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SJC-11618

RON MESHNA & others1 vs. CONSTANTINE SCRIVANOS & another.2

Suffolk. December 1, 2014. - April 10, 2015.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, 

& Hines, JJ.

Tips. Employment. Notice.

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.

 

1 Ileana Ortiz, Ralph Sherrick, and Karen White. The 

plaintiffs sued on behalf of themselves and all others similarly 

situated.

2 NGP Management, LLC.
2

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.

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,3 and that the implementation of that 

policy, as well as the method of enforcing it, violated G. L. 

c. 149, § 152A (Tips Act).4 The Tips Act provides that no 

employer "shall . . . accept . . . any . . . deduction from a 

tip" given to any wait staff, service, or bartender employee, or 

 

3 Constantine Scrivanos holds franchises for approximately 

sixty-six Dunkin' Donuts stores in Massachusetts; approximately 

forty-four of these stores had a no-tipping policy in place 

during the period relevant to the plaintiffs' claims.

4 The plaintiffs also asserted claims of tortious 

interference with contractual or advantageous relations and 

unjust enrichment. The claim for unjust enrichment was 

dismissed, and is not before us.
3

"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.5

The judge reported the following questions:

"1. Does G. L. c. 149, § 152A allow an employer to 

maintain a no-tipping policy?

"2. If a no-tipping policy is permitted under 

Massachusetts law, may an employer be liable 

under G. L. c. 149, § 152A if:

"a. The employer fails to communicate the 

no-tipping policy clearly to customers, who 

consequently leave tips that are retained by the 

 

5 We acknowledge the amicus briefs submitted by DD 

Independent Franchise Owners, Inc.; the Labor Relations and 

Research Center, University of Massachusetts, Amherst, and the 

Massachusetts Fair Wage Campaign; the New England Legal 

Foundation; and Seyfarth Shaw LLP.
4

employer; and/or

"b. The employer clearly communicates the 

no-tipping policy to customers, who nonetheless 

leave tips that are retained by the employer?"

We answer the first question, "Yes." We answer question 2(a), 

"Yes," and 2(b), "No."

Background. We summarize the facts set forth in the 

judge's memorandum of decision, supplemented by the parties' 

joint statement of material facts, reserving some facts for 

later discussion. Scrivanos is a franchisee operating 

approximately sixty-six Dunkin' Donuts stores in the 

Commonwealth. He has established various limited liability 

companies and S corporations that own the stores for which he is 

a franchisee, and he is the manager of each of these 

corporations. Scrivanos also established NGP, which manages and 

operates all of Scrivanos's Dunkin' Donuts locations in 

Massachusetts. The plaintiffs are current and former employees 

of Scrivanos's Dunkin' Donuts stores. They were paid on an 

hourly basis. All of the plaintiffs earned at least the minimum 

wage under the Wage Act, G. L. c. 151, § 1.

Sometime in 2003, the defendants instituted a no-tipping 

policy at all of their stores, but later withdrew the policy as 

to some stores. When the plaintiffs' complaint was filed, the 

policy remained in effect in approximately two-thirds of 
5

Scrivanos's Massachusetts stores, including all of the stores in 

which the plaintiffs worked. Under the no-tipping policy, an 

employee is not permitted to accept a tip from a customer, even 

if the customer wants to leave a tip, and is required to inform 

a customer who attempts to leave a tip of the policy.

The defendants have instituted various mechanisms for 

enforcing the no-tipping policy, including the placement of 

signs in the stores stating "no tipping" or "thank you for not 

tipping." The size and location of the signs vary from store to 

store. Additionally, the defendants instruct employees to 

inform customers of the no-tipping policy and to refuse to 

accept tips. The defendants have communicated to employees that 

the acceptance of tips "will result in disciplinary action, up 

to and including termination." Before commencement of this 

litigation, the defendants instructed employees to place "tips" 

that had been left by customers, notwithstanding the 

instructions about the no-tipping policy, in the cash register. 

