The lawsuit is called Pazfahl v. FSM ZA, LLC. In April 2021, Plaintiff amended the complaint to add Perfect Timing, LLC, another of Burns’ companies operating additional Toppers Pizza stores.
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Pazfahl v. FSM ZA, like the many similar pizza delivery driver lawsuits around the country, alleges that the company and its owners under-pay their delivery drivers for the costs the drivers sustain when they use their cars for the company’s purposes, i.e., to make deliveries. Specifically, the drivers claim that the company reimburses a per-delivery amount (ex., $1/delivery) that is not enough to cover the drivers’ vehicle expenses. The plaintiff alleges that this under-reimbursement results in a minimum wage or other wage and hour violations.
The plaintiff, a former Toppers Pizza delivery driver who seeks to represent all FSM ZA and Perfect Timing delivery drivers in federal court, claims that Defendants broke the law by underpaying its delivery drivers for automobile expenses.
Federal law prohibits employers from paying employees less than minimum wage, either outright or by improperly shifting costs onto employees.
Under-reimbursement of Vehicle Expenses
First, the plaintiff alleges that the company does not properly reimburse for vehicle expenses.
The drivers’ position is that they must be reimbursed at the IRS standard business mileage rate (for example, $.58 per mile in 2019) when the employer does not collect records of the drivers’ actual expenses and reimburse based on those records.
Even if the company is permitted to reimburse based on an “approximation,” as defendants usually argue, the plaintiff alleges that Burns’ Toppers stores have failed to “reasonably approximate.”
Plaintiff alleges that this practice violates the federal Fair Labor Standards Act, Wisconsin wage laws Wis. Stat. § 104.01 et seq., Wis. Stat. § 109.01 et seq., and Wisc. Admin. Code § DWD 272.03(2)(b).
Violation of the Rules for Claiming a Tip Credit
Second, the plaintiff alleges the company failed to properly claim a “tip credit” against the minimum wage because they failed to actually pay the wage rate they promised to pay, after account for under-reimbursement expenses.
In addition to under-reimbursed expenses, the drivers claim they are entitled to the difference between full minimum wage and the “tipped wage rate” the employer claimed to pay because of this failure. For example, if a driver was paid $5.00 per hour on the road in a state where minimum wage was $7.25, they would be entitled to $2.25 for each hour worked ($7.25 – $5.00 = $2.25) in the plaintiff prevails on this claim.
Plaintiff field his Reply in Support of Class Certification.
Defendants filed their Response in Opposition to Class Certification.
The Court held a telephone conference to discuss Defendants’ Motion to Compel Discovery and permitted Defendants to take 5 depositions before being required to respond to Plaintiff’s Motion for Class Certification.
Plaintiff filed his Motion for Rule 23 Class Certification.
Plaintiff filed a Response in Opposition to Defendants’ Motion to Compel Discovery.
Defendants filed a Motion to Compel Discovery.
Defendants filed a Reply in Support of their Motion to Dismiss.
Plaintiff filed a Reply in Support of his Motion to Send Notice
Plaintiff filed a Response in Opposition to Defendants’ Motion to Dismiss.
Defendants filed a Response in Opposition to Plaintiff’s Motion to Send Notice
Defendants filed a Motion to Dismiss the First Amended Complaint.
Plaintiff filed his First Amended Complaint, adding an additional entity operating Defendants’ Toppers Pizza stores.
Plaintiff filed a Motion to Send Notice to the other pizza delivery drivers, to inform them about their opportunity to join the ongoing lawsuit.
Plaintiff filed class and collective action Complaint.
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