At-Will Employment

Nebraska is an “at will” employment state, meaning either the employer or the employee can terminate the relationship at any time provided the termination decision is not otherwise prohibited by law (ie, due to discrimination or retaliation). Although Nebraska is an employment-at-will jurisdiction, an employer can forfeit its at-will right to terminate an employee by promising employment for a fixed period or stating (including verbally) that employment will only be terminated under certain circumstances, such as for “good cause” or “good reason”.

Joint Employment

Joint employment occurs when more than one entity is a worker’s employer. Joint employers are individually and equally responsible for compliance with labour, employment and certain other laws.

For a third party to be a joint employer with another employer, the third party must have exerted significant control over the employee. Factors to consider in determining joint-employer status are:

• the right of selection, or to employ at will;
• responsibility for the payment of wages;
• the right to discharge or terminate the relationship;
• the right to control the work; and
• whether the party sought to held as the employer is the responsible authority in charge of the work or for whose benefit the work is performed.

Under the National Labor Relations Act (NLRA), the National Labor Relations Board (NLRB) currently may find two or more entities are joint employers if they are both employers within the meaning of the common law and if they share or co-determine matters governing the essential terms and conditions of employment.

Non-Exempt and Exempt Employees

Nebraska follows the federal Fair Labor Standards Act (FLSA). Non-exempt employees are those employees who do not meet the FLSA white-collar exemptions and are entitled to minimum wage and overtime for hours worked over 40 in a workweek. Exempt employees are those employees who meet one of the FLSA white-collar exemptions including executive, administration, professional, or certain computer or outside sales employees. Each exemption has specific duties requirements in order for the employee to qualify. Employees who satisfy the requirements of one of the FLSA’s white-collar exemptions are not entitled to minimum wage or overtime.

Employers who violate the FLSA are liable for economic damages in the form of unpaid overtime wages. Employees who prove a violation of the FLSA’s overtime requirements may be entitled to “double damages” that match the amount of unpaid overtime wages unless the employer is able to show it acted in good faith. Employees who prove an FLSA overtime violation was “willful” may extended the standard two-year statute of limitation period to three years and recover attorney fees.

Employment contracts are not required in Nebraska. Nebraska is an at-will employment state. At-will employment is presumed to be for an indefinite term and an employer or employee can terminate the employment relationship at any time for any lawful reason.

Employers often utilise individual agreements to address confidentiality and trade secrets, and non-compete and non-solicitation covenants. See 2. Restrictive Covenants.

In the absence of a written employment agreement, Nebraska employers typically define the employment relationship in documents such as offer letters, job descriptions, employment policies or employee handbooks. Employers should be mindful to include disclaimers in such documents where appropriate to avoid unintended obligations.

Maximum Working Hours

Nebraska does not limit the maximum working hours per day/week for workers aged 16 and older. Minors under 14 years generally may not work more than eight hours per day, more than 48 hours per week, or before 6am or after 8pm. Minors 14 and 15 years old generally may not work more than eight hours per day, more than 48 hours per week, or before 6am or after 10pm. Some exceptions to these limitations apply to minors working in detasselling.

Flexible Working Arrangements

Flexible working arrangements are subject to the requirements of the FLSA. Nebraska has not adopted any specific guidance to these types of arrangements. Employers who adopt such arrangements should continue to be mindful of legal obligations to workers including obligations regarding workers’ compensation and wage and hour matters.

Similarly, Nebraska law does not dictate specific requirements or an hour threshold for part-time employees. To the extent an employee meets the minimum threshold hours under the Affordable Care Act (regardless of the employee’s full- or part-time classification), the employer may be obligated to provide health insurance benefits. Likewise, effective 1 October 2025, employers will be required to provide part-time employees paid sick leave for their own illness, to care for a family member, or for any other qualifying reason. See 1.5 Other Employment Terms.

Overtime Requirements

Nebraska does not have any laws related to overtime requirements for private employers. Nebraska follows the FLSA’s overtime requirement, which requires most employers to pay overtime for each hour worked in excess of 40 hours per workweek at the rate of 1.5 times the employee’s regular pay rate.

Nebraska Minimum Wage

Nebraska minimum wage is USD13.50/hr until 31 December 2025. This rate will increase to USD15.00/hr for the period between 1 January 2026 and 31 December 2026. It is expected that the established minimum wage shall be increased on 1 January 2027, and on January 1st of successive years, according to the increase in the cost of living.

Tipped Employees

Tipped employees must be paid at least USD2.13/hr. The sum of tipped employees’ hourly wage plus tips must equal or exceed the Nebraska minimum wage.

Training Wage

Nebraska employers may pay a new employee who is younger than 20 years and is not a seasonal or migrant worker a training wage of at least 75% of the federal minimum wage for 90 days from the date the new employee was hired.

Bonus Requirements

Nebraska does not dictate specific terms regarding bonus compensation. In Nebraska, bonuses are generally treated as wages and are subject to the same withholding and reporting requirements as regular wages. This includes federal and state income tax withholding, as well as Social Security, Medicare and FUTA taxes.

