Nebraska

Document Sample
Nebraska Powered By Docstoc
					       Human Resource
State Employment Law Summary




                    NEBRASKA
                                                       Table of Contents
                                                                                                                                                   Page

Appearance and Grooming.................................................................................................................... 4
   Uniforms ..................................................................................................................................... 4
Arrest and Conviction Records ............................................................................................................. 4
At-Will Employment ............................................................................................................................. 4
Breaks and Rest Periods ........................................................................................................................ 5
Child Labor ............................................................................................................................................ 5
   Federal Law ................................................................................................................................ 5
   Types of Work ............................................................................................................................ 5
     Minors Under 18 ..................................................................................................................... 5
     Minors Under 16 ..................................................................................................................... 5
   Hours of Work ............................................................................................................................ 6
     Minors Under 16 ..................................................................................................................... 6
     Minors Between 14 and 16 ..................................................................................................... 6
     Minors Under 14 ..................................................................................................................... 6
   Permits and Postings ................................................................................................................... 6
COBRA ................................................................................................................................................. 6
   Insurance Continuation ............................................................................................................... 6
Employee Conduct and Work Rules ..................................................................................................... 7
   Guns in the Workplace................................................................................................................ 7
Equal Employment Opportunity and Equal Pay ................................................................................... 7
Family and Medical Leave (FMLA) ..................................................................................................... 7
Files and Access .................................................................................................................................... 8
   Employee Review of Files .......................................................................................................... 8
Hiring Procedures .................................................................................................................................. 8
   Credit and Investigative Checks ................................................................................................. 8
   New Hire and Rehire Reporting Requirements .......................................................................... 8
   Mandatory Background Checks .................................................................................................. 9
Holidays ................................................................................................................................................. 9
Jury, Witness, and Voting Leave........................................................................................................... 9
   Jury Leave ................................................................................................................................... 9
   Voting Leave ............................................................................................................................... 9
Labor-Management Relations ............................................................................................................... 9
Layoff and Reduction in Force............................................................................................................ 10
Medical Testing and Examinations ..................................................................................................... 10
   Drug (Alcohol) Testing ............................................................................................................. 10
   Medical Examinations .............................................................................................................. 10
   Genetic Testing ......................................................................................................................... 10
   HIV Testing .............................................................................................................................. 10
Military Leave ..................................................................................................................................... 11
Noncompetition Agreements............................................................................................................... 11
Overtime .............................................................................................................................................. 11
Political Activities ............................................................................................................................... 11
Polygraph/Lie Detector Tests .............................................................................................................. 12
Sick Leave ........................................................................................................................................... 12
Smoking ............................................................................................................................................... 12
  Designated Areas ...................................................................................................................... 12
Termination Procedures....................................................................................................................... 13
  Paychecks .................................................................................................................................. 13
Unemployment Compensation ............................................................................................................ 13
Vacations ............................................................................................................................................. 13
  Payment at Termination ............................................................................................................ 13
Wages and Hours................................................................................................................................. 13
  Paydays ..................................................................................................................................... 13
  Minimum Wage ........................................................................................................................ 13
  Withholding or Docking Pay .................................................................................................... 13
  Garnishment .............................................................................................................................. 14
  Direct Deposit ........................................................................................................................... 14
  Living Wage.............................................................................................................................. 14
Workers’ Compensation ...................................................................................................................... 14
Required Posters .................................................................................................................................. 14
  Required Federal Posters .......................................................................................................... 14
  Required Nebraska Posters and Contacts ................................................................................. 15
_______________
                           STATE LAW SUMMARY

Appearance and Grooming


  Uniforms

  Nebraska has no statute governing whether employers may require employees to purchase
  uniforms.

Arrest and Conviction Records


  Private employers may not request access to arrest records of an employee or applicant if,
  after an interval of one year, active prosecution is neither completed nor pending. Nebraska
  has enacted no statute that restricts a private employer from accessing conviction records of
  an employee or applicant.

