(CN) — Come November, Massachusetts voters could enact a petition to overhaul the state’s tipping structure. But a group of Bay Staters on Wednesday asked a state appellate court to keep the initiative off the ballot, claiming officials improperly certified the proposal.
The petition in question, titled “An Initiative Petition for a Law Requiring the Full Minimum Wage for Tipped Workers with Tips on Top,” was certified last year by Massachusetts Attorney General Andrea Campbell for the ballot.
If enacted, the law would eliminate the separate minimum wage for tipped employees and allow employers to create tip pools to share with the entire staff — including those who don’t traditionally earn tips, such as back-of-house restaurant employees.
But those are very separate discussions, according to the plaintiffs, which include Massachusetts Restaurant Association CEO Stephen Clark.
“The issue here is that, although the petition advertises itself as a question about full minimum wage, it’s really presenting two different issues on the menu for voters,” the plaintiffs’ attorney Ed Daley told a Massachusetts Supreme Judicial Court panel Wednesday.
Current state law stipulates that all workers must earn $15 per hour, but employers can pay tipped workers an hourly rate of $6.75 as long as tips bring them to at least $15 per hour. The petition aims to bring all workers to the $15 per hour base rate, with all tips to be added on top.
The plaintiffs haven’t argued against the wage change proposal itself. Instead, they claim it is being unjustly lumped into the new tip pool initiative, forcing voters to decide on two different issues with a single vote.
Justice Scott Kafker seemed skeptical.
“You’ve got a restaurant operating, the people dealing with the public are getting paid tips, the people doing the dishes are not,” he said. “But the success of the restaurant is interdependent. It just seems to me that these are awfully closely related.”
Daley replied that tips and wages are inherently two separate issues, even if they occur under the same roof in the same industry. He added that the proposal would affect more than restaurant workers.
“This could be in a hotel,” he said. “The workers in the hotel would be required to remit tips back to anybody from the landscaping crew to the people who maintain the pool. So this isn’t just an issue about tips and wages in restaurants.”
This would be left up to individual workplaces, though. According to the petition, so long as all employees are being paid at least minimum wage, the employer “may require that wait staff employees, service employees or service bartenders participate in a tip pool” with other co-workers. On its own, however, the law wouldn’t require it.
Still, Daley said he fears that the tip pool language is buried too deep in the 4-page petition.
“It’s not as well advertised to the voters,” he said. “It’s not in the title of the petition.”
Even if it were, Daley added it wouldn’t change the fact that the issues should still be separated on a ballot. He argued combining them means the petition does not meet the threshold to submit it to the people.
“They are separate questions with separate purposes,” he said. “And that’s exactly what the relatedness requirement seeks to prevent the voters from having to choose. They have one vote that they’re being asked to vote on two separate things.”
Kafker likened it to the marijuana legalization issue.
“You could have had medical marijuana alone, but you were legalizing marijuana. People who needed medical marijuana may have voted one way and been opposed to legalizing marijuana,” Kafker said. “But we still found it related because the voters could understand the overall policy decision. Here, can’t the voters understand the overall policy decision?”
Daley said the first time he read the petition he didn't understand it.
“And you’re quite smart,” Kafker jested.
State attorney Phoebe Fischer-Groban defended the petition as more than qualifying to be put to the people. She argued voters would be deciding on the pay structure for tipped employees, which is related enough to be chosen by a single vote.
“Here, there’s a reasonable relationship between these provisions,” she said. “They govern the two core components of what employees in the same business make: their hourly cash wage, whether it's a minimum wage or a subminimum wage, and then whether they get a share of tips on top of what their employer pays them.”
Fischer-Groban shot back on the plaintiffs’ claims that the tip pool provision is buried in the text of a lengthy law.
“This is a relatively straightforward law, it’s a short law,” she said. “Here, this is easy for voters to understand and to vote yes or no on. ‘Yes. I want all employees in tip businesses to be paid the state minimum wage, plus have the chance to get a share of tips,’ or, ‘No. I don’t want that.’”
The panel did not indicate how or when it will rule.
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