48-115. Employee and worker, defined; inclusions; exclusions; waiver; election of coverage.

The terms employee and worker are used interchangeably and have the same meaning throughout the Nebraska Workers' Compensation Act. Such terms include the plural and all ages and both sexes. For purposes of the act, employee or worker shall be construed to mean:

(1) Every person in the service of the state or of any governmental agency created by it, including the Nebraska National Guard and members of the military forces of the State of Nebraska, under any appointment or contract of hire, expressed or implied, oral or written;

(2) Every person in the service of an employer who is engaged in any trade, occupation, business, or profession as described in section 48-106 under any contract of hire, expressed or implied, oral or written, including aliens and also including minors. Minors for the purpose of making election of remedies under the Nebraska Workers' Compensation Act shall have the same power of contracting and electing as adult employees.

As used in subdivisions (1) through (11) of this section, the terms employee and worker shall not be construed to include any person whose employment is not in the usual course of the trade, business, profession, or occupation of his or her employer.

If an employee subject to the Nebraska Workers' Compensation Act suffers an injury on account of which he or she or, in the event of his or her death, his or her dependents would otherwise have been entitled to the benefits provided by such act, the employee or, in the event of his or her death, his or her dependents shall be entitled to the benefits provided under such act, if the injury or injury resulting in death occurred within this state, or if at the time of such injury (a) the employment was principally localized within this state, (b) the employer was performing work within this state, or (c) the contract of hire was made within this state;

(3) Volunteer firefighters of any fire department of any rural or suburban fire protection district, city, village, or nonprofit corporation, which fire department is organized under the laws of the State of Nebraska. Such volunteers shall be deemed employees of such rural or suburban fire protection district, city, village, or nonprofit corporation while in the performance of their duties as members of such department and shall be considered as having entered and as acting in the regular course and scope of their employment from the instant such persons commence responding to a call to active duty, whether to a fire station or other place where firefighting equipment that their company or unit is to use is located or to any activities that the volunteer firefighters may be directed to do by the chief of the fire department or some person authorized to act for such chief. Such volunteers shall be deemed employees of such rural or suburban fire protection district, city, village, or nonprofit corporation until their return to the location from which they were initially called to active duty or until they engage in any activity beyond the scope of the performance of their duties, whichever occurs first.

Members of such volunteer fire department, before they are entitled to benefits under the Nebraska Workers' Compensation Act, shall be recommended by the chief of the fire department or some person authorized to act for such chief for membership therein to the board of directors of the rural or suburban fire protection district or nonprofit corporation, the mayor and city commission, the mayor and council, or the chairperson and board of trustees, as the case may be, and upon confirmation shall be deemed employees of such entity. Members of such fire department after confirmation to membership may be removed by a majority vote of the entity's board of directors or governing body and thereafter shall not be considered employees of such entity. Firefighters of any fire department of any rural or suburban fire protection district, nonprofit corporation, city, or village shall be considered as acting in the performance and within the course and scope of their employment when performing activities outside of the corporate limits of their respective districts, cities, or villages, but only if directed to do so by the chief of the fire department or some person authorized to act for such chief;

(4) Members of the Nebraska Emergency Management Agency, any city, village, county, or interjurisdictional emergency management organization, or any state emergency response team, which agency, organization, or team is regularly organized under the laws of the State of Nebraska. Such members shall be deemed employees of such agency, organization, or team while in the performance of their duties as members of such agency, organization, or team;

(5) Any person fulfilling conditions of probation, or community service as defined in section 29-2277, pursuant to any order of any court of this state who shall be working for a governmental body, or agency as defined in section 29-2277, pursuant to any condition of probation, or community service as defined in section 29-2277. Such person shall be deemed an employee of the governmental body or agency for the purposes of the Nebraska Workers' Compensation Act;

