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And it’s a tough day for Labor. Regardless of your point of view, the rules governing employers and workers rights are changing. Labor has taken hits in many other states and 2018 seems the year from the legislature for Missouri. Although, workers won in the August election.
Labor and Unions certainly are not as celebrated or considered as important as they once were. In Missouri, the tension between unions and employers is tight and many battles are being waged right now. Here are six recent examples:
First, in our August election, voters rejected a “right to work” law that would have hampered union organizing in the state. "The result deals a setback to state Republicans who have long sought to make Missouri a right-to-work state, while handing a victory to labor groups whose power has been diluted by the Supreme Court and GOP-dominated state legislatures."
Second, Former Governor Grietens signed numerous laws changing labor rules before he resigned.
The legislature passed a sweeping change requiring most public sector unions to hold recertification votes to continue their representation, limit the topics on which they can bargain, and require annual employee permission to deduct dues from paychecks and spend money on political causes.
Third, unions representing teachers and other public employees sued one week ago to try to block a new Missouri law that they claim imposes "a raft of harsh restrictions" that "effectively eviscerates" their right to organize and bargain on behalf of employees.
Fourth, the legislature and former governor knocked out the merit system for the majority of state employees. The bill crossed the finish line on the last day of the legislative session. No one campaigned on it and it didn't get much press. Gov. Greitens signed it on his last day in office.
The loss of basic work protections for state workers means far-reaching consequences for the workforce and the economic vitality of the area. Gone is any job security for civil servants who have dedicated their lives to public service.
State workers already are retaliated against. With this law change, more retaliation and gamesmanship with people’s jobs is coming. Here's the statute:
R.S.Mo. 36.025: Except as otherwise provided in section 36.030, all employees of the state shall be employed at-will, may be selected in the manner deemed appropriate by their respective appointing authorities, shall serve at the pleasure of their respective appointing authorities, and may be discharged for no reason or any reason not prohibited by law.
Fifth, everyone is losing job protection contrary to the statute. It provides, in R.S.Mo. 36.030: "Employees in eleemosynary [charitable] or penal institutions shall be selected on the basis of merit." But the Corrections department has decided that its employees are "at will" contrary to the statute.
Sixth, Missouri Proposition B, the $12 Minimum Wage Initiative, is on the ballot in Missouri as a change to a state statute on November 6, 2018. Our current minimum wage is $7.85 an hour.
A "yes" vote supports increasing the state's minimum wage each year until reaching $12 in 2023 and then making increases or decreases based on changes in the Consumer Price Index.
It’s not as quick as opponents would have you think: The measure would increase the minimum wage from $7.85 (2018) to $8.60 in 2019; $9.45 in 2020; $10.30 in 2021; $11.15 in 2022; and $12.00 in 2023.
A "no" vote opposes increasing the state's minimum wage each year until reaching $12 in 2023 and then making increases or decreases based on changes in the Consumer Price Index.
That the DOC has decided its employees are "at will" is really ironic. They have an incredible history of retaliating against their employees for complaining about unlawful working conditions.
Two weeks ago, we obtained a $113 Million verdict against them for failing to fully pay their corrections officers. We also obtained a declaratory judgment that the DOC violated its agreement with the class and their Union.
The officers are forced to go into the prison, report, get keys and radios, go through metal detector and x-ray machines, go through airlocks, scan ID, fingerprint IDs, and they then pass through a number of the gates to their post.
They are not paid for this and it’s the most important time at the prison. The Jefferson City Paper, the News-Tribune, published an editorial outlining many of the retaliation verdicts against the DOC and noting the loss of confidence in the department.
The editorial talked about our verdict as the latest in a string of adverse court decisions:
"Thursday's news that a jury awarded close to $114 million in unpaid/overtime compensation to corrections officers left us speechless. Apparently, it also left the Missouri Department of Corrections speechless; they're not talking about it. We reported on Thursday a lawsuit filed Aug. 14, 2012, accusing the department of requiring corrections officers throughout the state to do work before and after assigned shifts without being paid for that mandated work.
”In a trial held before Cole County Presiding Judge Pat Joyce, a jury ruled in favor of the plaintiffs Wednesday, finding the DOC had breached its agreements with the corrections officers, and awarded the hefty price tag.
”The state almost certainly will appeal, and anything can happen in an appeal. But in the court of public opinion, it's one more indication of problems within the department."
Of all the places to make employees "at will" the DOC is not one of them.
