Judge rules the State of Nebraska was not in contempt for remote work actions after CIR ruling

By: - February 5, 2024 3:28 pm

Justin Hubly, executive director of the Nebraska Association of Public Employees, leads a noon-hour news conference Dec. 7, 2023, in Lincoln regarding Gov. Jim Pillen’s executive order mandating state employees return to in-peson offices by Jan. 2. (Zach Wendling/Nebraska Examiner)

LINCOLN — The State of Nebraska did not knowingly violate a Commission on Industrial Relations order when managers notified some state employees they were terminating previously approved work-from-home or remote-work agreements.

Jim Pillen
Gov. Jim Pillen, right, speaks at a news conference. (Paul Hammel/Nebraska Examiner)

Lancaster County District Court Judge Andrew Jacobsen ruled that the state did not “willfully” disregard the CIR order telling it to stand pat on Gov. Jim Pillen’s return-to-work executive order by ending arrangements approved before Pillen issued his order.

The Nebraska Association of Public Employees, or NAPE, had sought to hold the state in contempt of court for violating the December CIR order and notifying employees that their previously approved arrangements to work remotely were being rescinded.

Jacobsen, in a six-page order, said the Nebraska Department of Administrative Services and other state agency leaders had met and tried to figure out what the order allowed and did not. They also sought clarity from the CIR in a formal filing.

“That is exactly what the state should have done,” he wrote. “The state’s actions are not those of a party thumbing its nose at a tribunal. They are instead the actions of a party laboring to understand how a tribunal’s order should be applied to policies not considered by the tribunal.”

Spirit or letter of ruling?

He also ruled that the state would have had to disregard something in the language of the order to be held in contempt, not something inferred or implied. The ruling said the state might have violated the spirit of the CIR order, but not its letter. 

The order “did not expressly prohibit the state from changing the remote-work status of (individual) union members,” the judge wrote. It “prohibited the state from enforcing Executive Order 23-17,” Pillen’s order moving employees back to the office.

NAPE objection
Members of the Nebraska Commission of Industrial Relations — a state labor court — hear arguments over whether Gov. Jim Pillen’s order to end remote work should be suspended. Pictured are commissioners William Blake, center, and Dallas Jones, at right. A third member of the panel, Patricia Vannoy, was ill and could not attend. (Paul Hammel/Nebraska Examiner)

Jacobsen’s ruling said he did not hear specific testimony from people who had been called back to the office, so he could not consider the union’s testimony that people had been ordered to return. The union has since said the state is now following the CIR ruling. 

Justin Hubly, executive director of NAPE, said on Monday that the state has “fallen in line” and started following the spirit of the CIR order and that agencies stopped terminating employees’ remote-work arrangements. 

“We had to hold our members’ rights up and hold the state accountable,” Hubly said. “We’re glad they’re following it now. We wish they would’ve followed it out of the gate.”

He and other union leaders have said that 20% of state jobs are already vacant and that removing the ability of some state workers to work from home makes it harder to recruit employees. He has said child care is an issue for many.

The union represents about 3,000 state employees. It has argued that flexibility about how and where employees work saves the state money and helps avoid turnover and the costs of new hires.

The union has argued that any change in work status like remote work needs to be negotiated as part of a labor contract and cannot be unilaterally imposed. The Attorney General’s Office had no comment on the ruling.

The CIR continues to consider a permanent decision regarding Pillen’s executive order that state workers return to the office. 

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Aaron Sanderford
Aaron Sanderford

Political reporter Aaron Sanderford has tackled various news roles in his 20-plus year career. He has reported on politics, crime, courts, government and business for the Omaha World-Herald and Lincoln Journal-Star. He also worked as an assignment editor and editorial writer. He was an investigative reporter at KMTV.

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