BSCR Firm News/Blogs Feed Mar 2023 00:00:00 -0800firmwise Sterchi Welcomes Donna Delorme in St. Louis Mar 2023Firm News<p>Baker Sterchi welcomes Donna Delorme as attorney in St. Louis, where she offers effective and efficient solutions across a broad range of complex legal issues. With over 15 years of legal experience, Donna is an accomplished attorney who is well-versed in complex litigation, arbitration, mediation, and appellate law.</p> Donna earned her law degree from the Widener University School of Law and her undergraduate degree from Tulane University. She is admitted to practice in Missouri and Pennsylvania. Specialist, Kansas City Mar 2023Job OpeningsOur Kansas City office has an opportunity in the accounting department for <font color="#3e3e60">a highly motivated and skilled billing specialist. View the job description <a href=""><span style="color: rgb(204, 0, 0);">here</span></a>.&nbsp;</font> Sterchi Obtains Favorable Settlement for Commercial Client in Breach of Contract Action Mar 2023Results<p>Baker Sterchi members John Watt and Gregorio Silva obtained a $465,000 settlement on behalf of a business client in an action relating to the purchase of a Kansas City area hotel, where the client alleged the seller made materials misrepresentations during the negotiations of the asset purchase agreement. Baker Sterchi initiated litigation, and pursued claims for breach of contract, fraud, and conversion.</p> Sterchi Appoints New DEI Committee Co-Chairs Mar 2023Firm News<p>Baker Sterchi Members Jennifer Maloney (St. Louis) and Megan Sterchi Lammert (Kansas City) have been appointed co-chairs of the firm&rsquo;s Diversity, Equity and Inclusion Committee.</p> <p>Maloney has spent her career advocating for businesses and insurance companies, primarily in premises liability, product liability, personal injury, and transportation matters. She is a past president of the St. Clair County Illinois Bar Association and an active member of the Bar Association of Metropolitan St. Louis and the Illinois Defense Counsel, earning the IDC President&rsquo;s Award in 2022. She earned her law degree from the Southern Illinois University School of Law.</p> <p>A 2022 Missouri Lawyers Media Up &amp; Coming honoree, Sterchi Lammert is a civil litigation attorney with a practice concentrated on the defense of personal injury, premises liability and product liability matters. She is a member of ALFA International&rsquo;s Future Leaders Forum, Product Liability &amp; Complex Torts Steering Committee, and Women&rsquo;s Initiative Steering Committee. She earned her law degree from the University of Missouri-Columbia School of Law.</p> <p>Comprised of a diverse group of people with differing perspectives, the Baker Sterchi DEI Committee includes a member of every employee group in the firm, from owners and managers to staff. The committee focuses on recruiting, retention, education, and organizational and community involvement.</p> <p>Learn more about the firm&rsquo;s diversity, equity and inclusion efforts <a href="">here</a>.</p> Sterchi Welcomes Teresa Young in St. Louis Mar 2023Firm News<p>Teresa Young recently joined Baker Sterchi in St. Louis as a Member and co-chair of the Appellate Practice Group. With a practice focusing on appellate law, class action/TCPA, business litigation, cyber liability, insurance coverage, and professional liability matters, she brings over 20 years of legal experience to the firm.</p> <p>In her insurance coverage practice, Young represents clients in complicated matters ranging from directors' and officers' liability to underinsured/uninsured motorist coverage and commercial general liability claims. Her appellate experience, utilized by trial counsel at every level of litigation, has been recognized by Missouri Lawyers Media with an Influential Appellate Advocate Award and multiple appearances on its Appellate Attorneys POWER LIST.</p> Young earned her law degree from Washington University in St. Louis School of Law and her undergraduate degree from the University of Kansas. She is admitted to practice in Missouri. Davis and Richard Woolf to Present at PLRB Claims Conference Mar 2023Speaking Engagements<p>Baker Sterchi Members Josh Davis and Richard Woolf will each present at the Property &amp; Liability Resource Bureau (PLRB) Claims Conference, scheduled for March 19-22 in Orlando, Florida.</p> <p>Davis will co-present &ldquo;Code Upgrades vs. Pre-Existing Conditions,&rdquo; which will focus on policy terms associated with code upgrade requirements, vocabulary from the codes and requisites of upgrade analysis and scenarios impacting code updates and investigation of prior damages impacting property damage claims. Woolf&rsquo;s presentation, titled &ldquo;Misrepresentations: Coverage Considerations&rdquo; will focus on fact scenarios giving rise to misrepresentations in application and claim investigations, coverage issues that arise when facts appear inconsistent from initial presentation, and application of coverage principles to address misrepresentations.