file0001835967537The Connecticut Supreme Court, in a unanimous decision that will be officially released April 4, 2017, has ruled that employers may not use the “tip credit” for pizza delivery drivers and therefore, the employees must be paid the standard minimum wage.

You can download the decision in Amaral Brothers, Inc. v. Department of Labor here.  The decision is no doubt a disappointment to employers who believe that the Connecticut Department of Labor’s regulations in this area far outstretch the plain language of the applicable wage/hour statute.

The case arises from a request by two Domino’s franchises for a “declaratory ruling” from the Connecticut Department of Labor (DOL) that delivery drivers are “persons, other than bartenders, who are employed in the hotel and restaurant industry, …who customarily and regularly receive gratuities.” The request arises from Conn. Gen. Stat. §31-60(b), which has been amended over the years.

Why would the employer make such a request? In doing so, the employer wanted to take advantage of the “tip credit”, in which employees are paid below the conventional minimum wage, but his or her salary is supplemented by tips from customers.

Originally, as noted by the employer’s brief to the Court: “The DOL denied Plaintiff’s Petition for the following stated reasons: (1) the regulations were valid because they served a remedial purpose, were time-tested and subject to judicial scrutiny…; and (2) the only act of “service” was handing the food to the customer at the customer’s door and so delivery drivers’ duties were not solely serving food as required under Regulations of Connecticut State Agencies § 31-62-E2(c). The DOL’s decision was that only employers of “service employees” as defined by the DOL could utilize the credit, and Plaintiff’s employees were not service employees.

A lower court upheld the DOL’s conclusions “agreeing that the regulations were ‘reasonable’, ‘time tested’, and had ‘received judicial scrutiny and legislative acquiescence’. The court also determined that the ‘minimum wage law should receive a liberal construction.'”  (You can also view the DOL’s brief to the Court here.)

The Connecticut Supreme Court upheld the Department of Labor’s interpretations here finding that the regulations issued by the agency were “not incompatible” with the enabling statute.  In doing so, the Court noted that this is a bit unusual because the employer was contending that the regulations were originally valid when issued, but repealed by implication when there was an amendment to the statute at issue.

The Court’s decision traced the origin of the tip credit in a portion of the decision that only lawyers will love. But then they get to the heart of the matter: “It was reasonable for the department to conclude that the legislature did not intend that employees such as delivery drivers, who have the potential to earn gratuities during only a small portion of their workday, would be subject to a reduction in their minimum wage with respect to time spent traveling to a customer’s home and other duties for which they do not earn gratuities.”

While the court’s decision directly implicates delivery drivers, it only impacts those employed directly by the employer (see also: UberEats, GrubHub etc.).  Nevertheless, in upholding the DOL’s interpretation here, the scope of who falls within the tip credit at restaurants is going to be further challenged in the courts.

Before employers make any further conclusions, Connecticut businesses should also be aware that the scope of the tip credit and of tip pooling is being debated at the federal level as well.  The National Restaurant Association has joined many others in asking the U.S. Supreme Court to hear a case on the subject. We should hear shortly whether the Court will accept such a case.

The Court’s decision is yet another reminder that restaurants in Connecticut should review the situations in which the tip credit is being utilized. Issues regarding tip pooling should be reviewed as well.  This case doesn’t answer all the questions that come up in the restaurant context. But in terms of figuring out the scope of the law, it helps to answer (albeit in a manner not helpful to employers overall) some outstanding questions.

With rejection of a union concession package now appearing likely in news stories this morning, it seems probable that layoffs are around the corner. Notably, a lawsuit arising from a prior state layoff is still kicking around over eight years later.  I discussed this back in October 2010 and noted that the parties had just filed motions for summary judgment.

In checking the court docket again this morning, the parties are still waiting for a court decision on those motions.

Here’s the full story from last fall:

At last night’s gubernatorial debate, the issue of potential layoffs of state union workers was a hot topic of conversation.  (See CT News Junkie for a more detailed report.) Each candidate indicated that layoffs weren’t ruled out if elected.

That’s all very well and good, but none of them have mentioned how a prior layoff (from a governor who allegedly tried to seek long-term concessions from the unions) has led to a seven-and-a-half year battle between the state (actually, the governor & the chief of the office of policy and management) and State Employee Bargaining Agent Coalition (SEBAC). And the outcome of that case is likely to determine the path that the next governor will be able to take under similar financial circumstances.

