A recent Connecticut Law Tribune story by Robert Storace, “Defense: Attorney Fee Award in Wage Case Could Mean ‘Open Season’ for Suits Against Restaurants,” reports that a ruling by a Connecticut Superior Court judge on minimum wage law is getting mixed reaction from attorneys on both sides of the issue.
The ruling by Hartford Superior Court Judge Cesar Noble giving $31,445 to an attorney who worked on a tip credit employment case was hailed by the attorney as a major incentive for plaintiff’s counsel to take on such cases. But the defense decried the ruling as unjust, unfair and inappropriate.
The litigation hinged on “tip credit”—the difference between the minimum fair wage under Connecticut’s Minimum Wage Act and the minimum wage permitted for service employees who receive gratuities. It pits plaintiff Shaneque Stevens against Windsor-based Italian restaurant Vito’s By The Water, and resulted in two rulings from Noble.
The latest ruling, on May 17, granted the plaintiff $31,445 in legal fees for work by attorney Richard Hayber of the Hayber Law Firm in Hartford. An earlier ruling in November found the restaurant did not pay fair and just wages to Stevens, a former server. At the time, the judge awarded Stevens $20,704.
“This is an important ruling for attorneys who take on wage cases for low-wage workers that they will be paid when they win,” said Hayber, a labor/employment lawyer in Connecticut and Massachusetts for 20 years. “This will encourage lawyers to help otherwise resourceless workers who need their help. It’s a big incentive for those lawyers to take on these cases.”
But defense counsel took the opposite view.
Kennelly Law Firm attorney John Kennelly, who represents Vito’s owner Robert Maffucci, said both rulings set a dangerous precedent and will negatively affect restaurants across the state.
Kennelly called the attorneys fee award given to Hayber “inappropriate.”
“The amount of repetitive billing should not have been rewarded by this court. I believe $32,000 was way too much,” he said. “My motion was for him to get about $10,000 for a case with some minor and legal factual disputes.”
Kennelly said he is leaning toward appealing and has until June 3 to decide. He said Maffucci has yet to make a final decision on whether to appeal. The restaurateur did not return a call for comment Monday.
The November ruling ”means there is now an open season for every small restaurant business that does not have an entire legal department to protect them from the minutia of the state Department of Labor regulations,” Kennelly said.
In that ruling, Noble stated that Vito’s paid Stevens solely a tip credit wage when some of her work should have been paid at the state’s $10.10-an-hour minimum wage. The tip credit wage in Connecticut is $6.38 an hour, or $3.72 less than the minimum wage. State law allows for restaurant wait staff to be paid the tip credit wage if they are serving customers and earning tips. Employees must, under state law, get the state’s minimum wage when they are not serving, such as times they are vacuuming or rolling silverware or cleaning pizza trays.
According to Hayber, Stevens and others servers, on average, would work about 30-35 hours a week. Of that time, Hayber said, about five hours a week should have been earmarked for minimum wage pay. That is disputed by Kennelly, who said minimum wage pay constituted only a few minutes each day.
“We are talking only a few minutes in the beginning and the end of the shift,” Kennelly told the Connecticut Law Tribune Monday. “That is when [Stevens] was doing things like setting up and filling condiments. We are talking about a minor violation here. We are talking about minutes. It was all done on good faith and was not nefarious. There are not conspiracies here. What the court has done is applied what is significant punitive damages to a situation that, at the very worst, was ignorance of application of the tip credit rate.”
Kennelly said the most unfair part of the November ruling was that the judge “applied double damages” for the plaintiff.
But Hayber said the judge’s action might deter other restaurants from doing what Vito’s allegedly did.
In addition to awarding his client back pay for about 18 months, Hayber noted Noble also tacked on 12 percent interest per year.
“The penalty damages under the Connecticut Wage Act are designed to punish and deter this type of activity in Connecticut,” Hayber said. “This ruling is very important because it strictly construes the Wage Act, which is designed to help protect low-wage workers from employers who would take advantage of their status as employees.”
Hayber, who said he plans to file similar suits in the near future against other restaurants, described his lawyering style in the case as “relatively straightforward.”
“I obtained the payroll records and side-work lists and took the deposition of the owner, who testified truthfully that [Stevens] performed side work at the beginning and end of her shift and he paid her at the service rate. That was the end of the case for me.”
While the ruling might not set precedent because Superior Court judges do not have to follow what a fellow Superior Court judge ruled, Hayber suggested it might influence other decisions.
Judges “do read each other’s opinions and try to follow them,” he said. “They are not bound to them, but judges try to create a cohesive body of law.”