§ 48-1114 — Opposition to unlawful practice; participation in investigation; communication regarding employee wages, benefits, or other compensation; discrimination prohibited

Nebraska § 48-1114

• Jurisdiction: Nebraska
• Ch. 48: Labor

Text

(1) It shall be an unlawful employment practice for an employer to discriminate against any of his or her employees or applicants for employment, for an employment agency to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because he or she (a) has opposed any practice made an unlawful employment practice by the Nebraska Fair Employment Practice Act, (b) has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under the act, (c) has opposed any practice or refused to carry out any action unlawful under federal law or the laws of this state, or (d) has inquired about, discussed, or disclosed information regarding employee wages, benefits, or other compensation. This subdivision (d) shall not apply to instances in which an employee who has authorized access to the information regarding wages, benefits, or other compensation of other employees as a part of such employee's job functions discloses such information to a person who does not otherwise have authorized access to such information, unless such disclosure is in response to a charge or complaint or in furtherance of an investigation, proceeding, hearing, or other action, including an investigation conducted by the employer.
(2) Nothing in this subsection or subdivision (1)(d) of this section shall be contrary to applicable state or federal law or:
(a) Create an obligation for any employer or employee to disclose information regarding employee wages, benefits, or other compensation;
(b) Permit an employee, without the written consent of the employer, to disclose proprietary information, trade secret information, or information that is otherwise subject to a legal privilege or protected by law. For purposes of this subdivision, proprietary information does not include information regarding employee wages, benefits, or other compensation;
(c) Permit an employee to disclose information regarding wages, benefits, or other compensation of other employees to a competitor of the employer;
(d) Apply to employers which are exempt from the Nebraska Fair Employment Practice Act under section 48-1102 ;
(e) Permit an employee to discuss information regarding employee wages, benefits, or other compensation during working hours, as defined in existing workplace policies, or in violation of specific contractual obligations; or
(f) Permit an employee to disseminate information regarding employee wages, benefits, or other compensation to the general public. For purposes of this subdivision, general public does not include public officials, judicial officers, legislators, trade associations, or other reasonable third parties for the employee's mutual aid or protection.
(3) The changes made to this section by Laws 2019, LB217, shall not be construed so as to impair or affect the obligation of any lawful contract in existence prior to September 1, 2019.

Legislative History

Source: Laws 1965, c. 276, § 14, p. 788; Laws 1985, LB 324, § 2; Laws 1986, LB 1108, § 2; Laws 1993, LB 360, § 14; Laws 2019, LB217, § 1. Annotations: Employees who complained about coworkers' alleged unlawful practices failed to establish a prima facie case of retaliation because subdivision (1)(c) of this section refers to an unlawful practice of the employer and does not protect an employee's opposition to the unlawful activities of fellow employees. Baker-Heser v. State, 309 Neb. 979, 963 N.W.2d 59 (2021). A plaintiff must establish a prima facie case of retaliation under this section by showing (1) he or she engaged in protected conduct, (2) he or she was subjected to an adverse employment action, and (3) there was a causal connection between the protected conduct and the adverse action. Knapp v. Ruser, 297 Neb. 639, 901 N.W.2d 31 (2017). The unlawful practice, the opposition to which is protected by subsection (3) of this section, is that of the employer and not that of fellow employees. Wolfe v. Becton Dickinson & Co., 266 Neb. 53, 662 N.W.2d 599 (2003). A violation of the provision of the Nebraska Fair Employment Practice Act prohibiting employers from discriminating against an employee who has opposed any practice or refused to carry out any action unlawful under federal or state law must include either the employee's opposition to an unlawful practice of the employer or the employee's refusal to honor an employer's demand that the employee do an unlawful act. Bonn v. City of Omaha, 19 Neb. App. 874, 814 N.W.2d 114 (2012). The evil addressed by provision of the Nebraska Fair Employment Practice Act prohibiting employers from discriminating against an employee who has opposed any practice or refused to carry out any action unlawful under federal law or the laws of the state is the exploitation of the employer's power over the employee when used to coerce the employee to endorse, through participation or acquiescence, the unlawful acts of the employer. Bonn v. City of Omaha, 19 Neb. App. 874, 814 N.W.2d 114 (2012). The Nebraska Fair Employment Practice Act makes it unlawful for an employer to discriminate against its employee on the basis of the employee's opposition to an unlawful practice. Bonn v. City of Omaha, 19 Neb. App. 874, 814 N.W.2d 114 (2012). The provision of the Nebraska Fair Employment Practice Act prohibiting employers from discriminating against an employee who has opposed any practice or refused to carry out any action unlawful under federal or state law and reasonable policy dictate that an employee's opposition to any unlawful act of the employer, whether or not the employer pressures the employee to actively join in the illegal activity, is protected under the act. Bonn v. City of Omaha, 19 Neb. App. 874, 814 N.W.2d 114 (2012). The public safety auditor for the city did not oppose an unlawful employment practice or refuse to honor the city's demand that she do an unlawful act by publishing her report critical of the police department's practices regarding traffic stops of minorities, as required to support her retaliation claim under the Nebraska Fair Employment Practice Act against the city following her termination; the auditor's claim was based on her contention that she was fired for opposing unlawful practices of the city, but the unlawful practices that the auditor opposed were the alleged discriminatory tactics by some police officers against minority members of the public, rather than unlawful practices of the city. Bonn v. City of Omaha, 19 Neb. App. 874, 814 N.W.2d 114 (2012). The term "practice," as used in the Nebraska Fair Employment Practice Act provision making it unlawful for an employer to discriminate against an employee because he has opposed any practice unlawful under federal or state law, refers to an unlawful practice of the employer, not unlawful or prohibited actions of coemployees. Bonn v. City of Omaha, 19 Neb. App. 874, 814 N.W.2d 114 (2012). An individual who has opposed discriminatory employment practices is protected by this section of the Nebraska Fair Employment Practice Act, making it unlawful for an employer to discriminate against an employee because he or she has opposed any practice unlawful under federal law or the laws of Nebraska. Helvering v. Union Pacific RR. Co., 13 Neb. App. 818, 703 N.W.2d 134 (2005).