Case 1:21-cv-03033-NYW-KLM Document 73 Filed 10/28/22 USDC Colorado Page 1 of 21
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLORADO
`
`Civil Action No. 1:21-cv-03033-NYW-KLM
`
`James Bowling, individually and on behalf of all others
`similarly situated,
`
`Plaintiff,
`
`v.
`
`DaVita, Inc.,
`
`Defendant.
`
`PLAINTIFF’S OPPOSED MOTION FOR FLSA CONDITIONAL
`CERTIFICATION AND COURT-AUTHORIZED NOTICE
`
`Plaintiff James Bowling, individually and on behalf of all others similarly situated,
`
`files this Opposed Motion for FLSA Conditional Certification and Court-Authorized Notice
`
`under 29 U.S.C. § 216(b) seeking an Order from the Court for the following:
`
`(1)
`
`(2)
`
`(3)
`
`(4)
`
`(5)
`
`conditionally certifying a collective action on behalf of all current and former
`nurses and technicians (the “Collective Action Members”) for the three years
`prior to the date this case was filed to the date of the entry of said Order;
`ordering Defendant to produce to Plaintiff’s counsel a list of all of the Collective
`Action Members identifying their name, job title, last known mailing address,
`last known personal email address(es), last known cell phone numbers, dates
`of employment, location(s) of employment, employee identification number,
`and last four digits of each Collective Action Member’s social security number
`(the “Class List”) within seven (7) days after the entry of said Order;
`approving issuance of notice to the collective action members and the form of
`notice attached hereto as Ex. N within fourteen (14) days after the receipt of
`the Class List;
`permitting a ninety (90) day notice period for the collective action members to
`determine whether to opt-in to this lawsuit; and
`authorizing Plaintiff’s counsel or a third-party administrator to issue notice to
`the collective action members by mail, email, and text message at the
`beginning of the notice period, with a reminder forty-five (45) days thereafter.
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`1
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`

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`Case 1:21-cv-03033-NYW-KLM Document 73 Filed 10/28/22 USDC Colorado Page 2 of 21
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`In support of the relief requested, Plaintiff submits the following brief, establishing
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`a nationwide policy or practice that violates the federal Fair Labor Standards Act, 29
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`U.S.C. §§ 201-219 (“FLSA”), and relies on the pleadings and record evidence attached
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`including the depositions of Plaintiff James Bowling, Opt-in Plaintiffs Jacqueline Barbee,
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`Nahkema Clay, Selena Grant, Kenya Hooppell, Jennifer Stirl, and Laura Stewart, and the
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`deposition of Defendant’s corporate representative, Shawn Zuckerman, taken pursuant
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`to Rule 30(b)(6) of the Federal Rules of Civil Procedure. Plaintiff respectfully shows as
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`follows:
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`I.
`
`INTRODUCTION
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`Plaintiff seeks to represent a class of nurses and technicians who worked for
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`DaVita providing care to patients receiving kidney dialysis and other medical attention.
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`DaVita required its nurses and technicians to remain responsible for patient care
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`throughout their shifts, including during meal periods. As a result, DaVita never fully
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`relieved Plaintiff and similarly situated workers of all duties during meal periods, and
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`Plaintiff and the Collective Action Members are due backpay for any time they were
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`“clocked out” for a non-compliant, unpaid meal break. Furthermore, Defendant’s records
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`reflect that Plaintiff and similarly situated workers frequently went without pay for short
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`rest breaks of fewer than twenty minutes, which is not permitted under the FLSA.
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`The Tenth Circuit authorizes issuance of notice to similarly situated employees
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`under a lenient standard requiring “nothing more than substantial allegations that the
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`putative class members were together the victims of a single decision, policy, or plan.”
`
`Thiessen v. Gen. Elec. Cap. Corp., 267 F.3d 1095, 1102 (10th Cir. 2001) (quoting Bayles
`
`v. American Med. Response of Colo., Inc., 950 F. Supp. 1053, 1066 (D. Colo. 1996))
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`2
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`

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`Case 1:21-cv-03033-NYW-KLM Document 73 Filed 10/28/22 USDC Colorado Page 3 of 21
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`(discussing two-step FLSA conditional certification/decertification approach in the context
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`of an ADEA collective action); Gray v. Delta Cnty. Mem’l Hosp. Dist., No. 19-cv-02938-
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`RBJ, 2021 WL 1329263, at *3 (D. Colo. Mar. 1, 2021) (noting that the standard at the first
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`step is “lenient” and generally results in conditional certification and issuance of notice).
