*1 18, 1996, Jacobs filed a surrender voluntary On October In surren- voluntarily to law Nebraska. practice his license $260,000 license, that he borrowed Jacobs admitted dering his client while note from a represent- on an unsecured promissory admitted that he client in a different matter. Jacobs also ing client collateral for the note or to did not advise the to require legal obtain advice. independent license, that his failure to In his surrender of Jacobs stated the lack of collateral on the note and regarding advise client his advice the need for constituted violation of independent legal 5-104(A), DR of the Code of Professional Canon Responsi- 5-104(A) DR the Nebraska Court. bility Supreme adopted enter shall not into a business transac- lawyer provides “[a] client if have therein and if differing tion with a interests the client or her lawyer exercise his expects professional client, therein for the unless the judgment protection after full client has consented disclosure.” that he filing Jacobs admits his knowingly voluntarily surrenders his license to law and consents to the practice entry of an order of disbarment. Jacobs also freely, knowingly, notice, waives his voluntarily right appearance, hearing to the of such entry order. prior We Jacobs’ surrender of his license to accept practice law Nebraska and order him disbarred from the of law in practice Nebraska, the State of effective immediately.
Judgment
of disbarment.
J., not participating.
Fahrnbruch,
Clinic, P.C., appellee,
Bluff’s Vision
appellant.
Krzyzanowski,
Susan
Tylor P.C., Hofmeister, Smith, Pahfke, appellant. & Snyder Jr., Simmons, Olsen, Howard W. and M. Worden James P.C., Selzer, for appellee. & Olsen, Carney, Ferguson Ediger, Connolly, Lanpher, Wright, C.J., Capórale, White, JJ., Rist, D.J. Gerrard,
Lanpher, J. her against filed a complaint Krzyzanowski Susan
Appellant Clinic, (Bluff’s), PC. Bluff’s Vision appellee employer, Fair the Nebraska pursuant discrimination employment (Act), et Practice Act Neb. Rev. Stat. 48-1101 Employment (Reissue 1993). a hearing, After the Nebraska seq. Equal (NEOC) found that Commission Bluff’s was Opportunity Act, as defined in it and a “related” because “employer” Inc., Meat entity, together statutory The Shoppe, employed each or more week the time during people period court, Bluff’s to the district which appealed found question. that Bluff’s was not an it did not “employer” because employ it and that with the other combining entity was people improper. counting At issue is method of employees: “payroll” method, the count of those on the each or the payroll day, method, the count of those who show “workplace” actually up each day. to work to the Krzyzanowski Nebraska appealed Court of which found Appeals, using by method, Bluff’s did meet statutory definition of “employer.” Vision Clinic v. Krzyzanowski, 4 Neb. App. Bluff’s N.W.2d 761 Bluff’s for further petitioned review of that conclude, method, order. We also using the Bluff’s is under the Act and thus the NEOC had jurisdiction. judgment Court of therefore *3 affirmed.
BACKGROUND 21, 1993, On June Krzyzanowski filed a with complaint the NEOC, charging with Bluff’s on employment discrimination the of gender basis and with retaliation. Bluff’s moved to dis- the miss for lack of complaint jurisdiction, stating were not an “employer” as defined in the Act. 27,
A hearing was held on the motion. On October the hearing NEOC examiner denied Bluff’s motion to dismiss. The NEOC hearing examiner then held a public hearing, and on 25, 1994, the examiner February ruled that the NEOC had juris- diction because Bluff’s themet definition statutory of employer under the Act. The Act defines in part as “a person in who engaged industry has fifteen or more employees each working day each of twenty or more calendar weeks the current preceding calendar year.” 48-1102(2). Bluff’s 15 or more each employed week people during the time period but some of question, the employees were only part-time workers.
During the first quarter Bluff’s 11 full- employed However, time employees and 5 part-time employees. at least three part-time did not work of each days week. Thus, even though Bluff’s more than paid for each people weeks, these Bluff’s did not have 15 people working on at least days these The weeks. same of result occurs for type the remaining quarters of 1991 and 1992. Vision Clinic v. Bluff’s Krzyzanowski, supra.
