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the Counsel for Discipline, demonstrating that respondent is 

adhering to the foregoing terms of probation. The quarterly 

report shall include a certification by the monitor that the 

monitor has reviewed the report and that respondent continues 

to abide by the terms of the probation.

CONCLUSION

We find that respondent should be and hereby is suspended 

from the practice of law for a period of 3 years. Should 

respondent apply for reinstatement, his reinstatement shall be 

conditioned upon respondent’s being on probation for a period 

of 2 years, including monitoring following reinstatement, subject to the terms of probation outlined above. Respondent is 

also directed to pay costs and expenses in accordance with 

Neb. Rev. Stat. §§ 7-114 and 7-115 (Reissue 2012) and Neb. 

Ct. R. §§ 3-310(P) (rev. 2014) and 3-323 within 60 days after 

an order imposing costs and expenses, if any, is entered by 

this court.

Judgment of suspens

William D. Coffey, appellant,

Planet Group, Inc., appe

___ N.W.2d ___

Filed April 4, 2014. No. S-13-194.

1. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an 

appellate court views the evidence in the light most favorable to the party against 

whom the judgment was granted and gives that party the benefit of all reasonable 

inferences deducible from the evidence.

2. ____: ____. An appellate court will affirm a lower court’s grant of summary 

judgment if the pleadings and admitted evidence show that there is no genuine 

issue as to any material facts or as to the ultimate inferences that may be drawn 

from the facts and that the moving party is entitled to judgment as a matter 

of law.

3. Statutes: Judgments: Appeal and Error. The interpretation of statutes and 

regulations presents questions of law. An appellate court independently reviews 

questions of law decided by a lower court.

4. Statutes: Appeal and Error. Absent a statutory indication to the contrary, an 

appellate court gives words in a statute their ordinary meaning.
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5. Statutes: Legislature: Intent: Appeal and Error. An appellate court will not 

look beyond a statute to determine the legislative intent when the words are plain, 

direct, or unambiguous.

6. Contracts: Wages. Neb. Rev. Stat. § 48-1229(4) (Reissue 2010) allows an 

employer and employee to contractually agree to define when a commission 

becomes earned as a wage.

7. Contracts. When the terms of a contract are clear, a court may not resort to rules 

of construction, and the terms are to be accorded their plain and ordinary meaning as an ordinary or reasonable person would understand them.

8. Contracts: Parties. The implied covenant of good faith and fair dealing 

exists in every contract and requires that none of the parties to the contract do 

anything which will injure the right of another party to receive the benefit of 

the contract.

9. ____: ____. The nature and extent of an implied covenant of good faith and fair 

dealing are measured in a particular contract by the justifiable expectations of 

the parties. Where one party acts arbitrarily, capriciously, or unreasonably, that 

conduct exceeds the justifiable expectations of the second party.

10. ____: ____. A violation of the covenant of good faith and fair dealing occurs 

only when a party violates, nullifies, or significantly impairs any benefit of 

the contract.

11. Contracts. The scope of conduct prohibited by the covenant of good faith is 

circumscribed by the purposes and express terms of the contract.

12. Termination of Employment. Unless constitutionally, statutorily, or contractually prohibited, an employer, without incurring liability, may terminate an at-will 

employee at any time with or without reason.

13. Termination of Employment: Public Policy: Damages. Under the public policy 

exception to the at-will employment doctrine, an employee can claim damages 

for wrongful discharge when the motivation for the firing contravenes public policy.

14. Termination of Employment: Public Policy. The public policy exception to 

the at-will employment doctrine is restricted to cases when a clear mandate of 

public policy has been violated, and it should be limited to manageable and 

clear standards.

15. ____: ____. In determining whether a clear mandate of public policy is violated, 

courts should inquire whether the employer’s conduct contravenes the letter or 

purpose of a constitutional, statutory, or regulatory provision or scheme.

16. Termination of Employment: Wages: Public Policy. The Nebraska Wage 

Payment and Collection Act, Neb. Rev. Stat. §§ 48-1228 to 48-1232 (Reissue 

2010), does not represent a very clear mandate of public policy which would 

warrant recognition of an exception to the employment-at-will doctrine.

Appeal from the District Court for Douglas County: Shell

R. Stratman, Judge. Affir

Theodore R. Boecker, Jr., of Boecker Law, P.C., L.L.O., for 

appellant.
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Julie Schultz Self, Heather Voegele-Andersen, and Kristin 

M.V. Farwell, of Koley Jessen, P.C., L.L.O., for appellee.

