Nebraska Supreme Court Addresses “Nonresident Employers” Jurisdictional Question in Hassan v. Trident Seafoods, 302 Neb. 44 (2019)
In Nebraska, employers subject to the Nebraska’ Workers’ Compensation Act under § 48-106 include every resident and nonresident employer “performing work in this state who employs one or more employees in the regular trade, business, profession, or vocation of such employer.” Employer is subsequently defined under § 48-114(2) which states the term “employer” includes every person, firm, or corporation who is engaged in a trade, occupation, or profession, and who has a “person in service” under any contract of hire whether express or implied.
Hussan was a Nebraska resident when he was hired by Trident Seafoods (hereinafter “Trident”), a Washington corporation. Hussan completed an application for employment online and was subsequently interviewed by several Trident employees at a conference space rented in an Omaha hotel. The record established Trident did not employ workers in Nebraska year round, but would send a recruitment team to Nebraska one or two times a year, every year from 2013 through 2016. After communicating with Trident via email from Nebraska, Hussan was offered employment and signed a contract for hire in Seattle, Washington. Hussan thereafter began working in Alaska.
Hussan suffered a low-back injury while working in Alaska and benefits were paid subsequent to Alaska law. Hussan later returned to Lexington, Nebraska. Hussan subsequently filed a petition in the Nebraska Workers’ Compensation Court for the same injury. The claim was dismissed by Judge Stine for lack of jurisdiction. Specifically, Judge Stine found that Trident was not a Nebraska employer under Neb. Rev. Stat. § 48-106(1) because recruiting workers in Nebraska was not “performing work” in Nebraska.
On appeal, the Nebraska Supreme Court held that § 48-114(2) and § 48-106, synthesized together, require that the “nonresident employer must be performing work in this state,” and “the nature of that work must be in the regular trade of such employer.” The Court recited that “occasional tasks” performed in Nebraska are ordinarily not enough of a presence for jurisdictional purposes. The Court then found that Trident’s “regular trade” included manufacturing and producing seafood, neither of which it was performing in Nebraska.
Directly addressing the recruiting event, the Nebraska Supreme Court held Trident’s presence during the same was “incidental.” In doing so, the Court adopted the majority trend which favors finding that workers’ compensation laws primarily cover the employee in the location of the employment relationship, not necessarily the factors surrounding the employment and hiring. The holding in Hussan v. Trident Seafoods represents an important answer for employers who conduct only “incidental” activities, like recruiting, in Nebraska. If the activity is only “incidental” to the nature of the employer’s regular trade or business, there likely will be no jurisdiction in Nebraska.