Vacation Pay

Nebraska law does not require employers to provide vacation or vacation pay. If an employer provides vacation pay, the employer must pay out all accrued but unused vacation pay at termination.

Paid Sick Leave

Effective 1 October 2025, Nebraska law requires private employers with 11 or more employees to provide paid sick leave. Paid sick time generally may be used for an employee’s health condition, care of a family member’s health condition, closure of the employee’s place of business due to a public health emergency, and for the care of a child whose school or place of care is closed due to a public health emergency.

All employees, including part-time and temporary, who work 80 hours of consecutive employment in a calendar year in Nebraska for a covered employer are entitled to accrue paid sick time unless exempted. The following employees are exempt from the Nebraska paid sick time requirements:

• individual owner-operators;
• independent contractors;
• individuals who work fewer than 80 hours in a calendar year;
• individuals who are employed in agricultural employment of a seasonal or other temporary nature;
• employees who are subject to the federal Railroad Unemployment Insurance Act; and
• individuals under 16 years of age.

Small employers (11–19 employees) must provide eligible employees up to 40 hours of paid sick leave per year. Large employers (20 or more employees) must provide up to 56 hours of paid sick leave per year. Employers with other paid leave policies that meet the minimum paid leave requirements are not required to provide additional sick time.

Jury Duty Leave

Nebraska law mandates that employees shall not be subject to discharge from employment, loss of pay, loss of sick leave, loss of vacation time or any other form of penalty as a result of their absence from employment due to jury duty upon giving reasonable notice to their employer of such summons. Although employees may not be subject to a loss of pay, employers may reduce the employee’s wages by the amount of compensation received as a result of jury duty.

Adoptive Parent Leave

Nebraska law requires that all Nebraska private and government employers who permit employees to take a leave of absence following the birth of a child must provide the same leave upon the same terms to adoptive parents. The adoptive parent leave of absence is not required if the child being adopted is a special needs child over 18 years of age, a child who is over eight years of age and is not a special needs child, a stepchild being adopted by their stepparent, a foster child being adopted by their 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. An aggrieved adoptive parent may bring a private action against their employer. The law entitles the successful adoptive parent to equitable relief, damages and attorney fees.

Military Leave of Absence

Nebraska law requires state and public employers in Nebraska to provide leave without loss of pay to employees who are members of:

• the National Guard;
• the Army Reserve;
• the Naval Reserve;
• the Marine Corps Reserve;
• the Air Force Reserve; or
• the Coast Guard Reserve.

Employees are also eligible if they are in “uniformed services” including the Armed Forces, and on active duty or engaged in certain other military duties. Aggrieved employees may be entitled to equitable relief and damages.

Family Military Leave Act: Neb. Rev. St. §§ 55-501 to 55-507

Nebraska employers with at least 15 employees must provide unpaid family military leave to certain eligible employees who are the spouse or parent of a person called to military service under federal or state deployment orders lasting 179 days or longer. Aggrieved employees may be entitled to equitable relief.

Volunteer Emergency Responders Job Protection Act

Nebraska employers with ten or more employees must provide certain emergency responders unpaid, job-protected leave in connection with volunteer emergency responder services. Employees are eligible for this leave if a governing body in Nebraska has approved them to serve in:

• a volunteer fire department;
• a volunteer first aid, rescue, ambulance or emergency squad;
• a volunteer fire company, association or organisation providing fire protection or emergency response services to protect life, health or property for any city, village, rural or suburban fire protection district;
• the Nebraska wing of the Civil Air Patrol; or
• a state emergency response team under the Emergency Management Act.

An employee does not include professional firefighters or law enforcement officers acting as volunteer emergency responders.

An aggrieved employee may file a private suit against an employer. If successful, the law entitles the employee to:

• reinstatement without reduction in wages, seniority or other benefits;
• lost wages or other benefits;
• court costs; and
• reasonable attorneys’ fees.

Voting Leave and Election Worker Leave

All employers must provide voting leave if necessary. Nebraska employees are eligible for Election Worker Leave if they are appointed to serve as:

• a judge or clerk of election;
• a precinct or district inspector;
• a canvassing board member; or
• any other election worker.

Confidentiality and Non-Disparagement

To be enforceable in Nebraska, confidentiality agreements must protect legitimate business interests, such as the need to protect trade secrets, proprietary information or other confidential information. Confidentiality agreements must be limited to the period of time the information is useful or becomes public through no fault of the employee. Nebraska employers should be mindful to not draft confidentiality provisions so broad as to interfere with employee conduct protected by the National Labor Relations Act (NLRA) including protected communication regarding terms and conditions of employment.

Nebraska does not have any general law addressing non-disparagement requirements. Private employers in Nebraska should follow the National Labor Relations Board (NLRB) precedent, which has held that broadly worded non-disparagement provisions may be unlawful to the extent such provisions interfere with protected employee conduct under the NLRA. Accordingly, non-disparagement provisions should be tailored to prohibit only those statements about the employer that are false or made with reckless disregard for the truth or falsity of the statement.

