Class Action Claims DaVita Employees Owed Premium Pay for Working During Pandemic

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A proposed class action claims the entities controlled by DaVita, Inc. have failed to pay workers premium wages for work performed during a national emergency as promised in the company’s employee handbook.

The 12-page breach-of-contract case alleges that although the defendants claimed non-exempt employees who worked their regularly scheduled hours during a state- or federally declared national disaster would receive premium pay, the plaintiff and others were paid at only their regular rates for work performed during the coronavirus pandemic, which was declared a national emergency in January 2020.

The plaintiff, who has worked for Total Renal Care, Inc. for 13 years, says he performed his side of the agreement by working after the national emergency was declared but has not received time-and-a-half premium pay as agreed upon in the employee policy handbook.

According to the lawsuit, Total Renal Care is an “integral part” of DaVita, Inc., which provides administrative services across a network of more than 2,700 outpatient dialysis centers in the U.S. DaVita outlines certain conditions of employment in its employee handbook, titled “Teammate Policies,” including a “Disaster Relief Policy” that specifies DaVita’s pay practices for non-exempt employees who work or miss work during a declared emergency, the case relays.

Per the complaint, the handbook defines a declared emergency or natural disaster as one that is “proclaimed by either the President of the United States, a state Governor or other elected official, or if local leadership (DVP/Palmer) deems it appropriate.” The lawsuit says the section goes on to explain the company’s pay practices for non-exempt employees in several emergency scenarios, specifying that if “a facility or business office is open during the designated time frame,” employees who work their regularly scheduled hours will receive premium pay, defined as one and one half times regular pay unless state law dictates otherwise.

“The clear import of the ‘Pay Practices For Non-Exempt Teammates’ is that every non-exempt DaVita employee who works his or her regularly scheduled hours during a declared emergency will be paid premium pay,” the complaint argues, noting that the policy is a method of attracting and retaining skilled employees.

The suit adds that DaVita’s policy and practice is to provide notice to employees before any changes to its pay policies take effect.

The lawsuit goes on to explain that a national emergency was declared on January 31, 2020, though the COVID-19 pandemic is not specifically mentioned in the complaint. The plaintiff, a non-exempt employee, says he continued to work his regularly scheduled hours after that date but did not receive premium pay as promised. Per the complaint, DaVita instead attempted to change the terms of the Teammate Policies handbook via a September 2020 notice to exclude “the present emergency” from those covered by the Disaster Relief Policy.

The suit argues that whether or not DaVita’s attempt to unilaterally change its employees’ pay agreement is effective, the plaintiff and other employees still have not received premium pay for the period of time before the attempted effort was made. 

The case, which was removed from King County, Washington Superior Court to the state’s Western District Court on November 23, looks to represent all non-exempt employees who worked for an entity owned or controlled by DaVita on or after January 31, 2020 and were not paid premium pay equal to 1.5 times their base rate for any work performed after the emergency was declared.

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