What’s that case about?  It has a long and tortured history, but each side has now filed motions for summary judgment (in whole or in part) that try to summarize it.  According to the unions (the summary judgment memo can be downloaded here):

The case involves the constitutionality of an attempt by Connecticut’s former Governor to compel the plaintiff unions to grant long-term concessions to their legislatively-approved collective bargaining agreements by threaten to terminate the employment of union members if the concessions were not granted and by implementing the terminations, through layoffs of 2800 union employees, when the unions refused to agree to all of the demanded contract modifications.

Defendants assert that it is constitutionally permissible for them to terminate union employment in an effort to compel demanded concessions.  Defendants further contend that in making state work force determinations, it is constitutionally permissible for them to single out union employees for layoff.  Plaintiffs submit that such conduct violates their First Amendment right to freedom of association; impermissibly conditions their right to continued public employment on giving up protected First Amendment and Contracts Clause rights; and subjects them to adverse state action based on an arbitrary and impermissible classification, in violation of the Equal Protection Clause.

According to the state (summary judgment memo available here):

“The First Amendment is not a substitute for the national labor relations laws…(citation omitted) Notwithstanding the Supreme Court’s admonition, the Plaintiffs … seek to transform a labor dispute with the State of Connecticut (the “State”) into a First Amendment “retaliation” case.  The labor dispute arose amidst a major budget crisis in 2002-2003, when the State sought concessions from the Plaintiffs. When the Plaintiffs refused to agree to the State’s demands, the state laid off approximately 2800 state employees.  …

[M]assive budget deficits have forced the State’s governors to make extraordinarily difficult decisions about the size and cost of the State work force as part of their constitutional obligation…[T]he Court should reject the Plaintiff’s attempt to ‘constitutionalize’ their labor dispute with the State.

(Full disclosure: For 2003-2005, I was part of a team of attorneys on this matter representing the state while I was at a prior law firm.)

Just two weeks ago, each party filed briefs opposing the others’ summary judgment motions. The union’s memo is available here, while the state’s is available here.

Notably, a decision is not expected in that case until well after the November elections. But one thing is for sure: The outcome of the case may dictate how much (or little) flexibility the next governor will have on layoffs. Indeed, ironically, the new governor will have to deal with any fallout from the years-old lawsuit.

In any event, the case should serve as a cautionary tale. Even the layoffs that do occur can lead to years of litigation and no assurances of the end result. It’s something that the candidates should keep in mind as they devise their strategies for balancing the budget.

One of the great local treats in Connecticut this time of year is a corn maze. My favorite for the last few years is the one created by Lyman Orchards in Middlefield, CT.  (And while you’re there, don’t miss picking a few apples or getting a fresh apple pie).

Mazes aren’t anything new. Employment lawyers and human resources staff, nowadays, have to go through seemingly endless mazes of laws and regulations.  It can be difficult to find your way out.  

But hope is not lost. Indeed, even at Lyman Orchards, there were guides and clues to help you find your way. In that same fashion, hopefully this post can serve a similar function.

Connecticut employers have particular requirements for to provide sexual harassment training for some of the employees (and you should read them in full here and seek legal guidance if you need it). Here’s some of the basics:

  • Only employers with 50 or more employees fall within the scope of the regulation.
  • For such employers,  two or more hours of training and education to all supervisor employees within 6 months of their assumption of such a role (whether through a hire or promotion).  
  • That training has to be conducted in a classroom-like setting (though electronic delivery has also been approved in some circumstances), using "clear and understandable language and in a format that allows participants to ask questions and receive answers."
  • The training must include:
    • Describing the federal and state statutory provisions prohibiting sexual harassment in the work place with which the employer is required to comply
    • Defining sexual harassment as defined by the law and distinguishing it from other forms of harassment
    • Discussing the types of conduct that may constitute sexual harassment under the law
    • Describing the remedies available in sexual harassment cases
    • Advising employees that individuals who commit acts of sexual harassment may be subject to both civil and criminal penalties; and
    • Discussing strategies to prevent sexual harassment in the work place. 

The regulations provide that additional topics or approaches may be done, but emphasizes that they are optional.

Similarly, the regulations suggest that employers of 50 or more employees provide an "upgrade" of the information every three (3) years.

Lawfirms and experienced HR consultants have long been providing this service so it should not be difficult to find someone to assist. But this is a fairly easy regulation to abide by.  Note that employers under 50 merely have posting requirements, though nothing prevents the employer from conducting the training anyways.

One practical suggestion: Conduct trainings in late-April and late-October in regular intervals. That should cover new supervisory employees in a timely fashion and reduce the number of people likely to be on vacation.  

And this will be one maze of regulations that you can find your way out of.