The owner of Domino’s Pizza argues that arbitration is proper in a delivery driver’s class action seeking compensation for vehicle expenses
MBR Management Corporation filed a motion to stay proceedings on May 9 through attorneys Rodney Harrison, David Schenberg and Meredith Lopez of Ogletree Deakins Nash Smoak & Stewart PC in St. Louis.
The defendant is asking the court to stay proceedings pending decisions out of the U.S. Supreme Court in Lewis v Epic Systems Corporation, Morris v Ernst & Young LLP and N.L.R.B. v Murphy Oil USA, Inc. The cases involve an arbitration issue that may be dispositive of this case.
MBR Management filed a memorandum in support of its motion to stay proceedings, arguing that plaintiff Jesse Tourville signed an agreement stating that he would bring any legal action only in arbitration and only on an individual basis.
“Rather than start down the road of such complex litigation, MBR requests that this Court await the decision of the Supreme Court,” the memorandum states. “The Supreme Court’s decision will likely render unnecessary any briefing of the arbitration issue in this case, and may dispose of the litigation itself.”
Tourville filed the complaint for himself and all others similarly situated on April 11, arguing that delivery drivers were not compensated for vehicular wear and tear, gas and other driving-related expenses.
Tourville worked at the Troy Domino’s Pizza and alleges that he and others paid “out-of-pocket” expenses of $13.38 per hour to provide, operate and maintain their vehicles, losing approximately $1.43 each hour they worked on the road.
The plaintiffs allege MBR Management failed to compensate at least the tipped minimum wage rate for each hour worked on the road and failed to properly reimburse delivery drivers’ expenses including cost for gasoline, vehicle depreciation, insurance, maintenance and repairs.
Tourville filed a motion to conditionally certify the proposed class on April 21 through attorneys Jeremiah Frei-Pearson, Todd Garber and Chantal Khalil of Finkelstein Blankinship, Frei-Pearson & Garber LLP in New York.
He asks the court to order the defendant to identify all delivery drivers it has employed at any time during the class period.
In his memorandum in support of the motion to conditionally certify the class, he argues that the defendant consented to conditional certification of a nearly identical Fair Labor Standards Act (FLSA) collective action in another case involving delivery drivers who alleged minimum wage violations.
In this case, Tourville argues, “By systematically under-reimbursing delivery drivers for the significant automotive expenses they incur while delivering pizzas, MBR pushes the drivers’ effectively hourly wage well below the minimum required by the FLSA and state minimum wage laws.”
Tourville adds that although discovery has not yet begun, the evidence justifying conditional certification is compelling. He claims he and MBR delivery driver Alexander Smith, who has opted-in to the collective action, testify that they performed the same work and are paid and reimbursed the same way.
The memorandum states that delivery drivers are paid at or near the minimum wage and are reimbursed on a per-delivery basis “that is insufficient to cover their actual driving expenses, thereby forcing the drivers’ total compensation to fall below minimum wage.”
The plaintiff argues that delivery drivers incur per-mile expenses at a flat rate of $0.75 to $1.20 per delivery.
However, he alleges delivery drivers’ expenses are higher than other drivers “because they regularly drive in urban areas, in stop-and-go traffic, in inclement weather, making multiple stops, frequently turning their engines on and off and – as a result – experience lower gas mileage, more rapid vehicle depreciation, higher insurance rates, and greater vehicular expenses than the average business driver.”
“Because Defendant does not track delivery drivers’ actual expenses, it should provide a reimbursement at least equal to the IRS reimbursement rate,” the memorandum states, which ranges between $0.535 per mile and $0.575 per mile.
On May 10, MBR Management filed a motion for an extension of time to file a response to Tourville’s motion for conditional certification.
The defendant asks the court to extend its deadline to respond to June 26.
On May 19, Tourville filed a memorandum in opposition to the defendant’s motion for extension of time to respond.
“A stay would serve no purpose other than to financially burden Plaintiff and the other members of the proposed collective and class action by allowing Defendant to preserve an unlawful status quo where it systematically under-reimburses its pizza delivery drivers for the expenses it forces them to incur, thereby pushing the drivers’ hourly wages far below the minimum …” the memorandum states.
The plaintiff further argues that arbitration agreements that ban collective actions in wage and hour agreements are unenforceable.
“Defendant’s stay request is predicated on the hope that the Supreme Court may reverse the Seventh Circuit’s holding in the next term,” the memorandum states. “However, there is no reason to believe the Supreme Court will overrule this Circuit’s well-considered precedent, and workers would be substantially harmed by the delay caused by a stay.”
U.S. District Court for the Southern District of Illinois case number 3:17-cv-373