Nebraska Supreme Court hears arguments over state’s in-person work requirement

The Nebraska Supreme Court heard arguments Tuesday in a long-running dispute between the state and unionized employees over an executive order prohibiting remote work under most circumstances.

In late 2023, Nebraska Gov. Jim Pillen issued an executive order directing all state employees to “perform their work in the office, facility, or field location assigned by their agency and not from a remote location.” The order included some exceptions to the return-to-work policy.

The order came as a surprise to the Nebraska Association of Public Employees, or NAPE, a union of more than 8,000 state government workers. The union filed a demand to bargain over the specifics of the policy change – like what criteria would be used to decide if an employee could continue remote work, and how to proceed if an agency’s physical office space was at full capacity. The state declined to negotiate on the issue.

NAPE then filed a petition with the Commission of Industrial Relations, or CIR, a tribunal responsible for mitigating disputes between public labor unions and the state, alleging that the state was required under the terms of their contract to negotiate the return-to-work policy.

The CIR sided with the state. It found that the state maintained broad management rights, including the right to modify an employee’s responsibility to report to the office, under the existing union contract that had been agreed to in February 2023. It also agreed that the state had no obligation to bargain with the union about the telework policy because it was already covered under the existing contract.

In addition to ruling against NAPE, the CIR also ordered the union to pay more than $42,000 in attorney’s fees and costs due to a finding that the petition was filed frivolously and in bad faith in an attempt to delay the implementation of the return-to-work policy and “possibly to increase its membership.”

That decision was appealed to the Nebraska Supreme Court, which heard oral arguments in the case on Tuesday. NAPE’s attorney, Richard Griffin, argued that the state did have an obligation to bargain over the return-to-work policy and that the award of attorney fees was in error and violated the union’s First Amendment rights.

Zachary Viglianco, representing the state, said the CIR made the right decision on both the merits and in awarding attorney’s fees and urged the court to uphold its rulings.

“There’s multiple different pathways in the language of the [Collective Bargaining Agreement] that illustrate that the state reserved effectively complete control about where you work,” Viglianco said.

The case was taken under advisement, and the Nebraska Supreme Court is likely to issue a ruling in the coming months.