Opinion
HHDCV156062506S
11-09-2017
Shaneque Stevens v. Vito's By the Water, LLC
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
CESAR A. NOBLE, J.
The Connecticut Minimum Wage Act, General Statutes § 31-58 et seq. (CMWA), permits an employer to pay restaurant employees who customarily and regularly earn gratuities a minimum wage which recognizes the receipt of such gratuities. See General Statutes § 31-60(b). The present action alleging a CMWA violation was tried to the court on June 7 and 9, 2017. The central issue is whether the defendant, Vito's By The Water, LLC (Vito's), improperly applied a tip credit to the wages paid to the plaintiff, Shaneque Stevens, who had been employed by Vito's as a waitress. Stevens asserts that she was required to perform non-service duties to which the tip credit may not be applied. The court received testimony from Stevens and Robert Maffucci, the owner of the defendant, as well as numerous exhibits. The parties submitted post-trial briefs on July 14, 2017. After careful consideration of the trial testimony, all full exhibits as well as the arguments of counsel and the parties' post-trial briefs, the court renders the decision herein.
The difference between the minimum fair wage provided for by the CMWA and the minimum wage permitted to be paid to service employees who customarily and regularly receive gratuities is referred to as the " tip credit."
Burden of Proof
The plaintiff has the burden of proving her claims by a preponderance of the evidence. She sustains that burden if " the evidence, considered fairly, induces in the trier's mind a reasonable belief that it is more probable than otherwise that the fact or issue is true . . ." (Citation omitted; internal quotation marks omitted.) Holmes v. Holmes, 32 Conn.App. 317, 318, 629 A.2d 1137, cert. denied, 228 Conn. 902, 634 A.2d 295 (1983). " The general burden of proof rests upon the plaintiff in civil actions." (Citations omitted; internal quotation marks omitted) Suresky v. Sweedler, 140 Conn.App. 800, 807, 60 A.3d 358 (2013).
Findings of Fact
The court makes the following findings of fact. Vito's is a restaurant and banquet facility located in Windsor, Connecticut. Stevens was employed by Vito's as a server/waitress and bartender from September 2013 through August 2015. Stevens' duties as a server included waiting on customers who were seated at tables and booths, taking the customers' orders, relaying the orders to the kitchen, and delivering the food to the customers. Stevens was also required to perform duties incidental to such service, such as straightening the tables once a customer had left, cleaning underneath the tables and replenishing the salt and pepper content of containers on her assigned tables. As a consequence of these duties, Stevens customarily received gratuities in excess of ten dollars per week. At all times relevant to her claim Stevens was paid at an hourly rate equal to the minimum wage for service employees with a deduction for the tip credit.
The plaintiff makes no claim of CMWA violations in connection with her work as a bartender.
General Statutes § 31-60(b) permits employers to include gratuities as part of the minimum fair wage for employees in the restaurant industry who customarily and regularly receive gratuities (tip credit).
The physical layout of Vito's included a main dining room and a kitchen, between which was a main service station used by all wait staff. An aluminum shelf with counters, referred to as " the line, " separated the main service station and the kitchen. Food orders were placed on the line when ready for delivery to customers. The line was used generally by all servers and was not in the immediate area of the tables or booths where the servers waited on customers.
Satellite service stations were placed around the dining areas closer to the tables being served by the wait staff on which extra plates and silverware were kept.
The plaintiff was also required by Vito's to perform certain tasks that were labeled " sidework, " which consisted of various opening and closing duties on each shift. The sidework was performed away from the tables serviced by the wait staff and not in the servers' immediate service area. The sidework varied according to the meal that was being served (i.e. lunch or dinner) whether the server was opening or closing a meal, the location where the server worked, and when the server was to be " cut" or released from work during a shift.
The court finds that that lunch sidework included, but was not limited to: putting on " the line" lemons, calamari sauce and parsley; making " backups" of aioli and calamari sauce; cutting lemons; cutting parmesan cheese; assembling graters and stocking them with cheese; stocking to-go containers and bags; stocking credit card paper and printer papers; stocking straws, server cups and plastic aioli ramekins; stocking the raw bar with oyster crackers, wet naps and tabasco; setting up the cappuccino machine located in the main service area to include filling it with coffee beans, milk and water; stocking cream, milk and putting water pitchers on server stations; restocking coffees, teas, sugars from the dry storage area outside of the immediate service station; restocking to-go containers, plastic bags and lids; wiping down food and beverage trays, wiping down " the line" and shelves on " the line" and cleaning all pizza pedestals; taking out trash from the kitchen and server stations to the outside dumpster; organizing check presenters; cleaning the cappuccino machine and under the machine; vacuuming the main dining room; and " double forking" the entire dining room.
