Lawsuit Against Domino's for Failing to Reimburse Drivers

[Charles]

Re: Lawsuit Against Domino’s for Failing to Reimburse Driver
gregster:

Charles:

That’s right. I will go by case and administrative law, not gregster’s guesses.
:lol:

From page 31 of the DOL Field Operations Handbook (FOH) chapter 30

(a)As an enforcement policy, the Internal Revenue Service (IRS) standard business mileage rate found in IRS Publication 917, “Business Use of a Car” may be used (in lieu of actual costs and associated recordkeeping)

Which part of the above is my “guess”? :roll: Looks like “administrative law” to me!

“MAY” be used. Not “MUST” be used.
And the recordkeeping for actual expenses would be the employee’s responsibility, not the employer’s.

Lastly, the employee and employer can always agree to an amount less than the IRS standard mileage deduction (which has to do with tax law and not labor law) if both agree it covers the employee’s expenses.

 

[Wizzle_Wassell]

Re: Lawsuit Against Domino’s for Failing to Reimburse Driver
gregster:

Which part of the above is my “guess”? :roll: Looks like “administrative law” to me!

and your law degree came from???

 

[Gpizza92]

Re: Lawsuit Against Domino’s for Failing to Reimburse Driver

Charles:

gregster:

Charles:

That’s right. I will go by case and administrative law, not gregster’s guesses.
:lol:

From page 31 of the DOL Field Operations Handbook (FOH) chapter 30

(a)As an enforcement policy, the Internal Revenue Service (IRS) standard business mileage rate found in IRS Publication 917, “Business Use of a Car” may be used (in lieu of actual costs and associated recordkeeping)

Which part of the above is my “guess”? :roll: Looks like “administrative law” to me!

“MAY” be used. Not “MUST” be used.
And the recordkeeping for actual expenses would be the employee’s responsibility, not the employer’s.

Lastly, the employee and employer can always agree to an amount less than the IRS standard mileage deduction (which has to do with tax law and not labor law) if both agree it covers the employee’s expenses.

I’ve read the IRS articles regarding the mileage rate and the DOL Field Ops book. No where is it stated that pizza shop owners have to pay drivers the standard business mileage rate. What the DOL book seems to say is that when a driver figures out his mileage using the standard mileage rate, if he drops below minimum wage, that’s a problem. So while the DOL doesn’t come out and say we have to pay the .55 cents per mile, it seems to say that we better make sure with mileage or actual costs deducted from a drivers gross they still earn ABOVE minimum wage.
So let’s try it. My drivers use my vehicles but I have a driver sheet from last night that will give us some info. He drove 28 miles. According to the IRS the cost to operate that vehicle last night was 15.40. If I’m paying him the full minimum wage and also paying him per run that per run fee better be over 15.40 OR I’d have to make up the difference because he would drop below minimum. What about tips? If I’m paying him FULL minimum I assume tips could offset the per mile cost. If he was making only the tip credit then it wouldn’t be the case because the tips would go to offset the fact I’m not paying him minimum wage.

 

[Charles]

Re: Lawsuit Against Domino’s for Failing to Reimburse Driver

Gpizza92:

According to the IRS the cost to operate that vehicle last night was 15.40.

No, that is the rate the IRS gives for people who deduct mileage. It was accepted by the DOL as a reasonable estimation of expenses. But it is not mandated that is be used. It is based on not just gas and maintenance, but also insurance and depreciation, which is quite variable. Any reasonable estimation is acceptable. With older vehicles and liability-only insurance, the costs are much lower. You do not have to use the IRS estimate as long it is reasonable and consistent with the actual use. It is okay to pay a per run fee based on average distance.

 

[system]

Re: Lawsuit Against Domino’s for Failing to Reimburse Driver

Charles:

Gpizza92:

According to the IRS the cost to operate that vehicle last night was 15.40.

No, that is the rate the IRS gives for people who deduct mileage. It was accepted by the DOL as a reasonable estimation of expenses. But it is not mandated that is be used. It is based on not just gas and maintenance, but also insurance and depreciation, which is quite variable. Any reasonable estimation is acceptable. With older vehicles and liability-only insurance, the costs are much lower. You do not have to use the IRS estimate as long it is reasonable and consistent with the actual use. It is okay to pay a per run fee based on average distance.

Why is it that others here demand that I must have a law degree when all I am doing is simply pointing out the DOL’s regulations, but when Charles tells us the HE in his legal wisdom knows better, not a single person chimes in on that? :roll:

“Any reasonable estimation is acceptable.” Based on what other than your opinion?

