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BADAWI v. ALBIN

Cite as 311 Neb. 603

Saied Badawi, appellant, v. John Albin, 

commissioner of the Nebraska 

Department of Labor 

et al., appellees.

___ N.W.2d ___

Filed May 20, 2022. No. S-21-650.

1. Employment Security: Judgments: Appeal and Error. In an appeal 

from the appeal tribunal to the district court regarding unemployment 

benefits, the district court conducts the review de novo on the record, 

but on review by the Nebraska Court of Appeals or the Nebraska 

Supreme Court, the judgment of the district court may be reversed, 

vacated, or modified for errors appearing on the record. When reviewing 

a judgment for errors appearing on the record, the inquiry is whether the 

decision conforms to law, is supported by competent evidence, and is 

neither arbitrary, capricious, nor unreasonable.

2. Judgments: Appeal and Error. Whether a decision conforms to law 

is by definition a question of law, in connection with which an appellate court reaches a conclusion independent of that reached by the 

lower court.

3. ____: ____. An appellate court, in reviewing a district court judgment 

for errors appearing on the record, will not substitute its factual findings for those of the district court where competent evidence supports 

those findings.

4. Employment Security: Proof. In a disputed claim for unemployment 

benefits, the employer bears the burden of proving an individual is disqualified from receiving benefits because he or she was discharged for 

misconduct under Neb. Rev. Stat. § 48-628.10 (Reissue 2021).

5. Employment Security. Under Neb. Rev. Stat. § 48-628.10 (Reissue 

2021), an employee may be partially or totally disqualified from receiving benefits if he or she is found to have been discharged for misconduct 

connected with his or her work.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

07/28/2022 07:07 AM CDT
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6. Employment Security: Words and Phrases. “Misconduct,” for purposes of Neb. Rev. Stat. § 48-628.10 (Reissue 2021), includes 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 employee’s duties and obligations.

Appeal from the District Court for Douglas County: Timothy 

P. Burns, Judge. Reversed and remanded with directions.

Zachary W. Anderson, of Legal Aid of Nebraska, for 

appellant.

Elizabeth Cano and Katie Thurber, of Nebraska Department 

of Labor, for appellee John Albin.

Ruth A. Horvatich, of McGrath, North, Mullin & Kratz, 

P.C., L.L.O., for appellee JBS Swift Beef.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Stacy, J.

This is an appeal under the Administrative Procedure 

Act (APA). 1 Saied Badawi applied for unemployment benefits after his employment at JBS Swift Beef (JBS) ended. 

Nebraska’s Department of Labor determined Badawi was disqualified from receiving benefits for 14 weeks because he was 

discharged for misconduct. 2 The district court for Douglas 

County affirmed, and Badawi appeals. We reverse, and remand 

with directions.

1 See Neb. Rev. Stat. §§ 84-901 to 84-920 and 84-933 to 84-948 (Reissue 

2014 & Cum. Supp. 2020).

2 See Neb. Rev. Stat. § 48-628.10 (Reissue 2021).
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I. BACKGROUND

Badawi worked for JBS from January 7, 2019, to May 19, 

2020. After the employment ended, he sought unemployment 

insurance benefits from the Department of Labor. On July 23, 

the Department of Labor issued a “Disqualifying Separation 

Determination” which found that Badawi left work voluntarily 

without good cause and thus was disqualified from receiving 

unemployment benefits until he met certain statutory requalification requirements. 3

1. Nebraska Appeal Tribunal

Badawi appealed the determination to the Nebraska Appeal 

Tribunal, arguing that he did not voluntarily leave his employment. A telephonic hearing occurred on March 15, 2021. 

Pursuant to a notice issued by the tribunal, the issues to be 

addressed in the appeal were (1) whether Badawi voluntarily 

left his employment without good cause and (2) whether he 

was discharged for misconduct connected with his work.

JBS did not appear for the hearing, but Badawi appeared 

with counsel. The hearing officer took “official notice” of the 

relevant Nebraska statutes and regulations, but no exhibits 

were offered. Badawi was the only witness, and he testified 

through an Arabic interpreter. As will be apparent from our 

quotations of Badawi’s testimony below, a fairly significant 

portion of his hearing testimony was deemed “indiscernible” 

by the official court reporter who prepared and certified the 

bill of exceptions.

