§ 48-106 — Employer; coverage of act; excepted occupations; election to provide compensation

Nebraska § 48-106

• Jurisdiction: Nebraska
• Ch. 48: Labor

Text

(1) The Nebraska Workers' Compensation Act shall apply to the State
of Nebraska, to every governmental agency created by the state, and, except
as provided in this section, to every resident employer in this state and
nonresident employer performing work in this state who employs one or more
employees in the regular trade, business, profession, or vocation of such
employer.
(2) The act shall not apply to:
(a) A railroad company engaged in interstate or foreign commerce;
(b) Service performed by a worker who is a household domestic servant
in a private residence;
(c) Service performed by a worker when performed for an employer who
is engaged in an agricultural operation and employs only related employees;
(d) Service performed by a worker when performed for an employer who
is engaged in an agricultural operation and employs unrelated employees unless
such service is performed for an employer who during any calendar year employs
ten or more unrelated, full-time employees, whether in one or more locations,
on each working day for thirteen calendar weeks, whether or not such weeks
are consecutive. The act shall apply to an employer thirty days after the
thirteenth such week; and
(e) Service performed by a person who is engaged in an agricultural
operation, or performed by his or her related employees, when the service
performed is (i) occasional and (ii) for another person who is engaged in
an agricultural operation who has provided or will provide reciprocal or similar
service.
(3) If the employer is the state or any governmental agency created
by the state, the exemption from the act under subdivision (2)(d) of this
section does not apply.
(4) If the act applies to an employer because the employer meets the
requirements of subdivision (2)(d) of this section, all unrelated employees
shall be covered under the act and such employees' wages shall be considered
for premium purposes.
(5) If an employer to whom the act applies because the employer meets
the requirements of subdivision (2)(d) of this section subsequently does not
employ ten or more unrelated, full-time employees, such employer shall continue
to provide workers' compensation insurance coverage for the employees for
the remainder of the calendar year and for the next full calendar year. When
the required coverage period has expired, such employer may elect to return
to exempt status by (a) posting, continuously in a conspicuous place at the
employment locations of the employees for a period of at least ninety days,
a written or printed notice stating that the employer will no longer carry
workers' compensation insurance for the employees and the date such insurance
will cease and (b) thereafter no longer carrying a policy of workers' compensation
insurance. Failure to provide notice in accordance with this subsection voids
an employer's attempt to return to exempt status.
(6) An employer who is exempt from the act under subsection (2) of this
section may elect to bring the employees of such employer under the act. Such
election is made by the employer obtaining a policy of workers' compensation
insurance covering such employees. Such policy shall be obtained from a corporation,
association, or organization authorized and licensed to transact the business
of workers' compensation insurance in this state. If such an exempt employer
procures a policy of workers' compensation insurance which is in full force
and effect at the time of an accident to an employee of such employer, such
procurement is conclusive proof of the employer's and employee's election
to be bound by the act. Such an exempt employer who has procured a policy
of workers' compensation insurance may elect to return to exempt status by
(a) posting, continuously in a conspicuous place at the employment locations
of the employees for a period of at least ninety days, a written or printed
notice stating that the employer will no longer carry workers' compensation
insurance for the employees and the date such insurance will cease and (b)
thereafter no longer carrying a policy of workers' compensation insurance.
Failure to provide notice in accordance with this subsection voids an employer's
attempt to return to exempt status.
(7) Every employer exempted under subdivision (2)(d) of this section
who does not elect to provide workers' compensation insurance under subsection
(6) of this section shall give all unrelated employees at the time of hiring
or at any time more than thirty calendar days prior to the time of injury
the following written notice which shall be signed by the unrelated employee
and retained by the employer: "In this employment you will not be covered
by the Nebraska Workers' Compensation Act and you will not be compensated
under the act if you are injured on the job or suffer an occupational disease.
You should plan accordingly." Failure to provide the notice required by this
subsection subjects an employer to liability under and inclusion in the act
for any unrelated employee to whom such notice was not given.
(8) An exclusion from coverage in any health, accident, or other insurance
policy covering a person employed by an employer who is exempt from the act
under this section which provides that coverage under the health, accident,
or other insurance policy does not apply if such person is entitled to workers'
compensation coverage is void as to such person if such employer has not elected
to bring the employees of such employer within the act as provided in subsection
(6) of this section.
