Amaral Brothers, Inc. v. Dept. of Labor , 325 Conn. 72 ( 2017 )

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AMARAL BROTHERS, INC. v.
DEPARTMENT OF LABOR
(SC 19622)
Rogers, C. J., and Palmer, Eveleigh, McDonald, Espinosa and Robinson, Js.
Argued December 12, 2016—officially released April 4, 2017
Melinda A. Powell, with whom was Robin B. Kallor,
for the appellant (plaintiff).
Gregory T. D’Auria, solicitor general, with whom
were Krista D. O’Brien and Thomas P. Clifford III,
assistant attorneys general, and, on the brief, George
Jepsen, attorney general, and Philip M. Schulz, assis-
tant attorney general, for the appellee (defendant).
Opinion
McDONALD, J. General Statutes § 31-60 (b) carves
out certain exceptions to Connecticut’s minimum wage
laws. Among other things, § 31-60 (b) directs the Labor
Commissioner, acting through the defendant, the
Department of Labor, to adopt regulations that recog-
nize that employers may include gratuities as part of
the minimum fair wage for employees in the restaurant
and hotel industries who customarily and regularly
receive gratuities (tip credit). The primary question
raised by this appeal is whether the department’s regula-
tions, which limit the tip credit to bartenders and tradi-
tional waitstaff and do not allow employers to count
gratuities toward the minimum wage for other employ-
ees such as restaurant delivery drivers, conflict with
the enabling statute. Because we conclude that the regu-
lations are not incompatible with § 31-60 (b), we affirm
the judgment of the trial court dismissing the appeal
of the plaintiff, Amaral Brothers, Inc., from the commis-
sioner’s declaratory ruling that the plaintiff’s drivers
are not subject to a tip credit.
The following undisputed facts and procedural his-
tory are relevant to our disposition of this appeal. The
plaintiff is a Connecticut corporation that operates
Domino’s pizza franchises in Groton and Mystic. The
plaintiff employs approximately forty drivers who
deliver food items to customers’ homes. The drivers
own and maintain their vehicles, but the plaintiff reim-
burses them for travel expenses. The drivers commonly
receive gratuities from customers and are required to
report their gratuities on an electronic system that the
plaintiff maintains.
In 2013, the plaintiff filed a petition for a declaratory
ruling with the commissioner seeking a determination
that it could pay a reduced minimum wage to its delivery
drivers because they regularly receive gratuities that,
on average, result in the drivers earning in excess of
the minimum wage. The plaintiff relied on § 31-60 (b),
which provides in relevant part that the commissioner
‘‘shall adopt such regulations . . . as may be appro-
priate to carry out the purposes of this part. Such regula-
tions . . . shall recognize, as part of the minimum fair
wage, gratuities in an amount . . . equal to [a] per cent
of the minimum fair wage per hour for persons, other
than bartenders, who are employed in the hotel and
restaurant industry . . . who customarily and regu-
larly receive gratuities . . . .’’ The plaintiff also chal-
lenged the validity and application of department
regulations that distinguish between service employees,
for whom restaurant industry employers can apply a
tip credit and pay the reduced minimum wage, and
nonservice employees, who must receive the full mini-
mum wage. See Regs., Conn. State Agencies §§ 31-62-
E1 through 31-62-E4.
The commissioner issued a declaratory ruling finding
that the exclusion of restaurant employees other than
waitstaff from the application of the tip credit regula-
tions was valid. The commissioner observed, among
other things, that (1) the regulations had been the sub-
ject of prior unsuccessful legal challenges, and (2) the
regulations are consistent with the notion that the mini-
mum wage law is a remedial statute that should receive
a liberal construction to accomplish its purpose of
ensuring the payment of fair and just wages. The com-
missioner also noted that exceptions to rules such as
the minimum wage requirement must be narrowly con-
strued and that a petitioner seeking to declare an admin-
istrative regulation invalid bears a heavy burden.
