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Ichiban Japanese Steakhouse, Inc. v. Rocheleau

Supreme Court of New Hampshire

November 13, 2014

Ichiban Japanese Steakhouse, Inc.
v.
Kymberly Rocheleau; Ichiban Japanese Steakhouse, Inc.
v.
Samantha Greaney

Argued October 9, 2014.

Page 433

Merrimack.

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

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

DALIANIS, C.J., HICKS, LYNN, CONBOY, and BASSETT, JJ., concurred.

OPINION

Page 434

Dalianis, C.J.

In these consolidated appeals, the petitioner, Ichiban Japanese Steakhouse, Inc. (employer), appeals orders of the Superior Court ( McNamara, J.) upholding the determinations of the New Hampshire Department of Labor (DOL) that the respondents, Kymberly Rocheleau and Samantha Greaney (employees), were entitled to lost wages and attorney's fees because the employer's tip pooling arrangement violated RSA 279:26-b (2010) (amended 2012). We affirm.

The DOL found, or the record establishes, the following facts. The employer hired the employees as wait staff for its restaurant in August 2010. When they applied for the jobs, they were given a packet of documents, including a tip pooling agreement, to review. The agreement required wait staff to give approximately 60% of their tips to other employees and specified the percentage of tips that were to be given to other employees depending upon where in the restaurant the wait staff worked. For instance, the agreement stated that when wait staff worked in the hibachi grill area, they had to give 5% of all liquor sales to the bartenders, and distribute their tips as follows: 5% to the hibachi servers, 5% to the " bussers," and 45% to the hibachi chefs. Similarly, when working in the sushi area, wait staff were required to give 5% of all liquor sales to the bartenders and 5% of their tips to the bussers, 5% to the sushi bar, and 50% to the sushi chef. When Rocheleau told the manager of the restaurant that she disagreed with the tip pooling agreement, the manager told her that if she failed to sign the agreement, she could not work at the [167 N.H. 140] restaurant. At Greaney's hearing, the employer's attorney conceded that if Greaney had not signed the tip pooling agreement, she would not have been hired as wait staff, but might have been employed in another position.

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

Page 435

(2010). These consolidated appeals followed.

" Any party aggrieved by [a DOL wage claim] decision may appeal to the superior court ... by petition, setting forth that the decision is erroneous, in whole or in part, and specifying the grounds upon which the decision is claimed to be in error." Id. " The scope of review by the superior court shall be limited to questions of law." Id. " After hearing and upon consideration of the record, the [superior] court may affirm, vacate or modify in whole or in part the decision of the commissioner, or may remand the matter to the commissioner for further findings." Id. We, in turn, review de novo the ...


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