is satisfied that (i) the plan in the application defines a project that meets the eligibility requirements established within the Teleworker Job Creation Act and (ii) such requirements will be reached within three hundred sixty-five calendar days after the application filing date. The director shall use the subaccount created under subsection (3) of section 81-1201.21 to provide reimbursements allowed by the act for the training of teleworkers.

(b) The director shall not approve further applications once the director has approved seven project applications filed before the end of fiscal year 2010-11 and the expected job training reimbursements from the approved projects total one million fifty thousand dollars in fiscal year 2010-11. Applications for an agreement shall for purposes of this limit be approved in the order in which they are received by the director.

(c) An employer and the director may enter into agreements for more than one project, up to a total of five approved project applications filed before the end of fiscal year 2010-11. The projects may be either sequential or concurrent. No new qualifying employees shall be included in more than one project for meeting the project requirements or the creation of job training reimbursements. When projects overlap and the plans do not clearly specify, the employer shall specify to which project the employment belongs. The employer has until it submits its request for reimbursement to the director to designate to which project a qualifying employee belongs. The employer may not receive job training reimbursements for a qualifying employee until the employer designates to which project that qualifying employee belongs. Such designation shall be made on such form to be filed with the director as the director shall direct.

(5) After approval, the employer and the director shall enter into a written agreement. The employer shall agree to complete the project, and the director, on behalf of the State of Nebraska, shall designate the approved plans of the employer as a project and, in consideration of the employer's agreement, agree to allow the employer to receive the job training reimbursements contained in the Teleworker Job Creation Act up to the total amount of job training reimbursements that were authorized by the director. The application and all supporting documentation, to the extent approved, shall be considered a part of the agreement. The agreement shall state:

(a) The number of qualifying employees required by the act for the project;

(b) The time period under the act in which the required level must be met;

(c) The documentation the employer will need to supply when requesting the job training reimbursements under the act;

(d) The date the application was filed; and

(e) The maximum amount of job training reimbursements authorized.

Source:Laws 2010, LB1081, § 4.

48-3005. Employer; submit description of training program.

(1) To be eligible to file an application for an agreement with the director under the Teleworker Job Creation Act, the employer shall submit a description of its training program to the director for review.

(2) If the employer's training program meets the requirements to constitute a qualified training program under the act, the director shall approve such program and provide the employer with an approval letter.

Source:Laws 2010, LB1081, § 5.

48-3006. Job training reimbursements; employer; requirements; amount of reimbursements.

(1) Job training reimbursements shall be made to any employer who has an approved application pursuant to the Teleworker Job Creation Act and who trains at least four hundred qualifying employees in a qualified training program within three hundred sixty-five calendar days from the application filing date and offers employment to those qualifying employees to work for the employer as a teleworker. The employer shall, to the extent of available job positions, give a hiring priority preference, over other similarly qualified applicants, to those applicants who (a) reside in Nebraska counties of less than one hundred thousand inhabitants, as determined by the most recent federal decennial census, with such residence as determined by the statement of the qualifying employee on his or her employment application, or (b) reside in areas of high concentration of poverty within the corporate limits of a city or village consisting of one or more contiguous census tracts, as determined by the most recent federal decennial census, which contain a percentage of persons below the poverty line of greater than thirty percent, and all census tracts contiguous to such tract or tracts, as determined by the most recent federal decennial census. Such job positions shall pay a wage of at least the then-required minimum hourly wage required by federal law. If the employer fails to provide such a hiring priority preference to one or more of the persons entitled to it, then the employer shall lose the right to one job training reimbursement for each such failure.

(2) The amount of the job training reimbursements allowed under subsection (1) of this section shall be three hundred dollars for each new qualifying employee hired by the employer after the application filing date, up to a total of five hundred qualifying employees per project, resulting in a maximum reimbursement per project of one hundred fifty thousand dollars.

Source:Laws 2010, LB1081, § 6.

48-3007. Request; form; contents.

A request for job training reimbursements may be filed annually or quarterly by the employer on a form required by the director. Each request shall contain verification of the number of qualifying employees, designated by project, for which the employer has met the requirements of the Teleworker Job Creation Act, and such amounts shall be paid to the employer upon approval by the director.

Source:Laws 2010, LB1081, § 7.

48-3008. Department of Economic Development; audit employer.

The Department of Economic Development shall, prior to making the job training reimbursement, audit the employer for compliance with the Teleworker Job Creation Act. The department may utilize the subaccount created under subsection (3) of section 81-1201.21 to support the costs of audits and administration of the Teleworker Job Creation Act.

Source:Laws 2010, LB1081, § 8.

48-3009. Right to reimbursement and agreement under act; not transferable; exception.

(1) The right to job training reimbursements and the agreement under the Teleworker Job Creation Act shall not be transferable except when a project covered by an agreement is transferred by sale or lease to another employer or in an acquisition of assets qualifying under section 381 of the Internal Revenue Code of 1986.

(2) The acquiring employer, as of the date of notification of the director of the completed transfer, shall be entitled to any unused job training reimbursements and to any future job training reimbursements allowable under the act.

Source:Laws 2010, LB1081, § 9.

48-3010. Job training reimbursements; interest not allowed.

Interest shall not be allowable on any job training reimbursements earned under the Teleworker Job Creation Act.

