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May 17, 2013

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Page 6 POST-GAZETTE, MAY 17, 2013 / t J.VITA No Federal Preemption Over Massachusetts Tips Statute On April 18 2013, in an important issue of first im- pression in Massachusetts, U.S. District Court Judge Douglas P. Woodlock entered an order remanding a case back to the Massachusetts state courts for further pro- ceedings, while rejecting Defendant Harvard Univer- sity's arguments that the claim, which concerned the Massachusetts Tips Statute, G.L.c. 149 152A, was preempted by a federal law known as the Labor Management Relations Act (LMRA). The facts of the case are, in many respects, similar to another case successfully prosecuted against North- eastern University. In that case, Cooney v. Compass Group Foodservice, 69 Mass. App. Ct. 632 (2007), North- eastern was accused of charging customers of one of its conference centers a "service charge" that was ultimately retained by Northeastern to cover over- head costs related to main- taining the conference cen- ter. The problem for North- eastern was that a "service charge" commonly evokes the impression of a gratuity or tip, even if the gratuity is automatically added to the total cost of a bill (as with restaurants that add an au- tomatic gratuity of 18% for large parties). Such auto- matic gratuities or service charges are, according to the Massachusetts Tips Act, rightfully wages of the ser- vice employees who wait tables, make drinks and do other "tipped activities." This is true, even if the ser- vice employees are paid above the Massachusetts minimum "service rate" of $2.63/hour (employees who wait tables and do other "tipped activities" need not be paid the full minimum wage of $8.00/hour and can instead be compensated at the "service rate" so long as their wages and tips, when combined, equal at least the $8.00/hour minimum wage). In this way, service charges are quite different from what are commonly called "administrative" or "facilities" fees. Such fees are commonly thought of as charges kept by the "house" -- in that case Northeastern. Although Northeastern argued that the "service charge" on its invoices was actually a facilities fee, the court found that nothing on the invoice indicated that Northeastern would keep the proceeds of the fee. Accordingly, even though the employees in question were paid well above the minimum service rate for their work, Northeastern was held liable for paying the service rate charges to the employees, plus liquidated damages, costs, interest and attorney's fees. Presumably aware of the result for the Defendant in the Northeastern case, Harvard forewent arguing that the "service charges" on its invoice was a facilities fee and instead, tried to in- voke a legal doctrine known as "preemption" to argue that the Massachusetts Tips Act did not apply in its case. Preemption exists where a state law is so in conflict with a federal provision that enforcement of the state law would contradict or frustrate the federal law. In such a case, the federal law would preempt or trump, the state law and it would be the fed- eral law that would have to be followed. SAVETHE DATE FUNCTION FACILITY Specializing in the art of celebration Wedding, Anniversary, Quinceaffera, Reunion, Birthday, Social and Corporate Events. Convenient location and valet parking makes Spinelli's East Boston the perfect location. We are dedicated to the highest level of service and professionalism to ensure the success of your special occasion. 280 Bennington Street, East Boston, MA . . . Please Call 617-567:4.499 ................ spinel[is.corn _ . . Harvard argued that the LMRA, which governs a number of issues confront- ing organized or unionized labor, preempted the Massa- chusetts Tips Act because the employees in question ,were organized and worked pursuant to a collective bar- gaining agreement. Har- vard's argument was that, because the terms of the employees' work were gov- erned by a collective bar- gaining agreement that did not provide for the payment of "service charges," the Massachusetts Tips Act was preempted and therefore did not apply. Federal District Judge Douglas P. Woodlock dis- agreed. In his opinion in Hernandez v. Harvard Univer- sity, Judge Woodlock wrote held that the LMRA did not preempt enforcement of the Wage Act and that the case would have to go back to Massachusetts state