</p> <p>Davis is a civil litigation defense attorney, with nearly all his cases rooted in insurance litigation, including third-party defense, first-party litigation, and insurance coverage. He works in personal and commercial lines dealing with property, casualty, and liability matters, routinely representing clients in catastrophic injury and property cases.</p> <p>Woolf concentrates his practice on third-party insurance defense and first-party insurance litigation. He is a national presenter on insurance litigation matters, including casualty and property topics, insurance coverage issues, and efficient claims handling practices. Best Lawyers in America has recognized him for his insurance law work in the metropolitan St. Louis area.</p> <p>PLRB is a trade association supporting insurance companies and underwriting organizations licensed to do property or casualty business in the United States through in-person and online education and training and to provide other resources relevant to property and casualty businesses.</p> For more information or to register for the conference, click <a href="">here</a>. Sterchi Earns Healthy KC Workplace Wellness Certification Mar 2023Recognition<p>On March 9, Baker Sterchi Cowden &amp; Rice was recognized with a silver certification at the Healthy KC 8<sup>th</sup> Annual Breakfast &amp; Vendor Expo held at the Hy-Vee Arena in Kansas City, Missouri.</p> <p>Hosted by the Greater Kansas City Chamber of Commerce, the Healthy KC annual event is held to recognize and celebrate the Kansas City companies and organizations committed to and excelling in improving wellness in the community. Companies and organizations are recognized with certifications ranging from Honorable Mention to Platinum, based on the five pillars of health: Personal Health Resources, Psychosocial Work Environment, Enterprise Community Involvement and Work Environment.</p> Charniece Rollie, Baker Sterchi Kansas City Office Administrator, represented the firm at the event. Charge against Apple, NLRB General Counsel Seeks to Expand Scope of Protected Concerted Activity Mar 2023Employment & Labor Law Blog<p>ABSTRACT: The NLRB has charged Apple with violating the National Labor Relations Act by maintaining and enforcing facially-neutral policies against soliciting and distributing literature in the workplace during a union organizing campaign. In this case, the General Counsel has signaled her intent to continue expansion of worker rights.</p> <p>Apple was recently charged with violating the NLRA by enforcing a facially-neutral policy against solicitation and distribution in the workplace, which General Counsel Jennifer Abruzzo has alleged has the effect of violating workers&rsquo; rights to solicit union membership and distribute union literature. Furthermore, the GC alleged enforcement of the policy, along with interrogation of suspected organizing employees, was intended to chill a union organizing campaign at an Apple store. A hearing was recently held before an administrative law judge, and at the end of February, the Union (Communications Workers of America), Apple, and the GC submitted their post-hearing briefs. In its briefing, the GC signaled the long-anticipated further expansion of &ldquo;protected concerted activity&rdquo; under the Act. Although the Board need not adopt the GC&rsquo;s arguments in their entirety, the briefs speak clearly to the GC&rsquo;s enforcement priorities in the second half of President Biden&rsquo;s term. The briefing also confirms the GC is intent on following through on her vocal support of workers&rsquo; rights.</p> <div> <p>It is crucial that employers and practitioners keep up with this rapidly developing area of the law. Contrary to popular misconception, the NLRA provisions related to &ldquo;protected concerted activity&rdquo; apply with equal force to employers <i>without </i>unions as they do to union shops. Although the Apple case applies in the context of a union organizing campaign, concerted activities need neither be organized nor with the aid of a union at all. In short, employers should treat any employee complaint or comment about working conditions as protected activity. The Board has also recently held that severance agreements which contain non-disparagement and confidentiality clauses may run afoul of the Act, where they potentially hinder employees&rsquo; rights to discuss working conditions. Clearly, the Board is rapidly changing the playing field. Employers should always be aware that when an administration changes from Republican to Democrat (or vice versa), NLRB policies are likely to undergo significant changes.</p> <p>Section 7 of the Act protects &ldquo;concerted&rdquo; employee conduct for employees&rsquo; &ldquo;mutual aid and protection.