Domino’s Franchisee Delivers Skimpy Paychecks, Driver Says

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By Jon Steingart

A Domino’s Pizza franchisee in the Cincinnati area doesn’t pay delivery drivers the full wages to which they’re entitled, according to a lawsuit filed June 23 in federal court ( Mullins v. S. Ohio Pizza, Inc. , S.D. Ohio, No. 1:17-cv-00426, 6/23/17 ).

Driver Paul Mullins receives tips as part of his compensation. The Fair Labor Standards Act allows employers to pay less than the standard minimum wage by factoring a portion of employees’ tip income toward their minimum wage obligation as long as the business complies with certain rules governing the tip credit.

Employees must receive at least minimum wage through a combination of tips from customers and regular pay from the employer. Southern Ohio Pizza Inc. improperly paid less than the standard minimum wage during work periods when drivers couldn’t earn tips, such as training sessions, according to Mullins’ complaint filed in the U.S. District Court for the Southern District of Ohio.

Domino’s Pizza Inc. is also named as a defendant. It is liable as a joint employer because it directs employment policies for franchisees such as Southern Ohio Pizza, the complaint says.

The test for holding a company liable as a joint employer is under scrutiny, as the U.S. Court of Appeals for the District of Columbia Circuit is expected to rule soon in a closely watched case. Browning-Ferris Industries of California appealed a determination by the National Labor Relations Board that it was a joint employer of workers hired by a staffing company who wanted to join a union because it had “indirect control” over them. This was a shift from the board’s decades-old test that companies must exercise “direct and immediate control” to be considered joint employers.

Domino’s earlier this year agreed to a consent judgment in a lawsuit brought by New York Attorney General Eric Schneiderman (D) that sought to hold it liable as a joint employer for wage and hour violations by franchisees. It directed employment policies for franchisees, including requiring them to use flawed payroll software, Schneiderman said.

Andrew Biller and Andrew Kimble with Markovits, Stock & DeMarco LLC in Cincinnati represent Mullins. An attorney hasn’t entered an appearance for Southern Ohio Pizza or Domino’s.

To contact the reporter on this story: Jon Steingart in Washington at jsteingart@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Chris Opfer at copfer@bna.com

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