(6) Volunteer ambulance drivers and attendants and out-of-hospital emergency care providers who are members of an emergency medical service for any county, city, village, rural or suburban fire protection district, nonprofit corporation, or any combination of such entities under the authority of section 13-303. Such volunteers shall be deemed employees of such entity or combination thereof while in the performance of their duties as ambulance drivers or attendants or out-of-hospital emergency care providers and shall be considered as having entered into and as acting in the regular course and scope of their employment from the instant such persons commence responding to a call to active duty, whether to a hospital or other place where the ambulance they are to use is located or to any activities that the volunteer ambulance drivers or attendants or out-of-hospital emergency care providers may be directed to do by the chief or some person authorized to act for such chief of the volunteer ambulance service or out-of-hospital emergency care service. Such volunteers shall be deemed employees of such county, city, village, rural or suburban fire protection district, nonprofit corporation, or combination of such entities until their return to the location from which they were initially called to active duty or until they engage in any activity beyond the scope of the performance of their duties, whichever occurs first. Before such volunteer ambulance drivers or attendants or out-of-hospital emergency care providers are entitled to benefits under the Nebraska Workers' Compensation Act, they shall be recommended by the chief or some person authorized to act for such chief of the volunteer ambulance service or out-of-hospital emergency care service for membership therein to the board of directors of the rural or suburban fire protection district or nonprofit corporation, the governing body of the county, city, or village, or combination thereof, as the case may be, and upon such confirmation shall be deemed employees of such entity or combination thereof. Members of such volunteer ambulance or out-of-hospital emergency care service after confirmation to membership may be removed by majority vote of the entity's board of directors or governing body and thereafter shall not be considered employees of such entity. Volunteer ambulance drivers and attendants and out-of-hospital emergency care providers for any county, city, village, rural or suburban fire protection district, nonprofit corporation, or any combination thereof shall be considered as acting in the performance and within the course and scope of their employment when performing activities outside of the corporate limits of their respective county, city, village, or district, but only if directed to do so by the chief or some person authorized to act for such chief;

(7) Members of a law enforcement reserve force appointed in accordance with section 81-1438. Such members shall be deemed employees of the county or city for which they were appointed;

(8) Any offender committed to the Department of Correctional Services who is employed pursuant to section 81-1827. Such offender shall be deemed an employee of the Department of Correctional Services solely for purposes of the Nebraska Workers' Compensation Act;

(9) An executive officer of a corporation elected or appointed under the provisions or authority of the charter, articles of incorporation, or bylaws of such corporation who owns less than twenty-five percent of the common stock of such corporation or an executive officer of a nonprofit corporation elected or appointed under the provisions or authority of the charter, articles of incorporation, or bylaws of such corporation who receives annual compensation of more than one thousand dollars from such corporation. Such executive officer shall be an employee of such corporation under the Nebraska Workers' Compensation Act.

An executive officer of a corporation who owns twenty-five percent or more of the common stock of such corporation or an executive officer of a nonprofit corporation who receives annual compensation of one thousand dollars or less from such corporation shall not be construed to be an employee of the corporation under the Nebraska Workers' Compensation Act unless such executive officer elects to bring himself or herself within the provisions of the act. Such election shall be in writing and filed with the secretary of the corporation and with the workers' compensation insurer. Such election shall be effective upon receipt by the insurer for the current policy and subsequent policies issued by such insurer and shall remain in effect until the election is terminated, in writing, by the officer and the termination is filed with the insurer or until the insurer ceases to provide coverage for the corporation, whichever occurs first. Any such termination of election shall also be filed with the secretary of the corporation. If insurance is provided through a master policy or a multiple coordinated policy pursuant to the Professional Employer Organization Registration Act on or after January 1, 2012, then such election or termination of election shall also be filed with the professional employer organization. If coverage under the master policy or multiple coordinated policy ceases, then such election shall also be effective for a replacement master policy or multiple coordinated policy obtained by the professional employer organization and shall remain in effect for the new policy as provided in this subdivision. If such an executive officer has not elected to bring himself or herself within the provisions of the Nebraska Workers' Compensation Act pursuant to this subdivision and a health, accident, or other insurance policy covering such executive officer contains an exclusion of coverage if the executive officer is otherwise entitled to workers' compensation coverage, such exclusion is null and void as to such executive officer.