&rdquo; The current GC has been aggressive about seeking expansion of Section 7 to include a broader range of activity, even beyond the Obama Board and other employee-friendly predecessors. This GC has been particularly focused on the remedial nature of the Act and its Depression-era origins. The importance for all employees is sharpened even further by the Board&rsquo;s recent decision to expand the traditional &ldquo;make whole&rdquo; remedy to include reasonably foreseeable consequential damages.</p> <p>The GC noted in its briefing that concerted activity includes not only an explicit group complaint, but <i>also</i> &ldquo;when the totality of the circumstances supports a reasonable inference that the employee was seeking to initiate or prepare for a group action.&rdquo; A creative employee could bend almost any workplace complaint to fit this expansive definition of &ldquo;concerted activity.&rdquo; Under such a definition, employers should consider most any complaint or comment about working conditions to be protected under the Act.</p> <p><b>Factual Background and Board Charges</b></p> <p>In May 2022, the Union filed a charge alleging Apple violated Section 8(a)(1) of the Act by maintaining and enforcing a &ldquo;solicitation and distribution policy&rdquo; at its World Trade Center store in New York City that violated employees&rsquo; Section 7 rights. Since 2016, Apple maintained a facially-neutral policy against solicitation for any business and distribution of any literature, regardless of content. Prohibited solicitation included &ldquo;for your own hobbies or business (such as jewelry, makeup, personal training services), charitable campaigns or political causes &ndash; during work time.&rdquo; Employees could not distribute literature of any kind during work time &ldquo;or in a work area. Third parties are not permitted to distribute materials or solicit employees, vendors, or customers on Apple property at <i>any time</i>.&rdquo;</p> <p>In January 2021, employees at the WTC store began working with the Union to form an affiliate &ldquo;Apple Retail Union.&rdquo; In May and June 2021, as the Union organizing campaign began heating up, employees placed Union flyers on the breakroom tables at the WTC Apple Store, in employee bathrooms, and on bulletin boards in employee common areas. By placing Union flyers in these areas, the employees violated Apple policy, and on several occasions, Apple managers allegedly removed the flyers from breakroom tables, bulletin boards, and bathrooms. Apple managers are also accused of interrogating employees who were suspected of being involved in the organizing campaign.</p> <p>The GC argued that Apple violated the Act by prohibiting distribution of union literature in breakrooms and other &ldquo;nonworking&rdquo; areas. Exercise of Section 7 rights includes the right to communicate at the job site regarding both organizing efforts and the terms and conditions of employment. The Board has long held that since employees are most likely to interact, they need not limit union organizing discussions to off-duty hours, off-premises. However, employers may limit such discussions under &ldquo;special circumstances&rdquo; necessary to &ldquo;maintain production or discipline.&rdquo; The GC and the Board are likely to make it even more difficult for employers to reach that already lofty standard.</p> <p>Finally, the GC argued that confiscation of union literature from non-working areas is presumptively a violation of the Act, unless the employer &ldquo;can affirmatively demonstrate the restriction is necessary to protect its property interest.&rdquo; Therefore, solicitation and distribution policies do not fall within the ambit of the watershed 2017 decision in <i>The Boeing Co.</i>, 365 NLRB No. 154. According to the GC&rsquo;s argument, &ldquo;work rules prohibiting solicitation during nonworking time in work areas and distribution during nonworking time in nonworking areas are presumptively unlawful unless the employer can demonstrate the restrictions are necessary to maintain production or discipline.&rdquo;</p> <p>Importantly, an employer will not be protected by promulgating a blanket prohibition of solicitation or distribution. An employer may have and enforce a work rule barring employees from selling yoga pants, timeshares, or candles, or trying to rally support for a political candidate or attract religious converts. But if the rule is maintained in a manner that interferes with employees&rsquo; distribution or solicitation rights, it violates Section 7 if the employer cannot show special circumstances justify the rule. Moreover, the Board will have no problem finding a violation where an employer removes union literature but permits other non-union literature (such as coupons, event flyers, advertisements, and the like) to remain.