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Session Law

2004

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Chapter 125 AN ACT PROTECTING THE WAGES AND TIPS OF CERTAIN EMPLOYEES.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:


SECTION 1. Section 27B of chapter 149 of the General Laws, as appearing in the 2002 Official Edition, is hereby amended by striking out, in line 7, the words "furnish to the commissioner" and inserting in place thereof the following words:- promptly furnish to the attorney general or his representative.

SECTION 2. Said section 27B of said chapter 149, as so appearing, is hereby further amended by inserting after the word "authority", in line 17, the following word:- directly.

SECTION 3. Said section 27B of said chapter 149, as so appearing, is hereby further amended by striking out, in line 22, the words "commissioner of labor and industries" and inserting in place thereof the following words:- awarding authority directly.

SECTION 4. Said section 27B of said chapter 149, as so appearing, is hereby further amended by striking out the fourth paragraph and inserting in place thereof the following paragraph:-

The above-mentioned copies of payroll records and statements of compliance shall be available for inspection by any interested party filing a written request to the awarding authority for such inspection and copying.

SECTION 5. Section 27C of said chapter 149, as so appearing, is hereby amended by striking out, in lines 27, 34 and 83, the words "or 27H" and inserting in place thereof, in each instance, the following words:- , 27H or 148B.

SECTION 6. Said section 27C of said chapter 149, as so appearing, is hereby further amended by striking out, in line 44, the word "send" and inserting in place thereof the following word:- publish.

SECTION 7. Said section 27C of said chapter 149, as so appearing, is hereby further amended by striking out, in lines 91 and 94, the word "such" and inserting in place thereof, in each instance, the following word:- a.

SECTION 8. Said section 27C of said chapter 149, as so appearing, is hereby further amended by inserting after the word "order", in line 103, the following words:- or a final court order, whichever is later.

SECTION 9. Said section 27C of said chapter 149, as so appearing, is hereby further amended by inserting after the word "affirm", in lines 113 and 114, the following words:- or if the aggrieved person demonstrates by a preponderance of evidence that the citation or order was erroneously issued.

SECTION 10. Said section 27C of said chapter 149, as so appearing, is hereby further amended by inserting after the word "complaint", in line 131, the following words:- or seek indictment.

SECTION 11. Said section 27C of said chapter 149, as so appearing, is hereby further amended by inserting after the word "amount", in line 136, the following words:- and any restitution order.

SECTION 12. Section 150 of said chapter 149, as so appearing, is hereby amended by striking out the first sentence and inserting in place thereof the following sentence:- The attorney general may make complaint or seek indictment against any person for a violation of section 148.

SECTION 13. Said chapter 149 is hereby further amended by striking out section 152A, as so appearing, and inserting in place thereof the following section:-

Section 152A. (a) As used in this section, the following words, unless a different meaning is required by the context or is specifically prescribed, shall have the following meanings:-

"Wait staff employee", a person, including a waiter, waitress, bus person, and counter staff, who: (1) serves beverages or prepared food directly to patrons, or who clears patrons' tables; (2) works in a restaurant, banquet facility, or other place where prepared food or beverages are served; and (3) who has no managerial responsibility.

"Service employee", a person who works in an occupation in which employees customarily receive tips or gratuities, and who provides service directly to customers or consumers, but who works in an occupation other than in food or beverage service, and who has no managerial responsibility.

"Service bartender", a person who prepares alcoholic or nonalcoholic beverages for patrons to be served by another employee, such as a wait staff employee.

"Employer", any person or entity having employees in its service, including an owner or officer of an establishment employing wait staff employees, service employees, or service bartenders, or any person whose primary responsibility is the management or supervision of wait staff employees, service employees, or service bartenders.

"Patron", any person who is served by a wait staff employee or service employee at any place where such employees perform work, including, but not limited to, any restaurant, banquet facility or other place at which prepared food or beverage is served, or any person who pays a tip or service charge to any wait staff employee, service employee, or service bartender.

"Service charge", a fee charged by an employer to a patron in lieu of a tip to any wait staff employee, service employee, or service bartender, including any fee designated as a service charge, tip, gratuity, or a fee that a patron or other consumer would reasonably expect to be given to a wait staff employee, service employee, or service bartender in lieu of, or in addition to, a tip.

