United States District Court, E.D. Wisconsin
DECISION AND ORDER GRANTING CONDITIONAL CERTIFICATION
AND NOTICE TO POTENTIAL FAIR LABOR STANDARDS ACT
WILLIAM C. GRIESBACH, CHIEF JUDGE UNITED STATES DISTRICT
Wayne Meetz brought this action against his employers,
Wisconsin Hospitality Group LLC and PH Hospitality Group LLC
d/b/a Pizza Hut, on his own behalf and on behalf of other
similarly situated pizza delivery drivers, who he claims were
subject to a common vehicle expense reimbursement policy that
failed to reasonably approximate their actual expenses,
resulting in their failure to receive the federal minimum
wage in violation of the Fair Labor Standards Act of 1938, 29
U.S.C. § 201 et seq. (FLSA). Presently before the Court
is Meetz's motion for conditional certification of a
collective action and court-facilitated notice to potential
class members. As part of this motion, Meetz requests that
this Court appoint his counsel of record as Collective Action
Counsel, approve his proposed notice to potential class
members, order Defendants to provide Collective Action
Counsel with an updated list of potential class members, and
establish a deadline for putative class members to opt into
this lawsuit. For the reasons that follow, Meetz's motion
for conditional certification and court-facilitated notice
will be granted.
operate seventy-three Pizza Hut restaurants across Wisconsin.
Weiss Dep. 31:9-13, ECF No. 92-1. PH Hospitality Group owns
and operates the individual restaurants, while Wisconsin
Hospitality Group provides management services for the
franchise group. Id. Currently, Defendants jointly
employ approximately 550 delivery drivers across the
seventy-three restaurants, and they have jointly employed
approximately 2, 486 drivers since September 30, 2013. Weiss
Decl. ¶ 6, ECF No. 101; Weiss Dep. 87-88. Drivers spend
the majority of their working time fulfilling customers'
delivery orders for pizza and other food items. Weiss Decl.
¶ 7. However, drivers also periodically perform
non-delivery tasks, such as preparing pizzas or serving as
host or hostess at the restaurants where they work.
Id. ¶ 8.
restaurants operated by Defendants, a driver's
compensation varies throughout each shift depending on
whether the driver is performing delivery work or
non-delivery work. Most drivers receive a base wage of $7.25
per hour while performing non-delivery work and $5.25 per
hour while performing delivery work, and Meetz no longer
seeks to include drivers paid at different rates in the
proposed class. Weiss Dep. 61:3-5. In addition to the base
wage, drivers performing delivery work also receive tips,
against which Defendants claim a $2 tip credit, and a per
delivery reimbursement fee. Id. at 71-72, 106. On a
single “run” from the restaurant, a driver will
make anywhere from one to four deliveries, and drivers
receive a reimbursement for each delivery that they
make. Weiss Decl. ¶ 19. Each store pays a consistent,
per delivery reimbursement fee to all of its drivers. Weiss
Dep. 110. Although the fee varies between $1 and $2 per
delivery, depending on the particular restaurant, the
majority of locations pay $1 per delivery. Id. at
pay drivers the per delivery reimbursement to defray the
costs of operating their delivery vehicles. Id. at
105:4-9. Rather than owning and operating a fleet of delivery
vehicles, Defendants require drivers to provide their own.
Id. at 88-89. Each driver must provide a vehicle
that complies with safety and maintenance requirements listed
in an Employee Handbook provided to drivers at all
restaurants operated by Defendants. Id. at 46-47;
see also Employee Handbook 40-41, ECF No. 92-5.
After a vehicle safety check, drivers must sign a form
acknowledging, “I agree it is solely my responsibility
to keep all aspects of my vehicle . . . in good condition in
compliance with all laws at all times.” Employee
Handbook 40. In practice, delivery drivers therefore
“incur vehicle expenses including fuel, oil changes,
brakes/pads, axel, tires, tire rotations, batteries,
insurance, registration, and other items necessary to meet
Pizza Hut's requirement to maintain the vehicle in clean
and good repair.” Meetz Decl. ¶ 9, ECF No. 44;
see also, e.g., Schuler Decl. ¶ 9, ECF No. 46
(opt-in plaintiff similarly declaring responsibility for
was employed by Defendants as a delivery driver at an
Appleton Pizza Hut location between January 26, 2015, and
November 19, 2015. Meetz Decl. ¶¶ 2-3. Meetz filed
this lawsuit on his own behalf, and on behalf of all other
delivery drivers he alleges to be similarly situated,
claiming that Defendants failed to reasonably approximate the
drivers' actual vehicle expenses and that the
drivers' compensation therefore fell below the federal
minimum wage. Compl., ECF No. 1; see also Am.
