USA – NEBRASKA Law and Practice Contributed by: Tara Paulson, Mark Fahleson and Julie Schumacher, Rembolt Ludtke LLP
2.2 Non-Solicits 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 busi - ness interests. See 2.1 Non-Competes . Nebraska courts regard a non-compete with cus - tomer 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 contact - ing former clients as of the employee’s termination date. Nebraska courts have held that a general adver - tisement 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. 3. Data Privacy 3.1 Data Privacy Law and Employment Nebraska has adopted a variety of statutory protec - tions 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 employ - ee’s or applicant’s personal internet account; • log into a personal internet account in the employ - er’s presence so that the employer can observe the contents of or gain access to the employee’s or applicant’s personal internet account;
• 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-com - pete 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 agree - ment that restricts the right of the lawyer to practise after termination of a relationship, except an agree - ment 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.
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