"You do not have to use the IRS estimate as long it is reasonable and consistent with the actual use. "Based on what other than your opinion?

Can you quote some “administrative law” to back those opinions up?

 

[system]

Re: Lawsuit Against Domino’s for Failing to Reimburse Driver

Gpizza92:

If I’m paying him FULL minimum I assume tips could offset the per mile cost. If he was making only the tip credit then it wouldn’t be the case because the tips would go to offset the fact I’m not paying him minimum wage.

No they may not:

From page 38 of the DOL Field Operations Handbook (FOH) chapter 30

http://www.dol.gov/esa/whd/FOH/FOH_Ch30.pdf

“Tips in excess of statutory tip credit may not be credited against uniform purchase and maintenance costs”

From “Fact Sheet #15: Tipped Employees Under the Fair Labor Standards Act (FLSA)”

http://www.dol.gov/esa/whd/regs/compliance/whdfs15.pdf

[/quote]
Retention of Tips: The law forbids any arrangement between the employer and the tipped employee whereby any part of the tip received becomes the property of the employer. A tip is the sole property of the tipped employee.
It is posts like yours that give me very good reason for continuing to post here. Employers have NO RIGHT to use employee tips to pay their business expenses!

 

[Charles]

Re: Lawsuit Against Domino’s for Failing to Reimburse Driver
gregster:

“Any reasonable estimation is acceptable.” Based on what other than your opinion?
Can you quote some “administrative law” to back those opinions up?

Cal. Dept. of Industrial Relations:

In DLSE Interpretive Bulletin No. 84-7, the Labor Commissioner determined that “nder Labor Code section 2802, an employer who requires an employee to furnish his/her own car or truck to be used in the course of employment would be obligated to reimburse the employee for the costs necessarily incurred by the employee in using the car or truck in the course of employment. The rate of reimbursement can be that agreed to by the employer and employee, or, if there is no such agreement, any reasonable amount.â€

Yes, this is for California and not the U.S., but…

1. California’s labor laws are stricter than the federal laws
2. You have never shown anything that says an employer MUST pay the IRS rate. If the DOL says that you MAY use the IRS rate, then it follows that you can choose NOT to use it.

 

[system]

Re: Lawsuit Against Domino’s for Failing to Reimburse Driver

Charles:

“MAY” be used. Not “MUST” be used.
And the recordkeeping for actual expenses would be the employee’s responsibility, not the employer’s.

“…may be used (in lieu of actual costs and associated recordkeeping…”

Right, the DOL gives you a choice, actual costs (and associated recordkeeping) or the IRS standard rate. If you believe that there is a THIRD method that the DOL approves of (besides the two mentioned here), please share it with all of us and give a reference where they say it is acceptable.

The burdon of Minimum Wage compliance and the associated recordkeeping falls on the employer, not the employee. If an employer chooses to base mileage payments on the "actual cost method’, the burdon of proof falls on the employer also.

DOL Opinion Highlights Need For Accurate Record Keeping Under FLSA
http://www.hrresource.com/articles/view … cle_id=634

Recordkeeping – In its opinion letter, the DOL reminded employers of their duty to keep accurate records of hours worked each work day and each workweek for all nonexempt employees. Retention is required for a period of 3 years. 29 U.S.C. § 211(c); 29 C.F.R. § 516.2(a)(7). There is no private right of action for an employee to enforce FLSA’s recordkeeping requirement; instead, it is enforced by the DOL. However, when an employee brings a claim for overtime or another violation of FLSA, it is the employer’s burden to come forward with evidence to challenge the employee’s claim. When an employer does not obtain and/or retain records of hours worked, an employee’s calendar, diary, or testimony may be considered evidence of hours worked. For example, an employee could claim that he or she worked through the lunch hour consistently 3 times per week for 3 years. If an employer who wishes to challenge the assertion does not have time sheets reflecting hours worked, the employer will have a difficult time meeting this burden. Moreover, a company that cannot show it acted in good faith to follow FLSA will pay liquidated damages (2x the wages owed).

Charles:

"Lastly, the employee and employer can always agree to an amount less than the IRS standard mileage deduction (which has to do with tax law and not labor law) if both agree it covers the employee’s expenses.

http://www.dol.gov/esa/whd/opinion/FLSA … 1_FLSA.htm

Please note that employees cannot waive their rights to receive the minimum wage. See Brooklyn Savings Bank v. O’Neil, 324 U.S. 697 (1945).

