Tipping Point

Is an employer free to establish a no-tipping policy? Yes, said the Supreme Judicial Court (SJC), rejecting the argument of a group of current and former Dunkin’ Donuts employees who contended that Massachusetts law prohibits no-tipping policies. You can read the decision by clicking here.

When it enacted the Tips Act (M.G.L. c. 149, S. 152A) the Legislature barred employers from deducting or retaining tips that customers had given to the wait staff.  Counsel for the plaintiffs (the employees) argued that the words “deducting” and “retaining” are flexible enough to mean “prohibiting.” Not so, said the SJC. Making it unlawful for restaurant/bar-owners to keep or skim tips that customers have left for servers is not the same as forbidding them from trying to prevent customers from tipping in the first place. A no-tipping policy simply does not violate the Tips Act.

And so long as the owner clearly communicates the policy to customers, if customers still leave money behind, the servers do not have the right to claim that money as theirs. The employer is not breaking the law by keeping it or giving it away.

So employers: If you have a no-tipping policy, make sure that you get the message across to your customer clearly. That’s my tip for the day.

Pro portrait
Peter Vickery, Esq.

Will Legislature Pass Cosby’s Law?

bill-cosby
Bill Cosby

Bill Cosby wants Massachusetts to grant his image remunerative life after death by amending the commonwealth’s right-of-publicity law. If his bill becomes law, the right to commercially exploit the Cosby image will outlive Mr. Cosby himself by 70 years (the earliest point by which, to be snide, I predict the brand might recover some monetary value).

Until the scandalous allegations about Mr. Cosby returned to the headlines, the media having lost interest for a few years, it looked as if he was going to get his way. The State Senate had, back in 2012, already approved his proposal, “An Act Protecting the Commercial Value of Artists, Entertainers, and Other Notable Personalities,” to give the measure its full title. It did so again in 2014, and this time the bill made it as far as the Ways and Means Committee, where it lingered at the close of the official legislative session.

I think it unlikely that the Massachusetts Legislature will use its unofficial sessions to pass the bill, but can claim no inside knowledge. Leading the charge for the Cosby Law was Senate-President-in-Waiting, Stan Rosenberg. When the Legislature reassembles in January, the newly-elevated Senator Rosenberg will no longer be in the bill-sponsoring business and, with the putative Cosby Law about as popular as its eponym, a new lead sponsor may be hard to find. Let us hope so.

There are several reasons to oppose the bill. First, it grants special rights to one particular class of Bay Staters. At present, we residents of Massachusetts all have the statutory right to control the commercial exploitation of our names and likenesses. You can read the relevant statute here, and if you read only the first two words you will learn something important, namely that the current law protects “any person.” That is not some fancy legalistic term of art, by the way: It means any person. The Cosby Law, in contrast, would protect you only if you happen to be a “personality,” which the bill defines as “an individual whose identity has commercial value.” It would not merely amend the current law but repeal and replace it. Ordinary residents would no longer enjoy the right of publicity. That right would belong only to celebrities, not we the hoi polloi.

My second reason for hoping the proposed Cosby Law fades away is its potential chilling effect. At the risk of making a sweeping generalization, I have noticed that powerful people rarely welcome criticism. If there is a plausibly legitimate method for muzzling their critics, they will use it. Although the Cosby bill expressly allows the use of a “personality’s identity” for purposes of “news report or commentary” as well as in artistic and expressive works, some lawyers to the rich and famous have a tendency to send threatening letters to awkward writers and artists anyway. Those on the receiving end may know that they are within their rights but fear the cost of proving it. So they give in without a fight. When there is no downside to sending baseless cease-and-desist letters, the consiglieri will send them.

Third, the bill creates the right to control the commercial use of a personality’s “image,” an ambiguous term that the bill does not define. In fact, the word “image” does not appear in the bill’s relatively clear definition of “identity,” i.e. “a personality’s name, likeness, voice, or signature that uniquely identifies that particular personality.” Injecting the undefined word “image” into the bill creates just the kind of ambiguity that lawyers to the rich and famous could exploit for their nefarious, speech-chilling ends (see above).