It is the intent of the Legislature that the changes made to this subdivision by Laws 2002, LB 417, shall apply to policies of insurance against liability arising under the act with an effective date on or after January 1, 2003, but shall not apply to any such policy with an effective date prior to January 1, 2003;

(10) Each individual employer, partner, limited liability company member, or self-employed person who is actually engaged in the individual employer's, partnership's, limited liability company's, or self-employed person's business on a substantially full-time basis who elects to bring himself or herself within the provisions of the Nebraska Workers' Compensation Act. Such election shall be in writing and filed with the workers' compensation insurer. Such election shall be effective upon receipt by the insurer for the current policy and subsequent policies issued by such insurer and shall remain in effect until the election is terminated, in writing, by such person and the termination is filed with the insurer or until the insurer ceases to provide coverage for the business, whichever occurs first. If insurance is provided through a master policy or a multiple coordinated policy pursuant to the Professional Employer Organization Registration Act on or after January 1, 2012, then such election or termination of election shall also be filed with the professional employer organization. If coverage under the master policy or multiple coordinated policy ceases, then such election shall also be effective for a replacement master policy or multiple coordinated policy obtained by the professional employer organization and shall remain in effect for the new policy as provided in this subdivision. If any such person who is actually engaged in the business on a substantially full-time basis has not elected to bring himself or herself within the provisions of the Nebraska Workers' Compensation Act pursuant to this subdivision and a health, accident, or other insurance policy covering such person contains an exclusion of coverage if such person is otherwise entitled to workers' compensation coverage, such exclusion shall be null and void as to such person; and

(11) An individual lessor of a commercial motor vehicle leased to a motor carrier and driven by such individual lessor who elects to bring himself or herself within the provisions of the Nebraska Workers' Compensation Act. Such election is made if he or she agrees in writing with the motor carrier to have the same rights as an employee only for purposes of workers' compensation coverage maintained by the motor carrier. For an election under this subdivision, the motor carrier's principal place of business must be in this state and the motor carrier must be authorized to self-insure liability under the Nebraska Workers' Compensation Act. Such an election shall (a) be effective from the date of such written agreement until such agreement is terminated, (b) be enforceable against such self-insured motor carrier in the same manner and to the same extent as claims arising under the Nebraska Workers' Compensation Act by employees of such self-insured motor carrier, and (c) not be deemed to be a contract of insurance for purposes of Chapter 44. Section 48-111 shall apply to the individual lessor and the self-insured motor carrier with respect to personal injury or death caused to such individual lessor by accident or occupational disease arising out of and in the course of performing services for such self-insured motor carrier in connection with such lease while such election is effective.

Source

Cross References

Annotations

1. State and governmental agencies

2. Employer's regular business

3. Casual employment

4. Independent contractor

5. Employee

6. Miscellaneous

1. State and governmental agencies

Member of posse called into service by sheriff was entitled to compensation. Anderson v. Bituminous Casualty Co., 155 Neb. 590, 52 N.W.2d 814 (1952).

To authorize recovery as a fireman under this section, it must appear: (1) That there was a regularly organized fire department as distinguished from an unorganized group; (2) that the injured workman was a member of such organization; and (3) that he was recommended by the chief of the fire department and confirmed by the governing board of the municipality. Clark v. Village of Hemingford, 147 Neb. 1044, 26 N.W.2d 15 (1947).

Terms employee and workman include every person in the service of the state or of any governmental agency created by it, under any appointment or contract of hire. Steward v. Deuel County, 137 Neb. 516, 289 N.W. 877 (1940).

While state intended to waive its sovereignty and to give consent to be sued under Workmen's Compensation Act, failure to provide manner of service of process, prior to 1940 amendment, rendered state immune. Anstine v. State, 137 Neb. 148, 288 N.W. 525 (1939).

Employee of city on W.P.A. project is an employee of city under compensation act. Hendershot v. City of Lincoln, 136 Neb. 606, 286 N.W. 909 (1939).

Fireman of city of Omaha was entitled to benefits of workmen's compensation law. Shandy v. City of Omaha, 127 Neb. 406, 255 N.W. 477 (1934).

Employee of county in connection with maintenance and protection of bridges had compensable status as employee. Davis v. Lincoln County, 117 Neb. 148, 219 N.W. 899 (1928).

Fireman employed by city has compensable status. City of Fremont v. Lea, 115 Neb. 565, 213 N.W. 820 (1927).

Employee of National Guard is entitled to compensation. Nebraska Nat. Guard v. Morgan, 112 Neb. 432, 199 N.W. 557 (1924).

