Is your Employer breaking Federal Minimum Wage Law?

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PostPosted: Thu Nov 19, 2009 10:31 am
Is your Employer breaking Federal Minimum Wage Law?

Federal Law clearly states that pizza drivers MUST be reimbursed at least the (IRS) standard business mileage rate of 56.5 cents per mile (2013) or for their actual costs if they are paid minimum wage or less. We have also found that "Tips in excess of statutory tip credit may not be credited against uniform purchase and maintenance costs"

What this all means is that if you are paid minimum wage or less, your mileage or commission or reimbursement MUST be at least 56.5 cents per mile or equal to your actual costs for miles driven while delivering pizza. If not, they are ripping you off and BREAKING FEDERAL LAW!

Here is all the law info found on the matter:

From page 31 of the DOL Field Operations Handbook (FOH) chapter 30

http://www.dol.gov/whd/FOH/FOH_Ch30.pdf

Car expenses - employee‘s use personal car on employer‘s business.

In some cases it is necessary to determine the costs involved when employees use their cars on their employer‘s business in order to determine MW compliance. For example, car expenses are frequently an issue for delivery drivers employed by pizza or other carry-out type restaurants.
(a) As an enforcement policy, the Internal Revenue Service (IRS) standard business mileage rate found in IRS Publication 917, "Business Use of a Car" may be used (in lieu of actual costs and associated recordkeeping) to determine or evaluate the employer‘s wage payment practices for FLSA purposes. The IRS standard business mileage rate (currently 28 cents per mile)(EDIT: Now it is 55.5 cents per mile as of 2012) represents depreciation, maintenance and repairs, gasoline (including taxes), oil, insurance, and vehicle registration fees. In situations where the IRS rate changes during the investigation period, the applicable rates should be applied on a pro-rata basis.
(b) The IRS standard business mileage rate may be used in lieu of actual costs for FLSA purposes whether or not the employee will be able to take a deduction on his or her tax return for the business use of the employee‘s car.


From page 38 of the DOL Field Operations Handbook (FOH) chapter 30

http://www.dol.gov/whd/FOH/FOH_Ch30.pdf

"Tips in excess of statutory tip credit may not be credited against uniform purchase and maintenance costs"


From: Fact Sheet #16: Deductions From Wages for Uniforms and Other Facilities Under the Fair Labor Standards Act (FLSA)

http://www.dol.gov/whd/regs/compliance/whdfs16.pdf

Other Items: Employers at times require employees to pay or reimburse the employer for other items. The cost of any items which are considered primarily for the benefit or convenience of the employer would have the same restrictions as apply to reimbursement for uniforms. In other words, no deduction may be made from an employee‘s wages which would reduce the employee‘s earnings below the required minimum wage or overtime compensation.
Some examples of items which would be considered to be for the benefit or convenience of the employer are tools used in the employee‘s work, damages to the employer‘s property by the employee or any other individuals, financial losses due to clients/customers not paying bills, and theft of the employer‘s property by the employee or other individuals. Employees may not be required to pay for any of the cost of such items if, by so doing, their wages would be reduced below the required minimum wage or overtime compensation. This is true even if an economic loss suffered by the employer is due to the employee‘s negligence.


Employers may not avoid FLSA minimum wage and overtime requirements by having the employee reimburse the employer in cash for the cost of such items in lieu of deducting the cost from the employee's wages.

Typical Problems

(1) A minimum wage employee working as a cashier is illegally required to reimburse the employer for a cash drawer shortage. (2) An employer improperly requires tipped employees to pay for customers who walk out without paying their bills or for incorrectly totaled bills. (3) An employer furnishes elaborate uniforms to employees and makes them responsible for having the uniforms cleaned. (4) An employee driving the employer's vehicle causes a wreck, and the employer holds the employee responsible for the repairs, thereby reducing the employee's wages below the minimum wage. (5) A security guard is required to purchase a gun for the job, and the cost causes him/her to not earn the minimum wage. (6) The cost of an employer-required physical examination cuts into an employee's minimum wage or overtime.


If your employer is BREAKING FEDERAL LAW by making YOU pay out of pocket to deliver THEIR product, you should make a MINIMUM WAGE VIOLATION complaint to the Department of Labor.