Employee Liability

Generally, Nebraska employees may be liable for their actions. Nebraska follows the doctrine of respondeat superior, which holds that an employer may be vicariously liable for an employee’s acts committed within the scope of employment or liable for the negligent hiring, supervison or retention of an employee.

Nebraska has no law generally governing non-competes in employment. Under Nebraska common law, a non-compete is enforceable in Nebraska if it is reasonable. A non-compete is reasonable if the restriction:

• does not harm the public interest;
• is no greater than reasonably necessary to protect the employer in a legitimate business interest; and
• is not unduly harsh and oppressive to the employee.

In the context of the sale of a business, a non-compete is enforceable only if it is no greater than necessary to protect the buyer’s interest in the business’s goodwill and the restrictions are reasonable in character, space and time.

Reasonable Restrictions

A non-compete in Nebraska must contain time restrictions and geographic restrictions no greater than necessary to protect the employer’s legitimate business interests. Nebraska courts may consider the following factors when determining whether a time restriction and geographic restriction is reasonable:

• the difference in bargaining power between the employer and employee;
• the employer’s risk of losing customers;
• each party’s participation in establishing customers;
• the employer’s good faith;
• the employee’s training, education and family needs;
• the current economic conditions;
• if the employee must relocate or change industries; and
• for non-competes regarding the use of confidential information, courts will evaluate the duration the information is useful.

In cases involving customer contact, a geographic restriction must be limited to the area the employee worked or solicited clients for the employer.

Enforcement

In Nebraska, the party seeking to enforce the non-compete bears the burden of proof. Nebraska courts will not modify a non-compete agreement that is unreasonable. Nebraska law provides an exception for franchise agreements. Nebraska courts may reform a non-compete restriction in a franchise agreement to the extent necessary to cause the non-compete restriction to be reasonable and enforceable.

Employers injured because an employee violated a non-compete may recover all damages that are both reasonably certain and foreseeable. Damages are measured by the loss to the employer, not the gain to the employee. The employer must provide sufficient evidence to estimate actual damages. If the employer fails to do so, then the employer may only win nominal damages if the employer is unable to provide evidence of a specific monetary loss.

Consideration

In Nebraska, sufficient consideration for a non-compete restriction is any consideration that provides a benefit or detriment to a party. This includes an employer’s promise to pay severance compensation to a terminated employee.

Industry-Specific Limitations

In Nebraska, a lawyer may not participate in an agreement that restricts the right of the lawyer to practise after termination of a relationship, except an agreement concerning benefits upon retirement. Lawyers may not participate in an agreement that restricts the lawyer’s right to practise as part of a settlement of a client controversy.

Nebraska has no law generally governing employee and customer non-solicitation clauses in employment. In Nebraska, employee and customer non-solicitation agreements must also be reasonable in scope and necessary to protect the employer’s legitimate business interests. See 2.1 Non-Competes.

Nebraska courts regard a non-compete with customer lists or other restrictions as reasonable only if it restricts the former employee from working for or soliciting the former employer’s clients or accounts with whom the employee actually did business and had personal contact during employment. Similarly, Nebraska employers should limit employee non-solicitation agreements to only those employees with whom the employee had material contact during employment.

Employers may not restrict employees from contacting former clients as of the employee’s termination date. Nebraska courts have held that a general advertisement made to customers with whom a former employee did business and had personal contact may constitute a solicitation and breach of a non-compete agreement, even if the customer was not directly solicited by the former employee.

Nebraska has adopted a variety of statutory protections regarding data privacy law and employment.

Workplace Privacy Act

Nebraska law prohibits an employer from requiring an employee or applicant to:

• provide or disclose a username, password, or other account information to gain access to the employee’s or applicant’s personal internet account;
• log into a personal internet account in the employer’s presence so that the employer can observe the contents of or gain access to the employee’s or applicant’s personal internet account;
• add anyone, including the employer, to the list of contacts associated with the employee’s or applicant’s personal internet account;
• change the settings on the employee’s or applicant’s personal internet account which affect the ability of others to view the content of that account; or
• waive or limit any protection granted under the Workplace Privacy Act as a condition of employment.

Further, an employer must not do the following:

• retaliate or discriminate against an employee or applicant who:
1. fails to provide or disclose any internet account information or fails to take any of the barred actions specified above;
2. files a complaint under the Workplace Privacy Act; or
3. testifies, assists or participates in an investigation, proceeding or action concerning a violation of the Workplace Privacy Act; or
• use any inadvertently acquired usernames, passwords or account information to access the employee’s or applicant’s personal internet account, share this information with anyone, or fail to delete this information as soon as practicable.

Under Nebraska law, a “personal internet account” does not include:

• 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
• an online account that is used exclusively for a business purpose of the employer.