  Caution: Private employers considering using arrest or conviction records should do so with
  caution, even in states that allow the use of arrest or conviction records for employment
  purposes. An arrest might never result in a criminal guilty plea or conviction and it is always
  possible that a person has been arrested for something he or she did not do. Moreover, the
  federal Equal Employment Opportunity Commission has stated that use of conviction records
  might be discriminatory given that, according to the EEOC, minorities are often more likely
  to have such a record. The EEOC cautions that employers should only inquire about felony
  convictions, should state that a criminal record is not an automatic bar to employment and
  should ensure that there is a legitimate business reason for requesting such information.
  Employers should consult with their attorneys for more information and guidance on this
  issue.

At-Will Employment


  Nebraska law provides that an employment relationship of indefinite duration is an at-will
  relationship and can be terminated without cause. Adequate contract disclaimers and at-will
  statements in documents given to employees (e.g., handbooks, policies, etc.) can minimize
  the risk that such documents may be alleged to have created express or implied employment
  contracts. The Nebraska Supreme Court has refused to recognize a public policy exception to
  the employment at-will doctrine, absent the violation of a constitutional or statutory
  prohibition. Handbook provisions may become part of an employment contract where they
  constitute an offer definite in form that is communicated to and accepted by the employee
  who gives the employer consideration (i.e., something in return for the offer like a promise to
  do something), for the enforceability of the offer.
Breaks and Rest Periods


  Nebraska employers must provide employees of an assembly plant, workshop, or mechanical
  establishment not less than 30 consecutive minutes for lunch. The lunch break should be
  given between 12:00 p.m. and 1:00 p.m. or 30 consecutive minutes during any other suitable
  hour. During such time it shall be unlawful for any employer to require an employee to
  remain in buildings or on the premises where their labor is performed. An exception exists,
  however, where the establishments operate in three shifts of eight hours each 24 hours.

Child Labor


  Federal Law

  Minors may be limited in the hours they work and may not be employed in occupations
  considered hazardous by federal law or by the U.S. Department of Labor’s rules and
  regulations. When school is in session, federal law requires work of minors age 14 and 15 to
  be limited to three (3) hours per day and eighteen (18) hours per week. When school is not in
  session, minors age 14 and 15 may work up to eight (8) hours per day and forty (40) hours
  per week between 7:00 a.m. and 7:00 p.m. (or 9:00 p.m. June 1 through Labor Day). Federal
  law does not limit work hours for minors age 16 and 17, regardless of whether or not school
  is in session. Except in limited circumstances, employers are generally prohibited from
  hiring minors under age 14. In addition to these federal restrictions, the following provisions
  address employment of minors in Nebraska. Additional Nebraska provisions regulate both
  the type and hours of work in which minors can engage. Note that the stricter law, the one
  that most benefits employees, prevails.

  Types of Work

     Minors Under 18

     Minors under age 18 may not sell or dispense or have in their possession any liquor in a
     tavern or in any public place. However, minors 16 or older in the course of their
     employment may handle liquor and containers removing and dispensing of the liquor
     containers for the convenience of the employer and customers. Minors under 18 may not
     be employed to drive.

     Minors Under 16

     Minors under age 16 may not be employed without an employment certificate. They may
     be employed as a golf caddy or in family employment. They may not be employed in any
     work dangerous to life, limb, health or morals. Nebraska law states that if a minor is
     apparently at work at a location it will be considered prima facie evidence of the minor's
     employment there.
 Hours of Work

    Minors Under 16

    Minors under age 16 cannot work over an eight-hour day and a 48-hour week. Also, they
    cannot work before 6 a.m. or after 10 p.m.

    Minors Between 14 and 16

    Minors between the ages of 14 and 16 may work after 10 p.m. if there is no school
    scheduled for the following day and if they have consented to the extension by signing an
    endorsement extension, and the employer has obtained a special permit from the
    Department of Labor.

    Minors Under 14

    Minors under the age of 14 may not work past 8 p.m.

 Permits and Postings

 Employment certificates are required for minors under age 16. The state may require
 evidence of a minor's age to be provided. If no certificate is provided, any officer of the
 Department of Labor may demand that the employer prove the individual is not under age 16.
 Such proof must be provided within 10 days or the employer must cease to employ the
 minor.

