WILLIAM S. ROBBINS JR

Transcription

1 WILLIAM S. ROBBINS JR Kansas City Phone: Fax: William S. Robbins, Jr. has more than 25 years experience and is primarily engaged in the practice of traditional labor law and employment law. He currently represents employers in matters relating to union avoidance and provides assistance to companies that are involved in union organizing campaigns. He represents clients in all facets of management-union relations, including labor arbitrations, strike and consumer boycott management and appearing before the National Labor Relations Board in unfair labor practice proceedings. Mr. Robbins also represents employers in the construction, manufacturing, health care, business consulting, franchise and beverage, food and lodging industries in litigation or administrative proceedings relating to wage and hour compliance, employment discrimination, occupational, safety and health (OSHA) compliance, fringe benefit fund contribution claims, wrongful discharge and enforcement of non-compete and trade secret disclosure obligations. He provides counsel to employers concerning employment policies and procedures, which includes management training on strategies to reduce the risk of discrimination charges and wage and hour claims. Mr. Robbins has served as lead attorney in numerous bench and jury trials before state and federal courts located throughout the Midwest. He has argued appeals before the Kansas Court of Appeals, the Missouri Court of Appeals and the United States Eighth and Tenth Circuit Courts of Appeals. Memberships and Affiliations Kansas Bar Association Labor and Employment Law Sections The Missouri Bar Labor and Employment Law Sections Amerian Bar Association Labor and Employment Law Sections Kansas City Metropolitan Bar Association Labor and Federal Practice Sections Departments Trial Practice Areas Employment Litigation Labor and Employment Education J.D., with honors, Washburn University School of Law, 1984, Board of Editors, Washburn Law Journal B.S., Industrial Relations, University of North Carolina, 1981 Admissions Missouri, 1986 Kansas, 1984 Distinctions Ranked in Chambers USA: America's Leading Lawyers for Business, Labor and Employment ( ). Civic and Charitable Affiliations Boy Scouts of America, Troop 395 Troop Committee Boy Scouts of America, Heart of America Council Tribe of Mic-O-Say, Honorary Warrior Meadows Homes Association Past President Park Hill Educational Foundation Council of Directors, Past Member

2 Southern Platte County Athletic Association Board of Directors, Past Member SPCAA, KC Premiere Basketball League Youth Basketball Coach EXPERIENCE Representative Work Mr. Robbins represented a franchisor in litigation brought by a customer of a franchisee who claimed damages arising out of the franchisee s conduct in repossessing equipment from the customer s residence. The customer claimed that the franchisee entered the residence without permission in reliance upon language contained within the customer s sales contract, which was drafted by the franchisor. The matter was tried to a jury, but based upon admissions elicited during the plaintiff s crossexamination, Mr. Robbins was able to secure a directed verdict in favor of the franchisor at the close of the plaintiff s case. When a male employee allegedly exposed himself to another female employee and then taunted her after she complained to management, Mr. Robbins provided the employer s defense in both the EEOC proceedings and the resulting federal lawsuit. Arguing that the incident was isolated, even if it did occur, which the employer disputed, and that the employer took prompt and effective remedial action in response to the complaint, Mr. Robbins filed for and was granted summary judgment on all of the plaintiff s claims. A company purchased an on-going business and promptly terminated 11 employees, all of whom were over the age of 40. There was evidence of age-related comments made by the decision-makers. The company retained Mr. Robbins, who immediately attacked the claims on the basis that they were untimely filed. Mr. Robbins obtained summary judgment on the claims on three of the employees, resulting in five of the employees opting to settle their claims. The remaining three employees pursued their claims to trial. Relying upon admissions elicited during Mr. Robbins cross-examination of two of the remaining plaintiffs, the jury found that equitable tolling did not apply, resulting in the Court s dismissal of the untimely filed claims. The jury returned a verdict in favor of the sole remaining plaintiff, based upon direct evidence of age discrimination. PUBLICATIONS & PRESENTATIONS Feb 2010 Employment Law Made Simple Presentation at NBI Seminar Mr. Robbins provided attendees an overview of pertinent issues they may face regarding Wage and Hour. He covered topics including statespecific wage and hour laws, what qualifies as overtime, difference to be aware of: salaried exempt vs. salaried non-exempt, options for employees reporting time worked, handling deductions from wages, discharge/terminations and other relevant topics. July 16, 2009 Federal Minimum Wage Impacts on State Minimum Wage Rates This e-alert details the changes in the federal minimum wage, effective July 24, The minimum wage for non-exempt employees, under the Fair Labor Standards Act ("FLSA") will increase from $6.55 to $7.25 per hour. May 27, 2009 Keeping Our Workplace Free from Violence, Discrimination and Harassment: What you Need to Know Presented to a Polsinelli Shughart Cient May 1, 2009 Employee Free Choice Act: Strategies to Combat the Dangers of New Union Organizing-Friendly Laws Presented to the Retail Grocers Association December 11, Remedies under the EFCA Webinar