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`Here, DaVita employed hundreds of nurses and technicians responsible for direct
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`patient care nationwide, and deposed Plaintiff and Opt-in Plaintiffs who worked for DaVita
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`in the following eleven states:
`
`James Bowling
`Jacqueline Barbee
`Nahkema Clay
`
`Texas
`Tennessee
`New York
`
`(Ex. A, Bowling Dep. 31:8-33:8)
`(Ex. B, Barbee Dep. 19:14-20:7)
`(Ex. C, Clay Dep. 20:17-21, 20:25-
`21:10, 164:9-22)
`(Ex. D, Grant Dep. 31:21-32:22,
`133:15-17)
`(Ex. E, Hooppell Dep. 43:25-45:14)
`(Ex. F, Stirl Dep. 20:19-22)
`
`
`(Ex. O, Stewart Dep. 30:5-25)
`
`Selena Grant
`
`Kenya Hooppell
`Jennifer Stirl
`
`Laura Stewart
`
`Georgia
`Virginia
`Florida
`Texas
`Louisiana
`Arkansas
`Oklahoma
`Tennessee
`
`
`DaVita subjected each of these workers and the Collective Action Members to an identical
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`policy and practice with respect to meal and rest breaks, which was implemented
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`identically (and illegally) at all locations. Consequently, notice of this litigation and an
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`opportunity to participate should issue to all nurses and technicians employed by DaVita
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`from three years prior to the filing of this lawsuit through conditional certification.
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`II.
`
`CERTIFICATE OF COMPLIANCE WITH D.C. COLO. L. CIV. R. 7.1(A)
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`On October 18, 2022, Plaintiff’s counsel met and conferred with counsel for DaVita,
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`who confirmed that Defendant is opposed to the relief requested in this Motion.
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`III.
`
`BACKGROUND FACTS
`
`A.
`
`DaVita’s Business Operations and the Role of Nurses and Technicians.
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`3
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`

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`Case 1:21-cv-03033-NYW-KLM Document 73 Filed 10/28/22 USDC Colorado Page 4 of 21
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`DaVita provides healthcare services, in particular kidney dialysis.1 In connection
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`with its healthcare operations, it employs nurses like Plaintiff and certain Opt-in Plaintiffs2
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`and Patient Care Technicians/“PCTs” (“technicians”) like certain of the Opt-in Plaintiffs3
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`to provide care to patients receiving kidney dialysis.4
`
`B.
`
`
`DaVita’s Application of Its Meal and Rest Break Policy Violates the FLSA.
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`During the relevant time period, DaVita had a fairly consistent Meal and Rest Break
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`Policy, with four applicable versions and few changes between them.5 However, DaVita
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`has not followed its own policy, and has undercompensated its employees with respect
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`to overtime earnings.
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`Specifically, DaVita failed to fully relieve nurses and technicians of their duties
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`during meal periods, and failed to compensate nurses and technicians for short breaks of
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`fewer than twenty minutes. DaVita generally requires nurses and technicians to take a 30
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`minute unpaid meal break for every six-hour shift worked.6 Its policy facially requires a
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`time punch out at the beginning of the meal period and a time punch back in once the
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`
`1 See Ex. K, DaVita Kidney Care, https://www.davita.com/ (last visited Oct. 20,
`2022).
`2 Ex. A, Bowling Dep. 33:9-34:10 (Bowling also did spend some time as a
`technician); Ex. C, Clay Dep. 20:14-16, 25:6-26:24 (Clay also did some work as a
`technician); Ex. E, Hooppell Dep. 12:6-8, 17:15-19, 53:1-7.
`3 Ex. B, Barbee Dep. 20:12-23; Ex. D, Grant Dep. 12:14-15, 13:1-5, 15:17-16:1; Ex.
`F, Stirl Dep. 30:14-21. Ex. O, Stewart Dep. 42:11-17.
`4 Ex. A, Bowling Dep. 37:21-38:3; Ex. B, Barbee Dep. 58:16-59:59; Ex. C, Clay Dep.