 Employers who have employees under the age of 16 are required to post a list of the minors
 near the entrance of the building in which the minors are employed. In addition, employers of
 minors under age 16 are required to post in every room where such minors are employed a
 printed notice stating the daily hours of work, the hours of starting and quitting time, and the
 time allowed for meals.

 Child labor law can be both challenging and confusing. Employers of minors should
 closely review federal and state child labor law differences and contact their attorneys
 or the Department of Labor to ensure they are in full compliance.

COBRA


 Insurance Continuation

 Many states have legislation requiring small employers (those not subject to COBRA) to
 provide insurance continuation if an employee becomes ineligible for group coverage (such
 as through a termination). Such provisions are complex and very technical. You may want
 to contact your attorney or insurance broker to determine if you are meeting all applicable
 federal and state requirements.
Employee Conduct and Work Rules


  Guns in the Workplace

  Workplace violence continues to be a concern for employers. Many organizations adopt
  policies (such as the one found in the HRN manual) banning guns and other weapons on
  company property. However state law differs widely regarding employees’ weapons rights.
  You may want to contact the state employment agency or an attorney for further information
  regarding your specific policy and any possible liability that may result.

Equal Employment Opportunity and Equal Pay


  Similar to federal law, Nebraska law prohibits discrimination on the basis of race, color,
  religion, sex, disability, or national origin. Nebraska law also precludes discrimination based
  on marital status and pregnancy. The Nebraska Equal Pay Act prohibits gender-based wage
  discrimination. AIDS and HIV status are expressly protected unless there is a direct threat to
  others or the person is unable to perform the job duties. Retaliation is also precluded.

  Nebraska also provides protection for non-English speaking employees by requiring private
  employees, with more that 100 employers and more than 10 percent speaking the same
  language other than English, and who recruit more than 500 miles away, to provide certain
  protections for the employees. These employers, before hiring a recruit, are required to
  provide written information to the recruits concerning the job, obtain the recruit's signature
  on the job description sheet, provide bilingual employees to assist employees in their daily
  work related activities, provide community service information, and provide transportation
  back to where they were recruited if they quit within four weeks.

  The law applies to all private employers of fifteen or more employees. Complaints of
  discrimination are filed with the Nebraska Equal Opportunity Commission and can be
  remedied with injunctive relief (e.g., required hiring, reinstatement), civil penalties, damages,
  and awards of attorney's fees and costs.

  Caution: Some municipalities may have adopted city ordinances expanding EEO
  protections. Please check local laws for more details.

Family and Medical Leave (FMLA)


  No Nebraska family and medical leave statute affecting private employers has been enacted
  which imposes greater requirements than the federal FMLA.

  Caution: Complying with the federal FMLA (and state law, if applicable) can be both
  challenging and confusing. You will likely want to contact your attorney, the Federal
  Department of Labor, or the appropriate state agency for further information and
  clarification.

Files and Access


  Employee Review of Files

  Neither federal nor Nebraska law requires that employees who work for private companies
  be permitted to review their personnel files.

Hiring Procedures


  Credit and Investigative Checks

  No Nebraska credit or investigative check requirements have been adopted that exceed those
  required by the federal Fair Credit Reporting Act and Consumer Credit Reform Act of 1996.
  Under federal law, employers may not obtain a consumer report, (which includes checks on
  an employee's or applicant's credit standing, and which is obtained through a consumer
  reporting agency), unless a clear and conspicuous written disclosure has been made to the
  applicant or employee before the report is performed and the employer obtains written
  authorization from the applicant or employee. The disclosure must be made in a separate
  written document (not as part of a job application or other form) and must consist solely of
  the disclosure. Credit checks must be used for employment purposes only and may not be
  used discriminatorily in violation of any applicable federal or state law or regulation.
  Employers must also make written disclosures of investigative reports where personal
  information such as the applicant's or employee's character, reputation, etc is obtained
  through interviews with neighbors, friends, and others.
  Before an adverse employment action (such as refusal to hire) is taken based in whole or in part
  on information reported in a consumer or investigative report, the employer must inform the
  applicant or employee, and provide a copy of the report and a summary of consumer rights
  under the law. A post adverse action notice is also required under federal law. You may want
  to consult your legal counsel for detailed information.
  Caution: While not always required by law, it is generally a good practice to get releases
  from applicants for any background checks undertaken. You may want to contact your
  attorney for release requirements and related details.

