David E. Frank writes at Massachusetts Lawyers Weekly via Dolan Media Newswire rulings by two influential trial judges have found that the treble damages provision of the tip statute does not apply retroactively, an issue that courts in Massachusetts have been split on for nearly two years.

On Feb. 8, Superior Court Judge Margaret R. Hinkle, who heads the Business Litigation Session, determined in Hernandez, et al. v. Hyatt Corp. that a 2008 amendment to the state’s controversial tip law – G.L.c.149, §150 – was intended to be applied prospectively only.

Two months earlier, U.S. District Court Judge William G. Young, who served as chief of the court from 1997 to 2005, came to the same conclusion in DiFiore, et al. v. American Airlines, Inc.

“There was a point in time [when] the plaintiffs’ bar had some authority on their side that made them feel they had leverage over us during settlement discussions,” said Brigitte M. Duffy, the Boston lawyer who represented the defendants in Hernandez. “There’s no question that now having the chief of the [BLS] and a former presiding judge of the federal court saying what they’ve said here carries some extra weight.”

Duffy, who practices at Seyfarth Shaw, added that DiFiore and Hernandez are “evidence of a definite trend which swings the pendulum back in our direction. It’s been a good couple of months for defense attorneys in Massachusetts – and we don’t always get good months in wage and hour litigation.”

‘Confused’ judges

Scott E. Adams of Groveland, who represented the plaintiffs in Hernandez, said the uncertainty on retroactivity started in 2005 when the Supreme Judicial Court held in Weidmann v. The Bradford Group that treble damages could be awarded only on a finding that an employer had willfully committed an infraction.

That test was struck down by Chapter 80 of the Acts of 2008, which made Massachusetts the first state in the country to impose automatic treble damages for wage and hour law violations. What remained unclear was whether the Legislature intended for damages to apply to cases that pre-dated the passage of the bill.

Adams said judges across the state have been split on the question ever since. For example, he said, Superior Court Judges Raymond J. Brassard and Leila R. Kern have ruled opposite of Hinkle and Young.

“These are significant matters of law that have some important philosophical questions underlying them, and there is clearly a problem with the implementation and enforcement of them,” Adams said. “There are a number of judges in Massachusetts who seem to be very confused about why these laws were developed in the first place and what they were intended to do.”

Adams also criticized the Hernandez ruling for dismissing his clients’ breach of contract claims on grounds that the statute, which has a three-year statute of limitations, preempts any common law remedies. The common law claims, which were based on the premise that the tip statute creates an implied contract between employers and employees, carry a six-year statute of limitations, he said.   

Read more at: Dolan Media Newswire