The Valid Defenses to Wrongful Termination in Nebraska

What a business needs to prove in employment litigation

Nebraska is considered an at-will state when it comes to employment, meaning that when your business hires a worker, either side can walk away from the relationship at any time with or without cause. Of course, if you elect to sign an employment agreement with the worker, then that agreement may modify your ability to terminate or end the relationship. And even in a pure at-will situation, there are still a variety of federal and state anti-discrimination laws you need to follow.

Indeed, there are many cases where a disgruntled former employee may sue you for wrongful termination, a catch-all term that encompasses a variety of legal claims ranging from breach of contract to illegal race discrimination. If you end up as a defendant in such a case, what can you do to defend yourself?

Does the Law Actually Apply to Your Business?

Most federal and state employment discrimination laws exempt very small firms. For instance, the Nebraska Fair Employment Practice Act (NFEPA)—which prohibits discrimination on the basis of race, color, national origin, religion, sex, disability, or marital status—only covers private businesses with at least 15 employees. So if your company only employs, say, five people, you cannot be sued for wrongful termination under the NFEPA. “Businesses sometimes overlook the many ways in which the at-will employment doctrine is restricted by various state and federal employment laws. The NFEPA has been expanded over the last several years,” says Catherine A. Cano, an employment litigation attorney at Jackson Lewis in Omaha. “For example, Nebraska now requires pregnancy accommodation and prohibits retaliation against employees for discussing wages—subject to some exceptions. Another unique feature of the NFEPA is that it prohibits retaliation against employees for opposing or refusing to carry out any unlawful action under state or federal law.”

Was There a Legitimate, Nondiscriminatory Reason for Firing the Employee?

Many times, a former employee believes that some form of discrimination led to their firing, even though the employer actually had a valid reason for ending the employment relationship. As a defense to a wrongful termination claim, the employer can offer evidence of this legitimate, nondiscriminatory motive. For example, maybe the employee was simply doing a poor job. Alternatively, the employee lacked a necessary qualification, such as an occupational license—or perhaps your sales are down and you simply decided to lay off staff to cut costs.

As the employer, you need to adequately document the reasons for letting an employee go. You should also maintain an employee handbook or similar document that spells out the process for disciplining and terminating employees. Additionally, you need to train your managers and other supervisory personnel on how to carry out whatever policies you establish.

Did You Actually Follow Your Own Procedures?

“Businesses should be proactive in training and educating their employees on positive workplace interactions and steps to avoid discrimination and harassment,” Cano says. “These proactive steps are integral to avoiding wrongful termination litigation in the first place and encouraging appropriate workplace behavior.” In some cases, Nebraska courts will find that the existence of a handbook or written employment policies creates an implied employment agreement that overrides the normal at-will rule. So even if you avoid an employment discrimination complaint, you could still face a breach of contract claim based on an alleged failure to follow your own policies and procedures.

This is why it is a good idea to periodically review all of your employee policies with an experienced Nebraska employment litigation attorney. They can help you be proactive in avoiding potential wrongful termination claims through the adoption and enforcement of appropriate procedures that comply with federal and Nebraska laws.

“In the event litigation ensures, it can take years to work through the court system. In the interim, memories fade and employees come and go. These issues can make it difficult to defend wrongful termination lawsuits if businesses don’t take appropriate measures at the outset of the dispute,” says Cano.” Working with legal counsel to investigate the claim is critical. This might include obtaining written statements from key players, identifying and preserving key documents and information, and analyzing the employment relationship with the individual.”

For more information on this area of law, see our overview of wrongful termination.

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