`32:10-33:14; Ex. D, Grant 61:16-62:6.
`5 Ex. H (Policy Exhibit). For the convenience of the Court, Plaintiff has created an
`exhibit tracking the changes between the various versions in redline.
`6
`Id.
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`4
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`

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`Case 1:21-cv-03033-NYW-KLM Document 73 Filed 10/28/22 USDC Colorado Page 5 of 21
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`meal period is finished.7 But Plaintiff and the testifying Opt-in Plaintiffs all experienced
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`actual interruptions8 and were also subject to interruptions9 during their meal periods
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`because their continuing duty of care to patients did not end while they were eating which
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`led to under compensation. Furthermore, regardless of whether attributable to meal
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`breaks cut short by an interruption or for other reasons, Defendant’s records clearly show
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`impermissible deductions for breaks of fewer than twenty minutes.10
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`Indeed, Defendant’s corporate representative confirmed that Plaintiff and the
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`Collective Action Members were never truly relieved of their work duties during meal
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`periods:
`
`Q: So what’s expected of – of this [nurse] while
`having a sandwich if she comes across a patient life-
`threatening complication? Should she finish her sandwich
`and address it after her 30 minute [lunch break]? […]
`A: I would say, in my opinion, our expectation of
`our teammates would be […] I wouldn’t expect that
`teammate to ignore a patient who is having a medical
`emergency.
`
`
`
`
`Id.
`7
`8 Ex. A, Bowling Dep. 132:17-21; Ex. B, Barbee Dep. 77:12–78:11; Ex. C, Clay Dep.
`97:9-101:11; Ex. D, Grant Dep. 107:10-108:4; Ex. E, Hooppell Dep. 92:12-94:15; Ex. F,
`Stirl Dep. 72:20-73:16. Ex. O, Stewart Dep. 102:18–104:20.
`9 Ex. A, Bowling Dep. 108:20-25; Ex. C, Clay Dep. 95:14–97:8; Ex. D, Grant Dep.
`107:10-108:4; Ex. E, Hooppell Dep. 92:12-94:15; Ex. F, Stirl Dep. 72:20-73:16; Ex. G,
`Zuckerman Dep. 111:23–113:25. Ex. O, Stewart Dep. 86:3-9.
`10 See Ex. J (Short Breaks). See also Ex. A, Bowling Dep. 132:17-21 (testifying
`regarding frequency of lunch breaks cut short due to patient emergencies, at least
`monthly to three times a week); Barbee Dep. 77:12–78:23 (testifying regarding frequent
`nonemergency interruptions to meal breaks); Ex. C, Clay Dep. 97:9-101:11 (testifying to
`extensive interruptions in meal breaks due to answering questions, speaking on the
`phone, taking order changes, and being called back to answer emergencies on the
`treatment floor immediately after clocking out for lunch); Ex. D, Grant Dep. 103:17–104:10
`(discussing potential for interruptions of off-site lunches); Ex. E, Hooppell Dep. 92:12–
`94:15 (discussing lunchtime interruptions due to phone in break room); Ex. F, Stirl Dep.
`83:6–90:23 (numerous instances of punches for breaks of under twenty minutes).
`
`5
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`Case 1:21-cv-03033-NYW-KLM Document 73 Filed 10/28/22 USDC Colorado Page 6 of 21
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`(Ex. G, Zuckerman 30(b)(6) Dep. 113:12-25.)
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`Defendant’s expectations lead to several problems. First, under the FLSA, a fully-
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`interrupted meal break is compensable in its entirety, not just when an employee clocks
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`back in. Second, the resulting unpaid short breaks must be compensated as protected
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`rest breaks under the FLSA. Finally, in some instances, supervisors may attempt to
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`correct an interrupted meal break by manually deducting a full 30-minute meal period
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`when none was taken.11
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`Thus, while Defendant’s policy may seem to facially comply with the FLSA, its
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`actual practice did not:
`Q: I’m going to give you a hypothetical. In the
`case of an employee that clocks out at 1:00 p.m. for a
`meal break […] [t]he employee is then interrupted at
`1:10 […] then the employee clocks in to address this
`interruption […] he was clocked out between 1:00 and
`1:10 p.m. […] Should that employee be paid for that time
`between 1:00 and 1:10 p.m.? […]
`Q: What I want to know is: In this hypothetical,
`the time between 1:00 p.m. and [1:10 p.m.], per DaVita
`policy, is that compensable time or not?