  New Hire and Rehire Reporting Requirements

  Within 20 days of hiring or rehiring, a Nebraska employer must report the hiring or rehiring
  of an employee by sending to the Nebraska Department of Heath and Human Services a copy
  of the employee's W-4 form or such other form containing the employee’s name, address,
  and social security number, as well as the employer’s name, address, and employer’s federal
  tax identification number. The employer can be penalized for failure to submit this
  information. For more information, you can access the Nebraska New Hire Reporting
  Directory webpage at www.nenewhire.com.

  Mandatory Background Checks

  Many states require mandatory background checks of applicants in certain highly sensitive
  areas such as in teaching, childcare, healthcare and security positions. Such checks may
  include criminal history and fingerprint checks, various reporting requirements, and requiring
  job references. Contact your local state agency or attorney for further information.

Holidays


  No Nebraska statute has been enacted requiring private employers to give employees paid
  holiday time off or to pay premium pay for time actually worked on holidays.

Jury, Witness, and Voting Leave


  Jury Leave

  A Nebraska employer cannot discharge an employee; deduct pay, sick leave, vacation time,
  or impose any other penalty, as a result of the employee's absence from work for responding
  to a jury summons, provided reasonable notice of the same is given to the employer. Similar
  standards apply for an employee who is ultimately chosen for jury duty. However, an
  employer may reduce the pay of an employee by an amount equal to any compensation, other
  than expenses, paid by the court for jury duty.

  Voting Leave

  In Nebraska, an employee must be allowed two hours of leave time to vote unless the
  employee has two consecutive hours off while polls are open during which he or she can
  vote. Leave must be requested prior to Election Day. A person cannot be penalized for taking
  time to vote, nor can any salary be deducted from the employee's paycheck for time taken to
  vote. The employer can, however, specify which hours the employee may be absent.

Labor-Management Relations
  Various labor relations laws allow and/or regulate the rights of employees to unionize,
  bargain collectively, file grievances, picket, strike, and wear union insignia and govern the
  resolution of labor disputes. Contact the Nebraska Department of Labor, www.dol.state.ne.us
  for more information. Note also that federal law governs, and in fact pre-empts, many aspects
  of this area of law.
Layoff and Reduction in Force


   No applicable Nebraska statute exists. Nebraska has not enacted a state "WARN" law or other
   legislation regarding layoffs. However, employers must still comply with the federal WARN
   Act.

Medical Testing and Examinations


  Drug (Alcohol) Testing

  Nebraska employers may, but are not required, to test employees for drug and alcohol use
  and abuse in the workplace. Results of tests performed to detect the presence of drugs or
  alcohol may not be used to deny continued employment or used in any disciplinary or
  administrative action unless a positive finding has been subsequently confirmed. The
  employer is not permitted to release or disclose the test results to the public, except as
  provided by law. Test results may be released to the employer's officers, agents or others who
  need to know the information for reasons connected with employment matters. If an
  employee refuses the lawful test of an employer to provide a body fluid or breath sample, the
  employee may be subject to disciplinary or administrative action by the employer, including
  denial of continued employment.

  Medical Examinations

  Nebraska law prohibits an employer from requiring an applicant to pay for a medical
  examination required as a condition of employment. If the employer requires a medical
  examination for purposes of employment, the employer must pay the cost of the examination.

  Genetic Testing

  Employers are prohibited from requiring genetic tests or using genetic test information to
  discriminate against potential or current employees, as a result of a new Nebraska Law
  passed in 2001.

  HIV Testing

  Nebraska has enacted no statute that specifically prohibits a private employer from requiring
  mandatory HIV testing of employees. However, results of HIV testing may not be used to
  discriminate against an employee unless that person cannot perform the requirements of the
  job or poses a threat to the health and safety of other employees.

