Nebraska Appeal Tribunal Granted a New Hearing!

Today we received some good news.  The Nebraska Appeal Tribunal, of the Nebraska Department of Labor granted my client a new hearing.  She had attempted to appeal the decision of the Department of Labor adjudicator (which found she had been terminated for misconduct) through the Nebraska Department of Labor's online system.  The system can be a bit confusing once you get logged in if there are several "issue codes" occurring.  She ended up accidentally appealing the wrong "issues" which had nothing to do with misconduct.  I finally unraveled what had happened for her.  But unfortunately the twenty (20) day deadline to appeal the Adjudicator's decision had passed! I decided to file the appeal by faxing it in.  I asked the Nebraska Appeal Tribunal to consider granting her another hearing.  She had clearly been attempting to appeal, but had appealed the wrong "issues" due to confusion with the online system.  I am so glad to know that it IS possible to get another hearing if you are outside of the Nebraska unemployment appeal deadline.  However, it seems that you will likely need to have a pretty good excuse, like being in the hospital, or that you were trying to appeal but got confused by the process.

If you have filed for unemployment in Nebraska, and a hearing is going to occur to determine whether you were fired for misconduct, you may want to hire an attorney. The hearing over the phone is like a mini-trial in which you can subpoena witnesses and documents.  If you want to appeal the decision the Board of Review and the District Court will only be able to review the evidence that is in the record.

To learn more about filing for unemployment benefits in Nebraska, check out our firm's website - http://www.madathil-law.com/unemployment-benefits.html

Contact Madathil Law Office for a free consultation with a lawyer about your Nebraska unemployment issue today.

Angela Y. Madathil
Madathil Law Office, LLC

Nebraska Unemployment Attorney
Serving clients throughout Nebraska.

In Omaha                                         
1625 Farnam Street #830                
Omaha, NE 68102  

In Lincoln

285 South 68th Street Place, Suite 322
Lincoln, NE 68510

angela@madathil-law.com

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

T: 402.577.0686
F: 402.415.0635

Voluntarily Quitting

It can be difficult to quality for unemployment benefits in Nebraska if you voluntarily quit your position.
To "leave work voluntarily," as that term is used in the Employment Security Law, means to intentionally sever the employment relationship with intent not to return to, or to intentionally terminate, the employment. Powers v. Chizek, 204 Neb. 759, 285 N.W.2d 501 (1979). See also: Gastineau v. Tomahawk Oil Company, 211 Neb. 537, 319 N.W.2d 107 (1982), Nuss v. Sorensen, 218 Neb. 703, 358 N.W.2d 752 (1984), McClemens v United Parcel Service, 218 Neb 689, 358 N.W.2d 748 (1984), Montclair Nursing Center v. Wills, 220 Neb. 547, 371 N.W.2d 121 (1985).



One is disqualified for unemployment benefits if, by leaving work voluntarily without good cause, one thereby makes himself or herself "unemployed." Gilbert v. Hanlon, 214 Neb 676, 335 N.W.2d 548 (1983).

As a general rule, an employee who leaves employment for the sole purpose of obtaining a better job has left work voluntarily within the meaning of the Nebraska Employment Security Law. Id., Gilbert v. Hanlon, which declined to apply disqualification in the case of concurrent full-time and part-time employment because claimant had not become "unemployed," is distinguished. Nuss v. Sorensen, 218 Neb. 703, 358 N.W.2d 752 (1984).

If you live in Omaha, Lincoln, Lancaster County, Douglas County, Otoe, or Cass Counties and you need an employment lawyer, 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.  The firm offers free consultations.  For more information feel free to look at our website www.madathil-law.com.

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Unemployment Benefits for Contractors and the Self-Employed

If you are considered an independent contractor or are self-employed, you may still be eligible for Nebraska Unemployment Benefits.  One way to be eligible is to make the election to be a part of the Nebraska unemployment benefits system while you are still employed.  



Election to be a part of Unemployment Insurance 

Pursuant to Neb. Rev. Stat. 48.115(10) if you are working on a full-time basis you can elect to bring yourself within the provisions of the Nebraska Workers' Compensation Act. You have to file the election in writing with the Nebraska workers' compensation insurer. The election is effective upon receipt and remains in effect until the election is terminated, in writing, or until the insurer ceases to provide coverage for the business, whichever occurs first.


Independent Contractors

It is common to encounter misconceptions about who is and who is not an independent contractor. For Nebraska unemployment benefits purposes, services provided by an independent contractor are exempt. This means no tax is owed of unemployment benefits and no benefits can be paid to unemployed workers in Nebraska based on services provided as an independent contractor. However, Nebraska statutes §48-604(5) includes a test to define an independent contractor relationship.  This statute controls who is or is not an independent contractor. The requirements extend far beyond simply calling an individual an independent contractor or having a worker sign an independent contractor agreement.

The statute creates a three-part conjunctive test which is not the same as the 20 point test used by the Internal Revenue Service. All three parts of the test must be met for an individual to be exempt from Nebraska unemployment benefits as an independent contractor. The test is sometimes referred to as the A-B-C test. Payment for services will be considered employment unless and until it can be shown that:

a. such individual has been and will continue to be free from control or direction over the performance of such services, both under his or her contract of service and in fact,

b. such service is either outside the usual course of the business for which such service is performed or such service is performed outside of all the places of business of the enterprise for which such service is performed, and

c. such individual is customarily engaged in an independently established trade, occupation, profession, or business. 