Under former law, excluding from act those whose employment was not for the purpose of gain or profit, employees of governmental agencies were not entitled to compensation, such as a janitor employed by city school district. Ray v. School Dist. of Lincoln, 105 Neb. 456, 181 N.W. 140 (1920).

Police are protected by act. Rooney v. City of Omaha, 105 Neb. 447, 181 N.W. 143 (1920).

2. Employer's regular business

A carpenter employed by farmer to build machine shop on farm is not in the course of employer's occupation within meaning of Workmen's Compensation Act. Guse v. Wessels, 132 Neb. 41, 270 N.W. 665 (1937).

Hod-carrier injured in construction of apartment was engaged in employer's regular business. Bauer v. Anderson, 114 Neb. 326, 207 N.W. 508 (1926).

Painting building of wholesale drug corporation was work within usual course of trade. Sherlock v. Sherlock, 112 Neb. 797, 201 N.W. 645 (1924).

Preparing for encampment of National Guard was regular business. Nebraska Nat. Guard v. Morgan, 112 Neb. 432, 199 N.W. 557 (1924).

Caring for buildings owned by person engaged in other business is not regular business, and workman injured in repairing same was not entitled to compensation. Kaplan v. Gaskill, 108 Neb. 455, 187 N.W. 943 (1922).

3. Casual employment

Employee hired for a day at a time on any sale day by livestock sales barn was not a casual employee. Gruber v. Stickelman, 149 Neb. 627, 31 N.W.2d 753 (1948).

Where employment is casual and not within the trade, business, profession, or occupation of the employer, recovery cannot be had under Workmen's Compensation Act. McConnell v. Johnston, 139 Neb. 619, 298 N.W. 346 (1941).

The term casual is construed to mean occasional, coming at certain times without regularity, in distinction from stated or regular. Hiestand v. Ristau, 135 Neb. 881, 284 N.W. 756 (1939).

Workman cleaning snow from street intersections and suffering injury, was not casual employee and was entitled to compensation hereunder. Sentor v. City of Lincoln, 124 Neb. 403, 246 N.W. 924 (1933).

Employment was not casual. Sherlock v. Sherlock, 112 Neb. 797, 201 N.W. 645 (1924); Nebraska Nat. Guard v. Morgan, 112 Neb. 432, 199 N.W. 557 (1924); Nosky v. Farmers Union Co-op. Assn., 109 Neb. 489, 191 N.W. 846 (1922); Kaplan v. Gaskill, 108 Neb. 455, 187 N.W. 943 (1922); Nedela v. Mares Auto Co., 106 Neb. 883, 184 N.W. 885 (1921).

Where a person enters the employment of another to render a particular service that is not continuous or regular but only occasional or incidental to the business, the employment is casual. Petrow & Giannou v. Shewan, 108 Neb. 466, 187 N.W. 940 (1922).

Unloading coal cars at irregular intervals is casual employment. Bridger v. Lincoln Feed & Fuel Co., 105 Neb. 222, 179 N.W. 1020 (1920).

4. Independent contractor

Person who contracts to supply all labor, construct a barn according to a plan furnished, furnishes own tools, and receives a definite amount for the work done, is an independent contractor. Lowe v. Chicago Lumber Co., 135 Neb. 735, 283 N.W. 841 (1939).

Person who contracted to unload coal at specified price per ton, with right to employ his own assistants and determine how work should be done, was an independent contractor. Prescher v. Baker Ice Machine Co., 132 Neb. 648, 273 N.W. 48 (1937).

Independent contractor is defined. Hines v. Martel Telephone Co., 127 Neb. 398, 255 N.W. 233 (1934).

Solicitor for advertising contracts on percentage basis, paying own traveling expenses and working without control or direction from employer, was not employee within meaning of this act. Johnston v. Smith, 123 Neb. 716, 243 N.W. 894 (1932).

Evidence established that deceased, owner and manager of insurance agency, was independent contractor. Priest v. Business Men's Protective Assn., 117 Neb. 198, 220 N.W. 255 (1928).

Contractor for construction of highway is independent contractor. Potter v. Scotts Bluff County, 112 Neb. 318, 199 N.W. 507 (1924).

