Sarah M. Block
Thu, 08/11/2022
On August 2, 2022, tipped-wage pizza delivery drivers in Ohio sued their employer, Marco’s Pizza, on behalf of a putative class of over 100 workers for minimum wage and overtime violations under the Fair Labor Standards Act (FLSA) and Ohio law. Specifically, the delivery drivers allege that the company failed to pay them at the applicable minimum wage by requiring them to use their personal vehicles for deliveries while simultaneously failing to reimburse them for job-related expenses including, but not limited to, vehicle expenses such as fuel, oil, insurance, parts, and maintenance. They also allege that the company failed to provide them with required wage notices.
Because the delivery drivers are paid at the lower, tipped hourly wage rate, any required job-related expense will necessarily reduce their hourly rate below the legal minimum wage. Where job-related expenses are related to vehicle usage specifically, an employer can comply with the law by either tracking and reimbursing the delivery drivers’ actual expenses or, alternatively, reimbursing the drivers for miles driven at the IRS standard business mileage rate, which was increased as of July 1, 2022, to 62.5 cents per mile. Significantly, Marco’s Pizza did neither and simply provided the delivery drivers with a flat $2.00 fee for all deliveries, regardless of mileage. Thus, the delivery drivers allege that because they are paid at the lower, tipped hourly wage instead of the full minimum wage for hours spent making deliveries, the company’s failure to reimburse them for vehicle and other job-related expenses violates the law.
In addition, the delivery drivers allege that because the company failed to provide the minimum and overtime wage notices mandated by the FLSA and Ohio law, the company is not permitted to take a tip credit and pay its delivery drivers at the lower, tipped hourly wage. Instead, the drivers allege that they should have been paid for all hours worked at the regular hourly minimum wage rate—which in Ohio is currently $9.30 per hour—instead of the tipped wage rate of $4.65 per hour.
Tipped wage violations are common, particularly in the restaurant and food delivery industries. Employees are entitled to be paid at the full minimum wage rate, and not the lower, tipped wage rate, if the employer fails to provide wage notices, requires participation in an unlawful tip pool, or fails to reimburse workers for vehicle expenses and other “tools of the trade,” among other things. If you are a tipped, hourly worker and believe you have not been properly compensated, please contact MSE today to learn more about your rights.
