NE Code § 48-628 (2021)
2021 Nebraska Revised Statutes|Chapter 48 - Labor|48-628 - Benefits; conditions disqualifying applicant; exceptions.

48-628.  Benefits; conditions disqualifying applicant; exceptions.(1) An individual shall be disqualified for benefits for any week of unemployment in which the commissioner finds he or she has failed, without good cause, to apply for available, suitable work when so directed by the employment office or the commissioner, to accept suitable work offered him or her, or to return to his or her customary self-employment, if any, and for the twelve weeks immediately thereafter. The total benefit amount to which he or she is then entitled shall be reduced by an amount equal to the number of weeks for which he or she has been disqualified by the commissioner.(2) In determining whether or not any work is suitable for an individual, the commissioner shall consider the following:(a) The degree of risk involved to the individual's health, safety, and morals;(b) His or her physical fitness and prior training;(c) His or her experience and prior earnings;(d) His or her length of unemployment and prospects for securing local work in his or her customary occupation; and(e) The distance of the available work from his or her residence.(3) Notwithstanding any other provisions of the Employment Security Law, no work shall be deemed suitable and benefits shall not be denied under such law to any otherwise eligible individual for refusing to accept new work under any of the following conditions:(a) If the position offered is vacant due directly to a strike, lockout, or other labor dispute;(b) If the wages, hours, or other conditions of the work offered are substantially less favorable to the individual than those prevailing for similar work in the locality; or(c) If, as a condition of being employed, the individual would be required to join a company union or to resign from or refrain from joining any bona fide labor organization.(4) Notwithstanding any other provisions in this section relating to failure to apply for or a refusal to accept suitable work, no otherwise eligible individual shall be denied benefits with respect to any week in which he or she is in training with the approval of the commissioner.(5) No individual shall be disqualified for refusing to apply for available, full-time work or accept full-time work under subsection (1) of this section solely because such individual is seeking part-time work if the majority of the weeks of work in an individual's base period include part-time work. For purposes of this subsection, seeking only part-time work shall mean seeking less than full-time work having comparable hours to the individual's part-time work in the base period, except that the individual must be available for work at least twenty hours per week.Source   Laws 1937, c. 108, § 5, p. 377;   Laws 1939, c. 56, § 4, p. 236;   C.S.Supp.,1941, § 48-705;   R.S.1943, § 48-628;   Laws 1945, c. 114, § 4, p. 372;   Laws 1955, c. 190, § 7, p. 545;   Laws 1961, c. 241, § 2, p. 718;   Laws 1965, c. 287, § 1, p. 821;   Laws 1967, c. 301, § 1, p. 818;   Laws 1969, c. 402, § 1, p. 1395;   Laws 1971, LB 651, § 6;   Laws 1975, LB 370, § 1;   Laws 1976, LB 819, § 1;   Laws 1977, LB 509, § 5;   Laws 1978, LB 128, § 1;   Laws 1979, LB 581, § 3;   Laws 1980, LB 800, § 4;   Laws 1981, LB 470, § 3;   Laws 1982, LB 801, § 2;   Laws 1983, LB 248, § 4;   Laws 1983, LB 432, § 1;   Laws 1984, LB 746, § 2;   Laws 1985, LB 339, § 22;   Laws 1985, LB 341, § 1;   Laws 1987, LB 276, § 1;   Laws 1987, LB 469, § 2;   Laws 1989, LB 605, § 1;   Laws 1991, LB 498, § 1;   Laws 1992, LB 878, § 1;   Laws 1994, LB 286, § 3;   Laws 1994, LB 913, § 1;   Laws 1995, LB 1, § 9;   Laws 1995, LB 77, § 2;   Laws 1995, LB 291, § 1;   Laws 1995, LB 759, § 1;   Laws 1996, LB 633, § 1;   Laws 1998, LB 225, § 3;  Laws 2000, LB 953, § 7;  Laws 2001, LB 192, § 8;  Laws 2002, LB 921, § 2;  Laws 2005, LB 484, § 6;  Laws 2005, LB 739, § 10;  Laws 2010, LB1020, § 4;  Laws 2017, LB172, § 30;  Laws 2017, LB203, § 3.  