My fourth and final reason is this. The bill contains the following: “A personality shall have a property interest in such personality’s identity and shall have the exclusive right to control the commercial use of the personality’s identity during the personality’s life and for 70 years after the date of the personality’s death.” What the bill aims to achieve here is not so much a legal impossibility as an ontological and biological one. The dead cannot control anything. That is just one of the many features that make death so unappealing.

Now, I think I know what the drafters meant to write — that the right should endure for 70 years after death, if vested in a transferee — but what they wrote does not embody that meaning. So they should tear up this draft and try again. Or, better still, just tear up this draft and leave it at that.

Justin Sargent 1

Can you hear the silence? The SJC can.

Do you remember that day in high school or college when you learned about the separation of powers? Today the Massachusetts Supreme Judicial Court issued a decision that contains some language which might leave you wondering whether, during the intervening years, somebody went and amended the Constitution.

The case is Massachusetts Teachers’ Retirement System v. Contributory Retirement Appeal Board and it is important for several reasons. This post deals with just one of those reasons, one that matters to anyone who might be affected by how much leeway a government agency has when it interprets a statute.

First some background.  In 2005 the Legislature passed a law allowing vocational education teachers to increase their pensions by having up to three years of non-teaching employment count toward their “creditable service.”  During that three-year period they must have been working in the same trade they ended up teaching, e.g. a plumber who becomes a vocational plumbing teacher can ask the retirement board to count three years of her pre-teaching plumbing when calculating her pension.

To qualify for this significant pension boost, teachers have to contribute “makeup payments” into the retirement system, in an amount equal to ten per cent of their regular annual compensation. They also have to pay “buyback interest.” But when should the interest accrue: when they entered the retirement system, or the start of the three-year period?

In answering that question, two agencies had competing interpretations of the statute. One agency, the Contributory Retirement Appeals Board (CRAB) said that the statute was clear and unambiguous. Interest should run from when the teacher joined the system. The other agency, the Massachusetts Teachers’ Retirement System (MTRS) disagreed, saying that the statute was silent on the issue.  The Supreme Judicial Court heard the same silence, and held that the way the MTRS filled the silence was reasonable and entitled to deference.

Can you hear the silence?

One topic for a future post is the question of how silent the statute really is. In the meantime, I would like to address a more basic, constitutional aspect of the case.

What the Court said in explaining its decision is worth noting, not only if issues like democratic accountability rank high on your list of priorities, but also if you think that at some point your life may be affected by how an executive agency interprets a piece of legislation.

By way of a prelude to the Court’s explanation, let me refresh your memory of that high school or college lesson. The Constitution of the United States embodies the doctrine of the separation of powers, allocating the executive, legislative, and judicial roles to three distinct branches.  The Massachusetts Constitution, which predates it, is more explicit. Article 30 states:

“In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.”

Because the Constitution prohibits the Legislature from delegating is lawmaking powers to the executive, courts and commentators refer to the “doctrine of non-delegation.” Of course, Massachusetts judges have long recognized that modern government requires some degree of delegation, but they have distinguished between situations where agencies are just “working out the details” of a policy that the Legislature has announced (which is permissible) and those where the agency is making “fundamental policy” (which is not).

If the Legislature has delegated to an agency the task of making “fundamental policy decisions” it has violated Article 30. That was a point the Court made very clear in 2006 when it decided Commonwealth v. Clemmey.  But in today’s decision, which did not mention the non-delegation doctrine, the Court said this:

“[T]he Legislature simply chose to be silent on the issue, thereby leaving a policy gap to be filled by agency action.”

So this is a policy question, without doubt, not merely a matter of “working out the details.”  Is the question of when interest accrues on a vocational teacher’s buyback a “fundamental policy question” or is it something less than that, e.g. a trifling or minor policy question?  This recent report on the commonwealth’s unfunded pensions liabilities may influence how you answer that question.  It mentions a figure of $23.6 billion.

One important lesson from today’s decision is this: It has become even easier for the Legislature to delegate policy questions to executive agencies, when even an issue that involves a multi-billion dollar unfunded mandate does not qualify as a “fundamental policy decision” of the sort that the Legislature has no constitutional right to delegate.  If you have any questions or comments about the decision, I welcome your posts.