Preview
16-2024-CA-001156-AXXX-MA Div: CV-E
Filing # 193067248 E-Filed 02/29/2024 07:18:55 PM
IN THE CIRCUIT COURT OF THE
FOURTH JUDICIAL CIRCUIT IN AND
FOR DUVAL COUNTY, FLORIDA
CASE NO.
MICHAEL NUTTER, individually and
on behalf of others similarly situated,
Plaintiff,
CLASS REPRESENTATION
v.
FLYNN RESTAURANT GROUP, LP,
HUT AMERICAN GROUP, LLC, and
HUT FLORIDA, LLC d/b/a Pizza Hut,
Defendants.
CLASS ACTION COMPLAINT
Plaintiff, Michael Nutter, by his undersigned attorneys, individually and on
behalf of others similarly situated, alleges, with personal knowledge as to his own
actions, and upon information and belief as to those of others, as follows:
NATURE OF THE ACTION
1. This action seeks to redress the systematic policies and practices of
FLYNN RESTAURANT GROUP, LP (“Flynn”), HUT AMERICAN GROUP, LLC
(“Hut American”), and HUT FLORIDA, LLC (“Hut Florida”) (together,
“Defendants”) paying their delivery drivers hourly wages that are well below those
required by the Florida Constitution.
2. Flynn is the largest franchise operator in the world. See
https://www.qsrmagazine.com/news/flynn-restaurant-group-acquires-planet-fitness-
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ACCEPTED: DUVAL COUNTY, JODY PHILLIPS, CLERK, 03/01/2024 08:22:59 AM
franchise-rebrands-to-flynn-group/ (last accessed Feb. 28, 2024). It operates seven
(7) franchise brands in 44 states and two (2) countries. See https://flynn.com/ (last
accessed Feb. 28, 2024).
3. One of those brands is Pizza Hut. In 2021, Flynn signed a definitive
agreement to acquire 900+ Pizza Hut restaurants from Pizza Hut franchisee, NPC
International, Inc. See https://disclosure.spglobal.com/ratings/pt/regulatory/article/-
/view/type/HTML/id/2616955 (last accessed Feb. 28, 2024); https://flynn.com/pizza-
hut/ (last accessed Feb. 28, 2024). Flynn has since expanded internationally
acquiring 260+ Pizza Hut restaurants in Australia, making it the largest Pizza Hut
franchise operator in the world. See id. Flynn operates these Pizza Hut restaurants
through its subsidiary, Hut American. See
https://disclosure.spglobal.com/ratings/pt/regulatory/article/-
/view/type/HTML/id/2616955 (last accessed Dec. 20, 2023).
4. As of February 28, 2024, Defendants operate 153 Pizza Hut locations
in Florida, alone. See https://flynn.com/pizza-hut/ (last accessed Feb. 28, 2024).
5. Mr. Nutter is a hard-working employee who has worked for
Defendants since they acquired his former employer, NPC International, Inc. in
2021. During this time, Mr. Nutter has worked very hard; he delivered pizza in
inclement weather, and he always performed the tasks required by Defendants.
6. The Florida Constitution provides that “All working Floridians are
entitled to be paid a minimum wage that is sufficient to provide a decent and
healthy life for them and their families, that protects their employers from unfair
2
low-wage competition, and that does not force them to rely on taxpayer-funded
public services in order to avoid economic hardship.” Art. X., § 24(a), Fla. Const. As
the courts have long recognized, denying employees the minimum wage “is an abuse
which springs from [an employer’s] selfish disregard of the public interest.” W.
Coast Hotel Co. v. Parrish, 300 U.S. 379, 400, 57 S. Ct. 578, 585, 81 L. Ed. 703
(1937). Unfortunately, Defendants have refused to pay Mr. Nutter and his
colleagues the minimum wage mandated by Florida law, preferring instead to
selfishly pocket excess profits rather than to fairly pay its employees.
7. The Florida Constitution requires that employers pay their employees
minimum wage plus provide their employees with sufficient reimbursements for
employment-related expenses to ensure that employees’ hourly wages equal or
exceed the minimum wage after employment-related expenses (“kickbacks”) are
counted against the hourly wages. Further, the employer can take a “tip credit”
against its “tipped employee’s” wages, but can only utilize the “tip credit” for hours
in which the employee performs tip producing work.
8. Here, Defendants purported to pay its delivery drivers the “tipped
minimum wage” while on the road making deliveries and then the regular
minimum wage while in store performing non-tip producing work. However,
delivery drivers failed to receive all proper minimum wages as the result of at least
two illegal policies/practices.
9. First, Defendants had a policy/practice of failing to pay all “in-store”
(i.e. non-tip producing work) hours at the full minimum wage rate, instead paying
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the “tipped minimum wage rate.” This improper use of the “tip credit” causes
delivery drivers’ wages to fall below the applicable minimum wage during one or
more weeks.
10. Second, the delivery drivers who work(ed) for Defendants use their
own automobiles to deliver pizza and other food items to Defendants’ customers.
Instead of reimbursing delivery drivers for the reasonably approximate costs of the
business use of their vehicles, Defendants used a flawed method to determine
reimbursement rates that neither reimburse the drivers for their actual expenses,
nor at the IRS business mileage rate which is legally required and a reasonable
approximation of those expenses. This under-reimbursement causes their wages to
fall below the applicable minimum wage during some or all workweeks.
