Habush Habush and Rottier

Monday, October 26, 2015

EHRs Suck

And I think this video summarizes why quite nicely. The youtube comments (surprisingly) are intelligent and worth a cursory glance.

The video promotes #letdoctorsbedoctors, which in turn promotes athenahealth. I glanced at the athenahealth* website, and their demo looks an awful lot like Epic with a sleeker UI. I'm not exactly sure what they're offering, unless it's an "out of the box" version of Epic. Every feature in the demo is available in Epic, but in Epic it requires tons of analysis, build, debugging, and rebuilding.

Given the similarity to Epic, I'm curious to see how many of athenahealth's employees used to work in a certain cow pasture in Verona.

EHRs do suck. And with all of the MU regulations, EHRs are never going to get better. The government requires reportable data, and that requires data entry. Unless "exam room stenographer" becomes a new job title, doctors are the only ones able to enter all the data that the government wants. The other option is for the government to get out of the way (aka "deregulation") and let doctors be doctors.

*I'm assuming that the lower case and lack of spacing is part of their trademark. Unless you're e.e. cummings, you should use proper punctuation and capitalization.

Wednesday, September 23, 2015

Lawsuit follow-up: Epic's Arbitration Agreement Unenforceable

The Technical Writer class action lawsuit appears to be underway. According to Hawks Quindel (co-council with Habush Habush & Rottier), Epic attempted to have the case dismissed, citing their arbitration agreement. The judge called baloney on arbitration, citing labor union laws. Epic's writers will get their day in court.

This is a solid victory for IT employees, and obvious sign that IT workers need to unionize.

Update 11/3/15

A reader graciously submitted the full text of the arbitration agreement, which was too large to publish in the comment fields:

"If Epic is forced to operate in a more public manner, they might have to start treating their employees and their customers with a little more trust and respect."

Yes, exactly.  For starters, in April Epic filed a copy of its pre-dispute employment arbitration "agreement" with the Federal court in the J. Lewis v. Epic technical-writers lawsuit.  That is, for the first time as a result of this filing, to my knowledge, the full text of the agreement is in the public domain.  People should read it and see what rights of access to the courts Epic's employees have been told they must abandon in order to work at Epic.  I've copied (or tried to copy) the full agreement below for everyone's edification.

This agreement is truly egregious IMHO.  Judy Faulkner, who styles herself as promoting progressive political principles, ought to be embarrassed to shackle her employees with these limitations to the rights to remedies through the courts that Americans take for granted as a birthright.

For hypocrisy and corporate expediency, she should be expelled from the progressive, enlightened political circles in which she has traveled so effortlessly.

For instance, Faulkner can't possibly reconcile her action in imposing this agreement on the Epic labor force with Senator Tammy Baldwin's co-sponsorship of S. 1133 (see also H.R 2087) the Arbitration Fairness Act of 2015 (https://www.congress.gov/bill/114th-congress/senate-bill/1133/text ).  This bill would make pre-dispute forced employment arbitration agreements illegal.  Senator Baldwin presumably agrees with her bill's finding that "A series of decisions by the Supreme Court of the United States have interpreted the [Federal Arbitration] Act so that it now extends to consumer disputes and employment disputes, contrary to the intent of Congress."  It is these misinterpretations that permit Faulkner to force her employees to "agree" to forced arbitration as a condition of employment.

Here is the agreement -- I hope its details are widely discussed throughout Epic and the broader Madison community:


April 2, 2014

Agreement to Arbitrate. Epic Systems Corporation ("Epic") and I agree to use binding arbitration, instead of going to court, for any "covered claims" that arise or have arisen between me and Epic, its related and affiliated companies, and/or any current or former employee of Epic or a related or affiliated company. I understand that if I continue to work at Epic, I will be deemed to have accepted this Agreement.

