Update below: A new lawsuit filed against DaVita, a kidney dialysis giant that's among the most prominent companies based in Denver, echoes some of the allegations in a scorching exposé of the firm and the industry by HBO's Last Week Tonight With John Oliver. The complaint, one of two collective actions being pressed on behalf of past and present DaVita employees, claims that clinics are severely understaffed and that the rapid pace of care that's maintained in an effort to maximize profits exploits workers and endangers patients' lives.
"DaVita is one of those companies that talks about how it cares about its employees and how it takes its core values seriously," says Colleen Calandra, an attorney for Ramos Law Colorado who's part of the team handling the suits; the named plaintiffs in the wage complaint are Elina Navarro, Jane Stant, Kelsey Oldershaw and Jaymie Stevens. "But they make business decisions that violate their own core values on a daily basis. It's extremely hypocritical, because they treat their employees like crap."
Thus far, DaVita has not responded to a request from Westword to comment about the lawsuits. When and if a representative gets back to us, we'll update this post.
However, the company lists its mission and the core values to which Calandra refers on its website. They're included in their entirety at the bottom of this post, but the "team" section alludes to The Man With the Iron Mask, which, as Oliver noted in the May 14 Last Week Tonight report, is a favorite of DaVita CEO Kent Thiry, who often dresses as a musketeer at company gatherings. The passage states: "One for All, and All for One! We work together, sharing a common purpose, a common culture and common goals. We genuinely care for and support, not only those to whom we provide care, but also those with whom we work shoulder-to-shoulder. We work together to pursue achieving our Mission" — to be "the Provider, Partner and Employer of Choice."
Oliver offered a less positive portrait of DaVita and the for-profit kidney dialysis business overall. As he pointed out, federal guidelines don't require a doctor to be on site at a dialysis clinic at any given time, and only one nurse is required to be present at such a facility. Moreover, Oliver cited a study that found that clinics run by for-profits such as DaVita use about one-third fewer nurses than their nonprofit competitors. "That might explain why some DaVita patients say they feel like a product on a factory line," he noted.
Calandra paints a similar picture. "Most of DaVita's patients are Medicare or Medicaid recipients," she maintains, "and since they can't charge as much for them as they can for private insurance patients, they're forced to cut labor and keep staffs lean — and to pressure their employees to do work off the clock. They say they have a policy that any work has to be done within a forty-hour work week, but they've made it impossible to do because of the chronic understaffing. So they're putting these workers into a really, really awful position — saying to them, 'You have to get this done.'"
And what needs doing is important. As Calandra points out, "you've got to remember: These patients have kidney failure. They're not kind of sick; they're really sick. If you don't get dialysis, you die — it's that simple. So these employees have patient-care safety issues. What person wants to kill someone? What nurse wants to lose their license because someone has died or gotten hurt?"
Hence the lawsuit, which argues that DaVita is violating the Fair Labor Standards Act of 1938 by failing to pay employees for all their work. An excerpt reads:
Defendants required Plaintiffs and those similarly situated to clock out for their meal breaks. Plaintiffs and those similarly situated were/are required to perform work-related duties during meal breaks. Plaintiffs and those similarly situated were/are not paid for work-related interruptions that occurred/occur during meal breaks during their shifts wherein they worked more than five consecutive hours. Defendants failed to change Plaintiffs’ and those similarly situateds’ time records to reflect the additional time worked on behalf of the employer even when Plaintiffs and those similarly situated requested that their time records be corrected by management.
According to Calandra, DaVita gets away with such salary sleight of hand in part because "the culture at the company is to help one another. Their core values say that employees should love one another and help their teammates out. But you're also not supposed to officially work any hours over forty, because that will reflect on bonuses for the budget at the clinic — and why would you do that to your teammates? So people are coming in before shifts, coming back during meal breaks, staying late afterward and doing online training programs off the clock, too. And DaVita is turning a blind eye on it."
Calandra says this approach is also taking place outside the clinics, at the executive level. The second lawsuit accuses the company of sex, age and disability discrimination against female employees.
These suits are hardly the first to be pressed against DaVita. On Last Week Tonight, Oliver provided information about numerous settlement deals involving patients, including one for $389 million that was illustrated by a 9News clip starring reporter Noel Brennan. That payout, along with two others, for $489 million and $55 million, respectively, add up to nearly $1 billion.
It's too soon to know if the employee suits will result in this kind of payout. But U.S. District Judge Marcia Krieger has ordered that a notice be sent to current and former DaVita employees who worked at clinics in Arvada, Aurora, Belcaro, Brighton, Boulder, Commerce City, East Aurora, Lakewood, Lakewood Crossings, Lone Tree, Sable, South Denver or Thornton, as well as select facilities in Indiana, Illinois, Georgia and Tennessee, between September 9, 2012, and the present. The messages are meant to let the employees know they can potentially recover losses if they opt into the ongoing actions. Documents for doing so are accessible below.
"We're not talking about small numbers here," Calandra stresses. "If I can prove they intentionally did this for two or three years, that's a lot of wages. And it really is wage theft. You're stealing someone's wages if you're taking their work for free. And that's what they're doing, to try and keep their labor costs down."
In the meantime, Calandra is grateful for Last Week Tonight. In her words, "It was a lucky situation that Mr. Oliver did his report and shed light on all this."
Update: After the original publication of this item, DaVita spokesperson Skip Thurman provided the following statement from the company about the suits: "We continue to defend against plaintiffs’ claims and believe the facts will prevail. The case has been pending for well over a year, and the Court significantly narrowed the scope of the class plaintiffs and their attorneys originally sought to include in the lawsuit."
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