11. Plaintiff is one such delivery driver who has been adversely affected by
Defendants’ illegal wage practices and brings this case against Defendants for
violations of Art. X., § 24(a), Fla. Const. to recover minimum wages.
JURISDICTION and VENUE
12. Defendant Flynn is a Delaware Limited Partnership.
13. Defendant Hut American is a Delaware Limited Liability Company.
14. Defendant Hut Florida is a Delaware Limited Liability Company.
15. Based upon information and belief, Flynn operates its Pizza Hut brand
through its subsidiaries Hut American and Hut Florida.
16. Defendants operate approximately 153 Pizza Hut stores throughout
Florida, including the Pizza Hut location where Plaintiff worked.
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17. The Court has jurisdiction over this dispute because the Complaint
seeks damages in excess of $50,000.00 exclusive of interest, costs and attorneys’
fees.
18. Venue is proper in this Court as the causes of action accrued in Duval
County, Florida where Plaintiff worked for Defendants.
PARTIES and COVERAGE
19. Plaintiff has worked for Defendants as a delivery driver from
approximately 2021 through the present. Plaintiff works at Defendants’ Pizza Hut
store located at 12961 N MAIN ST STE 301, JACKSONVILLE, FL 32218.
20. During Plaintiff’s employment with Defendants, Defendants earned
more than $500,000.00 per year in gross sales.
21. During Plaintiff’s employment with Defendants, Defendants employed
two or more employees which handled goods, materials and supplies which had
travelled in interstate commerce.
22. Included in such goods, materials and supplies were food and drink
products, cash registers, cleaning supplies, marketing materials, signs and other
equipment and supplies needed to operate a pizza franchise and which originated
from outside the state of Florida.
23. Therefore, Defendants are each a covered enterprise as defined and
incorporated into the Florida Constitution.
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STATEMENT OF THE FACTS
Defendants’ Improper Classification of “In-Store Hours”
as “Delivery Driving” Hours
24. The primary function of Defendants’ Pizza Hut restaurants is to sell
pizza and other foods and beverages.
25. Defendants employs delivery drivers, including Plaintiff, all of whom
have the same job duty: to deliver pizzas and other food and beverages to customers.
26. Delivery drivers work inside the restaurant during certain hours and
work as delivery drivers at other times.
27. While working inside the restaurant, delivery drivers perform non-tip
producing work such as washing dishes, food and dough prep, cutting/boxing pizza,
mopping floors, cleaning walls, trash collection, folding boxes, and organizing
freezer inventory.
28. While on the road delivering pizzas, delivery drivers perform tip
producing work (i.e. delivering pizzas to Defendants’ customers).
29. For their in-store work, Defendants purport to pay delivery drivers the
minimum wage.
30. For their delivery work, Defendants utilize a “tip credit” and pay
delivery drivers the “tipped minimum wage.”
31. Because their in-store work consists of non-tip producing work,
Defendants are not permitted to utilize a “tip credit” for delivery drivers’ in-store
hours.
32. However, Defendants have improperly classified some “in-store” hours
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as “delivery driving” hours which has resulted in delivery drivers failing to receive
all “in-store” hours at the applicable minimum wage rate.
33. For example, attached as Exhibit 1 is a “Payroll Time Log” showing
Plaintiff’s time sheet for December 23, 24, and 25 of 2023. Pay code rate “01” is
Plaintiff’s “in-store” pay rate and pay code rate “02” is Plaintiff’s “on-the-road” pay
rate. Once a delivery driver makes the last delivery of his shift, he returns to the
store and his tips are rendered and “cashed” and his “bank” is reconciled. In the
column marked “Tips,” where currency is identified it reflects the time that the
delivery driver’s bank was reconciled, and tips cashed out to him. After such time,
the remainder of his shift is spent inside the store performing any remaining non-
tip producing duties until he clocks out.
34. Using December 23, 2023, in the attached Payroll Time Log as an
example, Plaintiff reconciled his bank by 6:19 p.m. at the latest. He then performed
0.18 hours of work. These hours necessarily must be in-store hours because they
succeed the reconciling of his bank. However, Defendants’ Payroll Time Log reflects
that these hours were coded “02” (i.e. delivery driving hours) meaning Defendants
took a tip credit on these hours when not permitted to do so.
35. This improper classification of “in-store” hours as “delivery driving”
hours occurred frequently resulting in unpaid minimum wages during one or more
weeks.
36. This improper classification of “in-store” hours as “delivery driving”
hours was a frequent complaint amongst Plaintiff’s colleagues. Indeed, Plaintiff
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complained about this issue to Defendants’ management on numerous occasions,
and nothing was done.
Defendants’ Flawed Automobile Reimbursement Policy
37. Defendants require their delivery drivers to maintain and pay for safe,
legally-operable, and insured automobiles when delivering pizza and other food
items.
38. Defendants’ delivery drivers incur(red) costs for gasoline, vehicle parts
and fluids, repair and maintenance services, insurance, depreciation, and other
expenses (“automobile expenses”) while delivering pizza and other food items for the
primary benefit of Defendants.
39. Pursuant to the Department of Labor Field Operations Handbook,
employers are required to either: (1) track and reimburse delivery drivers for their
actual expenses, or (2) reimburse delivery drivers at the IRS business mileage
reimbursement rate. Moreover, the IRS business mileage reimbursement rate
represents the reasonable approximation of delivery drivers’ actual expenses.