"Covered claims" are any statutory or common law legal claims, asserted or unasserted, alleging the underpayment or overpayment of wages, expenses, loans, reimbursements, bonuses, commissions, advances, or any element of compensation, based on claims of eligibility for overtime, on-the-clock, off¬the-clock or other uncompensated hours worked claims, timing or amount of pay at separation, improper deductions of pay or paid-time-off, fee disputes, travel time claims, meal or rest period claims, overpayment claims, claims of failure to reimburse or repay loans or advances, claims over improper or inaccurate pay statements, or any other claimed violation of wage-and-hour practices or procedures under local, state or federal statutory or common law.

I understand and agree that arbitration is the only litigation forum for resolving covered claims, and that both Epic and I are waiving the right to a trial before a judge or jury in federal or state court in favor of arbitration.

The Arbitrator shall have the authority to award the same damages and other relief that would have been available in court pursuant to applicable law. The arbitrator shall follow the rules of law of the state which is the employee's principal place of work, any applicable Federal law, and the rules as stated in this Agreement. The arbitrator shall have the authority to grant any remedy or relief that the arbitrator deems just and equitable and which is authorized by and consistent with applicable law, including applicable statutory or other limitations on damages.

Waiver of Class and Collective Claims. I also agree that covered claims will be arbitrated only on an individual basis, and that both Epic and I waive the right to participate in or receive money or any other relief from any class, collective, or representative proceeding. No party may bring a claim on behalf of other individuals, and any arbitrator hearing my claim may not: (i) combine more than one individual's claim or claims into a single case; (ii) participate in or facilitate notification of others of potential claims; or (iii) arbitrate any form of a class, collective, or representative proceeding.

At Will Employment Unchanged by this Agreement. Nothing in this agreement changes or in any manner modifies my relationship with Epic of employment-at-will.

Claims not Covered by this Agreement. Covered claims under this agreement do not include claims alleging discrimination, harassment, or retaliation. Also excluded from this agreement are any claims that cannot be required to be arbitrated as a matter of law. I also understand that I am not barred from filing a claim or charge with a governmental administrative agency, such as the National Labor Relations Board or Equal Employment Opportunity Commission, or from filing a workers' compensation or unemployment compensation claim with respect to covered claims, though I am giving up the opportunity to recover monetary amounts from any such governmental agency related claim (e.g., NLRB or EEOC) and would instead be able to pursue a claim for monetary amounts through arbitration. I also understand that if a third party seeks to have Epic garnish my wages, I may be subject to third-party garnishment proceedings in court, even though such a dispute concerns my wages.

Right to Representation. Both Epic and I shall have the right to be represented by an attorney in arbitration. Neither side is entitled to its attorneys' fees except as provided for by applicable law.

How to File for Arbitration. To file a demand for arbitration:

1.            The party desiring to pursue a legal dispute must prepare a written demand setting forth the claim(s). Epic will pay its own filing fees. If I initiate the arbitration, I will pay the lesser of the American Arbitration Association's then-current filing fee (as of this date, $200), or the then-current filing fee applicable in state court.

2.            The employment dispute resolution rules of the American Arbitration Association ("AAA") effective at the time of my filing will apply. The current version of the rules can be found on pages 15-31 here: https://www.adr.org/aaa/ShowProperty?nodeld=/UCM/ADRSTG_004362&revision=latestreleased. These rules are modified by the terms of this Agreement, including the following:

     a.       Epic will pay the arbitrator's fees and the arbitration filing and administrative fees, less my initial payment for the applicable filing fee;

     b.       Epic and I will each have the opportunity to "rank" our preference for the appointed arbitrator from a list of nine proposed arbitrators and the AAA will then appoint the arbitrator;

     c.        The arbitrator shall have the authority to issue an award or partial award without conducting a hearing on the grounds that there is no claim on which relief can be granted or that there is no genuine issue of material fact to resolve at a hearing, consistent with Rules 12 and 56 of the Federal Rules of Civil Procedure ("FRCP");

     d.       Each party shall be entitled to only one interrogatory limited to the identification of potential witnesses, in a form consistent with Rule 33 of the FRCP;

