Erspamer Advertising Co. v. Department of Labor , 214 Neb. 68 ( 1983 )

Krivosha, C.J.,

dissenting.

I regret that I must respectfully dissent from the majority opinion in this case. The majority has declared that the standards prescribed in Neb. Rev. Stat. § 48-604(5) (Reissue 1978) are not exclusive in determining whether an individual is an employee or an independent contractor. In my view the majority is in error. Absent the statute, the right of action would not here exist. For the majority to therefore suggest that a statutory right may be expanded by incorporating common-law definitions, not for the purpose of gleaning intent but, rather, for the purpose of defining an otherwise statutorily defined term, defeats the very purpose of the statutory action. A reading of § 48-604(5) makes it clear that the Legislature was intending to broaden the definition of employee and narrow the definition of independent contractor. The common-law definitions of employee and independent contractor for common-law causes of action cannot be used to expand a statutory right in which the term is clearly defined. There is no ambiguity in this act requiring interpretation by us, and the majority’s use of such common-law definitions is, in my view, misplaced. In my view we were wrong in Hill Hotel Co. v. Kinney, 138 Neb. 760, 295 N.W. 397 (1940), and we are wrong here.