102 | Massachusetts Wage & Hour Peculiarities, 2025 ed. © 2025 Seyfarth Shaw LLP B. The Sharing of Tips and Service Charges While the prior iterations of the Tip Statute have been interpreted as protecting only those employees whose “primary duty is to engage in the service of food and beverage,”587 the law established three categories of employees who are eligible to share in tips and service charges: A wait staff employee, defined as “a person, including a waiter, waitress, bus person, person in a quick service restaurant who prepares or serves food or beverages as part of a team of counter staff or any other counter employee who: (i) serves beverages or prepared food directly to patrons or who clears patrons’ tables; (ii) works in a restaurant, banquet facility or other place where prepared food or beverages are served; and (iii) has no managerial responsibility during a day in which the person serves beverages or prepared food or clears patrons’ tables.”588 A service employee, defined as “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.” A service bartender, defined as “a person who prepares alcoholic or nonalcoholic beverages for patrons to be served by another employee, such as a wait staff employee.”589 Setting out these specific categories has spurred substantial litigation regarding which employees are legally permitted to share in tips, and it has impacted numerous industries, including restaurants, hotels, airline skycap services, sports arenas, and audiovisual technician services.590 587 See, e.g., Williamson, 2004 WL 1050582, at *11. 588 M.G.L. ch. 149, § 152A amended by St. 2020, ch. 358, § 77. The 2020 amendment (which took effect on January 14, 2021) renders eligible those who have “no managerial responsibility during a day in which the person serves beverages or prepared food or clears patrons’ tables.” That is, if someone has managerial responsibilities during their Monday shift but not their Tuesday shift, they may be considered a “wait staff employee” for purposes of the Tip Statute on Tuesday. In addition, the amendment broadened the scope individuals eligible to receive tips in “quick service restaurant[s]” by expressly rendering eligible those who “prepare[] or serve[] food or beverages as part of a team of counter staff or any other counter employee.” Prior to the 2020 amendment, that same clause covered only “counter staff.” 589 M.G.L. ch. 149, § 152A(a). Notably, the service bartender definition does not include the managerial responsibility prohibition. Id. As to wait staff employees, all three requirements of the definition must be met in order for an employee to qualify as wait staff under the Tips Statute. See Dvornikov v. Landry’s Inc., No. 15-cv-13286-ADB, 2017 WL 1217110, *3 (D. Mass. Mar. 31, 2017). 590 See, e.g., Chebotnikov v. LimoLink, Inc., No. 14-13475-FDS, 2017 WL 2888713, *1 (D. Mass. July 6, 2017) (limousine drivers); Mouiny, No. SUCV2006-1115-BLS1 (Mass. Super. Ct.) (hotel); Williamson, No. SUCV2002-1827-D (Mass. Super.) (hotel); Fernandez v. Four Seasons Hotels, Ltd., No. SUCV2002-4689-F (Mass. Super.) (hotel); Rose v. Ruth’s Chris Steak House, Inc., No. 07-12166-WGY (D. Mass.) (restaurant); Kelly v. Sage Rest., No. SUCV2008-4230F (Mass. Super.) (restaurant); Benoit v. The Federalist, Inc., No. SUCV2004-3516-B (Mass. Super.) (restaurant); DiFiore, No. 07-10070-WGY (D. Mass.) (skycaps); Travers v. Jet Blue Airways Corp., No. 08-10730 (D. Mass.) (skycaps); Mitchell v. U.S. Airways, Inc., No. 08-10629 (D. Mass.) (skycaps); Brown v. United Air Lines, Inc., No. 08-10689 (D. Mass.) (skycaps); Hayes v. Aramark & Boston Red Sox, No. 0810700 (D. Mass.) (food services at sports arena); DiIorio v. Ritz-Carlton Hotel Co., LLC, No. SUCV2007-0131-G (Mass. Super.) (audiovisual technicians). The First Circuit has taken the position that the Tip Statute is preempted by the Airline Deregulation Act of 1978, which vests exclusive jurisdiction in the federal government to regulate most aspects of air travel. DiFiore v. Am.
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