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Lewis, J. v. Epic Systems Corp.

United States District Court, W.D. Wisconsin

October 13, 2016

LEWIS, J., individually and on behalf of all others similarly situated, Plaintiff,



         This is a civil action for monetary relief under the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-219, and Wisconsin overtime compensation laws. Plaintiff Jacob Lewis contends that defendant Epic Systems Corporation misclassified him and other technical writers as exempt from overtime wages and failed to pay them wages of one and one-half times their regular rates of pay for any overtime hours that they worked. The proposed collective includes technical writers employed by defendant as of April 2, 2014, when defendant disseminated an arbitration agreement allegedly applicable to wage claims. (Another former employee of defendant has filed a similar collective action on behalf of technical writers whose employment ended before April 2, 2014. Long v. Epic Systems Corp., case no. 15-cv-81-bbc (W.D. Wis.). Defendant stipulated to conditional certification in that case and later moved to decertify the collective action following additional discovery. I denied that motion in an order entered on September 6, 2016. Long, 15-cv-82, dkt. #102.)

         In 2015, I concluded that the arbitration agreement at issue this case was invalid and stayed proceedings in this case (but not in Long) while defendant pursued an interlocutory appeal. Dkt. #54 and 66. The Court of Appeals for the Seventh Circuit recently affirmed the invalidation of the arbitration agreement. Lewis v. Epic Systems Corp., 823 F.3d 1147 (7th Cir. 2016); dkt. #68. Ten other technical writers have submitted notices of consent to join this lawsuit. Now before the court is plaintiff's motion for conditional certification of a collective action under the FLSA and authorization to notify potential class members of their right to join this case. Dkt. #69.

         After considering the arguments of the parties and conducting an independent review of the declarations and other documents in the record, I conclude that plaintiff has met his burden of showing “modest” proof that some factual nexus connects him to other potential plaintiffs as victims of an unlawful practice. Although there are individual variations in the employment experiences of the members of the putative collective, at its heart, the inquiry in this case is whether plaintiffs are exempted from overtime wages under federal law by their primary job duties and the practices and processes applied to all technical writers. Accordingly, I am granting plaintiff's motion to conditionally certify the FLSA collective action and notify potential members of the existence of this lawsuit.

         Plaintiff's proposed notice, consent form and response period appear reasonable, dkt. #71, exh. #1, but defendant did not object or otherwise respond to them, presumably waiting for a ruling on the underlying motion for conditional certification. Therefore, I will allow defendant an opportunity to file any objections it may have to the content and method of the proposed notice and consent form.

         In determining whether the class should be certified conditionally, I have considered the allegations in the complaint and the affidavits, documents and deposition transcripts attached to the parties' briefs. Sharpe v. APAC Customer Services, Inc., 2010 WL 135168, *4 (W.D. Wis. Jan. 11, 2010); Sjoblom v. Charter Communications, LLC, 571 F.Supp.2d 961, 967-68 (W.D. Wis. 2008). Before I address the parties' arguments, I will summarize the relevant allegations contained in those documents.


         A. The Parties

         Defendant Epic Systems Corporation makes software applications for medical groups, hospitals and integrated healthcare organizations. It employs more than 100 technical writers, who are members of the Technical Communications group and supervised by “team leads.”

         Named plaintiff Jacob Lewis and opt-in plaintiffs Charles Blackburn, Karen Campbell, Dale Erlandson, Emily Harris, Rebecca Rodgers and Lauren Weber all worked as technical writers for defendant on or after April 2, 2014, in one or more of the following application areas: clinical inpatient (healthcare in inpatient settings), clinical ambulatory (healthcare in outpatient settings) and revenue and reporting (billing, accounting and practice management). Defendant's customers may use applications from any or all of these areas. The applications cover a wide range of topics, may have different functions and are used by different types of health care professionals and administrators.

         B. Job Duties

         Lewis and many of the opt in plaintiffs describe their primary duty as producing or revising standardized documents that describe how defendant's software works. These descriptions are derived from templates and instructions and information provided by defendant's software developers, implementers and trainers. Defendant has one job description for the position of technical writer, which states that “you'll create documentation about the nuts and bolts of our world class software.” Long, case no. 15-cv-81, dkt. #58, exh. #2 at 2-4. In addition, defendant defines technical writing as “a process in which information is gathered from experts and then presented in a clear, easily understandable format that is best suited to the intended audience.” Id., exh. #8.

         Technical writers provide different types of written materials or “deliverables” for different audiences and specialize in particular applications. For example, implementation writers prepare written materials targeted to analysts working for a customer who is installing software for the first time. Support writers develop written materials for analysts who are maintaining and updating an application. Training writers develop written materials that teach end-users, such as clinicians and administrators, how to use software applications. Technical writer may work on a special project or spend some amount of their time on non-writing tasks.

         The opt-in plaintiffs all followed the same process in producing written materials for defendant. After receiving writing assignments from their team leads or defendant's project management software program, EMC2, they gathered information from subject matter experts, which include defendant's software developers, implementers or trainers. Technical writers then prepared written documents by inserting the information that they gathered into templates. Defendant controlled both the content and language of the written materials to insure consistency and the individual writer's anonymity. Its style guide outlines the terms, format, conventions and other writing rules to be used by technical writers. In addition, technical writers rely on defendant's intranet (or “wiki”), which contains step-by-step instructions ...

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