An employer may request access to a personal internet account during an investigation if the employer has specific information about either:

• potentially wrongful activity taking place on the personal internet account; or
• an unauthorised download or transfer of the employer’s private proprietary information, private financial data or other confidential information.

Additionally, to the extent permitted under applicable laws, employers may:

• promulgate and maintain lawful workplace policies governing the use of the employer’s equipment, including internet use;
• request or require an employee or applicant to disclose access information to the employer to gain access to:
1. an electronic communication device supplied by or paid for in whole or part by the employer; or
2. an account or service provided by the employer, obtained by virtue of the employment relationship or used for the employer’s business purposes;
• restrict or prohibit an employee’s access to certain websites while using:
1. a device supplied by or paid for in whole or part by the employer; or
2. an employer’s network or resources;
• monitor or access data stored on the employer’s equipment or network; and
• access employee or applicant information:
1. available in the public domain; and
2. obtained in compliance with the Workplace Privacy Act.

Employees or applicants may bring a civil action for violations of Nebraska’s Workplace Privacy Act. The employee or applicant must bring the action in the district court of the county where the alleged violation occurred within one year of the date of the alleged violation or the discovery of the alleged violation, whichever is later. A successful plaintiff may be entitled to:

• injunctive relief;
• general damages;
• special damages; and
• reasonable attorneys’ fees and costs.

Intercepted Communications

In Nebraska, any person who intercepts, discloses or intentionally uses a communication in violation of Nebraska’s prohibition against intercepted communications may be liable. This law covers all Nebraska employers and employees.

Under Nebraska law, no person may intentionally intercept a wire, electronic or oral communication unless:

• the person is a party to the communication;
• one party to the communication gives prior consent to the interception, and the interception does not otherwise violate the law;
• the interceptions are done in the normal course of an internet provider’s work; and
• it is a lawful interception.

The law also makes it illegal for any person to:

• use or disclose the contents of any intercepted communication; and
• give notice to any person that an investigative or law enforcement officer is authorised to intercept communications if the notice is to obstruct, impede or prevent that interception.

The law provides a private cause of action to any person whose wire, electronic or oral communication is intercepted, disclosed or intentionally used in violation of the law. Available relief includes:

• preliminary and other equitable or declaratory relief;
• reasonable attorneys’ fees and other litigation costs;
• the greater of:

1. actual damages suffered by the plaintiff and any profits made by the violator because of the violation; or
2. statutory damages of either USD100 a day for each violation or USD10,000, whichever is greater; and
• specified statutory damages for certain violations involving the viewing of a private satellite video or radio communication.

Disclosure of Employment History

Under Nebraska law, an employer may disclose the following information about a current or former employee’s employment history to a prospective employer with the current or former employee’s written consent:

• date and duration of employment;
• pay rate and wage history;
• job description and duties;
• the most recent written performance evaluation prepared before the request date if provided to the employee during their employment;
• attendance records;
• results of drug or alcohol tests administered within one year before the request;
• threats of violence, harassing acts or threatening behaviour related to the workplace or directed at another employee;
• whether the employee was voluntarily or involuntarily separated from employment and the reasons for the separation; and
• whether the employee is eligible for rehire.

Employers who disclose this information in good faith are immune from civil liability for the disclosure. A former employee can rebut the presumption of good faith by showing that the information disclosed by the employer was false and the employer knew of its falsity or acted with malice or reckless disregard for the truth.

Truth and Deception Examination

No employer or prospective employer may require as a condition of employment or continued employment that a person submit to a truth and deception examination unless the employment involves public law enforcement.

An employer or prospective employer may ask an employee or applicant to submit to a truth and deception examination if:

• the examiner does not ask questions concerning the examinee’s:
1. sexual practices;
2. labour union, political or religious affiliations; or
3. marital relationships;
• the employer gives the examinee written and oral notice that:
1. the examination is voluntary; and
2. the examinee may discontinue the examination at any time;
• the employee or applicant signs a form stating that the examination is being taken voluntarily;
• the examiner asks prospective employees job-related questions;
• the employer does not preselect job applicants for a truth and deception examination in a discriminatory manner;
• the examination concerns a specific investigation;
• the examination results are not the sole determinant in an employee’s termination; and
• the employer keeps the following on file for one year:
1. all questions the examiner asks during the examination; and
2. the examinee’s responses.

The law does not provide for a private right of action. However, the Nebraska Supreme Court recognises a claim for wrongful discharge in violation of public policy where an employer terminated an employee for refusing to submit to a polygraph test.

Prohibited Use of Social Security Numbers

In Nebraska, an employer may use more than the last four digits of an employee’s SSN only for the following purposes:

• compliance with state or federal laws, rules or regulations;
• some internal administrative purposes, including providing more than the last four digits to third parties for administration of personnel benefit provisions for the employer and employment screening and staffing; or
• commercial transactions freely and voluntarily entered into by the employee with the employer to purchase goods or services.