Plumber is an independent contractor, and not an employee within Workmen's Compensation Act. Petrow & Giannou v. Shewan, 108 Neb. 466, 187 N.W. 940 (1922).

One employed by a contractor as superintendent of construction is not an independent contractor. Otis Elevator Co. v. Miller & Paine, 240 F. 376 (8th Cir. 1917).

5. Employee

Officers of a corporation are within the definition of "employee" for purposes of the Nebraska workers' compensation law. Bituminous Casualty Corp. v. Deyle, 225 Neb. 82, 402 N.W.2d 859 (1987).

While one entering into a contract for hire in this state for work to be performed elsewhere, standing alone, may be a statutory employee under the provisions of subsection (2)(c) of this section, unless the employer, who is a nonresident, is performing work in this state, it is not a statutory employer as defined by sections 48-114 and 48-106(1). Absent a statutory employer, the provisions of section 48-101 have no application. Jensen v. Floair, 212 Neb. 740, 326 N.W.2d 19 (1982).

Under the facts, the claimant was too involved with the ownership and management of the business to be considered an employee. Williams v. Williams Janitorial Service, 207 Neb. 344, 299 N.W.2d 160 (1980).

Under the facts of this case, the Workmen's Compensation Court was clearly wrong in finding that the two defendants were joint employers of the plaintiff but was correct in finding an employer-employee relationship between one of the defendants and the plaintiff. White v. Western Commodities, Inc., 207 Neb. 75, 295 N.W.2d 704 (1980).

Employee, as distinguished from a servant generally, must serve under a contract of hire. Shamburg v. Shamburg, 153 Neb. 495, 45 N.W.2d 446 (1950).

Truck driver, owning and operating his own truck and paid according to amount of gravel hauled, but subject to order and directions of owner of gravel pit, was employee entitled to compensation. Westcoatt v. Lilley, 134 Neb. 376, 278 N.W. 854 (1938).

Volunteer firemen in village are not employees of village within workmen's compensation law until they have been recommended for membership by chief of the fire department and been confirmed by chairman and board of trustees. Eagle Indemnity Co. v. Village of Creston, 129 Neb. 850, 263 N.W. 220 (1935).

One engaged by village to care for swimming pool and park whose compensation was twenty dollars a week plus receipts from pool, was an employee. Schou v. Village of Hildreth, 127 Neb. 784, 257 N.W. 70 (1934).

Village marshal was not an employee within meaning of Workmen's Compensation Act. Suverkrubbe v. Village of Fort Calhoun, 127 Neb. 472, 256 N.W. 47 (1934).

Salesman selling on a commission is an employee and not independent contractor. Aeschleman v. Haschenburger Co., 127 Neb. 207, 254 N.W. 899 (1934).

Truck owner, engaged by contractor furnishing gravel for county highway, was not independent contractor but an employee, and county letting contract without requiring contractor to furnish insurance policy protecting contractor's employees, was jointly liable with contractor to its employees who received compensable injury. Standish v. Larsen-Merryweather Co., 124 Neb. 197, 245 N.W. 606 (1932).

Where plaintiff did repair work on call from time to time for hardware store, under its orders and direction, although he furnished his own tools and equipment, he was an employee within meaning of this section. Cole v. Minnick, 123 Neb. 871, 244 N.W. 785 (1932).

Whether party is employee or independent contractor must be determined from facts of particular case. Truck driver hauling gravel for county highway was an employee hereunder. Showers v. Lund, 123 Neb. 56, 242 N.W. 258 (1932).

Caretaker of live poultry being shipped to market in another state is employee, not independent contractor. Claus v. DeVere, 120 Neb. 812, 235 N.W. 450 (1931).

Every person in the employ of the state or a governmental agency thereof is an employee within the meaning of the act. Eidenmiller v. State, 120 Neb. 430, 233 N.W. 447 (1930).

Where workman engaged in dragging roads for county was injured by horse while caring for it during noon hour, accident arose out of and in course of employment and was compensable hereunder. Speas v. Boone County, 119 Neb. 58, 227 N.W. 87 (1929).

Pursuant to subsection (2) of this section, illegal aliens are included in the definition of employees or workers. Visoso v. Cargill Meat Solutions, 18 Neb. App. 202, 778 N.W.2d 504 (2009).