40. Pursuant to Defendants’ delivery driver reimbursement policy,
Plaintiff was reimbursed on a per-mile basis, but which was not based on Plaintiff’s
actual expenses. Plaintiff was reimbursed approximately 33 cents per mile.
Moreover, the reimbursement amount is below the IRS business mileage
reimbursement rate or a reasonable approximation of the cost to own and operate a
motor vehicle.
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41. During the applicable statute of limitations period (2019 – 2024), the
IRS business mileage reimbursement rate ranged between $.56 and $.67 per mile.
42. Likewise, reputable companies that study the cost of owning and
operating a motor vehicle and/or reasonable reimbursement rates, including the
AAA, have determined that the average cost of owning and operating a vehicle
ranged between $.62 and $.81 per mile during the same period for drivers who drive
15,000 miles per year. These figures represent a reasonable approximation of the
average cost of owning and operating a vehicle for use in delivering pizzas. See
https://exchange.aaa.com/wp-content/uploads/2019/09/AAA-Your-Driving-Costs-
2019.pdf (2019 driving cost analysis) and https://newsroom.aaa.com/wp-
content/uploads/2023/08/YDC-Fact-Sheet-FINAL-8.30.23-1.pdf (2023 driving cost
analysis).
43. However, the driving conditions associated with the pizza delivery
business cause even more frequent maintenance costs, higher costs due to repairs
associated with driving, and more rapid depreciation from driving as much as, and
in the manner of, a delivery driver. Defendants’ delivery drivers further experience
lower gas mileage and higher repair costs than the average driver used to
determine the average cost of owning and operating a vehicle described above due to
the nature of the delivery business, including frequent starting and stopping of the
engine, frequent braking, short routes as opposed to highway driving, and driving
under time pressures.
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44. Defendants’ reimbursement policy did not reimburse Plaintiff for even
his ongoing out-of-pocket expenses, much less other costs incurred to own and
operate his vehicle, and thus Defendants failed to reimburse Plaintiff at any
reasonable approximation of the cost of owning and operating his vehicle for
Defendants’ benefit.
45. Defendants’ failure to adequately reimburse Plaintiff’s automobile
expenses constitutes a “kickback” to Defendants such that the hourly wages it pays
to Plaintiff is not paid free and clear of all outstanding obligations to Defendants.
46. Defendants failed to reasonably approximate the amount of Plaintiff’s
automobile expenses to such an extent that Plaintiff’s net wages are diminished
beneath the Florida minimum wage requirements.
47. In sum, Defendants’ reimbursement policies and methodology fail to
reflect the realities of Plaintiff’s automobile expenses.
48. Defendants’ reimbursement formula has resulted in an unreasonable
underestimation of Plaintiff’s automobile expenses throughout the recovery period,
causing violations of the Florida minimum wage.
49. During the time Plaintiff performed deliveries on Defendants’ behalf,
Plaintiff was paid at or below the minimum wage.
50. During the time Plaintiff worked for Defendants as a delivery driver he
was reimbursed approximately 33 cents per mile. See Driver Activity Record
attached as Exhibit 2.
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51. During the relevant time period, the IRS business mileage
reimbursement rate ranged between $.56 and $.67 per mile, which reasonably
approximated the automobile expenses incurred delivering pizzas.
http://www.irs.gov/Tax-Professionals/Standard-Mileage-Rates. Using the lowest
IRS rate and the rate per mile Plaintiff was making per mile driven ($.33 per mile)
in effect during that period as a reasonable approximation of Plaintiff’s automobile
expenses, every mile driven on the job decreased his net wages by at least $.23
($.56 - $.33) per mile.
52. Because Defendants paid Plaintiff a gross hourly wage at or below the
applicable minimum wage, and because Plaintiff incurred unreimbursed automobile
expenses, Plaintiff “kicked back” to Defendants an amount sufficient to cause
minimum wage violations.
53. The net effect of Defendants’ flawed reimbursement policy is that
Defendants have willfully failed to pay the Florida minimum wage to Plaintiff.
Defendants thereby enjoys ill-gained profits at the expense of Plaintiff.
54. Indeed, Defendants have long been on notice that the wages it pays
delivery drivers violates minimum wage laws, reflecting their willful failure to pay
appropriate reimbursements. See, e.g., Zellagui v. MCD Pizza, Inc., 59 F.Supp.3d
712, 716 (E.D. Pa. Nov. 3, 2014) (“When minimum wage law requires an employer
to reimburse an employee for using the employee’s vehicle for the employer’s
benefit, the employer should reimburse the employee at the IRS per mile rate or
keep detailed records of the employees’ expenses to justify another reimbursement
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rate); Dep. of Labor Field of Operations Handbook § 30c15(a), available at
https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/FOH_Ch30.pdf.
55. Plaintiff now brings this lawsuit as a putative class action pursuant to
Art. X, Sec. 24(e) of the Florida Constitution and seeks the following: injunctive
relief, the recovery of the full amount of unpaid wages owed, liquidated damages,
costs, attorneys’ fees, and to any other relief which this Court deems just and
proper. Plaintiff hereby requests that all claims herein by tried by a jury of his
peers.
CLASS REPRESENTATION ALLEGATIONS
56. This action is maintainable as a class action pursuant to Florida Rules
of Civil Procedure Rule 1.220, (b)(1)-(3).
