Employment Law in Nebraska

Pre-employment/Promotion

Hiring

Under federal law, an employer doesn't have to hire, or promote, the most qualified applicant. But the employer cannot base decisions on personal characteristics that are not job-related. These characteristics often include:

• Age
• Race
• Sex
• Religion
• National origin
• Disability

An interviewer isn't allowed to ask questions relating to these characteristics. Interview questions that aren't allowed include:

• Are you married? Are you planning to get married?
• Do you have children? Are you planning to have children?
• Where were you born?
• What's your sexual orientation?
• Have you ever been arrested?

An interviewer can, however, ask about a personal characteristic if it could hinder your ability to fulfill the job's requirements. Some examples might be:

• Have you ever been convicted of a crime?
• Can you prove that you are eligible to work in the US?
• Can you do this job with, or without, reasonable accommodations?

References

A previous employer is free to provide any non-confidential information about a previous employee, as long as it's true and isn't provided to maliciously harm the employee. An employer, who provides false information that disparages the employee, may be liable for defamation. In order to avoid potential liability, many employers often refuse to comment on a past employee's job performance and confirm only dates of hire and separation, plus wage or salary information. Employment

At Will

In the majority of states, employees not working under an employment contract are deemed to be "at will." At-will employees may be terminated for any reason, so long as it's not illegal. There are numerous illegal reasons for termination. Typically such reasons fall into one of two large categories: illegal discrimination or illegal termination in violation of a public policy. Generally, employees who work under an employment contract can only be terminated for reasons specified in the contract.

Employee Handbooks

While an employer is not required by law to have an employee handbook, in most cases, it is recommended. An employee handbook provides a centralized, complete and certain record of the employer's policies and procedures. An employee handbook also provides more convenient access by employees and managers.

At a minimum, an employee handbook should include:

• A statement regarding the at-will employment relationship
• An equal employment opportunity statement
• A policy regarding sexual and other types of harassment in the workplace
• Internet access, e-mail, and voice mail policies
• The Family Medical Leave Act

The laws regarding an employer's duties and responsibilities arising under an employee handbook are complex, and a licensed attorney should be contacted to review individual circumstances.

Workplace Safety

Federal and state laws require that most employers furnish a place of employment that is free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees. In most instances, an employee may anonymously complain about an unsafe work environment and be protected against employer reprisals.

The Statewide Safety Committee in Nebraska serves the purpose of bringing employers and their employees together in a non-adversarial, cooperative effort to promote safety at each workplace. Nebraska law requires review, determination and enforcement of safety issues with Occupational Safety and Health Administration (OSHA) standards being considered in determining minimum acceptable standards.

Workplace Injury

Workers' compensation laws are designed to compensate employees who have been injured or killed in work related accidents according to a fixed monetary scheme, without having to resort to litigation. Dependents of a fatally injured employee may also be entitled to benefits. Employers may be protected by limits placed on the amount of an employee's recovery.

The Nebraska Workers' Compensation Act is the exclusive remedy of an injured employee if the employer has a workers' compensation insurance policy. The Act applies to every governmental agency created by the state and to every employer in Nebraska that has one or more employees. There are a few exceptions, but almost all employees are covered by the workers' compensation law including employees of private industry, state and local government, part-time employees, minors and employees of charitable organizations.

Your employer is liable for all of your reasonable medical and hospital services, appliances, prescribed drugs, prosthetic devices and other necessary supplies. Benefits are paid at the same interval as wages were paid at the time of your injury. The following wage loss benefits are provided:

• Total disability benefits - these may be either temporary total disability or permanent total disability benefits and they entitle you to two-thirds or your average weekly wage, subject to a maximum and minimum per week for as long as you are unable to work as a result of your injury
• Temporary partial benefits - these are paid when you are able to return to work for a few hours per day or at a job that pays less than the one you had at the time of your injury and are paid at a rate of two-thirds of the difference between your wages at the time of your injury and your earning power thereafter subject to a maximum amount per week
• Permanent partial loss of a member benefits - these are paid for the loss or loss of use of a body part and paid at a rate of two-thirds of your average weekly wage, subject to a maximum and minimum per week times a set number of weeks
• Permanent partial to the body as a whole - these are paid at a rate calculated upon the percentage of disability suffered times two-thirds of your average weekly wage, subject to a maximum per week and limited to a maximum of 300 weeks less the number of weeks of temporary and permanent disability previously received
• Death benefits - these are paid to your widow or widower if your injury results in death and they are paid for life or until remarriage with benefits calculated at 66 2/3% of your average weekly wage at the time of injury if there are no children and at 75% if there are children, subject to a maximum and minimum per week

