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.

The Blacklist

(burying the lede)
Currently, the Supreme Court is deciding on the legality of Epic's clause in their employment contract that all disputes must be handled by individual arbitration--an action that Epic instituted to prevent all the class action lawsuits that they've been getting over the last few years. Here's a link to an article: TL;DR: SCOTUS is undecided, but not every justice has weighed in.




Lede:
I met a person who was actually affected by the heretofore-existed-only-in-threats-and-rumors Epic Blacklist. He was employed as an implementation analyst at a customer site (never an Epic employee) who was involved in various go-lives at that organization. We'll call him Ray.

After working with this customer and finishing a major go-live, Ray decided to leave the organization for some legitimate life reason, probably family related. His employer was cool with this, and it was an amicable separation. Ray wasn't fired, is what I'm saying. The employer liked him, was sorry to see him go, but was supportive of his future endeavors.

Ray got a job with an Epic-preferred consulting agency, and the agency asked Epic about his eligibility. Depending on which consulting firm agent asked which Epic employee, the firm received various answers as to when they could hire Ray--right now, a few months from now, or a calendar year after the hospital's go-live. The consulting firm found a placement for Ray at a new organization, but when it came time to actually get him working, the new org said it would cost them their "Good Install" to hire him. Ray ended up doing non-epic work until a year had elapsed.

It's real, people. And Epic enforces it by reaching into its customers' pocket books. Ray spoke to his consulting firm during all this, and the firm said that Epic set up Good Install/Good Maintenance as a way to have control over who gets to work on Epic products, without hairy legal issues. In effect, an Epic Client can hire whoever they want, but Epic might charge extra for the privilege of hiring certain people.

update:

A reader posted this on another page here:

How does leaving during an active implementation and/or go-live as a consultant/contractor affect your future job prospects? Can you be blacklisted for leaving a client abruptly? Not to pursue another client, but to take a long break.

Based on an N of 1, the blacklist is time-limited. If you leave during an active implementation, odds are good that you WILL get blacklisted. But the blacklist will probably only last a year. If your break is a year, then you shouldn't have any major consequences. If your break is a couple of months, you'll need to find some non-Epic work to do, or an Epic customer who doesn't mind pissing Judy off. Sutter Health comes to mind.

Epic and the Non-Compete

My google alert for the QA class action lawsuit notified me of something interesting this week. Apparently, some of the local consulting companies were poaching from Epic. Thanks to some shady practices which have all been mentioned in the comments on this blog, Epic got Vonlay (which is in the process of being bought by Huron Consulting Group in Chicago) to agree to a two year non-compete for ex-Epic employees. Read the article here.

There are several noteworthy items. I've italicized quotes from the Isthmus article.

1. The Healthcare IT world knows that Epic underpays and overworks its employees. As soon as the ex-employee goes to consulting, they start to make double the pay with fewer hours. "You can make $180,000 to $200,000 a year," says a consulting executive, compared to the $100,000 that same employee might have made back at Epic. "And for us, it's 40 hours billable, maybe 50 total including travel."
2. Non-competes are bad for job-seekers, bad for companies looking for qualified staff, and bad for communities. There is, in fact, compelling evidence that broad no-compete clauses suppress economic activity and damage wage levels, according to the Ewing Marion Kauffman Foundation, which promotes entrepreneurialism. It reports that "job creation and economic growth will be hindered" by the clauses, and workers subject to strict noncompete terms suffer "lower compensation in their next job, skill atrophy and a degradation of professional networks."
3. Epic is shady. Epic had successfully intervened at the 11th hour to insist that Huron not hire Epic employees within two years of them leaving the company. 
4. Epic operates with questionable legality. [Speculation] circles around Epic fearing it might be treading on federal antitrust laws and being accused of anti-competitive business practices.
5.  Epic doesn't want what's best for its customers or what's best for its employees. Epic only wants what's best for EpicJudy. Epic enforces its no-hire clause through "conspiring" with its customers, which include all of the hospitals and major physician practices, and through the third-party consulting companies.  Epic... effectively dictates job terms and other matters to the consulting companies, whose business is augmenting staff and fine-tuning software for Epic clients once their system is up and running. If those consulting firms fail to toe the Epic line, the company can deny them access to the technical documentation for a health system's Epic software. And that means the consultants can't do their job.
   Clients, on the other hand, are rewarded for agreeing to honor Epic's noncompete clause in their own hiring -- in the form of receiving substantial "preferred customer" discounts to their yearly maintenance fees.
   In the end, this means a hospital can't turn around and hire the young Epic whiz kid who just spent two years installing its Epic software. Nor can that Epic wiz kid quit her job and walk across the street to work for an Epic consultant who might have a contract with that hospital
6. If there were enough backlash, Epic might back down further on the non-compete. Huron and Vonlay officials did not respond to queries, but Epic spokesman Brian Spranger confirmed that Huron had agreed to a two-year noncompete term. And then the shocker: "This is being reverted to a one-year term." Spranger offered no explanation in his email for the reversal. "We'd rather not comment on the policy as a whole." 

This was one of the more interesting articles I've read about Epic in a long time. Perception is reality, according to the pre-staff meeting powerpoint slides. I wonder how Judy feels about her company being perceived as a shady, strangleholding, antitrust-worthy corporate giant.

Rumors of the Blacklist

The Blacklist. It hangs over everyone who gets kicked from leaves Epic, but nobody knows what it entails--including me. We've all heard rumors though, and here's the compilation of those. Feel free to chime in with anything you've heard.

-Banned from Epic campus--means no UGM, no more certifications, no more increasingly expensive and decreasingly tasty lunches.


-Epic won't take your phone calls when you're working at a customer site.


-When Epic is on-site, you can't attend meetings where Epic personnel are involved.


-Can't get a job at any of several major companies/recruiting firms.


-Can't renew certifications--no NVTs.

-submission from a reader: "I was told by a TL that Judy will personally call the CEO of firm you are applying to and ask him to not hire you."

Again, none of this is substantiated by anything. It's all just hearsay. I'll correct it and add to it as information comes my way.