1. What legal protection does Nebraska provide employees in regard to whistleblowing and retaliation?
The general rule is that most employees may be fired at any time for any reason or for no reason at all under what is known as the at-will employment doctrine. However, in the past half-century, many exceptions to the general rule have emerged. Exceptions to this general rule can come from two sources: (1) courts, which modify and make “common law protections” or (2) the legislature, which enacts “statutory protections.” Statutory protections tend to be specific, addressing certain subject areas (such as discrimination, workers’ compensation, etc.). Yet, legislators often lack the foresight to address every possible situation of retaliation. Common law protections, on the other hand, tend to “fill the gaps” where no statute exists for a given situation.
Common Law Protections
Nebraska recognizes a limited public policy exception to the at-will employment doctrine. An employer may not discharge an employee for a reason that violates a clear mandate of public policy. An employee has a cause of action in other words, the employee may sue for abusive discharge when the motivation for the discharge violates public policy.
To determine what constitutes public policy, Nebraska courts will look to statutes and constitutional provisions to determine if a given practice has been endorsed (e.g. the right to collect workers’ compensation benefits) or prohibited (e.g. criminal laws prohibiting perjury). So, for example, because a Nebraska statute endorses an employee’s right to collect workers’ compensation benefits, an employer who retaliates against an employee for invoking that right would be contravening public policy. On the other side of the same coin, because criminal statutes prohibit perjury, an employer who coerces an employee to commit perjury by threats of reprisal is also contravening Nebraska’s public policy. In both situations, employees are protected from retaliatory discharge.
In addition, the Nebraska Legislature has adopted specific statutory protections for certain activities. Employees who engage in protected activities (usually filing a complaint or testifying) under laws in the following subject areas are protected from retaliation: discrimination (including age and sex discrimination) and occupational health and safety. State employees are also protected under the State Government Effectiveness Act.
In addition to the above state protections, federal law provides workers with additional protections. Furthermore, a private contract or collective bargaining agreement may also protect employees from certain forms of retaliation.
2. What activities does state law protect, and to whom does this protection apply?
Common Law Protections
Nebraska courts protect employees when their employers’ motivation for the discharge violates a clear mandate of public policy. Specifically, Nebraska courts protect the following activities because a discharge to retaliate against these activities would contravene public policy:
- Reporting of suspected violations of the criminal code: However, an employee is only protected for this activity when the employee acts in good faith and when the employee has reasonable cause to believe that the employer is breaking the law.
- Refusing to violate criminal law; and
- Filing a workers’ compensation claim
Clean Indoor Air Act: An employee may not be retaliated against for reporting a violation of the Clean Indoor Air Act. Neb. Rev. Stat. 71-5732.
Discrimination, Generally – Fair Employment Practices Act: The Fair Employment Practices Act (FEPA) prohibits discrimination in employment on the basis of race, color, religion, sex, disability, marital status, or national origin. An employee may not be discriminated against in retaliation for the following activities
- Opposing a discriminatory employment practice under FEPA
- Making a charge, testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing under FEPA
- Opposing any practice or refusing to carry out any action unlawful under any federal law or Nebraska law
FEPA only applies to employers with fifteen or more permanent employees or, if the employer has fewer than fifteen employees, employers who receive funding from the state of Nebraska under the Investment Finance Authority Act.
Note: Whereas the first two types of protected activities are limited to FEPA violations, the third type of protected activity covers all federal and state laws. Neb. Rev. Stat. 48-1114.
Discrimination – Age: An employee may not be discharged (or discriminated against) in retaliation for opposing an unlawful age discrimination employment practice. Nor may an employee be retaliated against for filing a lawsuit, testifying, participating, or assisting in any proceeding to enforce the state’s laws prohibiting age discrimination. Neb. Rev. Stat. 48-1004(3).
Discrimination – Sex: An employee may not be discharged (or discriminated against) in retaliation for invoking or assisting in proceedings concerning sex discrimination in employment. Neb. Rev. Stat. 48-1221(4).
Occupational Health and Safety: An employee may not be discharged (or discriminated against) in retaliation for making an oral or written complaint to the employer’s safety committee or a government agency responsible for occupational safety and health. All public and private employers subject to the Workers’ Compensation Act are required to have a safety committee. Neb. Rev. Stat. 48-443.
Public Employees: An employee may not be retaliated against for reporting wrongdoing to Public Counsel or for participating or testifying in a public investigation. Neb. Rev. Stat. 81-2705.
3. How do I file a claim whistleblower or retaliation claim in Nebraska?
Generally: An employee may file a lawsuit of abusive discharge in an appropriate court. The lawsuit must be filed within 4 years of the retaliatory action, unless otherwise specified by statute. If you believe you have a claim, you should contact a lawyer. Neb. Rev. Stat. 25-207.
Discrimination, Generally (Fair Employment Practices Act): An employee may file a complaint with the Nebraska Equal Opportunity Commission (NEOC). Alternatively, an employee may file a private lawsuit in an appropriate court (in a district court in the county where the retaliation occurred). Either way, there is a shortened time period to file claims arising under FEPA: the complaint must be filed within 300 days of the retaliatory action. If you choose to file a lawsuit, you should contact a lawyer immediately. Neb. Rev. Stat. 48-1118, 48-1119.
NEOC operates three offices in Nebraska: a main office in Lincoln, an office in Omaha, and an office in Scottsbluff. You may contact the Lincoln office at the following:
Nebraska Equal Opportunity Commission
P.O. Box 94934
Lincoln, NE 68509-4934
Phone: (402) 471-2024
Fax: (402) 471-4059
NEOC’s web site provides additional contact information, a FAQ section, and a description of the complaint process.
Discrimination – Age: An employee may file a complaint with the Nebraska Equal Opportunity Commission (NEOC). The complaint must be filed within 4 years of the retaliatory action. NEOC will investigate and may initiate a lawsuit on your behalf. If the commission does not initiate a lawsuit within 30 days of receiving your complaint, you may file a lawsuit in an appropriate court. NEOC contact information is listed above. Neb. Rev. Stat. 48-1008.
Discrimination – Sex: An employee may file a complaint with the Nebraska Equal Opportunity (NEOC). Alternatively, the employee may file a complaint in an appropriate court. Either way, the complaint must be filed within 4 years of the retaliatory action. If you choose to file a lawsuit, you should contact a lawyer. NEOC contact information is listed above. Neb. Rev. Stat. 48-1223.
Occupational Health and Safety: An employee may file a lawsuit in an appropriate court. The lawsuit must be filed within 4 years of the retaliatory action. An employee may be awarded reinstatement and receive reimbursement for lost wages and work benefits caused by the employer’s action. If you believe you have a claim, you should contact a lawyer.