A Massachusetts federal court has granted certification to a class of former and current delivery drivers for Domino’s Pizza Inc. who allege that they should have received the delivery charge paid by customers. Mooney v. Domino’s Pizza, Inc., No. 14-13723 (D. Mass., order entered September 1, 2016). The plaintiffs also asserted that they should have been paid minimum wage for “inside work” unrelated to deliveries, rather than the lower minimum wage for tipped workers.

The court focused on whether the plaintiffs’ claims were common to all members of the class. Domino’s and its franchisee argued the classification of the delivery fee as a service charge—which is to compensate employees for service and to be remitted to the employees under Massachusetts law—or an administrative fee “depends on the circumstances of each customer’s encounter with the delivery fee,” thus precluding commonality. The court disagreed, finding that “the plain language of the statute suggests that the inquiry is focused primarily on the employer’s designation of the fee it charges and any written description of that charge, and not on the customer’s individual circumstances or statements by an individual employee to a particular customer.”

The court also considered whether the employees’ wage claims for “inside work” were common to each member of the class, focusing on whether that work constituted more than 20 percent of the employees’ time and whether the work was related to deliveries, the tipped aspect of their duties. The franchisee pointed to some “handyman-type work” one employee completed to argue that each class member’s workload required individual examination and was not common to all class members. “This argument turns logic on its head,” the court stated. “That drivers performed some additional work that [the franchisee and its owner] concede should have been paid at the minimum wage rate does not prevent these defendants from seeking to establish a defense that the other ‘inside work’—such as ‘answering phones, preparing food, assembling pizza boxes, and the like’ []—was related to the delivery work.” The court found that if Domino’s and its franchisee failed to keep adequate records of the employees’ tasks, the plaintiffs could use representative testimony from employees as common proof. “[T]hat some class members may have been engaged in different duties while working inside does not defeat commonality,” the court held.


Issue 616

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