  Caution: In addition to state law, employers should also ensure that any testing undertaken
  conforms with federal law (e.g., the ADA and FMLA). Contact your attorney if you propose
  to undertake such testing.
Military Leave


   All Nebraska employees who leave a full-time position to participate in military training in
   the armed forces or undertake military duty in the active service of the state shall be entitled
   to a leave of absence from such civil employment not to exceed four years without loss of
   status or rating during the first 15 working days of such leave of absence; provided, however,
   that the employee returns to service within 30 days after released from such service. The
   employer may pay for the leave at its discretion. If the employee is unable to perform the job
   duties as a result of a changed condition, the employer is required to find the next most
   available position for the employee equivalent to the previously held position. The employee
   shall not be discharged within one year after reinstatement from the new position without just
   cause.

   The law is enforced by the Nebraska Commissioner of Labor. If the Commissioner finds that
   a violation has occurred, the Commissioner can direct the claimants to receive back pay from
   the date the violation occurred.

   Caution: Military leave legislation is complicated and technical. In addition to any
   applicable state law requirements, employers should ensure that they are in compliance with
   federal laws.

Noncompetition Agreements
   No Nebraska statute, but rather Nebraska court decisions, govern this area of law.
   Noncompetition agreements will be enforced if reasonable. They cannot be injurious to the
   public, cannot exceed what is reasonably necessary to safeguard the former employer's
   legitimate interests and cannot be unduly harsh on and oppressive to the former employee. A
   noncompete clause cannot be used solely to prevent competition, but must protect a
   legitimate interest of the employer such as trade secrets, unique services provided by the
   employee at issue, confidential information and/or goodwill. Regarding clients, it appears
   that the courts have limited the protectable interest to those clients with whom the former
   employee actually did business or had personal contact.

Overtime


   No Nebraska statute has been enacted that exceeds federal requirements requiring overtime
   payment of one and one-half times regular pay after 40 hours worked/week.

Political Activities


   A Nebraska employer cannot threaten to discharge or coerce employees to influence their
   voting patterns. Additionally, employees cannot be prohibited from participating in political
  activities except during office hours or when otherwise engaged in the performance of their
  official duties.

Polygraph/Lie Detector Tests
  A Nebraska private employer or prospective employer cannot require, as a condition of
  employment, or a condition for continued employment, that a person submit to a truth and
  deception examination. If an employee or applicant agrees to take a truth and deception
  examination, the employer is prohibited from asking about the examinee's sexual practices,
  labor union, political or religious affiliations, or marital relationships. The examinee must be
  told that the examination is voluntary and may be terminated at any time. The examinee
  must sign a form indicating their understanding that the examination is voluntary. Questions
  asked must be job related, the examination must involve a specific investigation, and it
  cannot be the sole determinant in the termination of employment. The questions asked and
  responses given by the examinee must be kept on file by the employer for a one year period
  after the examination.

  Caution: Polygraph legislation is complex. In addition to any applicable state law
  requirements, employers should ensure they are in compliance with federal law.

Sick Leave


  No Nebraska statute requires employers to provide paid sick leave or to pay for accrued paid
  sick leave at termination.

  Caution: If sick leave is provided, employers should ensure that it is provided on a non-
  discriminatory basis and in accordance with established policy and practice.

Smoking


  Designated Areas

  In Nebraska no person can smoke in a public place or at a public meeting except in
  designated smoking areas. Smoking may be limited or prohibited where the close proximity
  of workers or the inadequacy of ventilation causes smoke pollution detrimental to the health
  and comfort of nonsmoking employees (e.g., factories, warehouses, and other similar places
  of work not usually frequented by the general public). The proprietor or other person in
  charge of the public place is responsible to make reasonable efforts to prevent smoking in
  that public place. Such measures include posting appropriate signs and asking smokers to
  refrain from smoking where others have complained about the smoke.
Termination Procedures


  Paychecks

  When an employee is discharged, wages earned are due on the next regular payday or within
  two weeks, whichever is sooner. If the wages are not paid within 30 days, the employee can
  pursue collection through court proceedings. There is no statute regarding paychecks when
  an employee resigns.

