Badawi v. Albin , 311 Neb. 603 ( 2022 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
05/27/2022 01:06 AM CDT
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
BADAWI v. ALBIN
Cite as 311 Neb. 603Saied Badawi, appellant, v. John Albin,
commissioner of the Nebraska
Department of Labor
et al., appellees.
___ N.W.2d ___
Filed May 20, 2022. No. S-21-650.
1. Employment Security: Judgments: Appeal and Error. In an appeal
from the appeal tribunal to the district court regarding unemployment
benefits, the district court conducts the review de novo on the record,
but on review by the Nebraska Court of Appeals or the Nebraska
Supreme Court, the judgment of the district court may be reversed,
vacated, or modified for errors appearing on the record. When reviewing
a judgment for errors appearing on the record, the inquiry is whether the
decision conforms to law, is supported by competent evidence, and is
neither arbitrary, capricious, nor unreasonable.
2. Judgments: Appeal and Error. Whether a decision conforms to law
is by definition a question of law, in connection with which an appel-
late court reaches a conclusion independent of that reached by the
lower court.
3. ____: ____. An appellate court, in reviewing a district court judgment
for errors appearing on the record, will not substitute its factual find-
ings for those of the district court where competent evidence supports
those findings.
4. Employment Security: Proof. In a disputed claim for unemployment
benefits, the employer bears the burden of proving an individual is dis-
qualified from receiving benefits because he or she was discharged for
misconduct under Neb. Rev. Stat. § 48-628.10 (Reissue 2021).
5. Employment Security. Under Neb. Rev. Stat. § 48-628.10 (Reissue
2021), an employee may be partially or totally disqualified from receiv-
ing benefits if he or she is found to have been discharged for misconduct
connected with his or her work.
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BADAWI v. ALBIN
Cite as 311 Neb. 6036. Employment Security: Words and Phrases. “Misconduct,” for pur-
poses of Neb. Rev. Stat. § 48-628.10 (Reissue 2021), includes 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 inter-
ests or of the employee’s duties and obligations.
Appeal from the District Court for Douglas County: Timothy
P. Burns, Judge. Reversed and remanded with directions.
Zachary W. Anderson, of Legal Aid of Nebraska, for
appellant.
Elizabeth Cano and Katie Thurber, of Nebraska Department
of Labor, for appellee John Albin.
Ruth A. Horvatich, of McGrath, North, Mullin & Kratz,
P.C., L.L.O., for appellee JBS Swift Beef.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Stacy, J.
This is an appeal under the Administrative Procedure
Act (APA). 1 Saied Badawi applied for unemployment bene­
fits after his employment at JBS Swift Beef (JBS) ended.
Nebraska’s Department of Labor determined Badawi was dis-
qualified from receiving benefits for 14 weeks because he was
discharged for misconduct. 2 The district court for Douglas
County affirmed, and Badawi appeals. We reverse, and remand
with directions.
1
See Neb. Rev. Stat. §§ 84-901 to 84-920 and 84-933 to 84-948 (Reissue
2014 & Cum. Supp. 2020).
2
See Neb. Rev. Stat. § 48-628.10 (Reissue 2021).
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BADAWI v. ALBIN
Cite as 311 Neb. 603I. BACKGROUND
Badawi worked for JBS from January 7, 2019, to May 19,
2020. After the employment ended, he sought unemployment
insurance benefits from the Department of Labor. On July 23,
the Department of Labor issued a “Disqualifying Separation
Determination” which found that Badawi left work voluntarily
without good cause and thus was disqualified from receiving
unemployment benefits until he met certain statutory requalifi-
cation requirements. 3
1. Nebraska Appeal Tribunal
Badawi appealed the determination to the Nebraska Appeal
Tribunal, arguing that he did not voluntarily leave his employ-
ment. A telephonic hearing occurred on March 15, 2021.
Pursuant to a notice issued by the tribunal, the issues to be
addressed in the appeal were (1) whether Badawi voluntarily
left his employment without good cause and (2) whether he
was discharged for misconduct connected with his work.
JBS did not appear for the hearing, but Badawi appeared
with counsel. The hearing officer took “official notice” of the
relevant Nebraska statutes and regulations, but no exhibits
were offered. Badawi was the only witness, and he testified
through an Arabic interpreter. As will be apparent from our
quotations of Badawi’s testimony below, a fairly significant
portion of his hearing testimony was deemed “indiscernible”
by the official court reporter who prepared and certified the
bill of exceptions.
