Opinion
No. X01 CV-04-400 02 38 S
November 8, 2006
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT ( #139)
BACKGROUND
Four (4) plaintiffs Andrea Bucchere, Tara-Ann Teetman, Ty Bladek, and Nicole Miller (Plaintiffs) bring the present suit against Brinker International, Inc. ("Brinker International") and Brinker International Payroll Company, L.P. ("Payroll"), (collectively "Defendants"). All were employed at Chili's Grill Bar, On The Border, or Romano's Macaroni Grill, all of which restaurant chains are owned by Brinker International, a Delaware corporation headquartered in Dallas, Texas. Essentially, their complaint alleges that their employers improperly took a "tip credit" of 29.3% ( P.A. 04-68 effective 1/1/05 the "tip credit" under P.A. 80-64 had been 23%) of the state minimum wage towards payment of total wages. and, in this and in other ways, violated C.G.S. § 31-58 et seq., the Connecticut Minimum Wage Act (CMWA). In that Defendants:
1) Did not obtain the necessary signed tip statements pursuant to Conn. Agencies Reg. Sec. 31-62-E2(c) and 31-62-E3(c);
2) Did not record weekly as a separate item "the amount claimed as credit" as required by Conn. Agencies Reg. Sec. 31-62-E3(b). (Brinker maintains its "wage records" in its "Brinker Store System" (BSS), a computer system found in and used by each of Defendants' Connecticut Restaurants);
3) Assigned non-service duties, a/k/a, "opening duties," "side work," "running duties," and/or "closing duties," to Plaintiffs but did not segregate those duties from Plaintiffs' service duties and did not pay for the hours spent performing these non-service duties at the full minimum fair wage as required by Conn. Agencies Reg. Sec. 31-62-E4;
4) Required Plaintiffs to give a portion of their tips to other employees, usually Bussers, Expediters, Hostesses and/or Bartenders and that this "tip out" requirement is not provided for in the CMWA or the regulations related thereto and defeats the claim that Plaintiffs "customarily received gratuities" and because Plaintiffs were allowed to retain only what was left over after "tipping out," they did not receive their tips "in whole;" and
5) Failed to post "Mandatory wage order #8, Minimum Fair Wage rates For Persons Employed In The Restaurant And Hotel Restaurant Occupations," which sets out the provisions of Conn. Agencies Reg. Sec. 31-62-E1 though Sec. 31-62-E12 and Sec. 31-62-E14 in violation of Gen. Statute § 31-68.
Plaintiffs allege that Defendants applied these policies and practices to each Plaintiff, thus depriving them of Connecticut's full fair minimum wage.
Defendants have moved for Summary Judgment on the grounds that:
1) At all times the Plaintiffs were paid the "tip credited wage" they were performing service duties as "Service Employees" or "duties incidental to such service" ("side work") and therefore Defendants were entitled to take the "tip credit" from their hourly wage. (Defendants do not dispute for purposes of this Motion for Summary Judgment that the Plaintiffs performed side work that included, inter alia: running dishes from the dish room to the kitchen, stacking plates, sweeping, wiping down ledges, doing take-out orders, washing dishes, stocking bathrooms with paper towels and toilet paper, restocking" tort hats," restocking plates, cups, soup bowls, ramekins and silverware, filling the soda machine with ice, cleaning and restocking the soda station, restocking soda syrups, cleaning and restocking the chip machine, cleaning and restocking the coffee station, cutting lemons, filling salad dressings, changing over salad dressings, filling the dessert station, ice cream and toppings, wiping down counters, emptying garbage, stocking straws, cups, kid's cups and lids, restocking "fajita hats," restocking skillet woods, filling the shake machine, cleaning the shake machine, stocking the wait stations, cleaning the reach-in refrigerators, cleaning trays, Defendants argue that this side work is "incidental" to "service duties");
2) The definition of "incidental" is clear and unambiguous and inclusive of the side work performed by the Plaintiffs under § 31-62-E2(c);
3) Plaintiffs have no right to sue to enforce the "record keeping" requirements of § 31-62-E2(c) and E3(c);
4) Even if Plaintiffs could demonstrate a private right of enforcement for record keeping violations, Defendants maintain conforming records in their BSS system which Defendants claim is a "signed statement" under the Connecticut Uniform Electronic Transactions Act, Conn. Gen. Stat. §§ 1-266 et seq.;
5) The "tipping out" policy does not effect Defendant's payment of the "tip credit wage;
6) Plaintiffs have suffered no damages as a result of the alleged violations insofar as none of the Plaintiffs earned less than the standard minimum wage for any time worked for Defendants; and
7) Judgment should enter as to Brinker International because they were not Plaintiffs' employer.