Having determined that the department’s tip credit
regulations did not contravene the enabling statute and
were not arbitrary or invalid, the commissioner then
considered the question whether delivery drivers satisfy
the regulatory definition of restaurant service employ-
ees for whom a credit may be taken. In relevant part, the
regulations define a service employee as ‘‘any employee
whose duties relate solely to the serving of food and/
or beverages to patrons seated at tables or booths, and
to the performance of duties incidental to such service,
and who customarily receives gratuities. . . .’’ Regs.,
Conn. State Agencies § 31-62-E2 (c). The commissioner
determined that the plaintiff’s delivery drivers perform
various on the road duties that fail to satisfy this defini-
tion in two respects: ‘‘While the drivers are clearly not
delivering food to patrons [sitting] at tables or booths,
the [department] finds that the regulation is inapplica-
ble primarily because the majority of the specific duties
performed by the drivers do not relate solely to the
serving of food . . . and to the performance of duties
incidental to such service . . . within the meaning of
the regulation.’’1 (Emphasis in original; footnote omit-
ted; internal quotation marks omitted.) The commis-
sioner rejected the plaintiff’s theory that a driver
transporting pizza from a Domino’s restaurant to a cus-
tomer’s location is comparable to a server carrying food
from a restaurant kitchen to a customer’s table. Rather,
she found that ‘‘only the solitary act of transferring
possession of food from a driver’s vehicle to a customer
at the doorway of a home is analogous to . . . [the]
serving of food . . . .’’ (Internal quotation marks omit-
ted.) Drivers’ other on the road duties—everything from
driving and navigating to vehicle and license mainte-
nance to remote communications with the employer—
were deemed to be materially different from the service
functions performed by traditional waitstaff while serv-
ing food to patrons within the confines of a restaurant.
The commissioner also found that pizza delivery driv-
ers differ from traditional waitstaff in ways that may
impair their capacity to earn gratuities. For example,
drivers do not have an opportunity to establish a rapport
with customers by taking the initial order, providing
status updates, checking periodically on customer satis-
faction and needs, or cleaning the service area. Rather,
the sole interaction with the customer is the brief
exchange of food and payment at the time of delivery.
Noting that ‘‘the interaction between the driver and
the customer is minimal in duration and quality,’’ the
commissioner concluded that ‘‘the [on the road] func-
tions possess none of the characteristics customarily
associated with the complement of services provided
by waitstaff in a restaurant.’’ Finally, the commissioner
found relevant the fact that, whereas the waitstaff has
the opportunity to earn gratuities continuously by ser-
vicing multiple tables at once, a delivery driver can earn
gratuities from at most one customer at a time and
must frequently return to the restaurant for additional
assignments, during which time no gratuities can be
earned.2
Consistent with these findings, the commissioner
concluded that there is a rational basis for distinguish-
ing between delivery drivers and restaurant service
employees and, therefore, declined to invalidate the
department’s regulations as applied to the plaintiff. The
commissioner also declined the plaintiff’s request to
amend the regulations or to promulgate new ones. As
a result of the ruling, the plaintiff is unable to take a
tip credit and pay its drivers a reduced minimum wage.
The plaintiff took an administrative appeal of the
commissioner’s decision to the trial court pursuant to
General Statutes § 4-183. The plaintiff claimed that the
department acted in an arbitrary and capricious manner
and abused its discretion by, among other things: (1)
adopting regulations that distinguish between service
and nonservice duties in a manner that is not authorized
by, and is inconsistent with, the enabling statute, § 31-
60 (b); (2) concluding that a driver is only performing
service related duties during the time that he or she
leaves his or her vehicle to walk the food to the custom-
er’s door; and (3) making findings as to the nature
of food delivery versus waitstaff work that were not
supported by the record. The court, Schuman, J., con-
cluded that the challenged regulations are valid and
that the plaintiff’s drivers do not satisfy the regulatory
definition of service employees. Accordingly, the court
affirmed the decision of the commissioner and dis-
missed the plaintiff’s appeal.
The plaintiff appealed from the judgment of the trial
court to the Appellate Court, and we transferred the
appeal to this court pursuant to General Statutes § 51-
199 (c) and Practice Book § 65-1. On appeal, the plaintiff
contends that the department’s tip credit regulations,
as applied to the plaintiff’s delivery drivers, are not
authorized by § 31-60 (b), and that the trial court should
not have deferred to the department’s interpretation of
the statute. We affirm the judgment of the trial court
dismissing the plaintiff’s administrative appeal.
In most instances, the party challenging the validity
of an administrative regulation claims that the regula-
tion was inconsistent with an authorizing statute or
beyond the legislature’s grant of authority to the agency
at the time the regulation was issued. Dugas v. Lum-
bermens Mutual Casualty Co., 217 Conn. 631, 640, 587
A.2d 415 (1991). The present case is different. Here, the
plaintiff concedes that the relevant regulations; Regs.,
Conn. State Agencies § 31-62-E1 et seq.; were valid when
the department first promulgated them but contends,
in essence, that they were repealed by implication by
a subsequent amendment of the enabling statute.
