August 23, 2014
3800 VerMaas Place, Suite 200
Lincoln, NE 68502 (map)
Phone: 402.475.7011
Toll Free: 800.714.3439

Claims for Unpaid Wages

Under the Nebraska Wage Payment and Collection Act an employee or former employee cannot bring a claim for unpaid earned wages until 30 days have passed from the missed regularly scheduled payday. If the employee is terminated or quits, her/his earned wages are not due until the next regularly scheduled payday. The counting period is not from when the person was fired or quit but rather from the next scheduled payday.

It is important to note that the claim is only for your hours worked. Wages include compensation for labor or services and fringe benefits such as vacation pay. Not included as a fringe benefit is sick leave. If an employer does not keep vacation pay and sick leave separate from one another and lumps everything together as paid time off (PTO), then all the earned PTO must be paid at the time of separation.

If the employee is paid by commission, the earned commission is not due until the employer receives payment from customer for the good or service which generated the commission. The employer must provide a separated employee with a periodic accounting of outstanding commissions until all commissions have be been paid or canceled by the customer. If the employer has been paid and the next regularly schedule pay period passes, the employee or former employee must wait 30 days to bring a claim for the unpaid commission.

 

Pre-employment Drug Tests Are Allowed

An employer under federal law is allowed to require its applicants to submit to pre-employment drug tests. Drug tests are not considered medical examinations under the Americans with Disabilities Act (“ADA”), and therefore, the employer does not need to make a conditional offer of employment before the drug test. Note that the drug tests do not include testing for alcohol. Alcohol tests are considered medical examinations and therefore require a conditional offer of employment before testing.

For the employer to deny employment to an applicant the following requirements need to be met under the Nebraska Drug and Alcohol Testing Act:

  • Confirm any positive initial finding of a preliminary drug screen by a gas chromatography-mass spectrometry analysis. As a practical matter virtually all labs performing testing in Nebraska are in compliance with this requirement.
  • The specimen needs to be properly refrigerated and preserved in sufficient quantity for retesting for at least 180 days.
  • A written record of the chain of custody of the specimen from time of collection until the specimen is no longer needed.
  • Employer may not release or disclose results of the test to public other than as required by law or by request of applicant.

A current illegal drug user does not qualify with a disability under the ADA; however, individuals who have been rehabilitated and do not currently use illegal drugs may be protected by the ADA. An employer’s pre-employment drug testing policy should be administered across the board without regard to race or any other protected characteristics under Title VII. It should be applied equally and fairly to all employees.

 

Religious Garbs in the Workplace

Covered Employers under Title VII (employs 15 or more employees who worked at least 20 weeks in the current year or last year) must accommodate employees who hold religious beliefs which mandate a certain dress or grooming practice, unless the accommodation would create an undue hardship. An example is a person wishing to wear a yarmulke.

It is sometimes difficult to know whether the religious accommodation would create an undue hardship, the Equal Employment Opportunity Commission (EEOC) has said that customer preference is not an undue hardship, so the employer cannot segregate the employee and then claim that they accommodated the employee’s religious rights. However, if the religious dress practice would create some type of workplace safety concern, then the employer would not need to accommodate as long as it is a legitimate undue hardship.

Also, the employer may not retaliate against an employee who has requested a religious accommodation nor can there be workplace harassment.

For more guidance see the EEOC’s  fact sheet and a FAQ regarding religious accommodation relating to religious dress and grooming.

Richard Knudsen Elected as Honorary Trustee of Cooper Foundation

Richard A  Knudsen

The Cooper Foundation announced that Richard (Dick) Knudsen has been elected to serve as honorary trustee of the board of trustees. He was selected for his long and valuable service to the Cooper Foundation. Mr. Knudsen first started serving the Cooper Foundation in 1950 when he joined the law firm of Beghtol & Rankin. Once Mr. Knudsen made partner, the law firm became Beghtol, Mason, Knudsen, & Dickeson and which would eventually become Knudsen, Berkheimer, Richardson & Endacott. Mr. Kundsen retired from practice in 1994 but still served the Cooper Foundation.

Dick Knudsen continued the law firm’s representation of the Cooper Foundation which was started by Max Beghtol in the 1920s.  It was then continued by J. Lee Rankin, John Mason, as well as Wally Richardson.  J. Lee Rankin was also elected as an honorary trustee of the board of directors in 1984.

The Cooper Foundation supports individuals through education, human services, the arts, humanities and the environment. The Foundation gives grants to non-profit organizations primarily Lincoln and Lancaster County.

Employers and Employees Can Contract When Commissions Are Earned

The Nebraska Wage Payment and Collection Act, Neb Rev. Stat. §§ 48-1228 to 48-1232, requires that if the employer-employee relationship is terminated, the employer shall pay the employee all of the earned wages on the next regularly scheduled payday following the termination, or within two weeks of termination whichever is sooner.  Earned commission is considered earned wages and must be paid as well. However, commission is not payable until the employer has received payment, but as long as the commission has been earned, the employee is entitled to it.

