State Codes and Statutes

Statutes > Nebraska > Chapter48 > 48-628

48-628. Benefits; conditionsdisqualifying applicant; exceptions.An individualshall be disqualified for benefits:(1)(a) For the week in which he or she has left work voluntarilywithout good cause, if so found by the commissioner, and for the thirteen weeks which immediately follow suchweek. A temporary employee of a temporary help firm has left work voluntarilywithout good cause if the temporary employee does not contact the temporaryhelp firm for reassignment upon completion of an assignment and the temporaryemployee has been advised by the temporary help firm of his or her obligationto contact the temporary help firm upon completion of assignments and hasbeen advised by the temporary help firm that the temporary employee may bedenied benefits for failure to do so; or(b) For the week in which he or she has left work voluntarilyfor the sole purpose of accepting previously secured, permanent, full-time,insured work, which he or she does accept, which offers a reasonable expectationof betterment of wages or working conditions, or both, and for which he orshe earns wages payable to him or her, if so found by the commissioner, andfor the two weeks which immediately follow such week;(2) For the week in which he or she has been discharged formisconduct connected with his or her work, if so found by the commissioner,and for the fourteen weeks which immediatelyfollow such week. If the commissioner finds that such individual's misconductwas gross, flagrant, and willful, or was unlawful, the commissioner shalltotally disqualify such individual from receiving benefits with respect towage credits earned prior to discharge for such misconduct. In addition tothe fourteen-week benefit disqualificationassessed under this subdivision, the commissioner shall cancel all wage creditsearned as a result of employment with the discharging employer if the commissionerfinds that the individual was discharged for misconduct in connection withthe work which was not gross, flagrant, and willful or unlawful but whichincluded being under the influence of any intoxicating beverage or being underthe influence of any controlled substance listed in section 28-405 not prescribedby a physician licensed to practice medicine or surgery when the individualis so under the influence on the worksite or while engaged in work for theemployer;(3)(a) For any week of unemployment in which he or she hasfailed, without good cause, to apply for available, suitable work when sodirected by the employment office or the commissioner, to accept suitablework offered him or her, or to return to his or her customary self-employment,if any, and the commissioner so finds, and for the twelve weeks which immediatelyfollow such week, and his or her total benefit amount to which he or she isthen entitled shall be reduced by an amount equal to the number of weeks forwhich he or she has been disqualified by the commissioner.(b) In determining whether or not any work is suitable foran individual, the commissioner shall consider the degree of risk involvedto the individual's health, safety, and morals, his or her physical fitnessand prior training, his or her experience and prior earnings, his or her lengthof unemployment and prospects for securing local work in his or her customaryoccupation, and the distance of the available work from his or her residence.(c) Notwithstanding any other provisions of the EmploymentSecurity Law, no work shall be deemed suitable and benefits shall not be deniedunder such law to any otherwise eligible individual for refusing to acceptnew work under any of the following conditions: (i) If the position offeredis vacant due directly to a strike, lockout, or other labor dispute; (ii)if the wages, hours, or other conditions of the work offered are substantiallyless favorable to the individual than those prevailing for similar work inthe locality; or (iii) if, as a condition of being employed, the individualwould be required to join a company union or to resign from or refrain fromjoining any bona fide labor organization.(d) Notwithstanding any other provisions in subdivision (3)of this section, no otherwise eligible individual shall be denied benefitswith respect to any week in which he or she is in training with the approvalof the commissioner, by reason of the application of the provisions in subdivision(3) of this section relating to failure to apply for or a refusal to acceptsuitable work.(e) No individualshall be disqualified for refusing to apply for available, full-time workor accept full-time work under subdivision (3)(a) of this section solely becausesuch individual is seeking part-time work if the majority of the weeks ofwork in an individual's base period include part-time work. For purposes ofthis subdivision, seeking only part-time work shall mean seeking less thanfull-time work having comparable hours to the individual's part-time workin the base period, except that the individual must be available for workat least twenty hours per week;(4) Forany week with respect to which the commissioner finds that his or her totalunemployment is due to a stoppage of work which exists because of a labordispute at the factory, establishment, or other premises at which he or sheis or was last employed, except that this subdivision shall not apply if itis shown to the satisfaction of the commissioner that (a) the individual isnot participating in, financing, or directly interested in the labor disputewhich caused the stoppage of work and (b) he or she does not belong to a gradeor class of workers of which, immediately before the commencement of the stoppage,there were members employed at the premises at which the stoppage occurs,any of whom are participating, financing, or directly interested in the dispute.If in any case, separate branches of work, which are commonly conducted asseparate businesses in separate premises, are conducted in separate departmentsof the same premises, each such department shall, for the purposes of thissubdivision, be deemed to be a separate factory, establishment, or other premises;(5) For any week with respect to which he or she is receivingor has received remuneration in the form of (a) wages in lieu of notice, ora dismissal or separation allowance, (b) compensation for temporary disabilityunder the workers' compensation law of any state or under a similar law ofthe United States, (c) retirement or retired pay, pension, annuity, or othersimilar periodic payment under a plan maintained or contributed to by a baseperiod or chargeable employer, or (d) a gratuity or bonus from an employer,paid after termination of employment, on account of prior length of service,or disability not compensated under the workers' compensation law. Such paymentsmade in lump sums shall be prorated in an amount which is reasonably attributableto such week. If the prorated remuneration is less than the benefits whichwould otherwise be due, he or she shall be entitled to receive for such week,if otherwise eligible, benefits reduced by the amount of such remuneration.The prorated remuneration shall be considered wages for the quarter to whichit is attributable. Military service-connected disability compensation payableunder 38 U.S.C. chapter 11 and primary insurance benefits payable under TitleII of the Social Security Act, as amended, or similar payments under any actof Congress shall not be deemed to be disqualifying or deductible from thebenefit amount. No deduction shall be made for the part of any retirementpension which represents return of payments made by the individual. In thecase of a transfer by an individual or his or her employer of an amount fromone retirement plan to a second qualified retirement plan under the InternalRevenue Code, the amount transferred shall not be deemed to be received bythe claimant until actually paid from the second retirement plan to the claimant.No deduction shall be made for any benefit received under a supplemental unemploymentbenefit plan described in subdivision (29)(g) of section 48-602;(6) For any week with respect to which or a part of whichhe or she has received or is seeking unemployment benefits under an unemploymentcompensation law of any other state or of the United States, except that ifthe appropriate agency of such other state or of the United States finallydetermines that he or she is not entitled to such unemployment benefits, thisdisqualification shall not apply;(7) For any week of unemployment if such individual is a student.For the purpose of this subdivision, student shall mean an individual registeredfor full attendance at and regularly attending an established school, college,or university, unless the major portion of his or her wages for insured workduring his or her base period was for services performed while attending school,except that attendance for training purposes under a plan approved by thecommissioner for such individual shall not be disqualifying;(8) For any week of unemployment if benefits claimed are basedon services performed:(a) In an instructional, research, or principal administrativecapacity for an educational institution, if such week commences during theperiod between two successive academic years or terms, or when an agreementprovides instead for a similar period between two regular, but not successive,terms during such period, if such individual performs such services in thefirst of such academic years or terms and if there is a contract or reasonableassurance that such individual will perform services in any such capacityfor any educational institution in the second of such academic years or terms;(b) In any other capacity for an educational institution,if such week commences during a period between two successive academic yearsor terms, if such individual performs such services in the first of such academicyears or terms, and if there is a reasonable assurance that such individualwill perform such services in the second of such academic years or terms,except that if benefits are denied to any individual for any week under subdivision(8)(b) of this section and such individual was not offered an opportunityto perform such services for the educational institution for the second ofsuch academic years or terms, such individual shall be entitled to a retroactivepayment of the benefits for each week for which the individual filed a timelyclaim for benefits and for which benefits were denied solely by reason ofsubdivision (8)(b) of this section;(c) In any capacity described in subdivision (8)(a) or (b)of this section if such week commences during an established and customaryvacation period or holiday recess if such individual performs such servicesin the period immediately before such vacation period or holiday recess, andthere is a reasonable assurance that such individual will perform such servicesin the period immediately following such vacation period or holiday recess;(d) In any capacity described in subdivision (8)(a) or (b)of this section in an educational institution while in the employ of an educationalservice agency, and such individual shall be disqualified as specified insubdivisions (8)(a), (b), and (c) of this section. As used in this subdivision,educational service agency shall mean a governmental agency or governmentalentity which is established and operated exclusively for the purpose of providingservices to one or more educational institutions; and(e) In any capacity described in subdivision (8)(a) or (b)of this section in an educational institution if such services are providedto or on behalf of the educational institution while in the employ of an organizationor entity described in section 3306(c)(7) or 3306(c)(8) of the Federal UnemploymentTax Act, 26 U.S.C. 3306(c)(7) or (8), and such individual shall be disqualifiedas specified in subdivisions (8)(a), (b), and (c) of this section;(9) For any week of unemployment benefits if substantiallyall the services upon which such benefits are based consist of participatingin sports or athletic events or training or preparing to so participate, ifsuch week of unemployment begins during the period between two successivesport seasons or similar periods, if such individual performed such servicesin the first of such seasons or similar periods, and if there is a reasonableassurance that such individual will perform such services in the later ofsuch seasons or similar periods;(10) For any week of unemployment benefits if the servicesupon which such benefits are based are performed by an alien unless such alienis an individual who was lawfully admitted for permanent residence at thetime such services were performed, was