Compl., ECF No. 18. Since the filing of the Complaint on
September 30, 2016, a net total of 25 opt-in plaintiffs have
consented to join this action by filing written consent forms
with the Court. See ECF Nos. 3-4, 6, 8-9, 13, 17,
27-28, 32-33, 35, 38-40, 97; see also ECF Nos. 41,
98. In the motion currently before the Court, Meetz
originally asked for conditional certification of the
following collective action:
All persons who have worked as a delivery driver for a Pizza
Hut franchise operated by Wisconsin Hospitality Group, LLC
and PH Hospitality Group, LLC d/b/a/ Pizza Hut at any time
since September 30, 2013.
Mot. for Conditional Certification & Ct. Facilitated
Notice 1, ECF No. 43. After briefing on this motion, however,
Meetz indicates that he is “willing to narrow the
proposed collective class to those . . . that have paid . . .
employees an in-restaurant wage of $7.25 per hour and a
delivery wage of $5.25 per hour.” Pl.'s Reply 8,
ECF No. 108.
FLSA permits collective actions “against any employer .
. . by any one or more employees for and in behalf of himself
or themselves and other employees similarly situated.”
29 U.S.C. § 216(b). Unlike a typical class action suit
under Federal Rule of Civil Procedure 23, in which unwilling
plaintiffs must “opt out” of the class, a
collective action under Section 216(b) of the FLSA requires
employees or former employees to “opt in” to the
class by providing written consent to join the collective
action. Woods v. N.Y. Life Ins. Co., 686 F.2d 578,
579-80 (7th Cir. 1982) (discussing differences between Rule
23 class action and FLSA collective action). To implement the
opt-in procedure in an FLSA collective action, district
courts may, in their discretion, facilitate notice to
potential plaintiffs. See Hoffmann-La Roche Inc. v.
Sperling, 493 U.S. 165, 169 (1989); Woods, 686
F.2d at 580.
critical inquiry in determining whether a court should
exercise its discretion to authorize the sending of notice to
potential plaintiffs is whether the representative plaintiff
has shown that she is similarly situated to the potential
class plaintiffs.” Austin v. CUNA Mut. Ins.
Soc'y, 232 F.R.D. 601, 605 (W.D. Wis. 2006).
“Generally, in order to determine whether the
representative plaintiff is ‘similarly situated' to
potential opt-in plaintiffs, this Court follows a two-step
certification approach.” Ehmann v. Pierce Mfg.,
Inc., No. 16-CV-247, 2016 WL 5957275, at *2 (E.D. Wis.
Oct. 13, 2016) (citing Adair v. Wis. Bell, Inc., No.
08-CV-280, 2008 WL 4224360, at *8 (E.D. Wis. Sept. 11,
first stage, the court examines whether the plaintiff has
demonstrated a “reasonable basis” for believing
he is similarly situated to potential class members.
Miller v. ThedaCare Inc., No. 15-CV-506, 2016 WL
4532124, at *3 (E.D. Wis. Aug. 29, 2016). The plaintiff must
make “at least a modest factual showing” that
collective action is appropriate. Adair, 2008 WL
4224360, at *4. To establish that factual support, the
plaintiff may present affidavits, declarations, deposition
testimony, or other documents that “demonstrate some
‘factual nexus between the plaintiff and the proposed
class or a common policy that affects all the collective
members.'” Ehmann, 2016 WL 5957275, at *2
(quoting Nehmelman v. Penn Nat'l Gaming, Inc.,
822 F.Supp.2d 745, 750 (N.D. Ill. 2011)). Although the
“modest factual showing” standard is lenient, it
is not a “mere formality.” Adair, 2008
WL 4224360, at *3. Because “a plaintiff's discovery
demands upon conditional certification may impose ‘a
tremendous financial burden to the employer, ...