Nebraska law requires that employers may not:

• publicly post or display more than the last four digits of an employee’s Social Security number;
• require an employee to transmit more than the last four digits of their SSN over the internet unless the connection is secure, or the information is encrypted;
• require an employee to use more than the last four digits of their SSN:
1. 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
2. as an employee number for any employment-related activity; or
• use more than the last four digits of an employee’s SSN:
1. as an identification number for occupational licensing;
2. as an identification number for drug-testing purposes except when required by state or federal law;
3. as an identification number for company meetings;
4. in files with unrestricted access within the company;
5. 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
6. for posting any company information.

Genetic Testing

Nebraska law prohibits employers from using genetic information as a basis for employment decisions. Under Nebraska law, an employer may not:

• 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 do the job;
• discharge or discriminate against an employee or applicant regarding their terms, conditions or privileges of employment because of genetic information that is unrelated to the ability to do the job;
• limit, segregate or classify an employee or applicant in a way that adversely affects the employee’s or applicant’s status or employment opportunities because of genetic information that is unrelated to the ability to do the job; or
• require an employee or applicant to submit to a genetic test or to provide genetic information as a condition of employment or promotion.

In Nebraska, a genetic test does not include a routine physical examination or a routine analysis (including chemical analysis) of body fluids unless conducted specifically to determine the presence, absence or mutation of a gene or chromosome.

The law covers all employees except individuals employed:

• in the domestic service of any person; or
• by their parent, spouse or child.

Foreign workers in Nebraska must show proof of identity and authorisation to work in Nebraska. The Immigration Reform and Control Act of 1986 (IRCA) requires employers to confirm the identity and employment eligibility of all new employees.

In Nebraska, every public employer and public contractor must register with and use a federal immigration verification system to determine the work eligibility status of new employees physically performing services within Nebraska. Every contract between a public employer and public contractor must contain a provision requiring the public contractor to use a federal immigration verification system to determine the work eligibility status of new employees physically performing services within Nebraska.

Nebraska law has not adopted any specific requirements regarding mobile work. Employees who work remotely are generally subject to the same protections as on-site employees under Nebraska and federal law.

Employees in Nebraska are increasingly requesting mobile work as an accommodation under the Pregnant Workers Fairness Act (PWFA) and Americans with Disabilities Act (ADA). Employers should continue to be mindful of the obligations to engage in the interactive process with employees who request reasonable accommodations, including remote work, and complete a thorough review as to whether mobile work may be a reasonable accommodation.

Sabbaticals are increasing in popularity in Nebraska. Nebraska has no specific legal restrictions applicable to sabbatical leave. Employers who choose to offer sabbaticals should specifically outline the eligibility requirements, duration and other details in the employer’s internal policies to ensure non-discriminatory administration. When creating a sabbatical policy, employers should consider at a minimum:

• whether the leave is paid or unpaid;
• what benefits will continue to accrue during leave (eg, paid time off); and
• what benefits will be available while the employee is on leave.

In Nebraska, there is an increasing focus on digitalisation and collaboration in the workplace. The movement has become known as “new work”. “New work” looks different for every employer and incorporates innovative concepts such as desk sharing, hybrid work and the use of AI.

Employers who are embracing “new work” have prioritised workplace flexibility and automation. The infrastructures that have been put in place to promote workplace flexibility have resulted in many accommodation requests under the Pregnant Workers Fairness Act and the Americans with Disabilities Act (ADA) being reasonable requests that do not cause the employer undue hardship. See 5.1 Mobile Work.

The National Labor Relations Act (NLRA) applies to most private sector employers, including manufacturers, retailers, private universities and health care facilities. The NLRA does not apply to: federal, state or local governments; employers who employ only agricultural workers; and employers subject to the federal Railway Labor Act. The NLRA protects the rights of employees to form, join and support a union or to refrain from doing so. Employees who want a union to be their collective bargaining representative can authorise the union to bargain with their employer over employee wages, hours and working conditions.

Under Nebraska law, state and local public employees have the right to form, join and participate in any employee organisation of their choosing, or to refrain from such. The rights of state employees are largely governed by the State Employees Collective Bargaining Act (SECBA) as well as the Industrial Relations Act (IRA). The rights of county, municipal, public school and other local government employees with respect to collective bargaining is covered solely by the IRA.

Nebraska law prohibits employers from denying a person employment because of membership or non-membership of a labour organisation.

State and local government public employees desiring to be represented by a labour organisation for purposes of collective bargaining may do so by filing a petition with the Nebraska Commission of Industrial Relations (CIR). Pursuant to the rules of the CIR, such a petition must contain the following:

• a description of the appropriate unit or the unit claimed to be appropriate by the petitioner for purposes of exclusive representation – the description shall indicate the job classifications and general geographic locations of employees sought to be included and excluded from the unit;
• the approximate number of employees in the unit claimed to be appropriate;
• the date of recognition or certification, if any, of the unit and the expiration date of any applicable agreement;
• the names, addresses and telephone numbers of each interested labour organisation;
• a request for an election, which shall be supported by a showing as provided in Rule 10;
• a concise statement of the petitioner’s position with reference to any controversy concerning procedures for the conduct of the election; and
• a concise prayer for the relief or order sought.

