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HR Matters
HR Matters - Volume XII, Issue 130
February 29, 2008
LABOR & EMPLOYMENT NEWS
FMLA Expansion and Proposed Rules. Military Service Expansion: On January 28, 2008, President Bush signed into law legislation that expands Family and Medical Leave Act ("FMLA") coverage. The expanded coverage extends to FMLA-eligible employees who provide care for an injured service member or who have family members on or called to active duty. Under the expansion, employers may be required to offer up to 26 weeks of leave. Leave could be for any "exigency" which will be later defined by the Department of Labor ("DOL"). Awaiting regulations to fully implement the new law, the DOL encourages employers to provide the appropriate leave for qualifying employees.
Proposed Rule: On February 11, 2008 the DOL proposed new rules, which if enacted, would make a variety of changes to the FMLA. One of the important changes will affect how many times an employee must visit their medical provider. The proposals also implement strategies to ease the burden of intermittent leave on employers and would allow employers to contact each certifying medical provider directly. Other proposed changes affect the definition of an "eligible employee," the penalty provisions, the "fitness-for-duty" requirements, paid and unpaid leave rules, employer notice requirements, and the "light-duty" rules. If enacted, these changes will require employers to re-examine the rules and change their FMLA policies accordingly. The public comment period ends on April 11, 2008.
Memorized Information Can Be Trade Secret. As of February 6, 2008, violation of Ohio’s Uniform Trade Secret Act ("UTSA") is no longer limited to physically transmitted trade secret information. In Al Minor & Assocs. Inc. v. Martin, the Ohio Supreme Court addressed whether memorized information loses its character as trade secret information. Noting that the UTSA protects the information itself, the Court found that information memorized by a former employee may remain a trade secret, and sharing that information may constitute a violation of the UTSA. In other words, although an employee does not take a "list" of client names to his or her new business, he or she may still be liable under the UTSA for sharing memorized information. (R.C. 1333.61).
WORKPLACE HEALTH & SAFETY NEWS
Flare-ups after MMI May Justify Reactivation of TTD Benefits. In Moore v. International Truck & Engine, the Ohio Supreme Court addressed when a flare-up following a maximum medical improvement ("MMI") determination may justify the reactivation of temporary total disability ("TTD") benefits. Normally, a MMI determination bars further payment of TTD benefits. However, the Commission has continuing jurisdiction to reactivate TTD benefits for temporary flare-ups of an allowed condition that constitutes a "new and changed circumstance." Although surgery may constitute a "new and changed circumstance," the Court noted that this is not automatic. Also, the Court noted that TTD benefits may resume if a flare-up follows, rather than precedes, treatment. Because the reactivation of TTD benefits is highly dependent on the facts of each claim, you should contact us for assistance regarding this TTD issue.
IMMIGRATION NEWS
H-1B Visas – Spring Forward. April 1, 2008 is fast approaching. As we mentioned last issue, the USCIS will accept applications for H-1B visas beginning on April 1st. These visas are for an employment start date of the beginning of the fiscal year, October 1, 2008. Because only 65,000 new H-1B visas are available for the fiscal year, employers should act quickly to have applications before the 65,000 "cap" is exhausted. In the past few years, the cap for H-1B visas has been reached very quickly; last year the cap was reached in just one day – on April 1, 2007! We anticipate that the cap will be reached in record time again this year. Therefore, employers who anticipate needing to employ an H-1B worker should contact us as soon as possible.
EMPLOYEE BENEFITS & EXECUTIVE COMPENSATION NEWS
Supreme Court Says Plan Participants Can Sue. In LaRue v. DeWolff, Boberg & Associates, Inc., et al., the Supreme Court clarified that individual participants in 401(k) or other defined contribution retirement plans can sue plan fiduciaries to recover investment losses from their accounts. In this case, the participant alleged that the plan fiduciaries failed to follow his investment directions, which resulted in a drop in his account of around $150,000. This decision overturned the Fourth Circuit’s holding that the relief that the participant was asserting only applied where losses were incurred by the entire plan and not to individuals with respect to their individual accounts. Since this decision increases the likelihood that plans will be sued by plan participants, plan fiduciaries should limit their potential liability by taking the following actions: review the plan’s investment policies and procedures to assure that the investment options are prudent; review the plan’s procedures for following participant directions and assure proper controls are in place to execute such directions in a timely manner; review the adequacy of fiduciary liability insurance coverage; review service provider agreements to assure the terms appropriately allocate liability and provide indemnification rights; continue due diligence efforts and periodically review status of plan service providers including third-party administrators and consultants.
This Newsletter is a periodic publication of Graydon Head & Ritchey LLP and should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only, and you are urged to consult your own advisor concerning your situation and any specific legal question you may have.