 

[system]

Re: Lawsuit Against Domino’s for Failing to Reimburse Driver

Charles:

1. You have never shown anything that says an employer MUST pay the IRS rate. If the DOL says that you MAY use the IRS rate, then it follows that you can choose NOT to use it.

That is because I have never claimed that! The DOL guidance says 'IRS standard rate OR actual costs"

The only part where the word MUST comes into play is that the employees net wage MUST not fall below minimum wage after business expenses.

 

[Wizzle_Wassell]

Re: Lawsuit Against Domino’s for Failing to Reimburse Driver
gregster:

Why is it that others here demand that I must have a law degree when all I am doing is simply pointing out the DOL’s regulations, but when Charles tells us the HE in his legal wisdom knows better, not a single person chimes in on that? :roll:

1. I didn’t DEMAND
2. ‘others’ indicates more than 1 - as far as I can see only 1 person has specifically commented on you having a law degree

the reason I’ve asked is that you are issuing legal opinion on issues which you have no qualifiaction. Its easy to find reference to things you want to find reference to but that doesn’t always mean its the answer.

As said previously lets leave this to the legal people to give us a legal answer - with respect you’re a delivery driver and whilst you may be good at that I don’t take legal advice from a driver in exactly the same way I bet you wouldn’t let me file your tax return!

 

[Charles]

Re: Lawsuit Against Domino’s for Failing to Reimburse Driver

gregster, you keep extrapolating from different laws to get the IRS mileage deduction as your per mile rate. For instance, you quote recordkeeping for minimum wage being the responsibility of the employer and then extend that to recordkeeping for vehicle actual costs. That is just not the case. You can keep quoting bits and pieces but not even the DOL is recognizing your kludging together of these disparate laws.

The only real truths are:

1. An employee cannot earn less than minimum wage.
2. Unreimbursed expenses cannot reduce the employee below minimum wage.

You quote handbook guidelines, but do not acknowledge that my excerpt contradicts your unwavering assertion that employers must pay either:

1. The IRS standard mileage deduction
   or
2. Actual expenses AND the employer must be the one to keep the records of actual vehicle expenses (which makes no sense at all).

Cal. Dept. of Industrial Relations:

In DLSE Interpretive Bulletin No. 84-7, the Labor Commissioner determined that “nder Labor Code section 2802, an employer who requires an employee to furnish his/her own car or truck to be used in the course of employment would be obligated to reimburse the employee for the costs necessarily incurred by the employee in using the car or truck in the course of employment. The rate of reimbursement can be that agreed to by the employer and employee, or, if there is no such agreement, any reasonable amount.â€

Just because you keep saying it does not make it so. I will rely on the advice of professionals, the courts, and the actual government agencies who enforce the laws.

Yes, I believe the 6-mile radius, dollar a delivery, and $5.85 an hour wage at the local PJ most definitely drops the driver below minimum wage. Hopefully the class action suit against Domino’s will bring that to light. But you are seriously mistaken that the DOL is going to mandate 55 cents a mile. And guess what if they do? Delivery charges will be increased to reflect the additional charges, less people will order deliveries, carry-outs will increase, and tips will decrease. Be careful what you wish for. You may just get it. :lol:

 

[Charles]

Re: Lawsuit Against Domino’s for Failing to Reimburse Driver

gregster, would the following scenarios satisfy your interpretation of the laws:

Driver uses his own car.
Driver receives IRS standard mileage deduction of 55 cents per mile
Driver receives $2.13 per hour plus tips.

Driver uses company car
Driver only receives $2.13 per hour plus tips.

 

[Rick_G]

Re: Lawsuit Against Domino’s for Failing to Reimburse Driver
gregster:

Charles:

“MAY” be used. Not “MUST” be used.
And the recordkeeping for actual expenses would be the employee’s responsibility, not the employer’s.

Snip Snip

. However, when an employee brings a claim for overtime or another violation of FLSA, it is the employer’s burden to come forward with evidence to challenge the employee’s claim. When an employer does not obtain and/or retain records of hours worked, an employee’s calendar, diary, or testimony may be considered evidence of hours worked. For example, an employee could claim that he or she worked through the lunch hour consistently 3 times per week for 3 years. If an employer who wishes to challenge the assertion does not have time sheets reflecting hours worked, the employer will have a difficult time meeting this burden. Moreover, a company that cannot show it acted in good faith to follow FLSA will pay liquidated damages (2x the wages owed).