Sexual Harassment

An employer may be liable to an employee for instances of "sexual harassment," which can include unwelcome sexual advances, conduct or other physical or verbal acts of a sexual nature, which occur in the workplace. The following conduct is generally considered sexual harassment:

• Direct sexual conduct - an employer makes sexual advances or statements
• "Quid pro quo" - job-related benefits are offered in exchange for sexual conduct
• Hostile work environment - an employer maintains an overly sexual work environment

Because the laws determining what conduct, or pattern of conduct, constitutes actionable sexual harassment are complex, a licensed attorney should be contacted to review individual circumstances.

Discrimination and Wrongful Termination

Employers are not allowed to terminate or discriminate against employees for the following reasons:

• Age
• Race
• Sex
• Religion
• National origin
• Disability
• Pregnancy

It's illegal for an employer to consider these characteristics with regard to:

• Promotions
• Job assignments
• Termination
• Wages

And it's illegal for an employer to terminate an employee:

• For refusing to break a law
• In retaliation for filing a discrimination or safety claim
• For taking leave under the Family and Medical Leave Act
• Without following its own stated procedure or policy
• For reasons not contained in the employment contract, if one exists

Family and Medical Leave

The Family Medical Leave Act (FMLA) provides 12 weeks of unpaid leave to qualifying employees who need time off from work to care for their own or an immediate family member's serious health condition. This allows for continued medical benefits and restoration of their original position upon return. An employee is eligible when they:

• Have worked for the same employer for the previous 12 months
• Have worked at least 1,250 hours in the previous 12 months
• Are employed by a "covered" employer, which is:
  • All federal, state, and local governments and agencies
  • Private employers with 50 or more employees for 20 weeks in the calendar year and engaged in interstate commerce

An injury or illness qualifies as a "serious health condition" if it either requires an overnight stay in a medical facility or constitutes "continuing treatment" by a health-care provider. Continuing treatment requires either the employee's incapacity for more than three calendar days and at least two subsequent treatments, or treatment by a health-care provider that results in continuing supervised treatment.

Nebraska employers are required to grant a leave of absence to an adoptive parent if they grant employees a leave of absence when a child of the employee is born. There are exceptions for adoptions of stepchildren and children over certain ages. Post-employment

Unemployment Benefits

Unemployment benefits are based on combinations of federal and state statutes. Unemployment compensation programs are administered by the state and normally provide temporary monetary compensation to workers who have been terminated without cause, through no fault of their own. Employees who voluntarily terminate their employment for "good cause" may also be entitled to benefits.

You must be an insured worker in order to receive unemployment benefits. To qualify for benefits you must meet the minimum monetary requirements of earning at least $1,600 in the base period, which is the first four of the last five completed calendar quarters prior to filing your claim. You must have received at least $800 in each of two separate base period calendar quarters. Besides monetary requirements, you must meet the following requirements in order to receive benefits:

• You must be able to work
• You must be available to work
• You must be actively seeking work each week, unless you will be returning to your former employer in the near future

There is a maximum of 26 payable weeks within the 52 week period following the date your claim is filed. You may receive less than 26 weeks of benefits if you received a disqualification that reduced your total unemployment benefit amount.

COBRA

Under the Consolidated Omnibus Budget Reconciliation Act (COBRA), which is a federal law, employees may be allowed to continue their health insurance benefits, at the employee's expense, for up to 18 months after either voluntary or involuntary termination, if the employer has 20 or more employees.

To qualify for COBRA continuation coverage, an employee must have a qualifying event that causes the employee to lose group health coverage. The following are qualifying events:

• For employees
  • Voluntary or involuntary termination of employment for reasons other than gross misconduct
  • Reduction in numbers of hours worked
• For spouses
  • Loss of coverage by the employee because of one of the qualifying events listed above
  • Covered employee becomes eligible for Medicare
  • Divorce or legal separation of the covered employee
  • Death of the covered employee
• For dependent children
  • Loss of coverage because of any of the qualifying events listed for spouses
  • Loss of status as a dependent child under the plan rules