The bill of exceptions for the hearing is only 27 pages long,
but contains 92 instances where the testimony was “indiscern-
ible.” It is unclear whether the indiscernible portions were
due to a poor telephone connection, equipment failure, poor
articulation by the hearing participants, or some combina-
tion thereof. The frequency of “indiscernibles” during critical
portions of Badawi’s testimony not only frustrates appellate
3
See Neb. Rev. Stat. § 48-628.12 (Reissue 2021).
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BADAWI v. ALBIN
Cite as 311 Neb. 603review, but it also impacts the competency and sufficiency of
the evidence. And although no party challenges the sufficiency
of the official record prepared by the agency in this case, we
remind district courts that if the interests of justice would be
served by resolution of any issue not raised before the agency,
the APA authorizes the court to remand the cause to the
agency for further proceedings. 4 The “indiscernibles” in this
record may not have been so pervasive that they necessitated
a remand to address the deficiencies, but it would be difficult
to find an abuse of discretion if the district court had chosen
to do so.
(a) Evidence of Badawi’s Job Duties at JBS
Badawi testified that when he first started at JBS, his
job was to “euthanize (indiscernible) meat.” Approximately 2
months later, he moved to a job which involved using a knife
where he “just (indiscernible) slice the skin from the top to the
bottom of the cow, in the middle.” Apparently, he was then
moved to a different job, because he testified, “That’s what
I used to do. And then, my position was changed, but I don’t
know the name (indiscernible).” He also testified, “I described
to you what I was doing (indiscernible), but I (indiscernible)
cutting in the middle and then, the second was (indiscernible)
knife. I used [a] knife in all positions.”
(b) Evidence of Request to Perform
Additional Job Duties
Sometime in May 2020, JBS asked Badawi to perform both
his job duties and the job duties of another employee who was
out sick with COVID-19. Badawi refused to perform both jobs.
Badawi admitted that JBS had an employment policy related
to transferring job assignments, and he testified that under
that policy:
I can be transferred any time from one position to another.
What I signed is that, if there is — for any reason that
4
See § 84-917(5)(b)(i).
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BADAWI v. ALBIN
Cite as 311 Neb. 603they — a position is (indiscernible) because they lost one
employee and they are waiting to fill that position, I can
be asked to go and help out temporary — to go and help
out until that position is filled, but I will return to my per-
manent position. But this was not the case. It was like I’m
asked to do two jobs, to work in this position and to go
and work in other position. If I was informed that it was
just something temporary, that I would have done.
Regarding the additional job duties Badawi was asked to per-
form, he testified:
The other person — I mean, the position that was second
— that individual was doing that job, but (indiscernible)
coronavirus positive, so that’s why I was asked to go and
fill that position (indiscernible). I couldn’t do two jobs at
the same time, so (indiscernible). It’s a hard job. It’s not
something that I can combine with something else.
Badawi also testified: “But I did offer . . . instead of giving me
two positions to do, [that] I just do one position. And, even if
I take a [pay] cut . . . I was willing to do that, instead of doing
two jobs at the same time.”
Badawi’s explanation for why he did not think he could per-
form both jobs at the same time was that he
watched [a training] video, and also I was shown the job
by two people that were working that — to say (indis-
cernible) position here, using their knife. The person in
front has a different position. The person behind me has a
different position and is not supposed to do the job of the
person in front of you. (Indiscernible) to do the job of the
person behind you.
Badawi testified that he met with his manager and said “this is
a two-job — a two-employee job that they were asking me to
do. It’s too much for me.” He also testified that it was “impos-
sible” for him to do “a job for two people.” Badawi testified
that after he was discharged by JBS, he contacted former col-
leagues and learned that the “two jobs that I was offered was
filled with two employees.”
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BADAWI v. ALBIN
Cite as 311 Neb. 603Badawi testified that each time he refused to perform both
jobs, JBS sent him home for a week. When he returned after the
second suspension, security advised him he was not allowed to
enter the premises. He testified he was making $18.55 per hour
at the end of his employment and he consistently worked 38 to
40 hours per week.