Heavican, C.J., Wright, Connolly, Stephan, M

and Cassel, JJ

McCormack, 

NATURE OF CASE

William D. Coffey seeks commissions for two projects that 

he worked on that were ongoing at the time of his termination 

as a salesperson from Planet Group, Inc. Planet Group argues 

that under the 2008 Sales Compensation Plan (Compensation 

Plan) signed by Coffey, commissions are earned only when 

the sales contract is signed during employment. The prominent 

issue presented by this appeal is whether the Compensation 

Plan is void under Neb. Rev. Stat. § 48-1229(4) (Reissue 2010) 

of the Nebraska Wage Payment and Collection Act (Wage Act). 

We find that the 2007 legislative amendments to § 48-1229(4) 

allow an employer and employee to contractually define when 

a commission becomes payable. We affirm the district court’s 

order granting partial summary judgment, because the commissions for the two projects are not payable to Coffey under the 

Compensation Plan.

BACKGROUND

In 2007, Coffey was hired as a salesperson at Planet Group. 

His role was to bolster international sales and assist in selling “enterprise solutions” to prospective customers. As a part 

of his employment, Coffey signed the Compensation Plan. 

The plan set out the requirements for when a commission 

was earned and how it would be paid. In its relevant parts, 

it stated:

Commission Payment:

Commissions are paid at the end of the month following the month that contracts were approved, executed 

and received by Planet Group and down payments are 

received. . . .

75% of Commissions are paid upon signed contract, 

and the final 25% upon contract completion. . . . The 
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upfront commission portion is not fully “earned” until 

each contract is completed.

. . . .

Termination

A Participant who is terminated or resigns from 

employment with Planet Group the commission payments 

will cease. . . . Commissions are deemed “earned” when 

a contract has been signed by the customer and the down 

payment under the contract has been received.

On March 26, 2009, Coffey’s employment was terminated 

by Planet Group as part of Planet Group’s reduction in force. 

Coffey was terminated with over 20 other employees.

At the time of his termination, Coffey had four relevant 

projects he had been working on: (1) the “First Data, US, 

Recurring Payments project” (Recurring Billing Project); (2) 

the “First Data, Argentina, B-24 Services project” (Posnet 

Project); (3) the “TIVIT project” (TIVIT Project); and (4) 

the “Mexico SSP project” (Mexico SSP Project). According 

to Coffey’s affidavit, these projects either were orally agreed 

to, had been given approval by the customer, or were in the 

process of obtaining formal approval. Coffey admits that the 

Compensation Plan applied to the Recurring Billing Project, 

the Posnet Project, and the Mexico SSP Project. The TIVIT 

Project, however, had its own compensation plan.

For the 2 days prior to his termination, Coffey had been 

in negotiations with representatives from “First Data” on the 

Recurring Billing Project. According to Coffey, he and the 

representatives agreed that the project would be completed 

in two phases. The first phase’s contract was executed on 

March 26, 2009, and the charges were billed. The second 

phase’s contract was deferred until after the completion of 

the first phase to address any issues that may have occurred 

during the first phase. Coffey received commission for the 

first phase, but Planet Group denied him commission for the 

second phase.

Coffey attested that for the Posnet Project, he had completed his role as a salesperson, and that he is owed a commission. Coffey argued that the only work to be completed 

was the execution of new work orders for the remaining 
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phases of the project, which were to be executed after the 

initial phase.

In his amended complaint, Coffey alleged that he was owed 

commissions on each of the four projects. He alleged that for 

each project, there were “orders on file.” He further alleged 

that Planet Group terminated him in bad faith, which he 

claims was a breach of the implied covenant of good faith and 

fair dealing.

The district court partially sustained Planet Group’s motion 

for summary judgment. It granted the motion for summary 

judgment on Coffey’s bad faith claim, because it found that 

Planet Group had the right to terminate Coffey as an at-will 

employee and that there was no evidence to support the existence of a public policy violation.

The district court also granted summary judgment on the 

Recurring Billing Project, the Posnet Project, and the Mexico 

SSP Project. The district court found that the Compensation 

Plan required a signed contract prior to a commission’s being 

paid. The district court found that all commissions had properly been paid on these three projects. It further found that the 

signed contract requirement did not contradict the Wage Act’s 

definition of wages under § 48-1229(4).

