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HR Matters
HR Matters - Volume XII, Issue 131
March 28, 2008
LABOR & EMPLOYMENT NEWS
Falsifying Information Not "Protected Concerted Activity." On an appeal from a National Labor Relations Board decision, the U.S. Court of Appeals for the Sixth Circuit recently upheld the termination of an employee in UAW and Ahern v. NLRB and Ogihara America Corp . During a union organizing campaign, an employee wrote an anonymous letter to a company officer complaining about a supervisor. However, he identified an unsuspecting coworker as the sender on the return address label and provided a fictitious return address. The company traced the package back to the employee and terminated his employment for engaging in this deceptive act. Upholding the termination, the Sixth Circuit noted that engaging in a deliberate falsity and engaging in activity designed to destroy the reputation of another employee may cause an employee to lose National Relations Labor Act ("NLRA") protection. Whether or not the employee loses that protection will largely turn on the level of egregiousness with which the employee acted. It is important to note that even non-union employees can be protected by the NLRA when engaging in protected concerted activity. Contact a Graydon Head labor & employment attorney if you'd like more information on "protected concerted activity" and related issues.
EEOC Reports 9% Rise in Discrimination Complaints. Race, sex and retaliation continue to take the lead in discrimination allegations received by the Equal Employment Opportunity Commission. The 9% increase in federal job discrimination complaints filed by workers against private employers is the biggest annual increase since the early 1990s. To discuss training on how to proactively prevent discrimination and to promptly and effectively address complaints, please contact a Graydon Head labor & employment attorney.
Ohio Supreme Court Declines to Reconsider Its Decision in Bickers v. Western Southern Life. In the January edition of HR Matters we reported that the Ohio Supreme Court sharply limited Coolidge v. Riverdale Local School District in its December 20, 2007 decision in Bickers v. Western Southern Life which held that Coolidge is limited to its facts, i.e. a teacher under contract with a school district. We also reported that the Plaintiff, Bickers, filed a Motion for Reconsideration, asking the Court to reconsider its decision. The Court recently denied the Motion, thus restoring for most Ohio employees (other than those that fit within the facts of Coolidge) pre-Coolidge law, which generally allowed employers to discharge employees pursuant to a neutral leave of absence policy. The fact that the Court chose not to reconsider its decision in Bickers is good news for Ohio employers!
WORKPLACE HEALTH & SAFETY NEWS
New Industrial Commission Guidelines. In February, the Industrial Commission of Ohio ("IC") filed proposed amendments to six IC rules. One of the proposed amendments could make it more difficult for employers to schedule independent medical exams ("IME"). The rule regarding employer medical exams already states that the exam shall not be allowed to delay the payment of benefits. The proposed amendment would add that the exam cannot cause "undue hardship" on the injured worker and requires injured workers to provide notice of their assertion of undue hardship in three days. This amendment could hamper the timely scheduling of IMEs to obtain maximum medical improvement ("MMI") determinations. In most temporary total disability cases, employers need IMEs to get temporary total disability benefits terminated because the injured worker's conditions have reached the state of MMI. The Commission held a public hearing on all the proposed amendments to the IC rules on March 14. We'll keep an eye on the proposed amendments.
IMMIGRATION NEWS
Employment Visas Alternatives to H-1B. We anticipate that the number of available H-1B visas for fiscal year 2009 (which begins on October 1, 2008) will be exhausted very quickly -- either on the first day they can be filed, April 1st , or in the first few days thereafter. However, there are several additional visa options for employers who wish to hire foreign nationals. For example, citizens of Chile or Singapore may be eligible for an H-1B1 visa. The standards for an H-1B1 are very similar to those of the H-1B, and although H-1B1s are also subject to a cap, the cap has never been close to exhaustion. Similarly, TN visas allow skilled (a college degree is typically required) Canadian and Mexican workers to work in the U.S. under the terms of NAFTA. In addition, companies that own, or are owned by, a foreign company may qualify to employ managerial, executive level employees, or workers with specialized knowledge on an L-1 (intracompany transferee) visa. Other options include E-1 or E-2 visas for principals and employees of foreign-owned companies investing in the U.S., and E-3s for Australian citizens in professional occupations.
EMPLOYEE BENEFITS & EXECUTIVE COMPENSATION NEWS
Proposed Safe Harbor for Depositing Participant Contributions to Your Plan. The Department of Labor has issued temporary regulations that would establish a safe harbor period of 7 business days during which employee contributions (including 401(k) contributions) to a small employee benefit plan (i.e., one with less than 100 participants at the beginning of the plan year) would be treated as having been made in a timely manner. The general rule is that participant contributions are required to be deposited as soon as the amounts can reasonably be segregated from the employer's general assets, but in no event later than the 15th business day of the month following the month the employer received payment from the participant or withhold the amount from the participant's compensation. A violation of this rule results in a prohibited transaction. The temporary regulations will not be effective until finalized but may be relied upon earlier. Although these regulations will apply only to small plans, this 7-day safe harbor could become the expected standard practice for all employee benefit plans.
Can a Cafeteria Plan Automatically Enroll Employees in the Health Plan if No Affirmative Election Is Made by the Employee? Yes. The cafeteria plan regulations, proposed last summer authorize automatic enrollment of participants in a cafeteria plan if they fail to elect otherwise. However, one issue of concern is that some states have paycheck protection laws limiting when an employer can reduce an employee's wages. Recently, Sprint Nextel sought an Advisory Opinion letter from the Department of Labor ("DOL") regarding its cafeteria plan's automatic enrollment provision for health coverage because of concerns over a Kentucky state law that prohibited an employer from withholding from an employee's wages without the employee expressly authorizing the deduction. Title I of ERISA states that ERISA supersedes any and all state laws insofar as they relate to any employee benefit plan. In the Advisory Opinion, the DOL concluded that ERISA preempts the Kentucky law so that automatic enrollment and the related payroll reductions were permitted.
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.