(c) Decision of Appeal Tribunal
The appeal tribunal issued its decision on March 30, 2021.
It found that Badawi did not voluntarily leave his employ-
ment without good cause and thus was not disqualified from
receiving unemployment benefits on that basis. But it found
he was disqualified from receiving unemployment benefits
because he was discharged for misconduct. The tribunal found
that Badawi committed misconduct because he “refused to
work two positions,” and it found that Badawi was “aware
that he could be asked to fill in for another position accord-
ing to the [JBS] policy.” The tribunal also found that Badawi
had not shown that working the two positions would amount
to a material change in his hours or wages, “and could only
describe the additional duties as ‘hard.’” Based on these find-
ings, the tribunal imposed a 14-week benefit disqualification
upon Badawi. 5
2. APA Appeal
Badawi challenged the tribunal’s decision in an APA appeal
in the district court for Douglas County. That court con-
ducted a de novo review of the record and affirmed the tri-
bunal’s decision. The district court found that Badawi was
“asked to do additional work of another employee because
the employee was not at work after having contracted corona­
virus” and that Badawi declined because “he thought he could
not perform his work and the additional work of the sick
employee.” On those facts, the court determined “Badawi
5
See § 48-628.10.
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BADAWI v. ALBIN
Cite as 311 Neb. 603refused to perform work that was assigned to him by his
employer.” The court found “unpersuasive” Badawi’s argu-
ment that “he was asked to perform two jobs that would be
impossible to do.”
Badawi filed this timely appeal, which we moved to our
docket on our own motion.
II. ASSIGNMENT OF ERROR
Badawi assigns, restated, that the district court erred in
affirming the tribunal’s finding that he was discharged for
misconduct.
III. STANDARD OF REVIEW
[1] In an appeal from the appeal tribunal to the district
court regarding unemployment benefits, the district court con-
ducts the review de novo on the record, but on review by
the Nebraska Court of Appeals or the Nebraska Supreme
Court, the judgment of the district court may be reversed,
vacated, or modified for errors appearing on the record. When
reviewing a judgment for errors appearing on the record, the
inquiry is whether the decision conforms to law, is supported
by competent evidence, and is neither arbitrary, capricious,
nor unreasonable. 6
[2] Whether a decision conforms to law is by definition
a question of law, in connection with which an appellate
court reaches a conclusion independent of that reached by the
lower court. 7
[3] An appellate court, in reviewing a district court judg-
ment for errors appearing on the record, will not substitute its
factual findings for those of the district court where competent
evidence supports those findings. 8
6
Lang v. Howard County, 287 Neb. 66, 840 N.W.2d 876 (2013).
7
Moore v. Nebraska Acct. & Disclosure Comm., 310 Neb. 302, 965 N.W.2d
564 (2021).
8
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BADAWI v. ALBIN
Cite as 311 Neb. 603IV. ANALYSIS
In Nebraska, unemployment benefits are governed by the
Employment Security Law. 9 A variety of conditions can dis-
qualify an otherwise eligible individual from receiving unem-
ployment benefits. 10 As relevant here, § 48-628.10 provides
that individuals are disqualified from receiving benefits “for
the week in which [they have] been discharged for misconduct
connected with [the] work, if so found by the [C]ommissioner
[of Labor], and for the fourteen weeks immediately thereafter.”
A different disqualification condition was also addressed by
the appeal tribunal, but found to be inapplicable. 11 As such,
the sole disqualification issue presented to the district court
was whether Badawi was discharged for misconduct under
§ 48-628.10.
Badawi argues the district court erred in finding that he
was discharged for misconduct. First, he argues that because
JBS failed to appear for the hearing before the tribunal, it pre-
sented no evidence and could not possibly have met its burden
of proving misconduct. Alternatively, he argues the evidence
is insufficient to show that his refusal to perform two jobs
amounted to misconduct. We consider each argument in turn,
but first, we clarify which party bears the burden of proving
misconduct in a disputed claim for unemployment benefits.
1. Burden of Proof
We have not yet directly addressed which party bears
the burden of proving that an employee was discharged for
misconduct. In two cases, however, we implied the bur-
den rests with the employer. In NEBCO, Inc. v. Murphy, 12
9
See Neb. Rev. Stat. §§ 48-601 to 48-683 (Reissue 2021).
10
See §§ 48-628 through 48-628.12.
