USA – NEBRASKA Law and Practice Contributed by: Tara Paulson, Mark Fahleson and Julie Schumacher, Rembolt Ludtke LLP
7.4 Termination Agreements Nebraska permits termination agreements that offer severance benefits in exchange for a release of claims against the employer. In Nebraska, there are no spe - cific formalities required. However, Nebraska employ - ers 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 addi - tion 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 with - in 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 revo - cation 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, divi - sion 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.
tion. Best practices dictate that severance or sepa - ration agreements include a release and waiver of all claims against the employer (unless release and waiver is precluded by explicit operation of law). 7.2 Notice Periods Nebraska law does not dictate any specific require - ments concerning the termination of the employment relationship unless an employment contract, collec - tive 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 employ - ees) 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. 7.3 Dismissal for (Serious) Cause 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 ver - bally) that employment will only be terminated under certain circumstances, such as for “good cause” or “good reason”. Such “for cause” agreements gener - ally identify serious policy breaches, criminal charges or other misconduct as grounds for termination of the employment or a requirement that the relation - ship may only be terminated following payment of liq - uidated 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.
755 CHAMBERS.COM
Powered by FlippingBook