Dayton Area Domino’s Sued for Alleged Minimum Wage Violations

 

On September 8, 2016, Kimble Law, LLC filed a Class Action Complaint on behalf of pizza delivery drivers at twenty Dayton-area Domino’s Pizza restaurants.

In the Complaint, the Plaintiff-delivery driver alleges that he and his co-workers were denied proper wages because they were required to pay out-of-pocket for gasoline, automobile maintenance, and other expenses in order to perform their duties as delivery drivers, but were reimbursed only $.90 per delivery. By requiring him and his co-workers to cover expenses that were for the pizza giant’s benefit without adequate reimbursement, the plaintiff alleges, the defendants did not pay him minimum wage.

The plaintiff seeks to represent a class that includes all delivery drivers at all Domino’s locations in the Dayton area who work or have worked during the last three years. Read the Class Action Complaint here: Class Action Complaint

Do you work as a delivery driver, but think you do not receive adequate reimbursement for your out-of-pocket expenses? Call Andrew Kimble at 614-636-0509 or complete the form below to initiate a free, confidential consultation.

ADVERTISING ONLY: The information on this blog is not, nor is not intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation. 

Wendy’s Franchisee Sued for Alleged Minimum Wage Violations

Wendy's_Shorthand_Logo

On August 23, 2016, a lawsuit was filed on behalf of crew members who work or worked for WendPartners Group and its affiliate organizations, alleging that the U.S.’s largest Wendy’s franchisee underpays its crew members by taking unlawful deductions from their wages.  WendPartners owns and operates 330 Wendy’s Restaurants in 20 states.

Among other claims, the plaintiff alleges that, even though he was paid minimum wage for all hours worked, WendPartners took deductions from his pay for their own benefit.  Specifically, the plaintiff alleges that the restaurant ordered non-slip shoes on crew members’ behalf, and deducted the cost of the shoes from the employees’ wages.  Additionally, the plaintiff alleges that he was paid on a debit card which charged him fees each time he used it to make a purchase or withdraw money.

Federal and state wage law requires employees to be paid at least minimum wage for all hours worked.  By taking deductions from their crew members’ pay for their own benefit, the plaintiff alleges that WendPartners has paid its crew members less than minimum wage for the hours they worked.

Read the Class Action Complaint here: Wendpartners Class Action Complaint.

If you earn at or close to minimum wage, and your employer takes deductions from your pay or requires you to cover expenses for their own benefit, call Kimble Law at (614) 983-0361, text us at (614) 636-0509, or complete the form below:

Delivery Drivers to Sue Pizza Hut Franchisee

On May 11, 2016, Kimble Law filed a lawsuit on behalf of two delivery drivers at America’s Pizza Company, LLC, a franchisee who owns over 120 Pizza Hut restaurants nationwide.  The plaintiffs allege that they were denied proper minimum wage and overtime payments by the Louisiana-based employer.  In addition to making claims for themselves, the plaintiffs also seek to represent their fellow delivery drivers, who they believe have been subjected to the same pay policies as they have.

Specifically, the plaintiffs allege that they were paid “tip credit minimum wage,” however they were not properly reimbursed for the expenses they incurred while making deliveries to Pizza Hut customers.  By failing to reimburse their drivers who incurred expenses for their benefit, the plaintiffs allege that America’s Pizza Company has paid them less than the minimum wage and overtime payments required by law.

See the Class Action Complaint: First Amended Class Action Complaint

If you are a delivery driver who is not reimbursed for automobile related expenses, contact Kimble Law today for a free consultation at 614-983-0361.

Delivery Drivers Sue Donatos Pizzeria

On June 22, 2016, Kimble Law, LLC filed a complaint on behalf of a Columbus-area delivery driver, alleging that Donatos Pizzeria, LLC has failed to pay him adequately under state and federal law.  The plaintiff seeks to represent a class of pizza delivery drivers at all of Donatos’ 150+ restaurants, who he believes are being subjected to the same pay policies.

Specifically, the plaintiff alleges that he is paid minimum wage, but is not adequately reimbursed for the considerable expenses he incurs while making deliveries for the regional pizza favorite: gasoline, car insurance, and auto repairs, among other expenses. The plaintiff alleges that, by requiring he and other delivery drivers to pay for these expenses out-of-pocket, Donatos has effectively denied them minimum wage and overtime.

See the Class Action Complaint, filed June 22, 2016: Hassan v. Donatos Pizzeria, LLC.

If you work or worked as a pizza delivery driver at Donatos or elsewhere, call Kimble Law for a free consultation at 614-983-0361, or fill out the case information form below.

 

UBER REACHES SETTLEMENT WITH DRIVERS, PENDING COURT APPROVAL

UBER has agreed to pay $100 million to resolve two wage and hour class actions pending in California and Massachusetts, but their drivers will remain independent contractors.  The class action settlement must first be approved by Judge Edward Chen of the District Court of Northern California before it becomes final.

Despite the hefty price tag, if there is a winner in this settlement, it is most likely UBER.  The ride-sharing giant valued at over $60 billion dollars can easily part with the $100 million.  In addition, they have also agreed to some non-monetary concessions – drivers will be given more information about rider feedback, more advanced notice before they are terminated, and an opportunity to appeal termination decisions.  Drivers will also be permitted to encourage – but not require – tips from riders.  Finally, UBER will assist drivers in forming “Driver’s Associations,” however those associations will not have the authority to collectively bargain on behalf of drivers.

Despite all they are agreeing to give up, UBER’s CEO is still “so pleased” with this settlement because it allows the company to continue classifying its drivers as independent contractors, not employees.  Such a classification allows UBER to avoid providing benefits such as minimum wage and overtime guarantees, health insurance, payroll taxes, and unemployment compensation, to name a few.  For more details on the implications of independent contractor status, click here.