After a jury trial on the TIVIT Project claim, Coffey was 

awarded $100,933 for commission owed to him. After trial, the 

district court denied Coffey’s motion to alter or amend regarding the earlier order granting Planet Group’s motion for summary judgment. Coffey now appeals.

ASSIGNMENTS OF ERROR

Coffey assigns that the district court erred in (1) sustaining the motion for summary judgment as to the claim for 

payments on the Recurring Billing Project, (2) sustaining 

the motion for summary judgment as to additional payments 

owed on the Posnet Project, (3) sustaining the motion for 

summary judgment as to the claim of a breach of the implied 

covenant of good faith and fair dealing, (4) determining 

that there can be no claim for a breach of the covenant of 

good faith and fair dealing under Nebraska law, (5) defining 

“orders on file” as an executed contract rather than submitting 
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the issue to the jury, (6) partially sustaining the motion for 

summary judgment, and (7) denying the motion to alter or 

amend the judgment.

STANDARD OF REVIEW

[1] In reviewing a summary judgment, an appellate court 

views the evidence in the light most favorable to the party 

against whom the judgment was granted and gives that 

party the benefit of all reasonable inferences deducible from 

the evidence.1

[2] An appellate court will affirm a lower court’s grant of 

summary judgment if the pleadings and admitted evidence 

show that there is no genuine issue as to any material facts or 

as to the ultimate inferences that may be drawn from the facts 

and that the moving party is entitled to judgment as a matter 

of law.2

[3] The interpretation of statutes and regulations presents 

questions of law.3 We independently review questions of law 

decided by a lower court.4

ANALYSIS

Wage Ac

The crux of Coffey’s argument on appeal is that § 48-1229(4) 

of the Wage Act does not permit an employer and an employee 

to contractually define when a commission becomes payable 

as “wages.” Coffey argues that, therefore, he is owed a commission for both the Recurring Billing Project and the Posnet 

Project, because both projects constitute “orders on file” as 

contemplated under § 48-1229(4).

We have previously stated that an employer and an employee 

cannot circumvent the statutory definition of wages through 

an employment agreement, because the Wage Act controlled 

the determination of what commissions were payable.5 At the 

1 Peterson v. Homesite Indemnity Co., ante p. 48, 840 N.W.2d 885 (2013).

2 Id.

3 Carey v. City of Hastings, ante p. 1, 840 N.W.2d 868 (2013).

4 Id.

5 Moore v. Eggers Consulting Co., 252 Neb. 396, 562 N.W.2d 534 (1997).
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time, the Wage Act required that a commission became payable if it was an order on file at the time of the employee’s 

termination.6 However, these holdings were based on a version 

of § 48-1229(4) not in effect today.

The Wage Act was modified in response to our decision in 

Roseland v. Strategic Staff Mgmt.7 In Roseland, we held that 

under the language of § 48-1229(4) (Reissue 1998) of the Wage 

Act, vacation leave provided by an employer was a fringe benefit and a wage payable to an employee upon termination. In 

doing so, we found that the employment agreement’s provision 

stating that the unused vacation leave was not payable upon 

separation was null and void because it contradicted the Wage 

Act. After Roseland, the Legislature amended § 48-1229(4) in 

2007.8 The new amended version states in full:

Wages means compensation for labor or services rendered 

by an employee, including fringe benefits, when previously agreed to and conditions stipulated have been met 

by the employee, whether the amount is determined on 

a time, task, fee, commission, or other basis. Paid leave, 

other than earned but unused vacation leave, provided as a 

fringe benefit by the employer shall not be included in the 

wages due and payable at the time of separation, unless 

the employer and the employee or the employer and 

the collective-bargaining representative have specifically 

agreed otherwise. Unless the employer and employee 

have specifically agreed otherwise through a contract 

effective at the commencement of employment or at least 

ninety days prior to separation, whichever is later, wages 

includes commissions on all orders delivered and all 

orders on file with the employer at the time of separation 

of employment less any orders returned or canceled at the 

time suit is filed.9

6 Id.

7 Roseland v. Strategic Staff Mgmt., 272 Neb. 434, 722 N.W.2d 499 (2006).

8 See 2007 Neb. Laws, L.B. 255 (now codified at Neb. Rev. Stat. 

§ 48-1229(4) (Reissue 2010)).