For the reasons set out below the motion for Summary Judgment is Denied.
APPLICABLE LAW
Summary judgment shall be rendered if the pleadings, affidavits and any other proof submitted show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. P.B. § 17-49. The moving party has the burden of showing the absence of any genuine issue of material fact and therefore his/her entitlement to judgment as a matter of law. D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908, (1980). "[T]he party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact . . ." (Citations omitted.) Appleton v. Board of Education, 254 Conn. 205, 209, 757 A.2d 1059, (2000). It "must be demonstrated by counter-affidavits and concrete evidence." (Citations omitted.) Pion v. Southern New England Telephone, 44 Conn.App. 657, 663 (1997). "A material fact . . . [is] a fact which will make a difference in the result of the case." (Citations omitted.) H.O.R.S.E. of Connecticut, Inc. v. Washington, 258 Conn. 553, 560, 783 A.2d 993, (2001). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Citations omitted.) Barry v. Quality Steel Products, Inc., 263 Conn. 424, 450, 820 A.2d 258 (2003). "The test is whether a party would be entitled to a directed verdict on the same facts." (Citations omitted; Internal quotation marks omitted.) Cummings Lockwood v. Gray, 26 Conn.App. 293, 296-97, 600 A.2d 10401040 (1991). "In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." (Citations omitted.) Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). A conclusory assertion [in an affidavit] does not constitute evidence sufficient to establish the existence of a disputed material fact for purposes of summary judgment. See Hoskins v. Titan Value Equities Group, Inc., 252 Conn. 789, 793-94, 749 A.2d 1144 (2000).
"In ruling on a motion for summary judgment, the court must decide whether there is a genuine issue of material fact. If there are issues of fact, the court may not resolve them without giving the parties a full hearing. Town Bank Trust Co. v. Benson, 176 Conn. 304, 307, 407 A.2d 971 (1978); McColl v. Pataky, 160 Conn. 457, 459, 280 A.2d 146 (1971). Summary judgment is not appropriate in cases involving mixed questions of law and fact . . . Spencer v. Good Earth Restaurant Corp., 164 Conn. 194, 198-99, 319 A.2d 403 (1972). Summary judgment should not be used in cases that concern important public issues or questions of inference as to motive or intent; Nolan v. Borkowski, supra, 206 Conn. 505; see Picataggio v. Romeo, 36 Conn.App. 791, 793-94, 654 A.2d 382 (1995).
Summary judgment "is appropriate only if a fair and reasonable person could conclude only one way." (Citations omitted.) Miller v. United Technologies Corp., supra, 233 Conn. 751. "[A] summary disposition . . . should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party." (Internal quotation marks omitted.) Id., 752. "[A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the non movant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed." (Citations omitted; Emphasis in original.) Id., 752.
"Questions involving matters of statutory construction arc questions of law on which the agency's view is entitled to deference but is not dispositive. See DaSilva v. Administrator, 175 Conn. 562, 564, 402 A.2d 755 (1978). See also Bridgeport Metal Goods Mfg. Co. v. Administrator, 2 Conn.App. 1, 3, 479 A.2d 329 (1984)." Walsh v. CT Unemployment Comp., 2002 Ct.Sup. 1975, No. CV 99 058 61 21S (Feb. 26, 2002).
The construction of a statute or regulation by an administrative agency, while not controlling, is entitled to considerable deference. Griffin Hospital v. Commission on Hospitals and Health Care, 200 Conn. 489, 496, 512 A.2d 199 (1986). Indeed, [when] the application of the appropriate law . . . to the facts of the case involves mixed questions of fact and law . . . the expertise of the agency is highly relevant. United Parcel Services, Inc. v. Administrator, 209 Conn. 381, 386, 551 A.2d 724 (1988).
