Good Faith in Employment in Nebraska

Employers in Nebraska are required to conduct themselves in good faith.

In Sinnett v. Hie Food Products, Inc., 185 Neb. 221, 174 N.W.2d 720, the court considered the classic good faith and fair dealing case. The plaintiff was promised a bonus if he worked an entire year. He began employment on October 1, 1967, so he would have become entitled to the promised bonus if he had worked a full day on September 30, 1968. But the employer fired him during the day on September 30 and denied him the bonus. The Nebraska Supreme Court held that it did not matter that the employment agreement was terminable at will; the employee was entitled to the bonus anyway where he was fired without good cause.  Id. at 223-224, 174 N.W.2d at 722.

Nebraska recognizes the covenant of good faith and fair dealing in employment cases.  The court did not categorize its decision in Sinnett as one based on good faith and it may call it something else the next time to avoid direct conflict with its no-good-faith language in other cases. But for practical purposes, when the court is faced with a classic good faith claim (the Sinnett case), it is going to decide it as if it were a good faith claim.

Nebraska is not likely going to interpret the covenant of good faith expansively.  This is clear based on White v. Ardan, Inc., 230 Neb. 11, 430 N.W.2d 27 (1988), in which the court rejected a good faith claim where the basic argument was that the discharges were improper because an employer had said false and mean things about the discharged employees.

Nebraska will likely follow those states that in Sinnett-like situations permit the covenant to be used only to recover damages, but not to challenge discharge decisions themselves.  Recovery of the bonus was the remedy in Sinnett, but that was all that the plaintiff was seeking. So the issue is not resolved. But the skeptical language about the covenant in cases like White v. Ardan makes it likely that the courts will be inclined to limit the cause of action in this way, rather than to treat it more broadly.

If you have questions about whether good faith has been followed in your case, contact Madathil Law Office for a free consultation.

Madathil Law Office, LLC
Omaha Employment and Business Law

1625 Farnam Street #830

Omaha, NE 68102

angela@madathil-law.com

http://www.madathil-law.com/

T: 402.577.0686

F: 402.932.9551

Overtime for Related Employers

When most people work two jobs, they work for two entirely unrelated employers.  If an employee has one part-time job with Wendy's and another with McDonald's, that employee is not entitled to overtime compensation (their normal pay times 1.5 for hours over 40 in a week) if they work over forty (40) hours for the two employers when their time at both jobs are added together.

However, if the employee is doing the same job but working part of their hours for one entity and part of their work for another related entity the employee may be entitled to overtime pay for hours worked over forty in a week.

If the facts establish that the employee is employed jointly by two or more employers, i.e., that employment by one employer is not completely disassociated from employment by the other employer(s), all of the employee’s work for all of the joint employers during the workweek is considered as one employment for purposes of the Act. In this event, all joint employers are responsible, both individually and jointly, for compliance with all of the applicable provisions of the act, including the overtime provisions, with respect to the entire employment for the particular workweek.” [29 CFR 791.2(a)] The fact that employees who are employed jointly by two or more employers are entitled to overtime has been established both by the courts like in the caseWalling v. Friend, et al.,156 F. 2d 429 (8th Circ.), as well as by amendment to the Act.

Paragraph (b) of 29 CFR Section 791.2 provides the following three criteria to determine if a joint employment relationship exists:

· The employers share the services of the employee; or

· One employer acts directly or indirectly in the interest of the other employer in relation to the employee; or

· The employers share control of the employee because one employer controls, or is controlled by, the other employer, or all of the employee’s employers are controlled by another company.

These criteria are from Federal Regulations at 29 CFR 791-2.

29 CFR § 791.2(a) provides that a determination of whether the employment by the employers is to be considered joint employment or separate and distinct employment for purposes of the act depends upon all the facts in the particular case. If all the relevant facts establish that two or more employers are acting entirely independently of each other and are completely disassociated with respect to the employment of a particular employee, who during the same workweek performs work for more than one employer, each employer may disregard all work performed by the employee for the other employer (or employers) in determining his own responsibilities under the Act.

On the other hand, if the facts establish that the employee is employed jointly by two or more employers, i.e., that employment by one employer is not completely disassociated from employment by the other employer(s), all of the employee's work for all of the joint employers during the workweek is considered as one employment for purposes of the Act. In this event, all joint employers are responsible, both individually and jointly, for compliance with all of the applicable provisions of the act, including the overtime provisions, with respect to the entire employment for the particular workweek. Both the statutory language (section 3(d) defining “employer” to include anyone acting directly or indirectly in the interest or an employer in relation to an employee) and the Congressional purpose as expressed in section 2 of the Act, require that employees generally should be paid overtime for working more than the number of hours specified in section 7(a), irrespective of the number of employers they have. Of course, an employer should not be held responsible for an employee's action in seeking, independently, additional part-time employment. But where two or more employers stand in the position of “joint employers” and permit or require the employee to work more than the number of hours specified in section 7(a), both the letter and the spirit of the statute require payment of overtime. In discharging the joint obligation each employer may, of course, take credit toward minimum wage and overtime requirements for all payments made to the employee by the other joint employer or employers.

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Payment for Overtime in Nebraska

Employees in Nebraska paid on an hourly basis are entitled to be paid their normal hourly rates times 1.5 (or one and a half times their normal hourly rate) for hours that they work over forty hours in a week. This is under the Federal Fair Labor Standards Act. However, employees can enforce this right under the Nebraska Wage Payment and Collection Act (Neb. Rev. Stat. 48-1229).

Overtime wages can be claimed under the Nebraska Wage Payment and Collection Act only if those overtime wages were previously agreed to by the employer and the employee. Nonetheless, even in the absence of a previous agreement concerning overtime compensation, compensation for overtime can be claimed under the federal Fair Labor Standards Act for hours worked in excess of 40 during a given week. Freeman v. Central States Health & Life Co., 2 Neb. App. 803, 515 N.W.2d 131 (1994).

If you believe that your employer has not properly paid overtime wages, or withheld payment for any time, you have a right to demand an itemized statement listing the wages earned and the deductions made pursuant to Neb. Rev. Stat. 48-1230.  If your employer fails to provide the statement within ten days, he or she may be guilty of an infraction. Neb. Rev. Stat. 48-1231(2).

If you are forced to make a claim for your wages, the court may award attorney fees to your lawyer. Neb. Rev. Stat. 48-1231(1).

If the court finds that the nonpayment of wages was willful, the employer can be forced to pay two times the amount of unpaid wages. Neb. Rev. Stat. 48-1232.

If your boss has refused to pay you what is due, you should consider retaining an attorney to represent you.  You may be able to bring a claim for any deductions in pay that your employer makes without your consent.

If you live in Omaha, Lincoln, Lancaster County, Douglas County, Otoe, or Cass Counties and you need an employment law attorney, consider contacting Angela Y. Madathil and the Madathil Law Firm.   The firm serves clients in all of these areas.

Contact us at angela@madathil-law.com or by telephone at 402.577.0686.  For more information feel free to look at our website www.madathil-law.com.

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