USA – NEBRASKA Law and Practice Contributed by: Tara Paulson, Mark Fahleson and Julie Schumacher, Rembolt Ludtke LLP
hearings on routine motions, subject to the preference of the judge or officer conducting the proceeding.
been subject to an unfair labour practice must file a charge with the NLRB, which will be adjudicated under the NLRB’s administrative processes. Employ - ees covered by a collective bargaining agreement who raise claims related to their employment must, how - ever, grieve such claims with their union. Such claims will be resolved pursuant to the terms of the collec - tive bargaining agreement, which may result in bind - ing arbitration of the dispute. The NLRA only applies to non-managerial employees of private employers engaged in substantial interstate commerce. 9.2 Alternative Dispute Resolution 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 scruti - nise 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. 9.3 Costs 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 employ - ees may be entitled to attorney’s fees and costs. These statutes typically include fee-shifting provi - sions, 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.
9. Dispute Resolution 9.1 Litigation 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 unem - ployment 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 ulti - mate review from the Nebraska Supreme Court. Claims regarding workplace safety follow similar admin - istrative 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 collec - tive bargaining agreement are subject to the require - ments of the NLRA. An employee claiming to have
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