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

132 | Massachusetts Wage & Hour Peculiarities, 2022 ed. © 2022 Seyfarth Shaw LLP reasonably argue that those staff members are eligible “service employees.” 748 The statute, however, narrows the “service employee” category to exclude staff who help provide direct service to customers if they also performmanagerial responsibilities . 749 Because the statute fails to define “managerial responsibilities,” significant controversy remains over what types of duties render a “service employee” ineligible for protection under the law. In an advisory notice, the Office of Massachusetts Attorney General has indicated that it will “look to” the federal definition of “executive” in interpreting the Tip Statute, stating that “these factors may be relevant in determining whether a worker has managerial responsibility.” 750 This approach would define a manager as one who makes or influences decisions regarding scheduling or assigning others to their posts, performs supervision, directs other employees, hires or fires other employees, and regularly exercises independent judgment. 751 It remains unclear, however, whether the federal definition is compatible with the Commonwealth’s Tip Statute; the Attorney General’s advisory merely states that it “may be relevant.” 752 Three Massachusetts courts have examined the issue, concluding that managerial responsibilities are most clearly evident when a staff member must direct the work of other employees. In Mouiny v. Commonwealth Flats Development Corporation , the court held that banquet captains— though they wore uniforms, carried radios, had access to computers, communicated with managers, and assigned tasks to other servers—did not necessarily perform managerial duties. 753 The court found that the proper inquiry was whether the banquet captains “directed the work of [other] employees . . . sufficiently to characterize them as having managerial responsibility.” 754 Applying similar reasoning in Godt v. Anthony’s Pier 4, Inc ., the court declared that it was unclear whether wine stewards had managerial responsibilities when they handled employee scheduling, set floor plans, fielded customer complaints, and corrected the work of other wait 748 See id. at 11-12 (banquet captain may meet service employee definit ion). 749 See M.G.L. ch. 149, § 152A(a) (emphasis added). 750 Massachuset t s At torney General Advisory 2004/3, at 2 n.3 (cit ing 29 C.F.R. § 541.1) (emphasis added). 751 Id . One court has applied this definit ion to the T ip Statute, finding that although none of the other elements were present , there was a genuine issue of material fact as to whether banquet captains supervised the work of servers sufficient ly to find that they had managerial responsibilit ies. Mouiny , No. SUCV2006-1115-BLS1 (Mass. Super. Ct . Aug. 18, 2008) (denying summary judgment ). Another court found that banquet captains had sufficient managerial responsibility to render their part icipat ion in a t ip pool improper where they directed the work of servers during banquet event s, even though it was “undisputed that [the banquet captains] did not influence employment shift s, hours, or decisions . . . .” DePina , No. SUCV2003-5434-G, at 15 (Mass. Super. Ct . July 28, 2009). 752 Massachuset t s At torney General Advisory 2004/3, at 2 n.3 (cit ing 29 C.F.R. § 541.1). The FLSA definit ion of “execut ive” seems incompat ible with the T ip Statute because the former does not designate employees as execut ives if they have any managerial responsibility, while the T ip Statute arguably does. See M.G.L. ch. 149, § 152A(a). 753 Mouiny , No. SUCV2006-1115-BLS1, at 13 (Mass. Super. Ct . Aug. 18, 2008). 754 Id . (emphasis added) (also not ing that one should not “mistakenly equate ‘supervisory responsibility’ with ‘managerial responsibility’”); see also Belghiti v. Select Rests., Inc. , 2014 WL 5846303, at *2 (D. Mass. Nov. 12, 2014) (on reconsiderat ion, affirming original grant of summary judgment and finding that while banquet captains and maît re d’s acted like a “quarterback on a football team,” there was no evidence that they performed “core management funct ions” such as “hiring, set t ingwages, maintaining records, recommending promot ions, or administering discipline”).