Nebraska Paid Sick Leave Initiative: What Employers Need to Know

As the 2024 elections approach, several ballot initiatives are gaining momentum in Nebraska, with one particular initiative standing out - the Paid Sick Leave for Nebraskans. This initiative, if passed by the majority of Nebraska voters in November 2024, would significantly impact employers across the state. Here's what employers need to know to prepare for this potential change.

Key Provisions of the Paid Sick Leave Initiative:

1. Accrual of Paid Sick Leave: Under this initiative, all Nebraska businesses would be required to offer paid sick leave to employees. Employees would earn one hour of paid sick leave for every 30 hours worked.

2. Carryover of Unused Leave: Employees may carry over unused paid sick leave to the following year, but it should not exceed the maximum number of hours specified in the policy.

3. Protection from Retaliation: The initiative would put into law the ability for employees to earn and use paid sick days without retaliation.

4. Effective Date: If passed, paid sick leave would go into effect on October 1, 2025.

5. Exemptions: This policy would not interfere with collective bargaining agreements, contracts, or policies that provide employees with more generous paid sick time. It also does not apply to federal, state, or county employees.

Who Benefits:

Paid sick leave is aimed at benefiting working families and businesses alike. It ensures that employees do not have to choose between their paycheck and their family's health. It applies to full-time, part-time, and temporary employees. Businesses can benefit because paid sick leave may help attract a qualified workforce to the many open jobs across Nebraska, including appealing to workers from other states.   

Leave Entitlements:

Under the proposal, the amount of paid sick leave employees would earn varies depending on the size of the employer:

• For employers with fewer than 20 employees, workers may earn up to five days of paid sick leave per year.

• For employers with 20 or more employees, workers may earn up to seven days of paid sick leave per year.

Funding and Support:

The Paid Sick Leave for Nebraskans initiative has gained significant funding support, raising more than $1.7 million since its launch in July. The Sixteen Thirty Fund, a national organization supporting social change goals, has contributed over $1.6 million to the campaign. Local groups such as the Nebraska Appleseed Action Fund, the Women's Fund of Omaha, the Civic Engagement Table, the ACLU of Nebraska Foundation, and Raise the Wage Nebraska have also supported the campaign.

Implications for Employers:

Employers in Nebraska should be aware of the potential changes brought about by the Paid Sick Leave for Nebraskans initiative. If the initiative passes, businesses will need to adjust their policies and practices to comply with the new paid sick leave requirements. This may include implementing a tracking system for accrued leave, ensuring compliance with carryover limits, and updating company policies to prevent retaliation against employees for using paid sick leave.

In conclusion, the Paid Sick Leave for Nebraskans initiative has the potential to impact employers significantly. With fundraising support and growing public interest, this initiative could change the landscape of paid leave in the state. Employers should stay informed about the progress of this initiative and be prepared to adapt their policies accordingly if it becomes law in Nebraska.

ES Recognized For 2022 Courtroom Victories by Harmonie Group

Our experienced trial attorneys have a history of success where it really counts - the courtroom. Read about some of our top cases of 2022, as recognized by The Harmonie Group.

37 MOTOR VEHICLE ACCIDENT INVOLVING SCHOOL VAN AND UNBELTED PASSENGERS 

Matt Reilly, Counsel

School Not Liable for Passenger’s Failure to Wear an Available Seatbelt Defense represented a school district in a claim by a high school student who was injured as a passenger in an automobile collision involving a school van during a summer activity. There was no dispute that the school van driver was not at fault for the accident, as another driver crossed the centerline on the highway and was impossible to avoid. The passenger—himself, a licensed driver aware of the rules of the road—sued the school, claiming that the van driver failed to ensure that the passenger secured his own seatbelt. Plaintiffs refused to consider any settlement offers below policy limits. After almost ten years of litigation—including a two-week trial, two directed verdicts in favor of the school district, and two different appeals— ruled in favor of the school district, holding that Nebraska statutes do not provide a passenger with a negligence claim against a driver when the sole basis of the claim is a failure to ensure the usage of a seatbelt.

■ RESULT: Defense Verdict Upheld on Appeal.

