© 2025 Seyfarth Shaw LLP Massachusetts Wage & Hour Peculiarities, 2025 ed. | 103 The language is problematic because it has expanded the mandate beyond tips and service charges earned by “wait staff” employees to include certain “service employees who did not provide either food or beverage service.”591 Thus, if a restaurant employs staff members who are not responsible for serving food and beverages to customers but nonetheless regularly provide some level of direct service to guests and customarily receive tips or gratuities, an employer might reasonably argue that those staff members are eligible “service employees.”592 The statute, however, narrows the “service employee” category to exclude staff who help provide direct service to customers if they also perform managerial responsibilities.593 Because the statute fails to define “managerial responsibilit[ies],” significant controversy remains over what types of duties render a “service employee” ineligible for protection under the law. In an advisory notice, the Office of the Massachusetts Attorney General has indicated that it will “look to” the federal definition of “executive” in interpreting the Tip Statute, stating that “these factors may be relevant in determining whether a worker has managerial responsibility.”594 This approach would define a manager as one who makes or influences decisions regarding scheduling or assigning others to their posts, performs supervision, directs other employees, hires or fires other employees, and regularly exercises independent judgment.595 It remains unclear, however, whether the federal definition is compatible with the Tip Statute; the Attorney General’s advisory merely states that it “may be relevant.”596 Three Massachusetts courts have examined the issue, concluding that managerial responsibilities are most clearly evident when a staff member must direct the work of other employees. In Mouiny v. Commonwealth Flats Development Corporation, the court held that banquet captains— though they wore uniforms, carried radios, had access to computers, communicated with managers, and assigned tasks to other servers—did not necessarily perform managerial duties.597 The court found that the proper inquiry was whether the banquet captains “directed the work of Airlines, Inc., 646 F.3d 81, 88 (1st Cir. 2011) (holding Tip Statute “directly regulates how an airline service is performed and how its price is displayed to customers” and is therefore preempted); Overka v. Am. Airlines, Inc., 790 F.3d 36, 41 (1st Cir. 2015) (applying DiFiore and affirming finding that skycaps’ Tip Statute claims were preempted by the American Deregulation Act). 591 Mouiny, No. SUCV2006-1115-BLS1, at 11. 592 See id. at 11-12 (banquet captain may meet service employee definition). 593 See M.G.L. ch. 149, § 152A(a) (emphasis added). 594 Massachusetts Attorney General Advisory 2004/3, at 2 n.3 (citing 29 C.F.R. § 541.1) (emphasis added). 595 Id. One court has applied this definition to the Tip Statute, finding that although none of the other elements were present, there was a genuine issue of material fact as to whether banquet captains supervised the work of servers sufficiently to find that they had managerial responsibilities. Mouiny, No. SUCV2006-1115-BLS1 (Mass. Super. Aug. 18, 2008) (denying summary judgment). Another court found that banquet captains had sufficient managerial responsibility to render their participation in a tip pool improper where they directed the work of servers during banquet events, even though it was “undisputed that [the banquet captains] did not influence employment shifts, hours, or decisions . . . .” DePina, No. SUCV2003-5434-G, at 15. 596 Massachusetts Attorney General Advisory 2004/3, at 2 n.3 (citing 29 C.F.R. § 541.1). The FLSA definition of “executive” seems incompatible with the Tip Statute because the former does not designate employees as executives if they have any managerial responsibility, while the Tip Statute does. See M.G.L. ch. 149, § 152A(a); see also Matamoros v. Starbucks Corp., 699 F.3d 129, 134-35 (1st Cir. 2012) (holding that “if an employee has any managerial responsibility, she does not qualify as ‘wait staff’ eligible to participate in tips pools under the provisions of the Tips Act”) (emphasis added). 597 Mouiny, No. SUCV2006-1115-BLS1, at 13.
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