11
See § 48-628.12 (individuals are disqualified from receiving benefits
“[f]or the week in which [they] left work voluntarily without good cause,
if so found by the [C]ommissioner [of Labor] and for the thirteen weeks
immediately thereafter”).
12
NEBCO, Inc. v. Murphy, 280 Neb. 145, 152, 784 N.W.2d 447, 453 (2010).
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BADAWI v. ALBIN
Cite as 311 Neb. 603a heading in the opinion stated the district court “Did Not
Err by Concluding [the Employer] Failed to Show [the
Employee] Employment Was Terminated for ‘Misconduct.’”
And in Great Plains Container Co. v. Hiatt, 13 we rejected the
employer’s argument that the district court erred “in requir-
ing the company to establish ‘gross’ misconduct where only
ordinary misconduct” was alleged.
The Nebraska Appeal Tribunal Precedent Manual, adopted by
the Department of Labor pursuant to duly adopted regulations, 14
cites our Great Plains Container Co. decision as authority for
the proposition that the employer bears the burden to establish
that the claimant was discharged for misconduct in connection
with the work. 15 And in its resolution of the instant cause, the
appeal tribunal expressly stated that JBS had the burden to
prove Badawi was discharged for misconduct.
[4] In their appellate briefing, Badawi and JBS, as well as
the Department of Labor and the Commissioner of Labor (col-
lectively the Department), all agree that JBS had the burden
to prove Badawi was discharged for misconduct. We likewise
agree, and we now expressly hold what our prior cases have
implied: In a disputed claim for unemployment benefits, the
employer bears the burden of proving an individual is disquali-
fied from receiving benefits because he or she was discharged
for misconduct under § 48-628.10.
2. JBS Not Required to Appear or
Present Evidence to Tribunal
On appeal, Badawi argues that JBS necessarily failed to
meet its burden to show he was discharged for miscon-
duct because it did not appear and present evidence at the
13
Great Plains Container Co. v. Hiatt, 225 Neb. 558, 559, 407 N.W.2d 166,
168 (1987).
14
See 224 Neb. Admin. Code, ch. 1, § 019 (2014).
15
Nebraska Appeal Tribunal Precedent Manual, ch. 2, § (00)15, http://www.
dol.nebraska.gov/Appeals/PrecedentManualChapter/2), citing district court
cases (last visited May 14, 2022).
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Cite as 311 Neb. 603hearing before the appeal tribunal. In making this argument,
Badawi likens the situation to one in which “a prosecutor
[does] not appear at trial.” 16 But the procedure followed in
hearings before the appeal tribunal is markedly different from
that followed in a criminal case, or even a civil case, in a
judicial forum. To address Badawi’s challenges to the pro-
cedure followed by the tribunal, we turn first to the govern-
ing regulations.
According to the Employment Security Law:
The presentation of disputed [unemployment] claims and
the conduct of hearings and appeals shall be in accord­
ance with the rules and regulations adopted and promul-
gated by the [C]ommissioner [of Labor] for determining
the rights of the parties, whether or not such rules and
regulations conform to common-law or statutory rules of
evidence and other technical rules of procedure. 17
Pursuant to this statutory mandate, the Department of Labor
has adopted and duly filed regulations with the Secretary
of State which are published in title 224 of the Nebraska
Administrative Code.
The procedure governing appeals from disputed unemploy-
ment benefit claims is addressed in title 224. 18 It is designed
to be informal: “[b]ecause the overwhelming number of these
hearings involve unrepresented, unemployed parties who can-
not afford legal counsel, these rules do not incorporate the
more formalized rules of procedure for [other] administra-
tive hearings . . . .” 19
Instead, another section of title 224 provides that hearings
on disputed unemployment benefit claims are to be held before
an appeal tribunal consisting of a single hearing officer. 20
16
Brief for appellant at 12.
17
§ 48-635.
18
See 224 Neb. Admin Code, ch. 1, § 001.
19
Id.
20
Id., § 002.
