May 17, 2021 (Madison, WI) - The legal team consisting of Jason Knutson and Breanne Snapp from Habush Habush & Rottier, and Caitlin Madden and Natalie Gerloff of Hawks Quindel, recently notched another arbitration victory against Verona-based healthcare IT giant Epic Systems. The Arbitrator decided that Epic misclassified the Technical Writer (“TW”) as overtime exempt and ordered payment of back overtime wages. Many similar cases are currently pending.

 

Since 2019, TWs have been victorious in individual arbitration hearings across the country. The wins are especially significant given the lengths Epic has gone to avoid paying overtime wages in these cases. Epic fought all the way to the US Supreme Court to force these claims into arbitration and has brought each one through hearing, delaying payment of the overtime owed for years. 

 

Attorney Caitlin Madden of Hawks Quindel commented,

 

“Here we have arbitrators across the country, telling Epic that they have misclassified these TWs and owe them overtime wages. To achieve these results validates the experience of our clients after years of working through the arbitration system to enforce the objectives of federal law. “

 

The individual cases originated from a class action filed in early 2015 by Jacob Lewis, a former TW. Epic spent the next three years arguing to federal courts that Lewis and his colleagues could not file a case together because they were subject to Epic’s forced arbitration provision. The Lewis case made its way up to the United States Supreme Court and was decided in 2018. A 5-4 majority came down in favor of Epic, deciding that employers can currently deprive their workers of the right to bring disputes collectively in a court of law. Despite the Court’s ruling, many are hopeful that forced arbitration will soon be banned legislatively in the employment and consumer contexts. The FAIR Act, which would bar companies from forcing employees or consumers into arbitration to resolve disputes, passed the House in 2019. 

 

While the Supreme Court’s ruling resolved the issue of where and how Epic employees can bring their claims, it did not decide the underlying issue – is Epic legally required to pay its TWs overtime?  The analysis begins with the text of the Fair Labor Standards Act (“FLSA”), a statute mandating that all employees be paid overtime, including salaried employees, unless their employer can prove they qualify for an exemption. 

 

The primary exemption relied upon by Epic is called the “administrative exemption,” which requires that the employee’s primary job duty be directly related to the management or general business operations of the employer or the employer’s customers. Examples of work that may qualify for the exemption include tax, finance, accounting, human resources, and advertising. The exemption also requires that an employee have discretion and independent judgment with respect to matters of significance for the employer, such as authority to bind the company or implement management policies.

 

The answer to this underlying legal question would be resolved by trying individual claims in arbitration, a process which began in 2019. Attorney Jason Knutson of Habush Habush & Rottier explained,

 

“Epic has continued to do everything it can to deny paying its employees the overtime pay they’ve earned.  Rather than just change its pay practice to conform to the law, Epic has tried to hide its conduct by forcing these cases into private arbitration instead of letting them be tried in open court.  Fortunately for the employees, the end result has been the right one and they are being awarded the overtime pay they earned all along.”

 

And then the decisions started coming down – arbitrators overwhelmingly sided with Epic employees, awarding overtime, attorney fees and costs, and sometimes additional damages. Because TWs are producing documentation that comes with Epic’s software, arbitrators generally concluded they are not performing work directly related with the running or servicing of Epic’s or its client’s businesses. One arbitrator explained,

 

“…obvious to the arbitrator is the salient fact that there is no similarity between the work performed by [Claimant] and the…examples of functional areas of work directly related to management or general business operation of the employer or its customers…[Claimant] had virtually no direct contact with any of the end users of Epic’s software but merely posted his deliverables on a website to which customers had access.”

 

Despite these outcomes, Epic continues to litigate every case at a staggering cost, unbeknownst to most of its employees and the public at large. Breanne Snapp of Habush Habush & Rottier commented,

 

“Epic has now spent millions and millions of dollars attempting to evade our country’s overtime laws. What makes it all the more unbelievable is that Epic could’ve solved the problem at a fraction of the cost by simply paying these employees overtime. Why they prefer to pay attorneys and arbitrators rather than their own employees is baffling.”

 

While Epic’s conduct may be hard to understand, what’s crystal clear is that the Habush and Hawks Team will never stop fighting for workers’ rights, whether it is in court or arbitration.

 

For more information, contact: 

Attorney Caitlin Madden

Hawks Quindel S.C.

cmadden@hq-law.com

608-257-0040

Attorney Breanne Snapp

Habush Habush & Rottier S.C.®

bsnapp@habush.com

608-255-6663

Employees 2, Epic 0

Habush Habush & Rottier and Hawks Quindel S.C. have won their second arbitration against Epic. Full details here, but I expect a lot more of the same. Everyone who was in the previous class action suit has been pushed to individual arbitration, and this is the second case to complete the process. I'm not sure what the price tag is for a single arbitration case, but I bet Epic's wishing at this point that they could just do a class action suit and get this over with.

Arbitration LOL

That employers can force employees into arbitration instead of class action lawsuits is old news. New news is that the law firms of Habush Habush & Rottier and Hawks Quindel have won the first arbitration agreement. Epic's gotta pay overtime, at least to the one technical writer in the agreement.

The Fat Lady Hasn't Sung Yet on Epic Systems v Lewis

I just saw this: Dems Stake Out Their Turf With Bill Targeting Epic Systems. Law360 reports that Representatives from New York and Virginia have introduced a bill (H.R 7109)in Congress that would ban class action waiver provisions and requirements to settle disputes only by arbitration in employment contracts. The Senate is working on a similar bill, according to the article, but doesn't have any information on that.

Further bulletins as events warrant.