This weekend marks the last time we can fashionably wear seersucker. Summer suits are fun, but have their place.
Did you know that the thin, striped fabric used to make clothing for spring and summer wear originally came from the Middle Eastern region of the world? The name is derived from two Persian words, shir-o-shakar, which literally means milk and sugar. This was probably figuratively used as the fabric is marked by both smooth and rough stripes; thus, allowing the fabric to be held away from the skin, creating better air circulation. See you next May.
I am riding (a bike not a scooter) in Pedal the Cause again this year and raising money to help find a cure for cancer. This is an amazing event attracting hundreds of cyclists and raising millions of dollars. I'm gonna shoot for 63 miles this year.
Speaking of scooters, Lime and Bird have scooters all over downtown now. They are pretty cheap to ride. Download the app and give them a try. They add a lot of fun to downtown – whether you work there, go to a Cards game, or visit for tons of other fun stuff to do.
Have a Super September.
And thanks for reading.
--Gary Burger
Below, I discuss a truck crash case we just concluded and a settlement of a case in Illinois showing the dangers of electing Supreme Court judges. But first, an update on the $113 million verdict in the Correction officer class action case.
We filed an extensive Motion to Amend the Judgment, approve a Distribution Plan for the Class, pay our class representatives service fees, and pay us attorney fees and expenses.
We argued the Motion last Thursday, and the court granted all the Amendments to the original Judgment we requested. In the argument I remarked on the hard work we did to secure the Verdict and the local and national import and news about it.
In addition to the very high amount of the judgment, we obtained important equitable relief against the Department of Corrections to prohibit them from continuing to rip off corrections officers and to fix their broken system.
We will continue the fight. We anticipate an appeal and continued opposition by the DOC and Attorney General Hawley. Contact us if you have any questions about the case that are not answered here.
Here are some quotes from a recent article in the Jefferson City Paper about my argument and the Court's order:
Burger said the more the person worked, the more they potentially could get. Under the system they are proposing, the highest amount paid would be around $34,000, but there are many who would get less than $600. He said the average would be around $5,000.
Joyce approved part of the plan Burger argued for which was a stipulation making the DOC implement a system that would accurately track the amount of time its officers work.
Joyce ordered in no more than 90 days from Friday, the DOC shall implement a system that maintains comprehensive, accurate and reliable records of all time worked by Corrections officers and payment for pre- and post-shift work. DOC also shall make all such records available to the Missouri Corrections Officers Association, the plaintiffs in this case and Joyce for inspection upon request.
We represent the family of Finely Felty. I regret I did not know him before his death. We represent his widow, Dorothy, and have now completed the case.
I am not at liberty to disclose the amount of the settlement. But the story of his demise and how we ensured all the many liens in the case were resolved bears telling.
Finley was a tractor trailer driver, as was the driver who killed him, Handrijono Oetomo. They were traveling in opposite directions on Interstate 20 west of Dallas, Texas.
Oetomo crossed the median into the westbound lane of Interstate 20. He was struck by Finley’s tractor and came to rest facing east in the ditch. Finley had little or no time to react. The skid marks indicated that he moved a little bit to the left to try to avoid the trailer and smashed the front of his trailer into the back passenger side of the trailer.
We hired an expert and the defendant did as well. I traveled to Dallas to inspect the vehicles. The black box or ECM data from both vehicles do not provide any information about the crash.
Oetomo drove at excessive speed for the circumstances and on the wrong side of the road. He may have also been driving too close to vehicles in front of him which may have prompted him to turn to the left.
The defendant tested the brakes of Finley’s vehicle and found them in disrepair. They tried to put fault on Finley for this. However, we were able to show repair reports showing he had his brakes repaired within a month before the crash in New Mexico.
We also had a good claim against Oetomo’s employer, Cargo Solutions. They negligently hired Oetomo. Why? He did a similar thing the year before and killed someone else.
They must have known he killed Wanda Huddleston on February 17, 2016 when he was on the wrong side of the road in Lindale, Texas. They settled that claim for $1.4 Million four months before Oetomo killed Finley.
Oetomo fled the United States, likely because of the two people he had killed while driving. He shouldn’t be on our roads.
Another part of this story is the hard work we did in resolving all liens in the case. We insisted that any recovery in the case would not be reduced by property damage claims to the tow tractor and trailers, loss of the cargo and Finley’s work comp benefits.