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Cite as 311 Neb. 603All such hearings are to be conducted by telephone conference
call unless the tribunal, in its discretion, decides to conduct
the hearing in person. 21 The regulations also govern the order
of presenting evidence and the consequences of failing to
appear at the hearing:
The appealing party shall present its evidence first as
to why it believes the determination appealed from was
incorrect and provide any legal authority for the relief
requested by the appealing party. If an appealing party
fails to appear for the scheduled hearing . . . the Appeal
Tribunal may dismiss the appeal for want of prosecu-
tion. If any of the responding parties fails to appear, the
Appeal Tribunal will proceed with the hearing and render
a decision based on evidence received from the appeal-
ing party. 22
The role of the hearing officer is also governed by regula-
tion: “The hearing officer shall function as an impartial fact
finder and must attempt to obtain the reasonably available,
competent evidence necessary to resolve the issues of the case,
but shall not act as an advocate for any party.” 23 In reaching an
“independent conclusion regarding the facts of any case,” the
hearing officer must follow “Nebraska Statutes, the decisions
of Courts of superior jurisdictions, previous Appeal Tribunal
decisions, unless specifically overruled, as well as applicable
Department rules and regulations and Unemployment Insurance
Programs Letters published by the United States Department of
Labor in the Federal Register . . . .” 24 Decisions designated as
“precedential decisions by the Commissioner of Labor . . . may
be published in a case digest or precedent manual.” 25
21
Id., § 012.
22
Id., § 014.
23
Id., § 015H.
24
Id., § 016.
25
Id., § 019C.
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BADAWI v. ALBIN
Cite as 311 Neb. 603This overview of the pertinent regulations demonstrates that
Badawi’s procedural complaints are unfounded. Because JBS
was the respondent rather than the appealing party, it was not
required to appear or present evidence at the hearing before the
appeal tribunal. 26 Instead, when a respondent fails to appear
for a scheduled hearing, the regulations require the tribunal to
“proceed with the hearing and render a decision based on evi-
dence received from the appealing party.” 27
As such, even though JBS had the burden to prove that
Badawi was discharged for misconduct, Badawi is simply
incorrect when he argues that in hearings before the tribunal
“parties must present their own evidence to meet their burden
of proof.” 28 Instead, the hearing officer was not only permit-
ted to render a decision based on the evidence adduced by
Badawi, but also had an obligation to “attempt to obtain the
reasonably available, competent evidence necessary to resolve
the issues” without acting as an advocate for either party. 29 The
hearing officer did so by questioning Badawi under oath, after
which Badawi’s counsel conducted a direct examination. The
record shows that the hearing officer followed the regulatory
procedure, and Badawi’s arguments to the contrary are with-
out merit.
3. Evidence Insufficient to Show
Discharge for Misconduct
Next, we consider Badawi’s argument that the evidence
adduced was insufficient to support the district court’s determi-
nation that he was discharged for misconduct. Before address-
ing the sufficiency of the evidence, we review the legal stan-
dard for misconduct.
26
Id., § 014.
27
Id.
28
Brief for appellant at 12.
29
224 Neb. Admin. Code, ch. 1, § 015H.
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Cite as 311 Neb. 603[5] Under § 48-628.10, an employee may be partially or
totally disqualified from receiving benefits if he or she is
found to have been discharged for misconduct connected
with his or her work. 30 A partial disqualification is effective
for the week of the discharge “and for the fourteen weeks
immediately thereafter.” 31 But an individual may be totally
disqualified if the “misconduct was gross, flagrant, and will-
ful, or was unlawful.” 32 We have described this statutory
scheme as imposing partial disqualification when discharge
was for “general misconduct,” and imposing total disqualifica-
tion when discharge was for “gross misconduct.” 33 Here, both
the district court and the appeal tribunal found that Badawi
was partially disqualified, so we confine our analysis to gen-
eral misconduct.
[6] “Misconduct” is not defined in § 48-628.10, but our
cases have long defined it to include 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 dis-
regard of the employer’s interests or of the employee’s duties
and obligations. 34
In this case, the district court performed a de novo review
of the record and found that “Badawi was discharged from
his employment for misconduct and ineligible to receive
30
See NEBCO, Inc., supra note 12; Douglas Cty. Sch. Dist. 001 v. Dutcher,
254 Neb. 317, 576 N.W.2d 469 (1998).
31
§ 48-628.10(1).
32
§ 48-628.10(3).
33
See Douglas Cty. Sch. Dist. 001, supra note 30, 254 Neb. at 322, 576
N.W.2d at 472.
