On January 9, 2014, Judge William G. Young rejected an attempt by Domino's Pizza to dismiss a class action that we filed on behalf of delivery drivers working in Massachusetts. In that case, we're claiming that Domino's violated a state law that protects workers' tips by charging a "delivery fee" that looks like an automatic gratuity, but not paying the proceeds of that fee to the people who deliver customers' pizzas.
Domino's had filed a motion to dismiss, arguing that it notified customers that the delivery fee was not a gratuity in the legal fine print of its website and on its pizza boxes. Judge Young denied that motion, however, ruling that factual questions existed regarding whether a reasonable customer would see and understand the notice. As he explained:
[T]he question whether the notice Domino’s provided to its customers about the delivery charge and tips was sufficiently clear and unambiguous so that no reasonable customer would think it was a tip for the driver ought here be answered by a jury. Although the notice Domino’s provides on its webpage presents a close case, ambiguity remains where customers who order by phone are not warned about the delivery charge policy beforehand. They ultimately learn, if at all, that the delivery charge is not a tip when they receive the box with the attached notice. In this scenario, it is not unreasonable to conclude that many customers do not tip the driver upon receiving the delivery, assuming that the delivery charge constitutes a tip. If the customer does read the disclaimer on the box, this may occur only after the driver leaves, leaving no opportunity to provide a tip.
It ought also be noted that, unlike other online ordering systems where the customer can add to the total price the amount of money he wishes to tip, Domino’s web page automatically displays the amount due including the delivery charge, but does not permit the customer to add a tip. This system, coupled with the fact that $2.50 is an amount comparable to what an average customer might pay as a tip, makes it plausible that a reasonable customer would interpret the delivery charge as a tip.