As I have always said, the extra work in reducing and eliminating liens does as much good for a family as the settlement number from the defendant in the first place.
We fight State Farm all the time in cases.
Did you know that State Farm has agreed to a $250 million settlement for a federal lawsuit which accused the company of breaking federal racketeering laws by donating extra money to the election campaign of Illinois Supreme Court Justice Lloyd A. Karmeier and failing to disclose the amount? The case is Hale v. State Farm.
Plaintiffs were represented by the Clifford Law Offices. They were representing the class in a suit against State Farm, challenging the company’s authorization to use non-factory vehicle parts for vehicles involved in accidents – called Avery v. State Farm.
The 1999 $1 billion jury verdict against State Farm in the Avery case was reversed by the Illinois Supreme Court in 2005. Judge Karmeier was the deciding vote on the case. Millions of dollars were funneled into Karmeier’s 2004 campaign by State Farm and other insurance companies before deciding the case.
When Karmeier was challenged by Plaintiff’s, State Farm lied about the number of contributions given.
The settlement provides benefits to over 4 million current and former State Farm policyholders who were members of the class in Avery v. State Farm.
In 2015, a federal judge in the Southern Illinois district approved class-action status for a lawsuit by policyholders who alleged that State Farm directed campaign contributions that made their way to the coffers of the committee to elect Karmeier to the Illinois Supreme Court. Judge Karmeier was not named in the suit.
As we approach election season, this case highlights the importance of the Missouri Plan. The Missouri Plan provides that the governor selects judges, who are recommended by a non-partisan commission. These judges are retained by citizen vote.
This system ensures that our States judicial selection is not controlled by partisan campaign spending. In states such as Illinois where judges are elected, insurance companies have the opportunity to spend millions of dollars, buy judicial influence, and potentially change the outcome of important cases.
A number of states have adopted the Missouri plan, and we should be proud of our State and our judicial system. We must also fight to preserve this plan and keep politics out of our judiciary.
Below, I discuss a few settlements we recently had - dump truck case and a slip and fall. I also post links to two new podcasts of Lawyervlawyer where we discuss amazing trial tips. There's also a link to the recent Fox 2 story about the $113 Million Verdict in the Correction Officer class action case.
And yesterday I rode Pedal the Cause. Thanks to all my donors. I rode 67.5 miles over 3 and 3/4 hours at an average speed of 18 mph. The hills were tough – I'm really sore today.
We were able to get a great settlement for our clients Luis and Kelsey. They were stopped in traffic on Interstate 64 when a dump truck crashed into the back of their car.
The truck driver was not paying attention to the flow of traffic, and hit their car with incredible force, crushing the trunk, and back seat, while sending glass flying into the car. Luis and Kelsey's car was pushed into the vehicle in front of them and caused a second impact.
They were both immediately taken to the hospital, and received treatment for their injuries. Both sustained injuries to their neck and back, and Luis had cuts on his head from the broken glass.
The insurance company dragged their feet in offering a fair settlement for our clients (surprise). We prepared and forwarded the lawsuit and they nearly doubled their offer.
We settled Luis' case for $66,000 and Kelsey's for $50,000, getting both nearly four times their total medical bills.
The consequences of our large verdict against the State are still being felt. Fox 2 News did an extensive report on the case last week.
One of my quotes: "They’re the biggest police – they’re the biggest officer force in the State of Missouri, with anywhere between 4,000 and 5,000 officers at any one time,” Burger said. “And they are paid lower and they are forgotten.”
We got a great settlement for Rhonda Griffin in her slip case. Rhonda was at the Florissant Hill Plaza for a fundraiser for her high school reunion class – she is an active alumnus.
She was leaving a store when she hurt her knee.
She stepped off a curb onto the parking lot and was walking on asphalt when she slipped and twisted her knee. She did not fall but had immediate knee pain and complained about it to nearby business owners.
She didn’t see why she slipped, so looked. What she found out was surprising: there was a drain from the roof onto the parking lot that caused water and buildup of slick algae on the parking lot.
We have all encountered this while walking in creeks – slick algae where there is constant moisture. As it builds up these areas can be very slick and dangerous.
Not what you want in a parking lot with customers going in and out of stores from their cars. She came back the next day and took pictures.
She not only saw this herself, she inquired of the owners of two stores she had been visiting. We learned there was a constant slick spot there and they had complained about it to the owner. We took recorded statements of them.
We tried to settle the case, but nothing was offered.