57. The Class consists of all delivery drivers employed by Defendants in
Florida within the applicable statute of limitations.
58. The Class is so numerous that joinder of all members is impracticable.
The number and identity of class members may be determined by Defendants’
records, but the class size likely exceeds 40 people.
59. There are substantial questions of fact and law common to Plaintiff
and all class members, including, inter alia, whether Defendants’ compensation
practices complied with Florida law, and the amount by which their hourly wages
were below Florida’s law.
60. The claims of Plaintiff are typical of the Class as his claims are the
exact claims that other members of the Class will have.
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61. Plaintiff will fairly and adequately protect the interests of the Class.
His claims span the breadth of issues raised in this action.
62. Class representative’s counsel are appropriately qualified to represent
the Class.
63. Joinder of class members’ individual actions is impractical because of
the limited ability of individual class members to institute separate suits and the
general nature of the underlying action and relief sought.
64. The prosecution of separate actions by individual class members would
create a risk of inconsistent results that could establish incompatible standards of
conduct for Defendants.
65. Defendants have acted and refused to act on grounds generally
applicable to the Class, making appropriate final injunctive relief with respect to
the Class as a whole.
66. Defendants’ liability for damages can be established by facts and
circumstances common to the Class as a whole and does not require the
examination of the Plaintiff’s individual circumstances.
67. Questions of law and fact common to members of the Class
predominate over any questions affecting only individual members.
68. A class action is superior in this case to other methods for a fair and
efficient adjudication of the controversy because: (A) the common interests of the
class members predominate over any individual interest in controlling prosecution
or control of separate actions; (B) no similar litigation between the parties
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concerning the controversy is known to have been commenced by members of the
Class; (C) concentrating litigation of this action in this Court is appropriate to
ensure appropriate, consistent, and efficient resolution of the issues raised in the
state where the offending conduct occurred, continues to occur, and could occur in
the future; and (D) there will be no significant difficulties in managing an action
involving this Class.
FIRST CLAIM FOR RELIEF
Violation of the Florida Constitution, Art. X, Sec. 24
69. Plaintiff and Class Members reassert their allegations set forth in
Paragraphs one (1) through sixty-eight (68) above and incorporate them by
reference into this first Claim of Relief.
70. Defendants systematically and willfully did not pay Plaintiff and the
Class the minimum wage to which they are entitled under Florida law because (1)
Defendants improperly utilized a tip credit during hours worked in which they were
not entitled to do so, and (2) Defendant did not provide reimbursements for driving-
related expenses that were equal to the driving-related expenses incurred by
Plaintiff and the Class.
71. Defendants should not have taken a tip credit on any “in-store” hours.
72. Additionally, Defendants should have utilized the standard IRS
business mileage reimbursement rate for delivery drivers’ vehicular expenses.
73. Under Florida law, Plaintiff and the Class are entitled to: injunctive
relief, the recovery of the full amount of unpaid wages owed, liquidated damages,
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costs, attorneys’ fees, and to any other relief which this Court deems just and
proper.
SECOND CLAIM FOR RELIEF
Declaratory Judgment, Fla. Stat. § 86.021
74. Plaintiff and Class Members reassert their allegations set forth in
Paragraphs (1) through sixty-eight (68) above and incorporate them by reference
into this second Claim of Relief.
75. Because of Defendants’ flagrant and systematic violations of Florida
law, Plaintiff and the Class have an actual, practical and present need for a
declaratory judgment as to the existence and definition of its rights under Florida
law.
76. Under Fla. Stat. § 86.021, Plaintiff and the Class respectfully request a
declaratory judgment that Defendants were not permitted to utilize a tip credit with
respect to any “in-store” hours worked, and that doing so violated Florida law.
77. Plaintiff and the Class further respectfully request a declaratory
judgment that Defendant’s reimbursement rate for delivery drivers, coupled with
their hourly wages, violates Florida law.
DEMAND FOR JURY TRIAL
55. Plaintiff, on behalf of herself and all others similarly situated,
demands a trial by jury of any and all issues in this action so triable.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays as follows:
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(a) That this Court award compensatory damages to Plaintiff and all class
members, including pre-judgment and post judgment interests;
(b) That this Court award liquidated damages to Plaintiff and all class
members;
(c) That this Court order Defendants to pay all of its delivery drivers at
least the full minimum wage for all “in-store” hours and order
Defendants to pay all of its delivery drivers a reimbursement rate
sufficient to ensure that all delivery drivers receive hourly wages equal
to or exceeding those mandated by Florida law;
(d) That this Court enjoin Defendants from utilizing a tip credit for
delivery drivers’ “in-store” hours and enjoin Defendants from paying
any of its delivery drivers a reimbursement rate insufficient to ensure
that the delivery driver receives hourly wages below those mandated
by Florida law;
(e) That this Court grant to Plaintiff and all class members their costs and
reasonable attorney’s fees;
(f) That this Court declare that Defendants’ compensation practices
described herein violates Florida law; and
(g) That this Court should grant such additional relief as the Court deems
just and proper.
Dated this 29th day of February, 2024.
Respectfully submitted,
16
/s/ C. Ryan Morgan
C. RYAN MORGAN, ESQ.
Florida Bar No.: 15527
/s/ Jolie N. Pavlos
JOLIE N. PAVLOS, ESQ.
Florida Bar No.: 0125571
Morgan & Morgan, P.A.