Snip Snip

[/quote]

[/quote]

Totally ignoring the guilty until proven innocent approach of this opinion, if it is interpreted as Gregster states, then the employer is responsible for filling out time cards for employees, expense reports for employees vacation requests, benefit selection forms or anything else that can affect gross and net pay.
According to Gregsters interpretation of the law, the business owner would be responsible for clocking employees in and out, since the time card is a document needed to prove compliance.

The employer is responsible for having these records available yes, but he is not required to actually fill out the info on them. When I worked in other industries, on of our large clients was the DOE. Any employees working on DOE projects were required, by the federal government, to personally complete their time cards and expense reports. It was illegal for your supervisor to fill in your time sheet. We were not even allowed to fill in our hours in a speadsheet they had to be hand written and initialed. The burden of documenting the expenses falls on the person that incurrs the expense. To repeatedly state otherwise shows you are not open to alternate interpretations of the same phase, even when the alternate interpretation is more logical. I am pretty good at keeping track of what is happening, but even I can not see how much my drivers spend at the gas pump or on oil changes or how much they drive on personal business when not at work etc. If Justin Time comes in every month or so and tells me he changed his oil but has no reciept… If you don’t document it, it did not happen.

 

[Wizzle_Wassell]

Re: Lawsuit Against Domino’s for Failing to Reimburse Driver
gregster:

[Recordkeeping – In its opinion letter, the DOL reminded employers of their duty to keep accurate records of hours worked each work day and each workweek for all nonexempt employees. Retention is required for a period of 3 years. 29 U.S.C. § 211(c); 29 C.F.R. § 516.2(a)(7). There is no private right of action for an employee to enforce FLSA’s recordkeeping requirement; instead, it is enforced by the DOL. However, when an employee brings a claim for overtime or another violation of FLSA, it is the employer’s burden to come forward with evidence to challenge the employee’s claim. When an employer does not obtain and/or retain records of hours worked, an employee’s calendar, diary, or testimony may be considered evidence of hours worked. For example, an employee could claim that he or she worked through the lunch hour consistently 3 times per week for 3 years. If an employer who wishes to challenge the assertion does not have time sheets reflecting hours worked, the employer will have a difficult time meeting this burden. Moreover, a company that cannot show it acted in good faith to follow FLSA will pay liquidated damages (2x the wages owed).

This CLEARLY says records on hours worked. Nowhere in this piece does it mention anything about expenses, mileage, costs incurred. No one has raised the issue of record keeping for hours worked so why post a quote about that. Sure it is the employers burden to have evidence ABOUT HOURS WORKED but we’re not on about that are we???

 

[system]

Re: Lawsuit Against Domino’s for Failing to Reimburse Driver

Charles:

gregster, would the following scenarios satisfy your interpretation of the laws:

Driver uses his own car.
Driver receives IRS standard mileage deduction of 55 cents per mile
Driver receives $2.13 per hour plus tips.

Driver uses company car
Driver only receives $2.13 per hour plus tips.

Only if tips were enough to make up the difference to minimum wage. At many big 3 stores, including mine, that pay scheme would very often fall short.

Even though it would be legal, you would be hard pressed to find competent and reliable employees at that pay.

 

[system]

Re: Lawsuit Against Domino’s for Failing to Reimburse Driver
Wizzle Wassell:

gregster:

[Recordkeeping – In its opinion letter, the DOL reminded employers of their duty to keep accurate records of hours worked each work day and each workweek for all nonexempt employees. Retention is required for a period of 3 years. 29 U.S.C. § 211(c); 29 C.F.R. § 516.2(a)(7). There is no private right of action for an employee to enforce FLSA’s recordkeeping requirement; instead, it is enforced by the DOL. However, when an employee brings a claim for overtime or another violation of FLSA, it is the employer’s burden to come forward with evidence to challenge the employee’s claim. When an employer does not obtain and/or retain records of hours worked, an employee’s calendar, diary, or testimony may be considered evidence of hours worked. For example, an employee could claim that he or she worked through the lunch hour consistently 3 times per week for 3 years. If an employer who wishes to challenge the assertion does not have time sheets reflecting hours worked, the employer will have a difficult time meeting this burden. Moreover, a company that cannot show it acted in good faith to follow FLSA will pay liquidated damages (2x the wages owed).

This CLEARLY says records on hours worked. Nowhere in this piece does it mention anything about expenses, mileage, costs incurred. No one has raised the issue of record keeping for hours worked so why post a quote about that. Sure it is the employers burden to have evidence ABOUT HOURS WORKED but we’re not on about that are we???