We thus begin our analysis by reviewing the history of
Connecticut’s tip credit laws. The distinction between
service and nonservice restaurant employees, as well
as the rule that the former can be paid a lower minimum
wage than the latter, traces its origins to regulations
adopted by the former Department of Labor and Factory
Inspection in 1950, before the legislature had authorized
a formal tip credit. See Dept. of Labor and Factory
Inspection, Mandatory Order No. 4A, § 180-6-1, 16 Conn.
L.J., No. 73, p. 5 (March 28, 1950) (establishing minimum
wages for women and minors employed as service and
nonservice employees in restaurant occupations).3
Those regulations defined a service employee as ‘‘any
employee whose duties relate solely to the serving of
food and/or beverage to patrons seated at tables or
booths, and to the performance of duties incidental to
such service, and who customarily receives gratuities.’’
Id., § 180-6-13, p. 6. A nonservice employee, by contrast,
was defined as ‘‘an employee other than a service
employee, as herein defined. A non-service employee
shall include, but is not limited to, countergirls, counter-
waitresses and those employees serving food or bever-
age to patrons seated at tables or booths and who do
not customarily receive gratuities . . . .’’4 Id., § 180-6-
14. With respect to diversified employment involving
both service and nonservice work, the regulations pro-
vided that ‘‘[i]f service and non-service duties of an
employee are interchanged, and the duties are definitely
segregated and recorded, the appropriate hourly rate
. . . for each type of work may be used. If service
and non-service duties are interchanged, but cannot
be definitely segregated or are not recorded, the non-
service rate is to be applied . . . .’’ Id., § 180-6-1 (c),
p. 5. At that time, the minimum wage was forty-five
cents per hour for service employees and seventy cents
for nonservice employees and those engaged in diversi-
fied employment. Id., § 180-6-1. Finally, the regulations
provided that ‘‘[i]n no event shall gratuities from patrons
be counted as part of the minimum wage.’’ Id. This last
rule presumably reflected the fact that gratuities were
already accounted for by the fact that service employees
were subject to a lower minimum wage than their non-
service counterparts.
The following year, the legislature enacted the state’s
first minimum wage statute. See General Statutes
(Supp. 1951) § 838b. That statute authorized the com-
missioner to ‘‘make such administrative regulations as
may be appropriate to carry out the purposes of [the]
chapter’’ and to ‘‘provide, in such regulations, modifica-
tions of the minimum fair wage . . . for such special
cases or classes of cases as the commissioner may
find appropriate to prevent curtailment of employment
opportunities, avoid undue hardship and safeguard the
minimum fair wage . . . .’’ General Statutes (Supp.
1951) § 838b (b). Notably, the statute provided that the
department’s minimum wage regulations ‘‘may recog-
nize as part of the minimum fair wage . . . gratuities
. . . .’’ (Emphasis added.) General Statutes (Supp.
1951) § 838b (b). Accordingly, the statute initially per-
mitted but did not require the department to recognize
a tip credit against the minimum wage. General Statutes
(Supp. 1951) § 839b further provided that the depart-
ment’s wage orders then in effect, which presumably
would have included Mandatory Order Nos. 4A and 4B,
would remain in full force other than as modified by
the act.
In 1958, consistent with the authorization provided
by General Statutes (Supp. 1951) § 838b, the department
issued a revised wage order for restaurant employees
that for the first time recognized that gratuities could
count toward the minimum wage under certain circum-
stances. See Labor Dept., Mandatory Order No. 8, 21
Conn. L.J., No. 30, pp. 5–8 (November 25, 1958). The
1958 wage order contained definitions of service and
nonservice restaurant employees that were similar to
those included in Mandatory Orders Nos. 4A and 4B
and that are substantially identical to those presently
contained in § 31-62-E2 (c) and (d) of the Regulations
of Connecticut State Agencies.5 It also provided that
‘‘[g]ratuities received by a service employee may be
allowed as part of the minimum fair wage . . . .’’6
(Emphasis added.) Mandatory Order No. 8, § 180-12-1,
supra, 21 Conn. L.J., p. 5. Finally, it retained the diversi-
fied employment rule from the 1950 regulations, using
language that is substantially identical to that presently
contained in § 31-62-E4 of the Regulations of Connecti-
cut State Agencies.7
While the department has retained its tip credit regu-
lations without material amendment since 1958, the
legislature has amended the enabling statute, § 31-60
(b), on multiple occasions since that time. Although
most of those amendments simply raised the minimum
wage for restaurant employees or changed the method
of calculating the tip credit, two changes are notewor-
thy for the purposes of this appeal. First, in 1980, the
legislature replaced the discretionary phrase ‘‘[the com-
missioner] may recognize, as part of the minimum fair
wage, gratuities . . . for persons employed in the hotel
and restaurant industry’’; (emphasis added) General
Statutes (Rev. to 1979) § 31-60 (b); with the mandatory
language ‘‘[the commissioner] shall recognize . . . .’’