Even if the settlement is approved, however, the debate over drivers’ (and other “gig” workers’) classification will continue.  This settlement simply kicks the can down the road.  As the nature of work changes, and the cost of actual “employees” continues to rise, it is a question that courts and legislatures will eventually have to answer.

If you are denied benefits because you are misclassified as an independent contractor, contact Kimble Law today.

D.C. Court of Appeals Upholds Department of Labor Regulations Granting Minimum Wage and Overtime to Home Care Workers

By Andrew Kimble

A three-judge panel on the U.S. Court of Appeals for the District of Columbia upheld recent Department of Labor regulations today that extend FLSA minimum wage and overtime protections to home care workers who work for third-party companies.  Read the opinion here: Home Care Association v. Weil.

Until recently, the Department of Labor considered live-in home care workers and workers providing “companionship services” to be exempt from the Fair Labor Standards Act’s minimum wage and overtime requirements, no matter if they were employed directly by the individual or family to whom they provided services or by a third-party provider.   In 2013, the DOL adopted regulations stating that third-party providers could “no longer avail” themselves of this exemption, and therefore live-in home care workers and those providing “companionship services” were entitled to minimum wage and overtime.  The DOL reasoned, among other things, that the nature of the home care industry had changed since the previous regulations were adopted in 1975.  Demand for long term home care has grown exponentially, with fewer families opting for institutionalized care, and technological advances allowing for more complex care to take place in the home.  As a result, it is rare today for families or individuals in need of home care services to hire and employ home care workers directly.  Instead, they contract for services through third-party providers.

Before the new regulations were implemented on January 1, 2015, Home Care Association v. Weil was filed in a D.C. district court, challenging the DOL’s authority to implement the regulations.  In 2014, the lower court agreed with the third-party provider-plaintiffs, invalidating the DOL regulations on the grounds that they contradicted the terms of the FLSA.

Today, however, the Court of Appeals reversed and remanded the lower court’s decision in favor of the Department of Labor.  Circuit Judge Sri Srinivasan explained that the specific issue of whether the exemption applied to employees of third-party providers was “among the  details that the statute leaves the agency to work out.”  He continued to conclude that the agency’s interpretation was reasonable in light of the changes in the industry.  The court also analyzed states in which state law already required these employees to be paid overtime, and concluded that it has not caused a significant increase in the cost of home care or the usage of institutionalize care.

The decision is a major victory for home care workers who work for third-party providers around the U.S., who will be entitled to the full protections of the FLSA after the new regulations are implemented.  If you are a home care worker for a third-party provider and you are denied minimum wage or overtime, contact an employment attorney to better understand your rights.

My Boss says I Am Not Entitled to Overtime Because I Am an “Independent Contractor”…

No matter what your company tells you, the question of whether you are an “independent contractor” or “employee” is determined by the actual circumstances of your work relationship, not by any contract you sign or by the designation provided by your company.

There are a number of factors considered in deciding whether an independent contractors has been misclassified.  Many courts (and the U.S. Department of Labor) use the “economic realities” test, which considers the following factors:

  1. The extent to which the work performed is an integral part of the employer’s business;
  2. The worker’s opportunity for profit or loss depending on his or her managerial skill;
  3. The extent of the relative investments of the employer and the worker;
  4. Whether the work performed requires special skills and initiative;
  5. The permanency of the relationship; and
  6. The degree of control exercised or retained by the employer.

Within these factors, a wide range of factual circumstances can tip the scales one way or the other, such as:

  • Does the individual have to work a specific schedule set by the company;
  • Does the individual wear a company uniform;
  • Does the individual have to perform tasks in accordance with company operating procedures;
  • Does the individual perform similar work on a contract basis for other companies or individuals;
  • Who supplies tools for the work to be completed;
  • Who determined how much or in what manner the individual would be paid;
  • Are expenses are reimbursed by the company;
  • Does the individual receive benefits like paid time off, sick leave, insurance, or retirement benefits?

This is far from an exhaustive list, and each work relationship is analyzed based on the specific facts of the case. But generally, if the company exercise significant control over the work performed, and if the individually is economically dependent on the company, it is highly likely that the individual should be classified as an employee.

Whether you are an employee or an independent contractor has serious real-life consequences. Perhaps most importantly, independent contractors are not entitled to the same employment rights, benefits, and protections as traditional employees. For example, independent contractors are not “employees,” according to the Fair Labor Standards Act (FLSA), so they are not entitled to minimum wages or overtime compensation. For the same reason, independent contractors have no right to take medical leave according to the Family and Medical Leave Act (FMLA), will not be able to bring discrimination claims under most federal and state statutes, and are not entitled to unemployment insurance if they lose their position. These are only some of the rights and benefits that independent contractors are denied.

Additionally, an individual’s status affects the way both the company and the individual must pay taxes. This writer is not a tax professional, and therefore cannot provide advice on all of the specific ways independent contractor status relates to tax obligations. However, speaking generally, independent contractor status allows a company to avoid paying certain types of taxes, and allows them to push those burdens onto the individual.

The recent trend is that “independent contractor” designations – especially for lower income workers – are being met with skepticism by courts and government agencies.  Earlier this month, the DOL issued an agency interpretation as it relates to the FLSA, and made their position clear that “most workers are employees.”  Also, as was widely publicized, the California Labor Commissioner concluded last month that Uber, the car service juggernaut, had misclassified its drivers as independent contractors, even though drivers drive their own cars and set their own work schedules.

If you think you are misclassified as an independent contractor, you should contact an employment attorney as soon as possible to ensure you are not being denied your legal rights. For a free, confidential consultation, contact Kimble Law Office at 614-636-0509.