TRIP AND FALL IN A PUBLIC PARK 

Matt Reilly, Counsel

Political Subdivision Immune in Fall in Public Park Defense represented a sanitary improvement district against a claim by two parents that their son was injured when he stepped into a hole on the grounds of the playground within the district’s boundaries. Defense asserted immunity on behalf of the district against the significant damage claims in reliance upon statutes that provide that a political subdivision cannot be sued for claims arising out of “recreational activities.” The lower court ruled in favor of the district on the asserted grounds and dismissed the parents’ claims against the district. 

■ RESULT: Summary Judgment Granted.

LLC DISSOLUTION 

Bonnie Boryca, Counsel

Business Partner Accusing of Withdrawing From LLC A bifurcated jury trial was held on the issue of whether one of four business partners in a real estate development LLC had withdrawn as a member of the LLC. If it had, then any liability and value of its percentage ownership of the LLC was capped as of the date of withdrawal. All business partners testified, as well as non-party witnesses. The jury returned a unanimous verdict in favor of the business partner accused of withdrawing, finding that there was no withdrawal or dissociation. 

■ RESULT: Jury Verdict and Court Ruling That Partner Had Not Withdrawn From LLC.

GAS EXPLOSION, INSURANCE SUBROGATION ACTION 

Matt Reilly, Counsel

Gas Explosion in Historic Downtown Building Counsel represented a subrogation carrier with a $2.6MM claim arising out of a fire in Omaha’s downtown Old Market area. The fire occurred when an underground gas line was struck in the course of a contractor performing directional boring work. The one remaining defendant at trial was the gas utility operator, Metropolitan Utilities District (MUD). MUD denied all liability and claimed that it properly marked its buried gas line. After a 2-week trial, the court ruled in favor of the subrogated carrier and found that MUD was 50% at fault (the remaining 50% was assigned to a settled party.) 

■ RESULT: Subrogation Win $2.6MM.

Severance Packages- What You Should Know Before You Agree

Attorney Bonnie Boryca breaks down what is included in a severance agreement and what you should know before you sign on the dotted line.

Topics discussed include

• What is a Severance Agreement?

• What Are the typical key parts of a Severance Agreement?

• Can I receive more money?

• Do I need a lawyer to review it?

Erickson | Sederstrom represented at the Trucking Industry Defense Association’s annual meeting

Erickson | Sederstrom partner Matthew D. Quandt recently attended TIDA’s Annual Seminar in Philadelphia, PA.  The Trucking Industry Defense Association (TIDA) is a nonprofit association that is devoted to sharing knowledge/resources for defense of the trucking industry and committed to reducing the cost of claims and lawsuits. This year’s seminar featured presentations regarding the state of the industry, accident reconstruction experts, orthopedic experts, fraudulent claims, fleet management, jury psychology, and more.

 From the initial accident investigation, following a rapid response team call in the middle of the night, to pre-suit negotiations and litigation of catastrophic injury and wrongful death cases through discovery and trial, Matt handles all aspects of trucking and transportation litigation. He is committed to making sure his clients are comfortable with the litigation process and emphasizes early resolution of all claims in an efficient, cost-effective manner whenever possible.

Late Paycheck or Unpaid or Withheld Wages? Nebraska Laws Might Be on Your Side

Nebraska Revised Statute §§ 48-1228 to 48-1234 constitute the Nebraska Wage Payment and Collection Act. The Act applies to employees and a broad range of employers, including the state or any individual or entity that employs anyone in Nebraska as an employee. It defines wages as compensation for labor or services, including fringe benefits, when previously agreed to and conditions stipulated have been met by the employee, whether such wages are on a time, task, fee, commission, or other basis. Wages include earned but unused vacation leave. And wages include commissions on all orders delivered or on file with the employer at the time of an employee’s separation, unless the employer and employee agreed otherwise in an employment contract.

Fringe benefits include sick and vacation leave plans, disability income protection plans, retirement, pension or profit-sharing plans, health and accident benefit plans, and any other employee benefit plans or benefit programs regardless of whether the employee participates in such plans or programs.