The court finds that dinner-related sidework included, but was not limited to: emptying all salt and pepper shakers in the dining room and running them through the dishwasher; cutting lemons; preparing and putting out silverware trays; wiping down all main dining room chairs and cushions; filling and putting out cheese and red peppershakers for pizza; wiping down ledges of windows in the main dining room and the side dining room; taking out trash from the kitchen and server stations to the outside dumpster; emptying all grated cheese and red pepper shakers in the dining room and thereafter running them through the dishwasher; and filling the ice bin.
The sidework enumerated above was in the nature of general cleaning and setup work which was not performed in Stevens' immediate service area, but rather, and variously, at the central service station (which was not in the dining room), the walk-in cooler, the dry storage room, or in the parking lot where the dumpster was located. One or more of these duties was to be performed during each lunch and dinner shift regardless of the " cut" or when a service person was released during a shift. Servers who worked the lunch opening shift were required to be present for work at 10:30 a.m., although Vito's did not open for customers until 11:00 a.m., and thus the servers were not earning tips during this time. Additionally, one or more of the above side work duties were required to be performed at the end of each shift including those of the Stevens. Stevens performed 40-50 minutes of sidework every day that she worked as a server for Vito's. Stevens was paid for the side work at the minimum wage minus the tip credit.
The court finds that Vito's did not obtain from Stevens a signed weekly statement verifying her receipt of gratuities. While Vito's asserted that other employment records, such as paycheck stubs, documented the amount of tips received, none was signed by the plaintiff. Vito's also did not segregate Stevens' time between sidework and service duties. In 2013 the minimum wage was $8.25 per hour, to which Vito's applied a tip credit of $2.56 and paid the plaintiff $5.69 per hour. In 2014 the minimum wage was $8.70 per hour, to which Vito's applied a tip credit of $3.01 and paid the plaintiff $5.69 per hour. In 2015 the minimum wage was $9.15 per hour, to which Vito's applied a tip credit of $3.37 and paid the plaintiff $5.78 per hour. The total amount of minimum wage for the relevant period of employment without application of the tip credit was $15, 364.84. Vito's actually paid Stevens $10, 025.56 during this period.
The court credits the plaintiff's estimate of hours that she worked during 2013, 2014 and 2015 as well, as her damages analysis. See Plaintiff's Exhibit 8. The difference between the amount actually paid to Stevens and the amount she would have been paid at the minimum fair wage without a tip credit is obtained from the calculations in her damages analysis.
Vito's owner, Robert Maffucci, took no active steps to ascertain if payment to the plaintiff for her side work of the minimum fair wage with a deduction for the tip credit was in compliance with the law. In short, he was ignorant of the law. Moreover, while he testified he relied generally on the knowledge of others--rather than his own--as to compliance with the CMWA, he offered no testimony that he inquired specifically of any reliable source whether his payments to employees of the service minimum wage for side work was legally compliant. Neither did he articulate a basis for relying on the familiarity or knowledge of others, such as his bookkeeper, with the CMWA's mandate.
