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Murphy Hesse Toomey & Lehane Attorney Featured in Lawyers Weekly SJC Review

 

In Hovagimian et al. v. Concert Blue Hill, LLC, the Massachusetts Supreme Judicial Court is reviewing under further appellate review a decision by the Massachusetts Appeals Court in favor of Murphy, Hesse, Toomey & Lehane, LLP Attorney Paul King’s client, which affirmed the trial court’s decision to dismiss a putative class action brought by service employees against their employer under the Tips Act. At issue was whether the so-called “safe harbor” provision in § 152A(d) applied in the circumstance where the employer properly delineates in writing which portion of the payment made by the patron goes to the service employees as a gratuity and which is retained by the house, but subsequently uses different and potentially confusing language in characterizing those charges on invoices. MHTL attorneys prevailed on cross motions for judgment on the pleadings in Superior Court, and again on appeal before the Appeals Court involving a de novo review of the statutory interpretation question at the heart the case. This case was featured on the front page of Lawyers Weekly on March 8, 2021.

 

Under the Tips Act, service employees are entitled to receive all proceeds derived from a “service charge or tip” assessed to a patron. Generally, the safe harbor provision permits an employer to assess a supplemental charge to a patron (typically a “house” or “administrative” fee) that the employer retains in full, so long as it provides a “designation or written description” informing the patron that the fee is not a gratuity for the service employees. In this case, the employer sufficiently informed the country club patrons in the event contracts they signed that a 10% administrative fee for the house and a 10% gratuity for the service staff would be assessed. But on invoices that followed, it used headings including “Service Charges & Gratuities” and “Service & Tax Charges” with respect to both fees. The Appeals Court majority rejected the service employees’ argument that the employer’s choice of wording on the invoices subjected it to automatic liability. On these facts, ignoring the clear and contrary language in the event contract would contravene the legislative intent of the statute, which is that service employees receive those monies that the customers intend them to receive.

 

The SJC is set to weigh in on this issue of statutory interpretation, following oral arguments on March 1, 2021.

 

Murphy, Hesse, Toomey & Lehane LLP is also known throughout New England for its labor and employment practice as well as its extensive business litigation and advising employers on internal reviews and strategic legal approaches when dealing with the government. The firm also has an extensive education law practice representing public, private, and nonprofit educational institutions from pre-K through the college and university level.

Latest News

Murphy, Hesse, Toomey & Lehane, LLP Partner Recognized as a Top Women of Law Honoree for 2022

  Murphy, Hesse, Toomey & Lehane, LLP is proud to announce that Attorney Kathryn Murphy, a Partner at the firm, has been selected as a Top Women of Law 2022 honoree by Massachusetts Lawyers Weekly. The honorees are selected based upon their “ significant contributions to the legal profession while also serving as role models for women entering the law.” Ms. Murphy is the first attorney at the firm to receive this prestigious honor. She has been practicing law at Read More

Legal Updates

NEW LEGISLATION ADDRESSING BARRIERS TO CARE FOR MENTAL HEALTH HAS IMPACTS ON PUBLIC SCHOOLS

On August 10, 2022, Chapter 177 of Acts of 2022, “An Act Addressing Barriers to Care for Mental Health” was signed by Governor Baker. For public schools, it has impacts on student discipline, special education services, and emergency response plans. The bill goes into effect on November 8, 2022. Set forth below are summaries of the new law’s impact in the identified areas.

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