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. | 133 staff. 755 The court found “a material dispute of fact as to whether the duties that the wine stewards perform in addition to serving wine are sufficiently supervisory or managerial so as to preclude them from the tip sharing.” 756 In contrast, yet citing to the Mouiny and Godt decisions, the court in DePina v. Marriott International, Inc. found that banquet captains had sufficient managerial responsibilities to make their participation in a tip pool improper where they “directed the work of servers and apportioned work among them” and “supervised banquet events.” 757 In Matamoros v. Starbucks Corporation , the First Circuit upheld the decision of a federal district court, finding that shift supervisors in coffee shops who spend a majority of their time directly serving customers could not share in tips because they also performed such duties as directing employees to work stations, opening and closing the store, opening the store’s safe, and handling and accounting for cash. 758 The Matamoros court emphasized that “if an employee has any managerial responsibility, she does not qualify as ‘wait staff’ eligible to participate in tips pools” under the Tip Statute. 759 The 2020 amendment to the definition of “wait staff employee” may alter this analysis. 760 Instead of wholly exempting wait staff employees who perform managerial responsibilities at any time, the amendment seemingly allows employees who have managerial duties on some days to participate in a tip pool on days in which they have no managerial responsibilities but serve food or drink or clear tables. Given the courts’ rulings, employers should consider carefully before extending participation in tip pools to employees with even very limited authority over their co-workers. Doing so may run the risk of litigation from other employees who believe that a supervisor is improperly sharing in their tips. Employers also should note that the law now applies outside the food and beverage industry and protects “service employees” of other occupations in which receiving tips is customary during the course of work. Such occupations include hairdressers, taxicab drivers, baggage handlers, and bellhops. 761 C. “No Tipping” Policies The Tip Statute is silent as to whether employers may adopt “no tipping” policies to reduce the administrative burden of accounting for and distributing tips. The SJC, however, has held that 755 Godt v. Anthony’s Pier 4, Inc. , No. SUCV2007-3919-BLS1, at 8 (Mass. Super. Ct . Mar. 24, 2009) (Hinkle, J.) (wine stewards also accessed computers to void and change customer orders, ensured that the restaurant was running smoothly, assigned side work, issued server report s at the end of a shift , closed the restaurant , accessed the safe, locked up, set the alarm, monitored the wine stock, and issued new wait staff lockers, uniforms, and side towels). 756 Id. 757 DePina , No. SUCV2003-5434-G, at 15 (Mass. Super. Ct . July 28, 2009) (findingmanagerial responsibility even though it was “undisputed that [the banquet captains] did not influence employment shift s, hours, or decisions”). 758 Matamoros v. Starbucks Corp. , 699 F.3d 129, 137 (1st Cir. 2012) (holding shift supervisors had managerial responsibility for purposes of the T ip Statute). 759 Id. at 134 (emphasis added). 760 St . 2020, ch. 358, § 77. 761 Massachuset t s At torney General Advisory 2004/3.