Source:Laws 2010, LB1081, § 10.

48-3011. No preclusion from receiving tax incentives or other benefits.

Participation in the Teleworker Job Creation Act shall not preclude an employer from receiving tax incentives or other benefits under other federal, state, or local incentive programs.

Source:Laws 2010, LB1081, § 11.

48-3101. Repealed. Laws 2020, LB741, § 1.

48-3102. Repealed. Laws 2020, LB741, § 1.

48-3103. Repealed. Laws 2020, LB741, § 1.

48-3104. Repealed. Laws 2020, LB741, § 1.

48-3105. Repealed. Laws 2020, LB741, § 1.

48-3106. Repealed. Laws 2020, LB741, § 1.

48-3107. Repealed. Laws 2020, LB741, § 1.

48-3108. Repealed. Laws 2020, LB741, § 1.

48-3201. Act, how cited.

Sections 48-3201 to 48-3205 shall be known and may be cited as the Facilitating Business Rapid Response to State Declared Disasters Act.

Source:Laws 2016, LB913, § 1.

48-3202. Terms, defined.

For purposes of the Facilitating Business Rapid Response to State Declared Disasters Act:

(1) Declared state disaster or emergency means a disaster or emergency event (a) for which a Governor's state of emergency proclamation has been issued or (b) that the President of the United States has declared to be a major disaster or emergency;

(2) Disaster period means the period of time that begins ten days before the Governor's proclamation of a state of emergency or the declaration by the President of the United States of a major disaster or emergency, whichever occurs first, and extending for a period of sixty calendar days following the end of the period specified in the proclamation or declaration or sixty calendar days after the proclamation or declaration if no end is provided. The Governor may extend the disaster period as warranted;

(3) Infrastructure means real and personal property, including buildings, offices, power lines, cable lines, poles, communication lines, pipes, structures, equipment, and related support facilities, owned or used by a public utility, communications network, broadband or Internet service provider, cable or video service provider, natural gas distribution system, or water pipeline that provides service to more than one customer or person;

(4)(a) Out-of-state business means a business entity:

(i) That does not have a presence in the state;

(ii) That does not conduct business in the state;

(iii) That has no registrations, tax filings, or nexus in the state before the declared state disaster or emergency; and

(iv) Whose assistance in repairing, renovating, installing, or building infrastructure or rendering services or other business activities related to a declared state disaster or emergency is requested by the state, a county, city, village, or other political subdivision of the state, or a registered business that owns or uses infrastructure.

(b) Out-of-state business includes a business entity that is affiliated with a registered business solely through common ownership as long as that business entity does not have any registrations, tax filings, or nexus in the state before the declared state disaster or emergency. For purposes of this section, a prior registration as an out-of-state business for a declared state disaster or emergency shall not be considered a registration in this state;

(5) Out-of-state employee means a nonresident individual who does not work in the state except for disaster or emergency related work during a disaster period; and

(6) Registered business means a business entity that is registered or licensed to do business in the state before the declared state disaster or emergency.

Source:Laws 2016, LB913, § 2.

48-3203. Out-of-state business; applicability of state or local employment, licensing, or registration requirements; out-of-state employee; how treated.

(1) An out-of-state business that conducts operations within the state for purposes of assisting in repairing, renovating, installing, or building infrastructure or rendering services or other business activities related to a declared state disaster or emergency during the disaster period shall not be considered to have established a level of presence that would subject the out-of-state business or any of its out-of-state employees to any of the following state or local employment, licensing, or registration requirements:

(a) Registration with the Secretary of State;

(b) Withholding or income tax registration, filing, or remitting requirements; and

(c) Sales, use, or ad valorem tax on equipment brought into the state temporarily for use or consumption during the disaster period if such equipment does not remain in the state after the disaster period.

(2) An out-of-state employee shall not be considered to have established residency or a presence in the state that would require that person or that person's employer to file and pay income taxes, to be subjected to tax withholdings, or to file and pay any other state or local income or withholding tax or fee for work repairing, renovating, installing, or building infrastructure or rendering services or other business activities during the disaster period.

(3) After the conclusion of a disaster period, an out-of-state business or out-of-state employee that remains in the state is fully subject to the state or local employment, licensing, or registration requirements listed in this section or that were otherwise suspended under the Facilitating Business Rapid Response to State Declared Disasters Act during the disaster period.

Source:Laws 2016, LB913, § 3.

48-3204. Out-of-state business; notification to Department of Revenue; information; contents; registered business; duties.

(1) An out-of-state business shall provide notification to the Department of Revenue within ten days after entry to the state during a disaster period that the out-of-state business is in the state for purposes of responding to the declared state disaster or emergency. The out-of-state business shall provide to the department information related to the out-of-state business including, but not limited to, the following:

(a) Name;

(b) State of domicile;

(c) Principal business address;

(d) Federal employer identification number;

(e) The date when the out-of-state business entered the state; and

(f) Contact information while the out-of-state business is in this state.

(2) A registered business shall provide the notification required in subsection (1) of this section for an affiliate of the registered business that enters the state as an out-of-state business. The notification under this subsection shall also include contact information for the registered business in the state.

Source:Laws 2016, LB913, § 4.

48-3205. Work pursuant to request for bid or request for proposals; how treated.