20 North Orange Avenue, Suite 1500
Orlando, Florida 32801
Telephone: (407) 418-2069
Facsimile: (407) 245-3401
E-mail: rmorgan@forthepeople.com
jpavlos@forthepeople.com
Attorneys for the Plaintiff(s)
17
EXHIBIT “1”
EXHIBIT “2”
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16-2024-CA-001156-AXXX-MA Div: CV-E Filing # 193067248 E-Filed 02/29/2024 07:18:55 PM IN THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT IN AND FOR DUVAL COUNTY, FLORIDA CASE NO. MICHAEL NUTTER, individually and on behalf of others similarly situated, Plaintiff, CLASS REPRESENTATION v. FLYNN RESTAURANT GROUP, LP, HUT AMERICAN GROUP, LLC, and HUT FLORIDA, LLC d/b/a Pizza Hut, Defendants. CLASS ACTION COMPLAINT Plaintiff, Michael Nutter, by his undersigned attorneys, individually and on behalf of others similarly situated, alleges, with personal knowledge as to his own actions, and upon information and belief as to those of others, as follows: NATURE OF THE ACTION 1. This action seeks to redress the systematic policies and practices of FLYNN RESTAURANT GROUP, LP (“Flynn”), HUT AMERICAN GROUP, LLC (“Hut American”), and HUT FLORIDA, LLC (“Hut Florida”) (together, “Defendants”) paying their delivery drivers hourly wages that are well below those required by the Florida Constitution. 2. Flynn is the largest franchise operator in the world. See https://www.qsrmagazine.com/news/flynn-restaurant-group-acquires-planet-fitness- 1 ACCEPTED: DUVAL COUNTY, JODY PHILLIPS, CLERK, 03/01/2024 08:22:59 AM franchise-rebrands-to-flynn-group/ (last accessed Feb. 28, 2024). It operates seven (7) franchise brands in 44 states and two (2) countries. See https://flynn.com/ (last accessed Feb. 28, 2024). 3. One of those brands is Pizza Hut. In 2021, Flynn signed a definitive agreement to acquire 900+ Pizza Hut restaurants from Pizza Hut franchisee, NPC International, Inc. See https://disclosure.spglobal.com/ratings/pt/regulatory/article/- /view/type/HTML/id/2616955 (last accessed Feb. 28, 2024); https://flynn.com/pizza- hut/ (last accessed Feb. 28, 2024). Flynn has since expanded internationally acquiring 260+ Pizza Hut restaurants in Australia, making it the largest Pizza Hut franchise operator in the world. See id. Flynn operates these Pizza Hut restaurants through its subsidiary, Hut American. See https://disclosure.spglobal.com/ratings/pt/regulatory/article/- /view/type/HTML/id/2616955 (last accessed Dec. 20, 2023). 4. As of February 28, 2024, Defendants operate 153 Pizza Hut locations in Florida, alone. See https://flynn.com/pizza-hut/ (last accessed Feb. 28, 2024). 5. Mr. Nutter is a hard-working employee who has worked for Defendants since they acquired his former employer, NPC International, Inc. in 2021. During this time, Mr. Nutter has worked very hard; he delivered pizza in inclement weather, and he always performed the tasks required by Defendants. 6. The Florida Constitution provides that “All working Floridians are entitled to be paid a minimum wage that is sufficient to provide a decent and healthy life for them and their families, that protects their employers from unfair 2 low-wage competition, and that does not force them to rely on taxpayer-funded public services in order to avoid economic hardship.” Art. X., § 24(a), Fla. Const. As the courts have long recognized, denying employees the minimum wage “is an abuse which springs from [an employer’s] selfish disregard of the public interest.” W. Coast Hotel Co. v. Parrish, 300 U.S. 379, 400, 57 S. Ct. 578, 585, 81 L. Ed. 703 (1937). Unfortunately, Defendants have refused to pay Mr. Nutter and his colleagues the minimum wage mandated by Florida law, preferring instead to selfishly pocket excess profits rather than to fairly pay its employees. 7. The Florida Constitution requires that employers pay their employees minimum wage plus provide their employees with sufficient reimbursements for employment-related expenses to ensure that employees’ hourly wages equal or exceed the minimum wage after employment-related expenses (“kickbacks”) are counted against the hourly wages. Further, the employer can take a “tip credit” against its “tipped employee’s” wages, but can only utilize the “tip credit” for hours in which the employee performs tip producing work. 8. Here, Defendants purported to pay its delivery drivers the “tipped minimum wage” while on the road making deliveries and then the regular minimum wage while in store performing non-tip producing work. However, delivery drivers failed to receive all proper minimum wages as the result of at least two illegal policies/practices. 9. First, Defendants had a policy/practice of failing to pay all “in-store” (i.e. non-tip producing work) hours at the full minimum wage rate, instead paying 3 the “tipped minimum wage rate.” This improper use of the “tip credit” causes delivery drivers’ wages to fall below the applicable minimum wage during one or more weeks. 10. Second, the delivery drivers who work(ed) for Defendants use their own automobiles to deliver pizza and other food items to Defendants’ customers. Instead of reimbursing delivery drivers for the reasonably approximate costs of the business use of their vehicles, Defendants used a flawed method to determine reimbursement rates that neither reimburse the drivers for their actual expenses, nor at the IRS business mileage rate which is legally required and a reasonable approximation of those expenses. This under-reimbursement causes their wages to fall below the applicable minimum wage during some or all workweeks. 11. Plaintiff is one such delivery driver who has been adversely affected by Defendants’ illegal wage practices and brings this case against Defendants for violations of Art. X., § 24(a), Fla. Const. to recover minimum wages. JURISDICTION and VENUE 12. Defendant Flynn is a Delaware Limited Partnership. 