A class of former Domino’s Pizza LLC delivery drivers has succeeded in gaining conditional collective action certification in a Fair Labor Standards Act lawsuit in which they allege that the gigantic pizza chain paid them below the minimum wage, through the device of making them buy their own gasoline!  The case is Luiken et al v. Domino’s Pizza LLC. and was filed in the U.S. District Court for the District of Minnesota.

In the conditional certification stage, the burden for the plaintiffs is light.  They need to present some evidence that an overall policy or practice of the company was applied to all of them and from the application of that policy/practice, they were improperly paid.  Once they do that, they receive conditional certification, which can be challenged at a later time by the employer in a de-certification motion.

In response, Domino’s took the “traditional” employer position/defense, i.e. that conditional certification is inappropriate because the plaintiffs are not similarly situated and the court would need to engage in individualized examinations of the various employee claims.  The company also claimed that additional individual factors, such as the particular car model, route and total mileage affected reimbursements for gasoline expenses

The plaintiffs argued that there were but minor regional differences and were really nothing more than computational variations on a common theme, which was the overall unfair and wage-hour violative policy.  The court agreed with the plaintiffs, noting that at the conditional certification stage, all that is required of a class of putative plaintiffs is they establish a reasonable basis for their claims, meaning that all plaintiffs were subject to the same policy or decision,  This lenient standard was met through the submission of twelve affidavits from employees in four states. All of the affidavits (not surprisingly) made the same allegations and assertions.  The court also ordered the notice be sent to all possible class members, to stop the statutes of limitation from running, as each plaintiff’s own statute of limitations and recovery period is determined by the specific date he/she opts in to the case.”

This lawsuit highlights the fact that a collective action can emanate from anywhere, even from a company policy that, at first blush, appears innocuous and of little concern.

We will wait and see if the plaintiffs end up saying “fill it up!” but not referring to their gas tanks, but rather their wallets.