The NEOC hearing examiner did not specifically address the workers, method of counting part-time but held that did Bluff’s However, not the employ requisite 15 employees. the examiner held that Bluff’s could be consolidated with another entity, Meat and that Shoppe, by counting of both enti- ties, there jurisdiction. was The examiner NEOC further held that Bluff’s had intentionally discriminated against 4, 1994, Krzyzanowski. On March the NEOC ordered that the hearing examiner’s findings conclusions be entered as the official final order of the NEOC. 1,1994,
On April Bluff’s filed an appeal NEOC’s deci- sion to the district court for Scotts Bluff County. One of the issues was the appeal conclusion NEOC that it had jurisdiction over the parties. On July district court for Scotts Bluff reversed the County NEOC’s decision and dis- missed Krzyzanowski’s complaint, stating there was not sufficient evidence to indicate Bluff’s was employer so as to jurisdiction obtain in the NEOC and that the combination of entities was not proper.
Krzyzanowski appealed district court’s decision on juris- diction to the Court of The Court of Appeals. Appeals applied theory counting part-time employees, reversed the decision of the district court and remanded the matter for further proceedings. Vision Clinic v. Bluff’s Krzyzanowski, It is from supra. this order that Bluff’s petitions for further review.
ASSIGNMENTS OF ERROR *4 Krzyzanowski asserts that the district court in erred its deter- mination that the NEOC lacked jurisdiction to resolve the parties’ dispute. review, (1) the that Bluff’s asserts further for
In its petition
of count-
theory
the
in applying
payroll
erred
Court of Appeals
before the dis-
argued
was not
that issue
because
ing employees
the
erred
(2)
adopting
the Court of Appeals
trict court
employees.
counting part-time
theory
REVIEW
OF
STANDARD
factual dis-
not involve a
that does
A
question
jurisdictional
law; therefore,
reaches a
court
appellate
of
is a matter
pute
the trial court. In re Interest
from that of
independent
conclusion
al.,
(1995); In re
ANALYSIS the NEOC has because jurisdiction Bluff’s denies defined in as an qualify “employer” Bluff’s does not that it not meet the defi- argues Bluff’s further does 48-1102. it does not employ requisite nition of because “employer” however, argues Krzyzanowski, number of employees. (1) meet the definition of because “employer” part- Bluff’s does be counted toward the jurisdictional time should pre- or, (2) The Meat should be alternatively, Shoppe the two are sufficiently combined with Bluff’s because entities interrelated. erred in
Bluff’s that the Court argues applying to determine whether it was an theory “employer” before that court whether only combining because issue was However, the entities was determination of proper. of the Act is a “employer” purposes jurisdictional question law, a matter of law. In a matter deciding thus we reach from that of the trial independent conclusion court on the al., In re jurisdictional Krystal issue. Interest P. et In supra; al., State, Alex re Interest T. et Jones v. supra; supra. In to have jurisdiction, order for NEOC Bluff’s must meet the definition of under the Act. “employer” is defined Employer in an industry as “a who has fifteen or more person engaged for each each of or more working day twenty current or year.” calendar weeks calendar preceding
121 VII the Act after title 48-1102. Because is patterned § 1964, (1994), it Act 42 U.S.C. 2000e et is Rights seq. Civil simi- construing to consider federal court decisions appropriate Collins, v. 243 Neb. lar federal Fort Calhoun legislation. City of 528, (1993); Inn v. Nebraska Equal 500 N.W.2d Airport 822 852, Comm., (1984); N.W.2d 727 Zalkins 217 Neb. 353 Opp. 289, Comm., 217 Neb. 348 Peerless Co. v. Nebraska Equal Opp. N.W.2d 846
In
whether an
has the
number of
determining
entity
requisite
federal courts have looked
to
employees
qualify
employer,
(1)
has for the time
entity
the actual number
(2)
entity
sufficiently
whether the
is
period
question
related to another
so that
the two would result
entity
combining
See,
in the
number of
Thurber v. Jack
employees.
e.g.,
Inc.,
(1st
1983),
Before
the issue of whether to combine entities
however,
be made as to whether the entity
a determination must
to meet the statutory
has
question
enough employees
require
determination, federal
making
ment in and of itself. In
this
may
courts have
be
generally agreed
part-time employees
See,
Inc.,
Reilly’s,
counted.
Thurber v. Jack
e.g.,
supra;
Co.,
Zimmerman v. North American
Dumas v.