3 2008 Presented by Shughart Thomson & Kilroy, P.C. November 7, 2008 Wage and Hour Update Federal and State Changes in th Annual Labor & Employment Law Symposium presented by The Missouri Bar, Columbia, Missouri October Military Leave and the Family and Medical Leave Act The New Frontier Presented at the 2008 Labor, Employment and Benefits Symposium October 28, 2008 What are the Duties of the Public Body?; How are Prevailing Wage Laws Enforced? ; and Project Labor Agreements, and Prevailing Wage Law Presented and moderated for Lorman Education Services, Inc., Kansas City, Missouri Fall 2006 Representation Law and Procedure 2006 Labor, Employment and Benefits Symposium presented by Shughart Thomson & Kilroy, Kansas City, Missouri Springfield, Missouri July 24, 2008 Keeping our Workplace Free from Discrimination and Harassment Presented for a Shughart Thomson & Kilroy client February 21, 2008 Hiring Do s and Don ts Presented at the Legal Fundamentals Series hosted by Shughart Thomson & Kilroy, St. Joseph, Missouri February 20, 2008 The Fair Labor Standards Act and the Missouri Minimum Wage Law Employment Law Update in Missouri presented by Sterling Education Services, Inc., Kansas City, Missouri February 2008 Hiring Do s and Don ts (Including I-9 and Immigration Issues) Presented to Northwest Missouri area employers 2/8/2007 Representation Law and Procedure 11/16/2006 Wage and Hour Collective Actions: Best Practices for Minimizing Claims 9/21/2006 Wage and Hour Collective Actions: Best Practices for Minimizing Claims August 23, 2006 Grasping the Complexities of New FLSA Overtime Regulations to Ensure Full Compliance: Now Who Qualifies as Exempt or Nonexempt? Personnel Law Update 2006, presented by Council on Education in Management, Overland Park, Kansas May 15, 2006 USERRA - What's New Associated Industries of American and Missouri Organization of Defense Lawyers 2006 Human Resource and Employment Law Conference, Tan-Tar-A Resort, Osage Beach, Missouri January 12, 2006 USERRA What s New Presented at Webinar hosted by Shughart Thomson & Kilroy, Kansas City, Missouri July 25, 2005 Labor Unions Economic Weapons: Picketing, Hand Billing and

4 Inflatable Rats Client Training Session presented by Shughart Thomson & Kilroy, Kansas City, Missouri July 22, 2005 The New FLSA Regulations and the Impact on Post-Secondary Educational Institutions Presented at the Career Colleges Association Annual Convention, Las Vegas, Nevada July 20, 2005 Labor Relations Training: Salting Presented at the Independent Electrical Contractors - Kansas City Chapter, Kansas City, Missouri September 2, 2004 The New FLSA Regulations for White-Collar Exemptions in the Design Professional Industry Presented at the American Council on Engineering Companies, Kansas City Chapter, Breakfast Series, Kansas City, Missouri April 14, 2004 Substance Abuse and the ADA: Tackling the Tricky Questions Presented at the 2004 Labor, Employment and Benefits Seminar, hosted by Shughart Thomson & Kilroy, Kansas City, Missouri February 4, 2004 Deciphering the New FLSA Regulations Presented by Council on Education in Management, Overland Park, Kansas September 3, 2003 Protecting your Organization from Costly Wage and Hour Violations Presented by Council on Education in Management, Kansas City, Missouri May 15, 2003 Protecting your Organization from Costly Wage and Hour Violations Presented at Conducting a Human Resource Audit in Kansas, presented by Council on Education in Management, Overland Park, Kansas April 11, 2003 Labor Related Issues for the Construction Industry St. Joseph, Missouri Construction Law Forum, presented by Shughart Thomson & Kilroy, P.C. February 10-11, 2002 Compensation and Wage & Hour Issues for Proprietary Secondary Educational Institutions CCA Winter Senior Executive Management Seminary, presented by Career Colleges Association, Whistler, British Columbia, Canada February 6, 2002 Special Compensation Issues Payroll Management in Missouri, presented by Lorman Education Services, Kansas City, Missouri 3/6/2001 Kansas and Missouri Wage Laws March 6, 2001 Leaves of Absence under the FMLA Compensation Law Compliance in Missouri, presented by Lorman Educaiton Services, Kansas City, Missouri 3/6/2001 Problems arising out of Special Compensation September 27, 2000 Avoiding OSHA Citations and Liabilities in Kansas Seminar presented by Lorman Education Services, Overland Park, Kansas

