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Arbitrator Orders Epic Systems to Pay Overtime to Another Technical Writer
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For immediate release:
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.

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If you are a TW and would like to learn about your overtime rights, contact Breanne Snapp, bsnapp@habush.com or 608-255-6663 for a free and confidential consultation. 

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