Another working time case where the allegation is workers being compelled to work through lunch. Seems that the health care industry is prone to this as I have blogged about on other occasions. A group of employees has been granted conditional certification in a FLSA class action claiming that they were compelled to work through lunch, but the Judge would not grant a countrywide class. The case is entitled Bowling v. DaVita Inc. and was filed in federal court in the District of Colorado.

The Judge ruled that the named plaintiff had made a sufficient showing to indicate that they had to be ready to work during their meal breaks and thus a conditional class would be appropriate in nine States. The plaintiffs, however, did not make a showing that they were entitled to a nationwide class. The Judge noted that “Mr. Bowling makes no factual allegations, beyond conclusory assertions, that would permit the court to conclude that he has personal knowledge of the experiences of DaVita employees working in any other state.”

The workers filed the action in 2021; they claim that were expected to work during their lunch breaks and were not paid, whether straight time or overtime. The Company policy does provide for payment if an employee works during their lunch, but the workers claim this is a ruse. They assert that although they clock out, they must remain “available.” There is also an automatic deduction policy, meaning that thirty minutes is deducted every day for shifts six hours or more. This deduction is made, claim the workers, even if the employee actually worked through lunch.

The Company has defended by asserting that these decisions about payment or not for missed lunches occurs at the facility level. That, argues the employer, shows that a class or collective action is inappropriate. The Company asserts that “before even considering” the workers’ evidence, the court should examine other similar cases against the Company. In those cases, other courts rejected a class certification because a single overall policy did not apply to all potential class members. This Judge did not buy that, noting that the Company was requesting that the Court look at “another judge’s decisions, based on a different set of facts, a different set of allegations, and a different evidentiary record.”

The Takeaway

This is a good argument by the Company. If it can show that these decisions and practices are so finely broken down to the individual facility level, that will evidence that there is no commonality to the practice systemwide. Individualization is the anathema of a class action. With that said, and as I have said (and counseled clients many times) the Company needs a fail-safe mechanism, a reporting mechanism, where employees who believe they worked through lunch and were not paid can make a claim for payment.

That ounce of prevention thing (again)…

[View source.]