court, as it did not involve any federal questions of law. Leaving aside the preemp- tion issue, it appears that Harvard did not have any real defenses to the claims raised. Harvard made an ar- gument, previously rejected in the Northeastern case that paying the service charges in question would create a "windfall" for the workers. Judge Woodlock disagreed: "Harvard is surely correct that, if it is held liable for noncompliance with the consumer-facing aspects of the Massachusetts Tips Law, then wait staff will receive, by Harvard's lights, a 'windfall' of gratuities despite having already re- ceived substantial wages under the [collective bar- gaining agreementI" wrote Woodlock. "Massachusetts courts, however, have not been concerned with such a turn of events, finding that substantial wages paid under an employment con- tract were irrelevant to an employer's liability under the Tips Law." The ultimate lesson of the Harvard case, just like in the Northeastern case, is that administrative or facilities fees must be clearly labeled as such. If such a fee is mistakenly or incor- rectly labeled as a "service charge," that fee may then become wages to the work- ers in the facility, the terms of any collective bargaining agreement or federal law notwithstanding. Richard J. Vita, Esq. is the principal of the Vita Law Offices, P.C., a Boston law firm focused on securities fraud, insurance and con- sumer class action cases. He may be contacted at (617) 426-6566 or by email at dv@vitakav.eom. _ _ ALL THAT ZAZZ by Mary N. DiZazzo Feed Your Face Inside and Ouff Ciao Bella, After a long, dreary winter we must lift our spirits and hail to the bountiful harvest spring and summer delivers to us[ A bounty to feed our face and bodies to feel and look as good as we possibly can. Here are some tips to keep a youthful glow. Berries carry powerful an- tioxidants to give complex- ions a healthy boost that pro- tect skin cells. Dark Leafy Greens contain Vitamin A to repair acne and promote skin repair. Organic Green Tea: one or more cups a day helps to ward off skin cancer and re- duces visible signs of aging. Olive Oil has Essential Fatty Acids that promotes elastic, dewy skin strength- ening our cell membranes producing radiant and nour- ished skin. Walnuts (also salmon) con- tain Omega 3 oils for flex- ible, younger looking skin. Here are some snacks to fight wrinkles that are anti- oxidants: Dried apricots or carrots = beta carotene. Avocados or apples = lutein. Read prior weeks' "All Watermelon or cherry tomatoes = lycopene. The best "food" for your skin is water. Drinking enough is the key to beauti- ful skin (and kidneys)! Got stress! It is a sure aging factor. Healthier than a martini! Try RESCUE GUM by Bach! A homeopathic remedy developed over 70 years ago that will keep you calm and in control! PURE HEAVEN FACIAL MASK: Mix together an egg yolk, yogurt and some honey, let it reach room tem- perature. Apply to face and neck, rinse with warm wa- ter after 15 minutes. Leaves skin soft and nourished in- side and out! Buona giornata and God bless the United States of America! -- Mary DiZazzo-Trumbull That Zazz " columns at Mary is a third-generation cosmetolo- gist and a Massachusetts distributor of Kosmea brand rose hip oil products. She may be contacted at (978) 470-8183 or North End Athletic Association ANNUAL GOLF TOURNAMENT IN MEMORY OF CARMEN "TILLY" DE MARTINO MONDAY, AUGUST 5, 2013 7:30 a.m. (shot gun start) ANDOVER COUNTRY CLUB Canterbury Street, Andover, MA More than 144 golfers participate in this sold-out tourna- ment annually. It is important that you save the date and plan on joining us on Monday, August 5th. GOLF, LUNCH AND RAFFLE PRIZES ... The money raised from this tournament allows the North End Athletic Association to purchase uniforms and equipment for sporting events and add to the existing programs. The North End Athletic Association is a 52-year-old organization, which provides athletic, social, educational and civic activities within the community and the City of Boston. For further information, please contact Louie Cavagnaro at 61 7o523-7410 f Boston Harborside Home Joseph A. Langone 580 Commercial St. - Boston, MA 02109 617-536-4110 Augustave M. Sabia, Jr. Trevor Slauenwhite Frederick J. Wobrock Dino C. Manca Courtney A. Fitzgibbons A Service Family Affiliate of AFFS/Service Corporation International 206 Winter St., Fall River, MA 02720 Telephone 508-676-2454