After the filing of the plaintiffs' complaint in the Superior 

Court, an "abandoned change" policy was adopted. Employees in 

stores with a no-tipping policy were instructed to place the 

money in abandoned change cups located near the cash register. 

Employees also were instructed to inform customers that the 

"abandoned change" cups were not for tips, and that any money 
6

placed in the cups would be used to discount future customers' 

purchases, similar to a "take-a-penny, leave-a-penny" container.

The plaintiffs asserted in their original complaint that 

both the defendants' no-tipping policy, and the policy of 

placing money left as "tips" in the cash register, violate the 

Tips Act. After the implementation of the "abandoned change" 

policy, the plaintiffs filed an amended complaint asserting that 

this new policy also violates the Tips Act.

The defendants filed a motion for judgment on the 

pleadings. After a hearing on the motion, a Superior Court 

judge held that the Tips Act did not prohibit implementation of 

a no-tipping policy, but that, if customers nonetheless left 

tips, those tips belonged to the employees, and an employer's 

retention of them would constitute a violation of the Tips Act. 

Concluding that a full record would be helpful for any appeal, 

the judge denied the plaintiffs' motion to report the case to 

the Appeals Court. Discovery was conducted, and the defendants 

thereafter filed a motion for summary judgment. A different 

Superior Court judge denied the motion in part, allowed it in 

part, and reported the questions to the Appeals Court. We 

allowed the plaintiffs' petition for direct appellate review.

Discussion. The reported questions require that we 

construe the language of the Tips Act, and we apply familiar 
7

principles of statutory construction to guide our 

interpretation. "We look to the intent of the Legislature 

'ascertained from all its words construed by the ordinary and 

approved usage of the language, considered in connection with 

the cause of its enactment, the mischief or imperfection to be 

remedied and the main object to be accomplished, to the end that 

the purpose of its framers may be effectuated.'" DiFiore v. 

American Airlines, Inc., 454 Mass. 486, 490 (2009), quoting 

Industrial Fin. Corp. v. State Tax Comm'n, 367 Mass. 360, 364 

(1975). "In addition, our respect for the Legislature's 

considered judgment dictates that we interpret the statute to be 

sensible, rejecting unreasonable interpretations unless the 

clear meaning of the language requires such an interpretation." 

Bednark v. Catania Hospitality Group, Inc., 78 Mass. App. Ct. 

806, 811 (2011), citing Commonwealth v. Dodge, 428 Mass. 860, 

865 (1999).

We note, as an initial matter, that it is undisputed that 

the plaintiffs are employees entitled to the protections of the 

Tips Act. The Tips Act "protect[s] the wages and tips of 

certain employees who fall within the ambit of the statute." 

Bednark v. Catania Hospitality Group, Inc., 78 Mass. App. Ct. at 

809. These employees include service employees, service 

bartenders, and wait staff employees. G. L. c. 149, § 152A (a). 
8

Wait staff employees include counter staff who "serve[] 

beverages or prepared food directly to patrons," "work[] in a 

restaurant . . . or other place where prepared food or beverages 

are served," and have "no managerial responsibility." Id. The 

parties agree that the plaintiffs are "wait staff employees" 

within the meaning of the Tips Act.

1. Whether G. L. c. 149, § 152A, permits an employer to 

maintain a no-tipping policy. General Laws c. 149, § 152A (b), 

provides that

"[n]o employer or other person shall demand, request 

or accept from any wait staff employee, service employee, 

or service bartender any payment or deduction from a tip or 

service charge given to such wait staff employee, service 

employee, or service bartender by a patron. No such 

employer or other person shall retain or distribute in a 

manner inconsistent with this section any tip or service 

charge given directly to the employer or person."

Relying on language in this provision, the plaintiffs 

contend that the plain language of the Tips Act prohibits an 

employer from instituting a no-tipping policy. They argue that 

G. L. c. 149, § 152A (b), does not permit an employer to take 

any "deduction from a tip," and that the defendants' prohibition 

on employees accepting tips in effect results in a "deduction 

from a tip" that the employee would have received absent the notipping policy.

