Mass-Peculiarities: An Employers Guide to Wage & Hour Law in the Bay State 2022 Edition

© 2022 Seyfarth Shaw LLP Massachusetts Wage & Hour Peculiarities, 2022 ed. | 131 prepared food directly to patrons or who clears patrons’ tables; (ii) works in a restaurant, banquet facility or other place where prepared food or beverages are served; and (iii) has no managerial responsibility during a day in which the person serves beverages or prepared food or clears patrons’ tables.” 744 • A service employee, defined as “a person who works in an occupation in which employees customarily receive tips or gratuities, and who provides service directly to customers or consumers, but who works in an occupation other than in food or beverage service, and who has no managerial responsibility.” • A service bartender, defined as “a person who prepares alcoholic or nonalcoholic beverages for patrons to be served by another employee, such as a wait staff employee.” 745 Setting out these specific categories has spurred substantial litigation regarding which employees are legally permitted to share in tips, and it has impacted numerous industries, including restaurants, hotels, airline skycap services, sports arenas, and audiovisual technician services. 746 The language is problematic because it has expanded the mandate beyond tips and service charges earned by “wait staff” employees to include certain “service employees who did not provide either food or beverage service.” 747 Thus, if a restaurant employs staff members who are not responsible for serving food and beverages to customers but nonetheless regularly provide some level of direct service to guests and customarily receive tips or gratuities , an employer might 744 M.G.L. ch. 149, § 105A amended by St . 2020, ch.358, § 77. The 2020 amendment (which took effect on January 14, 2021) renders eligible those who have “no managerial responsibility during a day in which the person serves beverages or prepared food or clears pat rons’ tables.” That is, if someone has managerial responsibilit ies during their Monday shift but not their Tuesday shift , they may be considered a “wait staff employee” for purposes of the T ip Statute on Tuesday. In addit ion, the amendment broadened the scope individuals eligible to receive t ips in “quick service restaurant [s]” by expressly rendering eligible those who “prepare[] or serve[] food or beverages as part of a team of counter staff or any other counter employee.” Prior to the 2020 amendment , that same clause covered only “counter staff.” 745 M.G.L. ch. 149, § 152A(a). Notably, the service bartender definit ion does not include the managerial responsibility prohibit ion. Id. As to wait staff employees, all three requirement s of the definit ion must be met in order for an employee to qualify as wait staff under the T ips Statute. See Dvornikov v. Landry’s Inc. , 2017 WL 1217110, at *3 (D. Mass. Mar. 31, 2017). 746 See, e.g. , Chebotnikov v. LimoLink, Inc., 2017 WL 2888713, at *1 (D. Mass. July 6, 2017) (limousine drivers); Mouiny , No. SUCV2006-1115-BLS1 (Mass. Super. Ct .) (hotel); Williamson , No. SUCV2002-1827-D (Mass. Super. Ct .) (hotel); Fernandez v. Four Seasons Hotels, Ltd. , No. SUCV2002-4689-F (Mass. Super. Ct .) (hotel); Rose v. Ruth’s Chris Steak House, Inc. , No. 07- 12166-WGY (D. Mass.) (restaurant ); Kelly v. Sage Rest. , No. SUCV2008-4230F (Mass. Super. Ct .) (restaurant ); Benoit v. The Federalist, Inc. , No. SUCV2004-3516-B (Mass. Super. Ct .) (restaurant ); DiFiore , No. 07-10070-WGY (D. Mass.) (skycaps); Travers v. Jet Blue Airways Corp. , No. 08-10730 (D. Mass.) (skycaps); Mitchell v. U.S. Airways, Inc. , No. 08-10629 (D. Mass.) (skycaps); Brown v. United Air Lines, Inc. , No. 08-10689 (D. Mass.) (skycaps); Hayes v. Aramark & Boston Red Sox , No. 08- 10700 (D. Mass.) (food services at sport s arena); DiIorio v. Ritz-Carlton Hotel Co., LLC , No. SUCV2007-0131-G (Mass. Super. Ct .) (audiovisual technicians). The First Circuit has taken the posit ion that the T ip Statute is preempted by the Airline Deregulat ion Act of 1978, which vest s exclusive jurisdict ion in the federal government to regulate most aspect s of air t ravel. DiFiore v. Am. Airlines, Inc. , 646 F.3d 81, 88 (1st Cir. 2011) (holdingT ip Statute “direct ly regulates how an airline service is performed and how it s price is displayed to customers” and is therefore preempted), cert. denied , 132 S. Ct . 761 (2011); Overka v. Am. Airlines, Inc. , 790 F.3d 36, 41 (1st Cir. 2015), cert . denied, 136 S. Ct . 372 (2015) (applying DiFiore and affirming finding that skycaps’ T ip Statute claims were preempted by the American Deregulat ion Act ). 747 Mouiny , No. SUCV2006-1115-BLS1, at 11 (Mass. Super. Ct . Aug. 18, 2008).