`A: I would say yes. That time – that – what was
`designated as the meal break, if it was interrupted then
`that should be paid, compensable.
`Q: Okay. It should be, but is it DaVita’s policy
`to actually pay for that time? […]
`A:
`Again, that’s where – what – what is or is not
`actually done, I can’t speak to. […] I can only speak to
`the policy.
`
`(Ex. G, Zuckerman 30(b)(6) Dep. 90:8-92:4.)
`
`Nurses and Technicians Are Similarly Situated Under the FLSA.
`
`C.
`
`
`
`11 See, e.g., Ex. A, Bowling Dep. Ex. 11 – email from Bowling complaining to
`management about manual meal deductions for lunches not taken.
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`6
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`Case 1:21-cv-03033-NYW-KLM Document 73 Filed 10/28/22 USDC Colorado Page 7 of 21
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`Plaintiff, Opt-in Plaintiffs, and the Collective Action Members were all similarly
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`situated in the respects material to the FLSA determination: they were all classified as
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`non-exempt, overtime eligible employees;12 all paid on an hourly basis13 (even with the
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`same time tracking software14); and all subject to the same meal and rest break policies,
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`which were implemented identically at all of DaVita’s locations. Per its 30(b)(6) corporate
`
`representative:
`Q. [T]his meal [and rest] break policy, 4.6,15 is
`the default policy at DaVita, right[…]?
`A.
`I think that’s accurate for our – yes, for our
`[…] US-based teammates […] yes
`
`(Ex. G, Zuckerman 30(b)(6) Dep. 77:11-21.) Accordingly, due to the impermissible
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`deductions of meal breaks which were predominantly for DaVita’s benefit and short
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`breaks of fewer than 20 minutes, Plaintiff, the Opt-in Plaintiffs, and the Collective Action
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`Members were all similarly denied due and owing overtime pay in workweeks where they
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`worked over 40 hours16 (including the impermissible deductions).
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`
`
`IV.
`
`ARGUMENT AND AUTHORITIES
`
`
`12 Ex. A, Bowling Dep. 18:20-19:7; Ex. B, Barbee Dep. 43:6-18; Ex. C, Clay Dep.
`23:15-21, 87:12-20; Ex. D, Grant Dep. 40:23-25; Ex. E, Hooppell Dep. 35:2-15, 37:7-16;
`Ex. F, Stirl Dep. 54:23-25, 58:10-59:2. Ex. O, Stewart Dep. 68:4-6.
`13 Id.
`14 Ex. A, Bowling Dep. 20:18-24; Ex. B, Barbee Dep. 44:13-45:4; Ex. C, Clay Dep.
`130:15-19; Ex. D, Grant Dep. 58:3-7; Ex. E, Hooppell Dep. 37:7-17; Ex. F, Stirl Dep.
`59:24-60:2, 109:3-7. Ex. O, Stewart Dep. 51:21–52:14.
`15 Ex. H (Policy Exhibit).
`16 As demonstrated by Plaintiff, there are many examples of Plaintiff and the Opt-in
`Plaintiffs working over forty hours in a workweek with impermissible meal and rest break
`deductions. See Ex. I (Overtime Exhibit; DaVita-Bowling 000114, DaVita-Barbee 000114,
`DaVita-Clay 000019, DaVita-Grant 000088, DaVita-Stirl 000136).
`
`7
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`

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`A.
`
`Legal Standard for Conditional Certification of a Collective Action Under 29
`U.S.C. § 216(b).
`
`The FLSA specifically contemplates similarly situated employees joining together
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`collectively to bring a claim against an employer who has allegedly violated the FLSA. 29
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`U.S.C. § 216(b). The collective action mechanism, as implemented in the Tenth Circuit,
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`varies from the Rule 23 class action mechanism: it is a two-step process, and it requires
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`prospective class members to affirmatively opt-in to the litigation. See Thiessen v. Gen.
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`Elec. Cap. Corp., 267 F.3d 1095, 1102 (10th Cir. 2001) (quoting Bayles v. American Med.