The bill of exceptions for the hearing is only 27 pages long, 

but contains 92 instances where the testimony was “indiscernible.” It is unclear whether the indiscernible portions were 

due to a poor telephone connection, equipment failure, poor 

articulation by the hearing participants, or some combination thereof. The frequency of “indiscernibles” during critical 

portions of Badawi’s testimony not only frustrates appellate 

3 See Neb. Rev. Stat. § 48-628.12 (Reissue 2021).
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review, but it also impacts the competency and sufficiency of 

the evidence. And although no party challenges the sufficiency 

of the official record prepared by the agency in this case, we 

remind district courts that if the interests of justice would be 

served by resolution of any issue not raised before the agency, 

the APA authorizes the court to remand the cause to the 

agency for further proceedings. 4 The “indiscernibles” in this 

record may not have been so pervasive that they necessitated 

a remand to address the deficiencies, but it would be difficult 

to find an abuse of discretion if the district court had chosen 

to do so.

(a) Evidence of Badawi’s Job Duties at JBS

Badawi testified that when he first started at JBS, his 

job was to “euthanize (indiscernible) meat.” Approximately 2 

months later, he moved to a job which involved using a knife 

where he “just (indiscernible) slice the skin from the top to the 

bottom of the cow, in the middle.” Apparently, he was then 

moved to a different job, because he testified, “That’s what 

I used to do. And then, my position was changed, but I don’t 

know the name (indiscernible).” He also testified, “I described 

to you what I was doing (indiscernible), but I (indiscernible) 

cutting in the middle and then, the second was (indiscernible) 

knife. I used [a] knife in all positions.”

(b) Evidence of Request to Perform 

Additional Job Duties

Sometime in May 2020, JBS asked Badawi to perform both 

his job duties and the job duties of another employee who was 

out sick with COVID-19. Badawi refused to perform both jobs. 

Badawi admitted that JBS had an employment policy related 

to transferring job assignments, and he testified that under 

that policy:

I can be transferred any time from one position to another. 

What I signed is that, if there is — for any reason that 

4 See § 84-917(5)(b)(i).
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they — a position is (indiscernible) because they lost one 

employee and they are waiting to fill that position, I can 

be asked to go and help out temporary — to go and help 

out until that position is filled, but I will return to my permanent position. But this was not the case. It was like I’m 

asked to do two jobs, to work in this position and to go 

and work in other position. If I was informed that it was 

just something temporary, that I would have done.

Regarding the additional job duties Badawi was asked to perform, he testified:

The other person — I mean, the position that was second 

— that individual was doing that job, but (indiscernible) 

coronavirus positive, so that’s why I was asked to go and 

fill that position (indiscernible). I couldn’t do two jobs at 

the same time, so (indiscernible). It’s a hard job. It’s not 

something that I can combine with something else.

Badawi also testified: “But I did offer . . . instead of giving me 

two positions to do, [that] I just do one position. And, even if 

I take a [pay] cut . . . I was willing to do that, instead of doing 

two jobs at the same time.”

Badawi’s explanation for why he did not think he could perform both jobs at the same time was that he

watched [a training] video, and also I was shown the job 

by two people that were working that — to say (indiscernible) position here, using their knife. The person in 

front has a different position. The person behind me has a 

different position and is not supposed to do the job of the 

person in front of you. (Indiscernible) to do the job of the 

person behind you.

Badawi testified that he met with his manager and said “this is 

a two-job — a two-employee job that they were asking me to 

do. It’s too much for me.” He also testified that it was “impossible” for him to do “a job for two people.” Badawi testified 

that after he was discharged by JBS, he contacted former colleagues and learned that the “two jobs that I was offered was 

filled with two employees.”
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Badawi testified that each time he refused to perform both 

jobs, JBS sent him home for a week. When he returned after the 

second suspension, security advised him he was not allowed to 

enter the premises. He testified he was making $18.55 per hour 

at the end of his employment and he consistently worked 38 to 

40 hours per week.

(c) Decision of Appeal Tribunal

The appeal tribunal issued its decision on March 30, 2021. 

