Nebraska Independent Contractor Agreement Template

Introduction

Key Things to Know

1. 1

   Unemployment insurance runs a full ABC test. Under Neb. Rev. Stat. 48-604(5) services performed for wages shall be deemed employment unless it is shown to the satisfaction of the commissioner that the individual is and will remain free from control or direction over performance both under the contract of service and in fact, that the service is either outside the usual course of the business or performed outside all of the places of business of the enterprise, and that the individual is customarily engaged in an independently established trade, occupation, profession, or business. All three are required and the burden sits on the party claiming contractor status.

2. 2

   The wage statute carries the same ABC test, which most states do not do. Neb. Rev. Stat. 48-1229(1) writes the three prongs into the Wage Payment and Collection Act's own definition of employee, essentially word for word with the unemployment provision. The wage act omits the phrase about showing the matter to the satisfaction of the commissioner, so in a private wage action the showing is made to the court instead of to an agency.

3. 3

   Both statutes shut the door on common law arguments. Each provision closes with the statement that it is not intended to be a codification of the common law and shall be considered complete as written. That language means a hiring party cannot fall back on familiar right of control case law to fill perceived gaps in the three prongs when the claim is an unemployment or wage payment claim.

4. 4

   Prong B is disjunctive, and that is the practical opening. The service qualifies if it is either outside the usual course of the business for which it is performed or performed outside of all of the places of business of the enterprise. A specialist doing work that the hiring business also performs can still satisfy prong B by genuinely working from the specialist's own premises, and a worker on the hiring party's site can satisfy it by doing work outside the hiring party's usual course of business.

5. 5

   Workers' compensation is carved out on purpose. The Employee Classification Act says in terms that it shall not be construed to affect or change the common-law interpretation of independent contractor status as it relates to tort liability or a workers' compensation claim. The divergence between the acts is therefore a legislative choice, not an accident of drafting, and a favorable ABC outcome for unemployment or wage purposes does not decide a comp claim.

6. 6

   Comp claims run on a ten factor control test. Neb. Rev. Stat. 48-115(2) covers every person in the service of an employer under any contract of hire, express or implied, oral or written, subject to a carve-out for employment not in the usual course of the trade, business, profession, or occupation of the employer. The Nebraska Supreme Court weighs ten Restatement factors, including the extent of control by agreement, whether the worker is engaged in a distinct occupation, who supplies the tools and place of work, the method of payment, and whether the work is part of the employer's regular business, with control or the right of control as the chief criterion. See Larson v. Hometown Communications, Inc., 248 Neb. 942, 540 N.W.2d 339 (1995), restated in Aboytes-Mosqueda v. LFA Inc., 306 Neb. 277, 944 N.W.2d 765 (2020).

7. 7

   Nebraska's prescribed-wording mandate is a posting, not a contract clause. Neb. Rev. Stat. 48-2910 requires construction and delivery-service contractors to post, in a conspicuous place at the job site or place of business and in both English and Spanish, a notice whose two paragraphs the statute sets out, advising workers of the right to be properly classified and directing complaints to the Department of Labor. Nebraska does not require a written independent contractor agreement, does not prescribe contract terms, and does not attach a presumption to what a contract says. For construction work, Neb. Rev. Stat. 48-2903(1) instead conditions contractor treatment on registration under the Contractor Registration Act before work begins together with a combined tax rate assignment.

Nebraska Requirements for Independent Contractor Agreement

• Nebraska ABC Test for Unemployment Insurance (Neb. Rev. Stat. 48-604(5))

  Services performed for wages shall be deemed employment unless it is shown to the satisfaction of the commissioner that the individual has been and will continue to be free from control or direction over performance both under the contract of service and in fact, that the service is either outside the usual course of the business or performed outside all of the places of business of the enterprise, and that the individual is customarily engaged in an independently established trade, occupation, profession, or business. All three prongs are required and the burden rests on the party asserting contractor status.

• Nebraska Wage Payment Act Uses the Same ABC Test (Neb. Rev. Stat. 48-1229(1))

  The Nebraska Wage Payment and Collection Act embeds the same three prongs inside its definition of employee, in wording that tracks the unemployment provision almost exactly. The wage act omits the reference to satisfying the commissioner, so the showing is made to the court in a private wage action. Draft the agreement so that the same facts support all three prongs in both forums rather than assuming a control test applies to wage claims.

• Nebraska Statutes Are Complete as Written and Displace the Common Law (Neb. Rev. Stat. 48-604(5), 48-1229(1))

  Both the unemployment and the wage payment provisions state that they are not intended to be a codification of the common law and shall be considered complete as written. A hiring party cannot supplement or soften the three prongs with right of control case law when the claim arises under either act, and satisfying a familiar multi-factor control analysis is not a defence to a failed prong.

• Nebraska Prong B Is Satisfied by Either Branch (Neb. Rev. Stat. 48-604(5)(b), 48-1229(1)(b))

  The service qualifies if it is either outside the usual course of the business for which it is performed or performed outside of all of the places of business of the enterprise. Because the prong is disjunctive, the agreement should identify which branch the engagement relies on and describe the facts supporting it, either by contrasting the contractor's services with the hiring party's usual line of business or by fixing the place of performance away from every location of the enterprise.

• Nebraska Workers' Compensation Is Expressly Left on the Common Law (Employee Classification Act)

  The Employee Classification Act provides that it shall not be construed to affect or change the common-law interpretation of independent contractor status as it relates to tort liability or a workers' compensation claim. The by-act divergence is deliberate. A favorable ABC outcome for unemployment or wage purposes does not decide a comp claim, and the agreement should record the control facts separately rather than relying on the ABC representations to serve both purposes.

• Nebraska Ten Factor Control Test for Workers' Compensation (Neb. Rev. Stat. 48-115(2); Larson v. Hometown Communications, Inc.)

  Coverage reaches every person in the service of an employer under any contract of hire, express or implied, oral or written, excluding persons whose employment is not in the usual course of the trade, business, profession, or occupation of the employer. The Nebraska Supreme Court applies ten Restatement factors, with control or the right of control as the chief criterion and no single factor conclusive. See Larson v. Hometown Communications, Inc., 248 Neb. 942, 540 N.W.2d 339 (1995), restated in Aboytes-Mosqueda v. LFA Inc., 306 Neb. 277, 944 N.W.2d 765 (2020).

• Nebraska Jobsite Posting in English and Spanish (Neb. Rev. Stat. 48-2910)

  Every construction or delivery-service contractor shall post in a conspicuous place at the job site or place of business, in English and Spanish, a two paragraph notice whose text is set out in the statute, advising workers of the right to be properly classified and directing complaints to the Department of Labor. The wording, the languages, and the placement are all prescribed. This is a posting duty and not a contract term, so it cannot be discharged by adding language to the agreement.

• Nebraska Construction Registration Condition (Neb. Rev. Stat. 48-2903(1))

  For construction work, contractor treatment is conditioned on registration under the Contractor Registration Act before work begins, together with a combined tax rate assignment. Confirm the registration is in place and current before the engagement starts, and take a representation in the agreement that the contractor will maintain it for the term. Registration is a status condition rather than a substitute for satisfying the classification test.

• Nebraska Gives the Contract Label Weight in One Forum Only (Larson v. Hometown Communications, Inc.)

  Whether the parties believe they are creating an agency relationship is one of the ten workers' compensation factors, which makes the agreement's own description of the relationship relevant evidence there. It is not controlling. In Larson the hiring party's handbook called its carriers independent contract merchants and the court looked past that description because routes, delivery times, and price were controlled. For unemployment and wage claims the label carries no weight, since both statutes are complete as written.