Nebraska Supreme Court upholds order prohibiting remote work for most state employees

The Nebraska Supreme Court released an opinion Friday upholding an executive order that prohibited most state employees from working remotely – but it reversed the decision of a labor tribunal finding that the state employee union acted in bad faith when it challenged the policy change.

The dispute stemmed from a 2023 executive order from Gov. Jim Pillen that directed state employees to work “in the office, facility, or field location assigned by their agency and not from a remote location.” Agency heads were able to make exceptions for individual employees under the order.

The Nebraska Association of Public Employees, or NAPE, demanded to bargain over the order, but the state declined and said the existing agreement allowed for the state to change the worksite. NAPE filed an appeal with the state Commission on Industrial Relations, or CIR, a quasi-judicial administrative body established to resolve public sector labor disputes.

The CIR sided with the state in the dispute and found that NAPE engaged in “a pattern of willful, flagrant, aggravated, persistent, and pervasive prohibited misconduct by pursuing this action in bad faith.” The union was ordered to pay the state’s attorney fees, totaling more than $42,000. NAPE appealed the CIR decision and the award of attorney fees.

In Friday’s 22-page unanimous decision penned by Justice Jonathan Papik, the Nebraska Supreme Court agreed that the remote work order was covered by language in the existing labor contract allowing the state to “increase, reduce, change, modify and alter the composition and site of the work force.”

At the heart of the dispute is a legal principle called the “contract coverage rule,” which was adopted by the Nebraska Supreme Court in 2012. As explained by Papik in the decision, the rule states that “if an issue is covered by the collective bargaining agreement, the parties are not obligated to bargain over it even if it would otherwise be a mandatory subject of bargaining.” Mandatory subjects of bargaining include issues like wages, hours and terms and conditions of employment.

NAPE argued that, even if the remote work policy was covered in the existing agreement, the state still had to bargain over the implementation policy. The state’s high court disagreed.

“It is more natural, in our view, to interpret an agreement that gives the employer the authority to make a particular decision to also confer the authority to the employer to choose the procedures it will follow in implementing that decision,” Papik wrote.

NAPE’s executive director, Justin Hubly, said in a statement that the decision was “disappointing” but provided clarity on when the state is required to bargain.

“We appreciate the time the court took to hear our case, and we’re proud of our members who stood united to protect their rights,” he said. “Since the court determined remote work is covered by our contract, we will continue to represent our members through our negotiated grievance process.”

The Supreme Court did reverse the award of attorney fees, finding that NAPE presented a "nonridiculous argument” that didn’t clear the high bar to be considered frivolous.

“We have concluded that NAPE’s petition in this matter lacked merit, but we cannot agree that it was so lacking in legal support as to be frivolous,” Papik wrote.

By way of full disclosure, some Nebraska Public Media staff members are state employees.