`
`Response of Colo., Inc., 950 F. Supp. 1053, 1066 (D. Colo. 1996)) (discussing two-step
`
`FLSA conditional certification/decertification approach in the context of an ADEA
`
`collective action); 29 U.S.C. § 216(b) (“No employee shall be a party plaintiff to any such
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`action unless he gives his consent in writing to become such a party […].”).
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`At this initial notice stage of the two-step process,17 courts must determine whether
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`a plaintiff is “similarly situated” to the putative collective action members. If a plaintiff
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`meets this burden under the lenient first stage standard, the court conditionally certifies
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`the collective action, leaving open the possibility for decertification (the second stage of
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`the two-step process) if merits discovery reveals that the case cannot be determined
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`collectively. See Stransky v. HealthONE of Denver, Inc., No. 11-CV-02888-WJM-MJW,
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`2012 WL 6548108, at *4 (D. Colo. Dec. 14, 2012) (citing Thiessen, 267 F.3d at 1103) (“At
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`the conclusion of discovery, the Court makes a second determination of whether the
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`
`17 This case is currently postured at the initial notice stage. See ECF No. 42, p. 7
`(noting the phases of discovery, and that the first phase focused on discovery necessary
`for conditional certification).
`
`8
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`

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`Case 1:21-cv-03033-NYW-KLM Document 73 Filed 10/28/22 USDC Colorado Page 9 of 21
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`plaintiffs are “similarly situated” under the stricter standard, which include analysis of the
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`“disparate factual and employment settings of the individual plaintiffs.”).
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`However, as noted in Thiessen, the statute does not define “similarly situated” with
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`respect to the first-step standard. Still, the Tenth Circuit found the lenient conditional
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`certification standard to “require nothing more than substantial allegations that the
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`putative [collective action] members were together the victims of a single decision, policy,
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`or plan.” Thiessen, 267 F.3d at 1102. At this juncture, “‘the Court does not weigh
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`evidence, resolve factual disputes, or rule on the merits18 of the plaintiffs’ claims.’” Torres-
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`Vallejo v. Creativexteriors, Inc., 220 F. Supp. 3d 1074, 1091-92 (D. Colo. 2016) (quoting
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`Bryant v. Act Fast Delivery of Colorado, Inc., 2015 WL 3929663, at *2 (D. Colo. June 25,
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`2015) (rejecting the defendants’ arguments regarding factual and evidentiary disputes in
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`granting conditional certification). The result is that the standard at the notice stage is
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`lenient, the plaintiff’s burden is minimal, and consideration typically results in conditional
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`certification and issuance of notice. See, e.g., Kibler v. Kroger Cos., No. 21-cv-00509-
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`PAB-KMT, 2022 WL 268056, at *2 (D. Colo. Jan. 28, 2022).
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`Here, Plaintiff easily satisfies the lenient standard, as he and the collective action
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`members he seeks to represent are a cohesive and homogeneous group all subject to
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`the same meal and rest break policy and practice which violates the FLSA.
`
`
`
`
`
`
`18 Indeed, neither stage of the § 216(b) determination is an opportunity for a court to
`make credibility determinations or resolve the case on its merits. See, e.g., Harris v.
`Vector Mktg. Corp., 753 F. Supp. 2d 996, 1005 (N.D. Cal. 2010); McKnight v. D. Houston,
`Inc., 756 F. Supp. 2d 794, 802 (S.D. Tex. 2010).
`
`9
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`

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`B.
`
`Meals and Rest Breaks Are Protected Under the FLSA, If Provided by an
`Employer.
`
`1.
`
`DaVita Denied Overtime to Plaintiff and the Collective Action Members
`Because It Did Not Compensate Them for Meal Breaks Which Were
`Actually Interrupted or Subject to Interruption.
`
`
`The FLSA requires employers to pay non-exempt employees overtime pay at the
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`rate of one and one-half times their respective regular rates of pay for hours worked over
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`forty in a single workweek. 29 U.S.C. § 207. The FLSA does not require employers to
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`provide employees with meal or rest breaks, but if an employer does provide meal and
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`rest breaks it must comply with the FLSA. DaVita’s policy which requires Plaintiff and
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`similarly situated employees to clock out for meal breaks but remain on-duty during that
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`time violates the FLSA in workweeks where an employee has worked over forty hours,
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`as DaVita has failed to pay due and owing overtime in such workweeks.19
`
`Specifically, employers are not required to pay employees for “bona fide meal
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`periods.” 29 C.F.R. § 785.19(a). However, to qualify as a “bona fide meal period,” certain
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`conditions must be met:
`
`The employee must be completely relieved from duty for the purpose of
`eating regular meals. . . The employee is not relieved if he is required to
`perform any duties, whether active or inactive, while eating. For example,
`an office employee who is required to eat at his desk or a factory worker
`who is required to be at his machine is working while eating.
