United States District Court, D. Massachusetts
TRACEY LAZO, JAMEN HARPER, MUSTAPHA JARRAF, NY'COLE YOUNG THOMAS, and all others similarly situated, Plaintiffs,
SODEXO, INC., Defendant.
OPINION AND ORDER
A. O'TOOLE, JR. UNITED STATES DISTRICT JUDGE.
Lazo, Jamen Harper, and Mustapha Jarraf have brought this
putative class action against Sodexo, Inc., a company that
contracts with various educational, health care, and business
institutions to provide food related services and facilities
management. The plaintiffs allege that the defendant
violated the Massachusetts Tips Act, Mass. Gen. Laws ch. 149,
§ 152A, by retaining money collected from patrons as
service charges, rather than remitting the monies to wait
staff and service employees as the statute requires. After
the parties conducted relevant discovery, the plaintiffs
moved to certify a class of “[a]t least 604 Sodexo food
and beverage wait staff and service employees working at
thirty-five (35) Massachusetts Sodexo locations where
[Sodexo] has imposed, and improperly retained, a
‘service charge, ' on patron food and beverage
purchases.” (Pls.' Am. Mot. for Class Certification
1 (dkt. no. 61).) For the reasons set forth below, the
plaintiffs' motion to certify a class is DENIED.
Massachusetts Tips Act
Massachusetts Tips Act provides:
[i]f an employer or person submits a bill, invoice or charge
to a patron or other person that imposes a service charge or
tip, the total proceeds of that service charge or tip shall
be remitted only to the wait staff employees, service
employees, or service bartenders in proportion to the service
provided by those employees.
Mass. Gen. Laws ch. 149, § 152A(d). The Act defines
“service charge” as:
a fee charged by an employer to a patron in lieu of a tip to
any wait staff employee, service employee, or service
bartender, including any fee designated as a service charge,
tip, gratuity, or a fee 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.
Id. § 152A(a). The statute however permits an
employer to impose on a patron
any house or administrative fee in addition to or instead of
a service charge or tip, 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 wait staff
employees, service employees, or service bartenders.
Id. § 152A(d).
purpose of the statute is to protect the wages and tips of
the employees who fall within the scope of its protection.
DiFiore v. Am. Airlines, Inc., 910 N.E.2d 889, 893
(Mass. 2009) (“The Legislature's intent in enacting
the Act can be plainly discerned from its language and
history- to ensure that service employees receive the tips,
gratuities, and service charges that customers intend them to
23(a) of the Federal Rules of Civil Procedure sets forth
the following ...