(Emphasis added.) Public Acts 1980, No. 80-64, § 1 (P.A.
80-64). Second, in 2000, the legislature amended Gen-
eral Statutes (Rev. to 1999) § 31-60 (b) to provide one
minimum wage for persons employed in the hotel and
restaurant industry who customarily and regularly
receive gratuities, and a different minimum wage for
bartenders, who were referenced for the first time in
the statute. See Public Acts 2000, No. 00-144, § 2 (P.A.
00-144). Following several additional amendments, the
statute currently provides in relevant part: ‘‘The [com-
missioner] shall adopt such regulations . . . [that]
shall recognize, as part of the minimum fair wage, gratu-
ities in an amount . . . equal to [a] per cent of the
minimum fair wage per hour for persons, other than
bartenders, who are employed in the hotel and restau-
rant industry, including a hotel restaurant, who custom-
arily and regularly receive gratuities . . . .’’ General
Statutes § 31-60 (b) (1). The plaintiff claims that, in its
present form, § 31-60 (b) requires the commissioner to
issue regulations that permit a tip credit to be taken for
all restaurant employees who customarily and regularly
receive gratuities and, therefore, is incompatible with
and must be understood to have repealed by implication
the post-1958 regulations that limit the tip credit to
service employees.
We begin our analysis of the plaintiff’s claim by set-
ting forth the standards governing judicial review of
an agency decision under the Uniform Administrative
Procedure Act (UAPA), General Statutes § 4-166 et seq.
General Statutes § 4-183 (j) provides in relevant part
that ‘‘[t]he court shall affirm the decision of the agency
unless the court finds that substantial rights of the per-
son appealing have been prejudiced because the admin-
istrative findings, inferences, conclusions, or decisions
are: (1) In violation of constitutional or statutory provi-
sions; (2) in excess of the statutory authority of the
agency; (3) made upon unlawful procedure; (4) affected
by other error of law; (5) clearly erroneous in view of
the reliable, probative, and substantial evidence on the
whole record; or (6) arbitrary or capricious or charac-
terized by abuse of discretion or clearly unwarranted
exercise of discretion. . . .’’ ‘‘Judicial review of an
administrative agency decision requires a court to deter-
mine whether there is substantial evidence in the admin-
istrative record to support the agency’s findings of basic
fact and whether the conclusions drawn from those
facts are reasonable.’’ (Internal quotation marks omit-
ted.) Dolgner v. Alander, 237 Conn. 272, 280, 676 A.2d
865 (1996). Additional principles come into play, how-
ever, when an agency’s interpretation of a statute is
embodied in an administrative regulation.8 Velez v.
Commissioner of Labor, 306 Conn. 475, 485, 50 A.3d
869 (2012).
In Dugas, we considered a similar claim that a statu-
tory amendment had repealed by implication a preex-
isting regulation. See Dugas v. Lumbermens Mutual
Casualty Co., supra, 217 Conn. 631. In that case, the
issue was whether an uninsured motorist regulation
adopted in 1975 had been repealed by implication in
1980, when the legislature amended a related statute.
Id., 638–39. In concluding that the amended statute had
not repealed by implication the preexisting regulation,
this court looked to four primary considerations. Id.,
641–48.