The substance of the Act is its requirement that an employer designate and timely pay employees on regular paydays, and that an employer must pay a terminated employee all unpaid wages on the next regular payday or within two weeks of termination, whichever is sooner. See § 48-1230. If the wages consist of commissions, the employer must pay the employee any earned commissions on the next regular payday following receipt of payment for the goods or services on which the commissions were based. See § 48-1230.01.

The enforcement mechanism in the Act is it authorization of employee lawsuits for unpaid wages in § 48-1231. As an incentive to bring wage claims, which may consist of only a couple of week’s wages in some instances, the Nebraska Legislature has authorized awards of attorney’s fees to employees who prevail in court. If the employee prevails and he or she has employed an attorney to do so, the must award attorney’s fees in an amount not less than 25% of the unpaid wages. Courts can award more if they determine a higher fee is justified; 25% is the minimum required by the statute. In addition, if the case is appealed, and the employee wins on appeal, the employee can recover a 25% attorney’s fee for the appeal, as well. An employee cannot recover fees if the employer had tendered the unpaid wages within thirty days of the regular payday when they were due. 

If the employee prevails in the lawsuit, damages are equal to the wages owed. If nonpayment of wages is found to have been willful, then an employer may be held liable for twice the amount of unpaid wages (though the employee only recovers the amount of wages and the "doubled" amount is remitted to the Nebraska State Treasurer because it amounts to punitive damages, which may not be retained by private parties under the Nebraska constitution). 

The potential for the "double" damages and attorney’s fees can transform a wage claim seeking a couple weeks of unpaid wages into a much larger liability for employers who do not tread carefully. 

Whether you are an employee who is owed wages by his or her employer, or an employer dealing with wage issues, attorneys at Erickson | Sederstrom can assist you. Attorneys Bonnie Boryca or Paul Heimann can be reached (402) 397-2200.

Nebraska Supreme Court emphasizes statute of limitations and uniformity of policies in employment discrimination and retaliation claims

The Nebraska Supreme Court recently ruled on claims for disability discrimination and alleged retaliation against an employee for her filing of a worker’s compensation claim. Neither claim withstood a motion for summary judgment. The case is a helpful reminder of the importance of adhering to your policies in every instance and also shows how strictly courts will apply statutes of limitations, to an employer’s benefit here.

Facts of the Case

            Regional West Medical Center in Scottsbluff employed Melinda Brown as a customer service representative in its financial services department. She fell in the parking lot on August 16, 2011, injuring her hand and wrist. Ms. Brown filed a worker’s compensation claim with the medical center. She took twelve weeks of leave under the Family Medical Leave Act.

            Following the FMLA leave, Ms. Brown was granted another eight weeks of director-approved leave, consistent with the medical center’s policies. Also consistent with such policy, the eight week leave was granted but the medical center did not guarantee her position would be held for her at its expiration, and informed her she should apply for open positions during the leave. This leave was to expire on January 7, 2012.

            While on leave, Ms. Brown submitted a request for a reasonable accommodation to perform her customer service job. Her alleged impairment was limited use of her injured hand. The accommodation requested was simply to have a job to come back to after she was cleared of restrictions by her physician. Ms. Brown never returned to work after the accident or after her periods of approved leave.

            Instead, she was placed on furlough status on January 8, 2012, in further accord with Regional West Medical Center’s policies. The policy was to place an employee who does not return from leave on furlough status for up to one year from the date of the initial absence, during which she continued to receive employee benefits, was not paid salary, and in which her job was not held for her. To return during the one-year furlough, Ms. Brown would have to apply and be approved for an open position at the medical center. Ms. Brown received a letter January 12, 2012 informing her of this.

            Ms. Brown’s furlough expired on August 15, 2012; one year after her work-related injury absences began. She applied for no jobs at the medical center during furlough. On that same date, the medical center sent Ms. Brown a termination letter, citing the expiration of the furlough as the reason for “administratively ending your employment.”

Employee’s Claims and Suit

            Ms. Brown filed a charge of disability discrimination under the Americans with Disabilities Act and the Nebraska Fair Employment Practice Act on December 20, 2012. She claimed that she was denied a reasonable accommodation and terminated because of her disability. The Nebraska Equal Opportunity Commission ultimately issued a right to sue notice.