Annotations  1. Eligibility for benefits 2. Voluntary termination of employment 3. Stoppage of work 4. Misconduct 5. Miscellaneous 1. Eligibility for benefits In the circumstances of multiple employment, a decision to voluntarily leave part-time employment without good cause does not disqualify one from receiving full unemployment compensation benefits resulting from being laid off from one's full-time position. Fountain v. Hanlon, 214 Neb. 700, 335 N.W.2d 319 (1983). When determining if an employee, discharged for violating a company rule forbidding company employees from having contact with prior employees, is to be disqualified from receiving benefits under this statute, it must be determined if the rule has a reasonable relationship to the employer's interest. Rule here held not to be so related to the employer's interest. Snyder Industries, Inc. v. Otto, 212 Neb. 40, 321 N.W.2d 77 (1982). The disqualification of employees of educational institutions and professional athletes for unemployment benefits under this provision does not include professional symphony musicians. The provisions of the unemployment compensation act should be liberally construed in favor of those claiming benefits under it. Hanlon v. Boden, 209 Neb. 169, 306 N.W.2d 858 (1981). Pursuant to subsection (5)(b) of this section, receipt of workers' compensation temporary disability benefits disqualifies a person from receiving unemployment benefits unless the amount of workers' compensation benefits is less than the amount recoverable for unemployment. In that situation, the individual is entitled to the difference. Hernandez v. JBS USA, 20 Neb. App. 634, 828 N.W.2d 765 (2013). For purposes of subdivision (7) of this section, a student is not "registered for full attendance" and therefore disqualified from receiving unemployment benefits if the student's educational program allows him or her to remain "available for work" pursuant to section 48-627(3). Lecuona v. Cramer, 14 Neb. App. 770, 714 N.W.2d 786 (2006). 2. Voluntary termination of employment In the context of subsection (1)(a) of this section, to leave work voluntarily means to sever the employment relationship with the intent not to return to, or to intentionally terminate, the employment. Lancaster Cty. Sch. Dist. No. 0001 v. State Dept. of Labor, 260 Neb. 108, 615 N.W.2d 441 (2000). Pursuant to subsection (1)(a) of this section, a court will separately consider the circumstances under which each of multiple employments was terminated in determining the benefits against which the statutory disqualification shall apply. Lancaster Cty. Sch. Dist. No. 0001 v. State Dept. of Labor, 260 Neb. 108, 615 N.W.2d 441 (2000). Pursuant to subsection (1)(a) of this section, a paraeducator comes within the scope of this statutory provision. Lancaster Cty. Sch. Dist. No. 0001 v. State Dept. of Labor, 260 Neb. 108, 615 N.W.2d 441 (2000). Pursuant to subsection (1)(a) of this section, an employee has "good cause" for voluntarily leaving employment if the employee's decision to leave is prompted by a circumstance which has some justifiably reasonable connection with or relation to the conditions of the employment. Lancaster Cty. Sch. Dist. No. 0001 v. State Dept. of Labor, 260 Neb. 108, 615 N.W.2d 441 (2000). For purposes of subsection (a)(1) of this section, an employee has not "left work voluntarily without good cause" when the employee voluntarily resigns from work but is subsequently terminated by the employer during the notice period. Dillard Dept. Stores v. Polinsky, 247 Neb. 821, 530 N.W.2d 637 (1995). An employee who has engaged in no misconduct and who desires to keep his or her employment, but nonetheless resigns because the employer has clearly manifested that the employment will be terminated, has not left his or her employment "voluntarily," as that term is used in subsection (a)(1) of this section. Perkins v. Equal Opportunity Comm., 234 Neb. 359, 451 N.W.2d 91 (1990). An employee has good cause for voluntarily leaving employment if the employee's decision to leave is prompted by a circumstance which has some justifiably reasonable connection with or relation to the conditions of the employment. Stackley v. State, 222 Neb. 767, 386 N.W.2d 884 (1986). A change in work hours, absent some compelling circumstance, does not constitute good cause for leaving employment under subsection (a)(1) of this section. Montclair Nursing Center v. Wills, 220 Neb. 547, 371 N.W.2d 121 (1985). Employee failed to meet burden of proof as to good cause of employment termination where employee failed to offer competent medical evidence to substantiate claim that her health would be affected by a change in work hours. Montclair Nursing Center v. Wills, 220 Neb. 547, 371 N.W.2d 121 (1985). An employer acts within the meaning of subsection (a) of this section by removing duties after a job change due to the physical incapacity