BK’s lawyers “hav[e] established an expertise in ‘pizza delivery driver’ litigation, [and] have expended thousands of hours on similar cases which informed and enhanced their representation of Plaintiff here.”
-Judge Susan Dlott, a federal judge of the United States District Court for the Southern District of Ohio (Mullins v. Southern Ohio Pizza, Inc.)
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Long story short, yes, but this is rarely the case. Sometimes a whole industry breaks the law at the same time and in the same way. That’s what happens in the pizza delivery industry.
Pizza companies need vehicles to deliver their food. Instead of buying a fleet of cars themselves, they require pizza delivery drivers to provide (and maintain) their own. Most pizza companies reimburse something, but it rarely covers a driver’s actual costs.
In other words, pizza companies systematically under-reimburse drivers for their vehicle-related expenses.
If you are worried about being able to afford our services, don’t be. For almost all of our clients—especially the employees we usually represent—we only get paid when we recover money for them. This “contingent fee” arrangement lets us represent individuals who could not ordinarily afford top-notch lawyers. It also puts our financial interests in line with your own.
It is also important to know that most of the laws we work with, including the Fair Labor Standards Act, allow us to recover our fees and costs from your employer. Because of this, we can take on both the big and small cases.
According to the Department of Labor’s Field Operations Handbook, Pizza companies must do one of the following:
1. Track and pay each driver’s actual expenses.
2. Pay drivers at the IRS Standard Business Mileage Rate (currently 57.5 cents per mile).
Biller & Kimble LLC’s wage and hour lawyers won a summary judgment decision in favor of our delivery driver clients that confirmed the company had to either track and pay actual expenses or pay drivers at the IRS Standard Business Mileage Rate.
The case is Hatmaker v. PJ Ohio, LLC, No. 3:17-CV-146, 2019 WL 5725043 (S.D. Ohio Nov. 5, 2019) and is against a Papa John’s franchise in Ohio.
It is worth noting that some older court decisions allow pizza companies to “approximate” driver expenses. Even so, many companies often fail to meet this requirement.
If you are paid less than the IRS Standard Business Mileage Rate, you should contact a lawyer to see what options you have. We would be happy to discuss your case with you for free and at no obligation on your part.
This short checklist will tell you if you have a claim.
1. Are you a delivery driver who drives his or her car for work?
2. Does your company track and pay your actual expenses? In other words, are they asking you to turn in receipts for things like gas, insurance, repairs, etc.?
3. Does your company reimburse you at the IRS Standard Business Mileage Rate? (It is about 58 cents per mile.)
If you answered Yes to Question 1 and No to both Questions 2 and 3, you may have a legal claim.
Many pizza companies violate another Fair Labor Standards Act rule – the rule that companies must pay full minimum wage for work done in a non-tipped profession. This is called a “dual jobs” claim.
If you spend time in the store doing things like cleaning, answering phones, building pizza boxes, and making pizzas, you should be paid full minimum wage for that time. If you are paid tipped minimum wage for in-store time, you might have a claim. Call us at (513) 202-0710 to discuss your options.
In Brandenburg v. Cousin Vinny’s Pizza, Inc., a federal court wrote this about Biller & Kimble LLC’s wage lawyers:
“The Court is familiar with Class Counsel’s work in this and other cases like it. The ‘pizza delivery driver’ cases require substantial expertise and firm resources to pursue. The Court agrees that Class Counsel’s work in this area is exemplary and warrants rates reflective of their expertise.”
Many of our pizza delivery driver lawsuit settlements are included on the Our Victories page. Obviously, every case is different, and we cannot guarantee any particular result.
If you believe you are experiencing wage theft, you might want to know the legal details on driver under-reimbursement claims. We will walk through the laws that apply to the legal claims discussed above.
The Fair Labor Standards Act (“FLSA”), 29 U.S.C. 206, requires companies to pay employees at least minimum wage.
The FLSA, 29 U.S.C. 203(m), allows companies to pay drivers a “tipped minimum wage” for time spent earning tips (time spent on the road delivering pizzas).
FLSA Regulation 29 C.F.R. 531.56(e) requires employers to pay full minimum wage, rather than tipped minimum wage, for time spent in a non-tipped occupation.
FLSA Regulation 29 C.F.R. 531.35 requires companies to pay wages paid “free and clear.” This is lawyer-speak for the idea that a company cannot tell an employee “I will pay you minimum wage if you pay me $3.00/hour.” A company isn’t paying minimum wage if they require the employee to pay something back.
FLSA Regulation 29 C.F.R. 531.35 spells out that requiring an employee to purchase and provide “tools of the trade” is the same thing as making the employee pay money back to the employer. In other professions, this often comes up when an employer requires a minimum wage employee to purchase a uniform.
A car is a “tool of the trade” in the delivery driver context. In the pizza delivery context, most companies require their drivers to incur those costs. See Hatmaker v. PJ Ohio, LLC, Case Number 3:17-cv-146.
As a result, if the cost of the driver’s vehicle would drop the driver below minimum wage, companies must reimburse drivers for the use of their cars. See Hatmaker.
The FLSA, 29 U.S.C. 203(m), requires companies to notify employees of the FLSA’s tip credit provisions. FLSA Regulation 29 C.F.R. 531.59 requires companies to notify employees of how much of a tip credit they are taking.
This means that unless the company is paying more than full minimum wage, any under-reimbursement will be a violation, and tips won’t count toward the company’s reimbursement obligation.
Because the FLSA and its Regulations do not spell out how to calculate the cost of vehicles for pizza delivery drivers, the Department of Labor’s guidance is used.
See Hatmaker. That guidance is in the Department of Labor’s Field Operations Handbook and states that pizza companies must either track and pay the drivers’ actual expenses or pay at the IRS mileage rate (about 58 cents per mile).
If you are a delivery driver, whether for a pizza company or not, and you think you might have a claim or even just have a question, please contact us at (513) 202-0710. We would be happy to discuss your options and rights. The call is free and there is no obligation.