David Michael Miller
Epic Systems recently made headlines around the nation when the U.S. Supreme Court ruled 5-4 in its favor in the case of Epic Systems Corp. v. Lewis. Former employees had sued the Verona-based medical software company in a class-action lawsuit to try to get paid for uncompensated overtime work.
But Epic argued that the workers didn’t have the grounds to file a class-action lawsuit in the first place. Like many companies, Epic requires its workers to resolve employment disputes through private arbitration rather than a court of law. Epic’s terms of employment additionally forbid group arbitration. Even if hundreds of employees have the same grievance, they each have to file individually.
It’s a system ridiculously weighed in favor of the corporation. How is one employee going to stand up against the sort of legal muscle accessible to a company that buys decorative dragons for conference rooms and builds 15,000-seat auditoriums?
In the majority opinion, Justice Neil Gorsuch wrote that these arbitration policies are perfectly legal, and employers are only required to recognize this sort of collective action if the employees are part of a labor union. This decision will impact millions of employees, far beyond Epic’s sprawling suburban campus. Beyond overtime pay, this ruling makes it harder for employees to take action against sexual harassment and other safety concerns.
But Gorsuch’s opinion gives Epic employees another option. If they want to take collective action, they need to unionize.
“This ruling is one attack on labor out of many. But, for these tech workers, who may not have thought about unions as a means to have a say in the workplace, this particular ruling could get them looking at organizing and unionizing for the very first time,” says Kevin Gundlach, president of the South Central Federation of Labor, AFL-CIO.
I realize this is a bold proposition. Until recently, unions haven’t made much headway in tech companies. But the need is there. While pay for full-time work in tech is generally pretty good, many workers are kept on low-paying, temporary contracts. Without unions, employees are often pushed to work extreme overtime hours. Short-term contracts and long hours mean employees burn out quickly. The tired and disgruntled leave and get replaced by bright-eyed folks fresh out of college. Constantly rotating employees don’t organize. It’s a feature, not a bug.
There are some encouraging signs. Numerous digital media companies have unionized over the last few years, most recently Vox Media back in January. While these companies are small compared to the tech giants in the field, these newly unionized workplaces show that the internet and collective bargaining are not mutually exclusive.
Even the big tech companies are starting to see their employees take collective action. Google announced late last week that it would not renew a contract to develop artificial intelligence for the Pentagon, work that many believe could ultimately be used for lethal purposes. Google only took this action after facing pressure from employees who went public with their concerns. Some employees even quit in protest.
The employees at Google have shown that organized workers can make a Goliath of a company change course. Epic workers should take note.
There are reasons why I think Epic is a better candidate to lead the fight for worker power than big tech companies on the coast. For one, it shouldn’t be too hard to convince Epic’s workers that the company doesn’t always have their best interests in mind. Going all the way to the Supreme Court just to avoid paying some overtime is a pretty good example of that.
More importantly, Epic is the only major tech employer in town. Seattle has Amazon and Microsoft. Silicon Valley has Apple, Google and Facebook. That’s not counting the near-infinite number of smaller companies and startups in these markets. As Epic employees get older, start families and lay down roots in Madison, they’ll be faced with fewer options to change lanes in their career than they’d have in those larger markets. Thus, they have incentive to fight for stronger working conditions at the lone 800-pound gorilla of online medical records.
A union could fight for issues beyond arbitration clauses. A union could negotiate Epic’s non-compete clause that says ex-Epic employees can’t work in health care IT for a full year after leaving the company. It could get worse. In 2014, Epic toyed with lengthening the non-compete clause to two years. There’s no reason it can’t try it again.
Modifying the non-compete clause could be a major incentive for collective action for Epic employees. It’s a bargaining point that simply isn’t needed in Silicon Valley. In California, non-compete clauses are illegal.
Much like how the high court ruling will affect millions of workers beyond Epic, a unionized Epic could spark a wave of unionization across the industry.
Says Gundlach: “If some workers show that ... organizing is a way to stop wage theft and other issues in the industry, that’s going to inspire others.”
Alan Talaga co-writes the Off the Square cartoon with Jon Lyons.
