A Case of Mind Control: Ohio Employers Can Stop Former Employees From Using Memory to Misappropriate Trade Secrets

Posted on February 11, 2008 by Kevin Griffith

In a unanimous decision debunking the common misunderstanding that former employees can use information they retain through memory (as opposed to information contained in materials pilfered from former employers) without violating trade secret law, the Ohio Supreme Court ruled that a company’s confidential customer list is a protected trade secret even if a former employee accesses it strictly from memory.

In Al Minor & Assoc., Inc. v. Martin, 2008-Ohio-292, Martin, a pension analyst, signed neither a non-competition nor a non-solicitation agreement during his employment with Al Minor. When he resigned to establish a competing business, Martin contacted and successfully solicited 15 clients using information that he memorized while working for Al Minor. Al Minor sued Martin for misappropriating its trade secret client information. Following trial, Martin was ordered to pay nearly $26,000 in damages to Al Minor, representing lost earnings from former clients successfully solicited by Martin. Although Martin appealed, the Franklin County Court of Appeals upheld the trial court’s decision. Martin then appealed to the Ohio Supreme Court where his arguments in support of his actions were once more rejected. Continue Reading…

DOL Publishes Proposed Amendments to FMLA

Posted on February 11, 2008 by Brian Hall

Just today, the Department of Labor published long-awaited proposed amendments to its Family and Medical Leave Act regulations, which will be open for public comment until April 11, 2008. The proposed amendments contain a number of changes to many of the provisions that have plagued employers since the FMLA was enacted. An initial read suggests that many of the changes are organizational in nature and are designed to make the regulations easier to understand. The amendments also clean up some of the issues relating to attendance bonuses, mandatory overtime, and medical certification as well as other issues. That said, only minimal help appears to be on the way with respect to the serious health condition definition and the intermittent leave provisions. There is also at least one setback for employers: the proposed regulations would no longer permit employers to count time spent on light duty work toward exhaustion of FMLA leave. Once we’ve digested the entire submission from the Department of Labor, we will report back with more detailed analysis of the most significant changes.

DOL Announces Proposed Amendments to the Temporary Agricultural Worker Program

Posted on February 11, 2008 by Robert Cohen

The Department of Labor (DOL) announced this week that it will propose amendments to the regulations and streamline the application process for temporary agricultural workers.  Interested parties will have 45 days to submit comments in response to the proposed rule. Although it is not clear when the new rules will become effective, the regulatory process is not expected to be completed in time for the 2008 growing season. 

Known by the technical classification H-2A, the temporary agriculture worker program is only one part of the more generic guest-worker program discussed in the popular press. In its announcement, the DOL noted that employers hired only 75,000 workers through this program last year, while they estimate that the undocumented workforce was between 600,000 and 800,000. The application process is lengthy, expensive, and difficult to navigate. Duplication of efforts between the state workforce agencies and DOL contributed to the dysfunctional nature of the program. Comments to the proposed rule quoted several news sources discussing the adverse impact this program had on the agricultural industry and explained the need to streamline the process to provide a realistic legal alternative for agricultural employers to hire the required workforce. Continue Reading…

Industrial Commission Rejects Affidavit Testimony

Posted on February 6, 2008 by Patrick Lewis

The Ohio Supreme Court recently decided State ex rel. Nerlinger v. AJR Enterp., Inc., 116 Ohio St. 3d 314, 2007-Ohio-6438, a potentially significant new workers’ compensation opinion that addresses the Industrial Commission’s ability to accept or reject affidavit testimony. The injured employee failed to appear for his allowance hearing before the IC, and his claim was denied. Fourteen months later, the employee – now represented by counsel – filed a motion for reconsideration, attaching an affidavit saying that he did not receive the hearing notice. The IC, without making any express findings about the credibility of the employee’s affidavit, found that the notices were “properly mailed to the correct address of the injured worker.” On review, the Ohio Supreme Court held that the IC was exclusively responsible for evaluating the weight and credibility of evidence and did not need to explain why an affidavit was unpersuasive. 

A Disconcerting Look Behind the Industrial Commission’s Curtain

Posted on February 6, 2008 by Brian Hall

In its Sunday, February 4, 2008, edition, the Columbus Dispatch reported that the Industrial Commission, "a forgotten corner of the state bureaucracy that deals with injured workers’ claims," was experiencing an unusually large number of grievances filed by its OCSEA-represented employees. According to the article, the grievances cover a wide range of issues including personal ones, such as the denial of bereavement leave, to issues that more fundamentally address the Commission’s claims handling process. As for the latter category, the article quotes a grievance from a union steward that suggests that the Commission has established "arbitrary quota[s]" that "sacrifice the quality of [Commission employees’] work product." The Commission’s Executive Director, Patrick Gannon, is quoted in the article as stating that "labor-management issues everywhere do have an effect on productivity." The article, which does not suggest that hearing officer decisions have been impacted, notes that the OCSEA will meet with Mr. Gannon and Commission Chairman, Gary DiCeglio, on February 13th.   We will keep our eyes and ears open for any additional information that may become public.