You are CLEARLY ignoring the fact that the DOL puts the burden of proof of adequate pay on the employer.

 

[steveo922]

Re: Lawsuit Against Domino’s for Failing to Reimburse Driver

I worked for a pizza place that was insanely busy pretty much all the time. They just paid their drivers $1.95/delivery, and that is all. And they ALL made bank. And yet, out of the 5 years I worked there, NOT ONE OF THE 10 + DRIVERS EVER COMPLAINED… Hmmm…

 

[system]

Re: Lawsuit Against Domino’s for Failing to Reimburse Driver
Rick G:

gregster:

Charles:

“MAY” be used. Not “MUST” be used.
And the recordkeeping for actual expenses would be the employee’s responsibility, not the employer’s.

Snip Snip

. However, when an employee brings a claim for overtime or another violation of FLSA, it is the employer’s burden to come forward with evidence to challenge the employee’s claim. When an employer does not obtain and/or retain records of hours worked, an employee’s calendar, diary, or testimony may be considered evidence of hours worked. For example, an employee could claim that he or she worked through the lunch hour consistently 3 times per week for 3 years. If an employer who wishes to challenge the assertion does not have time sheets reflecting hours worked, the employer will have a difficult time meeting this burden. Moreover, a company that cannot show it acted in good faith to follow FLSA will pay liquidated damages (2x the wages owed).

Snip Snip

Totally ignoring the guilty until proven innocent approach of this opinion, if it is interpreted as Gregster states, then the employer is responsible for filling out time cards for employees, expense reports for employees vacation requests, benefit selection forms or anything else that can affect gross and net pay.
According to Gregsters interpretation of the law, the business owner would be responsible for clocking employees in and out, since the time card is a document needed to prove compliance.

The employer is responsible for having these records available yes, but he is not required to actually fill out the info on them. When I worked in other industries, on of our large clients was the DOE. Any employees working on DOE projects were required, by the federal government, to personally complete their time cards and expense reports. It was illegal for your supervisor to fill in your time sheet. We were not even allowed to fill in our hours in a speadsheet they had to be hand written and initialed. The burden of documenting the expenses falls on the person that incurrs the expense. To repeatedly state otherwise shows you are not open to alternate interpretations of the same phase, even when the alternate interpretation is more logical. I am pretty good at keeping track of what is happening, but even I can not see how much my drivers spend at the gas pump or on oil changes or how much they drive on personal business when not at work etc. If Justin Time comes in every month or so and tells me he changed his oil but has no reciept… If you don’t document it, it did not happen.

The point is that the EMPLOYER must MAINTAIN them, even if the employee must fill them out. That’s why it is called "record KEEPING’ and not ‘record filling-outing’. :roll:

 

[Charles]

Re: Lawsuit Against Domino’s for Failing to Reimburse Driver
gregster:

The point is that the EMPLOYER must MAINTAIN them, even if the employee must fill them out. That’s why it is called "record KEEPING’ and not ‘record filling-outing’. :roll:

I see you are now consistently using the :roll: but you are the one sliding on what you have implied here.

You have stated previously that employers should use the standard mileage deduction because it would it would be too cumbersome for the employER to keep records on the actual costs. If you meant to say MAINTAIN, then it sure does not seem very difficult for an employer to drop the expense report into a file folder.

 

[Charles]

Re: Lawsuit Against Domino’s for Failing to Reimburse Driver
gregster:

Charles:

gregster, would the following scenarios satisfy your interpretation of the laws:

Driver uses his own car.
Driver receives IRS standard mileage deduction of 55 cents per mile
Driver receives $2.13 per hour plus tips.

Driver uses company car
Driver only receives $2.13 per hour plus tips.

Only if tips were enough to make up the difference to minimum wage. At many big 3 stores, including mine, that pay scheme would very often fall short.

Even though it would be legal, you would be hard pressed to find competent and reliable employees at that pay.

:lol: I bet I could! And I bet they would not be whining about it either. At 5-6 miles round trip average, they are getting $2.50 to $3.00 per delivery, plus tips, plus $2.13. Sounds like they would still make about $15-20 an hour.

You seem to think that being a delivery driver is some sort of specialized skill. It isn’t. I traded delivery for working in the store last night so an in store person could try delivery. I gave him my GPS and flashlight. We got slammed. He had NO problems, raked in over $15 an hour not counting his hourly wage, and had a blast. Lots more fun than earning minimum in the store.

You just think too highly about delivering. It ain’t rocket science and it is compensated VERY well.