34
E.g., Meyers v. Nebraska State Penitentiary, 280 Neb. 958, 791 N.W.2d
607 (2010); Douglas Cty. Sch. Dist. 001, supra note 30; Great Plains
Container Co., supra note 13.
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Cite as 311 Neb. 603unemployment benefits [because he] refused to perform work
that was assigned to him by his employer . . . .” Additionally,
the court found that Badawi “thought he could not perform his
work and the additional work of the sick employee” but the
court rejected as “unpersuasive” Badawi’s argument that “he
was asked to perform two jobs that would be impossible to
do.” Our standard of review for errors appearing on the record
requires us to consider whether the district court’s decision
conforms to the law, is supported by competent evidence, and
is neither arbitrary, capricious, nor unreasonable. 35
On appeal, all parties agree that Badawi was discharged
because he refused to perform additional work assigned to
him. They also generally agree that JBS had a written rule or
policy regarding accepting temporary work reassignments and
that Badawi was aware of such policy. To the extent the par-
ties argue that Badawi committed misconduct by violating that
policy, those arguments are not supported by competent evi-
dence and must be rejected. The policy itself was not offered
into evidence at the hearing before the tribunal. We therefore
revisit Badawi’s testimony regarding the policy, as it is the
only competent evidence in our record on that issue:
I can be transferred any time from one position to another.
What I signed is that, if there is — for any reason that
they — a position is (indiscernible) because they lost one
employee and they are waiting to fill that position, I can
be asked to go and help out temporary — to go and help
out until that position is filled, but I will return to my per-
manent position. But this was not the case. It was like I’m
asked to do two jobs, to work in this position and to go
and work in other position. If I was informed that it was
just something temporary, that I would have done.
In its appellate briefing, JBS describes the policy as “requir-
ing employees to temporarily fill in for other employees if
35
See Lang, supra note 6.
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Cite as 311 Neb. 603there is an employee absent for any reason.” 36 And JBS con-
tends Badawi was discharged for “insubordination” 37 because
he “repeatedly refused to perform the work assigned to him”
pursuant to this policy. 38 But in making this argument, JBS
focuses only on the work assignment Badawi declined and
ignores Badawi’s uncontroverted testimony that he was asked
to perform both the job duties of the absent employee and his
existing job duties. Although the record supports the conclu-
sion JBS’ policy requires an employee to accept a temporary
transfer from one position to another, we see no evidence to
support JBS’ contention that its policy requires an employee to
perform the work of two employees at the same time. There is
thus no competent evidence in the record that Badawi violated
such a policy.
But JBS and the Department also generally argue that
Badawi was discharged for misconduct because he refused an
order to perform work assigned to him. As the Department
frames it, “[w]hen asked to complete the tasks of both
positions,” 39 Badawi refused and was therefore discharged.
Although JBS generally argues that evidence an employee
refused to perform a task ordered by the employer is suf-
ficient to show misconduct, the Department asks us to adopt
a rule that “an employee who is discharged for refusing an
­employer’s order to complete a task is discharged for miscon-
duct under § 48-628.10 only if the order refused was legiti-
mate and reasonable.” 40
Our jurisprudence generally supports the rule urged
by the Department. We have never held that an employer
36
Brief for appellee JBS at 4.
37
Id. at 16.
38
Id. at 8.
39
Brief for appellee Department at 7.
40
Id. at 25 (emphasis in original).
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Cite as 311 Neb. 603meets its burden of proving misconduct simply by showing
that an employee was discharged for violating a rule, policy,
or order. Rather, our cases have generally required a show-
ing that the rule, policy, or order at issue was reasonably
designed to protect the employer’s business relationship. 41 For
instance, we have held an employer’s policy of no drugs in the
workplace is reasonably related to its interests in providing a
safe workplace, and a violation of such rule is misconduct. 42
We have also held a policy requiring the employee to notify
the employer of absences greater than 3 days is reasonably
related to the employer’s interests, and a violation of such
is misconduct. 43
But we have also held that a policy prohibiting the employee
from exposing the employer to excessive garnishments is
not reasonably related to the employer’s business interests
because it does not relate to the performance of the ­employee’s
work, and a violation of such a rule is not disqualifying
misconduct. 44 And we have held that a rule that prohibited
employees from associating with former employees was not
reasonably related to the company’s interests such that its vio-
lation amounted to misconduct for purposes of § 48-628.10. 45
We also observe that prior decisions of the appeal tribunal
designated by the Department of Labor as precedential 46
have applied the rule that violation of an order to perform
41
See, Douglas Cty. Sch. Dist. 001, supra note 30; Dolan v. Svitak, 247 Neb.