The Facilitating Business Rapid Response to State Declared Disasters Act shall not grant exemptions authorized by the act to any out-of-state business performing work pursuant to a request for bid or request for proposals by a state agency or political subdivision.

Source:Laws 2016, LB913, § 5.

48-3301. Act, how cited.

Sections 48-3301 to 48-3305 shall be known and may be cited as the Nebraska Workforce Innovation and Opportunity Act.

Source:Laws 2016, LB1110, § 1.

48-3302. Legislative findings and declarations.

The Legislature finds and declares:

(1) In order for Nebraska to remain prosperous and competitive, it needs to have a well-educated and highly skilled workforce;

(2) The following principles shall guide the state's workforce investment system:

(a) Workforce investment programs and services shall be responsive to the needs of employers, workers, and students by accomplishing the following:

(i) Providing Nebraska students and workers with the skills necessary to successfully compete in the global economy;

(ii) Producing greater numbers of individuals who obtain industry-recognized certificates and career-oriented degrees in competitive and emerging industry sectors and filling critical labor market skills gaps;

(iii) Adapting to rapidly changing local and regional labor markets as specific workforce skill requirements change over time;

(iv) Preparing workers for jobs that pay well and foster economic security and upward mobility; and

(v) Aligning employment programs, resources, and planning efforts regionally around industry sectors that drive regional employment to connect services and training directly to jobs;

(b) State and local workforce development boards are encouraged to collaborate with other public and private institutions, including businesses, unions, nonprofit organizations, schools from kindergarten through grade twelve, career technical education programs, adult career technical education and basic skills programs, apprenticeships, community college career technical education and basic skills programs, entrepreneurship training programs, where appropriate, and county-based social and employment services, to better align resources across workforce, training, education, and social service delivery systems and build a well-articulated workforce investment system by accomplishing the following:

(i) Adopting local and regional training and education strategies that build on the strengths and fill the gaps in the education and workforce development pipeline in order to address the needs of job seekers, workers, and employers within regional labor markets by supporting sector strategies; and

(ii) Leveraging resources across education and workforce training delivery systems to build career pathways and fill critical skills gaps;

(c) Workforce investment programs and services shall be data-driven and evidence-based when setting priorities, investing resources, and adopting practices;

(d) Workforce investment programs and services shall develop strong partnerships with the private sector, ensuring industry involvement in needs assessment, planning, and program evaluation, and:

(i) Shall encourage industry involvement by developing strong partnerships with an industry's employers and the unions that represent the industry's workers; and

(ii) May consider the needs of employers and businesses of all sizes, including large, medium, small, and microenterprises, when setting priorities, investing resources, and adopting practices;

(e) Workforce investment programs and services shall be outcome-oriented and accountable, measuring results for program participants, including, but not limited to, outcomes related to program completion, employment, and earnings; and

(f) Programs and services shall be accessible to employers, the self-employed, workers, and students who may benefit from their operation, including individuals with employment barriers, such as persons with economic, physical, or other barriers to employment;

(3) Screening designed to detect unidentified disabilities, including learning disabilities, improves workforce preparation and enhances the use of employment and training resources;

(4) Section 134(c)(2) of the federal Workforce Innovation and Opportunity Act, 29 U.S.C. 3174(c)(2), allows for the use of funds for the initial assessment of skill levels, aptitudes, abilities, and support services, including, when appropriate, comprehensive and specialized assessments of skill levels and service needs, including, but not limited to, diagnostic testing and the use of other assessment tools and indepth interviewing and evaluation to identify employment barriers and appropriate employment goals; and

(5) One-stop career centers are encouraged to maximize the use of federal Workforce Innovation and Opportunity Act resources and other federal and state workforce development resources for screening designed to detect unidentified disabilities, and if indicated, to provide appropriate diagnostic assessment.

Source:Laws 2016, LB1110, § 2.

48-3303. Career pathway, defined.

For purposes of the Nebraska Workforce Innovation and Opportunity Act, career pathway means an identified series of positions, work experiences, or educational benchmarks or credentials with multiple access points that offers occupational and financial advancement within a specified career field or related fields over time. Career pathways offer combined programs of rigorous and high-quality education, training, and other services that do all of the following:

(1) Align with the skill needs of industries in the state and regional economies;

(2) Prepare an individual to be successful in any of a full range of secondary or postsecondary education options, including apprenticeships registered under the National Apprenticeship Act, 29 U.S.C. 50 et seq., except apprenticeships under 29 U.S.C. 3226;

(3) Include counseling to support an individual in achieving the individual's education and career goals;

(4) Include, as appropriate, education offered concurrently with and in the same context as workforce preparation activities and training for a specific occupation;

(5) Organize education, training, and other services to meet the particular needs of an individual in a manner that accelerates the educational and career advancement of the individual to the extent practicable;

(6) Enable an individual to attain a secondary school diploma or its recognized equivalent and at least one recognized postsecondary credential; and

(7) Help an individual enter or advance within a specific occupation.

Source:Laws 2016, LB1110, § 3.

48-3304. Commissioner of Labor; performance report; duties.

On or before November 30 of each year, the Commissioner of Labor shall submit a copy of the performance report required by section 116(d) of the federal Workforce Innovation and Opportunity Act, 29 U.S.C. 3141(d), to the Governor, the Legislature, and the Nebraska Workforce Development Board. The report shall cover the prior program year and shall include the total amount of federal funding provided to the state and to each of the local workforce development areas for the adult, youth, and dislocated worker programs and the amount expended within each program for training services. The report to the Legislature shall be submitted electronically.

