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:
MUTUAL ARBITRATION AGREEMENT REGARDING WAGES AND HOURS
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.
