Kansas City, Mo./Wichita, Ks. (January 23, 2023) – There were a series of changes to the labor and employment laws of Nebraska and Oklahoma in 2022. In Cornhusker State, these changes were initiated through ballot initiatives, legislation passed by the unicameral Nebraska and case law decided by the Court Nebraska Supreme. Similarly, in the Sooner State, several new pieces of legislation have been enacted that will impact both public and private employers. The highlights of last year’s largest labor and employment law changes in these two states are summarized below.
Nebraska Labor and Employment Law Update
In 2022, Nebraska voters approved Initiative 433, a constitutional amendment, that will gradually raise the state’s $9-an-hour minimum wage to $15 an hour by 2026. Over the next four years, Nebraskas will see an increase in hourly wages of the following:
- $10.50 effective January 1, 2023 through December 31, 2023;
$12.00 effective January 1, 2024 through December 31, 2024;
- $13.50 effective January 1, 2025 through December 31, 2025; And
- $15.00 effective January 1, 2026 through December 31, 2026.
Beginning January 1, 2027, the state’s minimum hourly wage will have an annual cost-of-living adjustment tied to the consumer price index.
COVID-19 vaccine exemptions
On February 28, 2022, Governor Ricketts signed into law bill 906, which allows employees to apply for a vaccine exemption to any COVID-19 vaccine mandates implemented by their employer. Any employee requesting a COVID-19 vaccine waiver must obtain a form from the Nebraska Department of Health and Human Services, including a statement that:
- A physician, physician assistant, or advanced nurse (“Healthcare Professional”) has provided a signed statement that, in the opinion of the healthcare professional, receiving a COVID-19 vaccine is medically contraindicated for the individual; or
- A healthcare professional has provided a signed written statement that, in the opinion of the healthcare professional, medical necessity requires the individual to delay receiving the COVID-19 vaccine; or
- Receiving a COVID-19 vaccine would conflict with the individual’s sincerely held religious belief, practice, or observation.
New law now requires employers to allow exempt employees to opt out of any COVID-19 vaccine policy if that individual brings (1) a completed vaccine waiver form and (2) a copy of a written statement from a worker medical if the exemption is based on the employee’s medical condition. The new law allows employers, at their own expense, to require periodic COVID-19 testing of the exempted employee and also allows employers to require the exempted employee to wear or use personal protective equipment, as long as it is provided by the employer .
Employment of workers under the age of 16
In 2022, the Nebraska legislature relaxed the reporting requirements of employers who hire children under the age of 16. In Nebraska, any employer who hires employees under the age of 16 must keep a certificate of employment and a list of such minors employed within the building on file for the Department of Labor to inspect. Changes to these statutes reduced the number of lists an employer must keep from two to one. The amendments also require that the certificate of employment be approved by the principal of the school where the minor attends, rather than the superintendent of the school.
Increased compensation to public safety officers killed in the line of duty
A 2022 bill passed by the Nebraska Legislature will allow public safety officers to designate certain individuals to receive $250,000 in damages if said public safety officer is killed in the line of duty. Like the minimum wage increase, this amount will also have an annual cost of living adjustment linked to the consumer price index.
Disability discrimination claim precluded by Nebraska Workers Compensation Act
On September 9, 2022, in a first impression case, the Nebraska Supreme Court addressed the exclusivity provisions of the Nebraska Workers’ Compensation Act in the context of a civil lawsuit filed in the District Court under the Nebraska Fair Employment Practice Act (NFEPA ). In the case Dutcher v. Neb. Dep’t of Corr. Servs., 312 Neb. 405, 979 NW2d 245 (2022), the Nebraska Supreme Court held that a district court did not have jurisdiction over an injured employee’s NFEPA claim because the employee’s alleged discrimination under NFEPA was a claim “resulting from” an injury to the knee that was caused by an accident arising out of and in the course of his employment and, therefore, the exclusivity provisions of the Nebraska Workers’ Compensation Act provided the injured employee’s only remedy.
This decision departs from the case law of other jurisdictions that the exclusivity provisions of workers’ compensation laws do not preclude discriminatory claims based on a disability resulting from the personal injury for which workers’ compensation benefits were obtained. The Nebraska Supreme Court noted that workers’ compensation statutes in those jurisdictions generally lack the same “arising from” language found in the Nebraska Workers’ Compensation Act and that those statutes often did not include injury resulting from the willful wrongdoing of a employer like the Nebraska Workers’ Compensation Act yes.
Courts in Nebraska have recognized Neb’s “originated from” language. Rev. Stat. § 48-148 as causality “but for” and that “arising from” refers to a “rational link” between the accident and the occupational injury. The Nebraska courts held that the test, with respect to “arising from occupation” under Neb. Rev. Stat. § 48-101, is whether the act is “reasonably incident thereto, or is a deviation so substantial as to constitute a termination of employment creating the formidable independent risk”. Based on this analysis, the Dutch court held that for the purposes of the Nebraska Workers’ Compensation Act, the employee’s alleged discrimination under the NFEPA was a claim “arising” from the knee injury caused by an accident arising out of and in the course of of his employment.
The Nebraska Supreme Court observed that nothing, in its opinion, should be construed as limiting an employee’s ability to file an allegation with the Equal Opportunity Commission or that discrimination is a rational or logical outcome of a personal injury . However, in this case, the Nebraska Supreme Court found sufficient nexus between the employee’s recoverable work injury and her civil action under the NFEPA that the NFEPA action arose out of her work injury.
Oklahoma Labor and Employment Law Update
House Bill No. 3420 amended the Civil Service and Human Capital Modernization Act and the Oklahoma Personnel Act. Some notable amendments include revising the length of time for which employee grievances must be filed from five business days to 10 and updating whistleblower reporting requirements for agency or employee mismanagement and misuse of state funds or property to be specific to “criminal” misuse.
As regards the reductions in effect, House Bill No. 3420 requires agencies to provide severance packages to affected employees. It also eliminates the requirement that agencies give preference to veterans over non-veterans. Finally, it grants agencies the authority to offer severance pay packages to severance employees who are not subject to the Human Capital Modernization Act or an effective reduction if those employees release all claims against the agency and the State of the United States. Oklahoma.
The Senate Bill No. 1579 allows a school district board of trustees to approve an employee’s request for leave to hold office. Such leave will be without pay, advancement to the minimum wage plan, vested sick leave, personal work leave, or personal leave. In addition, the employee will not accumulate service credits under the Oklahoma Teachers Retirement System while on leave.
Pursuant to the Senate bill n. 1345, employers are authorized to pay wages owed to an employee by deposit with a financial institution of the employee’s choice or into a payroll card account if the employee does not consent to or designate a financial institution.
House Bill 1933 amends Title 40, Section 2-106 by revising the method by which the maximum benefit amount is determined. Effective January 1, 2023, instead of the first factor simply stating “twenty-six (26) times the individual’s weekly benefit amount,” the first factor will read the following:
- If prior to January 1, 2023, twenty-six (26) times the individual’s weekly benefit amount,
- If between January 1, 2023 and January 1, 2025, sixteen (16) times the individual’s weekly benefit amount, or
- If after January 1, 2025, between sixteen (16) and twenty (20) times the weekly benefit amount dependent on the state’s average unemployment insurance claims under Section 3 of the applicable law.
The second factor examined for the purpose of determining the maximum amount of the benefit remains substantially the same.
Work safety law
House Bill 4413, effective November 1, 2022, amended the Employment Security Act to state that a “co-employer” means a professional organization of employers or a client.
The content of this article is intended to provide general guidance on the subject. Specialist advice should be sought regarding the specific circumstances.