A-17-0635, Walter A. Barrios v. Commissioner of Labor at the State of Nebraska Department of Labor (appellant) and Custom Rental Services, Inc.
Hall County, District Judge Mark Young
Attorney for Appellant: Katie S. Thurber, Thomas A. Ukinski, Dale M. Shotkoski (Nebraska Department of Labor)
Attorney for Appellee: Thomas Wagoner
Civil Action: Unemployment benefits
Action Taken by Trial Court: The district court remanded the matter to the appeal tribunal for a determination of whether the doctrine of equitable estoppel bars the Department of Labor from recouping unemployment benefits paid to Barrios and whether Barrios was entitled to unemployment benefits from a previous employer.
Assignments of Error on Appeal: On appeal, the Department of Labor assigns that the district court (1) failed to properly construe the requirements of the doctrine of equitable estoppel and erred in remanding the case to the appeal tribunal for further findings on this issue, (2) failed to properly consider the regulations of the Department that provide that failure to state the basis for the appeal to the appeal tribunal acts as a waiver of the right to appeal that issue, (3) failed to properly consider that Barrios did not plead an equitable estoppel defense in his appeal to the appeal tribunal and under common law an equitable estoppel defense is waived if not pleaded, (4) failed to properly construe Neb. Rev. Stat. §§ 48-626 and 48-628, (5) erred in applying a “base rate employer rule” in remanding the case and requiring the appeal tribunal to assess whether Barrios was eligible for benefits from a previous employer, (6) erred in remanding the case to the appeal tribunal to include the previous employer as a necessary party to the appeal, (7) erred in finding plain error in the representation of Custom Rental by its corporate officer, (8) failed to properly consider the provisions of the employment security law and Department of Labor regulations that provide that administrative proceedings are conducted without regard to common-law or statutory rules of evidence or other technical rules of procedure, (9) failed to properly consider the rules of the Supreme Court and Court of Appeals in which nonlawyers appearing in a representative capacity before an administrative tribunal is not prohibited, and (10) erred by raising an issue of party representation sua sponte in its decision and concluding that the appeal tribunal committed plain error without providing defendant the opportunity to present evidence or argument upon that issue.