</p> <p><b>Takeaways </b></p> <p>What should employers do in light of the Apple case and the emerging Board law which seems to favor employees?</p> <ol start="1" type="1"> <li>Evaluate workplace solicitation and distribution policies to ensure they do not unlawfully restrict Section 7 rights. A policy which prohibits distribution and solicitation &ldquo;except for information related to the terms and conditions of employment&rdquo; might pass muster with the Board. Such a policy, however, must still be applied in a consistent manner that does not infringe employees&rsquo; Section 7 rights.</li> <li>&nbsp;Avoid any rule or action that would chill union activity in nonworking areas during off-duty time. If a discussion is taking place in a breakroom during the lunch hour, managers should be trained to not go in and &ldquo;break it up,&rdquo; even if such discussions make others uncomfortable. Of course, employers may still enforce disciplinary rules if, say, a physical fight breaks out among co-workers.</li> <li>Remember the acronym TIPS for responding to organizing campaigns. Avoid any activity by management that could be interpreted as a Threat, Interrogation, Promise, or Surveillance related to union organizing. Whether inquiries about a campaign comprise unlawful coercive interrogation is a multi-factor analysis, but keep in mind the GC and the Board are likely to have a dim view of an employer&rsquo;s questioning of an employee about the union.</li> <li>Employees are more likely to invite a union into the workplace where there are communication problems with management or uncompetitive pay and benefits. Nothing prohibits an employer from asking employees how to improve working conditions, but employers should take care not to make it seem like a &ldquo;promise&rdquo; to raise wages and benefits if employees vote against the union. If employers are pro-active about addressing workplace problems as they arise, unions will have less traction with employees.</li> <li>Start planning now how to respond to union activity and training managers on how to respond (or more often, refrain from taking action). The added publicity from Board actions against large companies like Apple will no doubt draw the attention of employees in all industries and companies of all sizes. Advanced planning now may help resist a charge and adverse finding by the Board, and perhaps resist the organizing campaign altogether.</li> </ol> Baker Sterchi attorneys will continue to closely monitor this case and others in this rapidly developing area of the law and provide regular updates to this blog and social media accordingly.</div> Crawford to Speak at DRI Sexual Torts Seminar Mar 2023Speaking Engagements<p>On March 14, Baker Sterchi Member Clay Crawford will speak on strategies for evaluation of damages, mediation and settlement at the Defense Research Institute (DRI) Sexual Torts Seminar in Indianapolis, Indiana.</p> <p>Attendees of the Sexual Torts Seminar will be educated on investigation and discovery, statutes of limitation, evaluation of damages, and insurance coverage issues by experienced lawyers and professionals. They will gain practical insight into how children who are abused are interviewed, evaluated, and treated while learning about the science of repressed memory. The seminar will provide attendees with insight into opposing counsel&rsquo;s tactics when handling these sensitive and emotional claims.</p> <p>Crawford focuses his practice on commercial, construction and personal injury matters in the insurance industry. He is a Fellow in the American College of Coverage Counsel and a member of ALFA International&rsquo;s Insurance Practice Group. Admitted to practice in Missouri, Crawford received his Juris Doctor from the University of Missouri-Kansas City School of Law.</p> <p>DRI is the largest international membership organization of attorneys defending the interests of businesses and individuals in civil litigation.</p> For more information or to register for the seminar, click <a href="">here</a>. Sterchi Sponsors UMKC Annual Diversity Banquet Mar 2023Firm News<p>Baker Sterchi Cowden &amp; Rice was proud to sponsor the University of Missouri-Kansas City School of Law Annual Diversity Banquet held at The Monarch Room in Kansas City, Missouri, on March 2.</p> <p>The Annual Diversity Banquet is held, with support from UMKC Law School&rsquo;s Diverse Alumni Network, to raise funds for the Diverse Student Coalition Endowed Scholarship, to honor the current year&rsquo;s scholarship recipients, and to celebrate diversity in the legal community.</p> <p>The Diverse Student Coalition is comprised of UMKC Law student representatives from the Black Law Students Association, the Latino Law Students Association, the Asian Pacific Islander Law Students Association, and OutLaws (UMKC&rsquo;s LGBTQ+ Law Students Association).</p> Baker Sterchi attorneys Briana Cowell and Mary Jo Headrick represented Baker Sterchi at the banquet.