Under Nebraska law, state and local government public employees are to be subject to 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 the event the parties cannot reach an understanding as to what is “comparable”, the dispute is submitted to the Nebraska Commission of Industrial Relations for determination.

At-Will Terminations

If the employment relationship is “at will”, it means that an employee has no contractual right to continued employment. Best practices dictate that employers should have clear and explanatory documentation of the termination decision and the basis for any employment termination. In the context of a lawsuit claiming that the termination decision was unlawfully discriminatory or retaliatory, many statutes permit an employer to avoid liability where they are able to articulate a legitimate, non-discriminatory (and/or non-retaliatory) basis for making their decision.

Termination of Employment by Operation of Contract

Where the employer and employee have entered into an employment agreement, that agreement will often address how and under what circumstances the employment relationship will terminate. Close attention should be paid to the language of the employment agreement, especially where there are defined terms addressing termination for “cause”, “change of control” and other provisions.

Employees are not entitled to severance pay as a result of termination unless the employer agrees to provide it according to the terms of an agreement or policy or makes a discretionary decision to offer it. Many employers offer severance pay upon termination. Best practices dictate that severance or separation agreements include a release and waiver of all claims against the employer (unless release and waiver is precluded by explicit operation of law).

Nebraska law does not dictate any specific requirements concerning the termination of the employment relationship unless an employment contract, collective bargaining agreement or employer policy dictates otherwise.

WARN Act Obligations

Nebraska has not adopted a mini-WARN Act, but instead follows the federal Worker Adjustment Retraining and Notification Act of 1988 (the “WARN Act”) which applies to any business that employs 100 or more employees (excluding part-time employees) and terminates employees under circumstances that qualify as a “plant closing” or “mass lay-off”. In those instances, the employer must provide affected employees and certain government officials at least 60 days’ advance notice of the job-loss event. Employers that fail to do so may be required to pay the affected employees back pay for each day of the violation, reimburse them for any loss of benefits and medical expenses incurred, and pay civil penalties.

Nebraska law does not recognise dismissal for cause protections for employees as a matter of law. The default employment relationship in Nebraska is an at-will employment relationship. An employer can forfeit its at-will right to terminate an employee by promising employment for a fixed period or stating (including verbally) that employment will only be terminated under certain circumstances, such as for “good cause” or “good reason”. Such “for cause” agreements generally identify serious policy breaches, criminal charges or other misconduct as grounds for termination of the employment or a requirement that the relationship may only be terminated following payment of liquidated or other commensurate damages under the terms of the contract. Failure to adhere to the terms of the contract may result in breach and potential claims for damages for non-compliance.

Nebraska permits termination agreements that offer severance benefits in exchange for a release of claims against the employer. In Nebraska, there are no specific formalities required. However, Nebraska employers must follow certain federal requirements to obtain an enforceable release of claims.

Waivers by employees aged 40 or over are subject to special procedures to obtain a release of claims under the federal Age Discrimination in Employment Act (ADEA). In order for a waiver of claims to be valid under the ADEA, the release and waiver provisions must:

• be written in plain language understandable by the average individual eligible for the severance;
• specifically refer to ADEA claims and rights;
• not cover prospective or future rights or claims;
• be in exchange for valuable consideration in addition to any benefits or pay to which the employee was already entitled;
• advise the employee, in writing, to consult with an attorney before signing;
• provide the employee 21 days to consider the agreement; and
• permit the employee to revoke the agreement within seven days after it is executed by the employee.

In the case of a group termination (termination of two or more employees from the same decision-making process), employees have 45 days (not 21 days) to consider the agreement (again, with a seven-day revocation period). They also must receive a disclosure identifying:

• the class of employees eligible to receive the severance package, their ages, and the ages of all employees within the same job classification, division or organisation who are not eligible or selected for participation in the termination unit; and
• the selection criteria.

Nebraska law prohibits waivers of certain claims including claims for unemployment benefits and claims for workers’ compensation.

Under Nebraska law, it is illegal for employers to discriminate in employment decisions based on certain protected categories. These protected categories of employees mirror and exceed what is covered by analogous federal laws such as Title VII of the 1964 Civil Rights Act and the ADA.

Nebraska Fair Employment Practice Act

The Nebraska Fair Employment Practice Act (NFEPA) prohibits employment-related discrimination based on:

• race and race-related characteristics, including skin colour, hair texture and protective hairstyles;
• colour;
• religion;
• sex, including pregnancy, childbirth and related medical conditions;
• disability;
• marital status; and
• national origin.

The NFEPA covers:

• employers with 15 or more employees for each working day in 20 or more calendar weeks in the current or preceding calendar year and any agent of the employer;
• any party whose business is financed in whole or in part under the Nebraska Finance Authority Act, regardless of the number of employees;
• the state, state agencies and state political subdivisions, regardless of the number of employees;
• employment agencies; and
• labour organisations.