13. Defendant Hut American is a Delaware Limited Liability Company. 14. Defendant Hut Florida is a Delaware Limited Liability Company. 15. Based upon information and belief, Flynn operates its Pizza Hut brand through its subsidiaries Hut American and Hut Florida. 16. Defendants operate approximately 153 Pizza Hut stores throughout Florida, including the Pizza Hut location where Plaintiff worked. 4 17. The Court has jurisdiction over this dispute because the Complaint seeks damages in excess of $50,000.00 exclusive of interest, costs and attorneys’ fees. 18. Venue is proper in this Court as the causes of action accrued in Duval County, Florida where Plaintiff worked for Defendants. PARTIES and COVERAGE 19. Plaintiff has worked for Defendants as a delivery driver from approximately 2021 through the present. Plaintiff works at Defendants’ Pizza Hut store located at 12961 N MAIN ST STE 301, JACKSONVILLE, FL 32218. 20. During Plaintiff’s employment with Defendants, Defendants earned more than $500,000.00 per year in gross sales. 21. During Plaintiff’s employment with Defendants, Defendants employed two or more employees which handled goods, materials and supplies which had travelled in interstate commerce. 22. Included in such goods, materials and supplies were food and drink products, cash registers, cleaning supplies, marketing materials, signs and other equipment and supplies needed to operate a pizza franchise and which originated from outside the state of Florida. 23. Therefore, Defendants are each a covered enterprise as defined and incorporated into the Florida Constitution. 5 STATEMENT OF THE FACTS Defendants’ Improper Classification of “In-Store Hours” as “Delivery Driving” Hours 24. The primary function of Defendants’ Pizza Hut restaurants is to sell pizza and other foods and beverages. 25. Defendants employs delivery drivers, including Plaintiff, all of whom have the same job duty: to deliver pizzas and other food and beverages to customers. 26. Delivery drivers work inside the restaurant during certain hours and work as delivery drivers at other times. 27. While working inside the restaurant, delivery drivers perform non-tip producing work such as washing dishes, food and dough prep, cutting/boxing pizza, mopping floors, cleaning walls, trash collection, folding boxes, and organizing freezer inventory. 28. While on the road delivering pizzas, delivery drivers perform tip producing work (i.e. delivering pizzas to Defendants’ customers). 29. For their in-store work, Defendants purport to pay delivery drivers the minimum wage. 30. For their delivery work, Defendants utilize a “tip credit” and pay delivery drivers the “tipped minimum wage.” 31. Because their in-store work consists of non-tip producing work, Defendants are not permitted to utilize a “tip credit” for delivery drivers’ in-store hours. 32. However, Defendants have improperly classified some “in-store” hours 6 as “delivery driving” hours which has resulted in delivery drivers failing to receive all “in-store” hours at the applicable minimum wage rate. 33. For example, attached as Exhibit 1 is a “Payroll Time Log” showing Plaintiff’s time sheet for December 23, 24, and 25 of 2023. Pay code rate “01” is Plaintiff’s “in-store” pay rate and pay code rate “02” is Plaintiff’s “on-the-road” pay rate. Once a delivery driver makes the last delivery of his shift, he returns to the store and his tips are rendered and “cashed” and his “bank” is reconciled. In the column marked “Tips,” where currency is identified it reflects the time that the delivery driver’s bank was reconciled, and tips cashed out to him. After such time, the remainder of his shift is spent inside the store performing any remaining non- tip producing duties until he clocks out. 34. Using December 23, 2023, in the attached Payroll Time Log as an example, Plaintiff reconciled his bank by 6:19 p.m. at the latest. He then performed 0.18 hours of work. These hours necessarily must be in-store hours because they succeed the reconciling of his bank. However, Defendants’ Payroll Time Log reflects that these hours were coded “02” (i.e. delivery driving hours) meaning Defendants took a tip credit on these hours when not permitted to do so. 35. This improper classification of “in-store” hours as “delivery driving” hours occurred frequently resulting in unpaid minimum wages during one or more weeks. 36. This improper classification of “in-store” hours as “delivery driving” hours was a frequent complaint amongst Plaintiff’s colleagues. Indeed, Plaintiff 7 complained about this issue to Defendants’ management on numerous occasions, and nothing was done. Defendants’ Flawed Automobile Reimbursement Policy 37. Defendants require their delivery drivers to maintain and pay for safe, legally-operable, and insured automobiles when delivering pizza and other food items. 38. Defendants’ delivery drivers incur(red) costs for gasoline, vehicle parts and fluids, repair and maintenance services, insurance, depreciation, and other expenses (“automobile expenses”) while delivering pizza and other food items for the primary benefit of Defendants. 39. Pursuant to the Department of Labor Field Operations Handbook, employers are required to either: (1) track and reimburse delivery drivers for their actual expenses, or (2) reimburse delivery drivers at the IRS business mileage reimbursement rate. Moreover, the IRS business mileage reimbursement rate represents the reasonable approximation of delivery drivers’ actual expenses. 40. Pursuant to Defendants’ delivery driver reimbursement policy, Plaintiff was reimbursed on a per-mile basis, but which was not based on Plaintiff’s actual expenses. Plaintiff was reimbursed approximately 33 cents per mile. Moreover, the reimbursement amount is below the IRS business mileage reimbursement rate or a reasonable approximation of the cost to own and operate a motor vehicle. 