(9) For purposes of this section:
(a) Agricultural operation means (i) the cultivation of land for the
production of agricultural crops, fruit, or other horticultural products or
(ii) the ownership, keeping, or feeding of animals for the production of livestock
or livestock products;
(b) Full-time employee means a person who is employed to work one-half
or more of the regularly scheduled hours during each pay period; and
(c) Related employee means a spouse of an employer and an employee related
to the employer within the third degree by blood or marriage. Relationship
by blood or marriage within the third degree includes parents, grandparents,
great grandparents, children, grandchildren, great grandchildren, brothers,
sisters, uncles, aunts, nephews, nieces, and spouses of the same. If the employer
is a partnership, limited liability company, or corporation in which all of
the partners, members, or shareholders are related within the third degree
by blood or marriage, then related employee means any employee related to
any such partner, member, or shareholder within the third degree by blood
or marriage.

Legislative History

Source: Laws 1913, c. 198, § 6, p. 580; R.S.1913, § 3647; Laws 1917, c. 85, § 1, p. 199; C.S.1922, § 3029; Laws 1927, c. 134, § 1, p. 363; C.S.1929, § 48-106; R.S.1943, § 48-106; Laws 1945, c. 111, § 1, p. 356; Laws 1957, c. 202, § 1, p. 707; Laws 1971, LB 572, § 5; Laws 1972, LB 1298, § 1; Laws 1986, LB 811, § 26; Laws 2002, LB 417, § 1; Laws 2003, LB 210, § 1; Laws 2005, LB 13, § 1; Laws 2009, LB630, § 1; Laws 2010, LB829, § 1. Annotations: 1. State and governmental agencies 2. Regular trade or business of employer 3. Railroad companies 4. Farm laborers 5. Employment in this state 6. Applicability of act 7. Miscellaneous 1. State and governmental agencies An enlisted member of the National Guard is not an employee within the meaning of the Workmen's Compensation Act. Lind v. Nebraska National Guard, 144 Neb. 122, 12 N.W.2d 652 (1944). State intended to waive its sovereignty and give its consent to be sued in actions arising under the Workmen's Compensation Act, but Legislature failed to provide manner for service of process. Anstine v. State, 137 Neb. 148, 288 N.W. 525 (1939). One engaged by village to care for swimming pool and surrounding park is an employee within Workmen's Compensation Act. Schou v. Village of Hildreth, 127 Neb. 784, 257 N.W. 70 (1934). Firemen of city of Omaha are in the service of a governmental agency and within act. Shandy v. City of Omaha, 127 Neb. 406, 255 N.W. 477 (1934). County letting contract without requiring contractor to furnish insurance policy protecting contractor's employees, is jointly liable with contractor to its employee who received compensable injury. Standish v. Larsen-Merryweather Co., 124 Neb. 197, 245 N.W. 606 (1932). Act applies to Department of Roads and Irrigation. Eidenmiller v. State, 120 Neb. 430, 233 N.W. 447 (1930). County was employer of person employed in repairing bridges, although work did not take all his time. Davis v. Lincoln County, 117 Neb. 148, 219 N.W. 899 (1928). 2. Regular trade or business of employer A workman who is injured while working on the residence property of his employer is not within the provisions of the Workmen's Compensation Act. Retzlaff v. Dickinson, 141 Neb. 136, 2 N.W.2d 922 (1942). Where a painter and paperhanger worked for owner on his residence, although he had on occasions worked on rental properties, injury sustained did not arise in the regular trade, business, profession, or vocation of his employer. Burkholder v. Clark, 140 Neb. 590, 300 N.W. 839 (1941). City police officer, injured while transporting passengers to and from trains, is not performing an act within the regular trade, business, or vocation of city, and is not entitled to compensation. Coyne v. City of O'Neill, 139 Neb. 686, 298 N.W. 547 (1941). Where contractor hired truck driver and truck to haul gravel in fulfillment of contract with county, contractor was employer within act. Showers v. Lund, 123 Neb. 56, 242 N.W. 258 (1932). One engaged in buying and shipping poultry in carload lots to distant markets is engaged in business. Claus v. DeVere, 120 Neb. 812, 235 N.W. 450 (1931). Hod-carrier, injured in construction of apartment, was engaged in employer's regular business. Bauer v. Anderson, 114 Neb. 326, 207 N.W. 508 (1926). Caring for buildings owned by person engaged in other business was not regular business, and employee repairing such building was not within Workmen's Compensation Act. Kaplan v. Gaskill, 108 Neb. 455, 187 N.W. 943 (1922). 