lawfully present for purposes of performingsuch services, or was permanently residing in the United States under colorof law at the time such services were performed, including an alien who waslawfully present in the United States as a result of the application of section212(d)(5) of the Immigration and Nationality Act, 8 U.S.C. 1182(d)(5). Anydata or information required of individuals applying for benefits to determinewhether benefits are not payable to them because of their alien status shallbe uniformly required from all applicants for benefits. In the case of anindividual whose application for benefits would otherwise be approved, nodetermination that benefits to such individual are not payable because ofhis or her alien status shall be made except upon a preponderance of the evidence;(11) Notwithstanding any other provisions of the EmploymentSecurity Law, no otherwise eligible individual shall be denied benefits forany week because he or she is in training approved under section 236(a)(1)of the federal Trade Act of 1974, 19 U.S.C. 2296(a)(1), nor shall such individualbe denied benefits by reason of leaving work to enter such training, if thework left is not suitable employment, or because of the application to anysuch week in training of provisions of the Employment Security Law, or anyapplicable federal unemployment compensation law, relating to availabilityfor work, active search for work, or refusal to accept work. For purposesof this subdivision, suitable employment shall mean, with respect to an individual,work of a substantially equal or higher skill level than the individual'spast adversely affected employment, as defined for purposes of the federalTrade Act of 1974, and wages for such work at not less than eighty percentof the individual's average weekly wage as determined for purposes of suchact;(12) For any week during which the individual is on a leaveof absence; and(13) For any week of unemployment benefits or for waitingweek credit if he or she has been disqualified from the receipt of benefitspursuant to section 48-663.01 two or more times in the five-year period immediatelyprior to filing his or her most recent claim. This subdivision shall not applyif the individual has repaid in full any overpayments established in conjunctionwith the disqualifications assessed under section 48-663.01 during that five-yearperiod. SourceLaws 1937, c. 108, § 5, p. 377; Laws 1939, c. 56, § 4, p. 236; C.S.Supp.,1941, § 48-705; R.S.1943, § 48-628; Laws 1945, c. 114, § 4, p. 372; Laws 1955, c. 190, § 7, p. 545; Laws 1961, c. 241, § 2, p. 718; Laws 1965, c. 287, § 1, p. 821; Laws 1967, c. 301, § 1, p. 818; Laws 1969, c. 402, § 1, p. 1395; Laws 1971, LB 651, § 6; Laws 1975, LB 370, § 1; Laws 1976, LB 819, § 1; Laws 1977, LB 509, § 5; Laws 1978, LB 128, § 1; Laws 1979, LB 581, § 3; Laws 1980, LB 800, § 4; Laws 1981, LB 470, § 3; Laws 1982, LB 801, § 2; Laws 1983, LB 248, § 4; Laws 1983, LB 432, § 1; Laws 1984, LB 746, § 2; Laws 1985, LB 339, § 22; Laws 1985, LB 341, § 1; Laws 1987, LB 276, § 1; Laws 1987, LB 469, § 2; Laws 1989, LB 605, § 1; Laws 1991, LB 498, § 1; Laws 1992, LB 878, § 1; Laws 1994, LB 286, § 3; Laws 1994, LB 913, § 1; Laws 1995, LB 1, § 9; Laws 1995, LB 77, § 2; Laws 1995, LB 291, § 1; Laws 1995, LB 759, § 1; Laws 1996, LB 633, § 1; Laws 1998, LB 225, § 3; Laws 2000, LB 953, § 7; Laws 2001, LB 192, § 8; Laws 2002, LB 921, § 2; Laws 2005, LB 484, § 6; Laws 2005, LB 739, § 10; Laws 2010, LB1020, § 4.Operative Date: July 1, 2011Annotations1. Eligibility for benefits2. Voluntary termination of employment3. Stoppage of work4. Misconduct5. Miscellaneous1. Eligibility for benefitsIn the circumstances of multiple employment, a decision to voluntarily leave part-time employment without good cause does not disqualify one from receiving full unemployment compensation benefits resulting from being laid off from one's full-time position. Fountain v. Hanlon, 214 Neb. 700, 335 N.W.2d 319 (1983).When determining if an employee, discharged for violating a company rule forbidding company employees from having contact with prior employees, is to be disqualified from receiving benefits under this statute, it must be determined if the rule has a reasonable relationship to the employer's interest. Rule here held not to be so related to the employer's interest. Snyder Industries, Inc. v. Otto, 212 Neb. 40, 321 N.W.2d 77 (1982).The disqualification of employees of educational institutions and professional athletes for unemployment benefits under this provision does not include professional symphony musicians. The provisions of the unemployment compensation act should be liberally construed in favor of those claiming benefits under it. Hanlon v. Boden, 209 Neb. 169, 306 N.W.2d 858 (1981).2. Voluntary termination of employmentIn the context of subsection (1)(a) of this section, to leave work voluntarily means to sever the employment relationship with the intent not to return to, or to intentionally terminate, the employment. Lancaster Cty. Sch. Dist. No. 0001 v. State Dept. of Labor, 260 Neb. 108, 615 N.W.2d 441 (2000).Pursuant to subsection (1)(a) of this section, a court will separately consider the circumstances under which each of multiple employments was terminated in determining the benefits against which the statutory disqualification shall apply. Lancaster Cty. Sch. Dist. No. 0001 v. State Dept. of Labor, 260 Neb. 108, 615 N.W.2d 441 (2000).Pursuant to subsection (1)(a) of this section, a paraeducator comes within the scope of this statutory provision. Lancaster Cty. Sch. Dist. No. 0001 v. State Dept. of Labor, 260 Neb. 108, 615 N.W.2d 441 (2000).Pursuant to subsection (1)(a) of this section, an employee has "good cause" for voluntarily leaving employment if the employee's decision to leave is prompted by a circumstance which has some justifiably reasonable connection with or relation to the conditions of the employment. Lancaster Cty. Sch. Dist. No. 0001 v. State Dept. of Labor, 260 Neb. 108, 615 N.W.2d 441 (2000).For purposes of subsection (a)(1) of this section, an employee has not "left work voluntarily without good cause" when the employee voluntarily resigns from work but is subsequently terminated by the employer during the notice period. Dillard Dept. Stores v. Polinsky, 247 Neb. 821, 530 N.W.2d 637 (1995).An employee who has engaged in no misconduct and who desires to keep his or her employment, but nonetheless resigns because the employer has clearly manifested that the employment will be terminated, has not left his or her employment "voluntarily," as that term is used in subsection (a)(1) of this section. Perkins v. Equal Opportunity Comm., 234 Neb. 359, 451 N.W.2d 91 (1990).An employee has good cause for voluntarily leaving employment if the employee's decision to leave is prompted by a circumstance which has some justifiably reasonable connection with or relation to the conditions of the employment. Stackley v. State, 222 Neb. 767, 386 N.W.2d 884 (1986).A change in work hours, absent some compelling circumstance, does not constitute good cause for leaving employment under subsection (a)(1) of this section. Montclair Nursing Center v. Wills, 220 Neb. 547, 371 N.W.2d 121 (1985).Employee failed to meet burden of proof as to good cause of employment termination where employee failed to offer competent medical evidence to substantiate claim that her health would be affected by a change in work hours. Montclair Nursing Center v. Wills, 220 Neb. 547, 371 N.W.2d 121 (1985).An employer acts within the meaning of subsection (a) of this section by removing duties after a job change due to the physical incapacity to carry out those particular duties. Norman v. Sorensen, 220 Neb. 408, 370 N.W.2d 147 (1985).To leave work voluntarily means to intentionally terminate the employment, but such leaving is with good cause if it has some justifiably reasonable connection with or relation to the conditions of employment. McClemens v. United Parcel Serv., 218 Neb. 689, 358 N.W.2d 748 (1984).The burden of proof is on the employee to show that he involuntarily left his employment or did so with good cause. Taylor v. Collateral Control Corp., 218 Neb. 432, 355 N.W.2d 788 (1984).One is disqualified for benefits if, by leaving work voluntarily and without good cause, one thereby makes oneself unemployed. Each job and the facts of its termination must be considered separately with regard to disqualification for benefits. Gilbert v. Hanlon, 214 Neb. 676, 335 N.W.2d 548 (1983).Evidence held to show that claimant left work voluntarily. To leave work voluntarily under this section means to intentionally sever the employment relationship with the intent not to return to, or to intentionally terminate, the employment. Gastineau v. Tomahawk Oil Co., Limited, 211 Neb. 537, 319 N.W.2d 107 (1982).An employee who desires to retain his employment but resigns because the employer has clearly indicated that if he does not resign his employment will be terminated has not left his employment voluntarily. School Dist. No. 20 v. Commissioner of Labor, 208 Neb. 663, 305 N.W.2d 367 (1981).A wife who voluntarily leaves her employment for the sole and only reason of being with her husband in another city does so without good cause and disqualifies herself as a claimant for unemployment benefits. Woodmen of the World Life Ins. Soc. v. Olsen, 141 Neb. 776, 4 N.W.2d 923 (1942).An employee who leaves work voluntarily has the burden to prove that he or she left employment with good cause. Speedway Motors v. Commissioner of Labor, 1 Neb. App. 606, 510 N.W.2d 341 (1993).3. Stoppage of workA work stoppage cannot be determined solely on the basis of the proportionate number of employees affected. Bell Fed. Credit Union v. Christianson, 237 Neb. 519, 466 N.W.2d 546 (1991).Depending on the facts of the case, various factors become relevant as to the determination of a work stoppage within the meaning of subsection (d) of this section. Bell Fed. Credit Union v. Christianson, 237 Neb. 519, 466 N.W.2d 546 (1991).One disqualified from receiving benefits under subdivision (d) of this section can avoid continued disqualification if the employer fails to prove that for the week in question, the cause of work stoppage is the labor dispute. IBP, Inc. v. Aanenson, 234 Neb. 603, 452 N.W.2d 59 (1990).No work stoppage occurred where workers' refusing to cross a picket line resulted in a four and nine-tenths percent loss in production, together with a two and nine-tenths percent loss of total work hours; there was no total operational shutdown at the plant; ninety-eight percent of the affected positions were filled by the end of the first week following the establishment of the picket line; and the company informed the Department of Labor that no work stoppage had occurred. George A. Hormel & Co. v. Hair, 229 Neb. 284, 426 N.W.2d 281 (1988).One who is a member of the same grade or class of workers participating in a labor dispute is ineligible for unemployment compensation benefits. Laursen v. Kiewit Constr. Co., 223 Neb. 471, 390 N.W.2d 534 (1986).Members of nonstriking unions and nonunion employees who are not participating in or financing or directly interested in a labor dispute which caused a work stoppage and who do not belong to a grade or class of workers who, immediately before the commencement of the stoppage, were members employed at the premises at which the stoppage occurs, and are participating in, financing, or directly interested in the labor dispute, are not disqualified from receiving benefits. An employee is not directly interested in a labor dispute within the meaning of this provision merely because the employee may obtain a benefit by reason of the labor dispute. Gilmore Constr. Co. v. Miller, 213 Neb. 133, 327 N.W.2d 628 (1982).Disqualification for benefits exists when unemployment is due to stoppage of work because of a labor dispute. A. Borchman Sons v. Carpenter, 166 Neb. 322, 89 N.W.2d 123 (1958).Where a labor dispute develops into a strike, causing a substantial stoppage of work in the business of the employer, the employees striking are not entitled to benefits under the Unemployment Compensation Act. Magner v. Kinney, 141 Neb. 122, 2 N.W.2d 689 (1942).The term stoppage of work, as used in Unemployment Compensation Act, means a substantial curtailment of work in an employing establishment. Deshler Broom Factory v. Kinney, 140 Neb. 889, 2 N.W.2d 332 (1942).4. MisconductMisconduct has been defined, pursuant to this section, as behavior evidencing (1) wanton and willful disregard of the employer's interests, (2) deliberate violation of rules, (3) disregard of standards of behavior which the employer can rightfully