Opinion
No. X07-CV04-4001612S
January 25, 2006
MEMORANDUM OF DECISION
The thirty-seven plaintiffs are persons who were employed by the defendant, Friendly Ice Cream Corporation, as waiters or waitresses during the period from September 2002 to September 2004. The plaintiffs move for certification of a class to pursue class action counts against the defendant. The complaint alleges that the defendant failed to pay servers the hourly, minimum wage mandated by General Statutes § 31-60 because the defendant unlawfully deducted "tip credits" from servers' wages. The putative class comprises all current or former servers employed at the forty-eight restaurants in Connecticut operated by the defendant and against whose wages tip credits were subtracted.
More specifically, the plaintiffs aver that the defendant took tip credits although it failed to segregate those portions of employment when servers performed non-service duties from those hours when service duties were performed as required by Section 31-62-E4 of the Regulations of Connecticut State Agencies before tip credits are legitimately available to an employer. The tip credit equals 29.3 per cent of the minimum wage.
In order for the court to certify the class, the plaintiffs bear the dual burdens of demonstrating that the prospective class meets the four prerequisites of Practice Book § 9-7 and the two conditions set forth in Practice Book § 9-8. Collins v. Anthem Health Plans, Inc., 275 Conn. 309, 320-21 (2005), hereafter referred to as Collins II.
Section 9-7 states that a class may be certified "only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class." If these prerequisites are satisfied, then § 9-8 obligates the plaintiffs to persuade the court that "the questions of law or fact common to the members of the class predominate over any questions affecting only individual members and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy."
In assessing whether the plaintiffs have fulfilled those criteria, the court must assume that the substantive allegations of the class action complaint are true. Id. Unlike a motion to strike, however, the court may supplement these allegations with information outside the pleadings "when determining whether the requirements for class certification have been met." Id. Thus, the question for the court to answer centers on the demands of §§ 9-7 and 9-8 and not on whether the plaintiff will prevail at trial. Id. In a close case, our jurisprudence favors certification. Id., 321-22.
I Section 9-7 Prerequisites A. Numerosity
It is undisputed that the defendant operated forty-eight restaurants in Connecticut during the relevant time period and that the number of servers employed by the defendant whose wages were subject to tip credit reduction is approximately 2,000. The defendant argues that, because the number of the perspective members of the class who might wish to join or decline to join this litigation is unknown, numerosity remains too speculative to satisfy § 9-7. The court disagrees with this analysis.
It is the population of the proposed class which determines numerosity rather than evidence of the level of interest in the case within that population. It is true that the numerosity prerequisite cannot be satisfied through mere speculation. Arduini v. Auto Ins. Co. of Hartford, Conn., 23 Conn.App. 585, 591 (1990). However, in this case the size of the proposed class is fairly determined to be around 2,000. The fact that an unknown percentage of class members might wish to opt out of the case is immaterial once the appropriate population of the putative class is ascertained.
The court finds it would be highly impracticable to have hundreds of plaintiffs join this lawsuit as participating litigants. The court concludes that the numerosity prerequisite is satisfied by the proposed class.
B. Commonality
"The commonality test is met when there is at least one issue whose resolution will affect all or a significant number of the putative class members." Collins II, supra, 324. This threshold is a low one to overcome. Id. Commonality "is satisfied as long as the members of the class have allegedly been affected by a general policy of the defendant, and the general policy is the focus of the litigation." Id. General practice alone is sufficient to establish commonality despite the varying degrees to which each member of the prospective class may be impacted by that policy. Id., 324-26.
The plaintiffs allege that, during the pertinent period, the defendant had a corporate-wide policy of improperly categorizing side duties, such as preparing soups, salads, and ice cream fountain items; brewing hot beverages; rolling napkins and silverware, restocking condiments, ice, and salad bar items, and performing cleaning and other housekeeping tasks, as duties incidental to service work rather than as non-service duties which require time segregation before tip credit may be lawfully applied to reduce the hourly minimum wage. Regarding these substantive allegations as true, the plaintiffs have met the commonality prerequisite of § 9-7.
Section 31-60(b) empowers the Labor Commissioner to promulgate regulations governing the use of tip credits against minimum wage for "gratuities in an amount (1) equal to twenty-nine and three-tenths per cent of the minimum fair wage per hour for persons, other than bartenders, who are employed in the hotel and restaurant industry . . . who customarily and regularly receive gratuities . . ."
The Labor Commissioner has issued Section 31-62-E4 of the Regulations of Connecticut State Agencies which provides that "[i]f 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 allowance for gratuities may be applied as part of the minimum fair wage." In addition, the Department of Labor has published a guide for restaurant employers defining "service employee" and service duties which contain a non-exclusive list of non-server tasks which must be segregated definitively from server duty time in order for the employer to take advantage of the tip credit allowance.
The court finds, based on the allegations of the complaint and the material submitted in conjunction with this motion for certification, that the resolution of whether the side duties enumerated in the complaint disallow the tip credit, absent definite, time segregation, presents legal and factual issues common to a significant number of the members of the proposed class.
C. Typicality
Typicality requires that the particular claims of the representative plaintiffs be typical of the claims of the putative class. Collins v. Anthem Health Plans, Inc., ( Collins I), 266 Conn. 12, 34 (2003). This prerequisite "is satisfied when each class member's claim arises from the same course of events, and each class member makes similar legal arguments to prove the defendant's liability." Id. The specific factual allegations of the representative plaintiff need not be identical with those of every potential class member, but the disputed issues of law and fact must "occupy essentially the same degree of centrality" in the representative's case as in the case of the members of the proposed class. Id.