5 July 20, 2000 The Americans with Disabilities Act of 1990, an Overview Time Off in Missouri and Kansas: State and Federal Laws on Employee Leave, Vacations and Holidays, Lorman Education Services, Kansas City, Missouri July 20, 2000 Workers Compensation, ADA and Absentee Management Time Off in Missouri and Kansas: State and Federal Laws on Employee Leave, Vacations and Holidays, Lorman Education Services, Kansas City, Missouri 12/2-3/1998 Wrongful Discharge under Kansas Law

6 For Those of You Who Asked for Change... Well... You Got It Presented by: William S. Robbins, Jr. Severe Violator Enforcement Program Who is subject? Willful, repeated, or failure-to-abate violations What happens? Enhanced follow-up inspections of the worksite at issue Nationwide inspections of the same employer of related worksites Enhanced settlement provisions When was it effective? June 18,

7 SVEP Cases Fatality/catastrophe One or more willful or repeated violations or failure-to-abate notices Serious violation related to a death of an employee or three or more hospitalizations SVEP Cases (continued) High Emphasis Hazard/High Gravity Serious Violations Two or more willful or repeated violations or failure-to-abate notices Fall hazards Amputation hazards Combustible dust hazards Silica hazards Lead hazards Excavation/trenching hazards Ship breaking hazards Petroleum refinery hazards. 2

8 SVEP Cases (continued) Highly Hazardous Chemicals/High Gravity Serious Violations three or more willful or repeated violations or failure-to-abate notices All egregious enforcement actions. Administrative Enhancements to OSHA s Penalty Policies [t]he Agency s penalties are too low to have an adequate deterrent effect Revises OSHA s penalty classification system 3

9 Administrative Enhancements to OSHA s Penalty Policies (continued) History Reduction Expands from three to five years Inspection by OSHA No serious, willful, repeat, failure to abate citations 10% reduction History Increase Expands from three to five years Cited by OSHA for high gravity serious, willful, repeat or failure to abate citations 10% increase up to statutory maximum Administrative Enhancements to OSHA s Penalty Policies (continued) Repeat Violations Expands from three to five years Area Director Reduction Up to 30% at informal conference Additional 20% reduction if employer (less than 250 employees) commits to hiring outside consultant No longer accept penalty reduction if outstanding penalty balance (unless on penalty payment plan and current on payments) 4

10 Administrative Enhancements to OSHA s Penalty Policies (continued) SVEP high gravity violations Separate violations rather than grouped or combined Limit adjustments for good faith, history or size Increasing minimum proposed penalty Serious violation to $500 Posting violation to $250 Administrative Enhancements to OSHA s Penalty Policies (continued) Gravity-Based Penalty Between $3,000 to $7,000 Size Reduction 40% employees 30% employees 10% employees 251 or more SOL 5

11 Administrative Enhancements to OSHA s Penalty Policies (continued) Calculating final penalties serially High/Lesser History (10%) Summed $5,000 Serially $5,000 $4,500 Good Faith (15%) Quick Fix (15%) $3,825 $3,251 Size (30%) Result $1,500 $2,275 $2,275 On the Horizon Protecting America's Workers Act (H.R. 2067, S. 1580) Increased civil penalties Serious - $12,000 Willful and Repeat - $120,000 Willful and Repeat with fatality - $250,000 Inflation adjustment Increased criminal penalties Changes willfully to knowingly Violation results in death fine and imprisonment up to 10 years Expands criminal liability to responsible corporate officer or director 6