expect from the employee, or (4) negligence which manifests culpability, wrongful intent, evil design, or intentional and substantial disregard of the employer's interests or of the employee's duties and obligations. Douglas Cty. Sch. Dist. 001 v. Dutcher, 254 Neb. 317, 576 N.W.2d 469 (1998).In order for a violation of an employer's rule to constitute misconduct, the rule must bear a reasonable relationship to the employer's interests. Dolan v. Svitak, 247 Neb. 410, 527 N.W.2d 621 (1995).Under subsection (b) of this section, conduct of a governmental employee which evinces a conscious and intentional disregard of standards of behavior which his or her governmental employer would have a right to expect from such employee constitutes misconduct in connection with the employee's employment, where continued employment would create a genuine threat to the integrity of the governmental employer and reflect unfavorably upon the governmental employer in the eyes of the general public. Poore v. City of Minden, 237 Neb. 78, 464 N.W.2d 791 (1991).An employee who is discharged for misconduct may be disqualified from unemployment compensation benefits. Caudill v. Surgical Concepts, Inc., 236 Neb. 266, 460 N.W.2d 662 (1990).The term "misconduct," as used in subsection (b) of this section, includes behavior that evidences wanton and willful disregard of the employer's interests; deliberate violations of rules; disregard of standards of behavior rightfully expected from the employee; or negligence which manifests culpability, wrongful intent, evil design, or intentional and substantial disregard of the employer's interests or of the employee's duties and obligations. Jensen v. Mary Lanning Memorial Hosp., 233 Neb. 66, 443 N.W.2d 891 (1989).Where an employee has close personal contact with persons served by the employer, it is not unreasonable for the employer to require the employee to report to work without the odor of alcohol on his breath. Violation of the requirement, after warnings to the employee, is misconduct under subsection (b) of the statute. Jensen v. Mary Lanning Memorial Hosp., 233 Neb. 66, 443 N.W.2d 891 (1989).Misconduct for which a disqualification from receiving unemployment benefits under subsection (b) of this section may result must be committed in connection with the employee's work. Failure to cooperate with an employer which is attempting to furnish a smoke-free environment by a good faith trial and error method constitutes misconduct in connection with the employee's work sufficient to disqualify the employee from receiving unemployment compensation benefits. Failure to furnish medical justification for prolonged absences from employment, when an employee has stated that such justification will be furnished, also constitutes sufficient misconduct in connection with the employee's work. Tuma v. Omaha Public Power Dist., 226 Neb. 19, 409 N.W.2d 306 (1987).Misconduct for which a disqualification from receiving unemployment benefits may result must be committed in connection with the employee's work. Conduct of an employee in so acting as to create a situation where garnishments are filed with his or her employer is not "misconduct connected with his or her work" and therefore will not disqualify a discharged employee from receiving unemployment compensation benefits. Great Plains Container Co. v. Hiatt, 225 Neb. 558, 407 N.W.2d 166 (1987).While absences due to illness may not constitute an employee's misconduct, an employee's chronic and excessive absenteeism demonstrates a wanton and willful disregard of the employer's interests for the purpose of this section. O'Keefe v. Tabitha, Inc., 224 Neb. 574, 399 N.W.2d 798 (1987).Misconduct under subsection (b) of this section is defined as behavior which evidences (1) wanton and willful disregard of the employer's interests, (2) deliberate violation of rules, (3) disregard of standards of behavior which the employer can rightfully expect from the employee, or (4) negligence which manifests culpability, wrongful intent, evil design, or intentional and substantial disregard of the employer's interests or of the employee's duties and obligations. Smith v. Sorensen, 222 Neb. 599, 386 N.W.2d 5 (1986).The falsifying of entries by an employee of his employer's work records constitutes misconduct. What constitutes misconduct is a fact question. In order for a violation of an employer's rules to constitute misconduct, it is necessary that the rule be a reasonable one. Smith v. Sorensen, 222 Neb. 599, 386 N.W.2d 5 (1986).Misconduct within the meaning of this statute is a deliberate, willful, or wanton disregard of an employer's interest or of the standards of behavior which the employer has a right to expect of his employees, or carelessness or negligence of such a degree or recurrence as to manifest culpability, wrongful intent, or evil design. Barada v. Sorensen, 222 Neb. 391, 383 N.W.2d 799 (1986).Excessive absences from work, except when excused or authorized by employment rules, may constitute misconduct. McCorison v. City of Lincoln, 215 Neb. 474, 339 N.W.2d 294 (1983).Misconduct, under this section, is the deliberate, willful, or wanton disregard of an employer's interest or of the standards of behavior which the employer has a right to expect of his employees, or carelessness or negligence of such a degree or recurrence as to manifest culpability, wrongful intent, or evil design. Bristol v. Hanlon, 210 Neb. 37, 312 N.W.2d 694 (1981).5. MiscellaneousThe language of subsection (5)(b) of this section in its current form does not include temporary total disability as a disqualifying event for the receipt of unemployment benefits. Memorial Hosp. of Dodge Cty. v. Porter, 251 Neb. 327, 557 N.W.2d 21 (1996).In an appeal regarding disqualification under subsection (b) of this section, the Supreme Court retries factual questions de novo on the record and reaches conclusions independent of those reached by the district court. Jensen v. Mary Lanning Memorial Hosp., 233 Neb. 66, 443 N.W.2d 891 (1989).Subsection (c) of this section disqualifies unemployed persons refusing suitable work from receiving benefits. This subsection does not apply to employed persons who reject demotions. Ponderosa Villa v. Hughes, 224 Neb. 627, 399 N.W.2d 813 (1987).The correct inquiry in cases where an employed person refuses a demotion and quits is whether the employee left with or without good cause. Ponderosa Villa v. Hughes, 224 Neb. 627, 399 N.W.2d 813 (1987).In an appeal regarding disqualification of benefits under this section, the Supreme Court retries factual questions de novo on the record and reaches conclusions independent of those reached by the district court. O'Keefe v. Tabitha, Inc., 224 Neb. 574, 399 N.W.2d 798 (1987).The burden of proof under subsection (a)(1) of this section is upon the employee to show that he or she left his or her employment for good cause. Montclair Nursing Center v. Wills, 220 Neb. 547, 371 N.W.2d 121 (1985).The requirement of subdivision (e) of this section, that a lump-sum severance allowance be prorated, is intended to prevent a claimant from receiving double payments for the same period of time in the form of unemployment benefits and severance compensation. Sorensen v. Meyer, 220 Neb. 457, 370 N.W.2d 173 (1985).Subsection (c) of this section provides an employer with an additional reason for disqualification from benefits when a person refuses suitable work, and work is suitable when duties are excused upon the employee's showing of physical incapacity to perform the particular duties. Norman v. Sorensen, 220 Neb. 408, 370 N.W.2d 147 (1985).Regular terms refers to definite period representing regular division of academic year and does not include six-week summer program. School Dist. No. 21 v. Ochoa, 216 Neb. 191, 342 N.W.2d 665 (1984)."Good cause" as used herein does not include a mere disappointment at not being assigned to a particular job or task. Heimsoth v. Kellwood Co., 211 Neb. 167, 318 N.W.2d 1 (1982).Up to the point of appeal to district court, interpretation and application of law to facts in each case is made by administrative agency. Beecham v. Falstaff Brewing Corporation, 150 Neb. 792, 36 N.W.2d 233 (1949).The receipt of workers' compensation benefits for temporary total disability is not a disqualifying event for unemployment benefits. Memorial Hosp. of Dodge Cty. v. Porter, 4 Neb. App. 716, 548 N.W.2d 361 (1996).

State Codes and Statutes

Statutes > Nebraska > Chapter48 > 48-628

48-628. Benefits; conditionsdisqualifying applicant; exceptions.An individualshall be disqualified for benefits:(1)(a) For the week in which he or she has left work voluntarilywithout good cause, if so found by the commissioner, and for the thirteen weeks which immediately follow suchweek. A temporary employee of a temporary help firm has left work voluntarilywithout good cause if the temporary employee does not contact the temporaryhelp firm for reassignment upon completion of an assignment and the temporaryemployee has been advised by the temporary help firm of his or her obligationto contact the temporary help firm upon completion of assignments and hasbeen advised by the temporary help firm that the temporary employee may bedenied benefits for failure to do so; or(b) For the week in which he or she has left work voluntarilyfor the sole purpose of accepting previously secured, permanent, full-time,insured work, which he or she does accept, which offers a reasonable expectationof betterment of wages or working conditions, or both, and for which he orshe earns wages payable to him or her, if so found by the commissioner, andfor the two weeks which immediately follow such week;(2) For the week in which he or she has been discharged formisconduct connected with his or her work, if so found by the commissioner,and for the fourteen weeks which immediatelyfollow such week. If the commissioner finds that such individual's misconductwas gross, flagrant, and willful, or was unlawful, the commissioner shalltotally disqualify such individual from receiving benefits with respect towage credits earned prior to discharge for such misconduct. In addition tothe fourteen-week benefit disqualificationassessed under this subdivision, the commissioner shall cancel all wage creditsearned as a result of employment with the discharging employer if the commissionerfinds that the individual was discharged for misconduct in connection withthe work which was not gross, flagrant, and willful or unlawful but whichincluded being under the influence of any intoxicating beverage or being underthe influence of any controlled substance listed in section 28-405 not prescribedby a physician licensed to practice medicine or surgery when the individualis so under the influence on the worksite or while engaged in work for theemployer;(3)(a) For any week of unemployment in which he or she hasfailed, without good cause, to apply for available, suitable work when sodirected by the employment office or the commissioner, to accept suitablework offered him or her, or to return to his or her customary self-employment,if any, and the commissioner so finds, and for the twelve weeks which immediatelyfollow such week, and his or her total benefit amount to which he or she isthen entitled shall be reduced by an amount equal to the number of weeks forwhich he or she has been disqualified by the commissioner.(b) In determining whether or not any work is suitable foran individual, the commissioner shall consider the degree of risk involvedto the individual's health, safety, and morals, his or her physical fitnessand prior training, his or her experience and prior earnings, his or her lengthof unemployment and prospects for securing local work in his or her customaryoccupation, and the distance of the available work from his or her residence.(c) Notwithstanding any other provisions of the EmploymentSecurity Law, no work shall be deemed suitable and benefits shall not be deniedunder such law to any otherwise eligible individual for refusing to acceptnew work under any of the following conditions: (i) If the position offeredis vacant due directly to a strike, lockout, or other labor dispute; (ii)if the wages, hours, or other conditions of the work offered are substantiallyless favorable to the individual than those prevailing for similar work inthe locality; or (iii) if, as a condition of being employed, the individualwould be required to join a company union or to resign from or refrain fromjoining any bona fide labor organization.