It found that Badawi did not voluntarily leave his employment without good cause and thus was not disqualified from 

receiving unemployment benefits on that basis. But it found 

he was disqualified from receiving unemployment benefits 

because he was discharged for misconduct. The tribunal found 

that Badawi committed misconduct because he “refused to 

work two positions,” and it found that Badawi was “aware 

that he could be asked to fill in for another position according to the [JBS] policy.” The tribunal also found that Badawi 

had not shown that working the two positions would amount 

to a material change in his hours or wages, “and could only 

describe the additional duties as ‘hard.’” Based on these findings, the tribunal imposed a 14-week benefit disqualification 

upon Badawi. 5

2. APA Appeal

Badawi challenged the tribunal’s decision in an APA appeal 

in the district court for Douglas County. That court conducted a de novo review of the record and affirmed the tribunal’s decision. The district court found that Badawi was 

“asked to do additional work of another employee because 

the employee was not at work after having contracted coronavirus” and that Badawi declined because “he thought he could 

not perform his work and the additional work of the sick 

employee.” On those facts, the court determined “Badawi 

5 See § 48-628.10.
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refused to perform work that was assigned to him by his 

employer.” The court found “unpersuasive” Badawi’s argument that “he was asked to perform two jobs that would be 

impossible to do.”

Badawi filed this timely appeal, which we moved to our 

docket on our own motion.

II. ASSIGNMENT OF ERROR

Badawi assigns, restated, that the district court erred in 

affirming the tribunal’s finding that he was discharged for 

misconduct.

III. STANDARD OF REVIEW

[1] In an appeal from the appeal tribunal to the district 

court regarding unemployment benefits, the district court conducts the review de novo on the record, but on review by 

the Nebraska Court of Appeals or the Nebraska Supreme 

Court, the judgment of the district court may be reversed, 

vacated, or modified for errors appearing on the record. When 

reviewing a judgment for errors appearing on the record, the 

inquiry is whether the decision conforms to law, is supported 

by competent evidence, and is neither arbitrary, capricious, 

nor unreasonable. 6

[2] Whether a decision conforms to law is by definition 

a question of law, in connection with which an appellate 

court reaches a conclusion independent of that reached by the 

lower court. 7

[3] An appellate court, in reviewing a district court judgment for errors appearing on the record, will not substitute its 

factual findings for those of the district court where competent 

evidence supports those findings. 8

6 Lang v. Howard County, 287 Neb. 66, 840 N.W.2d 876 (2013).

7 Moore v. Nebraska Acct. & Disclosure Comm., 310 Neb. 302, 965 N.W.2d 

564 (2021).

8 Id.
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IV. ANALYSIS

In Nebraska, unemployment benefits are governed by the 

Employment Security Law. 9 A variety of conditions can disqualify an otherwise eligible individual from receiving unemployment benefits. 10 As relevant here, § 48-628.10 provides 

that individuals are disqualified from receiving benefits “for 

the week in which [they have] been discharged for misconduct 

connected with [the] work, if so found by the [C]ommissioner 

[of Labor], and for the fourteen weeks immediately thereafter.” 

A different disqualification condition was also addressed by 

the appeal tribunal, but found to be inapplicable. 11 As such, 

the sole disqualification issue presented to the district court 

was whether Badawi was discharged for misconduct under 

§ 48-628.10.

Badawi argues the district court erred in finding that he 

was discharged for misconduct. First, he argues that because 

JBS failed to appear for the hearing before the tribunal, it presented no evidence and could not possibly have met its burden 

of proving misconduct. Alternatively, he argues the evidence 

is insufficient to show that his refusal to perform two jobs 

amounted to misconduct. We consider each argument in turn, 

but first, we clarify which party bears the burden of proving 

misconduct in a disputed claim for unemployment benefits.

1. Burden of Proof

We have not yet directly addressed which party bears 

the burden of proving that an employee was discharged for 

misconduct. In two cases, however, we implied the burden rests with the employer. In NEBCO, Inc. v. Murphy,

 12

9 See Neb. Rev. Stat. §§ 48-601 to 48-683 (Reissue 2021).

10 See §§ 48-628 through 48-628.12.

11 See § 48-628.12 (individuals are disqualified from receiving benefits 

“[f]or the week in which [they] left work voluntarily without good cause, 

if so found by the [C]ommissioner [of Labor] and for the thirteen weeks 

immediately thereafter”).

