2013-0779, Ichiban Japanese Steakhouse, Inc. v. Kymberly Rocheleau, and 2013-0780, Ichiban Japanese Steakhouse, Inc. v. Samantha Greaney

Japanese Steakhouse, Inc. (employer), appeals orders of the Superior Court DALIANIS, C. J. In th e s e consolidated appeal s, the petitioner, Ichiban

brief and orally), for the respondents. Law Office of Kenneth J. Barnes, of Concord (Kenneth J. Barnes on the

Moeckel on the brief and orally), for the petitioner. Tarbell & Brodich Professional Association, of Concord (Friedrich K.

2013 - 780 No s. 2013 - 779 Merrimack

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh. us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E - mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concor d, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

RSA p. 2 279:26 - b because “both employees testified that they read, understood The employer first argues that its tip poo ling arrangement did not violate

69, 71 ( p. 2 2010). on questions of law. Grimard v. Rockingham County Dep’t of Corr., 161 N.H. for further findings.” Id. We, in turn, review de novo the trial court ’ s decisions decision of the commissioner, or may rema nd the matter to the commissioner record, the [superior] court may affirm, vacate or modify in whole or in part the limited to questions of law.” Id. “After hearing and upon consideration of the claimed to be in error.” Id. “The scope of review by the superior court shall be whole or in part, and specifying the grounds upon which the decision is superior court . . . by petition, setting forth that the decision is erroneous, in “Any party aggrieved by [a DO L wage claim] decision may a ppeal to the

followed. the DOL’s decisions. See RSA p. 2 275:51, V (2010). These consolidated appeals employer appealed those determinations to the superior court, which upheld hearings on their claims, the DOL ruled in favor of the employees. The each filed a wage claim with the DOL, seeking to recover lost wages. Following April 30, 2011, and Greaney on May 21, 2011. Upon leaving their positions, Both employees left their jobs at the restaurant in 2011 – Rocheleau on

hired as wait staff, but might have been employed in an other position. Greaney had not sign ed the tip pooling agreement, she would not have been restaurant. At Greaney ’s hearing, the employer’s attorney conceded that if told her that if she faile d to sign the agreement, she could not work at the the restaurant that she disagreed with the tip pooling agreement, the manager the sushi bar, and 50% to the sushi chef. When Rocheleau told the manager of of all liquor sales to the bartenders and 5% of their tips to the bussers, 5% to Similarly, when working in the sushi area, wait staff were required to give 5% the hibachi servers, 5% to the “bussers,” and 45% to the hibachi chefs. of all liquor sales to the bartenders, and distribute their tips as follows: 5% to stated that when wait staff worked in the hibachi grill area, they had to give 5% where in the restaurant the wait staff worked. For instance, the agreement percentage of tips that were to be given to other employees depending upon to give approximately 60% of their tips to oth er employees and specified the including a tip pooling agreement, to review. The agreement required wait staff When they applied for the jobs, they w ere given a packet of documents, employer hired the em ployees as wait staff for its restaurant in August p. 2 2010. The DOL found, or the record establishes, the following facts. T he

(amended p. 2 2012). We affirm. because the employer ’ s tip pooling arrangement violated RSA 279:26 - b (2010) Samantha Greaney (e mployees), were entitled to lost wages and attorney ’ s fees Department of Labor (DOL) that the respondents, Ky mberly Rocheleau and (McNamara, J.) upholding the determination s of the New Hampshire p. 3 3

$4,214 is les s than 60% of $ 8,565, we conclude that the employer has failed to tips, including the 60% she distributed to other employees, was $8, 565. As in all, she took home approximately $ p. 3 3, 426 in tips, which means that her total home only 40% of the tips she earned. Rocheleau also produced evidence that, hearing, Rocheleau produced records and explained, in detail, that she took employees was improper. The DOL awarded Rocheleau $4,214. At the DOL The employer next asserts that the amount of lost wages awarded to the

arrangement is “not controlle d in any manner by the employer”). controlled the tip pooling arrangement. See RSA 279:26 - b, I (a valid tip pooling employer would still not prevail because, as the DOL found, the employer the employees were not “coerced” within the meaning of the statute, the as a matter of law, they must be upheld. See RSA 275:51, V. Moreover, e ven if disbursement of their tips.” Because these factual findings are not erroneous position if they did not sign the tip distribution sheet agreeing to the conceded that “a prospective employee woul d not be hired into a wait staff in the tip pooling arrangement was not voluntary, observing that the employer case, the DOL relied upon the employer ’s admission to find that participating “there was no w ay out of the employer’s mandated program.” In Greaney’s pressure to sign the agreement or not work at the establishment,” and that practice was voluntary.” The DOL credited Rocheleau’s testimony that “she felt not voluntary and found not credible the employer’s “statement that the Rocheleau’s case, the D OL found credible her testimony that th e process was pooling agreement “voluntarily,” the DOL expressly found to the contrary. In physical force. Although the employer argues that the employees signed the tip We reject the employer’s suggestion th at coercion requires application of

into signing the agreement. statute because neither employee was “physically coerce[d]” or “pressure[d]” The employer contends that there was no “coercion” within the meaning of the