"The minimum wage law . . . should receive a liberal construction as regards beneficiaries so that it may accomplish its purpose . . . Shell Oil Co. v. Ricciuti, 147 Conn. 277, 283, 160 A.2d 257 (1960), citing West v. Egan, 142 Conn. 437, 442, 115 A.2d 322 (1955); see Rising Sun Enterprises, Inc. v. Frank Santaguita, Commissioner, Superior Court, judicial district of Hartford, Docket No. 132588 (April 6, 1979, Graham, J.) This applies no less to the rules and regulations adopted by an administrative agency under its delegated authority to implement those laws. Rising Sun Enterprises, Inc. v. Frank Santaguita, Commissioner, supra.The legislative policy of the minimum wage law is to establish a wage fairly and reasonably commensurate with the value of a particular service or class of service rendered . . . West v. Egan, supra, 443. In furtherance of that principle, it is essential that exemptions or exclusions be strictly and narrowly construed. The burden rests on the employer to establish that his employees come within an exemption. Whether particular employees are within the coverage of the law must be determined in each case on its own particular facts . . . (Citations omitted.) Shell Oil Co. v. Ricciuti, supra." (Internal quotations omitted.) Labor Department v. America's Cup, 1994 Ct.Sup. 4127, 4129-30 (April 21, 1994, Hennessey, J.)
DISCUSSION
"General Statutes 31-60(b) requires the adoption of regulations recognizing certain gratuities as part of the minimum wage. This statute states in part:
The labor commissioner . . . shall make such regulations as may be appropriate to carry out the purposes of this part. Such regulations . . . shall recognize, as part of the minimum fair wage, gratuities in an amount equal to twenty-three per cent of the minimum fair wage per hour for persons employed in the hotel and restaurant industry . . .
This citation refers to the "tip credit" amount prior to P.A. 04-68.
Conn. Agencies Regulations 31-62-E2(c) and (d), adopted pursuant to 31-60, distinguish a `service employee' from a `non-service employee' of a restaurant as:
`Service employee' means any employee whose duties relate solely to the serving of food and/or beverages to patrons seated at tables or booths, and to the performance of duties incidental to such service, and who customarily receives gratuities.
`Non-service employee' means an employee other than a service employee, as herein defined. A non-service employee includes, but is not limited to, countergirls, counterwaitresses, countermen, counter waiters and those employees serving food or beverage to patrons at tables or booths and who do not customarily receive gratuities as defined above.
Pursuant to regulations 31-62-E1 et seq., if the complainants are found to be `service employees,' the defendants are entitled to recognize, as part of the minimum fair wage, gratuities received by the employee. However, if the complainants are determined to be `non-service employees,' the complainants are entitled to receive the full minimum fair wage.
Section 31-62-E4 sets forth the rule for determining whether a restaurant employee who performs both service and non-service duties may have gratuities applied as part of the minimum fair wage:
If an employee performs both service and non-service duties, and the time spent on each is definitely segregated and so recorded, the allowance for gratuities as permitted as part of the minimum fair wage may be applied to the hours worked in the service category. If an employee performs both service and non-service duties and the time spent on each cannot be definitely segregated and so recorded, or is not definitely segregated and so recorded, no allowances for gratuities may be applied as part of the minimum fair wage.
Labor Department, supra, 1994 Ct.Sup. 4128-29.
The Connecticut Department of Labor's Guide for Restaurant Employers in Connecticut, published by the Wage and Workplace Standards Division — Connecticut Department of Labor, December 2004, 10th Edition ("Guide") describes the typical duties of a service employee as follows:
1) Taking food and beverage orders from patrons.
2) Bringing the orders to the table or booth.
3) Cleaning up the immediate area of service.
4) Filling the condiment containers at the tables or booths.
5) Vacuuming their own immediate service area.
6) Replacing the table setting, at their own service area.
The Guide describes the typical duties of a non-service employee as follows:
1) Cleaning the restrooms.
2) Preparing food.
3) Washing dishes.
4) Host or hostess work.
5) General set-up work before the restaurant opens.
6) Kitchen clean-up.
7) General cleaning work.
8) Waiting on takeout customers.
THE SERVICE VERSUS NON-SERVICE ISSUE
The parties agree that Plaintiffs performed side work while working as Servers. Defendant suggests that the question of whether this side work is incidental to service is readily resolvable simply by applying standard legislative interpretive tenets to the Statutes and Regulations in issue.
