Nebraska Paid Sick Leave Initiative: What Employers Need to Know

As the 2024 elections approach, several ballot initiatives are gaining momentum in Nebraska, with one particular initiative standing out - the Paid Sick Leave for Nebraskans. This initiative, if passed by the majority of Nebraska voters in November 2024, would significantly impact employers across the state. Here's what employers need to know to prepare for this potential change.

Key Provisions of the Paid Sick Leave Initiative:

1. Accrual of Paid Sick Leave: Under this initiative, all Nebraska businesses would be required to offer paid sick leave to employees. Employees would earn one hour of paid sick leave for every 30 hours worked.

2. Carryover of Unused Leave: Employees may carry over unused paid sick leave to the following year, but it should not exceed the maximum number of hours specified in the policy.

3. Protection from Retaliation: The initiative would put into law the ability for employees to earn and use paid sick days without retaliation.

4. Effective Date: If passed, paid sick leave would go into effect on October 1, 2025.

5. Exemptions: This policy would not interfere with collective bargaining agreements, contracts, or policies that provide employees with more generous paid sick time. It also does not apply to federal, state, or county employees.

Who Benefits:

Paid sick leave is aimed at benefiting working families and businesses alike. It ensures that employees do not have to choose between their paycheck and their family's health. It applies to full-time, part-time, and temporary employees. Businesses can benefit because paid sick leave may help attract a qualified workforce to the many open jobs across Nebraska, including appealing to workers from other states.   

Leave Entitlements:

Under the proposal, the amount of paid sick leave employees would earn varies depending on the size of the employer:

• For employers with fewer than 20 employees, workers may earn up to five days of paid sick leave per year.

• For employers with 20 or more employees, workers may earn up to seven days of paid sick leave per year.

Funding and Support:

The Paid Sick Leave for Nebraskans initiative has gained significant funding support, raising more than $1.7 million since its launch in July. The Sixteen Thirty Fund, a national organization supporting social change goals, has contributed over $1.6 million to the campaign. Local groups such as the Nebraska Appleseed Action Fund, the Women's Fund of Omaha, the Civic Engagement Table, the ACLU of Nebraska Foundation, and Raise the Wage Nebraska have also supported the campaign.

Implications for Employers:

Employers in Nebraska should be aware of the potential changes brought about by the Paid Sick Leave for Nebraskans initiative. If the initiative passes, businesses will need to adjust their policies and practices to comply with the new paid sick leave requirements. This may include implementing a tracking system for accrued leave, ensuring compliance with carryover limits, and updating company policies to prevent retaliation against employees for using paid sick leave.

In conclusion, the Paid Sick Leave for Nebraskans initiative has the potential to impact employers significantly. With fundraising support and growing public interest, this initiative could change the landscape of paid leave in the state. Employers should stay informed about the progress of this initiative and be prepared to adapt their policies accordingly if it becomes law in Nebraska.

Tips & Tricks to Keep your Leaders Informed of the Changes in Employment Law

Keeping your leaders informed about changes in employment law is crucial to ensure your organization remains compliant and minimizes legal risks. This month, ES Law released our first quarterly newsletter to ensure you stay updated with legal insights and updates you can find here. Here are some tips and tricks to help you effectively communicate and educate your leadership team about employment law changes:

Establish a Regular Update Schedule:

• Create a consistent schedule for providing updates on employment law changes. This could be monthly, quarterly, or as needed based on the frequency of legal changes in your jurisdiction.

Use Multiple Communication Channels:

• To disseminate information, utilize various communication channels such as email, newsletters, meetings, and intranet portals. Leaders may prefer different communication modes, so ensure information is accessible in multiple formats.

Tailor Information to Their Needs:

• Customize your updates to the specific needs and interests of your leadership team. Highlight how employment law changes may impact their departments or areas of responsibility.

Provide Clear Summaries:

• Condense complex legal jargon into clear, concise summaries that are easy for non-legal professionals to understand. Use bullet points, charts, and examples to illustrate key points.

Include Real-life Scenarios:

• Share real-life case studies or scenarios demonstrating how employment law changes can impact the organization. This can make the information more relatable and actionable.

Offer Training and Workshops:

• Organize training sessions or workshops focused on employment law updates. Invite legal experts or consultants to provide in-depth explanations and answer questions.

Create a Resource Library:

• Maintain a central repository of resources related to employment law changes. This could include legal documents, reference guides, and links to relevant government websites.

Encourage Questions and Discussion:

• Foster an environment where leaders feel comfortable asking questions and discussing concerns related to employment law changes. Create a designated point of contact for inquiries.

Provide Legal Updates in Context:

• Explain how employment law changes fit into the broader legal landscape and organizational goals. This can help leaders see the relevance and importance of staying informed.

Highlight Potential Risks and Mitigation Strategies:

• Clearly outline any potential risks or liabilities associated with non-compliance and suggest mitigation strategies.

Stay Proactive, Not Reactive:

• Don't wait until a legal issue arises to inform your leaders. Provide updates proactively so they can take preventive actions.

Seek Legal Counsel:

• Work closely with your organization's legal counsel or an employment law expert. They can provide guidance on which updates are critical and how to communicate them effectively.

Feedback Loop:

• Encourage leaders to provide feedback on the effectiveness of your communication and training efforts. Use this feedback to improve your approach continually.

Stay Updated Yourself:

• As the person responsible for communicating employment law changes, ensure you stay up-to-date with the latest developments. Attend legal seminars, subscribe to legal newsletters, and network with other HR professionals.

Legal Compliance Alerts:

• Consider subscribing to legal compliance alert services that provide timely notifications of changes in employment law. These can be invaluable for staying ahead of legal updates.