12 On the Horizon Protecting America's Workers Act (H.R. 2067, S. 1580) Extends OSHA protections to public employees Currently, only 27 states provide federallyapproved OSHA coverage to their public employees On the Horizon Protecting America's Workers Act (H.R. 2067, S. 1580) Enhanced whistleblower protection Private right of action Increase time to file from 30 days to 180 days Adoption of contributing factor test Kick Out provisions if lack of action within 120 days Requires abatement during contest period 7

13 On the Horizon Protecting America's Workers Act (H.R. 2067, S. 1580) Expands workers' and union rights in OSHA inspections and enforcement cases. Requires that workers be paid for the time spent participating in OSHA inspections Provides workers and unions the right to contest the classification of violations and proposed penalties and to object to settlements that are inadequate Provides victims of job injuries and illnesses and family members the right to be heard in OSHA investigations. About the Presenter William S. Robbins, Jr. Polsinelli Shughart PC 120 West 12 th Street Kansas City, MO You may also visit us on the Web at: polsinelli.com William S. Robbins, Jr. has more than 25 years experience and is primarily engaged in the practice of traditional labor law and employment law. He currently represents employers in matters relating to union avoidance, labor arbitrations and strike management. He advises clients on OSHA compliance and has represented clients in connection with OSHA inspections and fatality investigations. Mr. Robbins has also represented employers in OSHA Whistleblower investigations at both the agency and administrative law judge stage. 8

14 For Those of You Who Asked for Change... Well... You Got It 9

15 OSHA - FOR THOSE OF YOU WHO HAD HOPED FOR CHANGE - WELL, YOU GOT IT William S. Robbins, Jr., Esq. I. The new vision for OSHA A. Good Jobs for Everyone i. Secretary Hilda Solis' vision for the Department of Labor is 'good jobs for everyone.' Good jobs are safe jobs. Stronger OSHA enforcement will save lives..... Most employers want to do the right thing. But many others will only comply with OSHA rules if there are strong incentives to do so. OSHA's current penalties are often not large enough to provide adequate incentives, and we are very low in comparison with those of other public health agencies." Dr. David Michaels, Assistant Secretary of Labor for the Occupational Health and Safety Administration, testimony before the U.S. House of Representatives Education and Labor Committee's Subcommittee on Workforce Protections, March 16, II. Severe Violator Enforcement Program ( SVEP ) A. Purpose of SVEP i. concentrates resources on inspecting employers who have demonstrated indifference to their OSH Act obligations by willful, repeated, or failureto-abate violations. ii. Effective June 18, 2010 B. How it works i. An inspection of an employer meeting the criteria of an SVEP case may result in: (1) follow-up inspections of the worksite at issue (2) nationwide inspections of the same employer of related worksites (3) increased company awareness of OSHA s enforcement actions against the company, and (4) enhanced settlement provisions including possible corporate-wide agreements.

16 C. What type of cases are considered SVEP cases under the program: i. A fatality/catastrophe inspection (1) OSHA finds one or more (a) (b) willful or repeated violations or failure-to-abate notices (2) based on a serious violation related to (a) (b) a death of an employee or three or more hospitalizations ii. high gravity serious violations/high-emphasis hazard (1) OSHA finds two or more (a) (b) (c) willful or repeated violations failure-to-abate notices, or any combination of these violations/notices (2) related to a high-emphasis hazard (a) (b) (c) (d) (e) (f) (g) (h) fall hazards amputation hazards combustible dust hazards silica hazards lead hazards excavation/trenching hazards shipbreaking hazards, and petroleum refinery hazards iii. high gravity serious violations related to highly hazardous chemicals (1) OSHA finds three or more (a) willful or repeated violations 2

