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In This Issue

Register Now for Clerks, Election Commissioners, Register of Deeds Workshop 

Recycling Equipment Grants Available for 2014   

Budget Workshop Cancelled for 2014  

Real Property Value Percentage Change  

Legal Line 

U.S. Communities  

Order NACO's 2014 Directory of County Officials Now  

County Government Day PowerPoint 

2013 County Board Handbook and Revisions  

News From NACo 

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News Across the State

County Classifieds 

Legal Calendar 

Associate & Sustaining Members 

NACO Education Foundation Memorial Program 

The Nebraska State Recycling Association (NSRA) has grant funds available for municipalities, other government entities, non-profits and recycling companies (for example, waste haulers) who wish to purchase recycling equipment.  Interested parties should go to www.recyclenebraska.org and call Deb Rost at 402-933-3059 in Omaha for more information. Grants can help fund the purchase of recycling trailers, semi trailers, carts, dumpsters, balers, forklifts, trucks and more. Equipment may be new, used or in need of refurbishing.  Grants will be awarded until the funds are depleted. This is a quick-turnaround program where application-to-approval is usually accomplished in approximately a month.

This grant is one of 132 projects that will receive $21,750,000 in grant awards from the Nebraska Environmental Trust. The Trust has awarded more than $213 million to over 1,600 natural resource projects in Nebraska since 1994, and the grants are funded by proceeds from the Nebraska Lottery.

The Nebraska State Recycling Association is a membership organization of public and private organizations as well as citizens, and has been a recycling advocate for Nebraska since 1980. 

Editor's Note: Legal Line is a feature that will periodically appear in NACO E-Line. This edition has been prepared by Elaine Menzel of the NACO legal staff. Legal Line is not intended to serve as legal advice. Rather, it is published to alert readers to court decisions and legal or advisory matters important to county government. For a specific opinion on how the information contained in this article or that which will be discussed in future issues relates to your county, consult your county attorney or personal counsel. 

Supreme Court Decides Employment Case While counties as employers do not pay commissions to their employees, the case of Coffey v. Planet Group, Inc.  287 Neb. 834, ---  N.W. 2d --- (2014), is of potential interest due to the Supreme Court's consideration  of employment law  issues that do pertain to county employees.  For example, the court considered employment at-will factors and provisions of the Wage Payment and Collection Act (Wage Act - Neb. Rev. Stat.§§ 49-1228-48-1232).

The Coffey case grew out of a situation involving a former employee seeking commissions that were ongoing at the time of his termination.

In light of the claims related to commissions due, the court discussed that the Wage Act had been amended by the Legislature following the Court's decision in Roseland v. Strategic Staff Mgmt,  272 Neb. 434, 722 N.W.2d 499 (2006).  Currently, section 48-1229(4) states in part:

Wages means compensation for labor or services rendered by an employee, including fringe benefits, when previously agreed to and conditions stipulated have been met by the employee, whether the amount is determined on a time, task, fee, commission, or other basis. Paid leave, other than earned but unused vacation leave, provided as a fringe benefit by the employer shall not be included in the wages due and payable at the time of separation, unless the employer and the  employee  or  the  employer  and the collective-bargaining representative have specifically agreed otherwise. Unless the employer and employee have specifically agreed otherwise through a contract effective at the commencement of employment or at least ninety days prior to separation, whichever is later, wages includes commissions on all orders delivered and all orders on file with the employer at the time of separation of employment less any orders returned or canceled at the time suit is filed.

Modifications by the Legislature to the Wage Act included language to fringe benefits, unused vacation leave and when commissions become payable.  The Court's focus on this statutory provision related to commissions and when they are earned by an employee.

In another claim, the terminated employee asserted that although employees are terminable at will they still have a good faith and fair dealing claim if the employer wrongfully acts to defeat the employee's expectations.  The court disagreed with this claim after stating:

The implied covenant of good faith and fair dealing exists in every contract and requires that none of the parties to the contract do anything which will injure the right of another party to receive the benefit of the contract.  The nature and extent of an implied covenant of good faith and fair dealing are measured in a particular contract by the justifiable expectations of the parties.  Where one party acts arbitrarily, capriciously, or unreasonably, that conduct exceeds the justifiable expectations of the second party. A violation of the covenant of good faith and fair dealing occurs only when a party violates, nullifies, or significantly impairs any benefit of the contract.  The scope of conduct prohibited by the covenant of good faith is circumscribed by the purposes and express terms of the contract. (Citations omitted.)

In this case, the contract between the terminated employee and the employer was the Compensation Plan signed by both parties as part of the terminated employee's employment. In his amended complaint, the terminated employee alleged that the employer ended his employment in bad faith to avoid paying additional commissions under the Wage Act.

The court articulated employment at-will policy as follows:

Unless constitutionally, statutorily, or contractually prohibited, an employer, without incurring liability, may terminate an at-will employee at any time with or without reason. We recognize, however, a public policy exception to the at-will employment doctrine. Under the public policy exception, an employee can claim damages for wrongful discharge when the motivation for the firing contravenes public policy. The public policy exception is

restricted to cases when a clear mandate of public policy has been violated, and it should be limited to manageable and clear standards. In determining whether a clear mandate of public policy is violated, courts should inquire whether the employer's conduct contravenes the letter or purpose of a constitutional, statutory, or regulatory provision or scheme. (Trosper v. Bag N' Save, 273 Neb. 855, 734 N.W.2d 704 (2007).

In Trosper, the court evaluated whether a discharged employee had a cause of action for retaliatory demotion when an employer demoted an employee for filing a worker's compensation claim.  Additionally, the court stated the following principles:

We have addressed whether a public policy exception to the at-will employment doctrine should apply in several cases.  We have previously recognized public policy exceptions when a statute prohibits an employer from discharging an employee. And we have recognized the exception when an employee reports, in good faith, his suspicions that his employer is violating a criminal law. In contrast, we determined that the Nebraska Wage Payment and Collection Act did not "represent a 'very clear mandate of public policy' which would warrant recognition of an exception to the employment-at-will doctrine." That act did not prohibit employers from discharging employees, and it did not provide employees with any substantive rights. Instead, it was primarily remedial, providing an enforcement mechanism for rights that already exist. (Citations omitted.)

Prior to the Coffey decision, the court has determined that the Wage Act did not

"'represent a "very clear mandate of public policy" which would warrant recognition of an exception to the employment-at-will doctrine.'" (Citations omitted.)  The court stated, "[T]he Wage Act does not prohibit employers from discharging employees, and it does not provide employees with any substantive rights.  Thus, while the Wage Act provides [the terminated employee] with a remedy to collect any compensation which [the employer] may owe him, it does not "declare '"an important public policy with such clarity as to provide a basis for a civil action for wrongful discharge."'"  (Citations omitted.)

The court concluded, as a matter of law, the terminated employee could not prove a bad faith claim based on his termination as an at-will employee, because there was no evidence of a public policy violation. His only avenue for recovery was a breach of contract claim.

For the full text of the Coffey opinion, click here 

Mental Health Parity:  What it Means for Counties as Providers

Thursday, May 8, 2014, 2-3:15 p.m. EST

To register for this webinar, click here.

Sustainable Waste Management Strategies for Counties

Thursday, May 15, 2014, 2-3:15 p.m. EST

To register for this webinar, click here.