Source:Laws 2016, LB1110, § 4.

48-3305. Department of Labor; powers; rules and regulations.

(1) The Department of Labor shall have the authority to administer the requirements of Title I of the federal Workforce Innovation and Opportunity Act, including, but not limited to, establishing accounting, monitoring, auditing, and reporting procedures and criteria in order to ensure state compliance with the objectives and requirements of Title I of the federal Workforce Innovation and Opportunity Act.

(2) The department may adopt and promulgate any rules and regulations necessary to implement the Nebraska Workforce Innovation and Opportunity Act.

Source:Laws 2016, LB1110, § 5.

48-3401. Act, how cited.

Sections 48-3401 to 48-3407 shall be known and may be cited as the Sector Partnership Program Act.

Source:Laws 2016, LB1110, § 6.

48-3402. Legislative findings, declarations, and intent.

(1) The Legislature finds and declares that sector partnerships are a proven strategy for engaging employers in key industries, helping workers train for and access good jobs, and coordinating education, training, and workforce development activities in response to industry needs.

(2) It is the intent of the Legislature and the purpose of the Sector Partnership Program Act to support local sector partnerships that will close skill gaps in high-demand sectors of business and industry. By conducting labor availability and skills gap studies, the Sector Partnership Program will connect education and training providers with employers and will ensure that the state’s workforce and economic development activities align with the needs of employers in the state’s key industries.

Source:Laws 2016, LB1110, § 7.

48-3403. Terms, defined.

For purposes of the Sector Partnership Program Act:

(1) Department means the Department of Labor;

(2) Local area means a workforce development area authorized by the federal Workforce Innovation and Opportunity Act and established in Nebraska;

(3) Local sector partnership or partnership means a workforce collaborative that organizes key stakeholders in a particular sector of business or industry in a local area into a working group that focuses on the shared goals and human resources needs of such sector;

(4) Local workforce development board means a local workforce development board authorized by the federal Workforce Innovation and Opportunity Act and established in Nebraska; and

(5) Nebraska Workforce Development Board means the state workforce development board authorized by the federal Workforce Innovation and Opportunity Act and established in Nebraska.

Source:Laws 2016, LB1110, § 8.

48-3404. Sector Partnership Program; created; Department of Labor; duties; Department of Economic Development; contracts authorized; completed studies; public information.

(1) The Sector Partnership Program is created. The program shall be administered by the Department of Labor in conjunction with the Department of Economic Development. In establishing and administering the program, the Department of Labor shall consult with the Nebraska Workforce Development Board, the Department of Economic Development, and the State Department of Education.

(2) The Department of Labor, in conjunction with the Department of Economic Development, shall:

(a) Establish a study process to conduct labor availability and skills gap studies;

(b) Determine the laborshed areas of the state; and

(c) Complete labor availability and skills gap studies for all laborshed areas of the state on a rotating basis as determined by the Department of Labor.

(3) The Department of Labor and the Department of Economic Development may contract with other entities to conduct additional labor availability, skills gap, and sector partnership studies.

(4) The Department of Labor, in conjunction with the Department of Economic Development, shall provide technical assistance to local sector partnerships and persons interested in forming partnerships. Technical assistance may include providing: (a) Direction and counseling on forming and sustaining partnerships; (b) professional development and capacity building through academies, toolkits, and peer sharing networks; (c) customized labor market and economic analysis; and (d) information on career pathways, worker training resources, skill standards, and industry-based certifications.

(5) Except to the extent otherwise provided in state or federal law, all completed labor availability and skills gap studies shall be public information.

Source:Laws 2016, LB1110, § 9.

48-3405. Sector Partnership Program Fund; created; use; investment.

(1) The Sector Partnership Program Fund is created. The fund shall be administered by the Department of Labor. The fund shall be used to pursue sector partnership activities, including, but not limited to, labor availability and skills gap studies by the Department of Labor and the Department of Economic Development pursuant to the Sector Partnership Program Act. The fund may also be used for administrative costs of the Department of Labor and the Department of Economic Development associated with sector partnership activities.

(2) The fund shall consist of such money as is: (a) Transferred to the fund from the Job Training Cash Fund and the Nebraska Training and Support Cash Fund; (b) otherwise appropriated to the fund by the Legislature; (c) donated as gifts, bequests, or other contributions to the fund from public or private entities; and (d) made available by any department or agency of the United States if so directed by such department or agency. Any money in the fund available for investment shall be invested by the state investment officer pursuant to the Nebraska Capital Expansion Act and the Nebraska State Funds Investment Act.

Source:Laws 2016, LB1110, § 10.

Cross References

Nebraska Capital Expansion Act, see section 72-1269.

Nebraska State Funds Investment Act, see section 72-1260.

48-3406. Report.

On or before July 31 of each year, the department shall provide an annual report to the Governor and the Business and Labor Committee of the Legislature. The report submitted to the Legislature shall be submitted electronically. The report shall detail the process and results of the labor availability and skills gap studies.

Source:Laws 2016, LB1110, § 11.

48-3407. Rules and regulations.

The department may adopt and promulgate rules and regulations to carry out the Sector Partnership Program Act.