            The ADA and NFEPA claims were brought in the District Court of Scottsbluff County along with a common claim of retaliation for filing a worker’s compensation claim. That court entered summary judgment on all claims, and the employee appealed to the Nebraska Supreme Court.

            The issue on appeal with regard to the ADA and NFEPA claims of discrimination involved the statute of limitations for filing those charges with the NEOC. There was no genuine dispute of material fact that Ms. Brown was sent the letter notifying her of the expiration of her furlough’s expiration date and that she would be terminated upon that occurrence. The date of the letter was January 8, 2012, and she acknowledged receiving it soon after within her NEOC charge of discrimination.

            It was that letter that constituted the adverse act by the medical center against Ms. Brown. The letter was clear that she was going to be terminated on August 15, 2012 unless she applied and obtained another position during her furlough. She never even applied for another position during that time. Thus, the medical center’s decision was known to Ms. Brown in January 2012.

            A charge of discrimination under Nebraska and federal law must be filed with the NEOC within 300 days of the adverse action against the employee. The Court found that date was in January 2012 here, yet Ms. Brown did not file her charge until December 20, 2012, more than 300 days after the letter was sent to her. As a result, the Court affirmed the lower court’s dismissal of the claims because of the expired statute of limitations.

            The claim of retaliation for filing a worker’s compensation claim did not have to be submitted first to the NEOC or any agency. It was appropriately brought in court and within the requisite time period. However, that claim failed because the undisputed material facts showed it could not be proven to any reasonable jury at a trial.

            To establish retaliation in this context, a plaintiff must establish that she filed a worker’s compensation claim, that she was terminated from employment, and that a causal link exists between the termination and filing the claim. A retaliatory motive may be shown by proximity in time between filing the worker’s compensation claim and the termination, coupled with satisfactory prior work performance and good supervisor evaluations.

            In Ms. Brown’s case, the evidence indisputably showed that there were 20 weeks between the time of filing for worker’s compensation benefits and her administrative furlough. It was even longer until she was administratively terminated (which occurred one year after her first absence for the work-related injury). Most significant, Regional West Medical Center’s human resource officers had testified in depositions that they followed the absence, leave, and furlough policies to the letter and in the same manner as with employees similarly situated to Ms. Brown. Thus, there was no evidence of a retaliatory motive and the time between the worker’s compensation claim and the termination was not proximate.

Brown vs. Regional West Med. Ctr. 300 Neb. 937 (2018).

Takeaway for employers

            This case shows two important principles that repeat in employment claims. First, the statute of limitations can be powerful. Second, clear policies for human resources and supervisors to execute can be equally powerful. Applying those policies similarly in each instance can go a long way to negate any claim of improper motive or unfairness in the policy’s effects. If you have questions about how to craft a clear and easy to execute policy, keep your attorneys just a phone call or email away.

Tortious interference among set of valuable tools for employers to protect their information from misuse by former employees

Recently, the Eighth Circuit Court of Appeals reviewed an appeal out of the District of Nebraska. The multiple claims against former employees, including a claim for tortious interference with business relationships, a claim not often considered by employees and employers, but which can make a wide array of damages available to a plaintiff. The claim often arises alongside claims that former employees have taken trade secrets or used confidential information to solicit clients or other employees. Read on to learn more!

Factual Background

            Bryce Wells (“Wells”) was the president and shareholder of West Plains Company. Wells sold West Plains Company to West Plains, L.L.C. (West Plains), in February 2012. West Plains operated a freight brokerage operation called CT Freight. When Wells sold West Plains Company, the employee defendants and Jodi May (“May”) all continued to work for West Plains in the same positions they held prior to the sale. The employee defendants signed the West Plains Employee Handbook, “which prohibited employees from engaging in conflicts of interest and disclosing confidential information to a competitor.”

            In October of 2012, Wells began forming Retzlaff Grain Company, a freight brokerage company. Retzlaff Grain Company did business as RFG Logistics. Wells recruited four of the employee defendants who “signed confidentiality and consulting agreements with Wells.” Wells provided them each with $5,000 as a consulting fee.

            These four employee defendants worked with Wells in creating RFG Logistics and recruited the remaining employee defendants to join RFG Logistics by the end of January, 2012. The employee defendants then submitted their resignations from CT Freight.