If you need an unemployment benefits attorney consider hiring Madathil Law Office.  If you live in Omaha, Lincoln, Lancaster County, Douglas County, Otoe, or Cass Counties and you need an employment lawyer , 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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Burden of proving misconduct

If you have applied for unemployment benefits in Nebraska, and your boss or former employer has claimed that you were fired for misconduct, you need to know who has to prove that misconduct.

In cases where an employer has claimed that the employee is ineligible for Nebraska Unemployment Benefits due to misconduct, the burden of proof is on the employer.

The employer must prove that an employee was discharged for acts or omissions that
1) damaged the employer’s interest in relation to the employment;
2) the employee knew or reasonably should have known were contrary to the
employer’s interests; and
3) were willful or within the employee’s control. Maximum benefit ts payable may also
be reduced when a disqualification is assessed.

You can find precedents from the Nebraska Department of Labor that concern the definition of misconduct on their website here.




If you have been denied Nebraska unemployment benefits on because your boss or former employer has claimed that you did something wrong, or engaged misconduct, you should consider hiring a Nebraska attorney to help you plead your case for unemployment benefits.  The appeal hearing is much like a trial and you have the right to subpoena witnesses and evidence.

If you need an unemployment benefits attorney consider hiring Madathil Law Office.  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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Ineligible for unemployment benefits if not applying for work

If you are receiving Nebraska Unemployment benefits, you need to make sure that you are applying for work each week.

Neb. Rev. Stat. 48-628(3)(a) provides that the employee is ineligible for benefits for the week in which he or she he or she has failed, without good cause, to apply for available, suitable work, to accept suitable work offered him or her.

If you are found to have failed to apply for work, you then are not eligible for unemployment benefits for the twelve weeks which immediately follow such week, and your benefit amount will be reduced by an amount equal to the number of weeks for which you have been disqualified by the commissioner.

When determining whether you have been applying for (or failed to accept) suitable work, the Unemployment Judges will consider the degree of risk involved to the individual's health, safety, and morals, and your physical fitness and prior training,  experience and prior earnings, length of unemployment and prospects for securing local work in your normal line of work, and the distance of the available work from your residence.

The good news is that you will not be disqualified for benefits for refusing to apply for available, full-time work or accept full-time work solely because you are seeking part-time work if the majority of the weeks of work include part-time work. Except that you must be available for work at least twenty hours per week.

If you receive notification that the Department of Labor has determined you must pay back benefits because they believe that you were not appropriately applying for work, you may want to speak to a Nebraska Unemployment Benefits attorney.  Madathil Law Office, LLC is happy to provide legal representation to those who need help appealing unemployment benefits.

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. 

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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Misconduct based on intoxicating beverages or medications

 In Nebraska an employee is generally eligible for unemployment benefits if the employee is fired but not for misconduct.

If the commissioner finds that the individual was discharged for misconduct which included being under the influence of any intoxicating beverage or being under the influence of any controlled substance on the worksite or while engaged in work for the employer the employee is disqualified for unemployment benefits. In addition the employee is disqualified for unemployment benefits for fourteen-weeks and the commissioner will cancel all wage credits earned as a result of employment.  There may be some leeway if the employee has taken a controlled substance listed in section Neb. Rev. Stat. 28-405 but it was prescribed by a physician licensed to practice medicine or surgery.  If you were terminated due and there are allegations that you were intoxicated due to medication or other substances you may want to hire a lawyer to represent you.

If you have been denied Nebraska unemployment benefits on the basis of your termination due to alleged misconduct, you should consider hiring a Nebraska attorney to help you plead your case for unemployment benefits.  The appeal hearing is much like a trial and you have the right to subpoena witnesses and evidence.

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. 

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.

Disqualification for Nebraska Unemployment Benefits - Misconduct

In Nebraska an employee is generally eligible for unemployment benefits if the employee is fired but not for misconduct.  Nebraska statutes provide at Neb. Rev. Stat. 48-628(2) that the employee is ineligible for benefits for the week in which he or she has been discharged for misconduct connected with his or her work, if so found by the commissioner, and for the following fourteen weeks.

The definition of misconduct is based on what the commissioner finds gross, flagrant, and willful, or was unlawful.  The unemployment benefit hearing is like a mini-trial and an attorney can help to do the examination of any witnesses and the opening and closing statement.

The term "misconduct" as used in Neb. Rev. Stat. 48-628(b) has generally been defined to include behavior which evidences 

(1) wanton and willful disregard of the employer's interests; 

(2) deliberate violation of rules; 

(3) disregard of standards of behavior which the employer can rightfully expect from the employee; or 

(4) negligence which manifests culpability, wrongful intent, evil design, or intentional and substantial disregard of the employer's interests or of the employees duties and obligations. Tuma v. Omaha Public Power District, 226 Neb. 19, 409 N.W.2d 306 (1979). See also: McCorison v. City of Lincoln, 215 Neb. 479, 339 N.W.2d 294 (1983), Stuart v. Omaha Packers, 213 Neb. 838, 331 NW 2d 544 (1983), Smith v. Sorenson, 222 Neb. 599, 386 N.W.2d 5 (1986), NEBCO Inc. v. Murphy, 280 Neb. 145, 784 N.W.2d 447 (2010), Meyers v. Nebraska State Penitentiary, 280 Neb. 958, 791 N.W.2d 607 (2010).

Where to apply for Nebraska Unemployment Benefits

Nebraska employees can apply for Unemployment Benefits online at https://uibenefits.nwd.ne.gov/BPSWeb/jsp/BPSClaimantLogin.jsp.  You will need to register as a new customer.  If you were fired for a reason that may be misconduct you may want to consider hiring an attorney.  You can find the State of Nebraska's guide to unemployment benefit claims and eligibility here .