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Law360 (November 24, 2020, 5:28 PM EST) -- DaVita subsidiaries denied workers premium pay after the Trump administration declared a public health emergency in response to the novel coronavirus, despite a written policy to pay enhanced wages during a declared emergency, according to a proposed class action removed to Washington state federal court.
In a complaint removed to federal court on Monday, Total Renal Care Inc. employee Joseph Hesketh alleges the company flouted a policy detailed in its company handbook to provide extra pay to nonexempt workers who continue working their normal hours during an emergency. Hesketh alleges the failure was repeated at other companies that dialysis services provider DaVita controls, depriving potentially thousands of workers of wages they were owed.
"This action is filed because the defendants and others failed to pay the plaintiff and the other class members the amounts that were due to be paid for the work they performed and which the defendants agreed to pay," the complaint said.
First filed in Washington state court in October, the proposed class action seeks to cover all nonexempt DaVita employees who were entitled to the enhanced disaster pay but did not receive it. The complaint names Total Renal Care, which is a subsidiary of dialysis services company DaVita, as well as other companies controlled by DaVita who had employees who were covered under the policy handbook but did not pay premium wages.
Hesketh, who has worked for Total Renal Care for 13 years, alleges Total Renal Care and the other DaVita companies broke a contract with their workers by ignoring a policy in the employee handbook on enhanced pay for workers during an emergency declared by the federal or state government.
That policy said nonexempt workers who could not work because of an emergency or natural disaster would would either be paid for their normally scheduled hours, while those who kept their normal hours despite the emergency would receive time-and-a-half pay, according to the complaint.
But when the Trump administration declared a public health emergency at the end of January due to the spreading novel coronavirus, Hesketh alleges Total Renal Care did not bump up his pay even though he continued to work his normal hours. He also alleges DaVita in September tried to unilaterally change the employee handbook to say the pandemic did not trigger the premium pay provision.
Hesketh says even if the change in the premium pay policy is valid, workers were still deprived of pay for the months between the emergency declaration and the purported change in September.
Counsel for both Hesketh and the companies did not immediately return requests for comment on the lawsuit. DaVita also did not immediately return a request for comment on the case.
Joseph Hesketh is represented by Christina Henry of Henry & DeGraaff PS
Total Renal Care Inc. is represented by Chelsea Petersen of Perkins Coie.
The case is Hesketh v. Total Renal Care Inc., case number 2:20-cv-1733 in the U.S. District Court for the Western District of Washington.
--Editing by Joyce Laskowski.
For a reprint of this article, please contact reprints@law360.com.