     e.       Each party shall be entitled to only 25 requests for production of documents, in a form consistent with Rule 34 of the FRCP;

     f.        Each party shall be entitled a maximum of two (2) eight-hour days of depositions of witnesses in a form consistent with Rule 30 of the FRCP;

     g.       The arbitrator shall decide all disputes related to discovery and to the agreed limits on discovery and may allow additional discovery upon a showing of substantial need by either party or upon a showing of an inability to pursue or defend certain claims without such additional discovery;

     h.       The arbitrator must issue a decision in writing, setting forth in summary form the reasons for the arbitrator's determination and the legal basis therefor; and

     i.       The arbitrator's authority shall be limited to deciding the case submitted by the parties to the arbitration. Therefore, no decision by any arbitrator shall serve as precedent in other arbitrations except in a dispute between the same parties, in which case it could be used to preclude the same claim from being re-arbitrated.
Settlement. I may settle any dispute with the company at any time without involvement of the arbitrator.

Modifications and Amendments. I understand and agree that Epic may change or terminate this agreement after giving me 90 days written or electronic notice. Any change or termination will not apply to a pending claim.

Savings Clause & Conformity Clause. If any provision of this agreement is determined to be unenforceable or in conflict with a mandatory provision of applicable law, it shall be construed to incorporate any mandatory provision, and/or the unenforceable or conflicting provision shall be automatically severed and the remainder of the agreement shall not be affected. Provided, however, that if the Waiver of Class and Collective Claims is found to be unenforceable, then any claim brought on a class, collective, or representative action basis must be filed in a court of competent jurisdiction, and such court shall be the exclusive forum for such claims.

Controlling Law. I agree that this agreement is made pursuant to and shall be governed under the Federal Arbitration Act.

Monday, August 31, 2015

More Comparisons with Amazon

I saw this article on LinkedIn: I Had a Baby and Cancer When I Worked at Amazon. This Is My Story

The gist is this: A high-ranking woman at Amazon went on maternity leave, and whilst on maternity leave, was diagnosed and treated for cancer. When she returned to work, 5 months later, the team she managed had all but disbanded, and she was given make-work assignments. She resigned shortly thereafter.

She referred to another article about Amazon, Inside Amazon: Wrestling Big Ideas in a Bruising Workplace, which sounds disturbingly like Epic, but the employment abuses are streamlined into bona fide processes.

Important quotes from the NY Times article:
Some workers who suffered from cancer, miscarriages and other personal crises said they had been evaluated unfairly or edged out rather than given time to recover.
[L]ife inside its corporate offices is largely a mystery. Secrecy is required; even low-level employees sign a lengthy confidentiality agreement.
Articles like these, combined with my own experience at Epic, lead me to one conclusion: IT workers need to unionize.

In other news, UGM started today. Epic customers, expect delayed responses from your TS and IS as they're restaffed as traffic enforcers, tour guides, and concierges.

Thursday, July 30, 2015

Cerner gets DoD Contract

Full story over on healthcareitnews.com. Since Judy has all the appearances of a shady businesswoman (see my previous posts on the subject), I'm pleased that she did not win the contract. Since there's been so much conflict of interest with other stuff, given Judy's presence on Obama's EHR group, I'm glad that in this situation, Epic gets to be above board.

Anecdotally, Cerner is garbage, and the DoD has admitted faulty software choices in the past. In 5 years, I expect they'll be transitioning to Epic.

Wednesday, July 29, 2015

The QA Lawsuit--Aftermath

Several weeks ago, I received this comment on the Epic and the Non-Compete post:
You might want to consider writing a new blog post about this feature of the story. One thing that was reported in the paper is that Epic is "encouraging" QAers to donate the money to Access Community Health. Epic's communications to QAers about the settlement have been very good at those things Epic does to explain how you can give the money to Access, or keep it for yourself, but choose carefully. One quickly gets a sense of what the "careful" choice is.