`
`Id. (emphasis added). Under the FLSA, the employer has the responsibility to prove the
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`meal period is “bona fide.” See Lamon v. City of Shawnee, Kan., 972 F.2d 1145, 1155-
`
`56 (10th Cir. 1992). See also, e.g., Naylor v. Securiguard, Inc., 801 F.3d 501, 508 (5th
`
`Cir. 2015) (citing Bernard v. IBP, Inc. of Nebraska, 154 F.3d 259, 265 (5th Cir. 1998)
`
`
`19 See Ex. I (Overtime Exhibit; DaVita-Bowling 000114, DaVita-Barbee 000114,
`DaVita-Clay 000019, DaVita-Grant 000088, DaVita-Stirl 000136).
`
`10
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`(“The employer bears the burden to show that meal time qualifies for exception from
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`compensation.”). The employee does not have to disprove the “bona fide” nature of the
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`meal period. Id.
`
`DaVita requires its nurses and technicians to respond to all work-related inquiries,
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`situations, and emergencies that arise at their job location related to patient care and
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`safety regardless of whether they are active on the floor or engaged in a meal break,20
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`which means each and every meal break DaVita “provided” to nurses and technicians
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`was subject to interruption. In other words, DaVita requires its nurses and technicians to
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`remain available at all times they are physically present on the jobsite to care for patients
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`for DaVita’s predominant benefit.
`
`DaVita’s Rest Break and Meal Period policy (June 2, 2021, version) even
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`recognizes the compensability of such time (without recognizing that its policy read jointly
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`with its expectation that its staff remain available for all patient care during meal periods
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`means that it cannot provide a “bona fide” meal break):
`
`Rest breaks and meal breaks are intended to provide non-exempt
`teammates with an opportunity for rest and relaxation. Non-exempt
`teammates should not perform work during rest breaks or meal periods, and
`they should enjoy these rest breaks and meal periods away from work
`areas.
`
`
`Supervisors will make every effort to ensure that non-exempt teammates
`are provided with regular meal periods during which teammates are relieved
`of all work…If these teammates work six or more hours during a shift, they
`will be provided with one 30-minute off-duty unpaid meal period…Non-
`exempt teammates are required to punch out on the time clock when they
`
`20 Ex. A, Bowling Dep. 101:1-9; Ex. B, Barbee Dep. 77:12-78:23; Ex. C, Clay Dep.
`92:17-93:4; Ex. D, Grant Dep. 107:10-108:4; Ex. E, Hooppell Dep. 92:12-94:15; Ex. F,
`Stirl Dep. 72:20-25 (“Q: So you were able to eat, relax, do whatever you wanted to do,
`basically? A: No. Ideally that’s what I wanted to do but realistically what happens, no. It
`was interrupted – the alarms, paging. I can’t not help my patients, morally. I can’t not.”).
`Ex. O, Stewart Dep. 86:3-9.
`
`11
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`Case 1:21-cv-03033-NYW-KLM Document 73 Filed 10/28/22 USDC Colorado Page 12 of 21
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`leave for meal periods and punch back in when they return. However, if it is
`necessary for a non-exempt teammate to work during a meal period, or if
`he or she is not relieved of all work during a meal period, then the period
`is considered time worked, and the teammate must remain punched into
`the time clock and will be compensated accordingly.
`
`
`(Ex. H, DaVita 000037 (“4.6 Rest Breaks and Meal Periods (Non-Exempt Teammates
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`Outside California)” (effective June 2, 2021) (emphasis added)).)