The Supreme Court Case and What It Means to You

Opening act: I've recently been getting a lot of questions about the blacklist (see previous posts here and here). I have it documented somewhere that if you leave within 90 days after a go-live, you're blacklisted. The current concerns are around when you can leave during implementation. For example, for an 18 month project with Epic involvement, if customer analysts leave during the "direction" phase (fka "design, build, validate", i.e., before the go-live), will they be blacklisted? #askingforafriend

Headliner: It's been a few months since Epic Systems Corp v Lewis went to the Supreme Court, and I've been conspicuously silent on the outcome. Too many articles were coming out too frequently to read, and the articles seemed pretty evenly split on whether this was a good or bad decision.

Upon reflection, it's definitely bad. It was this section of a currentaffairs.org article that convinced me:

Since the employees couldn’t organize beforehand to demand their employers respect their legal rights, they attempted to do so on the back end through class action lawsuits—where they could all go to court and hold the employer’s feet to the fire.
But, according to the Supreme Court, employees banding together to sue employers about their illegal labor practices is not the sort of “concerted activity” the NLRA was meant to protect.

I used to be very vehemently anti-union, but my mind has changed the as I've had more jobs. The job I had that was the most fair, the most protected against abuses, was for a company with over half of its employees belonging to a union. Needless to say, that job wasn't in IT.

So, this ruling sucks. IT workers need a union.

So you just got Hired at Epic. Now what?

I started this blog seven years ago because I had no idea how to manage my life without a job. I couldn't find any resources on the internet, so I documented my own process. I've grown a lot in the last several years, and come across various resources that didn't exist back then. So, in the spirit of the season, a gift:


You get paid well at Epic for the stage of life that most new hires will be. Expenses in Dane County are low, if you're not a moron. It would be very easy to save a substantial chunk of your income, and with the right lifestyle habits, a person can work at Epic for a few years, maybe consult for a few years, and then have enough to retire for life.


Enter Mr Money Mustache. He advocates frugality and aggressive saving/investing. Live close to where you work. Arrange your life so you don't need a car. ("What about winter?" you're saying. Hold your horses.) Throw parties at home with booze that you bought at Woodman's, rather than hanging out in bars on Capitol Square.


On Zillow, The average rent for a 1 or 2 bedroom dwelling in Verona is around $1000. Average salaries, according to Glassdoor, are big, to say the least. Get out of Madison, and move closer to Epic.


Assuming a salary of $57,000 per year, that's a gross pay of 4800 per month. For single folks in 2018, that puts you in a 22% tax bracket. Married folks are in the 12% tax bracket. I'm going to assume singleness for the math that follows. I don't remember how much insurance cost at Epic, and whatever other stuff came out of pre-tax--someone with current figures can comment below, and I'll update here.


So, from $4800, subtract $300 for various pre-tax deductions: Insurance (maybe?), 401(k), cafeteria.
From $4500, take off 22%.
From $3500, subtract $1000 for rent. (Get a roommate and split that.)
From $2500, you ought to be able to live comfortably and save a ton.
If you have a car payment, get rid of it. Sell your SUV and buy a used hatchback and snow tires.
Don't eat at restaurants. A single person ought to be able to eat well on less than $400 a month. Learn to cook.
Read Mr Money Mustache's case studies and get other ideas. The main tips are live close to work and don't spend like a moron.






It is not difficult to live on $2000 or less, as a childless person in Verona. Invest that money using the tools that MMM recommends. When your investments pay you more than your expenses, then you're retired. Hooray!


"But my car!" you say. "I need it because it's cold!" Wisconsin winters suck. But I lived in the neighborhood in that Zillow link. The sidewalks between those houses and Epic are well-plowed and well-salted. It's a 15 minute walk to Fomalhaut, then heated and underground anywhere else you want to go. It's a 10 minute drive to the parking garages. Saving 10 minutes a day is not worth $500 in car payments, gasoline, and insurance.


You can do it. The best way to survive getting fired from Epic is to not need a job in the first place.


Update 3/6/18:
You're going to travel while you're at Epic, and Epic is going to pay for everything. Turn a profit on that with a rewards credit card. I use Chase Freedom, and am quite happy with it. It currently offers 1% back on all purchases, with 5% back on certain categories that rotate out every quarter (currently anything with Chase Pay, and internet/cell phone bills). Help me help you by using the referral link above.
Also, the Qapital app helps with savings goals. Link your bank account, and create rules to automatically save for whatever goal you want. Rules can be "round up every purchase to the nearest dollar, and deposit the excess into your goal", "save X% of every deposit", or a slew of others. It's a great app. Use the referral link above, and we'll both $5.

Another Reason to Sue Epic?

A coworker of mine alerted me to this: Mayo Clinic Health Information Offered Through Epic Patient Apps


The article is from (late) April of this year, so it's not exactly breaking news. The article states that Mayo Clinic and Epic are partnering to include health education content published/created by Mayo through Epic's MyChart application.


Because I'm trying not to be a hack, I searched for other articles for confirmation. I found this one on Healthcare IT News: http://www.healthcareitnews.com/news/epic-mayo-clinic-team-integrate-symptom-checker-mychart-patient-portal. This article suggests that Epic will soon jump into the auto-diagnosis RoboDoc market. (I need a jpg of Robocop in a lab coat, now).


Being an Old Fart, I remember Microsoft getting in trouble for bundling MS Office software with its OS. Other health content vendors are available--Staywell, Relay Health, among others. If Mayo content gets provided with the software, how is that any different than the Microsoft antitrust lawsuit? If Corel was pissed then, Staywell should be livid now.