Opinion
No. X02-CV-04-4000676-S
November 29, 2005
MEMORANDUM OF DECISION RE CLASS CERTIFICATION
I. BACKGROUND
Plaintiffs seek certification of a class consisting of all servers who worked in any Briad restaurant in Connecticut from November 2002 to the present. During that period, defendant Briad operated various restaurants in Connecticut, under the name T.G.I. Fridays. Plaintiffs claim that Briad imposed standard policies and practices that required it to pay them the hourly minimum wage rather than deducting the Tip Credit allowed by Connecticut Law.
Servers at Briad's restaurants perform a variety of duties that are referred to generally as "running duties" or "side work." These may include such duties as ensuring that there are sufficient plates, napkins and silverware for the tables, making coffee and tea, and keeping an adequate, readily available, supply of condiments, salad dressing, salt and pepper. At times, a server may be required to stock sufficient silverware on tables to which he or she is not assigned. In the third count of their complaint, the plaintiffs allege that some servers were required to begin their shifts before the restaurant opened for business. In fact, some of the restaurants would have one to three people perform some pre-opening duties. These duties might include bringing ice from the kitchen to the serving stations, placing silverware on the tables and making sure that the serving stations were adequately supplied with condiments. The nature and duration of these duties varied from restaurant to restaurant, and the time required for these duties varied in each restaurant.
The defendant's practice is to distribute a small percentage of a server's daily gross sales to each class of employees: the host staff, bartenders, and bussers. The practice is known in the restaurant business as "tipping out." Plaintiffs allege that Briad violated the Connecticut Tip Credit Law. Under the Connecticut Minimum Wage Act, Briad is permitted to pay its servers 29.3% less than the otherwise applicable minimum wage in recognition of the servers receiving gratuities or "tips." Plaintiffs argue, inter alia, that in view of the fact that the servers are not receiving any "tips" prior to the opening of a store, they should be compensated at minimum wage rates for all set-up time, and time when they cannot receive tips.
Plaintiffs have filed the instant motion for class certification in an effort to represent approximately 680 members of the class of servers affected by the defendant's policies. The matter was argued before the court on November 14, 2005 wherein the court reserved decision.
II. LAW
Sections 9-7 and 9-8 of the Connecticut Practice Book set forth the requirements for certifying an action as a class action. The Connecticut Supreme Court recently summarized the two-step process a trial court follows in deciding a motion for class certification:
First, a court must ascertain whether the four prerequisites to a class action, as specified in Practice Book Section 9-7 are satisfied. These prerequisites are: (1) numerosity — that the class is not too numerous to make joinder of all members feasible; (2) commonality — that the members have similar claims of law and fact; (3) typicality — that the representative plaintiffs' claims are typical of the claims of the class; and (4) adequacy of representation — that the interests of the class are protected adequately.
Second, if the foregoing criteria are satisfied, the court then must evaluate whether the certification requirements of Practice Book Section 9-8 are satisfied. These requirements are predominance — that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members; and (2) superiority — that" a class action is superior to other available methods for the fair and efficient adjudication of the controversy."
Collins vs. Anthem Health Plans, Inc., 275 Conn. 309, 322 (2005).
The predominance test is the central issue in this particular motion. In order to determine if the plaintiffs meet the predominance test this court must "examine the individualized issues that each class member would have to prove in order to establish liability" on each count of the complaint. Id. at 328. The trial court cannot conduct an inquiry into the merits of the case. The court must conduct a practical, detailed analysis of the kinds of proof that will be required in order for it to be able to make the determination on the merits. This requires the court to conduct a three-part analysis in which it must:
(1) Review the elements of the causes of action that the Plaintiffs seek to assert on behalf of the putative class.
(2) Determine whether generalized evidence could be offered to prove those elements on a class-wide basis or whether individualized proof will be needed to establish each class member's entitlement to monetary or injunctive relief.
(3) Weigh the common issues that are subject to generalized proof against the issues requiring individualized proof in order to determine which predominate.
"Only when common questions of law or fact will be the object of most of the efforts of the litigants and the court will the predominance test be satisfied." Id. at 332.
Connecticut Agencies Regs. Section 31-62-E2(c) defines a "service Employee" as "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."
Connecticut Agencies Regs. Section 31-62-E4 provides:
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 are 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 wage.
Plaintiffs attempt to satisfy the predominance test by alleging that the common questions of law and fact that predominate over individual evidence are whether defendant's uniform practice of assigning "running duties" to every server, coupled with its failure to segregate the time spent performing these duties, precludes it from taking the "Tip Credit." Plaintiffs claim that their claims are based on uniformly applied practices which will require only generalized proof. They claim that their case will not involve an examination of what running duties were performed by which server on which date, or involve evidence regarding how much time was spent on service duties versus non-service duties. They claim that an analysis of each server's time records will satisfy the element of proof, with an analysis of the time spent before the stores opened. Defendant counters that the cases will require evidence on how much time was spent on service duties versus non-service duties, and what running duties were performed by which service on a given date.
A class member in this case can only suffer a loss if he or she performed "non-service duties" as described in Regulations Section 31-62-E4. Unfortunately, neither the Regulations nor the Statutes define "service duties" or "non-service duties." There is defined, as previously indicated, the definition of a service employee. If this definition is used by the court, non-service duties are only those duties that (1) do not "relate solely to the serving of food and beverages," or (2) do not relate "to the performance of duties incidental to such service."
Defendant argues that the determination of whether a particular duty was a service or a non-service duty necessarily depends on the unique facts and circumstances of the performance of that duty. It continues that proof of whether a given server was entitled to relief would require proof that a given class member had suffered a loss that was caused by the challenged policies of the defendant. This requirement would negate the beneficial effects of granting class certification.
Plaintiffs argue that it is easy to distinguish a related duty from an incidental duty. They argue that the act of bringing ice from a freezer and storing it at a service station near the tables to which the servers were assigned is a non-service duty. Defendant argues, that while the cubes may not go into a glass on the diner's table, the proximity of the ice allows the server to provide more prompt, effective service. Defendant further contends that this argument may extend to other areas claimed by the plaintiffs to be non-service, for example, stocking an adequate supply of plates, glassware, and napkins at a readily accessible service station or maintaining the supplies of salad dressings or dessert sauces, among other duties.
The court could also perform an evaluation of the time spent by each server on each particular task. Under Federal Law, the key issue is whether the requested duties are incidental to the regular duties and are generally assigned to such occupations. However, if the court found that certain duties were not incidental, it would have to determine the time spent at the non-related duty in order to apply the twenty percent Federal standard in accordance with the Fair Labor Standards Act.
Plaintiffs agree that they served different functions at different times of the day, in different stores. They attempt to limit all time when the store is closed to duties that are not incidental to their normal duties of serving customers. In this attempt the plaintiffs seek to certify a sub-class that consists of servers who performed pre-opening duties.
This court has performed the analysis required in the most recent Collins case. It is clear to the court, after an examination of the respective deposition testimony, that there was not one set policy in all of the defendants' stores. Different duties were performed at different times. The case will require proof, on all counts, that a given class member had suffered a loss that was caused by the challenged policies of the defendant. The court does not accept the simplistic approach proposed by the plaintiff. Such an approach is not supported by the deposition testimony. The plaintiffs have not met their burden with respect to the predominance test.