Defining Employee under the Nebraska Workers’ Compensation Act
Under the Nebraska Workers’ Compensation Act, only employees are entitled to receive workers’ compensation benefits. As this appears to be straight forward, a determination regarding whether an injured individual qualifies as an employee under the Act involves an inquiry into many variables.
Employees, for purposes of the Act, include those persons that are in the service of employers not designated as excluded employers and whose employment is in the usual course of the regular trade, business, profession, or occupation of their employer. Neb. Rev. Stat. § 48-115. Excluded employers include railroad companies and agricultural operations as well as employers of household domestic workers. The employment can take place under any contract of hire, expressed or implied, oral or written. Morin v. Industrial Manpower, 13 Neb. App. 1, 687 N.W.2d 704.
In contrast, independent contractors are not entitled to coverage but can make a formal election to come within its provisions. To determine whether an individual is an independent contractor, ten factors are taken into consideration. The factors include: (1) amount of control, (2) whether a worker is engaged in a distinct occupation/business, (3) kind of occupation involved, (4) skill required, (5) which party supplies instrumentalities, tools, or place of work, (6) length of employment period, (7) method of payment, (8) whether the work is part of the regular business of the employer, (9) whether parties believe they are creating an employer/employee relationship, and (10) whether the employer is or is not in business. Larson v. Hometown Comm., 248 Neb. 942, 540 N.W.2d 339.
Other individuals not encompassed within the Act are casual employees as well as those individuals under a conditional offer of employment. Casual employees are those that engage in work that is occasional as opposed to regular employees. Nussbaum v. Wright, 217 Neb. 712, 350 N.W.2d 559. Additionally, individuals under a conditional offer of employment, such as those conditioned on the passage of a pre-hiring physical exam, are not considered as employees. Gebhard v. Dixie Carbonic, 261 Neb. 715, 625 N.W.2d 207.
It is important to note that self-employed individuals are not employees under the Act, but have the option of opting into workers’ compensation protection. Neb. Rev. Stat. § 48-115(4). This ensures that self-employed individuals have the same rights as any other employee under the Act.