Labor & Employment Law Daily Wrap Up, WAGE-HOUR—OVERTIME—D. Colo.: DaVita employees’ FLSA collective, alleging meal breaks violations, decertified, (Jul 20, 2026)

By Jason Albright, J.D.

The plaintiff alleged that DaVita requires and expects its employees to work during their unpaid meal breaks.

DaVita, Inc., is entitled to decertification of an FLSA collective alleging that it failed to pay a group of its current and former nurses and technicians overtime for unpaid meal breaks, during which they were allegedly required to work, a federal district court in Colorado found. With more than 1,300 opt-in plaintiffs present in the case, the court found that the circumstances surrounding the individual opt-in plaintiffs’ unpaid breaks varied widely, sometimes on a day-to-day basis, based on location, staffing, patient emergencies, and individual supervisor and employee discretion (Bowling v. DaVita, Inc., No. 21-cv-03033-NYW-KAS (D. Colo. July 17, 2026)).

Unpaid meal breaks. The named plaintiff, according to the court, alleged that DaVita, Inc. failed to provide bona fide meal breaks to its employees and failed to adequately compensate employees for time worked during their meal breaks. The health care provider, which “employed thousands of nurses and technicians” during the relevant time period, allegedly automatically deducted 30 minutes from its employees’ six-hour shifts to account for unpaid 30-minute meal breaks, even though DaVita requires and expects its employees to work during their unpaid meal breaks.

Overtime claim. The named plaintiff accordingly claimed that this practice deprived DaVita nurses and technicians of overtime compensation to which they are entitled. He brought a single FLSA claim based on a failure to pay proper overtime wages on behalf of a group of current and former DaVita nurses and technicians, and in 2023, he moved for conditional certification of the following collective: “All current and former hourly-paid nurses and technicians employed at any DaVita location to provide direct patient care who did not receive fully relieved meal breaks who may be owed overtime pay under the FLSA for workweeks in which they worked more than forty (40) hours per week including any deducted meal breaks.”

Conditional certification. The court granted his request in part, permitting conditional certification but limiting the collective to nurses and technicians who worked at DaVita locations in Arkansas, Florida, Georgia, Louisiana, Oklahoma, New York, Tennessee, Texas, and Virginia during the relevant time period. Approximately 1,300 people opted in to this FLSA collective.

Motion to decertify. The parties completed two phases of discovery, the second of which focused on “(1) the claims of those individuals who file consents to join the action under 29 U.S.C. § 216(b), and (2) whether de-certification is warranted.”

DaVita then moved to decertify the FLSA collective.

Disparate factual and employment settings. Granting the employer’s motion, the court first observed that the collective consists of approximately 1,300 individuals, including registered nurses (RNs) (479 opt-ins), licensed practical nurses (LPNs) (10 opt-ins), and technicians (835 opt-ins), and the collective members have worked under 820 different supervisors at 1,459 DaVita locations, including clinics (1,205 opt-ins), hospitals (122 opt-ins), “home program locations” (15 opt-ins), and skilled nursing facilities. Nearly two-thirds of the collective have worked at more than one location, and one-fifth have worked at more than five locations. The services provided by the members also vary by location: at clinics, employees provide “chronic” dialysis services, and at hospitals, employees provide “acute” dialysis services.

Taken as a whole, the court found that the opt-in plaintiffs’ testimony reflected the absence of any universal practice or policy dictating how unpaid breaks are scheduled, initiated, and taken. “Indeed, the circumstances surrounding the individual Opt-In Plaintiffs’ unpaid breaks varied widely, and sometimes on a day-to-day basis, based on location, staffing, patient emergencies, and individual supervisor and employee discretion.” Further, “That the over 1,300 Opt-Ins were supervised by 820 different managers ‘exponentially compounds the differences and individualized experiences that go to whether there was a violation of the law, rather than creating consistency,’” observed the court.

Individual defenses. Second, DaVita raised several potential defenses it argued would be individualized to each opt-in, and the court agreed that this factor weighed in favor of decertification as well. A determination of whether each individual FLSA collective member was actually deprived of overtime wages, the court noted, would require a fact-specific inquiry into, inter alia, the number of hours the employee worked in a particular week, whether the employee’s breaks were interrupted, whether the employee’s timesheet was corrected to reflect the interrupted break, and whether the employee was paid overtime wages. To defend against liability on this basis, DaVita “will necessarily be required to present evidence specific to each individual Opt-In to which the defense applies.”

Second, to succeed on their FLSA claims, the FLSA collective members would need to prove, among other things, that DaVita “had actual or constructive knowledge of the overtime.” Here, DaVita’s lack-of-knowledge defense would “necessarily require an individualized inquiry specific to each Opt-In, their supervisor(s), and the circumstances surrounding their overtime work.”

Fairness and procedural considerations. Finally, fairness and procedural considerations also weighed in favor of decertification. Based on the numerous factual differences in the FLSA collective members’ employment circumstances and DaVita’s potential defenses, the court noted, the FLSA collective’s claims cannot be adjudicated through common proof. Recognizing “the savings in litigation costs for the individual Opt-In Plaintiffs that collective treatment may provide,” it nonetheless concluded, “Proceeding with one collective trial would require an immense number of mini-trials involving each Opt-In Plaintiffs’ particular and individualized circumstances. With over 1,300 Opt-Ins present in the case, the scales tip against collective action.”

Motions to exclude. Both parties had disclosed an expert relevant to the decertification stage, and each side had also moved to exclude the competing expert’s testimony. Having ruled on the motion to decertify without relying on the experts’ opinions, the court denied both motions to exclude as moot.

The case is No. 21-cv-03033-NYW-KAS.

Judge: Wang, N.

Attorneys: Allison Rattet (Morgan & Morgan) for James Bowling. Allison Rachel McLaughlin (Wheeler Trigg O’Donnell) and Charlotte Claire Smith (Ogletree Deakins) for DaVita, Inc.

Companies: DaVita, Inc.

Cases: WageHour ClassActions Overtime Procedure ColoradoNews