USA – NEBRASKA Trends and Developments Contributed by: Tara Paulson, Mark Fahleson and Julie Schumacher, Rembolt Ludtke LLP
One day before the plaintiff was to commence her job with the competing practice, she was told that she should not report for work because the wife of one of the owners of her new employer opposed the hiring of the plaintiff. Consequently, the plaintiff – an at-will employee – was terminated before she even com - menced her employment with the competing practice. The plaintiff subsequently brought suit seeking dam - ages for breach of an alleged oral employment con - tract and damages for the plaintiff’s detrimental reli - ance on a promise of employment. On appeal, the Nebraska Supreme Court held that the doctrine of promissory estoppel applied and the plaintiff should be able to recover for any damages she sustained as a result of her detrimental reliance on the new employer’s unfulfilled promise of employment. Thus, the court created an exception to employment at will for instances in which the employee has relied to her detriment on a promise made by an employer that the employer should reasonably expect the employee to rely upon. Employment policies and employee handbooks Nebraska recognises that statements made in employment policies and handbooks can alter at-will employment. In Jeffers v Bishop Clarkson Memorial Hospital , 222 Neb. 829, 387 N.W.2d 692 (1986), the plaintiff received an employee handbook that included express procedures to be followed in processing griev - ances. After the plaintiff employee was terminated, the plaintiff initiated a grievance action according to the procedures in the employee handbook. The Nebraska Supreme Court held that the plaintiff stated a cause of action as the employee handbook established a procedure for employees to challenge employment actions that were not followed by the employer. For this reason, prudent employers now include strong at-will language and express disclaimers in their employee handbooks. Implied covenant of good faith and fair dealing Nebraska has a novel application of the implied cov - enant of good faith and fair dealing in employment. First, case law suggests it will only be implied in situations: (i) where an employee has been deprived of a constitutional or statutory right; or (ii) involving
employment contracts that provide the employee can - not be terminated but for just cause. Second, the cov - enant will only be implied “in the context of ‘employ - ment termination,’ not in the general contexts of the employment relationship or of the conduct between employer and employee prior to termination”. The cornhusker circumvention: Neb. Rev. Stat. Section 20-148 Like the federal Title VII of the Civil Rights Act, the Nebraska Fair Employment Practice Act (NFEPA) prohibits, among other things, employers from dis - criminating against individuals on the basis of race, colour, religion, sex, disability or national origin, but adds “marital status” as an additional protected class. NFEPA requires employees to file an administrative charge of action with the Nebraska Equal Opportunity Commission (NEOC) within 300 days after the occur - rence of the alleged unlawful employment practice. Exhaustion of this administrative process is a pre - requisite prior to instituting a private action alleging a NFEPA violation and such action must be filed within 90 days after notice of the last action the NEOC takes on the charge. However, a unique Nebraska statutory nuance allows claimants to skip the administrative process pre - scribed by NFEPA and proceed directly to court. Section 20-148 of the Nebraska Revised Statutes provides: “(1) Any person or company, as defined in section 49-801, except any political subdivision, who sub - jects or causes to be subjected any citizen of this state or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immuni - ties secured by the United States Constitution or the Constitution and laws of the State of Nebraska, shall be liable to such injured person in a civil action or other proper proceeding for redress brought by such injured person. (2) The remedies provided by this section shall be in addition to any other remedy provided by Chapter 20, article 1, and shall not be interpreted as denying any person the right of seeking other proper remedies pro - vided thereunder.”
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