Source:Laws 2016, LB1110, § 12.

48-3501. Act, how cited.

Sections 48-3501 to 48-3511 shall be known and may be cited as the Workplace Privacy Act.

Source:Laws 2016, LB821, § 1.

48-3502. Terms, defined.

For purposes of the Workplace Privacy Act:

(1) Adverse action means the discharge of an employee, a threat against an employee, or any other act against an employee that negatively affects the employee’s employment;

(2) Applicant means a prospective employee applying for employment;

(3) Electronic communication device means a cellular telephone, personal digital assistant, electronic device with mobile data access, laptop computer, pager, broadband personal communication device, two-way messaging device, electronic game, or portable computing device;

(4) Employee means an individual employed by an employer;

(5) Employer means a public or nonpublic entity or an individual engaged in a business, an industry, a profession, a trade, or other enterprise in the state, including any agent, representative, or designee acting directly or indirectly in the interest of such an employer; and

(6)(a) Personal Internet account means an individual’s online account that requires login information in order to access or control the account.

(b) Personal Internet account does not include:

(i) An online account that an employer or educational institution supplies or pays for, except when the employer or educational institution pays only for additional features or enhancements to the online account; or

(ii) An online account that is used exclusively for a business purpose of the employer.

Source:Laws 2016, LB821, § 2.

48-3503. Employer; prohibited acts.

No employer shall:

(1) Require or request that an employee or applicant provide or disclose any user name or password or any other related account information in order to gain access to the employee's or applicant's personal Internet account by way of an electronic communication device;

(2) Require or request that an employee or applicant log into a personal Internet account by way of an electronic communication device in the presence of the employer in a manner that enables the employer to observe the contents of the employee’s or applicant’s personal Internet account or provides the employer access to the employee's or applicant's personal Internet account;

(3) Require an employee or applicant to add anyone, including the employer, to the list of contacts associated with the employee's or applicant’s personal Internet account or require or otherwise coerce an employee or applicant to change the settings on the employee's or applicant's personal Internet account which affects the ability of others to view the content of such account; or

(4) Take adverse action against, fail to hire, or otherwise penalize an employee or applicant for failure to provide or disclose any of the information or to take any of the actions specified in subdivisions (1) through (3) of this section.

Source:Laws 2016, LB821, § 3.

48-3504. Waiver of right or protection under act prohibited.

An employer shall not require an employee or applicant to waive or limit any protection granted under the Workplace Privacy Act as a condition of continued employment or of applying for or receiving an offer of employment. Any agreement to waive any right or protection under the act is against the public policy of this state and is void and unenforceable.

Source:Laws 2016, LB821, § 4.

48-3505. Retaliation or discrimination.

An employer shall not retaliate or discriminate against an employee or applicant because the employee or applicant:

(1) Files a complaint under the Workplace Privacy Act; or

(2) Testifies, assists, or participates in an investigation, proceeding, or action concerning a violation of the act.

Source:Laws 2016, LB821, § 5.

48-3506. Employee acts prohibited.

An employee shall not download or transfer an employer's private proprietary information or private financial data to a personal Internet account without authorization from the employer. This section shall not apply if the proprietary information or the financial data is otherwise disclosed by the employer to the public pursuant to other provisions of law or practice.

Source:Laws 2016, LB821, § 6.

48-3507. Employer's rights not limited by act.

Nothing in the Workplace Privacy Act limits an employer's right to:

(1) Promulgate and maintain lawful workplace policies governing the use of the employer's electronic equipment, including policies regarding Internet use and personal Internet account use;

(2) Request or require an employee or applicant to disclose access information to the employer to gain access to or operate:

(a) An electronic communication device supplied by or paid for in whole or in part by the employer; or

(b) An account or service provided by the employer, obtained by virtue of the employee's employment relationship with the employer, or used for the employer's business purposes;

(3) Restrict or prohibit an employee’s access to certain websites while using an electronic communication device supplied by or paid for in whole or in part by the employer or while using an employer’s network or resources, to the extent permissible under applicable laws;

(4) Monitor, review, access, or block electronic data stored on an electronic communication device supplied by or paid for in whole or in part by the employer or stored on an employer’s network, to the extent permissible under applicable laws;

(5) Access information about an employee or applicant that is in the public domain or is otherwise obtained in compliance with the Workplace Privacy Act;

(6) Conduct an investigation or require an employee to cooperate in an investigation under any of the following circumstances:

(a) If the employer has specific information about potentially wrongful activity taking place on the employee’s personal Internet account, for the purpose of ensuring compliance with applicable laws, regulatory requirements, or prohibitions against work-related employee misconduct; or

(b) If the employer has specific information about an unauthorized download or transfer of the employer's private proprietary information, private financial data, or other confidential information to an employee’s personal Internet account;

(7) Take adverse action against an employee for downloading or transferring an employer’s private proprietary information or private financial data to a personal Internet account without the employer’s authorization;

(8) Comply with requirements to screen employees or applicants before hiring or to monitor or retain employee communications that are established by state or federal law or by a self-regulatory organization as defined in 15 U.S.C. 78c(a)(26), as such section existed on January 1, 2016; or

(9) Comply with a law enforcement investigation conducted by a law enforcement agency.

Source:Laws 2016, LB821, § 7.