Procedural History

            In February 2012, West Plains brought suit, alleging “(1) misappropriation of trade secrets against all defendants; (2) tortious interference with business relationships against all defendants; (3) tortious interference with employment relationships against Wells and RFG Logistics; (4) breach of the duty of loyalty against the employee defendants; (5) civil conspiracy against all defendants; and (6) a violation of the Computer Fraud and Abuse Act . . . against [one of the employee defendants].”

            The district court granted a temporary restraining order against the defendants “prohibiting them from contacting and providing freight brokerage services for the customer and carriers of CT Freight” until the court ordered and to return all documents taken from West Plains. The temporary restraining order was extended to April 5, 2013. The district court ruled in favor of the defendants regarding the claims for tortious interference with employment relationships and the claim under the Computer Fraud and Abuse Act.

            At trial, the jury found in favor of West Plains on the tortious interference with business relationships claim as to all defendants except for three. The jury also found a breach of the duty of loyalty by all employee defendants. Finally, the jury found that all defendants, except May, entered into a civil conspiracy. According to these findings, the jury awarded West Plains $1,513,000 in damages and required forfeiture of compensation of all employee defendants. The defendants appealed.

Tortious interference with business relationships

            In order to prove tortious interference with a business relationship in Nebraska, the following must be shown: 1) “the existence of a valid business relationship or expectancy”, 2) that the person interfering had knowledge of the business relationship or expectancy, 3) “an unjustified intentional act” by the interferer, 4) a showing that the interference caused the harm, and 5) damage to the party whose business relationship or expectancy was interfered with. The defendants alleged that that their conduct did not amount to unjustified interference and that West Plains did not prove their conduct caused that damages sustained by West Plains after the temporary injunction expired.

Acts of Unjust Interference

            Often the key question in a tortious interference claim is whether the acts that interfered were justified and proper. In this case, the Eighth Circuit Court of Appeals determined that “a jury could find Wells unjustly interfered with West Plains’ business relationship by knowingly paying, recruiting, and seizing CT Freight’s workforce, infrastructure, and customer relationships.”

            The court reasoned that Wells knew that by recruiting freight brokers away from CT Freight that he could essentially own CT Freight without having to pay for it. Although Wells instructed the employee defendants not to take any customers from CT Freight, he recruited the leaders of CT Freight and began a plan “that effectively would remove CT Freight’s business to RFG Logistics.” The group resignation resulted in an inability by CT Freight to “broker large quantities of freight.”

            The court also found that “the employee defendants took it upon themselves to take CT Freight’s customer lists, documents, and confidential information.” There were messages between some of the employee defendants discussing how to send the customer information to their personal emails. During the process of their departure, the defendants took steps to not “disrupt their business with their existing customers, whom they admittedly planned to bring with them the moment they left CT Freight.” The court held that “[w]hile there was nothing unjust about the employee defendants’ choice to leave at-will employment with West Plains, there was evidence the employee defendants knew and understood their group resignation would decimate CT Freight.”

Damages after April 5, 2013

            The defendants argued that there was not enough evidence to prove that the defendants’ resignations caused the losses suffered by CT Freight. The Eight Circuit determined that “[the defendant’s] concerted action . . . resulted in tortious interference that caused damage to West Plains.”

            West Plains went from a profit of over $800,000 in 2012 to a net loss of $150,000. West Plains tried to preserve the business by recruiting employees but could not find employees for the business. The court reasoned that even though West Plains did hire new employees, these employees did not have sufficient experience or a customer base in the industry. The Eighth Circuit concluded that “the evidence was sufficient to show the defendants’ actions caused a loss of profits to West Plains, and that loss continued after the expiration of the temporary injunction.”

Breach of Duty of Loyalty

            The Eight Circuit determined that the employee defendants breached their duty of loyalty, as well. The employee defendants, while employed by West Plains, “intended to hinder CT Freight’s business” by giving CT Freight information to Wells and resigning together in order to make sure customers followed. The employee defendants signed an agreement prohibiting them from partaking in conflicts of interests and distributing company information. Seven of the employee defendants signed the confidentiality and consulting agreements with Wells, violating their employment agreement with West Plains. Also, four of the employee defendants received the compensation from the consultation with Wells.

