Habush Habush and Rottier

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.


  1. This is obviously a good thing (arbitration clauses get my goat), but I don't see how this is a "solid victory for IT employees" - the only reason this lawsuit has merit in the first place is that tech writers _aren't_ IT employees. If they were, they would be overtime-exempt under the FLSA computer professional exemption.

  2. In case you didn't see this article: http://www.motherjones.com/politics/2015/10/epic-systems-judith-faulkner-hitech-ehr-interoperability

    Doesn't seem like anything new being thrown at Epic, but..

  3. Thanks for posting the agreement. There's a typo in the Senate bill number -- should be S. 1133, not S. 1113. The House counterpart is H.R. 2087. Concerned Epic staff (and others) ought to write to their representatives, and maybe ask their relatives in other districts to do so as well.

    For more information on how pernicious mandatory arbitration can be, the New York Times just published an excellent, well-researched three part series on the topic. The first article is here (with links to the subsequent two): http://www.nytimes.com/2015/11/01/business/dealbook/arbitration-everywhere-stacking-the-deck-of-justice.html .

    There's also an excellent video lecture online examining the history of how arbitration got off-track in America -- how it originated to address a real problem among merchants and morphed into an avoid-liability artifice used by employers, for example, in an effort to cancel worker rights that appear to be guaranteed under the National Labor Relations Act. The video lecture (under half an hour) is here: https://youtu.be/YcwgEM4k84U . Take a moment and learn how your rights are being brazenly ravaged. Good luck to all!

  4. An update on the current state of play in the Jacob Lewis (and putative class members) case against Epic (the Technical Writers case). As reported in this post, Federal Judge Crabb rejected Epic's motion to dismiss because she found that the provision of the Epic arbitration agreement on which Epic relied that precluded class-actions was in this situation. Her decision rested on her finding that a class action lawsuit was a form of "concerted activity" directly protected and guaranteed to workers under the National Labor Relations Act.

    But the way to view where things stand is that the dust has by no means settled on the resolution to this issue in this case. Congratulations to Lewis's counsel for persuading Judge Crabb -- but here's why the issue remains, practically, entirely unsettled: Epic immediately appealed Judge Crabb's decision to the 7th Circuit Court of Appeals, where it is pending now. According to the COA's scheduling order, Epic's brief is due Nov. 9th, and Lewis's brief on Dec. 9th, with any reply brief due Dec. 23rd (Merry Christmas to all the attorneys!).

    Why the outcome of this appeal is an entirely open question: In a case involving Murphy Oil USA Inc. and a prior decision involving D.R. Horton, another Circuit Court of Appeals, the 5th Circuit, rejected and invalidated (in the 5th Circuit's territory) the National Labor Relations Board's decision in In Re D.R. Horton on which Judge Crabb relied (though the NLRB continues to apply its decision nationally, in circuit territories where it has not been invalidated). The 5th Circuit, in its reasoning rejecting In Re D.R. Horton, relied on (arguably extending) the Supreme Court's decision in AT&T Mobility, LLC v. Concepcion in which the Court on a 5-4 vote upheld a consumer arbitration agreement that prohibited class-action suits that appeared to be protected by state law.

    I have no way of knowing how the 7th Circuit will regard this issue, but any fair assessment is that it remains entirely unsettled and open. Watch this channel for further developments!

  5. Minor typo correction to the post I just submitted: The second sentence reads, "As reported in this post, Federal Judge Crabb rejected Epic's motion to dismiss because she found that the provision of the Epic arbitration agreement on which Epic relied that precluded class-actions was in this situation." Please add the word "unenforceable" to the end of this sentence. Sorry for the oversight.

  6. If anyone needs help with legal issues re Epic firing and black lists, contact http://www.hq-law.com/ for their Epic attorneys. They are trying to assemble complainants for a larger lawsuit. Habush Habush & Rottier was not very helpful to me and seemed like amateurs.

  7. Another NY Times article today on the wonders of forced arbitration, this time for borrowers, and how it insulates debt buyers from accountability for sometimes plainly abusive collection practices: http://www.nytimes.com/2015/12/23/business/dealbook/sued-over-old-debt-and-blocked-from-suing-back.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=first-column-region&region=top-news&WT.nav=top-news&_r=0 .

  8. Thank you for sharing your post. This agreements works in every way to avoid any disputes. Very technical to understand word by word for regular people but this protects them about their rights. It's only needs time and effort to understand your rights and responsibilities as both parties are involved on the agreements.