9 § 48-1229(4) (Reissue 2010).
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Not only did the Legislature add language to fringe benefits and unused vacation leave, but it also added a new 

clause preceding the sentence explaining when commissions 

become payable. This is our first opportunity to interpret the 

new amendments in terms of when a commission becomes 

payable.

[4,5] Our rules of statutory interpretation guide our analysis. 

Absent a statutory indication to the contrary, we give words in 

a statute their ordinary meaning.10 We will not look beyond a 

statute to determine the legislative intent when the words are 

plain, direct, or unambiguous.11 So, we first consider the plain 

language of the statute.

[6] We find that the plain meaning of “[u]nless the employer 

and employee have specifically agreed otherwise through a 

contract effective at the commencement of employment or at 

least ninety days prior to separation” is that an employer and 

employee can contractually agree to define when a commission 

becomes earned as a wage. This clause qualifies the definition 

of when a commission becomes payable. Thus, absent a contractual agreement stating the contrary, a commission is payable at the time of the employee’s termination if the order is 

delivered or if the order is on file. However, the 2007 amendment to § 48-1229(4) now allows an employer and employee 

to contractually define when a commission becomes “wages” 

via provisions in a signed employment agreement. The district 

court did not err in determining the parties could contractually 

define when a commission becomes earned and payable under 

the Wage Act.

[7] We must now determine if Coffey and Planet Group 

contractually defined when a commission was earned. When 

the terms of a contract are clear, a court may not resort to 

rules of construction, and the terms are to be accorded their 

plain and ordinary meaning as an ordinary or reasonable person would understand them.12 The Compensation Plan states: 

10 Fisher v. PayFlex Systems USA, 285 Neb. 808, 829 N.W.2d 703 (2013).

11 Id.

12 RSUI Indemnity Co. v. Bacon, 282 Neb. 436, 810 N.W.2d 666 (2011).
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“A Participant who is terminated or resigns from employment 

with Planet Group the commission payments will cease. . . . 

Commissions are deemed ‘earned’ when a contract has been 

signed by the customer and the down payment under the contract has been received.” The Compensation Plan, signed by 

Coffey more than 90 days prior to his termination, requires that 

Coffey be employed when the contract is signed and when the 

downpayment is received to earn his commission. Therefore, 

we find that the district court did not err in determining that a 

commission was earned by Coffey only if there was a signed 

contract and a downpayment had been received for such contract. We must now determine whether the evidence, viewed 

in the light most favorable to Coffey, established that there 

are no genuine issues of material fact that there was not a 

signed contract for either the Recurring Billing Project or the 

Posnet Project.

We find that Coffey has been paid all earned commissions 

for the Recurring Billing Project. The evidence presented 

establishes that the Recurring Billing Project was to be completed in two phases: a requirements-analysis phase and a 

second phase which involved the purchase of the software 

system for the recurring billing contract. The second contract, 

for which Coffey now seeks a commission, was not entered 

into at the time he was terminated. Coffey has conceded 

so in his brief. Coffey’s supervisor at Planet Group, whose 

deposition testimony was offered by Coffey, testified that 

the second contract was not signed until August 2009, after 

Coffey was terminated. Additionally, it is also clear from the 

“Requirements Analysis” contract that the second contract 

was a separate and distinct contract, not yet entered into. The 

“Requirements Analysis” contract contains language referencing “a proposed, larger project” that could be entered into if 

the “[c]ustomer moves forward with the purchase of the software system.”

Likewise, the evidence viewed in a light most favorable 

to Coffey establishes that Coffey has been paid all commissions for each Posnet Project contract signed during his 

employment. Coffey admits that he has been paid for all 

Posnet Project contracts signed during his employment. In 
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his appellate brief, Coffey has conceded that additional payments for the Posnet Project were made only after a “[c]hange 

[o]rder” had been signed on June 4, 2009. Coffey conceded 

that the change order extended the project end date and 

discussed additional payments to be made. Coffey also conceded that the revenue, from which he seeks a commission, 

was secured by Planet Group through change orders signed 

after his termination. From this evidence, there are no genuine issues of material fact that the commission Coffey now 

seeks for the Posnet Project was from a contract signed after 

his termination.