3. Railroad companies Employee of railroad engaged in interstate commerce is excluded. Chicago, B. & Q. R.R. Co. v. Amack, 112 Neb. 437, 199 N.W. 724 (1924). 4. Farm laborers In keeping with the language of subsection (2) of this section, excepting "employers" of farm and ranch laborers, it is the nature of the employer's business which determines the exception. Larsen v. D B Feedyards, 264 Neb. 483, 648 N.W.2d 306 (2002). The nature of the employer's business determines the applicability of the farm laborer exemption, and the work performed by the employee does not. One employer may engage in two separate businesses, one subject to the workers' compensation law and one exempt. Bartunek v. Becker, 222 Neb. 126, 382 N.W.2d 300 (1986). Under the provisions of subsection (2) of this section, it is the nature of the employer's business which determines the exemption, and not the work performed by the employee. Employers of farm or ranch laborers are generally exempt from the provisions of the Nebraska Workmen's Compensation Act, and farm or ranch laborers injured while employed by one operating a farm or ranch are not entitled to receive any of the benefits of the Nebraska Workmen's Compensation Act. Leppert v. Parker, 218 Neb. 63, 352 N.W.2d 180 (1984). The whole character of an employee's employment must be considered to determine whether an employee is a farm laborer within the meaning of the Workmen's Compensation Act, and an employee who works 45 hours per week performing the duties of cleaning pens, feeding livestock, plowing, disking, and building fences and pens on defendant's farm is a farm laborer within the act. The employee failed to meet the burden of showing that the classification of farm laborers as being exempt from the Workmen's Compensation Act's coverage had no rational basis, and therefore failed to overcome the presumption that said classification does not violate the equal protection clause of the fourteenth amendment to the U.S. Constitution. Otto v. Hahn, 209 Neb. 114, 306 N.W.2d 587 (1981). Employer engaged in custom combining for public as a regular commercial business is not an employer of farm or ranch laborer. Hawthorne v. Hawthorne, 184 Neb. 372, 167 N.W.2d 564 (1969). Employer of farm or ranch labor, by the act of obtaining workmen's compensation insurance, becomes an employer within meaning of this section. Imus v. Bead Mountain Ranch, Inc., 183 Neb. 343, 160 N.W.2d 171 (1968). A group of farmers operating a commercial hay grinding business was not exempt from liability. Campos v. Tomoi, 175 Neb. 555, 122 N.W.2d 473 (1963). Employer of farm labor may elect to come under act. Keith v. Wilson, 165 Neb. 58, 84 N.W.2d 192 (1957). Employee of livestock sales barn was not a farm or ranch laborer. Gruber v. Stickelman, 149 Neb. 627, 31 N.W.2d 753 (1948). Whole character of employment must be looked to to determine whether person is farm laborer; person employed to operate a bulldozer was not. Oliver v. Ernst, 148 Neb. 465, 27 N.W.2d 622 (1947). A carpenter employed by a farmer to construct a machine shed on farm did not make carpenter a farm laborer so as to exclude him from benefit of act. Guse v. Wessels, 132 Neb. 41, 270 N.W. 665 (1937). Cooperative threshing association, though threshing for others, was included within the term employers of farm laborers. Keefover v. Vasey, 112 Neb. 424, 199 N.W. 799 (1924). 