Argued December 1, 2014.
Civil action commenced in the Superior Court Department on May 18, 2011.
The case was heard by Thomas P. Billings, J., on a motion for summary judgment, and questions of law were reported by him to the Appeals Court.
The Supreme Judicial Court granted an application for direct appellate review.
Shannon Liss-Riordan for the plaintiffs.
Diane M. Saunders ( Andrew E. Silvia with her) for the defendants.
The following submitted briefs for amici curiae:
Harris Freeman & Audrey R. Richardson for Labor Relations and Research Center, University of Massachusetts, Amherst, & another.
Christopher J. Anasoulis for DD Independent Franchise Owners, Inc.
Ben Robbins & Martin J. Newhouse for New England Legal Foundation.
Richard L. Alfred, Ariel D. Cudkowicz, C.J. Eaton, & Jessica S. Lieberman for Seyfarth Shaw LLP.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.
[27 N.E.3d 1255] Duffly, J.
The plaintiffs are current and former employees at Dunkin' Donuts stores who brought suit in the Superior Court against Constantine Scrivanos, a Dunkin' Donuts franchisee of stores that employed the plaintiffs, and NGP Management, LLC (NGP), which performs management functions for those stores. Among other claims, the plaintiffs maintained that the defendants had implemented a no-tipping policy at certain of their Dunkin' Donuts stores, and that the implementation of that policy, as well as the method of enforcing it, violated G. L. c. 149, § 152A (Tips Act). The Tips Act provides that no employer " shall ... accept ... any ... deduction from a tip" given to any wait staff, service, or bartender employee, or " retain ... any tip" given to the employer directly. G. L. c. 149, § 152A ( b ).
Concluding that the no-tipping policy was not a violation of the Tips Act, a Superior Court judge allowed the defendants' motion for summary judgment on that claim. The judge denied the motion on the claims alleging that the defendants' policy of placing money left as tips in the cash register, and a later policy of placing money left as tips in " abandoned change" cups, violated the Tips Act, because he determined that these claims raised triable issues of fact. At the plaintiffs' request, the judge then reported two questions to the Appeals Court, pursuant to Mass. R. Civ. P. 64 (a), as amended, 423 Mass. 1403 (1996), and we allowed the plaintiffs' petition for direct appellate review.
The judge reported the following questions:
" 1. Does G. L. c. 149, § 152A allow an employer to maintain
a no-tipping ...