We find that there are no genuine issues of material fact 

that Coffey was no longer employed with Planet Group when 

the additional Recurring Billing Project and Posnet Project 

contracts were signed. Therefore, we affirm the grant of partial 

summary judgment in favor of Planet Group on the commissions arising from the Posnet Project.

Good Faith and Fair D

Coffey argues that the district court erred in concluding that 

there is no claim for breach of good faith because employees 

are terminable at will under Nebraska law. He argues that an 

employee can be terminated on an at-will basis and still have 

a good faith and fair dealing claim if the employer wrongfully acts to defeat the employee’s reasonable expectations. 

We disagree.

[8-11] The implied covenant of good faith and fair dealing 

exists in every contract and requires that none of the parties to 

the contract do anything which will injure the right of another 

party to receive the benefit of the contract.13 The nature and 

extent of an implied covenant of good faith and fair dealing 

are measured in a particular contract by the justifiable expectations of the parties.14 Where one party acts arbitrarily, capriciously, or unreasonably, that conduct exceeds the justifiable 

expectations of the second party.15 A violation of the covenant 

13 Id.

14 Id.

15 Id.
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of good faith and fair dealing occurs only when a party violates, nullifies, or significantly impairs any benefit of the 

contract.16 The scope of conduct prohibited by the covenant of 

good faith is circumscribed by the purposes and express terms 

of the contract.17

Here, the contract between Coffey and Planet Group was the 

Compensation Plan signed by both parties as part of Coffey’s 

employment. In his amended complaint, Coffey alleged that 

Planet Group terminated his employment in bad faith to avoid 

paying Coffey additional commissions under the Wage Act.

[12-15] Unless constitutionally, statutorily, or contractually prohibited, an employer, without incurring liability, may 

terminate an at-will employee at any time with or without reason.18 We recognize, however, a public policy exception to the 

at-will employment doctrine.19 Under the public policy exception, an employee can claim damages for wrongful discharge 

when the motivation for the firing contravenes public policy.20

The public policy exception is restricted to cases when a clear 

mandate of public policy has been violated, and it should be 

limited to manageable and clear standards.21 In determining 

whether a clear mandate of public policy is violated, courts 

should inquire whether the employer’s conduct contravenes 

the letter or purpose of a constitutional, statutory, or regulatory 

provision or scheme.22

[16] We have previously determined that the Wage Act did 

not “‘represent a “very clear mandate of public policy” which 

would warrant recognition of an exception to the employmentat-will doctrine.’”23 The Wage Act does not prohibit employers from discharging employees, and it does not provide 

16 Id.

17 Spanish Oaks v. Hy-Vee, 265 Neb. 133, 655 N.W.2d 390 (2003).

18 Trosper v. Bag ’N Save, 273 Neb. 855, 734 N.W.2d 704 (2007).

19 Id.

20 Id.

21 Id.

22 Id.

23 Id. at 858, 734 N.W.2d at 707.
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employees with any substantive rights.24 Thus, while the Wage 

Act provides Coffey with a remedy to collect any compensation which Planet Group may owe him, it does not “declare 

‘“an important public policy with such clarity as to provide a 

basis for a civil action for wrongful discharge.”’”25

Additionally, we find Planet Group did not act in bad faith 

in denying the commissions to Coffey under the Compensation 

Plan. A violation of the covenant of good faith and fair dealing occurs only when a party violates, nullifies, or significantly impairs any benefit of the contract.26 We have already 

established that under the clear and unambiguous terms of the 

Compensation Plan, a commission can be earned only if the 

contract is signed while the employee is employed with the 

company. Under the Compensation Plan, Planet Group has 

upheld its requirements and has paid Coffey the proper benefits 

of the contract.

We conclude, as a matter of law, that Coffey cannot raise a 

bad faith claim based on his termination as an at-will employee 

with Planet Group, because there is no evidence of a public 

policy violation. Coffey’s only avenue for recovery in this case 

was his breach of contract claims he raised in relation to the 

four projects. Therefore, the district court did not err in determining that Planet Group had the right to terminate Coffey’s 

employment and in determining as a matter of law that Planet 

Group could not have acted in bad faith in doing so.

CONCLUSION

For the reasons stated herein, we affirm the judgment of the 

district court.

Affirme

Miller-Lerman, J., not participati

24 Id.

25 Id. at 874, 734 N.W.2d at 717 (Stephan, J., dissenting).

26 RSUI Indemnity Co. v. Bacon, supra note 12.