(d) Notwithstanding any other provisions in subdivision (3)of this section, no otherwise eligible individual shall be denied benefitswith respect to any week in which he or she is in training with the approvalof the commissioner, by reason of the application of the provisions in subdivision(3) of this section relating to failure to apply for or a refusal to acceptsuitable work.(e) No individualshall be disqualified for refusing to apply for available, full-time workor accept full-time work under subdivision (3)(a) of this section solely becausesuch individual is seeking part-time work if the majority of the weeks ofwork in an individual's base period include part-time work. For purposes ofthis subdivision, seeking only part-time work shall mean seeking less thanfull-time work having comparable hours to the individual's part-time workin the base period, except that the individual must be available for workat least twenty hours per week;(4) Forany week with respect to which the commissioner finds that his or her totalunemployment is due to a stoppage of work which exists because of a labordispute at the factory, establishment, or other premises at which he or sheis or was last employed, except that this subdivision shall not apply if itis shown to the satisfaction of the commissioner that (a) the individual isnot participating in, financing, or directly interested in the labor disputewhich caused the stoppage of work and (b) he or she does not belong to a gradeor class of workers of which, immediately before the commencement of the stoppage,there were members employed at the premises at which the stoppage occurs,any of whom are participating, financing, or directly interested in the dispute.If in any case, separate branches of work, which are commonly conducted asseparate businesses in separate premises, are conducted in separate departmentsof the same premises, each such department shall, for the purposes of thissubdivision, be deemed to be a separate factory, establishment, or other premises;(5) For any week with respect to which he or she is receivingor has received remuneration in the form of (a) wages in lieu of notice, ora dismissal or separation allowance, (b) compensation for temporary disabilityunder the workers' compensation law of any state or under a similar law ofthe United States, (c) retirement or retired pay, pension, annuity, or othersimilar periodic payment under a plan maintained or contributed to by a baseperiod or chargeable employer, or (d) a gratuity or bonus from an employer,paid after termination of employment, on account of prior length of service,or disability not compensated under the workers' compensation law. Such paymentsmade in lump sums shall be prorated in an amount which is reasonably attributableto such week. If the prorated remuneration is less than the benefits whichwould otherwise be due, he or she shall be entitled to receive for such week,if otherwise eligible, benefits reduced by the amount of such remuneration.The prorated remuneration shall be considered wages for the quarter to whichit is attributable. Military service-connected disability compensation payableunder 38 U.S.C. chapter 11 and primary insurance benefits payable under TitleII of the Social Security Act, as amended, or similar payments under any actof Congress shall not be deemed to be disqualifying or deductible from thebenefit amount. No deduction shall be made for the part of any retirementpension which represents return of payments made by the individual. In thecase of a transfer by an individual or his or her employer of an amount fromone retirement plan to a second qualified retirement plan under the InternalRevenue Code, the amount transferred shall not be deemed to be received bythe claimant until actually paid from the second retirement plan to the claimant.No deduction shall be made for any benefit received under a supplemental unemploymentbenefit plan described in subdivision (29)(g) of section 48-602;(6) For any week with respect to which or a part of whichhe or she has received or is seeking unemployment benefits under an unemploymentcompensation law of any other state or of the United States, except that ifthe appropriate agency of such other state or of the United States finallydetermines that he or she is not entitled to such unemployment benefits, thisdisqualification shall not apply;(7) For any week of unemployment if such individual is a student.For the purpose of this subdivision, student shall mean an individual registeredfor full attendance at and regularly attending an established school, college,or university, unless the major portion of his or her wages for insured workduring his or her base period was for services performed while attending school,except that attendance for training purposes under a plan approved by thecommissioner for such individual shall not be disqualifying;(8) For any week of unemployment if benefits claimed are basedon services performed:(a) In an instructional, research, or principal administrativecapacity for an educational institution, if such week commences during theperiod between two successive academic years or terms, or when an agreementprovides instead for a similar period between two regular, but not successive,terms during such period, if such individual performs such services in thefirst of such academic years or terms and if there is a contract or reasonableassurance that such individual will perform services in any such capacityfor any educational institution in the second of such academic years or terms;(b) In any other capacity for an educational institution,if such week commences during a period between two successive academic yearsor terms, if such individual performs such services in the first of such academicyears or terms, and if there is a reasonable assurance that such individualwill perform such services in the second of such academic years or terms,except that if benefits are denied to any individual for any week under subdivision(8)(b) of this section and such individual was not offered an opportunityto perform such services for the educational institution for the second ofsuch academic years or terms, such individual shall be entitled to a retroactivepayment of the benefits for each week for which the individual filed a timelyclaim for benefits and for which benefits were denied solely by reason ofsubdivision (8)(b) of this section;(c) In any capacity described in subdivision (8)(a) or (b)of this section if such week commences during an established and customaryvacation period or holiday recess if such individual performs such servicesin the period immediately before such vacation period or holiday recess, andthere is a reasonable assurance that such individual will perform such servicesin the period immediately following such vacation period or holiday recess;(d) In any capacity described in subdivision (8)(a) or (b)of this section in an educational institution while in the employ of an educationalservice agency, and such individual shall be disqualified as specified insubdivisions (8)(a), (b), and (c) of this section. As used in this subdivision,educational service agency shall mean a governmental agency or governmentalentity which is established and operated exclusively for the purpose of providingservices to one or more educational institutions; and(e) In any capacity described in subdivision (8)(a) or (b)of this section in an educational institution if such services are providedto or on behalf of the educational institution while in the employ of an organizationor entity described in section 3306(c)(7) or 3306(c)(8) of the Federal UnemploymentTax Act, 26 U.S.C. 3306(c)(7) or (8), and such individual shall be disqualifiedas specified in subdivisions (8)(a), (b), and (c) of this section;(9) For any week of unemployment benefits if substantiallyall the services upon which such benefits are based consist of participatingin sports or athletic events or training or preparing to so participate, ifsuch week of unemployment begins during the period between two successivesport seasons or similar periods, if such individual performed such servicesin the first of such seasons or similar periods, and if there is a reasonableassurance that such individual will perform such services in the later ofsuch seasons or similar periods;(10) For any week of unemployment benefits if the servicesupon which such benefits are based are performed by an alien unless such alienis an individual who was lawfully admitted for permanent residence at thetime such services were performed, was lawfully present for purposes of performingsuch services, or was permanently residing in the United States under colorof law at the time such services were performed, including an alien who waslawfully present in the United States as a result of the application of section212(d)(5) of the Immigration and Nationality Act, 8 U.S.C. 1182(d)(5). Anydata or information required of individuals applying for benefits to determinewhether benefits are not payable to them because of their alien status shallbe uniformly required from all applicants for benefits. In the case of anindividual whose application for benefits would otherwise be approved, nodetermination that benefits to such individual are not payable because ofhis or her alien status shall be made except upon a preponderance of the evidence;(11) Notwithstanding any other provisions of the EmploymentSecurity Law, no otherwise eligible individual shall be denied benefits forany week because he or she is in training approved under section 236(a)(1)of the federal Trade Act of 1974, 19 U.S.C. 2296(a)(1), nor shall such individualbe denied benefits by reason of leaving work to enter such training, if thework left is not suitable employment, or because of the application to anysuch week in training of provisions of the Employment Security Law, or anyapplicable federal unemployment compensation law, relating to availabilityfor work, active search for work, or refusal to accept work. For purposesof this subdivision, suitable employment shall mean, with respect to an individual,work of a substantially equal or higher skill level than the individual'spast adversely affected employment, as defined for purposes of the federalTrade Act of 1974, and wages for such work at not less than eighty percentof the individual's average weekly wage as determined for purposes of suchact;(12) For any week during which the individual is on a leaveof absence; and(13) For any week of unemployment benefits or for waitingweek credit if he or she has been disqualified from the receipt of benefitspursuant to section 48-663.01 two or more times in the five-year period immediatelyprior to filing his or her most recent claim. This subdivision shall not applyif the individual has repaid in full any overpayments established in conjunctionwith the disqualifications assessed under section 48-663.01 during that five-yearperiod. SourceLaws 1937, c. 108, § 5, p. 377; Laws 1939, c. 56, § 4, p. 236; C.S.Supp.,1941, § 48-705; R.S.1943, § 48-628; Laws 1945, c. 114, § 4, p. 372; Laws 1955, c. 190, § 7, p. 545; Laws 1961, c. 241, § 2, p. 718; Laws 1965, c. 287, § 1, p. 821; Laws 1967, c. 301, § 1, p. 818; Laws 1969, c. 402, § 1, p. 1395; Laws 1971, LB 651, § 6; Laws 1975, LB 370, § 1; Laws 1976, LB 819, § 1; Laws 1977, LB 509, § 5; Laws 1978, LB 128, § 1; Laws 1979, LB 581, § 3; Laws 1980, LB 800, § 4; Laws 1981, LB 470, § 3; Laws 1982, LB 801, § 2; Laws 1983, LB 248, § 4; Laws 1983, LB 432, § 1; Laws 1984, LB 746, § 2; Laws 1985, LB 339, § 22; Laws 1985, LB 341, § 1; Laws 1987, LB 276, § 1; Laws 1987, LB 469, § 2; Laws 1989, LB 605, § 1; Laws 1991, LB 498, § 1; Laws 1992, LB 878, § 1; Laws 1994, LB 286, § 3; Laws 1994, LB 913, § 1; Laws 1995, LB 1, § 9; Laws 1995, LB 77, § 2; Laws 1995, LB 291, § 1; Laws 1995, LB 759, § 1; Laws 1996, LB 633, § 1; Laws 1998, LB 225, § 3; Laws 2000, LB 953, § 7; Laws 2001, LB 192, § 8; Laws 2002, LB 921, § 2; Laws 2005, LB 484, § 6; Laws 2005, LB 739, § 10; Laws 2010, LB1020, § 4.Operative Date: July 1, 2011Annotations1. Eligibility for benefits2. Voluntary termination of employment3. Stoppage of work4. Misconduct5. Miscellaneous1. Eligibility for benefitsIn the circumstances of multiple employment, a decision to voluntarily leave part-time employment without good cause does not disqualify one from receiving full unemployment compensation benefits resulting from being laid off from one's full-time position. Fountain v. Hanlon, 214 Neb. 700, 335 N.W.2d 319 (1983).When determining if an employee, discharged for violating a company rule forbidding company employees from having contact with prior employees, is to be disqualified from receiving benefits under this statute, it must be determined if the rule has a reasonable relationship to the employer's