Nebraska Unicameral February 2018 Legislative Update: Pending Employment-Related Legislation
The Business and Labor Committee of the Nebraska Unicameral heard testimony this month on a number of bills that would have various implications for Nebraska employers if ultimately signed into law. The following is a synopsis of the legislation presently before the Committee. To date, the Committee has not taken action on the bills outlined below or designated any as priority.
LB843—Wage Disclosures: This bill provides that an employer shall not require nondisclosure of wages by an employee as a condition of employment, or require an employee to sign any document denying an employee the right to disclose his or her wages. Additionally, LB843 provides that an employer may not coerce, intimidate or threaten an employee to discourage disclosure or take any adverse actions against an employee for the disclosure of wages. The impetus behind this bill is that an employee has the right to disclose compensation information for the purpose of determining whether an employer is providing equal pay for equal work. To this end, LB843 allows an employee to bring a civil action against an employer for violations of the act. If a court finds that an employer has violated the act, the court may order the employer to pay the cost of the action plus reasonable attorney fees incurred by the employee in addition to any judgment awarded to the employee. LB843 allows the court in such action to order reinstatement or award an employee with back pay, restoration of lost service credit, expungement of any related adverse records, as well as money damages. Testimony in opposition to LB843 noted that federal law already provides substantial protection for employees.
LB844—Paid Sick Leave: As of 2018, only five states—California, Connecticut, Massachusetts, Oregon and Vermont—mandate covered employers to provide employees with paid sick leave. LB844 seeks to add Nebraska to that list and create a paid sick and safe leave mandate titled, the "Healthy and Safe Families and Workplaces Act." This legislation would apply to employers with four or more employees. Under the Act, employees who have worked for 60 days would begin to accrue one hour of paid sick time for every thirty hours worked and require employers to allow employees to accrue up to forty hours of paid sick and safe leave time per calendar year. The bill does not prohibit employers from providing additional paid leave. Testimony in opposition to LB844 pointed out that the costs of covering the leave and hiring temporary labor could strain finances of small businesses.
LB916—Retaliation for Reporting Wage & Collection Matters: LB916 addresses discrimination and retaliation against an employee by an employer pertaining to violations of the Wage and Hour Act or the Wage Payment and Collection Act. The Wage and Hour Act sets the minimum wage for workers in Nebraska. The Wage Payment and Collection Act regulates the payment of wages, including such rules as requiring employers to provide regular paydays, prohibiting employers from withholding wages, and governing employers payment of wages and vacation time following an employee’s separation. LB916 seeks to prohibit retaliation or discrimination by an employer against an employee or applicant for employment because they filed a complaint under the Wage and Hour Act or the Wage Payment and Collection Act, or participated in any other action (e.g. testifying, assisting, or participating in an investigation, proceeding, or action) regarding a violation of either Act. Testimony in opposition to LB916 raised the concern that the Act would create opportunities for frivolous litigation against employers, as existing state law already provides employees with protections from the concerns LB916 addresses.
LB1014—Discriminatory Wage Practices: LB1014 attempts to address the discrepancy in pay between men and women. Most notably, this bill expands the standard of equal pay for equal work to mandate employers provide equal pay for comparable work. The bill defines comparable work as, "work that is substantially similar in that it requires substantially similar skill, effort, and responsibility and is performed under similar working conditions." Additionally, the bill provides incentives for employers to evaluate current pay practices. The bill provides an employer an affirmative defense to liability for pay discrimination if the employer has completed an evaluation of its pay practices in good faith and can demonstrate that reasonable progress has been made toward eliminating pay disparity based on sex in accordance with the evaluation. To this end, LB1014 directs the Nebraska Equal Opportunity Commission to create a model self-evaluation of pay practices form to assist employers in eliminating wage discrepancy. Lastly, LB1014 prohibits employers from requiring nondisclosure by an employee of wages or using coercion, intimidation, or threats to discourage disclosure. The bill prohibits an employer from taking an adverse employment action against an employee for disclosing wages. LB1014 provides an employee with remedies for an employer’s violation of the act, which includes money damages, attorney fees, reinstatement, back pay and restoration of lost service credit. Testimony in opposition to LB1014 noted that the bill dramatically increases financial penalties for employers found liable for pay discrimination while raising the standard from "equal pay for equal work" to equal pay for "comparable work." Notably, under LB1014, managers could be charged criminally.
LB1134—Nebraska WARN Act: This bill would establish the Nebraska Worker Adjustment and Retraining Notification Act. The Act covers employers with twenty-five or more full-time employees and requires employers to give sixty days’ notice to employees of either 1) any reasonably foreseeable shutdown of a single site of employment, or 2) any layoff resulting in the loss of twenty-five or more full-time employees at a single employment site. The bill provides that loss of employment includes: 1) termination other than discharge for cause, voluntary separation, or retirement, 2) a layoff exceeding six months, or 3) a reduction of hours of more than fifty percent during each month for six months. LB1134 provides exceptions to the notice requirements in the case of a shutdown where the employer is actively seeking new business or finances in order to avoid the shutdown. The bill provides employees may receive back pay and benefits for employer violations.
As of today, the Committee has not taken action on any of the bills and none have been designated as priority by the Nebraska Unicameral. We will keep you informed as the unicameral proceeds. If you have questions or would like to discuss any of the above pending legislation, or need assistance in reviewing current policies or procedures, please contact a member of our Employment, Labor and Benefits Practice Group.