Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Meetz v. Wisconsin Hospitality Group LLC

United States District Court, E.D. Wisconsin

August 29, 2017

WAYNE MEETZ, Plaintiff,
v.
WISCONSIN HOSPITALITY GROUP LLC, et al., Defendants.

          DECISION AND ORDER GRANTING CONDITIONAL CERTIFICATION AND NOTICE TO POTENTIAL FAIR LABOR STANDARDS ACT PLAINTIFFS

          WILLIAM C. GRIESBACH, CHIEF JUDGE UNITED STATES DISTRICT COURT.

         Plaintiff 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.

         BACKGROUND

         Defendants 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.

         At all 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.[1] 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 107-08.

         Defendants 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 vehicle expenses).

         Meetz 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.

         Pl.'s 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.

         ANALYSIS

         I. Conditional Certification

         The 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.

         “The 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, 2008)).

         In the 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, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.