The plaintiffs' interpretation is contrary to several 

tenets of statutory construction. It would require that we 
9

disregard the plain meaning of the words "retain" and 

"deduction" as used in G. L. c. 149, § 152A (b). Moreover, 

because the statute explicitly concerns tips that have been 

"given," either directly to employees or to employers, the 

plaintiffs' interpretation distorts the syntax of that section, 

in order to read into it a provision the Legislature did not 

include.

In the first sentence of G. L. c. 149, § 152A (b), an 

employer is prohibited from demanding, requesting, or accepting 

a "deduction" from a tip "given to [a covered] employee." In 

construing a statute, where a word is commonly understood, it 

can "be given its ordinary meaning." Flemings v. Contributory 

Retirement Appeal Bd., 431 Mass. 374, 375 (2000), quoting 

Commonwealth v. Woods Hole, Martha's Vineyard & Nantucket S.S. 

Auth., 352 Mass. 517, 518 (1967). According to several 

dictionary definitions, the word "deduct" means "to take away, 

as from a sum or amount." See Webster's New Universal 

Unabridged Dictionary 520 (2003); 3 Oxford English Dictionary 

115 (1978). A "deduction" is commonly defined as "something 

that is or may be deducted." Webster's New Universal Unabridged 

Dictionary, supra. See Black's Law Dictionary 501 (10th ed. 

2014) ("The act or process of subtracting or taking away"); 3 

Oxford English Dictionary, supra at 116 ("That which is deducted 
10

or subtracted").

Thus, in the plain and unambiguous language of the statute, 

an employer may not take away any amount from a "service charge, 

tip[, or] gratuity," G. L. c. 149, § 152A (a), that was "given 

to" a wait staff employee. A tip that was "given to" an 

employee would include a tip that was handed directly to the 

employee or left on a counter for the employee, or a sum 

designated as a tip or gratuity on a customer's credit card 

slip.6 This reading of the first sentence of § 152A (b) is

"consonant with sound reason and common sense." Harvard 

Crimson, Inc. v. President & Fellows of Harvard College, 445 

Mass. 745, 749 (2006). See DiGiacomo v. Metropolitan Prop. & 

Cas. Ins. Co., 66 Mass. App. Ct. 343, 346 (2006).

The Tips Act also contemplates that tips intended for 

employees may be given directly to an employer. An employer may 

"submit[] a bill, invoice or charge to a patron or other person 

that imposes a service charge or tip," G. L. c. 149, § 152A (d), 

for instance by submitting an invoice in connection with a 

private function at which the employer provides food and 

 

6 Under G. L. c. 149, § 152A (a), a "[t]ip" is defined as

"a sum of money, including any amount designated by a 

credit card patron, a gift or a gratuity, given as an 

acknowledgment of any service performed by a [covered 

employee]."
11

beverages.7 See Cooney v. Compass Group Foodservice, 69 Mass. 

App. Ct., 632, 635 (2007). The second sentence of G. L. c. 149, 

§ 152A (b), addresses an employer's obligation in such a 

situation. The sentence states that "[n]o . . . employer or 

other person shall retain" a tip or service charge "given 

directly to the employer." The common definition of the word 

"retain" is "to keep possession of." Webster's New Universal 

Unabridged Dictionary, supra at 1643. Accordingly, the second 

sentence of G. L. c. 149, § 152A (b), addresses the circumstance 

in which tipping is permitted and a tip is actually given, 

albeit not directly to the employee; if payment of a tip or 

service charge is made to an employer, "the statute requires 

that the proceeds be remitted to the [covered] employees." 