First, this court relied on the well established rule
that regulations issued by an administrative agency are
presumed to be valid and have the same force and effect
as a statute. Id., 641; see also Velez v. Commissioner
of Labor, supra, 306 Conn. 485. For this reason, we
explained, ‘‘the rule disfavoring the implied repeal of a
statute by the subsequent enactment of another statute
also applies to the implied repeal of a regulation by a
statute . . . .’’ Dugas v. Lumbermens Mutual Casualty
Co., supra, 217 Conn. 641; accord Lumbermens Mutual
Casualty Co. v. Huntley, 223 Conn. 22, 30 n.11, 610
A.2d 1292 (1992). We also relied on the principle that ‘‘a
state statute should be construed as having preempted a
local ordinance only when the legislature has demon-
strated its intent to regulate the entire field or when the
ordinance is in irreconcilable conflict with the statute.’’
Dugas v. Lumbermens Mutual Casualty Co., supra, 641
n.11. We thus proceeded on the assumption that if a
statute and a regulation are potentially in conflict but
can reasonably be read to be consistent with each other,
the court should construe them so as to give effect to
both. See id., 641.
Second, we recognized that ‘‘[i]f a regulation has been
in existence for a substantial period of time and the
legislature has not sought to override the regulation,
this fact, although not determinative, provides persua-
sive evidence of the continued validity of the regula-
tion.’’ Id., 642. In Dugas, in reviewing the evolution
of the statutory scheme at issue, we found significant
evidence of legislative acquiescence. Specifically, the
legislature had amended the authorizing statute six
times over the course of a decade without ever
expressly preempting the regulation at issue. Id.
Third, we noted that ‘‘[i]n the construction of statutes,
great deference is to be accorded to the construction
given the statute by the agency charged with its enforce-
ment.’’ (Internal quotation marks omitted.) Id., 643. Not-
ing that the Insurance Commissioner has a ‘‘very broad
grant of regulatory authority in filling in the interstices
of the uninsured and underinsured motorist coverage
legislation,’’ we thus credited the Insurance Commis-
sioner’s determination that the regulation and statute at
issue were not incompatible. (Internal quotation marks
omitted.) Id.
Fourth, in Dugas this court identified as a ‘‘critical
factor’’ the fact that the public policy underlying the
statutory amendment was fully compatible with contin-
ued enforcement of the preexisting regulation. Id., 643–
44. Concluding that the plain language of the statute
did not require abrogation of the regulation, we
reviewed the legislative history of the statutory amend-
ment and found no indication that the legislature had
intended to repeal the regulation thereby. Id., 644–47.
Turning our attention to the present case, we con-
clude that each of the Dugas factors counsels in favor
of deference to the department’s interpretation of § 31-
60 (b) and supports the conclusion of the trial court
that the 1980 amendment thereto did not repeal by
implication the department’s long-standing tip credit
regulations. See P.A. 80-64. First, with respect to the
presumptive validity of regulations that do not conflict
irreconcilably with a statute, we agree with the depart-
ment that § 31-60 (b), as amended, need not be read to
conflict with § 31-62-E1 et seq. of the Regulations of
Connecticut State Agencies. Those regulations (1) draw
a distinction between service and nonservice employ-
ees, (2) disallow a tip credit for nonservice employees,
and (3) provide that restaurant employees who engage
in both service and nonservice duties may be subject
to a tip credit on the service portion, but only insofar
as time spent on the two types of duties is properly
segmented and recorded. The statute, by contrast, sim-
ply requires that the commissioner adopt regulations
that ‘‘recognize, as part of the minimum fair wage, gratu-
ities . . . for persons, other than bartenders, who are
employed in the hotel and restaurant industry . . .
who customarily and regularly receive gratuities
. . . .’’ General Statutes § 31-60 (b).
We have explained that a regulation that ‘‘properly
subjects what the legislature has authorized to addi-
tional requirements’’ does not thereby ‘‘forbid that
which the legislature has expressly authorized.’’ (Inter-
nal quotation marks omitted.) Rocky Hill v. SecureCare
Realty, LLC, 315 Conn. 265, 297, 105 A.3d 857 (2015);
accord Phelps Dodge Copper Products Co. v. Groppo,
204 Conn. 122, 135, 527 A.2d 672 (1987); Ahearn v.
Inland Wetlands Agency-Conservation Commission,
34 Conn. App. 385, 392, 641 A.2d 812, cert. denied, 230
Conn. 911, 645 A.2d 1015 (1994). Here, § 31-60 (b) does
not expressly abrogate or even address the depart-
ment’s long-standing distinction between service and
nonservice work. The statute does not expressly require
that the tip credit be made available for all restaurant
workers who customarily and regularly earn gratuities.