48-3508. Law enforcement agency rights.

Nothing in the Workplace Privacy Act limits a law enforcement agency’s right to screen employees or applicants in connection with a law enforcement employment application or a law enforcement officer conduct investigation.

Source:Laws 2016, LB821, § 8.

48-3509. Personal Internet account; employer; duty; liability.

(1) The Workplace Privacy Act does not create a duty for an employer to search or monitor the activity of a personal Internet account.

(2) An employer is not liable under the act for failure to request or require that an employee or applicant grant access to, allow observation of, or disclose information that allows access to or observation of the employee’s or applicant’s personal Internet account.

Source:Laws 2016, LB821, § 9.

48-3510. Employer; limit on liability and use of certain information.

If an employer inadvertently learns the user name, password, or other means of access to an employee's or applicant’s personal Internet account through the use of otherwise lawful technology that monitors the employer's computer network or employer-provided electronic communication devices for service quality or security purposes, the employer is not liable for obtaining the information, but the employer shall not use the information to access the employee's or applicant's personal Internet account or share the information with anyone. The employer shall delete such information as soon as practicable.

Source:Laws 2016, LB821, § 10.

48-3511. Civil action authorized.

Upon violation of the Workplace Privacy Act, an aggrieved employee or applicant may, in addition to any other available remedy, institute a civil action within one year after the date of the alleged violation or the discovery of the alleged violation, whichever is later. The employee or applicant shall file an action directly in the district court of the county where such alleged violation occurred. The district court shall file and try such case as any other civil action, and any successful complainant shall be entitled to appropriate relief, including temporary or permanent injunctive relief, general and special damages, reasonable attorney's fees, and costs.

Source:Laws 2016, LB821, § 11; Laws 2018, LB193, § 85.

48-3601. Act, how cited.

Sections 48-3601 to 48-3609 shall be known and may be cited as the Nebraska Student-Athlete Name, Image, or Likeness Rights Act.

Source:Laws 2020, LB962, § 1; Laws 2022, LB1137, § 1.

48-3602. Terms, defined.

For purposes of the Nebraska Student-Athlete Name, Image, or Likeness Rights Act:

(1) Athletic grant-in-aid means the money given to a student-athlete by a postsecondary institution for tuition, fees, room, board, and textbooks as consideration for the student-athlete's participation in an intercollegiate sport for such postsecondary institution and does not include compensation for the use of the student-athlete's name, image, or likeness rights or athletic reputation;

(2) Collegiate athletic association means any athletic association, conference, or other group or organization with authority over intercollegiate sports;

(3) Compensation for the use of a student-athlete's name, image, or likeness rights or athletic reputation includes, but is not limited to, consideration received pursuant to an endorsement contract as defined in section 48-2602;

(4) Intercollegiate sport has the same meaning as in section 48-2602;

(5) Postsecondary institution has the same meaning as in section 85-2403;

(6) Professional representation includes, but is not limited to, representation provided by an athlete agent holding a certificate of registration under the Nebraska Uniform Athlete Agents Act, a financial advisor registered under the Securities Act of Nebraska, or an attorney admitted to the bar by order of the Supreme Court of this state;

(7) Sponsor means an individual or organization that pays money or provides goods or services in exchange for advertising rights;

(8) Student-athlete has the same meaning as in section 48-2602; and

(9) Team contract means a contract between a postsecondary institution or a postsecondary institution's athletic department and a sponsor.

Source:Laws 2020, LB962, § 2; Laws 2022, LB1137, § 2.

Cross References

Nebraska Uniform Athlete Agents Act, see section 48-2601.

Securities Act of Nebraska, see section 8-1123.

48-3603. Name, image, or likeness rights or athletic reputation; compensation of student-athlete; effect; limitations.

(1) No postsecondary institution shall uphold any rule, requirement, standard, or limitation that prevents a student-athlete from fully participating in an intercollegiate sport for such postsecondary institution because such student-athlete earns compensation for the use of such student-athlete's name, image, or likeness rights or athletic reputation.

(2) No collegiate athletic association shall penalize a student-athlete or prevent a student-athlete from fully participating in an intercollegiate sport because such student-athlete earns compensation for the use of such student-athlete's name, image, or likeness rights or athletic reputation.

(3) No collegiate athletic association shall penalize a postsecondary institution or prevent a postsecondary institution from fully participating in an intercollegiate sport because a student-athlete participating in an intercollegiate sport for such postsecondary institution earns compensation for the use of such student-athlete's name, image, or likeness rights or athletic reputation.

(4) No postsecondary institution shall allow compensation earned by a student-athlete for the use of such student-athlete's name, image, or likeness rights or athletic reputation to affect the duration, amount, or eligibility for or renewal of any athletic grant-in-aid or other institutional scholarship, except that compensation earned by a student-athlete for the use of such student-athlete's name, image, or likeness rights or athletic reputation may be used for the calculation of income for determining eligibility for need-based financial aid.

(5) The compensation a student-athlete earns for the use of the student-athlete's name, image, or likeness must be for services actually performed. Student-athletes shall not be paid for contracts that (a) extend beyond the student-athlete's participation in an athletic program at a postsecondary institution, (b) involve the sale or exchange of awards or other items received for athletic participation, (c) involve compensation from a postsecondary institution or a postsecondary institution's employees, or (d) provide compensation for work not performed.