interest. Rule here held not to be so related to the employer's interest. Snyder Industries, Inc. v. Otto, 212 Neb. 40, 321 N.W.2d 77 (1982).The disqualification of employees of educational institutions and professional athletes for unemployment benefits under this provision does not include professional symphony musicians. The provisions of the unemployment compensation act should be liberally construed in favor of those claiming benefits under it. Hanlon v. Boden, 209 Neb. 169, 306 N.W.2d 858 (1981).2. Voluntary termination of employmentIn the context of subsection (1)(a) of this section, to leave work voluntarily means to sever the employment relationship with the intent not to return to, or to intentionally terminate, the employment. Lancaster Cty. Sch. Dist. No. 0001 v. State Dept. of Labor, 260 Neb. 108, 615 N.W.2d 441 (2000).Pursuant to subsection (1)(a) of this section, a court will separately consider the circumstances under which each of multiple employments was terminated in determining the benefits against which the statutory disqualification shall apply. Lancaster Cty. Sch. Dist. No. 0001 v. State Dept. of Labor, 260 Neb. 108, 615 N.W.2d 441 (2000).Pursuant to subsection (1)(a) of this section, a paraeducator comes within the scope of this statutory provision. Lancaster Cty. Sch. Dist. No. 0001 v. State Dept. of Labor, 260 Neb. 108, 615 N.W.2d 441 (2000).Pursuant to subsection (1)(a) of this section, an employee has "good cause" for voluntarily leaving employment if the employee's decision to leave is prompted by a circumstance which has some justifiably reasonable connection with or relation to the conditions of the employment. Lancaster Cty. Sch. Dist. No. 0001 v. State Dept. of Labor, 260 Neb. 108, 615 N.W.2d 441 (2000).For purposes of subsection (a)(1) of this section, an employee has not "left work voluntarily without good cause" when the employee voluntarily resigns from work but is subsequently terminated by the employer during the notice period. Dillard Dept. Stores v. Polinsky, 247 Neb. 821, 530 N.W.2d 637 (1995).An employee who has engaged in no misconduct and who desires to keep his or her employment, but nonetheless resigns because the employer has clearly manifested that the employment will be terminated, has not left his or her employment "voluntarily," as that term is used in subsection (a)(1) of this section. Perkins v. Equal Opportunity Comm., 234 Neb. 359, 451 N.W.2d 91 (1990).An employee has good cause for voluntarily leaving employment if the employee's decision to leave is prompted by a circumstance which has some justifiably reasonable connection with or relation to the conditions of the employment. Stackley v. State, 222 Neb. 767, 386 N.W.2d 884 (1986).A change in work hours, absent some compelling circumstance, does not constitute good cause for leaving employment under subsection (a)(1) of this section. Montclair Nursing Center v. Wills, 220 Neb. 547, 371 N.W.2d 121 (1985).Employee failed to meet burden of proof as to good cause of employment termination where employee failed to offer competent medical evidence to substantiate claim that her health would be affected by a change in work hours. Montclair Nursing Center v. Wills, 220 Neb. 547, 371 N.W.2d 121 (1985).An employer acts within the meaning of subsection (a) of this section by removing duties after a job change due to the physical incapacity to carry out those particular duties. Norman v. Sorensen, 220 Neb. 408, 370 N.W.2d 147 (1985).To leave work voluntarily means to intentionally terminate the employment, but such leaving is with good cause if it has some justifiably reasonable connection with or relation to the conditions of employment. McClemens v. United Parcel Serv., 218 Neb. 689, 358 N.W.2d 748 (1984).The burden of proof is on the employee to show that he involuntarily left his employment or did so with good cause. Taylor v. Collateral Control Corp., 218 Neb. 432, 355 N.W.2d 788 (1984).One is disqualified for benefits if, by leaving work voluntarily and without good cause, one thereby makes oneself unemployed. Each job and the facts of its termination must be considered separately with regard to disqualification for benefits. Gilbert v. Hanlon, 214 Neb. 676, 335 N.W.2d 548 (1983).Evidence held to show that claimant left work voluntarily. To leave work voluntarily under this section means to intentionally sever the employment relationship with the intent not to return to, or to intentionally terminate, the employment. Gastineau v. Tomahawk Oil Co., Limited, 211 Neb. 537, 319 N.W.2d 107 (1982).An employee who desires to retain his employment but resigns because the employer has clearly indicated that if he does not resign his employment will be terminated has not left his employment voluntarily. School Dist. No. 20 v. Commissioner of Labor, 208 Neb. 663, 305 N.W.2d 367 (1981).A wife who voluntarily leaves her employment for the sole and only reason of being with her husband in another city does so without good cause and disqualifies herself as a claimant for unemployment benefits. Woodmen of the World Life Ins. Soc. v. Olsen, 141 Neb. 776, 4 N.W.2d 923 (1942).An employee who leaves work voluntarily has the burden to prove that he or she left employment with good cause. Speedway Motors v. Commissioner of Labor, 1 Neb. App. 606, 510 N.W.2d 341 (1993).3. Stoppage of workA work stoppage cannot be determined solely on the basis of the proportionate number of employees affected. Bell Fed. Credit Union v. Christianson, 237 Neb. 519, 466 N.W.2d 546 (1991).Depending on the facts of the case, various factors become relevant as to the determination of a work stoppage within the meaning of subsection (d) of this section. Bell Fed. Credit Union v. Christianson, 237 Neb. 519, 466 N.W.2d 546 (1991).One disqualified from receiving benefits under subdivision (d) of this section can avoid continued disqualification if the employer fails to prove that for the week in question, the cause of work stoppage is the labor dispute. IBP, Inc. v. Aanenson, 234 Neb. 603, 452 N.W.2d 59 (1990).No work stoppage occurred where workers' refusing to cross a picket line resulted in a four and nine-tenths percent loss in production, together with a two and nine-tenths percent loss of total work hours; there was no total operational shutdown at the plant; ninety-eight percent of the affected positions were filled by the end of the first week following the establishment of the picket line; and the company informed the Department of Labor that no work stoppage had occurred. George A. Hormel & Co. v. Hair, 229 Neb. 284, 426 N.W.2d 281 (1988).One who is a member of the same grade or class of workers participating in a labor dispute is ineligible for unemployment compensation benefits. Laursen v. Kiewit Constr. Co., 223 Neb. 471, 390 N.W.2d 534 (1986).Members of nonstriking unions and nonunion employees who are not participating in or financing or directly interested in a labor dispute which caused a work stoppage and who do not belong to a grade or class of workers who, immediately before the commencement of the stoppage, were members employed at the premises at which the stoppage occurs, and are participating in, financing, or directly interested in the labor dispute, are not disqualified from receiving benefits. An employee is not directly interested in a labor dispute within the meaning of this provision merely because the employee may obtain a benefit by reason of the labor dispute. Gilmore Constr. Co. v. Miller, 213 Neb. 133, 327 N.W.2d 628 (1982).Disqualification for benefits exists when unemployment is due to stoppage of work because of a labor dispute. A. Borchman Sons v. Carpenter, 166 Neb. 322, 89 N.W.2d 123 (1958).Where a labor dispute develops into a strike, causing a substantial stoppage of work in the business of the employer, the employees striking are not entitled to benefits under the Unemployment Compensation Act. Magner v. Kinney, 141 Neb. 122, 2 N.W.2d 689 (1942).The term stoppage of work, as used in Unemployment Compensation Act, means a substantial curtailment of work in an employing establishment. Deshler Broom Factory v. Kinney, 140 Neb. 889, 2 N.W.2d 332 (1942).4. MisconductMisconduct has been defined, pursuant to this section, as behavior evidencing (1) wanton and willful disregard of the employer's interests, (2) deliberate violation of rules, (3) disregard of standards of behavior which the employer can rightfully expect from the employee, or (4) negligence which manifests culpability, wrongful intent, evil design, or intentional and substantial disregard of the employer's interests or of the employee's duties and obligations. Douglas Cty. Sch. Dist. 001 v. Dutcher, 254 Neb. 317, 576 N.W.2d 469 (1998).In order for a violation of an employer's rule to constitute misconduct, the rule must bear a reasonable relationship to the employer's interests. Dolan v. Svitak, 247 Neb. 410, 527 N.W.2d 621 (1995).Under subsection (b) of this section, conduct of a governmental employee which evinces a conscious and intentional disregard of standards of behavior which his or her governmental employer would have a right to expect from such employee constitutes misconduct in connection with the employee's employment, where continued employment would create a genuine threat to the integrity of the governmental employer and reflect unfavorably upon the governmental employer in the eyes of the general public. Poore v. City of Minden, 237 Neb. 78, 464 N.W.2d 791 (1991).An employee who is discharged for misconduct may be disqualified from unemployment compensation benefits. Caudill v. Surgical Concepts, Inc., 236 Neb. 266, 460 N.W.2d 662 (1990).The term "misconduct," as used in subsection (b) of this section, includes behavior that evidences wanton and willful disregard of the employer's interests; deliberate violations of rules; disregard of standards of behavior rightfully expected from the employee; or negligence which manifests culpability, wrongful intent, evil design, or intentional and substantial disregard of the employer's interests or of the employee's duties and obligations. Jensen v. Mary Lanning Memorial Hosp., 233 Neb. 66, 443 N.W.2d 891 (1989).Where an employee has close personal contact with persons served by the employer, it is not unreasonable for the employer to require the employee to report to work without the odor of alcohol on his breath. Violation of the requirement, after warnings to the employee, is misconduct under subsection (b) of the statute. Jensen v. Mary Lanning Memorial Hosp., 233 Neb. 66, 443 N.W.2d 891 (1989).Misconduct for which a disqualification from receiving unemployment benefits under subsection (b) of this section may result must be committed in connection with the employee's work. Failure to cooperate with an employer which is attempting to furnish a smoke-free environment by a good faith trial and error method constitutes misconduct in connection with the employee's work sufficient to disqualify the employee from receiving unemployment compensation benefits. Failure to furnish medical justification for prolonged absences from employment, when an employee has stated that such justification will be furnished, also constitutes sufficient misconduct in connection with the employee's work. Tuma v. Omaha Public Power Dist., 226 Neb. 19, 409 N.W.2d 306 (1987).Misconduct for which a disqualification from receiving unemployment benefits may result must be committed in connection with the employee's work. Conduct of an employee in so acting as to create a situation where garnishments are filed with his or her employer is not "misconduct connected with his or her work" and therefore will not disqualify a discharged employee from receiving unemployment compensation benefits. Great Plains Container Co. v. Hiatt, 225 Neb. 558, 407 N.W.2d 166 (1987).While absences due to illness may not constitute an employee's misconduct, an employee's chronic and excessive absenteeism demonstrates a wanton and willful disregard of the employer's interests for the purpose of this section. O'Keefe v. Tabitha, Inc., 224 Neb. 574, 399 N.W.2d 798 (1987).Misconduct under subsection (b) of this section is defined as behavior which evidences (1) wanton and willful disregard of the employer's interests, (2) deliberate violation of rules, (3) disregard of standards of behavior which the employer can rightfully expect from the employee, or (4) negligence which manifests culpability, wrongful intent, evil design, or intentional and substantial disregard of the employer's interests or of the employee's duties and obligations. Smith v. Sorensen, 222 Neb. 599, 386 N.W.2d 5 (1986).The falsifying of entries by an employee