to carry out those particular duties. Norman v. Sorensen, 220 Neb. 408, 370 N.W.2d 147 (1985). To leave work voluntarily means to intentionally terminate the employment, but such leaving is with good cause if it has some justifiably reasonable connection with or relation to the conditions of employment. McClemens v. United Parcel Serv., 218 Neb. 689, 358 N.W.2d 748 (1984). The burden of proof is on the employee to show that he involuntarily left his employment or did so with good cause. Taylor v. Collateral Control Corp., 218 Neb. 432, 355 N.W.2d 788 (1984). One is disqualified for benefits if, by leaving work voluntarily and without good cause, one thereby makes oneself unemployed. Each job and the facts of its termination must be considered separately with regard to disqualification for benefits. Gilbert v. Hanlon, 214 Neb. 676, 335 N.W.2d 548 (1983). Evidence held to show that claimant left work voluntarily. To leave work voluntarily under this section means to intentionally sever the employment relationship with the intent not to return to, or to intentionally terminate, the employment. Gastineau v. Tomahawk Oil Co., Limited, 211 Neb. 537, 319 N.W.2d 107 (1982). An employee who desires to retain his employment but resigns because the employer has clearly indicated that if he does not resign his employment will be terminated has not left his employment voluntarily. School Dist. No. 20 v. Commissioner of Labor, 208 Neb. 663, 305 N.W.2d 367 (1981). A wife who voluntarily leaves her employment for the sole and only reason of being with her husband in another city does so without good cause and disqualifies herself as a claimant for unemployment benefits. Woodmen of the World Life Ins. Soc. v. Olsen, 141 Neb. 776, 4 N.W.2d 923 (1942). An employee who leaves work voluntarily has the burden to prove that he or she left employment with good cause. Speedway Motors v. Commissioner of Labor, 1 Neb. App. 606, 510 N.W.2d 341 (1993). 3. Stoppage of work A work stoppage cannot be determined solely on the basis of the proportionate number of employees affected. Bell Fed. Credit Union v. Christianson, 237 Neb. 519, 466 N.W.2d 546 (1991). Depending on the facts of the case, various factors become relevant as to the determination of a work stoppage within the meaning of subsection (d) of this section. Bell Fed. Credit Union v. Christianson, 237 Neb. 519, 466 N.W.2d 546 (1991). One disqualified from receiving benefits under subdivision (d) of this section can avoid continued disqualification if the employer fails to prove that for the week in question, the cause of work stoppage is the labor dispute. IBP, Inc. v. Aanenson, 234 Neb. 603, 452 N.W.2d 59 (1990). No work stoppage occurred where workers' refusing to cross a picket line resulted in a four and nine-tenths percent loss in production, together with a two and nine-tenths percent loss of total work hours; there was no total operational shutdown at the plant; ninety-eight percent of the affected positions were filled by the end of the first week following the establishment of the picket line; and the company informed the Department of Labor that no work stoppage had occurred. George A. Hormel & Co. v. Hair, 229 Neb. 284, 426 N.W.2d 281 (1988). One who is a member of the same grade or class of workers participating in a labor dispute is ineligible for unemployment compensation benefits. Laursen v. Kiewit Constr. Co., 223 Neb. 471, 390 N.W.2d 534 (1986). Members of nonstriking unions and nonunion employees who are not participating in or financing or directly interested in a labor dispute which caused a work stoppage and who do not belong to a grade or class of workers who, immediately before the commencement of the stoppage, were members employed at the premises at which the stoppage occurs, and are participating in, financing, or directly interested in the labor dispute, are not disqualified from receiving benefits. An employee is not directly interested in a labor dispute within the meaning of this provision merely because the employee may obtain a benefit by reason of the labor dispute. Gilmore Constr. Co. v. Miller, 213 Neb. 133, 327 N.W.2d 628 (1982). Disqualification for benefits exists when unemployment is due to stoppage of work because of a labor dispute. A. Borchman Sons v. Carpenter, 166 Neb. 322, 89 N.W.2d 123 (1958). Where a labor dispute develops into a strike, causing a substantial stoppage of work in the business of the employer, the employees striking are not entitled to benefits under the Unemployment Compensation Act. Magner v. Kinney, 141 Neb. 122, 2 N.W.2d 689 (1942). The term stoppage of work, as used in Unemployment Compensation Act, means a substantial curtailment of work in an employing establishment. Deshler Broom Factory v. Kinney, 140 Neb. 889, 2 N.W.2d 332 (1942). 