(6) Student-athletes may be prohibited from entering into contracts or agreements or engaging in activity related to the use of the student-athlete's name, image, or likeness for products, services, entities, or activities reasonably deemed to be inconsistent with the educational mission of the postsecondary institution by such postsecondary institution.

(7) Nothing in the Nebraska Student-Athlete Name, Image, or Likeness Rights Act shall limit the ability of a postsecondary institution to establish and enforce standards, requirements, regulations, or obligations for such postsecondary institution's students not inconsistent with the act.

(8) Nothing in the Nebraska Student-Athlete Name, Image, or Likeness Rights Act grants to a student-athlete the right to use any name, trademark, service mark, logo, symbol, or other intellectual property that belongs to the postsecondary institution, regardless of whether the intellectual property is registered, to further the student-athlete's opportunities to earn compensation for the use of the student-athlete's name, image, or likeness.

Source:Laws 2020, LB962, § 3; Laws 2022, LB1137, § 3.

48-3604. Name, image, or likeness or athletic reputation; contract or agreement, disclosure required; limitation.

Any student-athlete who enters into a contract or agreement that provides compensation for the use of such student-athlete's name, image, or likeness rights or athletic reputation shall disclose such contract or agreement to an official of the postsecondary institution for which such student-athlete participates in an intercollegiate sport. The official to which such contract or agreement shall be disclosed shall be designated by each postsecondary institution, and the designation shall be communicated in writing to each student-athlete participating in an intercollegiate sport for such postsecondary institution. Unless otherwise required by law, each postsecondary institution shall be prohibited from disclosing any terms of such contract or agreement that the student-athlete or the student-athlete's professional representation deems to be a trade secret or otherwise nondisclosable.

Source:Laws 2020, LB962, § 4; Laws 2022, LB1137, § 4.

48-3605. Name, image, and likeness rights or athletic reputation; contract or agreement, restrictions; conflict with team contract, effect.

(1) No student-athlete shall enter into a contract or agreement with a sponsor that provides compensation to the student-athlete for use of the student-athlete's name, image, and likeness rights or athletic reputation if (a) such contract or agreement requires such student-athlete to display such sponsor's apparel or to otherwise advertise for the sponsor during official team activities and (b) compliance with such contract or agreement requirement would conflict with a team contract. Any postsecondary institution asserting such conflict shall disclose to the student-athlete and the student-athlete's professional representation, if applicable, the full team contract that is asserted to be in conflict. The student-athlete and the student-athlete's professional representation, if applicable, shall be prohibited from disclosing any terms of a team contract that the postsecondary institution deems to be a trade secret or otherwise nondisclosable.

(2) No team contract shall prevent a student-athlete from receiving compensation for the use of such student-athlete's name, image, and likeness rights or athletic reputation when the student-athlete is not engaged in official team activities.

Source:Laws 2020, LB962, § 5; Laws 2022, LB1137, § 5.

48-3606. Student-athlete; obtain professional representation; effect; postsecondary institutions; education and training.

(1) No postsecondary institution or collegiate athletic association shall penalize a student-athlete or prevent a student-athlete from fully participating in an intercollegiate sport because such student-athlete obtains professional representation in relation to a contract or legal matter related to the use of the student-athlete's name, image, or likeness.

(2) No collegiate athletic association shall penalize a postsecondary institution or prevent a postsecondary institution from fully participating in an intercollegiate sport because a student-athlete participating in an intercollegiate sport for such postsecondary institution obtains professional representation in relation to a contract or legal matter related to the use of the student-athlete's name, image, or likeness.

(3) A postsecondary institution may offer education and training to student-athletes to aid them in understanding the opportunities that may become available to them for the use of their name, image, or likeness, including education in the areas of networking and communication, brand-building and management, financial literacy, and compliance.

Source:Laws 2020, LB962, § 6; Laws 2022, LB1137, § 6.

48-3607. Act; effect on contracts.

(1) The Nebraska Student-Athlete Name, Image, or Likeness Rights Act shall not be applied in a manner that violates any contract in effect prior to the date determined by a postsecondary institution pursuant to section 48-3609 with regard to such postsecondary institution or any student-athlete who participates in an intercollegiate sport for such postsecondary institution for as long as such contract remains in effect without modification.

(2) On and after the date determined by a postsecondary institution pursuant to section 48-3609, such postsecondary institution shall not enter into, modify, or renew any contract in a manner that conflicts with the Nebraska Student-Athlete Name, Image, or Likeness Rights Act.

Source:Laws 2020, LB962, § 7; Laws 2022, LB1137, § 7.

48-3608. Civil action authorized; damages, procedure; limitation.

(1) A student-athlete or a postsecondary institution aggrieved by a violation of the Nebraska Student-Athlete Name, Image, or Likeness Rights Act may bring a civil action against the postsecondary institution or collegiate athletic association committing such violation.

(2) A plaintiff who prevails in an action under the Nebraska Student-Athlete Name, Image, or Likeness Rights Act shall be entitled to:

(a) Actual damages;

(b) Such preliminary and other equitable or declaratory relief as may be appropriate; and

(c) Reasonable attorney's fees and other litigation costs reasonably incurred.

