106 A.3d 432
N.H.2014Background
- Employer operated tip pooling requiring wait staff to contribute percentages of tips by area (hibachi, sushi) with specified distributions.
- Employees Rocheleau and Greaney left in 2011 and filed wage claims after DOL determinations in their favor.
- Statute RSA 279:26-b prohibits employer-controlled tip pools and requires voluntariness for participation.
- DOL found coercion or employer control rendering the tip pool invalid; manager/employee testimony supported lack of voluntariness.
- Superior Court reviewed de novo and affirmed DOL; employer challenges include coercion, calculation of lost wages, and attorney’s fees under RSA 275:53 III.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether tip pooling violated RSA 279:26-b | Rocheleau/Greaney: coercive process; signing not voluntary | Ichiban: signing voluntary; no employer control | Yes; tip pool violated RSA 279:26-b; DOL findings upheld. |
| Whether lost-wages awards were proper | Awards align with 60% pool of total tips | Amount disputed based on tip totals | Awards supported; calculations consistent with 60% of tips. |
| Whether attorney’s fees may be awarded in RSA 275:51, V appeals | Galloway allows fees in wage-claim appeals | Overrule Galloway; conflict with Ives | Galloway affirmed; fees available in RSA 275:51, V proceedings. |
Key Cases Cited
- Grimard v. Rockingham County Dep’t of Corr., 161 N.H. 69 (2010) (scope of review in DOL wage claims de novo on questions of law)
- Galloway v. Chicago-Soft, 142 N.H. 752 (1998) (attorney’s fees available in wage-claims; after Galloway no need to restrict to 275:53 actions)
- Demers Agency v. Widney, 155 N.H. 658 (2007) (supports awarding fees where wage claim meritorious)
- Ives v. Manchester Subaru, Inc., 126 N.H. 796 (1985) (statutory interpretation of 275:53; protective purpose of chapter 275)
- Appeal of Phillips, 165 N.H. 226 (2013) (stare decisis factors for overruling prior decisions)