Determining when the commission is earned could potentially be the tricky part. The Nebraska Wage Payment and Collection Act sets forth that unless the employer and employee specifically agree otherwise then commissions are earned on all orders delivered and all orders on file with the employer at the time of the termination. This is the default standard for when commissions are earned, but the standard can be changed if the employer and employee specifically agree to use a different standard. The Nebraska Supreme Court allowed a different standard in Coffey v. Planet GroupTherefore, it is always a good idea for both employers and employees to know when the commission is earned.

Dick Knudsen Participates in No Sit Sunday

Sunday’s Nebraska Men’s Basketball game against Wisconsin was deemed “No Sit Sunday” where the coaches asked the fans to stand the entire game. Dick Knudsen at 89 years old had no problem meeting that request and was even recognized on Twitter for standing the entire game.

Mr. Knudsen

Thanks to Jon Callahan for taking the picture and tweeting it. Jon’s tweet can be viewed here.

 

Employment Law: Title VII Retaliation Claims Require “but-for” Causation Test.

The U.S. Supreme Court ruled in Univ. of Texas Southwestern Med. Ctr. v. Nassar that in order for a plaintiff to recover under a Title VII retaliation claim, the plaintiff must prove but-for the improper motive the employer would not have taken the employment action. This standard is same standard used in torts. Clarification was needed because proving causation for discrimination under Title VII is a lesser standard and only requires proof that the improper motive was only a factor in employment action.

The distinction for the causation standard is that retaliation for Title VII is under a different provision than discrimination, thus creating two different causes of action. The Court reasoned that if both provisions used the same standard for causation then that would defeat purpose of creating two separate causes of action because proving discrimination would also prove retaliation. Also, the Court reasoned that if Congress had meant for a lesser causation standard to apply to retaliation, it would have inserted the language to that provision when the discrimination provision was modified.

Title VII prohibits discrimination and retaliation on the basis of race, color, religion, sex and national origin.  Discrimination under Title VII applies to employment actions (hiring, firing, promotions etc.). Retaliation under Title VII applies when the employee complains, opposes, or sought remedies for the improper employment discrimination and the employer then retaliates against that employee.

Nebraska Legislature – Proposed Bills Could Affect Employers Withholding Wages

Two Nebraska bills have been proposed which would hold employers more accountable for withholding employee wages and provide employees with more protection. The Business and Labor Committee held hearings on LB 177 and LB 560 on February 4 and has not yet taken further action.

Senator Jim Smith introduced LB 177 which proposes to allow the Commissioner of Labor to seek enforcement of the Nebraska Wage Payment and Collection Act by investigating employers who have violated the act and could assess a civil penalty up to $1,000. This bill gives the Commissioner the power to:

• investigate
• hold hearings and
• subpoena records and witnesses.

If an employer willfully violated the Act, then the Commissioner could hold the employer liable to the affected employee for waiting time damages. These damages would be 50 percent of the wages owed.

This bill would give employees a different avenue to recover unpaid wages. Currently employees can only recover unpaid wages if they bring a civil suit after 30 days of a missed pay day.

In addition the Commissioner would be obligated to report a noncompliant employer to the county attorney. A violation would be Class IV misdemeanor. Under the current law, only a fine can be levied against employers who fail to provide an employee with an itemized statement, if a request was made.

During the hearing Sen. Smith offered an amendment to the proposed bill which would drop the Labor Commissioner’s ability to issue a $1,000 penalty.

The second bill, LB 560 introduced by Senator Heath Mello, proposes amendments to several acts. The bill would amend the Nebraska Fair Employment Act, the Wage and Hour Act, the Nebraska Wage Payment and Collection Act, and the Employee Classification Act.

LB 560 would amend the Nebraska Fair Employment Act to give the Commissioner of Labor the power to hold hearings and subpoena witnesses. It would also require every employer and labor organization that is subject to Fair Employment Act to keep and maintain employment records for five years.

The Nebraska Wage Payment and Collection Act would be amended to require employers give a 30-day notice to an employee before altering the employee’s wages. Currently the Act only requires a 30-day notice before altering an employee’s regular paydays. Also, the bill would require employers to provide an itemized statement detailing wages and the deductions made. This is different from the current rule which requires an employer to only supply an itemized statement after a request from an employee. Senator Mello’s bill would also give the Commissioner of Labor power to investigate and subpoena records and

witness related to enforcement of the Act. It also requires the county attorney to prosecute violators.

LB 560 would also prohibit retaliation by employer against an individual for participating in any investigation or hearing under the Nebraska Wage and Payment Act, The Wage and Hour Act, and the Employee Classification Act.

Several groups supported the two bills during the hearings, while each bill received a letter in opposition. The Labor Commissioner took a neutral position on both bills because more employees would need to be hired to carry out the investigations. A fiscal note is attached to both bills and estimates a cost between $149,148 and $165,345 for each of the next two years.

While LB 560 contains very similar amendments as LB 177, no formal discussions about combining the bills have taken place.

Nebraska employers should keep an eye on these proposed bills, as their effect on employment laws could be severe.

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