By implementing these tips and tricks, you can help ensure that your leaders are well-informed about changes in employment law and that your organization remains compliant and prepared for any legal challenges. If you find this list helpful, you can sign up for more insights delivered directly to your inbox quarterly by visiting our Employment Newsletter page.

Nebraska Minimum Wage to Increase January 1, 2023 – Must Know Info for Employers

Nebraska voters approved a ballot measure in November to increase the minimum wage in steps each January 1 from 2023 through 2026. On January 1, 2023, the minimum wage will increase from its current $9.00 per hour to $10.50 per hour. Employers must be aware of this change and must comply with it in paying their employees.

The minimum wage for Nebraska employees will increase according to the following schedule:

• January 1, 2023, will increase to $10.50 per hour

• January 1, 2024, will increase to $12.00 per hour

• January 1, 2025, will increase to $13.50 per hour

• January 1, 2026, will increase to $15.00 per hour

This increase in Nebraska’s minimum wage standards follows a trend among many states throughout the country of raising their minimums. Moving forward, Nebraska’s minimum wage will be tied to the consumer price index, or CPI, which measures the average change over time in prices paid by urban consumers for consumer goods and services, influencing inflation.

There are minimal exceptions to the minimum wage, and compliance with wage laws can get complicated. Given penalties and liability risks for non-compliance, it is vitally important that employers understand these laws and have clear policies to meet them. Bonnie Boryca and E|S’s employment attorneys are well-versed in these laws and happy to assist in compliance reviews for employers in Nebraska. Bonnie can be reached at 402-397-2200 or boryca@eslaw.com.

‘Patient Safety Near Miss’ Justifies Termination Without Age or Disability Discrimination Liability

After a university dismissed a member of its medical residency program, she sued for wrongful termination and alleged she had been a victim of age discrimination under the Age Discrimination in Employment Act (ADEA) and the Nebraska Fair Employment Practices Act (NFEPA) as well as disability discrimination and retaliation under both under the Americans with Disabilities Act (ADA) and the NFEPA. The U.S. 8th Circuit Court of Appeals (which covers Nebraska employers) recently upheld the dismissal of her claims without a trial, however, affirming a U.S. District Court for the District of Nebraska ruling.

Facts

Dr. Mary E. Canning, age 57, became an internal medicine resident at Creighton University in July 2015. During the first year of residency, she scored in the lowest 15 percent in the country on an in-service examination. Several doctors expressed concerns about her basic skills and level of competence, including memory issues.

After reviewing each resident's progress, a committee determined Canning hadn’t evolved in several areas, making it necessary for her to repeat the first year of residency. The panel let her know she was being placed on a leave of absence with pay until a fitness-for-duty evaluation could be conducted proving she was safe for patient care. She also was told her residency contract wouldn’t be renewed regardless of the evaluation’s results.

Canning retained counsel who sent the committee members a letter outlining their alleged acts of unlawful discrimination and objecting to her participation in the fitness-for-duty evaluation. Creighton's counsel in turn offered a firm resolve that she could repeat the first year of residency so long as she agreed to the evaluation and was cleared for duty.

A neuropsychologist evaluated Canning and found her to be in good mental health. The fitness-for-duty evaluation’s results also gave no indications of medical or psychiatric conditions that would preclude her from performing her duties. Therefore, she was permitted to repeat the residency intern year.

Canning continued to struggle academically, showing an inability to complete assessments or improve to the level of what would be expected from a first-year resident. After taking the in-service exam for the second time and scoring in the lowest seven percent in the country, she was placed on probation.

While on probation, Canning made an error that could have affected a patient’s safety. She discharged a patient admitted for a pulmonary embolism without providing a prescription for an anticoagulant. Her supervisors had previously reviewed the discharge plan with her and instructed her to prescribe the anticoagulant.

Canning admitted the error was “extremely serious.” The committee let her know she had been dismissed from the residency program, pointing to the “significant patient safety near miss” as its reason.

Resident’s claims and lawsuit

After Canning sued for age and disability discrimination and retaliation, Creighton offered nondiscriminatory reasons for terminating her from the residency program by thoroughly documenting her:

·         Lack of medical knowledge;

·         Substandard clinical skills; and

·         Inability to perform a first-year internal medicine resident's duties in a timely fashion.

The documentation showed Canning’s performance in the residency program lacked progression and was at the minimum standards expected of a first-year resident. Creighton argued it “had a right—if not an obligation—to respond to an act or omission affecting patient safety with termination of the responsible individual.”

Creighton asked for summary judgment (dismissal without a trial), and the district court agreed, concluding there wasn’t enough evidence for a jury ever to rule in Canning’s favor. She appealed.

On appeal, Canning argued the district court erred when it concluded no rational fact-finder ever could conclude her termination was motivated by age, but the 8th Circuit affirmed the ruling. It pointed out Creighton produced a legitimate, nondiscriminatory reason for the termination by explaining she had made an “egregious” error affecting patient safety in spite of “supervisor and attending efforts.”

Thus, Creighton satisfied its burden. To rebut the reason, Canning needed to show it was pretextual (or a cover-up for illegal discrimination). But, the 8th Circuit agreed with the district court that her proof had fallen short.

Bottom line

Sensitivity to an employee’s potential or actual disabilities is a good practice and required by the law in terms of considering accommodations. Often, older employees’ age may lead to the question of disabilities. But safety concerns, particularly in the medical arena, will often be paramount and provide justification for dealing with an employee’s errors that threaten the safety of a patient (or coworker, client, customer, or the public).

Bonnie M. Boryca is an attorney with Erickson│Sederstrom, P.C., in Omaha, Nebraska. You can reach her at 402-397-2200 or boryca@eslaw.com.