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Nebraska Independent Contractor Agreement Template

Nebraska put the ABC test in its wage statute as well as its unemployment statute, then wrote a sentence keeping workers' compensation out of it.

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Introduction

An Independent Contractor Agreement is a contract between a business and a self-employed worker covering scope, payment, ownership of the work product, and how the engagement ends. Classification is settled by a legal test rather than by the title on the document, and in Nebraska the test you face depends on which statute is being applied. Unemployment insurance runs the ABC test at Neb. Rev. Stat. 48-604(5). The Nebraska Wage Payment and Collection Act puts essentially the same three prongs into its own definition of employee at Neb. Rev. Stat. 48-1229(1), which is unusual, because most states leave wage claims to a looser control or economic realities standard. Both provisions add the same warning that they are not intended to be a codification of the common law and shall be considered complete as written. Workers' compensation then goes the other way, and it does so by design: the Employee Classification Act states 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, leaving comp claims on the Nebraska Supreme Court's ten factor control test. Nebraska's one prescribed-wording requirement is a jobsite posting under Neb. Rev. Stat. 48-2910, not a clause you put in the contract.

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.

Key decisions before you file

Before you file a Independent Contractor Agreement in Nebraska, a few decisions shape the document: which option to choose and what each one means. The Independent Contractor Agreement guide walks through them.

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Nebraska Independent Contractor Agreement (Compact State Terms)

The clauses below are the Nebraska layer only. They sit on top of an ordinary independent contractor agreement, which supplies the parties, scope and deliverables, fees, term and termination, ownership of work product, confidentiality, taxes, indemnity, and general provisions. Keep those clauses and add these to them.

N1. Which test applies to what. Nebraska runs the ABC test in Neb. Rev. Stat. 48-604(5) for unemployment insurance and, in nearly identical words, in 48-1229(1) for wage payment claims. Workers' compensation is decided instead on the common law right of control. Clauses N2 to N4 are drafted to the ABC prongs; N5 addresses workers' compensation separately, because one outcome does not carry to the other.

N2. Prong A, freedom from control. Contractor has been and will continue to be free from control or direction over the performance of the Services, both under this Agreement and in fact. Company may state the result to be achieved and the deadline for achieving it. Company does not direct the means, methods, sequence, hours, or supervision of the work.

N3. Prong B, complete one branch. Prong B is satisfied by either branch, so choose the one that is true and delete the other. Branch one: the Services are outside the usual course of the business for which they are performed, Company's business being [COMPANY BUSINESS] and the Services being [DESCRIPTION OF SERVICES]. Branch two: the Services are performed outside of all of the places of business of the enterprise, at [PLACE OF PERFORMANCE].

N4. Prong C, independently established business. Contractor is customarily engaged in an independently established trade, occupation, profession, or business. Contractor represents that Contractor offers the Services to the general public, is free to accept work from others during the Term, maintains Contractor's own tools, equipment, and business records, and bears the opportunity for profit and the risk of loss on the Services.

N5. Workers' compensation is decided separately. The parties acknowledge that the Employee Classification Act 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. A workers' compensation question is therefore decided under Neb. Rev. Stat. 48-115(2) and the ten factor control test, in which the right of control is the chief criterion and no single factor is conclusive. The parties' own description of the relationship is one of those factors and is not controlling.

N6. Jobsite posting for construction and delivery services. Where the Services are construction or delivery services, Neb. Rev. Stat. 48-2910 requires the contractor to post, in a conspicuous place at the job site or place of business and in both English and Spanish, the notice whose text the statute sets out. That is a posting duty rather than a contract term, and this clause allocates responsibility for it. Party responsible for posting: [PARTY].

N7. Contractor registration. Where the Services are construction services, Contractor represents that Contractor is registered under the Contractor Registration Act before beginning work, consistent with the conditions in Neb. Rev. Stat. 48-2903(1), and will remain registered for the Term.

This Nebraska edition is general information, not legal advice; attorney review is available.

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.

Frequently Asked Questions

Nebraska applies the same strict three prong ABC test to unemployment insurance and to wage payment claims, at Neb. Rev. Stat. 48-604(5) and 48-1229(1), while deliberately leaving workers' compensation on the common law control test. A Nebraska agreement therefore has to do two different jobs at once: record facts that satisfy all three ABC prongs, and separately record the control facts that a comp tribunal will weigh.

Yes. Neb. Rev. Stat. 48-1229(1) writes the three prongs into the Wage Payment and Collection Act's definition of employee, in wording that tracks the unemployment provision almost exactly, including the statement that the subdivision is not intended to be a codification of the common law and shall be considered complete as written. Most states leave wage claims to a control or economic realities analysis, so a template built for those states can be a poor fit here.

Prong B asks whether the service 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 it is written in the alternative, only one branch has to be true. That gives two workable routes: engage the worker for something genuinely outside your usual line of business, or engage a specialist who really does the work from the specialist's own premises rather than yours.

No, and Nebraska says so expressly. 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. A worker can satisfy all three ABC prongs for unemployment and wage purposes and still be treated as an employee for a comp claim under Neb. Rev. Stat. 48-115(2) and the ten factor control test.

The common law right of control, applied through ten Restatement factors: the extent of control by agreement, whether the worker is in a distinct occupation or business, the kind of occupation and whether it is usually done under supervision locally, the skill required, who supplies the tools and place of work, the length of engagement, the method of payment, whether the work is part of the employer's regular business, whether the parties believe they are creating an agency relationship, and whether the employer is in business. No factor is conclusive, and control is the chief criterion.

Only a little, and only in one forum. What the parties believe they are creating is one of the ten workers' compensation factors, so the label is evidence there. It is not controlling. In Larson v. Hometown Communications, Inc., 248 Neb. 942, 540 N.W.2d 339 (1995), the newspaper's own handbook described its carriers as independent contract merchants, and the court looked past that because the company controlled routes, delivery times, and price. For unemployment and wage claims the label carries no weight at all, since both statutes are complete as written.

No. Nebraska does not require the agreement to be in writing, does not prescribe contract terms, and does not attach any classification presumption to what a contract says. The prescribed-wording requirement in Nebraska law is a posting duty under Neb. Rev. Stat. 48-2910 rather than a drafting duty, so a compliant contract does not discharge it and a compliant posting does not improve the contract.

Neb. Rev. Stat. 48-2910 sets out the text. Construction and delivery-service contractors must post it in a conspicuous place at the job site or place of business, in both English and Spanish. The notice tells workers about the right to be properly classified and directs complaints to the Department of Labor. Because the statute prescribes the wording, the languages, and the placement, a paraphrase or an English-only version does not comply.

Yes. Neb. Rev. Stat. 48-2903(1) conditions contractor treatment in construction on registration under the Contractor Registration Act before work begins, alongside a combined tax rate assignment. That is a status condition rather than a contract term, so it is worth confirming the registration is in place and current before the engagement starts and building a representation about it into the agreement. Attorney review is an option for construction engagements where the exposure is significant.

The consequences follow the act that was applied. An unemployment insurance determination under Neb. Rev. Stat. 48-604(5) can produce liability for contributions on wages that were treated as contractor payments. A wage payment claim under Neb. Rev. Stat. 48-1229(1) is brought by the worker in court rather than before the commissioner. And a workers' compensation finding under the ten factor test can expose an uninsured hiring party even where the unemployment and wage analyses came out favorably, which is exactly why the tests should be assessed separately.