4. Misconduct An employee's actions do not rise to the level of misconduct if the individual is merely unable to perform the duties of the job. Meyers v. Nebraska State Penitentiary, 280 Neb. 958, 791 N.W.2d 607 (2010). Under subsection (2) of this section, an individual shall be disqualified for unemployment benefits for misconduct related to his work. Meyers v. Nebraska State Penitentiary, 280 Neb. 958, 791 N.W.2d 607 (2010). The degree of damage caused should not be a determining factor in whether an employee engaged in misconduct under subsection (2) of this section. Instead, the focus should be on the employee's culpability as demonstrated by his or her conduct and intentions. NEBCO, Inc. v. Murphy, 280 Neb. 145, 784 N.W.2d 447 (2010). Misconduct has been defined, pursuant to this section, as behavior evidencing (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. Douglas Cty. Sch. Dist. 001 v. Dutcher, 254 Neb. 317, 576 N.W.2d 469 (1998). In order for a violation of an employer's rule to constitute misconduct, the rule must bear a reasonable relationship to the employer's interests. Dolan v. Svitak, 247 Neb. 410, 527 N.W.2d 621 (1995). Under subsection (b) of this section, conduct of a governmental employee which evinces a conscious and intentional disregard of standards of behavior which his or her governmental employer would have a right to expect from such employee constitutes misconduct in connection with the employee's employment, where continued employment would create a genuine threat to the integrity of the governmental employer and reflect unfavorably upon the governmental employer in the eyes of the general public. Poore v. City of Minden, 237 Neb. 78, 464 N.W.2d 791 (1991). An employee who is discharged for misconduct may be disqualified from unemployment compensation benefits. Caudill v. Surgical Concepts, Inc., 236 Neb. 266, 460 N.W.2d 662 (1990). The term "misconduct," as used in subsection (b) of this section, includes behavior that evidences wanton and willful disregard of the employer's interests; deliberate violations of rules; disregard of standards of behavior rightfully expected from the employee; or 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. Jensen v. Mary Lanning Memorial Hosp., 233 Neb. 66, 443 N.W.2d 891 (1989). Where an employee has close personal contact with persons served by the employer, it is not unreasonable for the employer to require the employee to report to work without the odor of alcohol on his breath. Violation of the requirement, after warnings to the employee, is misconduct under subsection (b) of the statute. Jensen v. Mary Lanning Memorial Hosp., 233 Neb. 66, 443 N.W.2d 891 (1989). Misconduct for which a disqualification from receiving unemployment benefits under subsection (b) of this section may result must be committed in connection with the employee's work. Failure to cooperate with an employer which is attempting to furnish a smoke-free environment by a good faith trial and error method constitutes misconduct in connection with the employee's work sufficient to disqualify the employee from receiving unemployment compensation benefits. Failure to furnish medical justification for prolonged absences from employment, when an employee has stated that such justification will be furnished, also constitutes sufficient misconduct in connection with the employee's work. Tuma v. Omaha Public Power Dist., 226 Neb. 19, 409 N.W.2d 306 (1987). Misconduct for which a disqualification from receiving unemployment benefits may result must be committed in connection with the employee's work. Conduct of an employee in so acting as to create a situation where garnishments are filed with his or her employer is not "misconduct connected with his or her work" and therefore will not disqualify a discharged employee from receiving unemployment compensation benefits. Great Plains Container Co. v. Hiatt, 225 Neb. 558, 407 N.W.2d 166 (1987). While absences due to illness may not constitute an employee's misconduct, an employee's chronic and excessive absenteeism demonstrates a wanton and willful disregard of the employer's interests for the purpose