8 41. During the applicable statute of limitations period (2019 – 2024), the IRS business mileage reimbursement rate ranged between $.56 and $.67 per mile. 42. Likewise, reputable companies that study the cost of owning and operating a motor vehicle and/or reasonable reimbursement rates, including the AAA, have determined that the average cost of owning and operating a vehicle ranged between $.62 and $.81 per mile during the same period for drivers who drive 15,000 miles per year. These figures represent a reasonable approximation of the average cost of owning and operating a vehicle for use in delivering pizzas. See https://exchange.aaa.com/wp-content/uploads/2019/09/AAA-Your-Driving-Costs- 2019.pdf (2019 driving cost analysis) and https://newsroom.aaa.com/wp- content/uploads/2023/08/YDC-Fact-Sheet-FINAL-8.30.23-1.pdf (2023 driving cost analysis). 43. However, the driving conditions associated with the pizza delivery business cause even more frequent maintenance costs, higher costs due to repairs associated with driving, and more rapid depreciation from driving as much as, and in the manner of, a delivery driver. Defendants’ delivery drivers further experience lower gas mileage and higher repair costs than the average driver used to determine the average cost of owning and operating a vehicle described above due to the nature of the delivery business, including frequent starting and stopping of the engine, frequent braking, short routes as opposed to highway driving, and driving under time pressures. 9 44. Defendants’ reimbursement policy did not reimburse Plaintiff for even his ongoing out-of-pocket expenses, much less other costs incurred to own and operate his vehicle, and thus Defendants failed to reimburse Plaintiff at any reasonable approximation of the cost of owning and operating his vehicle for Defendants’ benefit. 45. Defendants’ failure to adequately reimburse Plaintiff’s automobile expenses constitutes a “kickback” to Defendants such that the hourly wages it pays to Plaintiff is not paid free and clear of all outstanding obligations to Defendants. 46. Defendants failed to reasonably approximate the amount of Plaintiff’s automobile expenses to such an extent that Plaintiff’s net wages are diminished beneath the Florida minimum wage requirements. 47. In sum, Defendants’ reimbursement policies and methodology fail to reflect the realities of Plaintiff’s automobile expenses. 48. Defendants’ reimbursement formula has resulted in an unreasonable underestimation of Plaintiff’s automobile expenses throughout the recovery period, causing violations of the Florida minimum wage. 49. During the time Plaintiff performed deliveries on Defendants’ behalf, Plaintiff was paid at or below the minimum wage. 50. During the time Plaintiff worked for Defendants as a delivery driver he was reimbursed approximately 33 cents per mile. See Driver Activity Record attached as Exhibit 2. 10 51. During the relevant time period, the IRS business mileage reimbursement rate ranged between $.56 and $.67 per mile, which reasonably approximated the automobile expenses incurred delivering pizzas. http://www.irs.gov/Tax-Professionals/Standard-Mileage-Rates. Using the lowest IRS rate and the rate per mile Plaintiff was making per mile driven ($.33 per mile) in effect during that period as a reasonable approximation of Plaintiff’s automobile expenses, every mile driven on the job decreased his net wages by at least $.23 ($.56 - $.33) per mile. 52. Because Defendants paid Plaintiff a gross hourly wage at or below the applicable minimum wage, and because Plaintiff incurred unreimbursed automobile expenses, Plaintiff “kicked back” to Defendants an amount sufficient to cause minimum wage violations. 53. The net effect of Defendants’ flawed reimbursement policy is that Defendants have willfully failed to pay the Florida minimum wage to Plaintiff. Defendants thereby enjoys ill-gained profits at the expense of Plaintiff. 54. Indeed, Defendants have long been on notice that the wages it pays delivery drivers violates minimum wage laws, reflecting their willful failure to pay appropriate reimbursements. See, e.g., Zellagui v. MCD Pizza, Inc., 59 F.Supp.3d 712, 716 (E.D. Pa. Nov. 3, 2014) (“When minimum wage law requires an employer to reimburse an employee for using the employee’s vehicle for the employer’s benefit, the employer should reimburse the employee at the IRS per mile rate or keep detailed records of the employees’ expenses to justify another reimbursement 11 rate); Dep. of Labor Field of Operations Handbook § 30c15(a), available at https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/FOH_Ch30.pdf. 55. Plaintiff now brings this lawsuit as a putative class action pursuant to Art. X, Sec. 24(e) of the Florida Constitution and seeks the following: injunctive relief, the recovery of the full amount of unpaid wages owed, liquidated damages, costs, attorneys’ fees, and to any other relief which this Court deems just and proper. Plaintiff hereby requests that all claims herein by tried by a jury of his peers. CLASS REPRESENTATION ALLEGATIONS 56. This action is maintainable as a class action pursuant to Florida Rules of Civil Procedure Rule 1.220, (b)(1)-(3). 57. The Class consists of all delivery drivers employed by Defendants in Florida within the applicable statute of limitations. 58. The Class is so numerous that joinder of all members is impracticable. The number and identity of class members may be determined by Defendants’ records, but the class size likely exceeds 40 people. 59. There are substantial questions of fact and law common to Plaintiff and all class members, including, inter alia, whether Defendants’ compensation practices complied with Florida law, and the amount by which their hourly wages were below Florida’s law. 60. The claims of Plaintiff are typical of the Class as his claims are the exact claims that other members of the Class will have. 12 61. Plaintiff will fairly and adequately protect the interests of the Class. His claims span the breadth of issues raised in this action. 