Signal
supra;
Vernon, Ala.,
(5th
1980);
Mount
The issue of which method to use to count these employees is one of first impression Nebraska. Krzyzanowski contends that the method payroll should be applied and the relies on lead- method, ing case following Inc., Thurber v. Jack Reilly’s, Thurber, In supra. a waitress brought employment discrimi- nation suit her against a employer, bar. The bar had approxi- mately 9 each employees working but day, employed and paid over 15 employees total for the weeks in question. Some of the were employees full-time-workers and some were part-time workers. The bar that it alleged did not have enough employees to meet the statutory requirement because the language “for each working day” limited employees those persons actually reporting for work each day.
The U.S. Court of for the First Circuit discarded the employer’s argument, that a finding strict of the interpretation language “for each working day” was inconsistent with the remedial of title purposes VII. The court further held that the payroll method was more consistent with the remedial purpose of title VII. remedial of purpose title VII is to eliminate the “inconvenience, unfairness and humiliation of discrimination.” Pedreyra Pharmacies, v. Cornell Prescription 465 F. at Supp. 941. Krzyzanowski also relies on the policy statement of the Equal Employment Opportunity (EEOC), Commission 8 Fair Emp. (BNA) Prac. Man. 405:6857 (April 1990), which the rejects statement, method. In workplace this policy the VII, who fifteen that under title “an has employer states EEOC of the meets the twenty year the weeks payroll employees .... The Commission’s posi- definition of statutory employer are whether counted regular that all part-time tion is each Id. at each of week.” day part work part 405:6860. the is more Krzyzanowski’s position per
We determine that First, suasive, the method. the and we therefore adopt payroll be with the method is to more consistent considered See, v. Pedreyra of the statute. Cornell remedial purpose Pharmacies, v. Pascutoi Washburn- supra; Prescription Such an interpretation McReavy Mortuary, supra. number would allow a number of greater requirement
employee statute, advancing to be affected purpose employers discrimination. eliminating Second, consistent with the of the statute is language words focusing method. on the “each work- Instead in the context of the entire we day,” phrase ing interpret Thus, the that the “have” the employer sentence. requirement working number for each day goes with the working relationship whether the has employee whether question, employee time not each As worker is day. long to work physically reported job, to return to the attendance regularly routinely expected working day. be each Reith may required at the not job Swenson, (D. (BNA) 1993). Fair Prac. Cas. Kan. Emp. *7 Court for the of Indiana stated the U.S. District District As Clinic, Inc., 1327, F. Medical 791 Supp. Kosciusko Wright 1992): (N.D. Ind. 1331-32 far these statutes is that an interpretation sounder of
[T]he if he or only an not she works employee “has” employer rather he she is on the com- a but if particular day, on 1989, all of more than 1988 payroll. During pany’s worked, if for whom would asked twenty persons, Medical Clinic their identified Kosciusko as have . . . “employer”. with not these defini- certainly
... It is inconsistent an conclude that an “has” employer tional provisions not even if that is working day, employee on a employee if he or she was on that present day especially physically — for work there the before and is to show day expected up Zimmerman some to that gave recognition on the next day. fact, of on vacation or sick allowing inclusion workers by categories in the total. It not obvious those why leave is counted, but one absent workers should be who present week, seven, four or five a instead of should days works counted on other days. not be those “ An ‘has’ an ‘for each of a employee working day’ week if that is on the employee payroll[;] ‘employee- with exists duties and bene- employer’ relationship reciprocal fits, and the to the subject employee types employment discrimination the statute is Reith v. designed prevent.” Swenson, (BNA) Fair (D. Prac. Cas. Kan. Emp. 1993).
This
not render
interpretation does
the phrase superfluous,
but, rather,
on both
places emphasis
“having”
employee,
well as
“for each
having
employee
To
working day.”
give
to the “each
particular emphasis
working day”
language
Act would
defeat
only
its
unfair
purpose
preventing
employ
ment
That
practices.
would
interpretation
require
counted,
who work 2 hours
must be
every day
but would not
another
require counting
who works 10-hour
employee
shifts
workweek,
out of 5
days of
allowing
thus
to cir
employers
cumvent the Act. The
nature of
very
today’s changing work
force makes it
impossible for
court to
that a
say
must
person
work 40
or more
hours
week to be
every
considered a full-time
employee
subject
thus
to calculation for
of the Act.
purposes
See Pascutoi v. Washburn-McReavy
11 Fair
Mortuary,
Emp.
(BNA)
(D.
Prac.
1975).
Cas.
1325 Minn.
burden
Any
placed
small
by
business
the Act is greatly outweighed
benefit to
be
served.