5. Employment in this state The Nebraska Workmen's Compensation Act is not applicable where a resident employee's employment by a nonresident employer for services to be performed outside the state was neither in nor incidental to any trade, business, profession, or vocation carried on by the employer in this state. Jensen v. Floair, Inc., 211 Neb. 403, 318 N.W.2d 870 (1982). Action may be maintained against nonresident employer performing work in this state. Rapp v. Hale, 170 Neb. 620, 103 N.W.2d 851 (1960). Where headquarters of employer, industry in which engaged, and residence of employee all are in Nebraska, proceedings for compensation for total injury are maintainable hereunder. Esau v. Smith Bros., 124 Neb. 217, 246 N.W. 230 (1933). Courts of Nebraska are without jurisdiction where plaintiff's employment was not in, or incidental to, any industry conducted in Nebraska. Freeman v. Higgins, 123 Neb. 73, 242 N.W. 271 (1932). Workmen, engaged in Nebraska by Kansas employer, not engaged in business in Nebraska, to work in Kansas, are not within Nebraska Workmen's Compensation Act. Watts v. Long, 116 Neb. 656, 218 N.W. 410 (1928). Employee, resident of Nebraska, contracting to perform labor in Iowa for Nebraska corporation and injured in Iowa, was within Nebraska Workmen's Compensation Act. McGuire v. Phelan-Shirley Co., 111 Neb. 609, 197 N.W. 615 (1924). Pursuant to subdivision (2) of section 48-115, under the Nebraska Workers' Compensation Act, an "employee" or "worker" is defined as every person in the service of an employer who is engaged in any trade, occupation, business, or profession as described in this section under any contract of hire, expressed or implied, oral or written. Morin v. Industrial Manpower, 13 Neb. App. 1, 687 N.W.2d 704 (2004). 6. Applicability of act Pursuant to subdivision (2) of section 48-114, employers subject to the Nebraska Workers' Compensation Act include every person, firm, or corporation who is engaged in any trade, occupation, business, or profession as described in this section, and who has any person in service under any contract of hire, express or implied, oral or written. Morin v. Industrial Manpower, 13 Neb. App. 1, 687 N.W.2d 704 (2004). Pursuant to subsection (1) of this section, the Nebraska Workers' Compensation Act applies to every employer in this state, including nonresident employers performing work in this state, employing one or more employees, in the regular trade, business, profession, or vocation of such employer. Morin v. Industrial Manpower, 13 Neb. App. 1, 687 N.W.2d 704 (2004). 7. Miscellaneous The Nebraska Workers' Compensation Act does not affect an insurance agent's duty to act with reasonable care, and the same is true for insurance brokers. Merrick v. Fischer, Rounds & Assocs., 305 Neb. 230, 939 N.W.2d 795 (2020). An employee's illegal residence or work status does not bar an award of indemnity for permanent total loss of earning capacity. Moyera v. Quality Pork Internat., 284 Neb. 963, 825 N.W.2d 409 (2013). The fact that the employer is engaged in farming does not remove from the coverage of the workers' compensation laws other businesses or occupations carried on by the employer which are otherwise under the coverage of those laws. Bartunek v. Becker, 222 Neb. 126, 382 N.W.2d 300 (1986). The statutory employer provisions of section 48-116 do not supersede the exemption provisions of subsection (2) of this section. Nussbaum v. Wright, 217 Neb. 712, 350 N.W.2d 559 (1984). One employer may operate two different businesses, one subject to the workmen's compensation law and one exempt, and obtain workmen's compensation insurance for the business which is subject to the law, without by that act triggering the election of coverage provisions of the Workmen's Compensation Act. Brown v. Leavitt Lane Farm, 215 Neb. 522, 340 N.W.2d 4 (1983). Where plaintiff was injured while engaged in improvement work on the Missouri River, Workmen's Compensation Act provided exclusive remedy. Belk v. Massman Construction Co., 133 Neb. 303, 275 N.W. 76 (1937). Subcontractor is the only employer of employee injured in line of his duties. Boyd v. Humphreys, 117 Neb. 799, 223 N.W. 658 (1929). Corporation subject to compensation is liable for injury to workman employed by independent contractor agreeing to protect corporation against liability for injuries to workmen, where such contractor was not required to procure insurance to protect his employees. Sherlock v. Sherlock, 112 Neb. 797, 201 N.W. 645 (1924). Noninsuring employer is liable either for damages at common law or for compensation, at option of employee. Avre v. Sexton, 110 Neb. 149, 193 N.W. 342 (1923). An insurance agent does not have an affirmative duty to tell an employer about the written notice and signature provisions contained in subsection (7) of this section. Hansmeier v. Hansmeier, 25 Neb. App. 742, 912 N.W.2d 268 (2018).