            The employee defendants also argued that the forfeiture of their pay was excessive. The Eighth Circuit determined that there was “adequate support for each award” based on the extent of involvement with RFG Logistics.

Civil Conspiracy

            A civil conspiracy can arise when two or more people accomplish, by concerted action, an unlawful object. A finding that the defendants committed unjustified interference with West Plains’ business or breached their duty of loyalty “would support the conspiracy claim.” The Eighth Circuit determined that “[t]here was abundant evidence showing the defendants entered into an agreement tortuously to interfere with West Plains’ business or to breach their duty of loyalty.”

Mitigation

            The defendants argued that West Plains did not show that it mitigated its damages upon the resignation of the employee defendants. The Eighth Circuit determined that West Plains immediately transferred employees from another division to CT Freight and contacted its customers that left with the employee defendants in an attempt to retain their business. CT Freight even expanded its business into other sectors of the industry. This all satisfied its duty to mitigate damages.

West Plains, L.L.C. v. Retzlaff Grain Co., 870 F.2d 774 (8th Cir. Aug. 30, 2017).

Takeaway for employers

            If you suspect former employees are appropriating your confidential information to consult with your clients or employees or may be planning to appropriate your information to form a competing venture, it is best to get your attorney involved right away. You may have rights to assert through a cease and desist letter, and could ultimately be vindicated in a court of law.

Durational terms in an offer created an employment agreement—not at-will employment

In an employee’s appeal, the Nebraska Court of Appeals recently considered an offer of employment, whether its acceptance by the employee created a valid employment contract, and whether the employer had cause to revoke the offer upon learning new information. The trial court had ruled for the employer as a matter of law, but the Court of Appeals recently sent the case back down to the trial court so a jury can decide these issues. Read on to learn more!

Background

    Paula Crozier (“Crozier”) was employed as executive director of a nonprofit organization. She resigned from that position in March of 2014. She then applied for the position of marketing and communications director at Brownell-Talbot School (“Brownell”). During an interview for the positon, Crozier was asked why she left her previous employment. She answered, “due to differences in business practices and ethical standards.” 
    Crozier was offered the position, and Brownell sent an offer letter for her to sign and return. The letter stated that Crozier would be hired for a twelve-month position but then stated her period of employment would be May 5, 2014 to July 30, 2015, a period of about fourteen months. The letter also stated that Crozier would receive an annual salary of $55,000 and made reference to various benefits that Crozier would receive after two years of employment.
    The letter was sent by Brownell on April 28, 2014 and was signed and returned by Crozier on April 29, 2014. On May 1, 2014 Brownell made an announcement that it had hired Crozier.
    On May 2, 2014 a newspaper article was published that described several issues involving Crozier’s former employer. The issues included billing and management problems and a failure to respond to an allegation of sexual abuse by an employee. Neither Crozier’s name nor any dates coinciding with Crozier’s dates of employment were mentioned in the article.
    Crozier brought the article to her direct supervisor who brought it to the attention of the head of the school. That day, the head of the school held a meeting with Crozier. At the meeting, Crozier explained she was not responsible for any of the problems and that she had resigned before the incident regarding the sexual abuse. Crozier also explained that she left her former employer upon discovering the issues that were mentioned in the article. Crozier reported the issues to the attorney general and the Department of Health and Human Services.
    Later that day, Brownell retracted the offer to Crozier over fears of public relations and damage to its reputation.
    Crozier filed a complaint against Brownell alleging a breach of contract and lack of good cause to revoke the offer of employment.

District Court Proceedings
    The district court found that the “durational terms in the letter were ambiguous and there was no clear intent sufficient to overcome the presumption of at-will employment.” The district court also found that Brownell had good cause in revoking the offer to Crozier. Subsequently, Crozier appealed.