"Tip", a sum of money, including any amount designated by a credit card patron, a gift or a gratuity, given as an acknowledgment of any service performed by a wait staff employee, service employee, or service bartender.

(b) No employer or other person shall demand, request or accept from any wait staff employee, service employee, or service bartender any payment or deduction from a tip or service charge given to such wait staff employee, service employee, or service bartender by a patron. No such employer or other person shall retain or distribute in a manner inconsistent with this section any tip or service charge given directly to the employer or person.

(c) No employer or person shall cause, require or permit any wait staff employee, service employee, or service bartender to participate in a tip pool through which such employee remits any wage, tip or service charge, or any portion thereof, for distribution to any person who is not a wait staff employee, service employee, or service bartender. An employer may administer a valid tip pool and may keep a record of the amounts received for bookkeeping or tax reporting purposes.

(d) If an employer or person submits a bill, invoice or charge to a patron or other person that imposes a service charge or tip, the total proceeds of that service charge or tip shall be remitted only to the wait staff employees, service employees, or service bartenders in proportion to the service provided by those employees.

Nothing in this section shall prohibit an employer from imposing on a patron any house or administrative fee in addition to or instead of a service charge or tip, if the employer provides a designation or written description of that house or administrative fee, which informs the patron that the fee does not represent a tip or service charge for wait staff employees, service employees, or service bartenders.

(e) Any service charge or tip remitted by a patron or person to an employer shall be paid to the wait staff employee, service employee, or service bartender by the end of the same business day, and in no case later than the time set forth for timely payment of wages under section 148.

(f) Whoever violates this section shall be subject to all of the civil and criminal penalties and remedies set forth in section 27C. Any person or employer who violates this section shall make restitution for any tips accepted, distributed or retained in violation of this section, together with interest thereon at the rate of 12 per cent per annum. An employee claiming to be aggrieved by a violation of this section may proceed pursuant to the second paragraph of section 150. The attorney general or, under said section 150, an employee may bring an action under this section within 3 years of any violation of this section.

(g) No employer or person shall by a special contract with an employee or by any other means exempt itself from this section.

SECTION 14. Section 159A of said chapter 149 is hereby repealed.

SECTION 15. Section 15 of chapter 151 of the General Laws, as so appearing, is hereby amended by striking out, in lines 11 and 12, the words "they shall have the right to make a transcript thereof" and inserting in place thereof the following words:- the employer shall furnish immediately to the attorney general, commissioner or representative, upon request, a copy of any of these records.

SECTION 16. Said section 15 of said chapter 151, as so appearing, is hereby further amended by adding the following sentence:- An employer shall allow an employee at reasonable times and places to inspect the records kept under this section and pertaining to that employee.

SECTION 17. Section 19 of said chapter 151, as so appearing, is hereby amended by striking out subsection (3) and inserting in place thereof the following subsection:-

(3) An employer or the officer or agent of a corporation who fails to keep the true and accurate records required under this chapter or to furnish a record to the attorney general, the commissioner, or an authorized representative of the attorney general or commissioner upon request, or who falsifies a record, or who fails to allow an employee to inspect a record under section 15, or who fails to comply with a requirement of the commissioner under the last sentence of section 16, or who hinders or delays the attorney general, commissioner or representative in the performance of his duties, or who refuses to admit, or locks out, the attorney general, commissioner, or representative from a place of employment, other than a place of employment of a person engaged in domestic service in the home of the employer, which he is authorized to inspect, shall have violated this section and shall be punished or shall be subject to a civil citation or order as provided in section 27C of chapter 149, and each day of the failure to keep a record or to furnish to the attorney general, commissioner or representative a record or other information required for the proper enforcement of this chapter shall constitute a separate offense.

SECTION 18. Subsection (5) of said section 19 of said chapter 151, as so appearing, is hereby amended by adding the following sentence:- An employer who discharges or in any other manner penalizes or discriminates against an employee because the employee has made a complaint to the attorney general or any other person, or assists the attorney general in an investigation under this chapter, or has instituted, or caused to be instituted a proceeding under or related to this chapter, or has testified or is about to testify in the proceeding, or has taken any other action to seek rights under this chapter, shall have violated this section and shall be punished or shall be subject to a civil citation or order as provided in section 27C.

Approved June 10, 2004.

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