Print out THIS POST and have it in front of you when you call. Employers ARE NOT REQUIRED to pay you mileage! BUT, they ARE REQUIRED to pay at least MINIMUM WAGE. They are also REQUIRED to reimburse you for "The cost of any items which are considered primarily for the benefit or convenience of the employer" if that cast makes your adjust wage go below minimum wage.

If you don‘t know how to figure this stuff out ASK! We will help you!

DEPARTMENT OF LABOR Wage and Hour Division Website: http://www.wagehour.dol.gov and/or call our toll-free information and helpline, available 8 a.m. to 5 p.m. in your time zone, 1-866-4USWAGE (1-866-487-9243).
Last edited by gregster on Mon Nov 23, 2009 10:31 pm, edited 1 time in total.
"If you ain't on the road, you ain't makin' money!" - gregster

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PostPosted: Mon Nov 23, 2009 10:29 pm
From:

Wages and Hours Worked: Minimum Wage and Overtime Pay
http://www.dol.gov/compliance/guide/min ... m#BasicPro

Who is Covered
The Fair Labor Standards Act (FLSA) is administered by the Wage and Hour Division (WHD). The Act establishes standards for minimum wages, overtime pay, recordkeeping, and child labor. These standards affect more than 130 million workers, both full‑time and part‑time, in the private and public sectors.

The Act applies to enterprises with employees who engage in interstate commerce, produce goods for interstate commerce, or handle, sell, or work on goods or materials that have been moved in or produced for interstate commerce. For most firms, a test of not less than $500,000 in annual dollar volume of business applies (i.e., the Act does not cover enterprises with less than this amount of business).

However, the Act does cover the following regardless of their dollar volume of business: hospitals; institutions primarily engaged in the care of the sick, aged, mentally ill, or disabled who reside on the premises; schools for children who are mentally or physically disabled or gifted; preschools, elementary and secondary schools, and institutions of higher education; and federal, state, and local government agencies.

Employees of firms that do not meet the $500,000 annual dollar volume test may be covered in any workweek when they are individually engaged in interstate commerce, the production of goods for interstate commerce, or an activity that is closely related and directly essential to the production of such goods.

Basic Provisions/Requirements
The Act requires employers of covered employees who are not otherwise exempt to pay these employees a minimum wage of not less than $7.25 per hour effective July 24, 2009. Youths under 20 years of age may be paid a minimum wage of not less than $4.25 an hour during the first 90 consecutive calendar days of employment with an employer. Employers may not displace any employee to hire someone at the youth minimum wage. For additional information regarding the use of the youth minimum wage provisions, see the Wage and Hour Division Fact Sheet #32: Youth Minimum Wage – FLSA(http://www.dol.gov/whd/regs/compliance/whdfs32.pdf).

Employers may pay employees on a piece‑rate basis, as long as they receive at least the equivalent of the required minimum hourly wage rate and overtime for hours worked in excess of 40 hours in a workweek. Employers of tipped employees (i.e., those who customarily and regularly receive more than $30 a month in tips) may consider such tips as part of their wages, but employers must pay a direct wage of at least $2.13 per hour if they claim a tip credit. They must also meet certain other requirements. For a full listing of the requirements an employer must meet to use the tip credit provision, see the Wage and Hour Division Fact Sheet #15: Tipped Employees Under the FLSA.(http://www.dol.gov/whd/regs/compliance/whdfs15.pdf)



If your store accepts credit cards, you are likely covered by the FLSA and federal minimum wage laws.
"If you ain't on the road, you ain't makin' money!" - gregster

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PostPosted: Sat May 28, 2011 9:32 pm
Does your employer force you to pay for uniforms? If you are paid minimum wage or less (tip credit) and you are still required to pay for uniform items, especially those that have a company logo or name on them), then your employer is likely breaking federal minimum wage law.

Read this:

Fact Sheet #16: Deductions From Wages for Uniforms and Other Facilities Under the Fair Labor Standards Act (FLSA)

This fact sheet provides general information concerning the application of the FLSA to deductions from employees' wages for uniforms and other facilities.

Characteristics

The FLSA does not allow uniforms, or other items which are considered to be primarily for the benefit or convenience of the employer, to be included as wages. Thus, an employer may not take credit for such items in meeting his/her obligations toward paying the minimum wage or overtime.

Requirements

Uniforms: The FLSA does not require that employees wear uniforms. However, if the wearing of a uniform is required by some other law, the nature of a business, or by an employer, the cost and maintenance of the uniform is considered to be a business expense of the employer. If the employer requires the employee to bear the cost, it may not reduce the employee's wage below the minimum wage of $7.25 per hour effective July 24, 2009. Nor may that cost cut into overtime compensation required by the Act.