12 NEBCO, Inc. v. Murphy, 280 Neb. 145, 152, 784 N.W.2d 447, 453 (2010).
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a heading in the opinion stated the district court “Did Not 

Err by Concluding [the Employer] Failed to Show [the 

Employee] Employment Was Terminated for ‘Misconduct.’” 

And in Great Plains Container Co. v. Hiatt,

 13 we rejected the 

employer’s argument that the district court erred “in requiring the company to establish ‘gross’ misconduct where only 

ordinary misconduct” was alleged.

The Nebraska Appeal Tribunal Precedent Manual, adopted by 

the Department of Labor pursuant to duly adopted regulations, 14

cites our Great Plains Container Co. decision as authority for 

the proposition that the employer bears the burden to establish 

that the claimant was discharged for misconduct in connection 

with the work. 15 And in its resolution of the instant cause, the 

appeal tribunal expressly stated that JBS had the burden to 

prove Badawi was discharged for misconduct.

[4] In their appellate briefing, Badawi and JBS, as well as 

the Department of Labor and the Commissioner of Labor (collectively the Department), all agree that JBS had the burden 

to prove Badawi was discharged for misconduct. We likewise 

agree, and we now expressly hold what our prior cases have 

implied: In a disputed claim for unemployment benefits, the 

employer bears the burden of proving an individual is disqualified from receiving benefits because he or she was discharged 

for misconduct under § 48-628.10.

2. JBS Not Required to Appear or 

Present Evidence to Tribunal

On appeal, Badawi argues that JBS necessarily failed to 

meet its burden to show he was discharged for misconduct because it did not appear and present evidence at the 

13 Great Plains Container Co. v. Hiatt, 225 Neb. 558, 559, 407 N.W.2d 166, 

168 (1987).

14 See 224 Neb. Admin. Code, ch. 1, § 019 (2014).

15 Nebraska Appeal Tribunal Precedent Manual, ch. 2, § (00)15, http://www.

dol.nebraska.gov/Appeals/PrecedentManualChapter/2), citing district court 

cases (last visited May 14, 2022).
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hearing before the appeal tribunal. In making this argument, 

Badawi likens the situation to one in which “a prosecutor 

[does] not appear at trial.” 16 But the procedure followed in 

hearings before the appeal tribunal is markedly different from 

that followed in a criminal case, or even a civil case, in a 

judicial forum. To address Badawi’s challenges to the procedure followed by the tribunal, we turn first to the governing regulations.

According to the Employment Security Law:

The presentation of disputed [unemployment] claims and 

the conduct of hearings and appeals shall be in accordance with the rules and regulations adopted and promulgated by the [C]ommissioner [of Labor] for determining 

the rights of the parties, whether or not such rules and 

regulations conform to common-law or statutory rules of 

evidence and other technical rules of procedure. 17

Pursuant to this statutory mandate, the Department of Labor 

has adopted and duly filed regulations with the Secretary 

of State which are published in title 224 of the Nebraska 

Administrative Code.

The procedure governing appeals from disputed unemployment benefit claims is addressed in title 224. 18 It is designed 

to be informal: “[b]ecause the overwhelming number of these 

hearings involve unrepresented, unemployed parties who cannot afford legal counsel, these rules do not incorporate the 

more formalized rules of procedure for [other] administrative hearings . . . .” 19

Instead, another section of title 224 provides that hearings 

on disputed unemployment benefit claims are to be held before 

an appeal tribunal consisting of a single hearing officer. 20

16 Brief for appellant at 12.

17 § 48-635.

