A federal judge has permitted a class action lawsuit against Denver-based DaVita, Inc. to proceed, with allegations the kidney care company failed to compensate nurses and technicians for meal breaks as the law requires.

Last week, U.S. District Court Judge Nina Y. Wang gave her preliminary approval to a class of DaVita workers who will receive notice of the lawsuit and have the opportunity to join. However, Wang first narrowed the scope of the litigation.

While named plaintiff James Bowling, a former DaVita nurse in Texas, submitted evidence from employees in nine states suggesting a pattern of labor law violations, Wang believed the information was insufficient to justify a nationwide class of potential plaintiffs across all of DaVita’s 2,776 facilities.

“Mr. Bowling makes no factual allegations,” she wrote on July 6, “that would permit the Court to conclude that he has personal knowledge of the experiences of DaVita employees working in any other state. Nor has Plaintiff directed the Court to any specific evidence plausibly evincing a company-wide policy or practice across all DaVita locations.”

Bowling’s lawsuit alleges DaVita deliberately keeps its labor costs low by employing insufficient numbers of nurses and technicians per shift. The effect is that personnel are “regularly” interrupted during their allotted 30-minute meal breaks in order to perform work, but without compensation.

“Defendant required nurses and technicians at DaVita to remain responsible for patient care throughout their shifts, including during meal periods,” Bowling’s attorneys wrote. “In short, Defendant used the nurses’ and technicians’ meal periods for the predominant benefit of DaVita.”

The practice of infringing on workers’ meal breaks without paying them amounts to a violation of the Fair Labor Standards Act, Bowling alleged. He asked Wang to approve a class of affected plaintiffs that includes all DaVita nurses and technicians who worked during their meal breaks without compensation.

DaVita insisted there was no company policy applied nationwide that violated the rights of all 95,000 nurses and technicians who could conceivably be members of the class. 

“DaVita does not permit any employees to work off-the-clock,” the company’s attorneys wrote. “DaVita also pays for time worked when meal breaks are interrupted, although such interruptions are very rare.”

DaVita claimed there was no evidence company leaders knew about or supported any directive for employees to work without pay, and that the rarity of interrupted meal breaks suggested the absence of an illegal corporate policy.

Wang, however, pointed out that DaVita’s arguments largely addressed the merits of the lawsuit and not the question before her: whether the affected DaVita employees were allegedly injured as the result of a single policy or plan. Although a judge can “decertify” a class of plaintiffs if evidence later shows they do not meet the requirements, Wang decided the allegations supported the notion that DaVita nurses and technicians in multiple states were similarly deprived of paid meal breaks.

Bowling “has submitted evidence, from both DaVita’s representative and seven DaVita employees working across nine different states, demonstrating that, in certain situations, employees are expected to work during their unpaid meal breaks,” she wrote.

One piece of evidence was a deposition from Laura Stewart, a technician in Memphis. She testified that meal breaks are “really not a break” because people interrupt to ask questions. Another technician, Jacqueline Barbee, similarly testified she was “subject to being on call all the time” to address patients’ needs.

Wang ordered Bowling and DaVita to collaborate on a notice to be sent to the class of plaintiffs by mail, email and text message. She declined to authorize the notice to go out through social media or be posted in DaVita break rooms.

The class will include current and former DaVita nurses and technicians in Arkansas, Florida, Georgia, Louisiana, Oklahoma, New York, Tennessee, Texas and Virginia.

The case is Bowling v. DaVita Inc.