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Case Law Alerts

Sixth Circuit Discredits IRS Mileage Rate as Sufficient Payment to Employee Drivers Under the FLSA

Parker v. Battle Creek Pizza, Inc. & Bradford v. Team Pizza, Inc., Nos. 22-2119/3561 (6th Cir. Mar. 12, 2024) (not yet reported)

April 1, 2024

by Jillian L. Dinehart

The Sixth Circuit recently considered a consolidated appeal regarding how delivery drivers should be reimbursed for the cost of providing their vehicles for work. The appeal was taken from both the Western District of Michigan and the Southern District of Ohio. In the Michigan case, the trial court held drivers should be reimbursed using the federal mileage rate. The Ohio trial court held that employers needed only pay a “reasonable approximation” of the driver’s costs. The Sixth Circuit determined neither approach was appropriate under the Fair Labor Standards Act (FLSA).

The FLSA requires employers to pay “each” employee a wage of “not less than” $7.25 an hour. An applicable regulation, in turn, provides that each employee’s minimum wages must be paid “finally and unconditionally” or free and clear of any “kick back” to the employer. The regulation further provides that, if an employer requires an employee to “provide tools of the trade” for purposes of the performance of the “employer’s particular work,” the employer violates the Act if “the cost of such tools purchased by the employee cuts into the minimum or overtime wages required to be paid to him under the Act.” The Sixth Circuit, therefore, held the FLSA requires an employer to reimburse an employee 100% of the cost of using their vehicle (or other tools).

How should the actual cost be reasonably calculated by an employer? After all, gas mileage of a vehicle depends on many variables that are likely different for each employee. The Sixth Circuit had no sympathy for the employer. When presented with the argument that paying “actual cost” would be “impossible” the Sixth Circuit stated:

But the employers themselves created this situation: First by paying their drivers the bar minimum wage; then by requiring them to provide their own vehicles to deliver pizzas on the defendants’ behalf; and finally by cutting it close (at least according to the allegations here) as to whether they have adequately reimbursed their drivers for the cost of providing those vehicles. Remove any of those elements and these cases likely do not get filed.

The court remanded the case to the trial court without much guidance. The Sixth Circuit suggested applying a similar burden-shifting regime as that used in employment discrimination matters. For example, the employee might present prima facie proof that a reimbursement was inadequate; the employer might then bear the burden of showing that the reimbursement bore a demonstrable relationship to the employee’s actual costs; and then the employee would bear the burden of proving the employer’s reasoning wrong. However, the threat of liquidated damages and attorney’s fees loom large for an employer that finds this calculation to be near impossible. The only reasonable solution to avoid a willfulness finding, and thus avoid a liquidated damages award, would be to overpay the employee by paying above the IRS rate. 

There is no question that this opinion leaves employers in an unenviable, and maybe untenable position. Given the pro-employer make-up of the Supreme Court of the United States, this case may see further review in the near future. 


Case Law Alerts, 2nd Quarter, April 2024 is prepared by Marshall Dennehey to provide information on recent developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2024 Marshall Dennehey, all rights reserved. This article may not be reprinted without the express written permission of our firm.

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Appellate Division Affirms Dismissal of Legal Malpractice Counterclaim Against Martin Law Firm

In Martin v. Loury, 2026 N.J. Super. Unpub. LEXIS 1617 (App. Div. July 15, 2026), Martin Law Firm represented Kirk Loury in an employment matter Mr. Loury filed against his former employer, Concord Equity Group Advisors LLC (“Concord”). The allegations included, among other things, that Loury was not fairly compensated for his employment with Concord. After a bench trial finding in Loury’s favor, the Appellate Division remanded this matter in February 2016 for a second trial. During the second trial, Concord CEO, Lee Argush, testified to lower compensation estimate than first trial. On remand, the second trial judge awarded Mr. Loury the same damages as the first judge, finding Mr. Argush not credible. After the findings during the second trial, Martin Law Firm filed an action against Mr. Loury to recover legal fees and costs of representing Mr. Loury in a second bench trial and Mr. Loury filed a counterclaim against Martin Law Firm for legal malpractice, alleging he should have received an even higher award in the second bench trial. In this allegation, Mr. Loury, through his expert, claimed that Martin Law Firm should have recalled Mr. Loury to the stand to rebut Mr. Argush’s testimony to allege an alternative theory of damages. Mr. Loury’s expert admitted that the second judge already rejected Mr. Argush's theory and accepted Loury's damages theory. The trial court barred Mr. Loury’s expert and dismissed Loury's counterclaim with prejudice before convening the collection trial, and the jury ruled in Martin Law Firm’s favor. Mr. Loury appealed the trial court's pretrial rulings barring his liability expert from testifying in support of his legal malpractice counterclaim, denying his motion for summary judgment on that counterclaim, and denying his motion to amend his counterclaim by adding attorney Joseph A. Martin as a codefendant. In affirming the trial court’s decision, the Appellate Division held that the trial court properly excluded Loury’s expert testimony in the counterclaim against Martin Law Firm because the expert could not explain how calling Loury as a rebuttal witness would have increased damages when the second judge already rejected Mr. Argush's testimony and accepted Loury's damages theory, making the expert’s causation opinion speculative. The Appellate Division also held that the trial court properly denied Mr. Loury's summary judgment motion on his malpractice counterclaim because reasonable minds could differ on whether Mr. Martin's alleged failures would have changed the second judge's damages award, given the judge already found Mr. Argush not credible, creating genuine factual disputes precluding summary judgment. Also, the Appellate Division held that the trial court properly denied Loury's May 2023 motion to add Joseph Martin individually because the statute of limitations expired in February 2022, six years after the 2016 appellate remand when Mr. Loury incurred new legal costs, and relation back did not apply because Mr. Loury knew Mr. Martin's identity throughout and strategically chose to sue only Martin Law Firm in his 2019 counterclaim.