accoun ting and bookkeeping purposes. no control over the manner in which tips are pooled other than for participation is voluntary, not coerced and the employer exercises precluded from administering a valid tip pool in which II. If the employee agrees to participate, the employer is not

by the employer. a tip pool which is not required and not controlled in any manner employee voluntarily and without coercion agrees to participate in receiving the tip and shall be retained by the employee, unless the I. Tips are wages and shall be the property of the employee

this appeal, RSA 279:26 - b provided: and voluntarily signed” the tip pooling agreement. During the time pertinent to p. 4 4

significant application or justification. come to be seen so differently, as to have robbed the old rule of abandoned doctrine; and ( p. 4 4) whether facts have so changed, or developed as to have left the old rule no more than a remnant of overruling; (3) whether related principles of law have so far reliance that would lend a special hardship to the consequence of practical workability; (2) whether the rule is subject to a kind of (1) whether the rule has proven to be intolerable simply by d efying

only after considering: doomed.” Id. (quotation omitted). Generally, we will overrule a prior decision be seen so clearly as error that its enforcement was for that very reason would decide the issue differently de novo, but whether the ruling has come to omitted). “When asked to reconsider a holding, the question is not whether we unpredictable results.” Appeal of Phillips, 165 N.H. 226, 231 (2013) (quotation case, deciding cases becomes a mere exercise of jud icial will with arbitrary and the rule of law, for when governing legal standards are open to revision in every “The doctrine of stare decisis demands respect in a society governed by

employer’s invitation. Manchester Subaru, Inc., 126 N.H. 796, 803 - 0 p. 4 4 (1985). We decline the arguing that it is “inherently unworkable” because it conflicts with Ives v. appeals under RSA 275:51”). The employer invites us to overrule Galloway, conclude that “attorn ey’s fees and interest are available in superior court Demers Agency v. Widney, 155 N.H. 658, 664 (2007) (relying upon Galloway to 142 N.H. 752, 759 - 60 (1998), we expressly rejected identical arguments. See court action brought under RSA 275:53 (2010). In Galloway v. Chicago - Soft, employer asserts that attorney’s fees may be awarded only in a direct sup erior under RSA 275:51, V, they are not entitled to recover attorney’s fees. The employer contends that because the employees’ wage claims were brought employees their attorney’s fees pursu ant to RSA 275:53, III (2010). The The employer next argues that the trial court erred when it awarded the

lost wages to Greaney. See RSA 275:51, V. demonstrate that the DOL erred, as a matter of law, when it awarded $8,390 in total tips Greaney earned, we conclude that the e mployer has failed to $12,173.75, and in 2011 was $9,157.50. As $8,390 is less than 60% of the $3,663 in tips in 2011, which means that the total of her tips in 2010 w as Greaney produced evidence that she took home $ p. 4 4,869.50 in tips in 2010 and amounts she “took home,” and did not include “the amounts [she] [gave] away.” testified that the amounts listed on her W - 2 and her final paycheck were the her 2010 W - 2 form and her final paycheck from the restaurant. Greaney The DOL awarded Greaney $8,390. At the hearing, Greaney pro duced

lost wages to Rocheleau. See RSA 27 p. 5 5:51, V. demonstrate that the DOL erred, as a matter of law, when it awarded $ p. 4 4,214 in 5

HICKS, LYNN, CONBOY, and BASSETT, JJ., concurred.

applicable statutes as it sees fit. legislature disagree with our statutory interpretation, it is free to amend the fees are available in a claim brought pursuant to RSA 27 p. 5 5:51, V. Should the 165 N.H. at 232. We, therefore, affirm our decision in Galloway that attorney’s assume that our holding conforms to legislative intent. See Appeal of Phillips, in tha t time, the legislature has not amended RSA 275:53, III. Thus, we Significantly, it has been sixteen years since we decided Galloway, and,

render such an award inequitable.” Id. (quotation omitted). reasonable counsel fees, unless the court . . . finds particular facts that would RSA 27 p. 5 5:51, V, the court “should exercise its sta tutory discretion by awarding court pursuant to RSA 275:53, or on appeal from a DOL decision pursuant to wage claim has been found to be meritorious, whether brought directly to the broad purpose of protect ing employees.” Id. Accordingly, we held that when a construe it in general, and RSA 275:53, III in particular, “to effectuate the because RSA chapter 275 is protective legislation, see Ives, 126 N.H. at 804, we might l ead to a different result. Galloway, 142 N.H. at 759. We reasoned that awarded, even though a “strict construction” of the language of RSA 275:53, III RSA 275:51, V. In that case, we concluded that attorney’s fees could be with the question of whether fees could be awarded in a case brought under and noted that they could. Id. at 803. Until Galloway, w e were not presented only whether such fees could be awarded in a case brought under RSA 275:53 action broug ht under RSA 275:51, V. Ives, 126 N.H. at 803 - 04. We addressed In Ives, we did not address whether attorney’s fees could be awarded in an that, in the employer’s view, it conflicts with Ives. The employer is mistaken. Its sole argument in its brief as to why we should overrule Galloway is

factors. Id. at 231 - 32 (quotation omitted). The employer has not briefed any of th ese