Workers at a Washington dialysis company urged a federal judge to grant class certification in their suit that alleged the company failed to pay them premium pandemic wages, arguing that all members have the same legal and factual claims.
Workers for Total Renal Care Inc., a subsidiary of
DaVita Inc., urged U.S. District Judge James L. Robart on Friday to sign off on a proposed class of employees who were commonly affected when the company allegedly flouted a promise to provide them with hazard pay, despite the fact that COVID-19 was declared a public health emergency.
"The claims of every class member are identical and if plaintiff is entitled to the premium pay for the hours he worked pursuant to the disaster relief policy, then all of the employees that worked under DaVita's disaster relief policy are also entitled to the premium pay promised in the teammates policies," the motion said.
The motion stems from a proposed class action employee Joseph J. Hesketh III filed in Washington federal court in October 2020 alleging Total Renal Care continued to pay him and other workers regular pay instead of 1.5 times their regular rate, which conflicted with the disaster relief policy outlined in the employees' handbook.
In Friday's class certification bid, Hesketh said the members of the proposed class should all be entitled to relief after being deprived of the higher pay.
Furthermore, Hesketh argued that there isn't an advantage for each class member to pursue their claim individually.
"The reality is that finding counsel to bring a claim that may be below $25,000 is difficult if not impossible," Hesketh said in the motion.
The lawsuit seeks to represent all nonexempt workers employed by DaVita who worked their regular hours and were not paid the premium pay of 1.5 times their base rate from Jan. 31, 2020.
The premium pay should have started after former President Donald Trump declared the COVID-19 outbreak a national public health emergency in January 2020, as stated in the disaster relief policy, Hesketh says.
"The declaration met the requirements to trigger the application of the disaster relief policy but neither he nor any other employees has been paid the premium pay promised for work performed," the motion said.
In April,
Judge Robart rebuffed Hesketh's claims that the disaster relief policy should be considered a legal binding contract because the handbook included the necessary disclaimers to nullify a claim of contractual right. In his order, Robart gave Hesketh an opportunity to amend his complaint and negate those disclaimers.
Lawyers representing Hesketh declined to comment Monday.
Attorneys representing Total Renal Care did not immediately respond to a request for comment Monday.
Joseph J. Hesketh III is represented by Christina L Henry of Henry & Degraaff PS, J. Craig Jones of Jones & Hill LLC and Scott C. Borison of Borison Firm LLC.
Total Renal Care is represented by Chelsea Dwyer Petersen, Heather L. Shook and Margo S. Jasukaitis of
Perkins Coie LLP.
The case is Hesketh v. Total Renal Care Inc., case number
2:20-cv-01733, in the
U.S. District Court for the Western District of Washington.
--Additional reporting by Daniela Porat. Editing by Vincent Sherry.
For a reprint of this article, please contact reprints@law360.com.