of his employer's work records constitutes misconduct. What constitutes misconduct is a fact question. In order for a violation of an employer's rules to constitute misconduct, it is necessary that the rule be a reasonable one. Smith v. Sorensen, 222 Neb. 599, 386 N.W.2d 5 (1986).Misconduct within the meaning of this statute is a deliberate, willful, or wanton disregard of an employer's interest or of the standards of behavior which the employer has a right to expect of his employees, or carelessness or negligence of such a degree or recurrence as to manifest culpability, wrongful intent, or evil design. Barada v. Sorensen, 222 Neb. 391, 383 N.W.2d 799 (1986).Excessive absences from work, except when excused or authorized by employment rules, may constitute misconduct. McCorison v. City of Lincoln, 215 Neb. 474, 339 N.W.2d 294 (1983).Misconduct, under this section, is the deliberate, willful, or wanton disregard of an employer's interest or of the standards of behavior which the employer has a right to expect of his employees, or carelessness or negligence of such a degree or recurrence as to manifest culpability, wrongful intent, or evil design. Bristol v. Hanlon, 210 Neb. 37, 312 N.W.2d 694 (1981).5. MiscellaneousThe language of subsection (5)(b) of this section in its current form does not include temporary total disability as a disqualifying event for the receipt of unemployment benefits. Memorial Hosp. of Dodge Cty. v. Porter, 251 Neb. 327, 557 N.W.2d 21 (1996).In an appeal regarding disqualification under subsection (b) of this section, the Supreme Court retries factual questions de novo on the record and reaches conclusions independent of those reached by the district court. Jensen v. Mary Lanning Memorial Hosp., 233 Neb. 66, 443 N.W.2d 891 (1989).Subsection (c) of this section disqualifies unemployed persons refusing suitable work from receiving benefits. This subsection does not apply to employed persons who reject demotions. Ponderosa Villa v. Hughes, 224 Neb. 627, 399 N.W.2d 813 (1987).The correct inquiry in cases where an employed person refuses a demotion and quits is whether the employee left with or without good cause. Ponderosa Villa v. Hughes, 224 Neb. 627, 399 N.W.2d 813 (1987).In an appeal regarding disqualification of benefits under this section, the Supreme Court retries factual questions de novo on the record and reaches conclusions independent of those reached by the district court. O'Keefe v. Tabitha, Inc., 224 Neb. 574, 399 N.W.2d 798 (1987).The burden of proof under subsection (a)(1) of this section is upon the employee to show that he or she left his or her employment for good cause. Montclair Nursing Center v. Wills, 220 Neb. 547, 371 N.W.2d 121 (1985).The requirement of subdivision (e) of this section, that a lump-sum severance allowance be prorated, is intended to prevent a claimant from receiving double payments for the same period of time in the form of unemployment benefits and severance compensation. Sorensen v. Meyer, 220 Neb. 457, 370 N.W.2d 173 (1985).Subsection (c) of this section provides an employer with an additional reason for disqualification from benefits when a person refuses suitable work, and work is suitable when duties are excused upon the employee's showing of physical incapacity to perform the particular duties. Norman v. Sorensen, 220 Neb. 408, 370 N.W.2d 147 (1985).Regular terms refers to definite period representing regular division of academic year and does not include six-week summer program. School Dist. No. 21 v. Ochoa, 216 Neb. 191, 342 N.W.2d 665 (1984)."Good cause" as used herein does not include a mere disappointment at not being assigned to a particular job or task. Heimsoth v. Kellwood Co., 211 Neb. 167, 318 N.W.2d 1 (1982).Up to the point of appeal to district court, interpretation and application of law to facts in each case is made by administrative agency. Beecham v. Falstaff Brewing Corporation, 150 Neb. 792, 36 N.W.2d 233 (1949).The receipt of workers' compensation benefits for temporary total disability is not a disqualifying event for unemployment benefits. Memorial Hosp. of Dodge Cty. v. Porter, 4 Neb. App. 716, 548 N.W.2d 361 (1996).

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Statutes > Nebraska > Chapter48 > 48-628

48-628. Benefits; conditionsdisqualifying applicant; exceptions.An individualshall be disqualified for benefits:(1)(a) For the week in which he or she has left work voluntarilywithout good cause, if so found by the commissioner, and for the thirteen weeks which immediately follow suchweek. A temporary employee of a temporary help firm has left work voluntarilywithout good cause if the temporary employee does not contact the temporaryhelp firm for reassignment upon completion of an assignment and the temporaryemployee has been advised by the temporary help firm of his or her obligationto contact the temporary help firm upon completion of assignments and hasbeen advised by the temporary help firm that the temporary employee may bedenied benefits for failure to do so; or(b) For the week in which he or she has left work voluntarilyfor the sole purpose of accepting previously secured, permanent, full-time,insured work, which he or she does accept, which offers a reasonable expectationof betterment of wages or working conditions, or both, and for which he orshe earns wages payable to him or her, if so found by the commissioner, andfor the two weeks which immediately follow such week;(2) For the week in which he or she has been discharged formisconduct connected with his or her work, if so found by the commissioner,and for the fourteen weeks which immediatelyfollow such week. If the commissioner finds that such individual's misconductwas gross, flagrant, and willful, or was unlawful, the commissioner shalltotally disqualify such individual from receiving benefits with respect towage credits earned prior to discharge for such misconduct. In addition tothe fourteen-week benefit disqualificationassessed under this subdivision, the commissioner shall cancel all wage creditsearned as a result of employment with the discharging employer if the commissionerfinds that the individual was discharged for misconduct in connection withthe work which was not gross, flagrant, and willful or unlawful but whichincluded being under the influence of any intoxicating beverage or being underthe influence of any controlled substance listed in section 28-405 not prescribedby a physician licensed to practice medicine or surgery when the individualis so under the influence on the worksite or while engaged in work for theemployer;(3)(a) For any week of unemployment in which he or she hasfailed, without good cause, to apply for available, suitable work when sodirected by the employment office or the commissioner, to accept suitablework offered him or her, or to return to his or her customary self-employment,if any, and the commissioner so finds, and for the twelve weeks which immediatelyfollow such week, and his or her total benefit amount to which he or she isthen entitled shall be reduced by an amount equal to the number of weeks forwhich he or she has been disqualified by the commissioner.(b) In determining whether or not any work is suitable foran individual, the commissioner shall consider the degree of risk involvedto the individual's health, safety, and morals, his or her physical fitnessand prior training, his or her experience and prior earnings, his or her lengthof unemployment and prospects for securing local work in his or her customaryoccupation, and the distance of the available work from his or her residence.(c) Notwithstanding any other provisions of the EmploymentSecurity Law, no work shall be deemed suitable and benefits shall not be deniedunder such law to any otherwise eligible individual for refusing to acceptnew work under any of the following conditions: (i) If the position offeredis vacant due directly to a strike, lockout, or other labor dispute; (ii)if the wages, hours, or other conditions of the work offered are substantiallyless favorable to the individual than those prevailing for similar work inthe locality; or (iii) if, as a condition of being employed, the individualwould be required to join a company union or to resign from or refrain fromjoining any bona fide labor organization.(d) Notwithstanding any other provisions in subdivision (3)of this section, no otherwise eligible individual shall be denied benefitswith respect to any week in which he or she is in training with the approvalof the commissioner, by reason of the application of the provisions in subdivision(3) of this section relating to failure to apply for or a refusal to acceptsuitable work.(e) No individualshall be disqualified for refusing to apply for available, full-time workor accept full-time work under subdivision (3)(a) of this section solely becausesuch individual is seeking part-time work if the majority of the weeks ofwork in an individual's base period include part-time work. For purposes ofthis subdivision, seeking only part-time work shall mean seeking less thanfull-time work having comparable hours to the individual's part-time workin the base period, except that the individual must be available for workat least twenty hours per week;(4) Forany week with respect to which the commissioner finds that his or her totalunemployment is due to a stoppage of work which exists because of a labordispute at the factory, establishment, or other premises at which he or sheis or was last employed, except that this subdivision shall not apply if itis shown to the satisfaction of the commissioner that (a) the individual isnot participating in, financing, or directly interested in the labor disputewhich caused the stoppage of work and (b) he or she does not belong to a gradeor class of workers of which, immediately before the commencement of the stoppage,there were members employed at the premises at which the stoppage occurs,any of whom are participating, financing, or directly interested in the dispute.If in any case, separate branches of work, which are commonly conducted asseparate businesses in separate premises, are conducted in separate departmentsof the same premises, each such department shall, for the purposes of thissubdivision, be deemed to be a separate factory, establishment, or other premises;(5) For any week with respect to which he or she is receivingor has received remuneration in the form of (a) wages in lieu of notice, ora dismissal or separation allowance, (b) compensation for temporary disabilityunder the workers' compensation law of any state or under a similar law ofthe United States, (c) retirement or retired pay, pension, annuity, or othersimilar periodic payment under a plan maintained or contributed to by a baseperiod or chargeable employer, or (d) a gratuity or bonus from an employer,paid after termination of employment, on account of prior length of service,or disability not compensated under the workers' compensation law. Such paymentsmade in lump sums shall be prorated in an amount which is reasonably attributableto such week. If the prorated remuneration is less than the benefits whichwould otherwise be due, he or she shall be entitled to receive for such week,if otherwise eligible, benefits reduced by the amount of such remuneration.The prorated remuneration shall be considered wages for the quarter to whichit is attributable. Military service-connected disability compensation payableunder 38 U.S.C. chapter 11 and primary insurance benefits payable under TitleII of the Social Security Act, as amended, or similar payments under any actof Congress shall not be deemed to be disqualifying or deductible from thebenefit amount. No deduction shall be made for the part of any retirementpension which represents return of payments made by the individual. In thecase of a transfer by an individual or his or her employer of an amount fromone retirement plan to a second qualified retirement plan under the InternalRevenue Code, the amount transferred shall not be deemed to be received bythe claimant until actually paid from the second retirement plan to the claimant.No deduction shall be made for any benefit received under a supplemental unemploymentbenefit plan described in subdivision (29)(g) of section 48-602;(6) For any week with respect to which or a part of whichhe or she has received or is seeking unemployment benefits under an unemploymentcompensation law of any other state or of the United States, except that ifthe appropriate agency of such other state or of the United States finallydetermines that he or she is not entitled to such unemployment benefits, thisdisqualification shall not