Prohibited conduct

Under the NFEPA, an employer may not, based on an individual’s protected status:

• fail or refuse to hire an applicant;
• discharge an employee;
• harass any individual;
• otherwise discriminate against any individual regarding compensation, terms, conditions or privileges of employment;
• limit, advertise, solicit, segregate or classify employees in any way that would:
1. deprive or tend to deprive any individual of employment opportunities; or
2. otherwise adversely affect an individual’s status as an employee.

Individual supervisor liability

The NFEPA does not specifically address whether individual supervisors are liable for discriminatory acts against employees. However, individual supervisors are likely not liable because the NFEPA is modelled after Title VII. The Nebraska Supreme Court has previously looked to Title VII when interpreting the NFEPA. Because federal courts have ruled that individual supervisors are not “employers” liable for discriminatory acts under Title VII, it is also unlikely that individual supervisors would be liable under the NFEPA. However, a federal court interpreting NFEPA has held that an employer may be liable for an employee’s unlawful retaliation.

Nebraska Age Discrimination in Employment Act

The Nebraska Age Discrimination in Employment Act (NADEA) prohibits employment discrimination based on a person’s age where the person is 40 or older. The NADEA applies to:

• employers with 20 or more employees for each working day in 20 or more calendar weeks in the current or preceding calendar year;
• any person acting, directly or indirectly, in the interest of an employer;
• the state, its political subdivisions and state agencies, regardless of the number of employees;
• any party whose business is financed in whole or in part under the Nebraska Investment Finance Authority Act;
• employment agencies; and
• labour organisations.

Prohibited conduct

Unless the reasonable demands of a position require an age distinction, an employer may not, based on an individual’s age:

• refuse to hire an applicant;
• discharge an employee;
• otherwise discriminate against any individual regarding the employee’s terms, conditions or privileges of employment; or
• wilfully use an organisation that discriminates against individuals based on age for hiring or recruiting employees – covered organisations include:
1. employment agencies;
2. placement centres;
3. training schools or centres;
4. labour organisations; and
5. any other organisation that discriminates against individuals based on age.

Employers, employment agencies and labour organisations also may not retaliate against individuals for protected conduct. Specifically, an employer may not discharge, expel or otherwise discriminate against any individual because the individual:

• opposed any unlawful employment practice under the NADEA;
• filed a charge or suit under the NADEA; or
• testified, participated or assisted in any proceeding under the NADEA.

Individual supervisor liability

Individual supervisors are likely not liable for discriminatory acts against employees under the NADEA.

HIV Discrimination Act

The Nebraska HIV Discrimination Act (NHDA) applies to all employers and prohibits employment discrimination based on an individual having or being suspected of having:

• a human immunodeficiency virus (HIV) infection; or
• acquired immunodeficiency syndrome (AIDS).

Prohibited conduct

An employer may not, based on an individual’s protected status:

• refuse to hire an applicant;
• discharge an employee; or
• otherwise discriminate against an individual regarding compensation, terms, conditions or privileges of employment.

These prohibitions do not apply where the individual having or suspected of having an HIV infection or AIDS either:

• poses a direct threat to the health or safety of that individual or other individuals; or
• is unable to perform the duties of their job or the job they are applying for.

Individual supervisor liability

Individual supervisors are likely not liable for discriminatory acts against employees under the NHDA.

Genetic Information and Testing Law

Under the Nebraska Genetic Information and Testing Law (NGITL), employers may not discriminate against employees or applicants because of the individual’s genetic information that is unrelated to their ability to perform the duties of a particular job. The NGITL applies to all employers with one or more employees but does not include individuals employed in the domestic service of any person.

Prohibited conduct

An employer may not, based on an individual’s protected status:

• fail or refuse to hire, recruit or promote an employee or applicant;
• discharge an employee;
• otherwise discriminate against an employee or applicant regarding compensation, terms, conditions or privileges of employment;
• limit, segregate or classify an employee or applicant in a way that:
1. deprives or tends to deprive the individual of employment opportunities; or
2. otherwise adversely affects their status; or
• as a condition of employment or promotion, require an employee or applicant to:
1. submit to a genetic test; or
2. provide genetic information.

The NGITL does not prohibit:

• an employee from voluntarily giving an employer genetic information that relates to the employee’s health or safety in the workplace; or
• an employer from using genetic information that an employee provided to protect the employee’s health or safety.

Individual supervisor liability

Individual supervisors are likely not liable for discriminatory acts against employees under the NGITL.

An employee’s ability to bring a claim of wrongful dismissal must be predicated on some violation of law (such as termination due to discrimination or retaliation for a protected activity, or a contractual right conferred upon the employee by agreement between the employer and employee).

Consequences for a wrongful dismissal are dependent on the remedy authorised by the particular statute or theory under which the aggrieved employee has raised the issue. By way of example, an employee claiming discrimination in violation of Title VII may be entitled to monetary damages for:

• lost wages and benefits;
• back pay;
• front pay;
• reinstatement;
• injunctive relief;
• compensatory damages;
• attorney’s fees; and
• other costs associated with bringing the claim.

