Badawi v. Albin, 311 Neb. 603

Background

Saied Badawi worked for JBS Swift Beef from January 2019 until May 19, 2020; during the COVID-19 pandemic JBS asked him to perform his regular duties plus the duties of an absent co-worker.
Badawi refused to perform both jobs, claiming it was impossible/safety‑sensitive; JBS suspended him multiple times and then barred him from the premises.
JBS did not appear at the telephone hearing before the Nebraska Appeal Tribunal; Badawi testified (through an interpreter) but the record contains many “indiscernible” transcript gaps.
The Appeal Tribunal found Badawi not to have voluntarily quit but disqualified him for 14 weeks for misconduct (refusing to work two positions).
The district court affirmed on de novo review; the Nebraska Supreme Court (on review for errors appearing on the record) reversed, holding JBS failed to prove misconduct because the record lacks competent evidence that the employer’s order was reasonable or that Badawi violated a rule requiring him to perform two jobs.
The Supreme Court also expressly held that in unemployment disputes the employer bears the burden to prove discharge for misconduct and confirmed the tribunal may proceed when a respondent fails to appear.

Issues

Issue	Plaintiff's Argument (Badawi)	Defendant's Argument (JBS/Department)	Held
Who bears the burden to prove discharge for misconduct under § 48-628.10?	Employer cannot meet burden because it presented no evidence at tribunal; burden should not fall on claimant.	Employer and Department: employer bears the burden but may meet it through tribunal procedures.	Employer bears the burden to prove discharge for misconduct.
Does respondent’s nonappearance at the Appeal Tribunal prevent the employer from meeting its burden?	Nonappearance means employer failed to meet burden (analogized to prosecutor not appearing).	Tribunal rules permit proceeding on evidence of appealing party; hearing officer must seek reasonably available evidence.	Tribunal may proceed without respondent; employer’s absence does not automatically preclude a finding if competent evidence exists.
Is refusing an employer’s order to perform two jobs per se misconduct?	Badawi: refusal was reasonable because the order effectively required doing two concurrent jobs and was impossible/unsafe.	JBS/Dept.: refusal to follow a legitimate assignment violates employer policy and constitutes misconduct; order was reasonable.	Refusal is misconduct only if the order/rule was legitimate and reasonable under the circumstances; employer must prove reasonableness.
Was there competent evidence here to find misconduct?	Badawi: record lacks competent evidence about the duties and reasonableness; many transcript gaps.	JBS/Dept.: facts show Badawi repeatedly refused assigned work; policy required temporary fill-ins.	No competent evidence in the record about the specific job duties or that it was reasonable to require one worker to perform both jobs; employer failed to meet its burden — reversal and remand.

Key Cases Cited

NEBCO, Inc. v. Murphy, 280 Neb. 145 (2010) (implies employer must show termination for misconduct)
Great Plains Container Co. v. Hiatt, 225 Neb. 558 (1987) (employer must show rule is reasonably related to business; failure to show gross misconduct when only ordinary misconduct alleged)
Douglas County Sch. Dist. 001 v. Dutcher, 254 Neb. 317 (1998) (defines misconduct standards in unemployment context)
Meyers v. Nebraska State Penitentiary, 280 Neb. 958 (2010) (misconduct includes willful disregard of employer interests, deliberate rule violation, or culpable negligence)
Lang v. Howard County, 287 Neb. 66 (2013) (standard for district court review under APA)
Moore v. Nebraska Account. & Disclosure Comm., 310 Neb. 302 (2021) (appellate review of questions of law de novo)
Snyder Indus., Inc. v. Otto, 212 Neb. 40 (1982) (example of rule held not reasonably related to employer interests)
Dolan v. Svitak, 247 Neb. 410 (1995) (no‑drug policy upheld as reasonably related to workplace safety)