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detours and delivery driver pay Florida

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  • detours and delivery driver pay Florida

    I work for a pizza delivery company that covers barrier islands along the Florida coast. Our delivery area has a bridge under construction, and occasionally the bridge closes (pre-announced) for a portion of the day. As a consequence, part of the usual delivery area (and this gets potentially complicated because a considerable portion of the barrier island is technically outside the delivery area even though we do deliver there) roughly doubles in distance from the store. A round trip including the detour might require a 20 mile round trip, making a mockery of the $1.25 maximum single trip reimbursement. The alternate bridge to the barrier island is at one fringe of the delivery area while the destination might be in an opposite corner.

    My question: Is there labor law that prevents a company like mine from maintaining its commitment to customer service at the expense of the delivery driver? In this case, it is unlikely that anything but a significantly above average tip can end up paying the driver as much as minimum wage after gasoline costs are figured in. The effect is like doubling the size of the delivery area in one direction.

  • #2
    The employer is not required to reimburse employees for car expenses under Florida law. If your hourly cash wage plus tips (plus, maybe, the "trip pay") doesn't average out to at least minimum wage for all hours worked in the workweek, the employer must pay the difference in cash.

    Is the trip pay just an addition to your total compensation and are they taxing it?
    I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

    Comment


    • #3
      The most pernicious myth on this board is that only CA and MA require reimbursement of expenses. That is simply not true. Federal law requires reimbursement in certain cases. In the OP's case, where the expenses cut into min wage or OT. The Fed DOL even gives official guidance in an almost identical fact pattern to the OP's.

      If the (cash wage + trip reimbursement -mileage expense)/hours worked are less then the mine wage rate, you are owed the difference.

      Comment


      • #4
        Originally posted by Pattymd View Post
        The employer is not required to reimburse employees for car expenses under Florida law. If your hourly cash wage plus tips (plus, maybe, the "trip pay") doesn't average out to at least minimum wage for all hours worked in the workweek, the employer must pay the difference in cash.

        Is the trip pay just an addition to your total compensation and are they taxing it?
        Delivery drivers are paid an hourly wage somewhat below the minimum wage. The trip pay comes in addition to that amount.

        Thanks for the prompt response, Pattymd.

        Comment


        • #5
          Originally posted by TheRed View Post
          The most pernicious myth on this board is that only CA and MA require reimbursement of expenses. That is simply not true. Federal law requires reimbursement in certain cases. In the OP's case, where the expenses cut into min wage or OT. The Fed DOL even gives official guidance in an almost identical fact pattern to the OP's.

          If the (cash wage + trip reimbursement -mileage expense)/hours worked are less then the mine wage rate, you are owed the difference.
          Thanks, TheRed.

          Your response appears compatible with Pattymd's. If on Monday of my work week I earned a $100 tip then I could be expected to drive to Timbuktu later on during the same work week at my own expense so long as the equation you describe above pays me equal to or above the minimum wage.

          Am I missing something?

          Comment


          • #6
            The point I believe TheRed is making (which I agree with) is that under federal law you have to be paid your tips in their entirity "free and clear" and you have to be paid minimum wage (excluding the tip credit) "free and clear". While the law (FLSA) does not specific say that expenses must be reimbursed, the law does say that minimum wage must be paid "free and clear" and that the federal DOL factsheet, regulations and manual include examples of "free and clear" violations that are arguably applicable to this situation.

            The difference is that CA and MA have very specific laws mentioning expense reimbursement and these laws apply to everyone, not just MW employees. FL on the other hand not only has very little in the way of state specific labor law, but basically does not enforce what little in the way of state specific labor law that it does have.
            "Reality is that which, when you stop believing in it, doesn't go away".
            Philip K. **** (1928-1982)

            Comment


            • #7
              Originally posted by DAW View Post
              While the law (FLSA) does not specific say that expenses must be reimbursed, the law does say that minimum wage must be paid "free and clear" and that the federal DOL factsheet, regulations and manual include examples of "free and clear" violations that are arguably applicable to this situation.
              I don't quite understand. Perhaps some subtleties of "free and clear" have escaped me. I've had a peek at a list of DOL factsheets, scanned a few of them and thus far I haven't run across anything that seems arguably applicable to this situation. Is there information you can provide that might narrow the scope of my search?