18 See 224 Neb. Admin Code, ch. 1, § 001.

19 Id.

20 Id., § 002.
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All such hearings are to be conducted by telephone conference 

call unless the tribunal, in its discretion, decides to conduct 

the hearing in person. 21 The regulations also govern the order 

of presenting evidence and the consequences of failing to 

appear at the hearing:

The appealing party shall present its evidence first as 

to why it believes the determination appealed from was 

incorrect and provide any legal authority for the relief 

requested by the appealing party. If an appealing party 

fails to appear for the scheduled hearing . . . the Appeal 

Tribunal may dismiss the appeal for want of prosecution. If any of the responding parties fails to appear, the 

Appeal Tribunal will proceed with the hearing and render 

a decision based on evidence received from the appealing party. 22

The role of the hearing officer is also governed by regulation: “The hearing officer shall function as an impartial fact 

finder and must attempt to obtain the reasonably available, 

competent evidence necessary to resolve the issues of the case, 

but shall not act as an advocate for any party.” 23 In reaching an 

“independent conclusion regarding the facts of any case,” the 

hearing officer must follow “Nebraska Statutes, the decisions 

of Courts of superior jurisdictions, previous Appeal Tribunal 

decisions, unless specifically overruled, as well as applicable 

Department rules and regulations and Unemployment Insurance 

Programs Letters published by the United States Department of 

Labor in the Federal Register . . . .” 24 Decisions designated as 

“precedential decisions by the Commissioner of Labor . . . may 

be published in a case digest or precedent manual.” 25

21 Id., § 012.

22 Id., § 014.

23 Id., § 015H.

24 Id., § 016.

25 Id., § 019C.
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This overview of the pertinent regulations demonstrates that 

Badawi’s procedural complaints are unfounded. Because JBS 

was the respondent rather than the appealing party, it was not 

required to appear or present evidence at the hearing before the 

appeal tribunal. 26 Instead, when a respondent fails to appear 

for a scheduled hearing, the regulations require the tribunal to 

“proceed with the hearing and render a decision based on evidence received from the appealing party.” 27

As such, even though JBS had the burden to prove that 

Badawi was discharged for misconduct, Badawi is simply 

incorrect when he argues that in hearings before the tribunal 

“parties must present their own evidence to meet their burden 

of proof.” 28 Instead, the hearing officer was not only permitted to render a decision based on the evidence adduced by 

Badawi, but also had an obligation to “attempt to obtain the 

reasonably available, competent evidence necessary to resolve 

the issues” without acting as an advocate for either party. 29 The 

hearing officer did so by questioning Badawi under oath, after 

which Badawi’s counsel conducted a direct examination. The 

record shows that the hearing officer followed the regulatory 

procedure, and Badawi’s arguments to the contrary are without merit.

3. Evidence Insufficient to Show 

Discharge for Misconduct

Next, we consider Badawi’s argument that the evidence 

adduced was insufficient to support the district court’s determination that he was discharged for misconduct. Before addressing the sufficiency of the evidence, we review the legal standard for misconduct.

26 Id., § 014.

27 Id.

28 Brief for appellant at 12.

29 224 Neb. Admin. Code, ch. 1, § 015H.
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[5] Under § 48-628.10, an employee may be partially or 

totally disqualified from receiving benefits if he or she is 

found to have been discharged for misconduct connected 

with his or her work. 30 A partial disqualification is effective 

for the week of the discharge “and for the fourteen weeks 

immediately thereafter.” 31 But an individual may be totally 

disqualified if the “misconduct was gross, flagrant, and willful, or was unlawful.” 32 We have described this statutory 

scheme as imposing partial disqualification when discharge 

was for “general misconduct,” and imposing total disqualification when discharge was for “gross misconduct.” 33 Here, both 

the district court and the appeal tribunal found that Badawi 

was partially disqualified, so we confine our analysis to general misconduct.

[6] “Misconduct” is not defined in § 48-628.10, but our 

cases have long defined it 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 employee’s duties 

and obligations. 34

In this case, the district court performed a de novo review 

of the record and found that “Badawi was discharged from 

his employment for misconduct and ineligible to receive 

30 See NEBCO, Inc., supra note 12; Douglas Cty. Sch. Dist. 001 v. Dutcher, 

254 Neb. 317, 576 N.W.2d 469 (1998).

31 § 48-628.10(1).

32 § 48-628.10(3).

33 See Douglas Cty. Sch. Dist. 001, supra note 30, 254 Neb. at 322, 576 

N.W.2d at 472.

