© 2025 Seyfarth Shaw LLP Massachusetts Wage & Hour Peculiarities, 2025 ed. | 101 While many employers add disclaimers to their invoices explaining which, if any, fees are remitted to wait staff, this is not the only factor that courts consider in assessing a customer’s reasonable expectations. Several courts have held that where a banquet menu clearly lists additional flat fees separate from gratuities, no reasonable patron would expect those fees to be remitted to wait staff in lieu of or in addition to a tip.581 The Tip Statute permits an employer to retain “administrative” or “house” fees charged to customers, 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 [covered employees].”582 The SJC held in Hovagimian that this safe harbor does not apply when customer invoices referred to the fee as a service charge, despite that the event contracts referred to the fee as an administrative fee.583 In addition, the Massachusetts Appeals Court has interpreted this provision to mean that even where a charge is labeled “administrative fee,” the employer still must provide an explicit disclaimer notifying customers that the fee is not a service charge in order to avoid liability.584 Thus, simply indicating that a fee is a house fee or an administrative fee is not sufficient to distinguish it from a service charge.585 Likewise, however, an employer’s lack of safe harbor language does not per se result in a finding of liability for the employer. It remains the plaintiff’s burden to demonstrate that the charge at issue is one 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.586 581 See DePina v. Marriott Int’l, Inc., No. SUCV2003-5434-G, 2009 WL 8554874, *12 (Mass. Super. July 28, 2009) (“plaintiffs have no reasonable expectation of proving that the failure to include station fees in the service charge pool violated the [Tip Statute]” where station fees were listed on checks as “separate and distinct from the percentage based service charge”). 582 M.G.L. ch. 149, § 152A(d); see also Lazo v. Sodexo, Inc., 2018 WL 4696740, *4 (D. Mass. Sept. 28, 2018), aff’d, 931 F.3d 29 (1st Cir. 2019) (fee invoiced as “Staffing Charge” or “Support Charge” qualified as administrative fee and not service fee where explanation on invoices explicitly stated the charge was not a gratuity and was not remitted to employees). 583 488 Mass. at 246-47. 584 Bednark v. Catania Hospitality Grp., Inc., 78 Mass. App. Ct. 806, 815-17 (2011) (holding “administrative fee” label “neither indicates whether all or any part of the fee is . . . a gratuity nor necessarily comports with customer expectations”). 585 Courts have disagreed as to the precise language an employer must use to inform customers that an “administrative” or “house” fee is not a tip or service charge. In DiFiore v. American Airlines, Inc., the federal District Court for the District of Massachusetts held that despite several signs posted adjacent to bag-check podiums that read “U.S. Domestic Flights: $2 per bag. Gratuity not included,” a reasonable passenger could have thought the two dollar fee was given to airline skycaps as a tip. 561 F. Supp. 2d 131, 136 (D. Mass. 2008), certified question answered, 454 Mass. 486 (2009). Similarly, in Carpaneda v. Domino’s Pizza, Inc., Domino’s Pizza charged customers a $2.50 “delivery charge,” that Domino’s did not give to delivery drivers. 991 F. Supp. 2d 270, 271 (D. Mass. 2014). When a customer placed an order online, Domino’s provided a disclaimer at the bottom of the page that provided that the delivery charge did not constitute a tip, and said disclaimer reappeared on the side of the delivered pizza’s box. Id. at 272. The court denied Domino’s Pizza’s motion to dismiss and found that, despite the online disclaimer, there was no disclaimer when a customer called by phone, and Domino’s webpage did not allow the opportunity to add a tip, and the delivery charge was an amount comparable to what an average customer might tip, and so a reasonable customer could interpret the delivery charge as a tip. Id. at 274. In Lazo v. Sodexo, Inc., an invoice listing a “Staffing Charge” or “Support Charge” that was accompanied by language stating the fee was “not a gratuity” and then amended to also include language stating that the fee “does not represent a tip or service charge paid directly to wait staff, employees or bartenders,” was sufficient to indicate that the fee was not a service charge. Lazo v. Sodexo, Inc., No. 15-13366-GAO, 2018 WL 4696740, *4 (D. Mass. Sept. 28, 2018). 586 Norell, 98 Mass. App. Ct. at 67-68.
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