In the present case, the general nature of the representative plaintiffs' claims are very similar to the legal and factual issues which would form the foundation of the claims of every member of the putative class, viz, that the defendant's corporate policy unlawfully subtracted tip credits from the minimum hourly wage paid to servers by failing to segregate non-service duty time from service duty time. The individual claims of the named plaintiffs will, of course, differ as to specific work done and amount of hours to which the allegedly illegal tip credit was applied, but the legal arguments and evidence of corporate policy will be generic. There will be nothing unique or peculiar concerning the named plaintiffs' proof which would render their claims atypical. The court finds that the typicality prerequisite of § 9-7 is satisfied.
D. Adequacy of Representation
The adequacy of representation prerequisite deals with the competency of plaintiffs' counsel to litigate a class action of the sort outlined by the complaint and conflicts of interest. Collins II, supra, 326. The two factors which guide the court in assessing adequacy of representation are the absence of conflict and the assurance of vigorous prosecution of the case by qualified counsel Id. Counsel's competency to present the class claims is undisputed.
Thus, the remaining question is whether there exist any conflicts which disable the proposed, representative plaintiffs from fairly and satisfactorily protecting the interests of the class members generally. Id., 327. All members of the putative class would seek the same factual and legal outcome, i.e. that the defendant has misinterpreted the applicability of the tip credit laws and regulations by failing strictly to segregate specified non-service tasks from service duties. The court discerns no conflict between the named plaintiffs and the members of the proposed class.
The court, therefore, finds that the plaintiffs are adequate representatives for the putative class and that their counsel are capable of vigorously pursuing the interests of the class.
II Section 9-8 Findings
"Class-wide issues predominate if resolution of some of the legal or factual questions that qualify each class member's case as a genuine controversy can be achieved through generalized proof and if those particular issues are more substantial than the issues subject only to individualized proof." Collins II, supra, 329 (emphasis in original). "Whether an issue predominates can only be determined after considering what value the resolution of the class-wide issue will have in each class member's underlying cause of action." Id., 329-30 (emphasis added). "Common issues of fact and law predominate if they have a direct impact on every class member's effort to establish liability and on every class member's entitlement to . . . monetary relief." Id., (Emphasis added.)
The court deduces from these quotes that it is insufficient for the named plaintiffs merely to establish that the common issues will predominate for most or even a high percentage of the members of the proposed class. Under the analysis employed in Collins II, supra, the plaintiffs must demonstrate that the general proof of the class-wide factual and legal issues will predominate over the individualized proof for each and every one of the 2,000 prospective members of the putative class. The court finds that the plaintiffs have failed in this endeavor based on the claims in this case.
When evaluating predominance, the court should engage in a three-part inquiry. Id., 331-32. First, the court must review the elements of the causes of action asserted; second, the court must determine whether common proof will establish those elements for all class members or whether personalized proof will be necessary to entitle each member to the relief sought, and third, the court must weigh the common evidence against the individual proof in order to decide which type of evidence predominates. Id.
In the first count, the plaintiffs allege that the defendant's deduction of tip credits from the minimum, hourly wage paid to its servers violated the state's minimum wage law and that such violation entitles every such employee to reimbursement for these deductions "for all hours of work performed since the two-year period immediately preceding the service of this action." Complaint, paragraph 29. The second count alleges that these violations were arbitrary, made in bad faith, or unreasonable and entitle all class members to double damage and attorneys fees. See General Statutes § 31-68.
The plaintiffs contend that they simply need to submit proof at trial that the defendant had a corporate policy of requiring all its servers to perform the side tasks listed above, that these side tasks are non-service duties under Regulation 31-62-E4, and that the defendant failed to segregate the work hours devoted to such side duties from service duty time. Under the plaintiffs' approach, the only individualized evidence offered would be as to damages, that is the specific number of hours worked by each server against which the tip credit was taken.
The court disagrees that such generalized proof would suffice to establish the defendant's liability with respect to each particular employee. At trial, the defendant has the right to require the plaintiffs to meet the normal burden of proof as to each member of the proposed class and prove that each particular member performed non-service duties for a specific time period. The plaintiffs acquire no presumption of violation of the minimum wage law for all servers for all hours of work because it would be convenient and expeditious to do so. Id., 339. The plaintiffs would retain the evidentiary responsibility to prove every element of the cause of action for each member of the putative class as if that member were the sole plaintiff. The plaintiffs' blanket approach to establishing liability "essentially amounts to an end run around the defendant's right to have each class member prove the essential elements of liability." Id., 338-39.
Our law, as explicated by Collins II, supra, would demand evidence proving that each individual server of the proposed class performed specific, non-server duties during particular weeks within the pertinent time period. Such individualized proof is especially important in this case because, at trial, the fact-finder may reject the plaintiffs' characterizations as non-service duty regarding some of the side tasks which the complaint labels as such. In other words, the trier of fact may determine that, while some of the side duties listed were non-service duties, some tasks are incidental to service duties. The fact-finder would need evidence as to each member of the class concerning what specific duties that member performed, and at what times, that required segregation before a tip credit was allowed.
A trial court recently reached the same conclusion and denied class certification regarding tip credit deductions for servers working for another restaurant chain, Galbreth v. Briad Restaurant Group, Superior Court, C.L.D. Waterbury, d.n. X02-CV04-4000676 (November 29, 2005), Eveleigh, J. ( 40 Conn. L. Rptr. 402) The court concludes that the production of necessary, individualized evidence will outweigh the generalized proof both in time and volume.
For these reasons, the motion for class certification is denied.