Labor & Employment Law Daily Wrap Up, WAGE-HOUR—MINIMUM WAGE—D. Utah: Domino’s franchise prevails against delivery drivers’ minimum wage claim on summary judgment, (Sep 19, 2025)

By Ursula Furi-Perry, J.D., MBA

The drivers failed to set forth specific facts regarding a reasonably approximate amount of their vehicle expenses to demonstrate that their wages fell below the minimum wage requirement.

A class of delivery drivers who worked for a Domino’s Pizza franchise, brought a FLSA suit alleging that the employer reimbursed drivers less than the reasonably approximate costs of operating their personal vehicles for deliveries, which functioned as an impermissible “kickback” that drove net wages below the federal minimum wage of $7.25 per hour. A Utah federal court granted summary judgment for the employer, explaining that the drivers failed to set forth specific admissible facts regarding a reasonably approximate amount of their vehicle expenses to demonstrate that their wages fell below the minimum wage requirement (Gifford v. DR Pizza, Inc., et al., No. 2:22-cv-00707-TS-JCB (D. Utah Sept.17, 2025).

The named plaintiff worked as a delivery driver for a Domino’s Pizza franchise operator in Utah, Nevada, and Arizona. She filed suit in federal court in Utah alleging that the employer reimbursed drivers less than the reasonably approximate costs of operating their personal vehicles for deliveries, which functioned as an impermissible “kickback” that drove net wages below the federal minimum wage of $7.25 per hour.

Questionnaires. She brought the case individually and on behalf of similarly situated drivers under the Fair Labor Standards Act (FLSA), and after the court conditionally certified a collective class of delivery drivers employed by DR Pizza from December 2020 to the present, roughly 47 drivers opted in. During discovery, the parties used questionnaires to collect data on drivers’ mileage, reimbursement rates, and expenses. Only about one-third of plaintiffs returned these questionnaires, despite multiple extensions.

The employer moved for summary judgment and also moved to exclude three new employee declarations that had not been disclosed during discovery, for failure to timely disclose them. The employer insisted that the plaintiffs needed precise calculations of actual expenses, mileage, and reimbursements to show wages fell below the statutory minimum. The drivers countered that they could rely on estimates, that the employer had not provided necessary data, and that reimbursement rates below the IRS standard were themselves suspect.

Evidentiary dispute. The court first addressed the evidentiary dispute, holding that the three new employee declarations should be excluded. Under Rule 37(c), parties who fail to disclose required information under Rule 26 cannot use it unless the failure was substantially justified or harmless. Applying the Tenth Circuit’s four-factor test, which looks at prejudice, ability to cure, trial disruption, and willfulness, the court found that the late declarations prejudiced the employer by depriving it of an opportunity to depose declarants and prepare rebuttal evidence. The prejudice could not be cured without reopening discovery, which had already been extended; moreover, the plaintiffs offered no explanation for their delay, suggesting willfulness.

Questionnaire responses inadequate. Turning to the issue of summary judgment, the court recognized that FLSA plaintiffs may rely on reasonable estimates of expenses rather than precise figures. Nonetheless, the plaintiffs still bore the burden of showing approximate vehicle expenses sufficient to demonstrate wages below minimum wage. Without the excluded declarations, the plaintiffs relied mainly on questionnaires, and the federal district court found these inadequate. Only 15 were returned, and responses varied widely—some reported two miles per delivery, others 30; some claimed 80—100 miles per day. Reimbursement rates also ranged from nothing to $2.50 per delivery, while the employer presented evidence of payments at $0.60 per mile or $1.50 per delivery.

The questionnaires lacked consistent or detailed information that would allow a reasonable jury to conclude that the drivers’ wages fell below $7.25 per hour, the court concluded. It rejected the drivers’ argument that the employer’s failure to maintain precise mileage or expense records shifted the burden of proof. The court noted that drivers themselves were in the best position to know their mileage and costs. The court also rejected the argument that reimbursement below the IRS standard rate automatically implied illegality, noting that courts permit employers to use reasonable approximations, not strictly the IRS rate. The court found no specific admissible evidence from which a rational factfinder could conclude that the plaintiffs were underpaid under the FLSA and granted the employer’s motion.

The case is No. 2:22-cv-00707-TS-JCB.

Judge: Stewart, T.

Attorneys: Matthew Ryan McCarley (Forester Haynie) for Shannon Gifford. John Kwaw Kwarm (Sumsion Business Law) for Dr Pizza, Inc. and David Kearns.

Companies: Dr Pizza, Inc.

Cases: WageHour MinimumWage EvidenceDiscovery UtahNews