`
`Courts consider the conflict between written policy and actual conduct to be
`
`grounds for certification of a collective action. For instance, in Gray v. Delta Cnty. Mem’l
`
`Hosp. Dist., No. 19-cv-02938-RBJ, 2021 WL 1329263, at *4 (D. Colo. Mar. 1, 2021), a
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`defendant claimed that conditional certification should not be granted because its policy
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`was that its employees were to clock out only when they were fully relieved of duties and
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`to eat meals off-campus. While that policy on its face would not violate the law, the court
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`noted: “the policy at issue in this case, however, is not merely the codified document
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`but [defendant’s] overall uncodified practice that pressured [plaintiff] and others to work
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`through their meal periods or be on call to respond to interruptions.” Id. (emphasis added).
`
`As in Gray, regardless of DaVita’s written policy, its practice of not paying for meal
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`breaks that were actually interrupted or subject to interruption clearly violates the FLSA
`
`for its failure to provide a “bona fide” meal period.
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`Furthermore, the Department of Labor has provided guidance for this very issue.21
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`Fact Sheet #53 makes clear when a health care employer is in violation of the FLSA for
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`failing to provide a bona fide meal period to nurses with the following example:
`
`
`21 See Ex. L, U.S. Department of Labor, Wage and Hour Division Fact Sheet #53:
`The Health Care
`Industry and Hours Worked (rev. July 2009), available at
`https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/whdfs53.pdf (last visited October
`19, 2022).
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`An hourly paid registered nurse works at a nursing home which allows a 30-
`minute meal break. Residents frequently interrupt her meal break with
`requests for assistance. Must she be paid for these frequently interrupted
`meal breaks? Yes, if employees’ meals are interrupted to the extent that
`meal period is predominantly for the benefit of the employer, the
`employees should be paid for the full 30-minutes.
`
`Fact Sheet #53, at 3 (emphasis added).
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`Here, even when a nurse or technician can avoid an actual interruption to their
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`meal break, their breaks are still subject to interruption, resulting in meal breaks being
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`compensable for the entire 30 minutes intended. Specifically, the nurses and technicians
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`at DaVita remain responsible for patient care even while having a meal.22 Yet, Defendant
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`still deducts (does not pay) the time employees are clocked out as a meal period without
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`compensation for the time worked, even when breaks are 20 minutes or less.23 On the
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`rare occasion when a nurse or technician manages to find a period when no interruptions
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`occur, often for less than 20 minutes, that time is still compensable under the law because
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`nurses and technicians remain responsible to handle any situation that might arise and
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`thus are not completely relieved of their duties. See Scalia v. Ghosn, 451 F. Supp. 3d
`
`1215, 1223 (W.D. Okla. 2020) citing Beasley v. Hillcrest Med. Ctr., 78 F. App’x 67, 70
`
`(10th Cir. 2003)24 (after considering whether the ”degree of interruption caused [the
`
`
`22 Ex. G, Zuckerman 30(b)(6) Dep. 111:23-113:25.
`23 See, e.g., Ex. A, Bowling Dep. 118:4-17 (23-minute “meal period”); Ex. C, Clay
`Dep. 151:4-11 (17-minute “meal period”); 155:2-10 (16-minute “meal period”); Ex. F, Stirl
`Dep. 83:6-11 (13-minute “meal period”); 84:15–85:2 (9-minute “meal period”); 86:11-16
`(15-minute “meal period”).
`24 The employees were nurses and technicians who sought compensation for meal
`periods that were often interrupted by work-related tasks. These interruptions included
`phone calls, communications with doctors and families of patients, and the administration
`of pain medication. During meals, the employees had to watch monitors and respond to
`any problems that arose.
`
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`employees] to spend their meal periods primarily for [their employer's] benefit,” “the Tenth
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`Circuit found there was a triable issue as to whether the employees spent their meal
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`periods ‘predominantly for the benefit of the employer,’” and denied a motion for summary
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`judgment).