17 (b) (c) failure-to-abate notices or any combination of these violations/notices (2) related to highly hazardous chemicals (a) defined in OSHA s process safety management standard iv. All egregious enforcement actions III. Administrative Enhancements to OSHA s Penalty Policies A. Memorandum to Regional Administrators, dated April 22, 2010 i. Administratively enhances OSHA s penalties ii. iii. iv. OSHA concludes the Agency s penalties are too low to have an adequate deterrent effect. In effect, the memorandum revises OSHA s penalty classification system, as currently outlined in its Field Operations Manual (FOM) As a result, the average penalty for a serious violation will increase from approximately $1,000 to an average of $3,000 to $4,000 v. Will become effective over the next several months B. Enhancements include i. Expanding the time frame for considering an employer s history of violations (when setting penalties) from three to five years. ii. iii. iv. Time period for repeated violations increased from three to five years Increasing penalties by 10 percent for employers that have been cited for any high gravity serious, willful, repeat, or failure-to-abate violations within the previous five years. Area Directors authorized to offer up to 30 percent penalty reduction to employers at informal conference, with an additional 20 percent reduction for employers with 250 or fewer employers if employer agrees to retain an outside safety and health consultant v. No penalty reduction will be offered at informal conference if there is outstanding penalty balance owed to OSHA for the establishment in question or any other location unless employer is on penalty payment plan and making timely payments 3

18 vi. Eliminating history reduction for employers who have not been inspected and employers who have received citations for serious violations that were not high gravity vii. Increasing the minimum proposed penalty for a serious violation to $500 viii. Increasing the minimum proposed penalty for a posting violation to $250 if the employers was previously provided a poster by OSHA ix. Calculating final penalties serially, unlike current practice where all of the penalty reductions are added and then the total percentage is multiplied by the gravity-based penalty to arrive at the proposed penalty. x. High gravity serious violations related to standards identified in the SVEP will, at Area Director s discretion, no longer need to be grouped or combined, but can be cited as separate violations, each with its own proposed penalty xi. Establishes gravity based penalty from $3000 to $7000 xii. New penalty reduction structure for employers based upon number of employees (1) 1 25 employees 40% reduction (2) employees 30% reduction (3) employees 10% reduction (4) more than 251 employees no reduction xiii. Eliminates 10% reduction for employers with a strategic partnership agreement IV. The Protecting America's Workers Act (H.R. 2067, S. 1580) A. What the legislation proposes to do i. Extends the OSH Act and existing job safety protections to all state and local public employees, federal workers ii. Increases OSHA penalties for job safety violations and establishes mandatory minimum penalties for violations resulting in worker deaths (1) Serious - $12,000 (2) Willful and Repeat - $120,000 (3) Willful and Repeat with fatality - $250,000 4

19 (4) Inflation adjustment iii. Criminal violations of the OSH Act would be changed (1) felony, instead of a misdemeanor, with fine and imprisonment up to 10 years (2) expanded to cover cases that involve serious bodily injuries, not just worker deaths (3) expands criminal liability to responsible corporate officer or director (4) changes willfully to knowingly iv. Requires abatement during contest period v. Enhances anti-discrimination protections for workers who raise job safety concerns and report job injuries. (1) increase time to file from 30 days to 180 days (2) adoption of contributing factor test vi. Private right of action to employees (1) Can bring action in court rather than internal appeal before OSHA Office of Appeals as currently provided (2) Allows employees to file suit if OSHA fails to act in a timely fashion (120 days) vii. viii. ix. Writes into the law a worker's right to refuse unsafe work. Requires that workers be paid for the time spent participating in OSHA inspections. Provides workers and unions the right to contest the classification of violations and proposed penalties and to object to settlements that are inadequate. x. Provides victims of job injuries and illnesses and family members the right to be heard in OSHA investigations. B. Who is supporting the new legislation i. The Administration strongly supports the goals of the Protecting America's Workers Act (PAWA). Dr. David Michaels, Assistant Secretary of Labor for the Occupational Health and Safety Administration, 5

20 testimony before the U.S. House of Representatives Education and Labor Committee's Subcommittee on Workforce Protections, March 16, Polsinelli Shughart PC provides this material for informational purposes only. The material provided herein is general and is not intended to be legal advice. Nothing herein should be relied upon or used without consulting a lawyer to consider your specific circumstances, possible changes to applicable laws, rules and regulations and other legal issues. Receipt of this material does not establish an attorney-client relationship. Copyright 2010 Polsinelli Shughart PC. 6