410, 527 N.W.2d 621 (1995); Great Plains Container Co., supra note 13;
Stuart v. Omaha Porkers, 213 Neb. 838, 331 N.W.2d 544 (1983); Snyder
Industries, Inc. v. Otto, 212 Neb. 40, 321 N.W.2d 77 (1982).
42
See Douglas Cty. Sch. Dist. 001, supra note 30; Dolan, supra note 41.
43
See Stuart, supra note 41.
44
See Great Plains Container Co., supra note 13.
45
See Snyder Industries, Inc., supra note 41.
46
Nebraska Appeal Tribunal decisions, http://dol.nebraska.gov/Appeals/
AppealsCases (last visited May 14, 2022).
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BADAWI v. ALBIN
Cite as 311 Neb. 603work is misconduct only if the order was reasonable under all
the circumstances. 47
Based on this precedent, the Department argues the district
court “applied the wrong legal standard” 48 here because it did
not consider, in its de novo review, the reasonableness of JBS’
order directing Badawi to perform both his existing job duties
and the job duties of the absent employee. The Department
argues that its “interest in this matter is in ensuring that the
correct legal standard is applied and that Badawi is disquali-
fied under § 48-628.10 only if a fact finder concludes that
the order he refused to comply with was reasonable under the
circumstances.” 49 It therefore asks that we remand the matter to
the district court with directions to conduct a de novo review
using “the appropriate legal standard.” 50
Although we generally agree with the Department that to
prove an employee committed misconduct by violating a rule,
policy, or order, the employer must show such was reason-
ably designed to protect the employer’s business relationship, 51
we think that remanding the cause to consider reasonable-
ness would be futile on this record. Especially given all
the “indiscernibles” which appear during Badawi’s testimony,
there is no competent evidence in this record regarding the
47
See 224 Neb. Admin. Code ch. 1, § 019. See, also, In re Marshall, 12
Neb. App. Trib. 5030 (2012) (finding employer’s job assignment was
reasonable under circumstances because employee could perform it within
time and work restrictions; In re Svoboda, 04 Neb. App. Trib. (2004)
(finding job assignment reasonable under circumstances because employee
knew requirements and had performed them on previous occasions); In
re Broomfield, 91 Neb. App. Trib. 0707 (1991) (finding job assignment
reasonable under circumstances because within job description).
48
Brief for appellee Department at 27.
49
Id. at 29 (emphasis in original).
50
Id.
51
See, Douglas Cty. Sch. Dist. 001, supra note 30; Dolan, supra note 41;
Great Plains Container Co., supra note 13; Stuart, supra note 41; Snyder
Industries, Inc., supra note 41.
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BADAWI v. ALBIN
Cite as 311 Neb. 603specific requirements of either of the two jobs Badawi was
asked to perform.
At best, this record shows only that because of the COVID-19
pandemic, fewer employees were available to work at JBS.
JBS thus ordered Badawi to perform both the job he was
currently performing and a job that had been performed by
another employee. Badawi refused the order to perform both
jobs because he thought he was not physically capable of doing
so. And the record shows that both before and after Badawi’s
discharge, the two jobs were performed by two individuals
rather than one.
Badawi testified that both jobs involved the use of knives,
and we can reasonably infer from that testimony that both jobs
involved cutting meat. But neither Badawi’s regular job duties
nor the duties of the additional job he was asked to perform
can be discerned from this record. And without competent evi-
dence of what each job entailed, it is impossible to find it was
reasonable for JBS to ask Badawi to perform both jobs.
On this record, there is no competent evidence to support the
district court’s finding that Badawi committed misconduct by
refusing to perform both jobs. JBS therefore failed to meet its
burden to prove Badawi was discharged for misconduct, and
we must reverse.
V. CONCLUSION
For the foregoing reasons, we reverse the judgment of the
district court and remand the cause with directions to remand
the cause to the appeal tribunal with directions to enter an
award consistent with this opinion.
Reversed and remanded with directions.