apply;(7) For any week of unemployment if such individual is a student.For the purpose of this subdivision, student shall mean an individual registeredfor full attendance at and regularly attending an established school, college,or university, unless the major portion of his or her wages for insured workduring his or her base period was for services performed while attending school,except that attendance for training purposes under a plan approved by thecommissioner for such individual shall not be disqualifying;(8) For any week of unemployment if benefits claimed are basedon services performed:(a) In an instructional, research, or principal administrativecapacity for an educational institution, if such week commences during theperiod between two successive academic years or terms, or when an agreementprovides instead for a similar period between two regular, but not successive,terms during such period, if such individual performs such services in thefirst of such academic years or terms and if there is a contract or reasonableassurance that such individual will perform services in any such capacityfor any educational institution in the second of such academic years or terms;(b) In any other capacity for an educational institution,if such week commences during a period between two successive academic yearsor terms, if such individual performs such services in the first of such academicyears or terms, and if there is a reasonable assurance that such individualwill perform such services in the second of such academic years or terms,except that if benefits are denied to any individual for any week under subdivision(8)(b) of this section and such individual was not offered an opportunityto perform such services for the educational institution for the second ofsuch academic years or terms, such individual shall be entitled to a retroactivepayment of the benefits for each week for which the individual filed a timelyclaim for benefits and for which benefits were denied solely by reason ofsubdivision (8)(b) of this section;(c) In any capacity described in subdivision (8)(a) or (b)of this section if such week commences during an established and customaryvacation period or holiday recess if such individual performs such servicesin the period immediately before such vacation period or holiday recess, andthere is a reasonable assurance that such individual will perform such servicesin the period immediately following such vacation period or holiday recess;(d) In any capacity described in subdivision (8)(a) or (b)of this section in an educational institution while in the employ of an educationalservice agency, and such individual shall be disqualified as specified insubdivisions (8)(a), (b), and (c) of this section. As used in this subdivision,educational service agency shall mean a governmental agency or governmentalentity which is established and operated exclusively for the purpose of providingservices to one or more educational institutions; and(e) In any capacity described in subdivision (8)(a) or (b)of this section in an educational institution if such services are providedto or on behalf of the educational institution while in the employ of an organizationor entity described in section 3306(c)(7) or 3306(c)(8) of the Federal UnemploymentTax Act, 26 U.S.C. 3306(c)(7) or (8), and such individual shall be disqualifiedas specified in subdivisions (8)(a), (b), and (c) of this section;(9) For any week of unemployment benefits if substantiallyall the services upon which such benefits are based consist of participatingin sports or athletic events or training or preparing to so participate, ifsuch week of unemployment begins during the period between two successivesport seasons or similar periods, if such individual performed such servicesin the first of such seasons or similar periods, and if there is a reasonableassurance that such individual will perform such services in the later ofsuch seasons or similar periods;(10) For any week of unemployment benefits if the servicesupon which such benefits are based are performed by an alien unless such alienis an individual who was lawfully admitted for permanent residence at thetime such services were performed, was lawfully present for purposes of performingsuch services, or was permanently residing in the United States under colorof law at the time such services were performed, including an alien who waslawfully present in the United States as a result of the application of section212(d)(5) of the Immigration and Nationality Act, 8 U.S.C. 1182(d)(5). Anydata or information required of individuals applying for benefits to determinewhether benefits are not payable to them because of their alien status shallbe uniformly required from all applicants for benefits. In the case of anindividual whose application for benefits would otherwise be approved, nodetermination that benefits to such individual are not payable because ofhis or her alien status shall be made except upon a preponderance of the evidence;(11) Notwithstanding any other provisions of the EmploymentSecurity Law, no otherwise eligible individual shall be denied benefits forany week because he or she is in training approved under section 236(a)(1)of the federal Trade Act of 1974, 19 U.S.C. 2296(a)(1), nor shall such individualbe denied benefits by reason of leaving work to enter such training, if thework left is not suitable employment, or because of the application to anysuch week in training of provisions of the Employment Security Law, or anyapplicable federal unemployment compensation law, relating to availabilityfor work, active search for work, or refusal to accept work. For purposesof this subdivision, suitable employment shall mean, with respect to an individual,work of a substantially equal or higher skill level than the individual'spast adversely affected employment, as defined for purposes of the federalTrade Act of 1974, and wages for such work at not less than eighty percentof the individual's average weekly wage as determined for purposes of suchact;(12) For any week during which the individual is on a leaveof absence; and(13) For any week of unemployment benefits or for waitingweek credit if he or she has been disqualified from the receipt of benefitspursuant to section 48-663.01 two or more times in the five-year period immediatelyprior to filing his or her most recent claim. This subdivision shall not applyif the individual has repaid in full any overpayments established in conjunctionwith the disqualifications assessed under section 48-663.01 during that five-yearperiod. SourceLaws 1937, c. 108, § 5, p. 377; Laws 1939, c. 56, § 4, p. 236; C.S.Supp.,1941, § 48-705; R.S.1943, § 48-628; Laws 1945, c. 114, § 4, p. 372; Laws 1955, c. 190, § 7, p. 545; Laws 1961, c. 241, § 2, p. 718; Laws 1965, c. 287, § 1, p. 821; Laws 1967, c. 301, § 1, p. 818; Laws 1969, c. 402, § 1, p. 1395; Laws 1971, LB 651, § 6; Laws 1975, LB 370, § 1; Laws 1976, LB 819, § 1; Laws 1977, LB 509, § 5; Laws 1978, LB 128, § 1; Laws 1979, LB 581, § 3; Laws 1980, LB 800, § 4; Laws 1981, LB 470, § 3; Laws 1982, LB 801, § 2; Laws 1983, LB 248, § 4; Laws 1983, LB 432, § 1; Laws 1984, LB 746, § 2; Laws 1985, LB 339, § 22; Laws 1985, LB 341, § 1; Laws 1987, LB 276, § 1; Laws 1987, LB 469, § 2; Laws 1989, LB 605, § 1; Laws 1991, LB 498, § 1; Laws 1992, LB 878, § 1; Laws 1994, LB 286, § 3; Laws 1994, LB 913, § 1; Laws 1995, LB 1, § 9; Laws 1995, LB 77, § 2; Laws 1995, LB 291, § 1; Laws 1995, LB 759, § 1; Laws 1996, LB 633, § 1; Laws 1998, LB 225, § 3; Laws 2000, LB 953, § 7; Laws 2001, LB 192, § 8; Laws 2002, LB 921, § 2; Laws 2005, LB 484, § 6; Laws 2005, LB 739, § 10; Laws 2010, LB1020, § 4.Operative Date: July 1, 2011Annotations1. Eligibility for benefits2. Voluntary termination of employment3. Stoppage of work4. Misconduct5. Miscellaneous1. Eligibility for benefitsIn the circumstances of multiple employment, a decision to voluntarily leave part-time employment without good cause does not disqualify one from receiving full unemployment compensation benefits resulting from being laid off from one's full-time position. Fountain v. Hanlon, 214 Neb. 700, 335 N.W.2d 319 (1983).When determining if an employee, discharged for violating a company rule forbidding company employees from having contact with prior employees, is to be disqualified from receiving benefits under this statute, it must be determined if the rule has a reasonable relationship to the employer's interest. Rule here held not to be so related to the employer's interest. Snyder Industries, Inc. v. Otto, 212 Neb. 40, 321 N.W.2d 77 (1982).The disqualification of employees of educational institutions and professional athletes for unemployment benefits under this provision does not include professional symphony musicians. The provisions of the unemployment compensation act should be liberally construed in favor of those claiming benefits under it. Hanlon v. Boden, 209 Neb. 169, 306 N.W.2d 858 (1981).2. Voluntary termination of employmentIn the context of subsection (1)(a) of this section, to leave work voluntarily means to sever the employment relationship with the intent not to return to, or to intentionally terminate, the employment. Lancaster Cty. Sch. Dist. No. 0001 v. State Dept. of Labor, 260 Neb. 108, 615 N.W.2d 441 (2000).Pursuant to subsection (1)(a) of this section, a court will separately consider the circumstances under which each of multiple employments was terminated in determining the benefits against which the statutory disqualification shall apply. Lancaster Cty. Sch. Dist. No. 0001 v. State Dept. of Labor, 260 Neb. 108, 615 N.W.2d 441 (2000).Pursuant to subsection (1)(a) of this section, a paraeducator comes within the scope of this statutory provision. Lancaster Cty. Sch. Dist. No. 0001 v. State Dept. of Labor, 260 Neb. 108, 615 N.W.2d 441 (2000).Pursuant to subsection (1)(a) of this section, an employee has "good cause" for voluntarily leaving employment if the employee's decision to leave is prompted by a circumstance which has some justifiably reasonable connection with or relation to the conditions of the employment. Lancaster Cty. Sch. Dist. No. 0001 v. State Dept. of Labor, 260 Neb. 108, 615 N.W.2d 441 (2000).For purposes of subsection (a)(1) of this section, an employee has not "left work voluntarily without good cause" when the employee voluntarily resigns from work but is subsequently terminated by the employer during the notice period. Dillard Dept. Stores v. Polinsky, 247 Neb. 821, 530 N.W.2d 637 (1995).An employee who has engaged in no misconduct and who desires to keep his or her employment, but nonetheless resigns because the employer has clearly manifested that the employment will be terminated, has not left his or her employment "voluntarily," as that term is used in subsection (a)(1) of this section. Perkins v. Equal Opportunity Comm., 234 Neb. 359, 451 N.W.2d 91 (1990).An employee has good cause for voluntarily leaving employment if the employee's decision to leave is prompted by a circumstance which has some justifiably reasonable connection with or relation to the conditions of the employment. Stackley v. State, 222 Neb. 767, 386 N.W.2d 884 (1986).A change in work hours, absent some compelling circumstance, does not constitute good cause for leaving employment under subsection (a)(1) of this section. Montclair Nursing Center v. Wills, 220 Neb. 547, 371 N.W.2d 121 (1985).Employee failed to meet burden of proof as to good cause of employment termination where employee failed to offer competent medical evidence to substantiate claim that her health would be affected by a change in work hours. Montclair Nursing Center v. Wills, 220 Neb. 547, 371 N.W.2d 121 (1985).An employer acts within the meaning of subsection (a) of this section by removing duties after a job change due to the physical incapacity to carry out those particular duties. Norman v. Sorensen, 220 Neb. 408, 370 N.W.2d 147 (1985).To leave work voluntarily means to intentionally terminate the employment, but such leaving is with good cause if it has some justifiably reasonable connection with or relation to the conditions of employment. McClemens v. United Parcel Serv., 218 Neb. 689, 358 N.W.2d 748 (1984).The burden of proof is on the employee to show that he involuntarily left his employment or did so with good cause. Taylor v. Collateral Control Corp., 218 Neb. 432, 355 N.W.2d 788 (1984).One is disqualified for benefits if, by leaving work voluntarily and without good cause, one thereby makes oneself unemployed. Each job and the facts of its termination must be considered separately with regard to disqualification for benefits. Gilbert v. Hanlon, 214 Neb. 676, 335 