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Suit accuses local Dominos owner of violating labor act

Suit accuses local Dominos owner of violating labor act

Former driver alleges he was paid less than minimum wage

February 11th, 2018 by Lynn LaRowe in Texarkana News

A lawsuit filed in a Texarkana federal court last week accuses the owner of multiple area Dominos Pizza franchises of paying delivery drivers less than minimum wage in violation of the Fair Labor Standards Act.

The complaint was filed Wednesday on behalf of Bruce Gentry, a former delivery driver who worked at a Dominos store in Mount Pleasant, Texas, from September 2015 to October 2017. Named as a defendant in the complaint is EPSI Inc. According to EPSI's website, EPSI stands for "excellence in product, service and image." The site states that the DoSoto, Texas-based company operates 31 stores in 25 cities including Hope, Ark., and Texarkana, New Boston, Atlanta, Longview, Athens, Bonham, Canton, Cedar Hill, Dallas, DeSoto, Ennis, Henderson, Jacksonville, Kilgore, Lancaster, Lindale, Midlothian, Mount Pleasant, Paris, Red Oak, Royse City, Sulphur Springs, Tyler and Waxahachie in Texas.

According to the complaint, EPSI pays its tipped delivery drivers $6 per hour, even though the drivers allegedly spend more than 20 percent of their time performing "nontipped" duties such as cleaning, answering phones, preparing orders and folding pizza boxes. Paying employees less than the federal minimum wage of $7.25 when they spend more than 20 percent of their time completing tasks for which they cannot expect to be tipped is a violation of the Fair Labor Standards Act.

The complaint further alleges that the rate at which EPSI reimburses drivers for mileage doesn't adequately compensate employees for the costs of fuel, maintainence and auto insurance on the private vehicles they use for delivery work.

"Defendant has reimbursed delivery drivers less than the reasonably approximate amount of their automobile expenses to such an extent that it diminishes these employees' wages beneath the federal minimum wage," the complaint alleges.

The complaint estimates that Gentry was paid about 19 cents per mile delivering pizzas.

"During the recovery time period, the lowest IRS business mileage reimbursement rate has been $.535 (53.5 cents) per mile, which reasonably approximated the automobile expenses incurred delivering pizzas. Using that IRS rate as a reasonable approximation of plaintiff Gentry's automobile expenses, every mile driven on the job decreased his net wages by approximately $.345 (34.5 cents, or 53.5 minus 19 cents) per mile. Considering plaintiff Gentry's estimate of approximately five average miles per delivery, defendant under-reimbursed him about $1.725 per delivery," the complaint alleges.

"During his employment by defendant as a delivery driver, plaintiff Gentry typically averaged approximately two deliveries per hour. Thus, plaintiff Gentry consistently 'kicked back' to defendant $3.45 per hour ($1.725 per delivery at two deliveries per hour), for an effective hourly wage rate of about $3.80 ($7.25 per hour minus the $3.45 kickback), presuming for this purpose that defendants' tip credit did not violate the '20 percent rule.'"

According to the complaint, the American Automobile Association estimates the cost of owning and operating a sedan is 53-58 cents per mile when driven 15,000 miles per year.

The suit seeks certification as a collective action under the Fair Labor Standards Act. Other delivery drivers who believe they were wronged in the manner Gentry alleges can "opt-in" to a collective action, become a party to the suit and receive damages, if they are ultimately awarded.

"The number and identity of other plaintiffs yet to opt-in may be ascertained from defendant's records, and potential class members may be notified of the pendency of this action via mail or email," the complaint states.

The complaint was filed Wednesday on Gentry's behalf in the Texarkana Division of the Eastern District of Texas by lawyers with the following firms: Forester Haynie of Dallas; Weinhaus & Potashnick of St. Louis; and Paul LLP of Kansas City, Mo.

EPSI has not filed a response. The case is assigned to U.S. District Judge Robert Schroeder III.

llarowe@texarkanagazette.com

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