`
`Plaintiff predicts that DaVita will focus its merits-based arguments against
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`conditional certification on the fact that its nurses and technicians can clock back in if
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`interrupted. In short, its entire focus will be on actual interruptions and its time keeping
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`policies requiring employees to clock in and out accurately. However, that argument
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`ignores that the regulations speak of “active or inactive” duties for a good reason. The
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`requirement to be available to respond to questions from patients, other nurses,
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`technicians, doctor calls, or DaVita personnel—even when none actually arise—is an
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`“inactive” but, nonetheless, real duty of nurses and technicians.25 It is precisely this
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`continuity of inactive and active duties throughout the shift that makes uncompensated
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`30-minute meal breaks, short or interrupted meal breaks for nursing professionals
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`improper, even though they might be suitable in other industries or professions. Indeed,
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`the “essential job duties” of DaVita’s nurses and technicians, whether active or inactive
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`remain “essential duties” even while on meal breaks.26 For instance, a Registered Nurse
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`II Chronic is not relieved of her duty of “determining signs of patient life-threatening
`
`
`25 Ex. A, Bowling Dep. 101:1-9; Ex. B, Barbee Dep. 77:12-78:23; Ex. C, Clay Dep.
`92:17-93:4; Ex. D, Grant Dep. 107:10-108:4; Ex. E, Hooppell Dep. 92:12-94:15; Ex. F,
`Stirl Dep. 72:20-25. Ex. O, Stewart Dep. 86:3-9.
`26 See generally Ex. M, DaVita 000001-11 (listing “Essential Duties and
`Responsibilities” for nurse and technician responsibilities).
`
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`complications” when she is on lunch break and would be expected to not finish her
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`sandwich, but to return to her patient, in a patient emergency such as this.27
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`All nurses and technicians are also subject to the same ethical duty to their
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`patients.28 Whether on a meal break or not, nurses and technicians are still responsible
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`for the nursing care provided to their patients.29 In following with their duties under the
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`American Nurses Association Code of Ethics of each state, nurses cannot, as a practical
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`matter, turn off their responsibility to respond to the needs of their patients even when
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`they are attempting to take a meal break. Even if DaVita built into its meal break policy
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`an allowance for interruptions during the meal period, its pay practice fails under the law
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`because a meal period is bona fide only if nurses and technicians are completely relieved
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`of their duties. See 29 C.F.R. § 785.19(a). The reality is that nurses and technicians
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`remain on duty and subject to interruptions, even while they are on their meal break.
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`Defendant’s own policy, in every iteration, recognizes this issue by making meal
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`periods spent on premises compensable:
`
`[Where lounge facilities are provided for teammate use during rest breaks
`and meal periods,] [c/C]ertain teammates may be expected to remain on
`the premises as needed for patient safety, or for regulatory or other
`business reasons. If teammates are required to remain on the premises,
`they will be compensated for their time.
`
`
`(Ex. H, DaVita 000023-24, 000030-31, 000037, 000051). Yet Defendant did not comply
`
`with its own policy, let alone the FLSA.
`
`
`27 Ex. G, Zuckerman Dep. 90:8-92:4.
`28 Bowling Dep. 101:1-9; Ex. B, Barbee Dep. 77:12-78:23; Ex. C, Clay Dep. 92:17-
`93:4; Ex. D, Grant Dep. 107:10-108:4; Ex. E, Hooppell Dep. 92:12-94:15; Ex. F, Stirl Dep.
`72:20-25. Ex. O, Stewart Dep. 86:3-9.
`29 Id.
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`2.
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`DaVita’s Payroll Records Demonstrate that It Improperly Deducted
`Compensable, Short Rest Breaks from Plaintiff and the Collective
`Action Members’ Hours of Work When Calculating Overtime.
`
`When employers offer short rest breaks, usually lasting about 5 to 20 minutes, the
`
`
`
`FLSA considers these breaks compensable work hours that should be included in the
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`sum of hours worked during the workweek and considered in determining if overtime pay
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`is due. 29 CFR § 785.18. Further, as the DOL specified in Fact Sheet #53, rest periods
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`of short duration are common in the industry as short breaks promote the efficiency of the
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`employee and are customarily paid for as work time.30
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`Here, on innumerable occasions, Plaintiff and the Collective Action Members were
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`required to clock back in, prior to taking a full 30-minute meal break because it was cut
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`short by an interruption, or for other reasons immaterial to the merits of their meal break
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`claims.31 Defendant did not pay Plaintiff or the Collective Action Members for these
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`resulting rest breaks lasting 20 minutes or less in duration.32
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`Regardless of whether this short break was intended to serve as a meal break, but
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`was cut short due to an interruption, such short breaks are compensable time under the
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`FLSA. Defendant’s failure to provide compensation for such short breaks was a violation
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`of the FLSA in weeks where Plaintif