Where the wrongful dismissal claim stems from the breach of a contract, similar “make whole” remedies may be available if the dismissal was in retaliation for engaging in a right protected by law or resulted in a breach of collective bargaining agreement, whereby an arbitration award may follow to “make whole” the employee and award lost wages and potential reinstatement. Wrongful dismissal that results in a breach of an employment contract may result in contractual damages stemming from the terms of the agreement.

An aggrieved employee may bring a claim for discrimination under either federal or state civil rights laws. These claims are analysed under a burden-shifting framework. In short, an employee must first establish a prima facie case of discrimination in that they:

• were a member of a protected class;
• suffered an adverse employment action; and
• were treated differently to another employee who is outside their protected class.

From there, an employer may challenge this showing by rebutting it with a legitimate, non-discriminatory reason for its action against the employee. Finally, the employee may then challenge this reason by establishing that any such reason was pretextual and this reason was otherwise an attempt to cover up the employer’s true discriminatory motive.

Actual damages available vary by statute but, generally, an employee may seek monetary damages for:

• lost wages and benefits;
• back pay;
• front pay;
• reinstatement;
• injunctive relief;
• compensatory damages;
• attorney’s fees; and
• other costs associated with bringing the claim.

Virtual proceedings and other remote measures are frequently used across all forums in which an employment dispute may be litigated. No single rule has arisen across Nebraska concerning the use of digital technologies in the adjudication of employment disputes. Requirements have developed dependent on the preferences of the forum in this regard.

Federal courts, Nebraska state courts and administrative agencies (eg, the EEOC, NLRB) continue using remote methods such as telephone conferencing and video platforms such as Zoom or Microsoft Teams to conduct fact-finding, facilitate alternative methods of dispute resolution, and for routine aspects of case management. These measures are even used to hold hearings on routine motions, subject to the preference of the judge or officer conducting the proceeding.

The proper forum for an employment-related dispute varies on the nature of the claim asserted.

Claims for discrimination arising under federal law (eg, Title VII, ADA, ADEA) must first be administratively exhausted with an administrative agency (eg, NEOC, EEOC) before such claims may be brought as part of a lawsuit in court.

Unlike discrimination claims, wage and hour claims arising under Nebraska and federal law may either be litigated in the state or federal courts or be brought before the Nebraska Department of Labor (NDOL).

Claims regarding workers’ compensation and unemployment insurance benefits are appealed respectively through the administrative processes of the Nebraska Workers’ Compensation Court and the NDOL. These processes typically involve:

• an initial benefits re-determination;
• an appeal and a hearing of the re-determination; and
• a final internal appeal mechanism before each commission’s internal review commission.

Decisions of the review commission may then be appealed to the state’s circuit courts and seek ultimate review from the Nebraska Supreme Court.

Claims regarding workplace safety follow similar administrative procedures. Generally, such claims flow from complaints or violations identified by the Occupational Safety and Health Administration (OSHA) that result in the issuance of a citation by OSHA . Nebraska does not have its own OSHA-approved state plan, but instead operates under the jurisdiction of the federal OSHA.

Finally, claims related to activity protected by the NLRA or for conduct otherwise covered by a collective bargaining agreement are subject to the requirements of the NLRA. An employee claiming to have been subject to an unfair labour practice must file a charge with the NLRB, which will be adjudicated under the NLRB’s administrative processes. Employees covered by a collective bargaining agreement who raise claims related to their employment must, however, grieve such claims with their union. Such claims will be resolved pursuant to the terms of the collective bargaining agreement, which may result in binding arbitration of the dispute. The NLRA only applies to non-managerial employees of private employers engaged in substantial interstate commerce.

Nebraska law generally favours private adjudication of disputes. If the employer and employee have entered into an enforceable agreement to arbitrate a dispute, and the disputed matter is the type of claim that the parties agreed to arbitrate, the courts will typically order the parties to proceed to arbitration.

Arbitration can cover the full range of employment-related disputes. However, employers should be aware that the NLRB has recently begun to intensely scrutinise over-broad arbitration agreements that effectively cover disputes arising under the NLRA. As a matter of policy, the NLRB has stated that such over-broad agreements deny employees the right to exercise rights afforded to them by the NLRA. In adopting arbitration policies, employers should be mindful and use care in working such agreements to avoid the potential for an unfair labour practice charge in this regard.

Whether a prevailing employee or employer may be awarded attorney’s fees or other costs depends on the specific legal claims and the circumstances of the case.

By way of example, in employment disputes involving federal claims such as those under Title VII of the Civil Rights Act, the ADA or the FLSA, prevailing employees may be entitled to attorney’s fees and costs. These statutes typically include fee-shifting provisions, meaning that if the employee wins the case, the court can order the employer to pay reasonable attorney’s fees and court costs.

With state law claims, each party typically bears its own legal fees.