Court of Appeals’ Ruling
    a.  Contract of Employment. The court noted that a contract is considered ambiguous “when a word, phrase, or provision in the contract has, or is susceptible of, at least two reasonable but conflicting interpretations or meanings.” Here, the court determined that the contract was in fact ambiguous. The contract identified Crozier’s job as a “twelve-month position” and conferred an “annual salary” but then stated the term of Crozier’s employment will last from May 5, 2014 to June 30, 2015, a total of 14 months. The court stated that there is no way to read the letter that “can reconcile these conflicting durations, which stand in direct contradiction of one another.” Since a term in the contract was susceptible to two different interpretations, evidence beyond just the terms of the contract could be considered to construe the parties’ actual agreement. 
The court then considered the testimony of Brownell’s director of business and finance. He stated that the reference to the 12 month period was in order to distinguish Crozier’s employment from that of a 10-month or 9-month employee. He further specified the salary stated in the offer was for determining Crozier’s monthly rate of pay. 
The court concluded that, in light of this testimony, a jury could find Crozier was to be employed for a definite term from May 5, 2014 to June 30, 2015 for a specific rate of pay. As a result, the question of breach of contract should have proceeded to the jury, and the court of appeals reversed the trial court’s decision.
    b.  Good Cause for Revoking Offer
    The court clarified that an employer can terminate an at-will employee at any time for any reason but if an employee is contracted for a defined term, that employee “cannot lawfully be terminated prior to the expiration of that term without good cause.” The court defined “good cause” in terms of what a reasonable employer would determine to be a good reason for terminating an employee. 
    The court determined that reasonable minds could differ as to whether Brownell revoked its offer to Crozier for good cause. Brownell stated that it terminated Crozier out of public relations concerns and that it could harm its reputation. Crozier presented evidence that her name was not mentioned anywhere in the news article and those allegations stated in the article were the reason she resigned from her previous employment in the first place. As a result, this issue should also have been left to a jury to decide. 
    The matter will be returned to the district court for trial of these issues to a jury.
Crozier v. Brownell-Talbot School, 25 Neb. App. 1 (2017).

Takeaway for employers
    Placing temporal terms on an offer of employment can transform what might otherwise have been an offer of at-will employment. Think carefully about crafting offer letters and involve your legal counsel for any special circumstances when offering new employment or renewing employment.
Bonnie Boryca can be reached at boryca@eslaw.com or (402) 397-2200.

“Reasonable Inference” All That Is Required To Find Sex Discrimination In Promotion Decision

If an employment discrimination case makes it way to a jury, and a jury finds discrimination and damages in favor of an employee, reversing that result on appeal is an uphill battle.  A recent Nebraska Supreme Court case involving Metropolitan Utilities District of Omaha (MUD) and allegations of sex discrimination in the denial of a promotion illustrate this point.  

Background
Plaintiff Kristina Hartley was a long time employee of MUD. She had a bachelor’s degree and began in customer service at MUD in 1984. She was promoted in 1986, 1988, 1991, and in 1994 to senior engineering technician. After sixteen years in that position, she applied to become supervisor of field engineering.  The position was open to current MUD employees via an internal job posting. The position involved planning, directing, and supervising the work of 17 field engineering and utility locator personnel of the plant engineering division.  

The position required two years of college in an area related to engineering and utility locating experience in the last five years, preferably in an ongoing capacity. This posting was the same as a previous posting for the same position in 2003 except that the utility locating experience in the last five years was a new requirement. Stephanie Henn, Senior Plant Engineer, added the new requirement and made the decision of who to promote to supervisor of field engineering. She had been Hartley’s direct supervisor for many years. Shortly before Hartley applied for the supervisor position, Henn was a promoted and a new direct supervisor was put in place over Hartley and others.  Hartley applied to be supervisor of field engineering. Ten other people applied, two of whom were female.

The promotion was awarded to a male colleague, David Stroebele. Hartley’s discrimination claim proceeded to trial and the details of how the promotion was awarded to Stroebele over Hartley and the other two female applicants were put before a jury. The jury found in favor of Hartley, awarding her $61,293 in special damages and $50,000 in general damages. After trial, the court awarded Hartley attorney’s fees of $56,800.
 
On appeal
MUD appealed to the Nebraska Supreme Court, which was tasked with answering whether sufficient evidence supported the jury’s verdict. The familiar McDonnell Douglas standard applied to Hartley’s case. She had to first establish a prima facie case of discrimination in the failure to promote her by demonstrating: (1) she was a member of a protected group, (2) she was qualified for and applied for a promotion to an available position, (3) she was rejected, and (4) a similarly situated employee, not part of the protected group, was promoted instead.  