Pursuant to subdivision (2) of this section, the terms "employee" and "worker" do not include any person whose employment is not in the usual course of the trade, business, profession, or occupation of his or her employer. Morin v. Industrial Manpower, 13 Neb. App. 1, 687 N.W.2d 704 (2004).

Pursuant to subdivision (2) of this section, under the Nebraska Workers' Compensation Act, an "employee" or "worker" is defined as every person in the service of an employer who is engaged in any trade, occupation, business, or profession as described in section 48-106 under any contract of hire, expressed or implied, oral or written. Morin v. Industrial Manpower, 13 Neb. App. 1, 687 N.W.2d 704 (2004).

6. Miscellaneous

An employee's illegal residence or work status does not bar an award of indemnity for permanent total loss of earning capacity. Moyera v. Quality Pork Internat., 284 Neb. 963, 825 N.W.2d 409 (2013).

Where a claimant is under a conditional offer of employment at the time of an alleged injury, the Workers' Compensation Court does not have jurisdiction, pursuant to this section, to make a determination of compensability. Gebhard v. Dixie Carbonic, 261 Neb. 715, 625 N.W.2d 207 (2001).

A finding that one party is an "employer" under section 48-114 and a finding that the other relevant party is an "employee" under this section are necessary to engage section 48-109, which binds the parties to the compensation schedule of the Nebraska Workers' Compensation Act. Kaiser v. Millard Lumber, Inc., 255 Neb. 943, 587 N.W.2d 875 (1999).

Subsection (2) of this section recognizes that a contract for hire may be expressed or implied, including a contract with minors. Larson v. Hometown Communications, Inc., 248 Neb. 942, 540 N.W.2d 339 (1995).

Under subsection (2) of this section, the right to recover workers' compensation benefits is in the employee, even if the employee is a minor. Lawson v. Smith, 241 Neb. 639, 489 N.W.2d 566 (1992).

Under the facts of this case, the claimant was a loaned employee but there was no consensual relationship sufficient to create a new employer-employee relationship. Therefore, the lending employer remained liable for his workmen's compensation. B & C Excavating Co. v. Hiner, 207 Neb. 248, 298 N.W.2d 155 (1980).

Minor driving truck loaded with crude oil was legally permitted to work. Krajeski v. Beem, 157 Neb. 586, 60 N.W.2d 651 (1953).

A working partner is not entitled to compensation as an employee. Rasmussen v. Trico Feed Mills, 148 Neb. 855, 29 N.W.2d 641 (1947).

Officer of township engaging in removal of obstructions from highway although not part of his official duties, was not employee hereunder. Vandenburg v. Center Township, 123 Neb. 544, 243 N.W. 636 (1932), affirmed on rehearing, 124 Neb. 790, 248 N.W. 310 (1933).

Salesman, injured in Iowa, where he was hired, his work being directed from Omaha office, was covered by Nebraska Workmen's Compensation Act. Skelly Oil Co. v. Gaugenbaugh, 119 Neb. 698, 230 N.W. 688 (1930).

Minor employee, between fourteen and sixteen, may maintain action at common law for injuries while employed in laundry, against employer failing to procure employment certificate, and such minor need not have been classified in order to sue. Benner v. Evans Laundry Co., 117 Neb. 701, 222 N.W. 630 (1929).

Nebraska Workmen's Compensation Act does not apply to workman engaged in Nebraska by Kansas employer to work in Kansas, where injured. Watts v. Long, 116 Neb. 656, 218 N.W. 410 (1928).

Corporation subject to Workmen's Compensation Act is liable to workman employed by independent contractor, where insurance was not required. Sherlock v. Sherlock, 112 Neb. 797, 201 N.W. 645 (1924).

Provision of this section restricting parent's right of recovery for injuries to minor was unconstitutional, as not germane. Allen v. Trester, 112 Neb. 515, 199 N.W. 841 (1924).

The record contained sufficient evidence to support the trial judge's conclusion that the worker was self-employed and that the worker did not comply with subsection (10) of this section. Nerison v. National Fire Ins. Co. of Hartford, 17 Neb. App. 161, 757 N.W.2d 21 (2008).