of this section. O'Keefe v. Tabitha, Inc., 224 Neb. 574, 399 N.W.2d 798 (1987). Misconduct under subsection (b) of this section is defined as 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. Smith v. Sorensen, 222 Neb. 599, 386 N.W.2d 5 (1986). The falsifying of entries by an employee of his employer's work records constitutes misconduct. What constitutes misconduct is a fact question. In order for a violation of an employer's rules to constitute misconduct, it is necessary that the rule be a reasonable one. Smith v. Sorensen, 222 Neb. 599, 386 N.W.2d 5 (1986). Misconduct within the meaning of this statute is a deliberate, willful, or wanton disregard of an employer's interest or of the standards of behavior which the employer has a right to expect of his employees, or carelessness or negligence of such a degree or recurrence as to manifest culpability, wrongful intent, or evil design. Barada v. Sorensen, 222 Neb. 391, 383 N.W.2d 799 (1986). Excessive absences from work, except when excused or authorized by employment rules, may constitute misconduct. McCorison v. City of Lincoln, 215 Neb. 474, 339 N.W.2d 294 (1983). Misconduct, under this section, is the deliberate, willful, or wanton disregard of an employer's interest or of the standards of behavior which the employer has a right to expect of his employees, or carelessness or negligence of such a degree or recurrence as to manifest culpability, wrongful intent, or evil design. Bristol v. Hanlon, 210 Neb. 37, 312 N.W.2d 694 (1981). 5. Miscellaneous The language of subsection (5)(b) of this section in its current form does not include temporary total disability as a disqualifying event for the receipt of unemployment benefits. Memorial Hosp. of Dodge Cty. v. Porter, 251 Neb. 327, 557 N.W.2d 21 (1996). In an appeal regarding disqualification under subsection (b) of this section, the Supreme Court retries factual questions de novo on the record and reaches conclusions independent of those reached by the district court. Jensen v. Mary Lanning Memorial Hosp., 233 Neb. 66, 443 N.W.2d 891 (1989). Subsection (c) of this section disqualifies unemployed persons refusing suitable work from receiving benefits. This subsection does not apply to employed persons who reject demotions. Ponderosa Villa v. Hughes, 224 Neb. 627, 399 N.W.2d 813 (1987). The correct inquiry in cases where an employed person refuses a demotion and quits is whether the employee left with or without good cause. Ponderosa Villa v. Hughes, 224 Neb. 627, 399 N.W.2d 813 (1987). In an appeal regarding disqualification of benefits under this section, the Supreme Court retries factual questions de novo on the record and reaches conclusions independent of those reached by the district court. O'Keefe v. Tabitha, Inc., 224 Neb. 574, 399 N.W.2d 798 (1987). The burden of proof under subsection (a)(1) of this section is upon the employee to show that he or she left his or her employment for good cause. Montclair Nursing Center v. Wills, 220 Neb. 547, 371 N.W.2d 121 (1985). The requirement of subdivision (e) of this section, that a lump-sum severance allowance be prorated, is intended to prevent a claimant from receiving double payments for the same period of time in the form of unemployment benefits and severance compensation. Sorensen v. Meyer, 220 Neb. 457, 370 N.W.2d 173 (1985). Subsection (c) of this section provides an employer with an additional reason for disqualification from benefits when a person refuses suitable work, and work is suitable when duties are excused upon the employee's showing of physical incapacity to perform the particular duties. Norman v. Sorensen, 220 Neb. 408, 370 N.W.2d 147 (1985). Regular terms refers to definite period representing regular division of academic year and does not include six-week summer program. School Dist. No. 21 v. Ochoa, 216 Neb. 191, 342 N.W.2d 665 (1984). "Good cause" as used herein does not include a mere disappointment at not being assigned to a particular job or task. Heimsoth v. Kellwood Co., 211 Neb. 167, 318 N.W.2d 1 (1982). Up to the point of appeal to district court, interpretation and application of law to facts in each case is made by administrative agency. Beecham v. Falstaff Brewing Corporation, 150 Neb. 792, 36 N.W.2d 233 (1949). The receipt of workers' compensation benefits for temporary total disability is not a disqualifying event for unemployment benefits. Memorial Hosp. of Dodge Cty. v. Porter, 4 Neb. App. 716, 548 N.W.2d 361 (1996).