For example, if an employee who is subject to the statutory minimum wage of $7.25 per hour (effective July 24, 2009) is paid an hourly wage of $7.25, the employer may not make any deduction from the employee's wages for the cost of the uniform nor may the employer require the employee to purchase the uniform on his/her own. However, if the employee were paid $7.75 per hour and worked 30 hours in the workweek, the maximum amount the employer could legally deduct from the employee's wages would be $15.00 ($.50 X 30 hours).

The employer may prorate deductions for the cost of the uniform over a period of paydays provided the prorated deductions do not reduce the employee's wages below the required minimum wage or overtime compensation in any workweek.


And don't let them tell you that you can pay for it out of your tips!

From page 38 of the DOL Field Operations Handbook (FOH) chapter 30

http://www.dol.gov/esa/whd/FOH/FOH_Ch30.pdf

"Tips in excess of statutory tip credit may not be credited against uniform purchase and maintenance costs"

If you are being charged for uniforms and believe that you shouldn't be, I suggest that you print out this fact sheet and show it to your boss. If they still insist on charging you, then just keep a copy of the payroll deduction and or receipt and then report the problem to the DOL:

For additional information, visit our Wage and Hour Division Website: http://www.wagehour.dol.gov and/or call our toll-free information and helpline, available 8 a.m. to 5 p.m. in your time zone, 1-866-4USWAGE (1-866-487-9243).


They will likely refer you to the nearest local DOL office near you.

If you are worried about retaliation for filing a complaint, read this:

Whistleblower and Non-Retaliation Protections:
Whistleblower Protections


DOL Home > Compliance Assistance > By Topic > Whistleblower Protections >

http://www.dol.gov/compliance/topics/wh ... ctions.htm

OVERVIEW

The Occupational Safety and Health Act (OSH Act) and a number of other laws protect workers against retaliation for complaining to their employers, unions, the Occupational Safety and Health Administration (OSHA), or other government agencies about unsafe or unhealthful conditions in the workplace, environmental problems, certain public safety hazards, and certain violations of federal provisions concerning securities fraud, as well as for engaging in other related protected activities. Whistleblowers may not be transferred, denied a raise, have their hours reduced, or be fired or punished in any other way because they have exercised any right afforded to them under one of the laws that protect whistleblowers.

Pursuant to most of these laws, discrimination complaints must be filed within 30 days of the alleged reprisal. OSHA Area Office staff can explain the protections under the whistleblower laws and deadlines for filing complaints.

Workers who believe that they have been subject to retaliation for engaging in health and safety actions that are protected under the OSH Act may file complaints with a federal OSHA Area Office representative. In those states operating OSHA-approved State Plan (except those plans covering only public sector employees), private sector employees may file complaints for retaliation with either a federal OSHA Area Office representative or with a State Plan representative. States with OSHA-approved State Plans also protect state and local government employees against retaliation, but in those states, public sector workers can file complaints for retaliation only with State Plan representatives.
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PostPosted: Sun Aug 28, 2011 1:29 pm
So heres my situation

I work at a fairly large Pizza Chain. I get paid 7.25 an Hour. I deliver maybe 8 times per 5 hour shift. Each delivery has averaged about 8 miles per delivery. The employer charges customers either 3.00 or 4.00 dollars per delivery based on distance. Of that I get either .50 or 1.00 depending on the distance.
Should he have to pay me more?
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PostPosted: Mon Aug 29, 2011 9:50 pm
mikehoughton wrote:So heres my situation

I work at a fairly large Pizza Chain. I get paid 7.25 an Hour. I deliver maybe 8 times per 5 hour shift. Each delivery has averaged about 8 miles per delivery. The employer charges customers either 3.00 or 4.00 dollars per delivery based on distance. Of that I get either .50 or 1.00 depending on the distance.
Should he have to pay me more?


8 deliveries x 8 miles = 64 miles
8 deliveries x $1 = $8

$8 / 64 miles = 12.5 cents per mile

If it costs you more than 12.5 cents per mile to operate your car, then you are being underpaid.

