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

134 | Massachusetts Wage & Hour Peculiarities, 2022 ed. © 2022 Seyfarth Shaw LLP such policies are lawful. 762 In Meshna v. Scrivanos , the SJC found that there is nothing in the language of the Tip Statute that prohibits employers from implementing no tipping policies. 763 Rather, the Tip Statute governs what employers can do with tips actually received. 764 If employers choose to implement no tipping policies, the policy must be “clearly communicated” to customers. 765 Such policies can be clearly communicated through signs or through instructing employees to communicate the existence of the policy to customers. 766 If customers nonetheless leave tips even after being made aware of a no tipping policy, the Tip Statute does not require an employer to distribute those tips to wait staff employees. 767 D. Mandatory Pooling of Tips and Service Charges The Tip Statute explicitly allows compulsory tip-pooling, stating: “An employer may administer a valid tip pool and may keep a record of the amounts received for bookkeeping or tax reporting purposes.” 768 Thus, employers may require tip-pooling among a group of employees or mandate that employees share tips with other eligible employees. 769 At least one court has interpreted the Tip Statute as prohibiting employers from ever permitting employees to create an unlawful tip- pooling system. 770 Employers administering tip pools must ensure that “[a]ny service charge or tip remitted by a patron or person to an employer shall be paid to the wait staff employee, service employee, or service bartender by the end of the same business day, and in no case later than the time set forth 762 Meshna v. Scrivanos , 471 Mass. 169 (2015). 763 Id. at 175-76. 764 Id. 765 Id. at 177 (finding that an employer will violate the T ip Statute if it retains t ips given in cont ravention of no t ipping policy if policy is not clearly communicated to customers). 766 Id. at 178 n.10. 767 Id. at 178 (finding that any money that is left in cont ravention of a no t ipping policy is not “given to” wait staff employees). 768 M.G.L. ch. 149, § 152A(c). 769 The T ip Statute requires that t ips and service charges be dist ributed amongwait staff employees, service employees, or service bartenders “ in proportion to the service provided by those employees.” M.G.L. ch. 149, § 152A(d) (emphasis added). The Statute, however, does not define “ in proportion,” nor does it describe how an employer must determine proport ionate shares. Two court s have interpreted the proportionality requirement and held that an “est imate” of proportionality sat isfies the T ip Statute. Belghiti v. Select Rest., Inc. , 2014 WL 1281476, at *3 (D. Mass. Mar. 31, 2014), reconsiderat ion denied, 2014 WL 5846303 (D. Mass. Nov. 12, 2014) (reject ing employee’s argument that proportion of t ips should be based on actual performance each shift and holding employer’s est imate system, under which servers who provided a higher level of direct customer service received a full share while employees who worked in a more limited service role received a smaller share, was lawful); Williamson , 2004 WL 1050582, at *11-12 (construing the pre-2004 T ip Statute and finding employer’s pract ice of using a “ level rat ing system,” under which each employee’s performance, seniority, and availability was considered, was lawful). 770 Moore , 2006 WL 2423328, at *5 (finding that voluntary t ip-sharingwith non-service employees was lawful under previous T ip Statute, but after 2004 amendment s an employer with knowledge of such arrangement must make reasonable effort s to stop the pract ice).