Unemployment Compensation
  Extensive laws cover unemployment compensation in Nebraska. For information, contact the
  Nebraska     Department    of  Labor    Division    of    Unemployment        Insurance,
  www.dol.state.ne.us/nwd/.

Vacations


  Payment at Termination

  No Nebraska statute requires employers to provide paid vacation or to pay for accrued
  vacation at termination. However, the state may so require by case law or regulatory
  interpretation.

  Caution: If paid vacation leave is provided, employers should ensure that it is provided on a
  non-discriminatory basis and in accordance with established policy and practice.

Wages and Hours


  Paydays

  Nebraska law requires employers to pay wages on designated days or days that have been
  agreed upon. An employer cannot change the date set for payday without 30 days notice.

  Minimum Wage

  The Nebraska minimum wage is $5.15 per hour, the same as the federal minimum wage.

  Withholding or Docking Pay

  A private employer may deduct or withhold pay from an employee when required by state or
  federal law or order of a court, or when an employee has given written consent for the
  deduction for the purchase or government bonds, contributions to charities, payments for
  employee organization dues, insurance premiums, pensions, assessments, or saving plans.
  Garnishment

  If the employee is the head of the household, 85 % of weekly disposable earnings are exempt
  from garnishment.

  Direct Deposit

  Employers may use direct deposit as a form of wage payment. In fact, employers may require
  direct deposit. However, the Department of Labor discourages employers from passing any
  associated costs on to the employee.

  Living Wage

  A number of local governments (e.g. cities, towns, counties, school districts, etc.) have
  enacted laws known as “Living Wage” ordinances. In Omaha, such a law was enacted, but
  was later repealed. These laws, although not always imposing the same types of
  requirements, typically mandate that any entity contracting or doing business with the local
  government or receiving tax abatement from the local government must pay its employees a
  set wage. The ordinances are typically called Living Wage ordinances because the set wage
  rate is typically much higher than the applicable minimum wage, thus better allowing the
  employees to live on the wage.

  No local governments in Nebraska have adopted living wage ordinances as of January 1,
  2003. However, this area of law is developing rapidly. For more information, including
  recent developments, see www.livingwage.com.

Workers’ Compensation
  Extensive laws cover this area in Nebraska. Contact the Nebraska Workers’ Compensation
  Plan        administered          by        Travelers        Indemnity       Company,
  www.nol.org:80/home/NDOI/workcomp/nwcip.htm.




Required Posters
  Listed below are the current listings for government agencies from which required posters
  can be obtained. Posters frequently can be obtained free of charge. Poster requirements may
  change from time to time, and employers should check to assure up to date compliance.

  Required Federal Posters

        Fair Labor Standards Act (FLSA) Minimum Wage
        Family Medical Leave Act (FMLA)
        Job Safety and Health Protection – Occupational Safety and Health
        Equal Employment Opportunity Act
       Migrant and Seasonal Agricultural Worker Protection Act (MSPA)
       Notice to Work with Disabilities (FLSA, SCA, and Walsh-Healey Act)
       Employee Polygraph Protection Act (EPPA)

These posters can be accessed at the                 Department    of   Labor       website:
http://www.dol.gov/osbp/sbrefa/poster/main.htm

Required Nebraska Posters and Contacts

   Minimum Wage                             Nebraska Workforce Development
    (www.dol.state.ne.us/pdf/mwp.pdf)        Division of Safety & Labor Standards
   Job Safety & Health                      5404 Cedar Street
    (www.dol.state.ne.us/pdf/shposter.pdf)   Omaha, NE 68106-2365
   Hours of Employment for Children         402-595-3095
    under 16 Years of Age (required if any   www.dol.state.ne.us/nwd/
    employees under 16 years)
    www.dol.state.ne.us/pdf/safety/formno
    110.pdf
   Discrimination in Employment,            Nebraska Equal Opportunity Commission
    Housing, Public Accommodations is        State Office Building
    Prohibited by State Law                  1313 Farnam St., 3rd Floor
                                             Omaha, NE 68102-1898
                                             (402) 595-2028
                                             Toll Free 1-800-642-6112