Act does not
burden
put weighty
on small
but,
employers,
imposes
relatively small burden of
rather*
forbearance from discrimination in
Thurber
employment.
v.Jack
Inc.,
Reilly’s,
(1st
1983),
We calculating and more appropriate counting employees Thus, Bluff’s, 48-1102(2). to employees pursuant § number of week in definition, ques- for each 15 employees did employ Act. for purposes as employer tion and qualifies Therefore, of whether or not reach the issue we need not calculating the two entities for combined NEOC properly number of employees.
CONCLUSION 48-1102(2) in because defined § Bluff’s was indi- method of counting employees of the payroll application number of the requisite Bluff’s employed cates Thus, the Court we conclude that the time question. method for was correct its application that the NEOC had and its determination counting employees jurisdiction.
Affirmed. Fahrnbruch, L, not participating.
Caporale, 1, dissenting. rests its decision of first majority impression I disagree. Act, Rev. Fair Practice Neb. Employment under the Nebraska 1993), ill- (Reissue 48-1126 through Stat. 48-1101 §§ because it considers them to be “more federal cases reasoned This, of the statute.” I with the remedial purpose consistent of what the Nebraska suggest, begs question regretfully remedy. to sought Legislature of our act is to “foster the employment
The express purpose ... on the basis of merit regardless of all employable persons sex, race, color, national disability, origin religion, their obtain and hold without right employment their safeguard 48-1101. To accomplish purpose, discrimination ....”§ more, the act “an from prohibits employer” and apparently “race, color, acts based discriminatory upon in certain engaging status, sex, or national origin.” marital disability, religion, It 48-1104. defines employer, perti- (Emphasis supplied.) *9 an fifteen industry one in who has or “engaged nent as part, each in each of or working day twenty more employees the current or calendar year.” more calendar weeks in preceding 48-1102(2). §
Thus,
good
whatever reason our
deemed
and
Legislature
sufficient,
end all
the act
not undertake to
dis-
employment
does
crimination, merely
but
to end such discrimination
those who
in an
at
workers
industry”
are
least 15
“engaged
employ
aside the
working day.” Leaving
question
“each
of what an
be,
by counting
the
all
are on the
industry might
majority,
who
of whether
given
on a
are
day irrespective
required
work that
reads the
day, effectively
to
“each
phrase
working
out
the
in
day”
of
statute
substitutes
its
and stead the
place
result,
its
a
48-1102(2)
“on
As
phrase
payroll.”
now operates
§
does,
if it
it
as
defined
not as
as one
“engaged
but
in
who
an
has fifteen or more
industry
its
employees
or
twenty
each of
more calendar
or
weeks
the current
preced-
calendar
I
ing
year.” respectfully
that if
was
suggest
what
meant,
the
had
it
Legislature
was
of
fully capable
having said so.
statute,
dealing
when
with an
Except
ambiguous
Seevers v.
Potter,
621,
Neb.
537
(1995),
248
N.W.2d 505
aor
constitu-
one,
Zach,
29,
tionally
State ex rel.
v.
suspect
Grape
247 Neb.
(1994),
Having
Clinic,
conclusion
Bluff’s Vision
P.C., does not itself
workers,
employ
requisite number of
I
must
consider
issue the majority
reach,
found unnecessary to
whether,
namely,
as Susan Krzyzanowski posits, the eye-care
Vision,
of Bluff’s
a
operations
professional
are
corporation,
so
interrelated with the food catering
operations of
Meat
Inc., a
Shoppe,
business corporation, that the
of
latter must be considered to be the
the former as
well. In this
both Bluff’s Vision and
cite
regard,
Krzyzanowski
Co.,
(8th
us to Baker v. Stuart
The evidence demonstrates that the only of one president other; is also the of the he entity president is a 50-percent and, wife, shareholder Bluff’s Vision with together his 50- shareholder of Meat that he one of two mem- percent Shoppe; is Vision; of the board of bers directors of Bluff’s and that he and wife of the his two four members of the board of comprise directors of Meat While it true is that the articles of Shoppe. of Meat bylaws control incorporation Shoppe give general over to its board of its affairs directors those cir- president, not, themselves, cumstances do and of that there establish is sufficient common or financial control to warrant ownership one as the alter of the other. Neither there treating entity ego evidence that the diverse business of the two any operations interrelated, are in any way entities or that there is central- any ized control of labor relations. I
Accordingly, would reverse the of the Nebraska judgment Court of and remand cause thereto with the direc- tion that it affirm the court. judgment district