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HR Matters
Less than Half of the H-1B Visas for Fiscal Year 2007 Are Currently Available
May 30, 2006
LABOR & EMPLOYMENT NEWS
Less than Half of the H-1B Visas for Fiscal Year 2007 Are Currently Available: An H-1B visa allows U.S. employers to supplement their existing labor force with highly skilled temporary foreign workers. Typically H-1B visas are sought for workers employed in occupations such as architect, engineer, computer programmer, accountant, doctor, or college professor.
The current annual cap for H-1B visas for fiscal year 2007, which runs from October 1, 2006 until September 30, 2007, is 61,000. "Cap-subject" H-1B visas include only those requests for visas for new hires - not those seeking a renewal of an H-1B visa or subject to an exemption. As of May 19, 2006, 39,445 cap-subject H-1B visas have been claimed toward the H-1B cap for fiscal year 2007. Approximately 21,555 visas remain for this category.
There is also a separate H-1B cap of 21,000 for those workers who have an advanced degree from a U.S. education institution. As of May 19, 2006, 5,048 cap-subject H-1B visas for the advanced degree exemption have been claimed for fiscal year 2007. Approximately 16,000 visas remain for this category.
Based on these numbers, it is possible that the H-1B cap for nonexempt workers will be reached by mid-June or July. Accordingly, if your company is considering filing visas for cap-subject H-1B workers, you should consider immediately initiating those cases. Please contact Katherine Lasher at 629-2752 if you need assistance in this area.
"Floor Nurses" in Supervisory Positions are Ineligible for Union Representation. The U.S. Court of Appeals for the Sixth Circuit recently ruled that nurses in supervisory positions are ineligible for union representation. This case involved "floor nurses" who directed the care provided by nursing assistants and had some discretion in disciplining them. The floor nurses were RNs and LPNs. While the director of nursing and nurse managers were off-duty (8:00 a.m. to 5:00 p.m.), the floor nurses functioned as supervisors. The Sixth Circuit found that the floor nurses exercised independent judgment because they were responsible for assessing patients' needs, deciding necessary care, and directing nursing assistants as necessary. (Extendicare Health Svcs. Inc. v. NLRB)
Mandatory Display of New Federal Compliance Poster. Since January 18, 2006, the federal government has required employers to display the new federal compliance poster, which includes the Uniform Services Employment and Reemployment Rights Act (USERRA). The new poster summarizes six laws: USERRA, Equal Employment Opportunity, Occupational Safety and Health (OSHA), Fair Labor Standards Act (FLSA), Polygraph Protection, and Family and Medical Leave Act (FMLA). Please contact a GH&R labor & employment attorney if you need assistance obtaining the new poster.
WORKPLACE HEALTH & SAFETY NEWS
Injured Workers Cannot Indefinitely Prolong Employer-Initiated Court Appeals. The Ohio Supreme Court recently ruled that in employer-initiated court appeals the employer is entitled to judgment if the employee fails to refile the case within one year after the employee voluntarily dismisses the case. The Court addressed a longstanding concern of employers regarding employees interminably prolonging court proceedings by voluntarily dismissing employer-initiated court appeals. This is because several Ohio Courts of Appeal have refused to grant judgments to employers once an employee fails to refile a case within a year of initially dismissing it. GH&R workers' compensation attorneys successfully argued this case before the Ohio Supreme Court. (Fowee v. Wesley Hall, Inc.)
EMPLOYEE BENEFITS & EXECUTIVE COMPENSATION NEWS
Roth 401(k) and 403(b) Distributions. As of 2006, 401(k) and 403(b) plans can be amended to add a Roth contribution feature, which allows employees to make contributions on an after tax basis. When an employee eventually receives a distribution, both the deferrals and earnings are tax-free as long as the distribution is a qualified distribution. The distribution requirements are identical to a traditional 401(k) or 403(b) plan with the exception that Roth money can only be qualified if the distribution occurs after a five year period of participation. The five year period begins on the first day of the employee's taxable year in which the employee first made a designated Roth contribution to the plan. The five year period applies separately for each plan in which the employee participates. If a direct rollover occurs from plan to plan, the period of participation is carried over and tacked onto the participation in the receiving plan for purposes of the 5-year rule. However, there is no tacking if an employee receives a distribution and subsequently rolls it into another plan (even if it is within the 60 day period) or if the money is rolled over into a new Roth IRA. In order to make sure that the 5-year period commences as soon as possible and that the is no need to restart the period after a distribution, it is recommended that all employees designate at least $1 as a Roth contribution as soon as a Roth feature is added to their plan in order to start the five year period. At the same time, it is advisable for employees to establish a Roth IRA (if they are eligible to do so), so the five year period would begin for any future rollover contributions to that IRA. If you have not added a Roth contribution feature to your plan and would like to so, please contact a GH&R benefits attorney.
Medicare Part D Model Disclosure Notice. Under Medicare Part D regulations, group health plans offering prescription drug coverage to Medicare Part D eligible individuals (including active and retired employees and beneficiaries) must provide to individuals who are eligible for Medicare Part D benefits a disclosure notice. The Centers for Medicare & Medicaid Services (CMS) has recently finalized the guidance and model notices which it originated. Only a few changes were made, including clarification and additions to the model notices for creditable and non-creditable coverage. It also added a personalized disclosure notice that should be provided upon an individual's request or in lieu of the generic notice. The CMS has also clarified that the late enrollment penalty for Part D eligible individuals who go without creditable coverage for 63 days or longer increases by at least 1 percent of the national benchmark premium for each month without coverage (the CMS sets and publishes the premium each year). The guidance defines what constitutes an "integrated plan." Finally, the guidance requires that the disclosure notice be provided to Medicare beneficiaries who are "active employees, disabled, on COBRA or retired," as well as Medicare beneficiaries who are covered as spouses or dependents (including those who are disabled or on COBRA) under active employee coverage or retiree coverage. This guidance is effective May 15, 2006 and the model notices are intended for use on or after that date. To access the model disclosure notices go to http://www.cms.hhs.gov/CreditableCoverage/02_CCafterMay15.asp
U.S. Supreme Court Upholds Plan's Subrogation Clause. Marlene Sereboff worked for Mid Atlantic Medical Services, Inc. (MAMSI). Marlene and her husband were injured in an auto accident. Their group health plan paid almost $75,000 in related medical expenses. The plan contained a subrogation clause which required reimbursement to the plan if their injuries were the result of the act of another person. Even though the Sereboffs received a $750,000 settlement from a third party in their personal injury lawsuit, they refused to reimburse the plan. The plan fiduciary sued. The Supreme Court also ruled in favor of MAMSI stating the plan reimbursement was appropriate because the funds being recovered were identifiable, belonged in good conscience to MAMSI and were in the possession and control of the Sereboffs. This decision resolves a split among the federal courts. The underlying issue is whether the particular funds or property are in the defendant's possession and the plan's language creates an equitable lien. Plan sponsors should review their plan's subrogation language to ensure it clearly refers to reimbursement and creates an equitable lien by agreement. (Sereboff v. Mid Atlantic Medical Services, Inc.)
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.