Meshna v. Scrivanos
27 N.E.3d 1253
Mass.2015Background
- Plaintiffs are current and former hourly employees at Dunkin' Donuts stores franchised/managed by Scrivanos and NGP; all earned at least minimum wage.
- Defendants instituted a no‑tipping policy at many stores (employees instructed to refuse tips; disciplinary measures threatened). Initially, money left as tips was put into the cash register; after suit, defendants adopted an "abandoned change" cup and posted varying "no tipping" signage and oral scripts.
- Plaintiffs sued under Massachusetts' Tips Act (G. L. c. 149, § 152A), alleging the no‑tipping policy and defendants' retention/use of money left by customers violated the statute.
- Lower court granted summary judgment to defendants on the facial legality of a no‑tipping policy, denied summary judgment on claims about retaining monies left by customers, and reported two questions to the Appeals Court; the SJC took direct review.
- The SJC framed the issues: (1) whether the Tips Act permits an employer to maintain a no‑tipping policy, and (2) if so, whether the employer violates the Tips Act when customers nonetheless leave money that the employer retains — distinguishing failure to communicate the policy from clear communication.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Does G. L. c. 149, § 152A permit an employer to maintain a no‑tipping policy? | The Tips Act forbids any deduction from a tip; a no‑tipping policy effectively deducts the tip an employee would have received. | The statute prohibits employers from taking deductions from or retaining tips given to employees or employers, but does not forbid adopting a policy that precludes tipping. | Yes — the Tips Act does not prohibit an employer from imposing a no‑tipping policy. |
| 2a. If no‑tipping policy exists, may employer be liable under § 152A if it fails to clearly communicate the policy and customers leave money that is retained? | Money left by customers is intended for employees and thus is a "tip given to" employees; retaining it violates § 152A. | Policy alone is permissible; but if customers know it's in effect, retained money is not a tip. | Yes — if the employer has not clearly communicated the no‑tipping policy, sums left are tips that employees reasonably expect and employer retention violates § 152A. |
| 2b. If no‑tipping policy exists and is clearly communicated, may employer be liable under § 152A if customers nonetheless leave money that is retained? | Customers may intend to tip despite notice; employer should not benefit. | Clear notice means the money left is not a tip "given to" employees, so § 152A does not apply. | No — where the employer clearly communicates the policy, money left is not a tip given to employees and employer retention does not violate § 152A. |
Key Cases Cited
- DiFiore v. American Airlines, Inc., 454 Mass. 486 (2009) (interpreting Tips Act purpose to ensure service employees receive proceeds of assessed service charges)
- Cooney v. Compass Group Foodservice, 69 Mass. App. Ct. 632 (2007) (employer must remit service charges/tips paid to employer to covered employees)
- Bednark v. Catania Hospitality Group, Inc., 78 Mass. App. Ct. 806 (2011) (describing scope of Tips Act protections)
- Harvard Crimson, Inc. v. President & Fellows of Harvard College, 445 Mass. 745 (2006) (statutory interpretation should be consonant with common sense)
- DiGiacomo v. Metropolitan Prop. & Cas. Ins. Co., 66 Mass. App. Ct. 343 (2006) (statutory construction principles)
- Suffolk Constr. Co. v. Division of Capital Asset Mgt., 449 Mass. 444 (2007) (legislative inaction is not definitive evidence of intent)