Cooney v. Compass Group Foodservice, supra at 637. The Tips Act 

is explicit in this regard, and prohibits an employer from 

retaining a service charge or tip that was paid to the employer 

 

7 Under G. L. c. 149, § 152A (a), a "[s]ervice charge" is 

defined as

"a fee charged by an employer to a patron in lieu of a 

tip to any [covered employee], 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 

[covered employee] in lieu of, or in addition to, a tip."
12

rather than to the wait staff employee.8

No language in G. L. c. 149, § 152A (b), or elsewhere in 

the Tips Act, see G. L. c. 149, § 152A (a)-(g), prohibits an 

employer from imposing a no-tipping policy.9 The Tips Act 

addresses circumstances in which tipping is permitted and wait 

staff employees have been given tips, directly or indirectly; it 

prescribes what the employer is required to do with such tips. 

Id.

In support of their argument that a no-tipping policy is 

prohibited under the Tips Act, the plaintiffs point to the fact 

that the Legislature considered, but did not adopt, legislation 

 

8 An employer also may impose a fee that is not a tip or 

service charge, invoice a customer directly for such a fee, and 

retain that amount.

"Nothing in this section shall prohibit an employer 

from imposing 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."

G. L. c. 149, § 152A (d).

9 As noted, all of the plaintiffs were paid at least the 

statutory minimum wage; we are not called upon here to consider 

circumstances governed by G. L. c. 151, § 7, pursuant to which 

an employer may pay a "tipped employee" an hourly wage which is 

lower than the statutory minimum wage, provided that specific 

conditions have been met, and that the employer pays an 

"additional amount" if the hourly wage combined with the 

employee's tips falls below the minimum wage established in 

G. L. c. 151, § 1.
13

proposed in 2010 House Doc. No. 4814, which stated that 

"[n]othing in [the Tips Act] shall prohibit any employer from 

establishing a policy prohibiting tipping." We have 

consistently rejected similar arguments, recognizing that "[t]he 

practicalities of the legislative process furnish many reasons 

for the lack of success of a measure other than legislative 

dislike for the principle involved in the legislation." Suffolk 

Constr. Co. v. Division of Capital Asset Mgt., 449 Mass. 444, 

457 n.18 (2007), quoting Franklin v. Albert, 381 Mass. 611, 

615B616 (1980). See United States v. Craft, 535 U.S. 274, 287 

(2002), quoting Central Bank of Denver, N.A. v. First Interstate 

Bank of Denver, N.A., 511 U.S. 164, 187 (1994) ("several equally 

tenable inferences may be drawn from such inaction").

Finally, the plaintiffs find support for their view in 

DiFiore v. American Airlines, Inc., 454 Mass. 486, 496 (2009), 

where we stated that the "express purpose of the [Tips] Act [is] 

to protect gratuity payments given to, or intended for, 

[covered] employees." The plaintiffs suggest that this language 

indicates that G. L. c. 149, § 152A, protects not only tips 

actually given, but also tips that customers intended covered 

employees to have, and would have given to those employees had 

they not been prevented from doing so by imposition of a notipping policy.
14

We are not persuaded. In that case, we addressed a 

question certified to us by the United States District Court for 

the District of Massachusetts concerning the definition of the 

term "service charge" in G. L. c. 149, § 152A (d). We 

determined that the Legislature intended by this provision "to

ensure that service employees receive all the proceeds from 

[assessed] service charges," DiFiore v. American Airlines, Inc., 

supra at 493, and interpreted the term "service charge" to 

include a tip or gratuity as "nonexclusive examples of fees that 

constitute service charges." Id. at 495. Nothing in that 

decision supports the view that the Tips Act applies to tips 

that customers intended to give to employees but, because of a 

no-tipping policy, did not give.

In sum, we do not construe G. L. c. 149, § 152A, to require 

that employers of wait staff employees must permit customers to 

give tips to such employees.

2. Liability under G. L. c. 149, § 152A, where a notipping policy is in effect. We turn to consideration of the 

second reported question, which relies upon a determination that 

imposition of a no-tipping policy is not contrary to the Tips 

Act. The second reported question asks that we consider the 

circumstances in which an employer seeking to enforce a notipping policy may be held in violation of the Tips Act if, 
15

notwithstanding the implementation of such a policy, 

"customers . . . leave tips that are retained by the employer." 