When an employee establishes these elements, an employer may try to rebut the prima facie case by producing “clear and reasonably specific” admissible evidence that would support finding that unlawful discrimination did not cause the denial of the promotion, i.e., by articulating a legitimate, nondiscriminatory reason for the decision.

Upon providing such a reason, a jury must decide whether the employer acted because of the protected characteristic (here, Hartley’s sex) despite the employer’s proffered reason. In other words, is the employer’s reason a pretext for unlawful discrimination in making the decision not to promote? If so, “[t]he trier of fact can infer that ‘the employer is dissembling to cover up a discriminatory purpose.’”  

The first two steps were met in this case: Hartley established a prima facie case and MUD offered a legitimate, nondiscriminatory reason. Its proffered reason was that Stroebele was the better qualified candidate compared to Hartley. Hartley’s new direct supervisor and her prior supervisor, Henn, had expressed issues with her communication skills on a review just before she applied for the supervisor position. Also, they claimed she lacked the five years of locator experience needed for the position.  The question on appeal was whether there was sufficient evidence for the final step: were MUD’s reasons pretextual?  The evidence was sufficient, according the Nebraska Supreme Court. It recited the following evidence that the jury had before it:

• Hartley worked at MUD twice as long as Stroebele.

• She had supervised his work.

• She had more supervisory experience than him.

• She had the requisite skills at locating, though not within the past five years.

• She had no “chargeable hits” in locating, but Stroebele did in recent years (showing her locating skills were more accurate).

• She had more education than Stroebele.

• He had previously worked as a laborer and she had inspected his work while at MUD.

• The only complaints about Hartley were tied to her emotionality rather than competency to perform her job.

• Other female applicants were also more qualified than Stroebele.

• Hartley’s only performance appraisal in the past seven months took place just after she applied for the promotion, as did the other applicants’ appraisals.

• The appraisal was not conducted in month of the applicants’ hiring anniversary, contrary to MUD policy.

• Hartley’s appraisal showed a dramatic decline compared to her past appraisals.

• The appraisal was conducted by the new supervisor recently put in place over Hartley but referenced incidents before he was her supervisor, when Henn was her supervisor.

• Hartley’s supervisors showed hostility towards her after she complained about the timing and content of the appraisal.

• There was a question of whether the five years’ locating experience requirement was a legitimate and necessary requirement for the position.

• Supervisors provided inconsistent or shifting explanations about Hartley’s skills at locating in explaining why she was denied the promotion.

In response to this evidence, MUD argued the jury could not have reasonably found pretext because Hartley admitted that certain events happened. It said she did not refute that in 2008 she had a bad interaction with then-supervisor Henn, which Henn thought was unprofessional. It also said she did not refute the truth of complaints about Hartley that she did not like to do utility locating.  

The Court rejected MUD’s argument. It “confuse[d] the falsity of an occurrence cited in support of the employer’s action with the falsity of the employer’s statement that the proffered non-discriminatory reason actually motivated the employer.” Regardless of the truth or falsity of the complaints against Hartley, the evidence could have led a jury to conclude those complaints were not the actual reason for denying Hartley the promotion. Viewing the evidence as a whole and in a light most favorable to Hartley, the Court found that there was sufficient evidence to support a reasonable inference that the employer’s promotional decision was because of Hartley’s gender.  Therefore, the jury’s verdict was upheld, including each amount for damages and attorney’s fees.  Hartley v. Metropolitan Utilities District of Omaha, 294 Neb. 870 (Sep. 30, 2016).

Takeaway for employers
The evidence put before the jury may have led jurors to conclude that policies were not followed with regard to the plaintiff that illegitimate job requirements were placed in the posting to exclude certain applicants, and that supervisors had improper justifications when excluding female applicants.

This case should show employers the importance of conducting job performance appraisal consistently and in conformity with written policies or past practices. Furthermore, job postings are important and should contain only the actual requirements and considerations involved in reviewing applicants for a position.  Bonnie M. Boryca is contributing editor of the Nebraska Employment Law Letter and can be reached at (402) 397-2200.