We filed suit and litigated the case (as we usually do). We exchanged discovery, got pictures from the defendant and took a designee deposition of the defendant.
The defendant made some significant admissions. He wasn’t a bad guy, and acknowledged that this could be a dangerous condition on this property but wasn’t particularly sure.
We established liability and then pushed for a settlement. We got an amazing settlement for Rhonda. We took this case from a zero offer to a $70,000 settlement.
Rhonda was psyched about the result – we got her $30,000 more than she expected.
A lot is going on in October – although not Cardinal baseball.
My client Ramona received some awards for her amazing work to curb gun violence.
Took another case from $0 to $100,000.
Started winterizing my bees. Did more podcasts.
Had a bunch of lawyers ask me to work with them on some hard cases so I wrote an article with Jake Thomeczek on co-counsel rules (and yes, it’s a plug to ask for case referrals).
Multiple choice:
I would like to share with you a little bit about my amazing client Ramona Fortner. I represent her in an automobile accident that we are settling right now. That is not the point of this story.
Ramona was doubly stricken with two tragedies. She has lost two of her children to gun violence. What she did with what life has thrown at her is amazing.
For over a decade, Ramona has gone into the community and advocated to try and curb black on black crime. She speaks at community events and churches to get the messages out that African Americans should not kill each other. Regardless of the reason.
She advocates taking snitching out of their vocabulary and tries to spread love and peace in the wake of these tragedies.
Because of her persistent and strong action, Ramona has gotten some attention and awards. She was recently featured in a Huffington Post article.
In that article, a reporter for Huffington post attended a gathering at a Saint Louis church to hear stories of police violence against African Americans. She told the story of Ramona, who while listening to everyone’s stories asked, “what about killing us? When are we going to deal with that?”
Ramona told her story and left, but the reporter felt deeply for Ramona’s story and followed her. That was just the first talk they had together.
Ramona told the woman about her son, Malik and how he was killed by someone in a case of mistaken identity for someone else who had robbed the shooter. How after that, her focus has been on the concern she has that the focus on police violence detracts from all the violence occurring in her neighborhood.
The reporter talks about how much she has learned from Ramona and how it will take rallying as a community to advocate to end violence.
Ramona is an incredible person and we are honored to help her, in her accident, and in her goals to help her community in any way we can.
Burger Law frequently co-counsels with lawyers throughout the Midwest in personal injury cases.
What many lawyers don’t realize is that the Missouri Rules of Professional Conduct promote referrals and co-counsel relationships.
Rule 4-1.1 tells us that clients are best served by an attorney with the legal knowledge, skill, thoroughness and preparation reasonably necessary for competent representation.
Moreover, Rule 1.5(e) helps facilitate fee splitting and ensures fees are split in a manner that is fair to both attorneys. Both of these rules were designed to ensure that a client in need has the best possible lawyer for their case.
We share contingency fees with referring lawyers per ethics Rule 1.5(e). This ensures that fees are split in a fair and ethical manner. We are always willing to take calls from lawyers and offer our thoughts about cases and legal issues for free.
We can help other lawyers through direct referrals, co-counseling, and serving as trial counsel. Here are my top ten things to know about co-counseling:
At any given time, a large percentage of our practice is made up of cases involving car wrecks, truck crashes, medical malpractice, wrongful death, and workers’ compensation claims.
Our client was injured at the beginning of February 2016 while traveling on Graham Rd. She was traveling in the far-right lane when she slowed and stopped her vehicle for traffic ahead.
The defendant was traveling behind her and at the last minute attempted to change lanes to the far-right lane and violently collided with the rear of our client’s vehicle.
The rear portion of the vehicle was destroyed, and the vehicle was totaled.
Our client suffered severe injuries to her head, neck and back. After an MRI, an orthopedic surgeon found our client had a herniated disc at C5-6 as well as encroachment on her nerve root multilevel disc degeneration, and posterior protrusion.
The MRI of the shoulder revealed a full-thickness tear of her rotator cuff and a 5 mm tendon retraction. A Wash. U surgeon did a rotator cuff tear repair and tendon retraction.
In total, our client had $50,000 in medical bills. We demanded the policy limits but never received a response from the insurance company. We had to file suit, take depositions, and even had the case close to trial before the policy limit offer came to the table.
The insurance company blamed her injuries on degeneration rather than the accident. We were happy we could help our client and fight the insurance company for the policy limits.
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