For reasons we discuss, we conclude that, if an employer has not 

clearly communicated its no-tipping policy to customers, tips 

left by customers where service is provided by wait staff belong 

to those employees, and may not be retained by the employer. On 

the other hand, where the employer has clearly communicated to 

customers that a no-tipping policy is in effect, money left by 

customers in establishments where service is provided by wait 

staff is not a tip that was given to wait staff employees, 

regardless of a customer's intent.

a. Tips retained by employer who has failed to communicate 

its no-tipping policy clearly to customers. As discussed, the 

Tips Act defines particular circumstances in which a fee that is 

assessed by an employer is not a tip or service charge subject 

to the provisions of the Tips Act. G. L. c. 149, § 152 (d). 

See note 8, supra. In those circumstances, an employer must 

"inform[] the patron that the fee does not represent a tip or 

service charge for [covered employees]." G. L. c. 149, 

§ 152 (d). This requirement reflects the Legislature's concern 

that, absent such information, customers charged a fee by 

employers of wait staff employees will assume that the employer 

will remit that amount to its wait staff employees.
16

Similarly, unless an employer who has implemented a notipping policy clearly conveys to customers that money they 

leave when paying their bill does not represent a tip for wait 

staff employees, it is readily conceivable that customers will 

have the reasonable expectation that the money they leave will 

be given to the wait staff employees. The absence of a clear 

communication to customers of a no-tipping policy could permit 

employers to pocket sums not intended for them, and would 

facilitate "an 'end run' around the [Tips] Act." DiFiore v. 

American Airlines, Inc., 454 Mass. at 496.

General Laws c. 149, § 152A (b), prohibits employers of 

wait staff employees from "demand[ing], request[ing] or 

accept[ing]" a payment or deduction from a tip "given to" such 

employees. Although an employer may adopt a no-tipping policy, 

it "may not escape [this] prohibition in . . . the [Tips] Act," 

DiFiore v. American Airlines, Inc., supra at 494, by failing to 

communicate to customers that the policy is in effect, and that 

the money they leave will not be kept by the employee as a tip. 

In the absence of such a communication of the no-tipping policy 

to customers, we conclude that "a sum of money . . . , given as 

an acknowledgment of any service performed by a [covered] 

employee," remains a "tip . . . that a patron . . . would 

reasonably expect to be given to a [covered] employee." G. L. 
17

c. 149, § 152A (a). An employer who, in those circumstances, 

"demand[s], request[s] or accept[s]" any portion of such sums 

does so in contravention of the Tips Act. See G. L. c. 149, 

§ 152A (b).

b. Tips retained by employer who has clearly communicated 

no-tipping policy to customers. Where an employer who employs 

wait staff employees has clearly communicated a no-tipping 

policy that effectively conveys that money left by a customer 

will not be received by any wait staff employee as a tip, we 

conclude that any money that is nonetheless left by a customer 

is not a tip "given to" the wait staff employees because a 

customer cannot reasonably expect that this money has been given 

to the employees. Accordingly, where there has been a clear 

communication of a no-tipping policy to customers, the employer 

has not violated G. L. c. 149, § 152A (b), if the sums of money 

that nonetheless have been left by customers are retained by the 

employer, or placed in an "abandoned change" cup for use by 

other customers.10

Conclusion. For the reasons stated, we answer the first 

 

10 A clear communication of the no-tipping policy could be 

accomplished through the posting of signs such as those 

conveying that employees may not accept tips. In addition,

employers could instruct wait staff employees to convey to 

customers orally the existence of a no-tipping policy, and could 

provide training regarding the content of the communication, as 

well as when during the various points of interaction with a 

customer the information should be conveyed.
18

reported question, "Yes." We answer question 2(a), "Yes," and 

we answer question 2(b), "No." The matter is remanded to the 

Superior Court for further proceedings consistent with this 

opinion.

So ordered.