The disputed issue surrounding Plaintiffs' side work is, argues the Defendants, the purely legal one of whether that side work constituted a "service duty," or a duty "incidental to service," or a "non-service" duty within the meaning of the Regulations. As detailed in Defendants' Motion, absent clear interpretive guidance from the drafters of a Regulation, the Court should first analyze the language of the Regulation itself, and if meaning is not clear from this analysis, consider the body of law in which the Regulation sits and other similar laws to glean an interpretation that makes the Regulation as effective and workable as possible in context. The Defendants argue that the court should totally disregard the "Guide" because it has no legal authority. The Defendants posit that because the Regulations in issue here have never been subjected to judicial review, "[I]t is for the courts, and not administrative agencies, to expound and apply governing principles of law." Citing CT Page 20650 Cendant Corporation v. Commissioner of Labor, 276 Conn. 16, 26-27 (2005). As stated above statutory interpretation is a process where consideration should be given to (here in the Guide) the construction given the statutes and regulations by the agency (Connecticut Department of Labor) responsible for the enforcement of such statutes and regulations. This principle applies with even greater force here to an agency's interpretation (the Guide) of its own regulations.
The court finds that the resolution of whether the side work performed here disallows the tip credit wage presents mixed questions of law and fact that should not be decided by summary judgment.
THE RECORD KEEPING AND NOTICE ISSUES
As with Plaintiffs' side work claim, there are no factual disputes about how Defendants maintained Plaintiffs' tip declarations and other wage records. The only matter in dispute is, argues the Defendants, the purely legal issue of whether Defendants' record keeping, the BSS system, comports with Regulatory requirements and whether Plaintiffs have a private right of enforcement if they do not.
Plaintiffs argue that the Defendants did not obtain the signed weekly tip statements required by Conn. Agencies Regs. §§ 31-62-E2(c) and E3(c) nor did the Defendants record the amount claimed as credit for part of the minimum wage on a weekly basis as a separate item in the wage record. Conn. Agencies Regs. § 31-62-E3(b).
The Defendants likewise do not dispute that they do not post the Mandatory Order No. 8 at any of the locations here in question.
Here again there are, in the court's opinion, questions of fact and law as to whether the records used by the Defendants or the failure to post Mandatory Order #8 conform to the regulations. The final factual issue here is to what extent the Defendant's payment of the "tip credit wage" is effected by any violation of the record keeping and/or posting issues. The private cause of action here relates to whether the Defendants may pay the "tip credit wage" not whether the Plaintiffs can sue to enforce the record-keeping Regulations. CT Page 20651
THE TIP OUT ISSUE
Defendants do not dispute, that Plaintiffs were required to give a portion of their tips each day to other employees. Plaintiffs argue that this "tip out" requirement has no support in the statutes or regulations and defeats Defendant's claim that Plaintiffs customarily received gratuities and therefore the practice violates the CMWA. The Defendant's position is that Plaintiffs cannot and do not point to a statute, regulation, opinion letter or guidance that actually prohibits "tipping out" or "tip sharing" policies. Here again an issue that may affect the Defendant's ability to pay the "tip credit wage." The fact that the tip out issue is not prohibited by the Statutes or the Regulations does not lead to the conclusion that the policy comports with the Statute and Regulations.THE DAMAGES ISSUE
It is yet another undisputed fact that each Plaintiff earned in excess of the standard minimum wage for every hour they worked for Defendants and Defendants claim that without any ability to demonstrate some financial harm, Plaintiffs' lawsuit is an exercise in illogic. Sec. 31-68(a) states in part that "If any employee is paid by his employer less than the minimum fair wage or overtime wage to which he is entitled under sections 31-58, 31-59 and 31-60 or by virtue of a minimum fair wage order he may recover, in a civil action, twice the full amount of such minimum wage less any amount actually paid to him by the employer, with costs and such reasonable attorneys fees as may be allowed by the court, . . ." The court reads this language to say that the employee may recover "twice" the relevant minimum wage if the plaintiff/employee is successful in a "civil action" "less" any amounts paid by the employer . . ." The pay received by the Plaintiffs relates to the "amounts paid by the employer" and the application of that amount to the calculation of any recovery here if Plaintiffs should ultimately prevail. The actual pay, if greater than the minimum wage does not lead to the conclusion that there can be no recovery.
BRINKER INTERNATIONAL — STATUS
There is jurisdiction over Brinker International see Bucchere v. Brinker International, Inc. 49 Conn.Sup. 441 (2005).