The average price for gas here is $3.47 today. Say your car gets about 19 MPG city. (http://www.fueleconomy.gov/feg/findacar.htm)

$3.47 / 19 MPG = 18.2 cents per mile just for gas alone. You are DEFINITELY being under reimbursed for your car expenses (and that is even ignoring your costs for tires, oil, maintenance, depreciation, insurance and licensing.)

Ask the owner if YOU can drive HIS car using HIS gas for just 12.5 cents per mile!!! :lol:
"If you ain't on the road, you ain't makin' money!" - gregster

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PostPosted: Tue Aug 30, 2011 11:24 am
So is there any legal recourse? Can I legitimately go in there and ask for money? FYI I asked him about the difference in what he told me during the interview (1.50/2.00)per delivery and what the manager gives us(the aforementioned .50/1.00) and he didnt know she did that, lol so last night everyone got bumped up to 1.50/2.00 for the foreseeable future thanks to me asking questions. One week on the job and I got everyone a pay raise.
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PostPosted: Tue Aug 30, 2011 2:58 pm
mikehoughton wrote:So is there any legal recourse?


Yes. If you are eligible, you could join one of the existing lawsuits. You could get your own lawyer and start your own case. Both of these options don't seem feasible for you since you haven lost enough money yet to make the payoff worth the lawyers time. (They get a percentage of what you win.) You could call the DOL and ask them to investigate a wage and hour claim (because your net pay is too low). In the past the DOL has been reluctant to investigate these claims, but they seem to be increasing 'enforcement' a lot lately, so you may be better results than in the past.

Can I legitimately go in there and ask for money?


Sure! I already showed you how to do the math. The current IRS mileage rate is 55.5 cents per mile. AAA breaks it down even more: How much are you really paying to drive? You could ask for more reasonable payments that fully reimburse your out of pocket expenses, and suggest that if the owner does not pay up that you may seek a DOL wage and hour audit of everyone's pay over the matter. Also remember that the DOL has a 'whistle-blower' protection program, and that if you get fired over this you can sue for that too!

FYI I asked him about the difference in what he told me during the interview (1.50/2.00)per delivery and what the manager gives us(the aforementioned .50/1.00) and he didnt know she did that, lol so last night everyone got bumped up to 1.50/2.00 for the foreseeable future thanks to me asking questions. One week on the job and I got everyone a pay raise.


Good for you! I wish more of our problems could be that easy to solve. Good luck getting the rest of the money that you deserve. Let us know how it turns out.
"If you ain't on the road, you ain't makin' money!" - gregster

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PostPosted: Wed Aug 31, 2011 2:55 pm
Gregster,

You were in a similar situation, so how have you handled this? I am just curious what your experience has been to this point. If you've already posted it somewhere else, then feel free to point me to that post as I am very miffed about being shorted $3 each time I make a run.

However, I have only claimed credit card tips to this point, but would gladly claim my cash tips if I could get the additional $3 a run.
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PostPosted: Thu Sep 01, 2011 1:23 am
hookemtms wrote:Gregster,

You were in a similar situation, so how have you handled this? I am just curious what your experience has been to this point. If you've already posted it somewhere else, then feel free to point me to that post as I am very miffed about being shorted $3 each time I make a run.

However, I have only claimed credit card tips to this point, but would gladly claim my cash tips if I could get the additional $3 a run.


I tried to unionize my store but failed. When they cut our pay, they also said we would be fired if caught discussing pay with anyone but a supervisor (which is illegal). Organizing a union amongst pizza drivers is difficult at best. Doing it when they think that can be fired for even talking to you is damn near impossible. I filed and won a case with the NLRB about the rule about not discussing pay, but the ruling took 6 months to come out, and by then the damage was done.

I did literally many hundreds of hours of reading since then trying to learn about which other laws protect us. Once I found what you read at the beginning of this thread, I posted it anywhere and everywhere I could. I decided that since I can't effectively fight alone, then the next best thing is to educate as many drivers as possible about how things SHOULD be. Finally a driver that did manage to unionize his store, but still failed to get any improvements, quit the unionizing route and got a driver friendly lawyer to file a lawsuit inspired by my research. Many similar lawsuits have since been filed. None has been won or settled yet, they are ongoing (AFAIK). You can read about them here:

Lawsuits against Domino's, Pizza Hut, and Papa John's
"If you ain't on the road, you ain't makin' money!" - gregster

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PostPosted: Thu Sep 08, 2011 3:33 pm
I just wanted to say thank you for all the information. I looked everywhere on line for this and it's all right here.
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