34 E.g., Meyers v. Nebraska State Penitentiary, 280 Neb. 958, 791 N.W.2d 

607 (2010); Douglas Cty. Sch. Dist. 001, supra note 30; Great Plains 

Container Co., supra note 13.
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unemployment benefits [because he] refused to perform work 

that was assigned to him by his employer . . . .” Additionally, 

the court found that Badawi “thought he could not perform his 

work and the additional work of the sick employee” but the 

court rejected as “unpersuasive” Badawi’s argument that “he 

was asked to perform two jobs that would be impossible to 

do.” Our standard of review for errors appearing on the record 

requires us to consider whether the district court’s decision 

conforms to the law, is supported by competent evidence, and 

is neither arbitrary, capricious, nor unreasonable. 35

On appeal, all parties agree that Badawi was discharged 

because he refused to perform additional work assigned to 

him. They also generally agree that JBS had a written rule or 

policy regarding accepting temporary work reassignments and 

that Badawi was aware of such policy. To the extent the parties argue that Badawi committed misconduct by violating that 

policy, those arguments are not supported by competent evidence and must be rejected. The policy itself was not offered 

into evidence at the hearing before the tribunal. We therefore 

revisit Badawi’s testimony regarding the policy, as it is the 

only competent evidence in our record on that issue:

I can be transferred any time from one position to another. 

What I signed is that, if there is — for any reason that 

they — a position is (indiscernible) because they lost one 

employee and they are waiting to fill that position, I can 

be asked to go and help out temporary — to go and help 

out until that position is filled, but I will return to my permanent position. But this was not the case. It was like I’m 

asked to do two jobs, to work in this position and to go 

and work in other position. If I was informed that it was 

just something temporary, that I would have done.

In its appellate briefing, JBS describes the policy as “requiring employees to temporarily fill in for other employees if 

35 See Lang, supra note 6.
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there is an employee absent for any reason.” 36 And JBS contends Badawi was discharged for “insubordination” 37 because 

he “repeatedly refused to perform the work assigned to him” 

pursuant to this policy. 38 But in making this argument, JBS 

focuses only on the work assignment Badawi declined and 

ignores Badawi’s uncontroverted testimony that he was asked 

to perform both the job duties of the absent employee and his 

existing job duties. Although the record supports the conclusion JBS’ policy requires an employee to accept a temporary 

transfer from one position to another, we see no evidence to 

support JBS’ contention that its policy requires an employee to 

perform the work of two employees at the same time. There is 

thus no competent evidence in the record that Badawi violated 

such a policy.

But JBS and the Department also generally argue that 

Badawi was discharged for misconduct because he refused an 

order to perform work assigned to him. As the Department 

frames it, “[w]hen asked to complete the tasks of both 

positions,” 39 Badawi refused and was therefore discharged. 

Although JBS generally argues that evidence an employee 

refused to perform a task ordered by the employer is sufficient to show misconduct, the Department asks us to adopt 

a rule that “an employee who is discharged for refusing an 

employer’s order to complete a task is discharged for misconduct under § 48-628.10 only if the order refused was legitimate and reasonable.” 40

Our jurisprudence generally supports the rule urged 

by the Department. We have never held that an employer 

36 Brief for appellee JBS at 4.

37 Id. at 16.

38 Id. at 8.

39 Brief for appellee Department at 7.

40 Id. at 25 (emphasis in original).
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meets its burden of proving misconduct simply by showing 

that an employee was discharged for violating a rule, policy, 

or order. Rather, our cases have generally required a showing that the rule, policy, or order at issue was reasonably 

designed to protect the employer’s business relationship. 41 For 

instance, we have held an employer’s policy of no drugs in the 

workplace is reasonably related to its interests in providing a 

safe workplace, and a violation of such rule is misconduct. 42

We have also held a policy requiring the employee to notify 

the employer of absences greater than 3 days is reasonably 

related to the employer’s interests, and a violation of such 

is misconduct. 43

But we have also held that a policy prohibiting the employee 

from exposing the employer to excessive garnishments is 

not reasonably related to the employer’s business interests 

because it does not relate to the performance of the employee’s 

work, and a violation of such a rule is not disqualifying 

misconduct. 44 And we have held that a rule that prohibited 

employees from associating with former employees was not 

reasonably related to the company’s interests such that its violation amounted to misconduct for purposes of § 48-628.10. 45

We also observe that prior decisions of the appeal tribunal 

designated by the Department of Labor as precedential 46

have applied the rule that violation of an order to perform 

41 See, Douglas Cty. Sch. Dist. 001, supra note 30; Dolan v. Svitak, 247 Neb. 

410, 527 N.W.2d 621 (1995); Great Plains Container Co., supra note 13; 

Stuart v. Omaha Porkers, 213 Neb. 838, 331 N.W.2d 544 (1983); Snyder 

Industries, Inc. v. Otto, 212 Neb. 40, 321 N.W.2d 77 (1982).

