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<div><span style="font-family: Arial">On September 30, 2010, the United States District Court for the District of Massachusetts entered an interesting order in a case involving multiple issues under the Fair Labor Standards Act. &nbsp;</span></div> <div><span style="font-family: Arial"><br /></span></div> <div><span style="font-family: Arial">In <a href="https://employmentclassactionreport.bakerhostetlerblogs.com/wp-content/uploads/sites/8/2010/10/Travers-v-JetBlue-Airways.pdf"><em>Travers v JetBlue Airways.pdf</em></a><em>.</em>, airline JetBlue engaged an independent contractor named Flight Services and Systems ("FSS") to provide skycaps Boston Logan Airport. &nbsp;Because these skycaps received tips from passengers, the employer (more about that in a minute) took advantage of the tip credit of 29 U.S.C. &sect; 203(m) to meet its minimum wage obligations. &nbsp;At some point, however, the airline instituted a $2 "curbside check-in fee" that cut into the skycaps' tip income. In many cases, the plaintiffs claimed, they "covered" the fee themselves or, in other words, &nbsp;paid the fee from the tips they had received. &nbsp;The parties disputed whether their doing so was voluntary or not. &nbsp;In either case, the plaintiffs contended that their payment of the fee undercut the tip credit and therefore caused them not to be paid the minimum wage. &nbsp;The plaintiffs also complained that they were subject to a policy that made them liable for shortages, which also destroyed the tip credit.&nbsp;</span></div> <div> <div><span style="font-family: Arial">&nbsp;</span></div> </div>  <div><span style="font-family: Arial">Unlike the fleetingly famous disgruntled JetBlue&nbsp;flight attendant, they did not activate the emergency exits, but did bring suit under the FLSA and sought to represent a class of skycaps performing services for JetBlue nationwide.</span></div> <div><span style="font-family: Arial"><br /></span></div> <div><span style="font-family: Arial">In a&nbsp;remarkably&nbsp;brief order given the subject matter, the court addressed a series of arguments raised by the parties. &nbsp;It found, for example, that a question of fact existed as to JetBlue's liability for the acts of &nbsp;its contractor FSS due to evidence that JetBlue actually supervised and disciplined skycaps. &nbsp;It also addressed the issue of the tip credit itself. &nbsp;Underlying the case was a simple notion of human behavior - if passengers are assessed a fee for the skycap service, they are likely to tip less for it, reasoning that they are already paying extra for it.&nbsp;&nbsp;&nbsp;Thus, the skycaps implicitly argued,&nbsp;the curbside check-in fees cut into their tip income and&nbsp;lowered their compensation.&nbsp;This notion, however, is not a part of the statute, so the issue came down to one of whether the tip credit could be applied if the skycaps paid the fee themselves. &nbsp;The court found that while&nbsp;an entirely&nbsp;voluntary decision by the plaintiffs to "share" tips with customers by paying the fee would not violate the FLSA, there was a question of fact as to whether their payment was truly voluntary.</span></div> <div><span style="font-family: Arial"><br /></span></div> <div><span style="font-family: Arial">In a footnote, the court disposed of an argument raised by FSS essentially that it was not aware of the alleged wage violations and had taken reasonable steps to prevent them. &nbsp;The court found no authority that such an argument, one drawn from the sexual harassment arena, would apply under the FLSA&nbsp;.&nbsp; In any case,&nbsp;the court also&nbsp;also found the evidence insufficient to support it.</span></div> <div><span style="font-family: Arial"><br /></span></div> <div>In the last part of its order, the court denied conditional certification of the class even though it had, for the most part, denied the defendants' summary judgment motions. &nbsp;The court found no evidence that the practices complained of existed anywhere than at Boston, the sole facility where FSS was the contractor.</div> <div><strong><em>The bottom line:</em> &nbsp;Many cases involving technical wage and hour violations are tough for both sides. &nbsp;The plaintiffs may be able to raise questions of fact to defeat summary judgment based upon informal practices, but be unable to demonstrate sufficiently uniform policies across a large group of employees to establish a class.</strong></div>

Summary Judgment Denied, But No Class Certification In Tip Dispute