(3) A public postsecondary institution may be sued upon claims arising under the Nebraska Student-Athlete Name, Image, or Likeness Rights Act only to the extent allowed under the State Tort Claims Act, the State Contract Claims Act, or the State Miscellaneous Claims Act, except that a civil action for a violation of the Nebraska Student-Athlete Name, Image, or Likeness Rights Act may only be brought within one year after the cause of action has accrued.

Source:Laws 2020, LB962, § 8; Laws 2022, LB1137, § 8.

Cross References

State Contract Claims Act, see section 81-8,302.

State Miscellaneous Claims Act, see section 81-8,294.

State Tort Claims Act, see section 81-8,235.

48-3609. Act, applicability.

Each postsecondary institution shall determine a date on or before July 1, 2023, upon which the Nebraska Student-Athlete Name, Image, or Likeness Rights Act shall begin to apply to such postsecondary institution and the student-athletes who participate in an intercollegiate sport for such postsecondary institution and to any collegiate athletic association or professional representation in interactions with such postsecondary institution or student-athletes.

Source:Laws 2020, LB962, § 9; Laws 2022, LB1137, § 9.

48-3701. Act, how cited.

Sections 48-3701 to 48-3704 shall be known and may be cited as the Nebraska Statewide Workforce and Education Reporting System Act.

Source:Laws 2020, LB1160, § 1.

48-3702. Legislative findings.

The Legislature finds that:

(1) In order to promote strong economic development policies, good jobs, growing businesses, and thriving communities, it is the intent of the Legislature that the state support the continued planning and development of the Nebraska Statewide Workforce and Education Reporting System;

(2) As recommended in the 2019 Nebraska Economic Development Task Force Report, it is the long-term goal of the state to target resources and focus data analysis on assessing workforce development and employment success;

(3) The Nebraska Statewide Workforce and Education Reporting System is envisioned as a comprehensive, sustainable, and robust lifelong learning and workforce longitudinal data system serving the needs of the people of Nebraska;

(4) The Nebraska Statewide Workforce and Education Reporting System collaboration has its roots in Legislative Bill 1071 enacted by the One Hundred First Legislature, Second Session, which directed the Board of Regents of the University of Nebraska, the State Board of Education, the Board of Trustees of the Nebraska State Colleges, and the Community College Board of Governors for each community college area to adopt a policy to share student data. In 2019, such partners completed the legal formation of the Nebraska Statewide Workforce and Education Reporting System as a joint public entity under the Interlocal Cooperation Act in order to cooperate for mutual advantage with regard to data initiatives; and

(5) The Nebraska Statewide Workforce and Education Reporting System shall be a comprehensive, sustainable, and robust lifelong learning and workforce longitudinal data system to enable the training of tomorrow's workforce, today.

Source:Laws 2020, LB1160, § 2.

Cross References

Interlocal Cooperation Act, see section 13-801.

48-3703. Nebraska Statewide Workforce and Education Reporting System.

The Nebraska Statewide Workforce and Education Reporting System allows Nebraska to:

(1) Provide workforce-outcomes data to postsecondary institutions to guide program, educator, and institutional improvement;

(2) Support students and parents in understanding what education, training, and career pathways best prepare students for occupational success;

(3) Provide comprehensive data about student success and workforce outcomes to policymakers to inform decisions and resource allocation;

(4) Track workforce outcomes in order to better align programs with demands in the labor market;

(5) Disaggregate student outcomes by race, ethnicity, gender, and economic status in order to identify and close educational attainment gaps; and

(6) Identify the long-term return on investment from early education programs.

Source:Laws 2020, LB1160, § 3.

48-3704. Memorandum of understanding; duties; report.

(1) The Department of Labor shall execute a memorandum of understanding with the Nebraska Statewide Workforce and Education Reporting System before December 31, 2020, to ensure the exchange of available Department of Labor data throughout the prekindergarten to postsecondary education to workforce continuum, and may utilize data and agreements under sections 79-776, 85-110, 85-309, and 85-1511.

(2) On or before December 1, 2022, and on or before each December 1 thereafter, the Nebraska Statewide Workforce and Education Reporting System shall issue a report electronically to the Clerk of the Legislature and the Governor. Such report shall provide an overview of research and analysis conducted, additional data needs for future analysis, and organizational structure and needs.

Source:Laws 2020, LB1160, § 4; Laws 2022, LB1130, § 1.

Category	Experience Factor
1	0.00
2	0.25
3	0.40
4	0.45
5	0.50
6	0.60
7	0.65
8	0.70
9	0.80
10	0.90
11	0.95
12	1.00
13	1.05
14	1.10
15	1.20
16	1.35
17	1.55
18	1.80
19	2.15
20	2.60

State's Reserve Ratio		Yield Factor
1.45 percent and above	=	0.70
1.30 percent up to but not including 1.45	=	0.75
1.15 percent up to but not including 1.30	=	0.80
1.00 percent up to but not including 1.15	=	0.90
0.85 percent up to but not including 1.00	=	1.00
0.70 percent up to but not including 0.85	=	1.10
0.60 percent up to but not including 0.70	=	1.20
0.50 percent up to but not including 0.60	=	1.25
0.45 percent up to but not including 0.50	=	1.30
0.40 percent up to but not including 0.45	=	1.35
0.35 percent up to but not including 0.40	=	1.40
0.30 percent up to but not including 0.35	=	1.45
Below 0.30 percent	=	1.50