Court of Appeals Affirms Inclusion of Room and Board Expenses in Average Weekly Wage for Omaha Beef Player

On February 20, 2017, the Court of Appeals issued an opinion in Foster-Rettig v. Indoor Football Operating, L.L.C., 25 Neb. App. 551, affirming Judge Fridrich’s calculation of an Omaha Beef football player’s average weekly wage that included estimated costs for lodging and meals. Indoor Football appealed alleging Judge Fridrich erred in his calculation by using estimates arguing this proved there was no fixed money value for either at the time of hire.
The Nebraska Supreme Court has analyzed the language of § 48-126 to exclude fringe benefits and board and lodging from the average weekly wage unless the money value of such advantages are fixed by the parties at the time of hire and the advantages constitute a real and reasonably definite economic gain to the employee. Schlotfeld v. Mel’s Heating & Air Conditioning, 233 Neb. 488, Maryland Casualty Co. v. Geary, 123 Neb. 851, and Solheim v. Hastings Housing Co., 151 Neb. 264.
The Court of Appeals found that the value of the meals and lodging was fixed at the time of hiring Foster-Rettig because it was agreed that Indoor Football would provide him with meals and lodging during the season and Indoor Football did not present any evidence to the contrary. The Court of Appeals further found no error in using estimates, rather than precise costs, because these expenses were in the contemplation of the parties, Foster-Rettig was unable to obtain the information directly from the hotel, and because Indoor Football failed to cooperate with discovery requests regarding the same. Under these circumstances, The Court of Appeals found no error in relying on such estimates and affirmed Judge Fridrich’s award in its entirety.
In order to limit exposure, when hiring a traveling employee, it is important to set the value of board and lodging at the time of hire and to analyze whether these benefits constitute a real economic gain. If you have any questions or concerns regarding average weekly wage and strategies regarding traveling employees please contact Paul Barta at PBarta@baylorevnen.com or Amanda Phillips at APhillips@baylorevnen.com.