42 See Douglas Cty. Sch. Dist. 001, supra note 30; Dolan, supra note 41.

43 See Stuart, supra note 41.

44 See Great Plains Container Co., supra note 13.

45 See Snyder Industries, Inc., supra note 41.

46 Nebraska Appeal Tribunal decisions, http://dol.nebraska.gov/Appeals/

AppealsCases (last visited May 14, 2022).
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work is misconduct only if the order was reasonable under all 

the circumstances. 47

Based on this precedent, the Department argues the district 

court “applied the wrong legal standard” 48 here because it did 

not consider, in its de novo review, the reasonableness of JBS’ 

order directing Badawi to perform both his existing job duties 

and the job duties of the absent employee. The Department 

argues that its “interest in this matter is in ensuring that the 

correct legal standard is applied and that Badawi is disqualified under § 48-628.10 only if a fact finder concludes that 

the order he refused to comply with was reasonable under the 

circumstances.” 49 It therefore asks that we remand the matter to 

the district court with directions to conduct a de novo review 

using “the appropriate legal standard.” 50

Although we generally agree with the Department that to 

prove an employee committed misconduct by violating a rule, 

policy, or order, the employer must show such was reasonably designed to protect the employer’s business relationship, 51

we think that remanding the cause to consider reasonableness would be futile on this record. Especially given all 

the “indiscernibles” which appear during Badawi’s testimony, 

there is no competent evidence in this record regarding the 

47 See 224 Neb. Admin. Code ch. 1, § 019. See, also, In re Marshall, 12 

Neb. App. Trib. 5030 (2012) (finding employer’s job assignment was 

reasonable under circumstances because employee could perform it within 

time and work restrictions; In re Svoboda, 04 Neb. App. Trib. (2004)

(finding job assignment reasonable under circumstances because employee 

knew requirements and had performed them on previous occasions); In 

re Broomfield, 91 Neb. App. Trib. 0707 (1991) (finding job assignment 

reasonable under circumstances because within job description).

48 Brief for appellee Department at 27.

49 Id. at 29 (emphasis in original).

50 Id.

51 See, Douglas Cty. Sch. Dist. 001, supra note 30; Dolan, supra note 41; 

Great Plains Container Co., supra note 13; Stuart, supra note 41; Snyder 

Industries, Inc., supra note 41.
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Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

BADAWI v. ALBIN

Cite as 311 Neb. 603

specific requirements of either of the two jobs Badawi was 

asked to perform.

At best, this record shows only that because of the COVID-19 

pandemic, fewer employees were available to work at JBS. 

JBS thus ordered Badawi to perform both the job he was 

currently performing and a job that had been performed by 

another employee. Badawi refused the order to perform both 

jobs because he thought he was not physically capable of doing 

so. And the record shows that both before and after Badawi’s 

discharge, the two jobs were performed by two individuals 

rather than one.

Badawi testified that both jobs involved the use of knives, 

and we can reasonably infer from that testimony that both jobs 

involved cutting meat. But neither Badawi’s regular job duties 

nor the duties of the additional job he was asked to perform 

can be discerned from this record. And without competent evidence of what each job entailed, it is impossible to find it was 

reasonable for JBS to ask Badawi to perform both jobs.

On this record, there is no competent evidence to support the 

district court’s finding that Badawi committed misconduct by 

refusing to perform both jobs. JBS therefore failed to meet its 

burden to prove Badawi was discharged for misconduct, and 

we must reverse.

V. CONCLUSION

For the foregoing reasons, we reverse the judgment of the 

district court and remand the cause with directions to remand 

the cause to the appeal tribunal with directions to enter an 

award consistent with this opinion.

Reversed and remanded with directions.