Analysis
The legal framework controlling the court's findings of fact is the CMWA, which mandates the payment of a " minimum fair wage" in any industry or occupation in this state. General Statutes § 31-58(i). " The minimum wage law . . . should receive a liberal construction as regards beneficiaries so that it may accomplish its purpose . . ." (Citations omitted.) Shell Oil Co. v. Ricciuti, 147 Conn. 277, 282-83, 160 A.2d 257 (1960). General Statutes § 31-60(b) mandates an exception to the minimum fair wage by directing the Commissioner of the department of labor to adopt regulations that recognize gratuities as part of the minimum fair wage for hotel and restaurant employees who customarily and regularly receive gratuities (tip credit). The regulations so adopted " distinguish between service employees, for whom restaurant industry employers can apply a tip credit and pay the reduced minimum wage, and nonservice employees, who must receive the full minimum wage." Amaral Bros., Inc. v. Dep't of Labor, 325 Conn. 72, 75-76, 155 A.3d 1255 (2017) (citing Regs., Conn. State Agencies, § 31-62-E1 through 31-62-E4). A service employee is defined 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 . . ." Regs., Conn. State Agencies § 31-62-E2(c). A non-service employee is defined simply as " an employee other than a service employee." Regs., Conn. State Agencies § 31-62-E2(d). The department of labor provides greater detail in the distinction between service and non-service duties in the " Guide for Restaurant Employers in Connecticut, " published by the Wage and Workplace Standards Division (DOL Guide). Available at https://www.ctdol.state.ct.us/wgwkstnd/wage-hour/restaurant.htm (last visited Nov. 8, 2017). The DOL Guide is the construction of a regulation by an administrative agency which is entitled to deference. See Bucchere v. Brinker International, Inc., Superior Court, judicial district of Waterbury, Docket No. X01-044000238S, (2006 WL 3361403, at *3) (November 8, 2006, Cremins, J.) (applying deference to DOL Guide); Par Developers, Ltd. v. Town of Killingworth Planning & Zoning Comm., Superior Court, judicial district of Middlesex, Docket No. 67644, (1995 WL 562205, at *7) (September 15, 1995, Higgins, J.) (great deference is accorded to construction of regulations given by agency charged with its enforcement). The DOL Guide provides that: " In order for an employee to be eligible for a tip credit, he or she must be engaged in performing service duties. The following is a list of such [service] duties:
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.(Emphasis in the original.) DOL Guide, p. 1. A service employee is defined 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. This means that a tip credit (toward the minimum wage) can be taken only for waiters and waitresses, and only during the time for which they are actually serving patrons at tables or booths, or performing closely related duties, and when they are receiving gratuities." (Emphasis in the original.) Id. " Non-service duties" include preparing food, washing dishes, general set-up work before the restaurant opens, kitchen clean-up and general cleaning work. Id.
There are two provisions of the regulations with which employers must comply in order to exempt payment of the minimum fair wage by availing themselves of the tip credit. The employer is required to " obtain weekly a statement signed by the employee attesting that he has received in gratuities the amount claimed as credit for part of the minimum fair wage." (Emphasis added.) Regs., Conn. State Agencies § 31-62-E3(c). Additionally, an employer is mandated to segregate service and non-service time worked by an employee and pay the employee the corresponding rate for each. " In furtherance of [the policy affording the CMWA a liberal construction] it is essential that exemptions or exclusions be strictly and narrowly construed." Shell Oil Co. v. Ricciuti, supra, 147 Conn. 283.
" 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." § 31-62-E4 of the Regulations of Connecticut State Agencies.
General Statutes § 31-68(a) provides a remedy to an employee who has received less than the minimum fair wage, namely, recovery in a civil action of " (1) twice the full amount of such minimum wage or overtime wage less any amount actually paid to him or her by the employer, with costs and such reasonable attorneys fees as may be allowed by the court, or (2) if the employer establishes that the employer had a good faith belief that the underpayment of such wages was in compliance with the law, the full amount of such minimum wage or overtime wage less any amount actually paid to him or her by the employer, with costs and such reasonable attorneys fees as may be allowed by the court." The clear language of § 31-68(a)(2) establishes that the burden of proof regarding the presence of a good faith belief that an underpayment complied with the law rests with the employer (here Vito's.) Accord Forrest v. Golub Corp., Superior Court, judicial district of Hartford, Docket No. CV 14-6054790S (2016 WL 6120671, at *3) (September 8, 2016, Dubay, J.) [63 Conn. L. Rptr. 35, ]. " The burden rests on the employer to establish that his employees come within an exemption." Shell Oil Co. v. Ricciuti, supra, 147 Conn. 283.