              The difference is that CA and MA have very specific laws mentioning expense reimbursement and these laws apply to everyone, not just MW employees. FL on the other hand not only has very little in the way of state specific labor law, but basically does not enforce what little in the way of state specific labor law that it does have.
              No argument there.

              Comment


              • #8
                I can give you some (very poorly written) examples. This unfortunately is an area that federal DOL has done an even poorer job then normal of making clear understandable statements. The following example uses uniforms, but the underlying legal principal is the same for auto expense.

                Federal DOL deductions fact sheet.

                "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".

                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.

                I am going to cite one of the 29 CFR 531.xxx regulations although technically everything in this group of regulations collectively is the "law" the factsheet is based on.

                'Free and clear' regulation.

                "... For example, if it is a requirement of the employer that the employee must provide tools of the trade which will be used in or are specifically required for the performance of the employer's particular work, there would be a violation of the Act in any workweek when the cost of such tools purchased by the employee cuts into the minimum or overtime wages required to be paid him under the Act. See also in this connection,"

                Federal DOL also has a manual, also poorly written, that discusses this in more detail.

                http://www.dol.gov/esa/whd/FOH/
                "Reality is that which, when you stop believing in it, doesn't go away".
                Philip K. **** (1928-1982)

                Comment


                • #9
                  Thanks, DAW.

                  So, if I'm reading this correctly there is a gray-area limit as to whether my employer can bid me to Timbuktu based on tip income even if that expense does not drop me below minimum wage for the week?

                  The gas expense corresponds to a uniform expense or (perhaps) the addition of a toll on a bridge that I would have to cross in order to make a delivery? And the employer cannot necessary expect that to made up from tips?

                  Again, thanks for providing additional information.

                  Comment


                  • #10
                    Tips complicate things, particularly with the tip credit rules, but basically with very few exceptions, you have to be paid all your tips. That is one part of the FLSA law. Then from a different part of the FLSA law is this other stuff I cited. It is legally very hard to not pay minimum wage (less tip credit) and to not pay tips in their entirety. If your employer is making you pay for any unreimbursed business expenses and these out of pocket expenses cause the MW or tip laws to not be followed, then I would say you have a good argument. Not certain but good. Federal DOL in their wisdom have written less then clear guidance on this issue, but arguably the law is much more on your side then that of the employer.
                    "Reality is that which, when you stop believing in it, doesn't go away".
                    Philip K. **** (1928-1982)

                    Comment


                    • #11
                      Mileage MUST be paid to minimum wage employees!

                      Print this out and HAVE IT IN FRONT OF YOU WHEN YOU CALL! Read them the relevant quotes. Tell them where to find it on the DOL website so they can read it along with you. Remember, you are talking to government workers! It may take a few times! Make sure you explain that paying for your car expenses is causing a ‘minimum wage violation‘. The law doesn’t say they have to pay us mileage, it says they must pay at least minimum wage. Expenses we incur may not reduce our pay below minimum. You have to phrase it that way or they won’t ‘get it‘.

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

                      http://www.dol.gov/esa/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 cents per mile) 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/esa/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/esa/regs/compliance/whd/whdfs16.htm

                      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.


                      Learn more at http://tipthepizzaguy.com/discussion...=1&ip=1#195006
                      "I'm just a pizza driver"
                      Learn more about Pizza Driver issues at the: Pizza Delivery Drivers Forum

                      Comment


                      • #12
                        gregster, you posted to a thread over six months old & the original poster has not posted since. We normally do not post to old threads. Thanks.
                        Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

                        Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

                        Comment


                        • #13
                          Originally posted by Betty3 View Post
                          gregster, you posted to a thread over six months old & the original poster has not posted since.
                          That's an unfortunate policy, in my opinion. I have not posted since I felt it would appear rude to keep trying to eke out more information by essentially repeating many of the questions I'd already asked. I subscribed to the thread hoping to see additional material such as the stuff posted by gregster.

                          We normally do not post to old threads. Thanks.


                          You have my thanks as well, gregster, albeit for different reasons.

                          Comment


                          • #14
                            Generally, a poster does not come back after 6 months looking for additional answers. Their situation is usually taken care of by then. Therefore, that is why we ask members not to post to old threads. You are in the minority by checking back after not posting since 8-08.
                            Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

                            Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

                            Comment


                            • #15
                              And, gregster, that cite regarding auto expenses is only addressing how to calculate mileage to determine if the minimum wage requirement has been met. It does not mean that mileage must be paid unconditionally.
                              I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

                              Comment

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