Brandenburg v. Cousin Vinny’s Pizza

Case Details

This lawsuit was filed on behalf of Cousin Vinny’s Pizza delivery drivers who worked for any of the company’s 17 locations between December 23, 2013 and April 23, 2019.

The Claims

The lawsuit asserted claims that are all too common in the pizza industry.

Unreimbursed for Vehicle Costs

First, the plaintiff claimed that the drivers were not adequately reimbursed for the costs associated with using their own vehicles to perform work for Cousin Vinny’s. Throughout the relevant time, Cousin Vinny’s reimbursed drivers a set amount per delivery that resulted in the drivers being paid somewhere between $.15 and $.30 per mile.

Biller & Kimble has successfully argued in a number of cases that employers have two choices when reimbursing for vehicle expenses: they can either (1) keep records of the drivers’ actual expenses and reimburse for them, or (2) reimburse at the IRS standard business mileage rate, which changes every year and is currently $.56 per mile.

Learn more about the drivers’ “under-reimbursement” claim here: https://www.billerkimble.com/pizza-delivery-drivers/.

Paid Tipped Wage Rate for Hours Worked Inside Restaurant

Second, the plaintiff claimed that the drivers were paid a “tipped wage rate” (less than minimum wage) for hours they worked inside the restaurant. Because the drivers were not receiving tips for work done in the store, the plaintiff claimed that it was illegal for the company to pay them a tipped wage rate for these hours.

What Happened

Early in the case, Plaintiff Thomas Brandenburg filed a Motion to Send Notice to Similarly Situated Individuals. On August 15, 2017, Judge Walter H. Rice became the first federal judge in Ohio to grant such a request. In the fall of 2017, hundreds of Cousin Vinny’s workers joined the case.

A little over a year later, on November 6, 2018, Judge Rice granted the plaintiff’s Motion for Rule 23 Class Certification. In his Order, the Judge made clear that the company was obligated to either (1) keep records of and reimburse for the drivers’ actual expenses, or (2) reimburse at the IRS standard business mileage rate.

Judge Rice explained: “Because the vehicles owned by the delivery drivers are considered ‘tools of the trade,’ 29 C.F.R. §531.35, and required by Cousin Vinny’s as a condition of being hired as a delivery driver, there needed to be an adequate reimbursement rate, using either the IRS mileage rate or actual reimbursement of cost, in order to avoid a decrease in the minimum wage and overtime paid.”

The Settlement

Brandenburg, Doc. 169, Nov. 6, 2018.

The parties continued to litigate the case until they eventually reached a settlement for a total amount of $1,140,000.

As is often the case in pizza delivery driver lawsuits, the settlement amount was dictated by the defendants’ ability to pay. Even though the drivers alleged and believed that the company owed them far more than $1.14 million in unpaid wages and damages, the company and its owners did not have any more than that amount.
After B&K verified the defendants’ financial situation, the parties agreed to settle for $1.14 million.

On November 25, 2019, Judge Rice granted final approval of the settlement. Biller & Kimble was awarded 1/3 of the settlement fund, plus advanced expenses.

The remainder of the settlement fund was distributed to those workers who joined the lawsuit either in response to the FLSA collective action notice mailed in 2017 or in response to the settlement notice mailed in the summer and fall of 2019. The settlement payments were mailed in January 2020 and January 2021.