What I'm surprised nobody has mentioned is that Judy's husband, Dr. Gordon Faulkner, is a physician for Access. I think Access is a worthy cause and have nothing bad to say about them. They do a lot of good work in the community. However, something feels very wrong that Epic has settled a court case over accusations of misdeeds towards its employees, and is exerting influence over those very same employees to send that settlement money to the employer of the founder's husband. If this isn't illegal, it at least feels unethical. And a bit arrogant and ignorant on Judy's part to think that it wouldn't be noticed.
Conflict of interest is nothing new for Judy, but this takes it to a new low. It reminds me of those mining towns where everyone worked in the mine. The mine would own the housing, run the only store, and pay wages in store credit. It was a more creative form of slavery, and it's one of the reasons why labor unions were necessary.

Judy could have picked any charity. Doctors Without Borders, UNICEF, American Red Cross, Madison Ballet, heck, even Planned Parenthood and Organizing for Obama America would have been acceptable choices in order to avoid conflicts of interest. Instead, it's "Take the money that you won because I'm not paying you what you deserve, and give it to my husband."

Wednesday, March 11, 2015

Work Hard. Have Fun. Make History.

I don't know if Judy still tries to compare Epic with Amazon, but the comparison is more accurate than I originally thought.

Recently, I ran across Amazon's slogan: "Work Hard. Have fun. Make History." It bears a certain resemblance to Epic's slogan: "Do Good. Have Fun. Make Money." I'm not sure whose slogan came first, but I'm curious about who copied whom.

So I started doing some research. I found this article with an image of Amazon's slogan emblazoned in 9000-point font in its warehouses fulfillment centers. It didn't give me a date for the slogan, but it did describe working conditions and a management strategy that is all too familiar.

Since Judy also compares her company to Google and Facebook, here are their slogans:

Google: Do No Evil.
Facebook: Move Fast With Stable Infra. Previously, it was Move Fast, Break Things.

Monday, March 2, 2015

More Legal Stuff

Epic is suing Indian consulting firm, Tata, alleging that the consultants were stealing information from the UserWeb and passing it to an Indian EMR vendor. While Epic is the big fish in the American pond, Tata is bigger still, and their lawyers don't sound like they're willing to be pushed around.

The discovery process for the lawsuit promises to be interesting--Epic is going to have to prove its allegations (if my armchair-lawyer experience is correct), and their fiercely private stuff will have to get public scrutiny. A linked article from the link above explains how to view legal documents for free, and encourages everyone to read Epic's legal stuff. If Epic is forced to operate in a more public manner, they might have to start treating their employees and their customers with a little more trust and respect.

I expect Epic will drop the case, unless Judy (in her role as Obama's crony on the Federal Health IT Advisory Panel) is able to get some special confidential privileges.

Thursday, February 12, 2015

More Class-Action Lawsuits Against Epic

This just in: Lawsuit Seeks Overtime Pay for Epic Technical Writers

There are two new lawsuits suing Epic for overtime wages, pretty much identical except for which writers each lawsuit affects. The one lawsuit is for writers who left Epic before April 2, 2014 (when an arbitration agreement went into Epic's employment contract); the other is for writers still employed after April 2.

The article didn't say which law firm was involved, but some high-end detective work (I googled James Jansen lawyer) showed that it's Habush, Habush, and Rottier. If you're a current or past writer, you ought to contact them.

Thursday, February 5, 2015

Interesting article about Epic

You ought to read it:  10 Things to Know About Epic

As always with Epic articles, the comments are informative.

Tuesday, January 27, 2015

Epic's Customers

I've been working on a list of Epic's customers. I thought it might be useful to those seeking employment after their non-competes have expired. I struggled with how to format it in a useful manner, and then decided just to throw in the towel. It's better to teach folks how to do research than to do the research for them. (Also, more than any other post I've published, this caused no small amount of fear of Epic instituting some kind of shady repurcussions that would affect my current employment.)

