Pizza Driver Class Certification Nixed Over Loose Lips, Lost Tips

By William Peacock, Esq. on February 05, 2013 | Last updated on March 21, 2019

Pizza delivery is a fun gig, especially for those of us who love to drive while bumping hot jams. ("I [Drove] Myself Crazy" - don't judge). Unfortunately for drivers, many pizza places now tack on a "delivery charge" of a buck or two, which some customers mistake for an automatically-included gratuity. For those restaurants that do not split that fee with the drivers, that means the drivers get shafted.

Matt Luiken was one of those drivers. He worked for Domino's, which -- at the time -- charged a $1 per delivery fee. He sued on behalf of all similarly-situated pizza boys, claiming that the big D withheld these fees from the drivers illegally, as per Minnesota law, they are tips.

Under Minnesota law, tips are the sole property of the server. (Hands off, chef!) A mandatory fee, such as the hated pizza delivery fee, is a gratuity when it "might reasonably be construed by the [customer] as being a payment for personal services rendered by an employee and for which no clear and conspicuous notice is given by the employer to the [customer] that the charge is not the property of the employee."

The fee was charged to customers. For many orders, it might have been somewhere in the neighborhood of an appropriate tip. (If you ignore gas prices and Minnesota winters, you stingy jerks!)

Domino's notice might also have been inadequate, as it was posted to online orders and may have sometimes been mentioned to customers. Other times, it wasn't. Some drivers spoke up. Others didn't. In 2009, pizza boxes were labeled with additional disclosure, but who reads the box when they can smell that delicious barbeque chicken, right?

Some customers got the message, some didn't, and some pretended not to because they were too cheap to tip.

But that's the rub, class certification-wise. "Commonality requires the plaintiff to demonstrate that the class members have suffered the same injury." Drivers with loose lips seeking tips, weren't similarly injured to their more meek mates. Even Luiken sometimes disclosed the purpose of the fee and sometimes remained silent.

That means the class of drivers contains the quietly injured, the assertive compensated, and the similarly-sometimes-stiffed for tips. Commonality is killed and so is class certification.

But is that really fair? Delivery drivers were similarly injured by either having to beg like Oliver Twist for more tips please, or remain silent and stiffed because the purpose of the fee wasn't universally disclosed to the customers. Does each driver now have to press their claims individually because some spoke up and others stuffed their mouths with pizza instead?

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