This court is not aware of any decision in Connecticut at any level that addresses the definition of " good faith" in the context of § 31-68(a)(2). Because of the similarity between the CMWA and the federal Fair Labor Standards Act (FLSA), 29 U.S.C.A. § 201 et seq., Connecticut courts look to decisions interpreting the latter with respect to claims brought under the CMWA. Cook v. Family Dollar Stores of Connecticut, Inc., Superior Court, judicial district of Waterbury, Docket No. X10CV116011946 (2013 WL 1406821, at *2) (March 18, 2013, Dooley, J.) [55 Conn. L. Rptr. 726, ]. 29 U.S.C. § 260 provides a good faith exception to liability for liquidated damages for violations of the FLSA. The United States Court of Appeals for the Second Circuit has defined " good faith" as " an honest intention to ascertain what the [FLSA] requires and to comply with it." Reich v. Southern New England Telecommunications Corp., 121 F.3d 58, 71 (2d Cir. 1997). It requires " more than ignorance of the prevailing law or uncertainty about its development. It requires that an employer first take active steps to ascertain the dictates of the FLSA and then move to comply with them." Id. The court adopts this definition as applicable to the present case.
29 U.S.C.A. § 260 provides in relevant part: " In any action . . . to recover unpaid minimum wages . . . under the [FLSA] . . . if the employer shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that he had reasonable grounds for believing that his act or omission was not a violation of the [FLSA] the court may, in its sound discretion, award no liquidated damages or award any amount thereof not to exceed the amount specified in section 216 of this title."
Conclusions of Law
Stevens has satisfied her burden of proving that she has in fact performed work for which she was improperly compensated pursuant to the CMWA. The majority of the sidework Stevens performed was non-service work duty for which Vito's was not entitled to apply a tip credit. Vito's failed to obtain weekly tip statements as required by § 31-62-E3. Vito's did not segregate Stevens's non-service work from her service work and thus was obliged to, but did not, pay the service hours at the full minimum fair wage as required by § 31-62-E4. Accordingly, Vito's was not entitled to take a tip credit during any shift that Stevens worked as a server and Stevens should have been paid the fair minimum wage mandated by statute for all time worked by her. Id. Vito's did not have a good faith belief that the application of the tip credit to Stevens' wages was in compliance with the law. Accordingly, Stevens is entitled to damages in the amount of twice the full amount of the fair minimum wage less any amount actually paid by Vito's. General Statutes § 31-68(a)(1). The result of this calculation is damages payable to Stevens in the amount of $20, 704.12. The plaintiff claims interest at a rate of 12% pursuant to General Statutes § § 31-72 and 31-265. The court awards interest in the amount of $1, 751.82 for a total amount of damages of $22, 455.94. Stevens is also entitled to costs and such reasonable attorneys fees as may be allowed by the court to be determined upon the submission of an application for attorneys fees by Stevens. Such application is to be filed no later than November 30, 2017.
The full amount of the fair minimum wage that should have been paid to Stevens is $15, 364.84. This amount doubled is $30, 729.68 and the amount actually paid to her is $10, 025.56. The difference between the latter figures is $20, 704.12.
Section 31-72 provides in pertinent part: " When any employer fails to pay an employee wages in accordance with the provisions of sections 31-71a to 31-71i, inclusive, or fails to compensate an employee in accordance with section 31-76k or where an employee or a labor organization representing an employee institutes an action to enforce an arbitration award which requires an employer to make an employee whole or to make payments to an employee welfare fund, such employee or labor organization shall recover, in a civil action, (1) twice the full amount of such wages, with costs and such reasonable attorneys fees as may be allowed by the court, or (2) if the employer establishes that the employer had a good faith belief that the underpayment of wages was in compliance with law, the full amount of such wages or compensation, with costs and such reasonable attorneys fees as may be allowed by the court."
Section 31-265 provides: " Contributions unpaid on the date on which they are due and payable in accordance with the provisions of this chapter [unemployment] shall bear interest for each month or fraction thereof after such date until payment, plus accrued interest, has been received by the administrator, provided no person shall be required to pay interest for any period during which he may have performed military service in the armed forces of the United States or of the United Nations subsequent to June 25, 1950. The administrator may prescribe fair and reasonable regulations whereby interest shall not accrue during the first five calendar quarters that any employer is subject to this chapter. Interest collected pursuant to this section shall be paid into the Employment Security Special Administration Fund. For purposes of this section, the interest rate on such unpaid contributions shall be determined by the administrator, on the last banking day in October of each calendar year, for use in the succeeding calendar year, and shall be two per cent per annum plus a simple average of the prime lending rates on such date at the three largest commercial banks in the state in terms of total assets, except that in no event shall the interest on unpaid contributions be less than twelve per cent per annum."