Anyway, I used these search terms in google:
And then I just read the comments on various articles and if that triggered further searches, I rolled with it. One such comment on a nursing blog said this:
you can download an app in your iphone "mychart" it will show you the states that have EPIC program

The MyChart app is available on Android now, and it lists each organization by the state that they serve.

If it's full time work you want, start your job search with a trip to the app store of your choice.

And if anyone else wants to publish a full or partial list, I'll link to it.

Friday, January 23, 2015

By Request, Epic's Severance Agreement

Some comments on my first post alluded to a severance agreement. I promised to post it when I received it, so here it is:
The full text:

Regardless of whether I sign this agreement, I will be paid my normal salary and for my unused vacation accrued through my last day of work, subject to Epic's policies on pay upon termination. (Only add this language if you would not pay out unused vacation)

If I sign this Agreement and abide by its terms, my last day of work at Epic will be ________, 20__ (The "End Date"). For that End Date to be in effect and to receive the severance benefits described below, which are in addition to anything owed to me, I must sign and return this agreement to epic no later than _______, 20__. Prior to the End Date, I will fulfill my commitments to Epic in a professional and timely manner, including abiding by Epic's policies.

Epic will provide me with severance in the form of continuation of my base salary in effect on the End Date, less standard payroll deductions and withholdings, for ____ (__) weeks. The first installment of severance will be provided to me on Epic's first normal payroll date following the End Date that is at least seven (7) business days after Jennifer Peterson in Human Resources receives my signed agreement.

Although my receipt of severance pay and other factors may affect my unemployment insurance benefits, if I am awarded such benefits, Epic will not appeal that award. If I am denied such benefits, Epic also will not appear at any unemployment insurance appeal tribunal hearing unless required by law.

I am not entitled to any other severance, benefits, vacation , paid time off, leave, equity interest, bonus, commission or other payment, compensation, or consideration of any kind (including, for example, that Epic will not match any 401(k) amounts contributed by me in 2012), except those expressly described in this agreement. I have been paid all other compensation owed and for all hours worked except those expressly described in this agreement. I have been paid all other compensation owed and for all hours worked except as described in the first paragraph above, received all leave and leave benefits and protections for which I am eligible, and haven't to my knowledge suffered an on-the-job injury for which I haven't already filed a claim.

I agree not to reapply for or seek employment with or at Epic.

I generally and completely release, and promise not to sue, the Company with respect to any and all releasable claims I may have against the Company. The "Company" includes Epic, it's affiliates and subsidiaries, and its and their past and present officers, directors, employees, agents, owners, insurers, predecessors, successors and assigns. This release does not apply to any claims that may arise after the date I sign this agreement or any claims that cannot be released under applicable law. Otherwise, the release claims include all claims, whether or known now or later discovered, whether based on contract, tort, statute or otherwise, which arise out of or are in any way related to any events, acts, conduct or omissions occurring prior to my signing this agreement, including claims for future damages allegedly arising from the continuation of the effects of any such events, acts, conduct or omissions. For illustration only, the released claims include any claim arising out of (1) alleged discrimination of any type, (2) my Epic employment, agreements, compensation or benefits, or the termination of employment, or (3) any federal, state or local law, regulation, ordinance or order concerning the employee relationship, compensation or benefits, or the termination of employment. Nothing in this release is a waiver of a right to file a charge or complaint with administrative agencies such as the federal EEOC that I cannot be prohibited from or punished for filing as a matter of law, but I waive any right to recover damages or obtain individual relief that might otherwise result from the filing of any such charge with regard to any released claim.

This agreement represents the entire agreement between Epic and me, and it completely supersedes any prior or simultaneous oral, written, or implied agreements, statements or understandings concerning its subject matter. This agreement doesn't supersede my continuing obligations under the Epic Employment Agreement, including for example obligations relating to confidentiality, intellectual property or non-competition, or other continuing obligations that I have to Epic under any other agreement.
This jiggered some memories I had of when Epic tried to get me to repay the moving costs that they incurred by employing me. I told them I would do no such thing, and they let the issue drop.