N.W.2d 548 (1983).Evidence held to show that claimant left work voluntarily. To leave work voluntarily under this section means to intentionally sever the employment relationship with the intent not to return to, or to intentionally terminate, the employment. Gastineau v. Tomahawk Oil Co., Limited, 211 Neb. 537, 319 N.W.2d 107 (1982).An employee who desires to retain his employment but resigns because the employer has clearly indicated that if he does not resign his employment will be terminated has not left his employment voluntarily. School Dist. No. 20 v. Commissioner of Labor, 208 Neb. 663, 305 N.W.2d 367 (1981).A wife who voluntarily leaves her employment for the sole and only reason of being with her husband in another city does so without good cause and disqualifies herself as a claimant for unemployment benefits. Woodmen of the World Life Ins. Soc. v. Olsen, 141 Neb. 776, 4 N.W.2d 923 (1942).An employee who leaves work voluntarily has the burden to prove that he or she left employment with good cause. Speedway Motors v. Commissioner of Labor, 1 Neb. App. 606, 510 N.W.2d 341 (1993).3. Stoppage of workA work stoppage cannot be determined solely on the basis of the proportionate number of employees affected. Bell Fed. Credit Union v. Christianson, 237 Neb. 519, 466 N.W.2d 546 (1991).Depending on the facts of the case, various factors become relevant as to the determination of a work stoppage within the meaning of subsection (d) of this section. Bell Fed. Credit Union v. Christianson, 237 Neb. 519, 466 N.W.2d 546 (1991).One disqualified from receiving benefits under subdivision (d) of this section can avoid continued disqualification if the employer fails to prove that for the week in question, the cause of work stoppage is the labor dispute. IBP, Inc. v. Aanenson, 234 Neb. 603, 452 N.W.2d 59 (1990).No work stoppage occurred where workers' refusing to cross a picket line resulted in a four and nine-tenths percent loss in production, together with a two and nine-tenths percent loss of total work hours; there was no total operational shutdown at the plant; ninety-eight percent of the affected positions were filled by the end of the first week following the establishment of the picket line; and the company informed the Department of Labor that no work stoppage had occurred. George A. Hormel & Co. v. Hair, 229 Neb. 284, 426 N.W.2d 281 (1988).One who is a member of the same grade or class of workers participating in a labor dispute is ineligible for unemployment compensation benefits. Laursen v. Kiewit Constr. Co., 223 Neb. 471, 390 N.W.2d 534 (1986).Members of nonstriking unions and nonunion employees who are not participating in or financing or directly interested in a labor dispute which caused a work stoppage and who do not belong to a grade or class of workers who, immediately before the commencement of the stoppage, were members employed at the premises at which the stoppage occurs, and are participating in, financing, or directly interested in the labor dispute, are not disqualified from receiving benefits. An employee is not directly interested in a labor dispute within the meaning of this provision merely because the employee may obtain a benefit by reason of the labor dispute. Gilmore Constr. Co. v. Miller, 213 Neb. 133, 327 N.W.2d 628 (1982).Disqualification for benefits exists when unemployment is due to stoppage of work because of a labor dispute. A. Borchman Sons v. Carpenter, 166 Neb. 322, 89 N.W.2d 123 (1958).Where a labor dispute develops into a strike, causing a substantial stoppage of work in the business of the employer, the employees striking are not entitled to benefits under the Unemployment Compensation Act. Magner v. Kinney, 141 Neb. 122, 2 N.W.2d 689 (1942).The term stoppage of work, as used in Unemployment Compensation Act, means a substantial curtailment of work in an employing establishment. Deshler Broom Factory v. Kinney, 140 Neb. 889, 2 N.W.2d 332 (1942).4. MisconductMisconduct has been defined, pursuant to this section, as behavior evidencing (1) wanton and willful disregard of the employer's interests, (2) deliberate violation of rules, (3) disregard of standards of behavior which the employer can rightfully expect from the employee, or (4) negligence which manifests culpability, wrongful intent, evil design, or intentional and substantial disregard of the employer's interests or of the employee's duties and obligations. Douglas Cty. Sch. Dist. 001 v. Dutcher, 254 Neb. 317, 576 N.W.2d 469 (1998).In order for a violation of an employer's rule to constitute misconduct, the rule must bear a reasonable relationship to the employer's interests. Dolan v. Svitak, 247 Neb. 410, 527 N.W.2d 621 (1995).Under subsection (b) of this section, conduct of a governmental employee which evinces a conscious and intentional disregard of standards of behavior which his or her governmental employer would have a right to expect from such employee constitutes misconduct in connection with the employee's employment, where continued employment would create a genuine threat to the integrity of the governmental employer and reflect unfavorably upon the governmental employer in the eyes of the general public. Poore v. City of Minden, 237 Neb. 78, 464 N.W.2d 791 (1991).An employee who is discharged for misconduct may be disqualified from unemployment compensation benefits. Caudill v. Surgical Concepts, Inc., 236 Neb. 266, 460 N.W.2d 662 (1990).The term "misconduct," as used in subsection (b) of this section, includes behavior that evidences wanton and willful disregard of the employer's interests; deliberate violations of rules; disregard of standards of behavior rightfully expected from the employee; or negligence which manifests culpability, wrongful intent, evil design, or intentional and substantial disregard of the employer's interests or of the employee's duties and obligations. Jensen v. Mary Lanning Memorial Hosp., 233 Neb. 66, 443 N.W.2d 891 (1989).Where an employee has close personal contact with persons served by the employer, it is not unreasonable for the employer to require the employee to report to work without the odor of alcohol on his breath. Violation of the requirement, after warnings to the employee, is misconduct under subsection (b) of the statute. Jensen v. Mary Lanning Memorial Hosp., 233 Neb. 66, 443 N.W.2d 891 (1989).Misconduct for which a disqualification from receiving unemployment benefits under subsection (b) of this section may result must be committed in connection with the employee's work. Failure to cooperate with an employer which is attempting to furnish a smoke-free environment by a good faith trial and error method constitutes misconduct in connection with the employee's work sufficient to disqualify the employee from receiving unemployment compensation benefits. Failure to furnish medical justification for prolonged absences from employment, when an employee has stated that such justification will be furnished, also constitutes sufficient misconduct in connection with the employee's work. Tuma v. Omaha Public Power Dist., 226 Neb. 19, 409 N.W.2d 306 (1987).Misconduct for which a disqualification from receiving unemployment benefits may result must be committed in connection with the employee's work. Conduct of an employee in so acting as to create a situation where garnishments are filed with his or her employer is not "misconduct connected with his or her work" and therefore will not disqualify a discharged employee from receiving unemployment compensation benefits. Great Plains Container Co. v. Hiatt, 225 Neb. 558, 407 N.W.2d 166 (1987).While absences due to illness may not constitute an employee's misconduct, an employee's chronic and excessive absenteeism demonstrates a wanton and willful disregard of the employer's interests for the purpose of this section. O'Keefe v. Tabitha, Inc., 224 Neb. 574, 399 N.W.2d 798 (1987).Misconduct under subsection (b) of this section is defined as behavior which evidences (1) wanton and willful disregard of the employer's interests, (2) deliberate violation of rules, (3) disregard of standards of behavior which the employer can rightfully expect from the employee, or (4) negligence which manifests culpability, wrongful intent, evil design, or intentional and substantial disregard of the employer's interests or of the employee's duties and obligations. Smith v. Sorensen, 222 Neb. 599, 386 N.W.2d 5 (1986).The falsifying of entries by an employee of his employer's work records constitutes misconduct. What constitutes misconduct is a fact question. In order for a violation of an employer's rules to constitute misconduct, it is necessary that the rule be a reasonable one. Smith v. Sorensen, 222 Neb. 599, 386 N.W.2d 5 (1986).Misconduct within the meaning of this statute is a deliberate, willful, or wanton disregard of an employer's interest or of the standards of behavior which the employer has a right to expect of his employees, or carelessness or negligence of such a degree or recurrence as to manifest culpability, wrongful intent, or evil design. Barada v. Sorensen, 222 Neb. 391, 383 N.W.2d 799 (1986).Excessive absences from work, except when excused or authorized by employment rules, may constitute misconduct. McCorison v. City of Lincoln, 215 Neb. 474, 339 N.W.2d 294 (1983).Misconduct, under this section, is the deliberate, willful, or wanton disregard of an employer's interest or of the standards of behavior which the employer has a right to expect of his employees, or carelessness or negligence of such a degree or recurrence as to manifest culpability, wrongful intent, or evil design. Bristol v. Hanlon, 210 Neb. 37, 312 N.W.2d 694 (1981).5. MiscellaneousThe language of subsection (5)(b) of this section in its current form does not include temporary total disability as a disqualifying event for the receipt of unemployment benefits. Memorial Hosp. of Dodge Cty. v. Porter, 251 Neb. 327, 557 N.W.2d 21 (1996).In an appeal regarding disqualification under subsection (b) of this section, the Supreme Court retries factual questions de novo on the record and reaches conclusions independent of those reached by the district court. Jensen v. Mary Lanning Memorial Hosp., 233 Neb. 66, 443 N.W.2d 891 (1989).Subsection (c) of this section disqualifies unemployed persons refusing suitable work from receiving benefits. This subsection does not apply to employed persons who reject demotions. Ponderosa Villa v. Hughes, 224 Neb. 627, 399 N.W.2d 813 (1987).The correct inquiry in cases where an employed person refuses a demotion and quits is whether the employee left with or without good cause. Ponderosa Villa v. Hughes, 224 Neb. 627, 399 N.W.2d 813 (1987).In an appeal regarding disqualification of benefits under this section, the Supreme Court retries factual questions de novo on the record and reaches conclusions independent of those reached by the district court. O'Keefe v. Tabitha, Inc., 224 Neb. 574, 399 N.W.2d 798 (1987).The burden of proof under subsection (a)(1) of this section is upon the employee to show that he or she left his or her employment for good cause. Montclair Nursing Center v. Wills, 220 Neb. 547, 371 N.W.2d 121 (1985).The requirement of subdivision (e) of this section, that a lump-sum severance allowance be prorated, is intended to prevent a claimant from receiving double payments for the same period of time in the form of unemployment benefits and severance compensation. Sorensen v. Meyer, 220 Neb. 457, 370 N.W.2d 173 (1985).Subsection (c) of this section provides an employer with an additional reason for disqualification from benefits when a person refuses suitable work, and work is suitable when duties are excused upon the employee's showing of physical incapacity to perform the particular duties. Norman v. Sorensen, 220 Neb. 408, 370 N.W.2d 147 (1985).Regular terms refers to definite period representing regular division of academic year and does not include six-week summer program. School Dist. No. 21 v. Ochoa, 216 Neb. 191, 342 N.W.2d 665 (1984)."Good cause" as used herein does not include a mere disappointment at not being assigned to a particular job or task. Heimsoth v. Kellwood Co., 211 Neb. 167, 318 N.W.2d 1 (1982).Up to the point of appeal to district court, interpretation and application of law to facts in each case is made by administrative agency. Beecham v. Falstaff Brewing Corporation, 150 Neb. 792, 36 N.W.2d 233 (1949).The receipt of workers' compensation benefits for temporary total disability is not a disqualifying event for unemployment benefits. Memorial Hosp. of Dodge Cty. v. Porter, 4 Neb. App. 716, 548 N.W.2d 361 (1996).

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