62. Class representative’s counsel are appropriately qualified to represent the Class. 63. Joinder of class members’ individual actions is impractical because of the limited ability of individual class members to institute separate suits and the general nature of the underlying action and relief sought. 64. The prosecution of separate actions by individual class members would create a risk of inconsistent results that could establish incompatible standards of conduct for Defendants. 65. Defendants have acted and refused to act on grounds generally applicable to the Class, making appropriate final injunctive relief with respect to the Class as a whole. 66. Defendants’ liability for damages can be established by facts and circumstances common to the Class as a whole and does not require the examination of the Plaintiff’s individual circumstances. 67. Questions of law and fact common to members of the Class predominate over any questions affecting only individual members. 68. A class action is superior in this case to other methods for a fair and efficient adjudication of the controversy because: (A) the common interests of the class members predominate over any individual interest in controlling prosecution or control of separate actions; (B) no similar litigation between the parties 13 concerning the controversy is known to have been commenced by members of the Class; (C) concentrating litigation of this action in this Court is appropriate to ensure appropriate, consistent, and efficient resolution of the issues raised in the state where the offending conduct occurred, continues to occur, and could occur in the future; and (D) there will be no significant difficulties in managing an action involving this Class. FIRST CLAIM FOR RELIEF Violation of the Florida Constitution, Art. X, Sec. 24 69. Plaintiff and Class Members reassert their allegations set forth in Paragraphs one (1) through sixty-eight (68) above and incorporate them by reference into this first Claim of Relief. 70. Defendants systematically and willfully did not pay Plaintiff and the Class the minimum wage to which they are entitled under Florida law because (1) Defendants improperly utilized a tip credit during hours worked in which they were not entitled to do so, and (2) Defendant did not provide reimbursements for driving- related expenses that were equal to the driving-related expenses incurred by Plaintiff and the Class. 71. Defendants should not have taken a tip credit on any “in-store” hours. 72. Additionally, Defendants should have utilized the standard IRS business mileage reimbursement rate for delivery drivers’ vehicular expenses. 73. Under Florida law, Plaintiff and the Class are entitled to: injunctive relief, the recovery of the full amount of unpaid wages owed, liquidated damages, 14 costs, attorneys’ fees, and to any other relief which this Court deems just and proper. SECOND CLAIM FOR RELIEF Declaratory Judgment, Fla. Stat. § 86.021 74. Plaintiff and Class Members reassert their allegations set forth in Paragraphs (1) through sixty-eight (68) above and incorporate them by reference into this second Claim of Relief. 75. Because of Defendants’ flagrant and systematic violations of Florida law, Plaintiff and the Class have an actual, practical and present need for a declaratory judgment as to the existence and definition of its rights under Florida law. 76. Under Fla. Stat. § 86.021, Plaintiff and the Class respectfully request a declaratory judgment that Defendants were not permitted to utilize a tip credit with respect to any “in-store” hours worked, and that doing so violated Florida law. 77. Plaintiff and the Class further respectfully request a declaratory judgment that Defendant’s reimbursement rate for delivery drivers, coupled with their hourly wages, violates Florida law. DEMAND FOR JURY TRIAL 55. Plaintiff, on behalf of herself and all others similarly situated, demands a trial by jury of any and all issues in this action so triable. PRAYER FOR RELIEF WHEREFORE, Plaintiff prays as follows: 15 (a) That this Court award compensatory damages to Plaintiff and all class members, including pre-judgment and post judgment interests; (b) That this Court award liquidated damages to Plaintiff and all class members; (c) That this Court order Defendants to pay all of its delivery drivers at least the full minimum wage for all “in-store” hours and order Defendants to pay all of its delivery drivers a reimbursement rate sufficient to ensure that all delivery drivers receive hourly wages equal to or exceeding those mandated by Florida law; (d) That this Court enjoin Defendants from utilizing a tip credit for delivery drivers’ “in-store” hours and enjoin Defendants from paying any of its delivery drivers a reimbursement rate insufficient to ensure that the delivery driver receives hourly wages below those mandated by Florida law; (e) That this Court grant to Plaintiff and all class members their costs and reasonable attorney’s fees; (f) That this Court declare that Defendants’ compensation practices described herein violates Florida law; and (g) That this Court should grant such additional relief as the Court deems just and proper. Dated this 29th day of February, 2024. Respectfully submitted, 16 /s/ C. Ryan Morgan C. RYAN MORGAN, ESQ. Florida Bar No.: 15527 /s/ Jolie N. Pavlos JOLIE N. PAVLOS, ESQ. Florida Bar No.: 0125571 Morgan & Morgan, P.A. 20 North Orange Avenue, Suite 1500 Orlando, Florida 32801 Telephone: (407) 418-2069 Facsimile: (407) 245-3401 E-mail: rmorgan@forthepeople.com jpavlos@forthepeople.com Attorneys for the Plaintiff(s) 17 EXHIBIT “1” EXHIBIT “2”