Accord State v. White, 204 Conn. 410, 422, 528 A.2d 811
(1987). Nor does it spell out exactly how the tip credit
is to be applied to employees who spend only part of
their workday engaged in duties that customarily and
regularly provide the opportunity to earn gratuities.
Accordingly, it was reasonable for the department to
conclude that the legislature did not intend that employ-
ees such as delivery drivers, who have the potential
to earn gratuities during only a small portion of their
workday, would be subject to a reduction in their mini-
mum wage with respect to time spent traveling to a
customer’s home and other duties for which they do
not earn gratuities.9
Moreover, the statutory language reasonably can be
read to delegate to the department the authority to
carve out exceptions to the tip credit in order to accom-
plish the remedial purpose of the minimum wage law,
which is to ‘‘require the payment of fair and just wages.’’
West v. Egan, 142 Conn. 437, 442, 115 A.2d 322 (1955).
Section 31-60 (b) begins by authorizing the commis-
sioner to ‘‘adopt such regulations . . . as may be
appropriate to carry out the purposes of [the minimum
wage statutes].’’ It concludes by providing that ‘‘[t]he
commissioner may provide, in such regulations, modifi-
cations of the minimum fair wage herein established
. . . for such special cases or classes of cases as the
commissioner finds appropriate to prevent curtailment
of employment opportunities, avoid undue hardship
and safeguard the minimum fair wage herein estab-
lished. . . .’’ General Statutes § 31-60 (b). Accordingly,
we conclude that it is at least ambiguous whether the
legislature, in amending § 31-60 (b) in 1980, intended
to repeal the department’s long-standing distinction
between service and nonservice workers and to revoke
the department’s discretion to carve out appropriate
exceptions to the tip credit. In light of this ambiguity,
Dugas counsels that we should attempt to construe the
statute and the regulation so as to give effect to both.10
See Dugas v. Lumbermens Mutual Casualty Co., supra,
217 Conn. 641. The department’s resolution of the case
accomplishes that goal.
Turning our attention to the second Dugas factor,
legislative acquiescence, we agree with the department
that there is strong evidence that the legislature has
acquiesced in the department’s long-standing tip credit
rules. As noted, the department’s minimum wage regula-
tions have differentiated between service and nonser-
vice restaurant industry employment since 1950, and
§§ 31-62-E2 and 31-62-E4 of the Regulations of Connect-
icut State Agencies have existed in essentially their
present form since 1958. Since the legislature made
the tip credit mandatory in 1980, the department has
continued to apply its regulations so as to disallow the
tip credit for nonservice employees, even those who
customarily and regularly receive gratuities. See Back
Bay Restaurant Group, Inc. v. Dept. of Labor, Superior
Court, judicial district of New Britain, Docket No. CV-
00-0504360-S (August 14, 2001) (30 Conn. L. Rptr. 264,
268) (parties did not dispute that, under department’s
interpretation of regulation, ‘‘[n]o recognition or credit
toward the minimum fair wage may be taken with
respect to gratuities received by a non-service
employee’’); Labor Dept. v. America’s Cup, Superior
Court, judicial district of Hartford-New Britain at Hart-
ford, Docket No. CV-92-0516750 (April 21, 1994) (11
Conn. L. Rptr. 379) (similar); see also Bucchere v.
Brinker International, Inc., Superior Court, judicial
district of Waterbury, Docket No. X01-CV-044000238-S,
2006 WL 3361403, *4–5 (November 8, 2006) (discussing
regulations and department’s published explanation
thereof). During that time, the department also has pub-
lished instructional materials that clearly delineate how
it applies the credit to food service workers.11 In addi-
tion, the department’s application and enforcement of
the tip credit regulations has on at least two occasions
been challenged in the Superior Court. See Back Bay
Restaurant Group, Inc. v. Dept. of Labor, supra, 264;
Labor Dept. v. America’s Cup, supra, 379.
At the same time, the legislature has amended § 31-
60 (b) no fewer than ten times since 1980. See Public
Acts 1999, No. 99-199; P.A. 00-144; Public Acts 2001,
No. 01-42, § 2; Public Acts 2002, No. 02-33, § 2; Public
Acts 2003, No. 03-278, § 91; Public Acts 2004, No. 04-
68, § 1; Public Acts 2008, No. 08-113, § 1; Public Acts
2013, No. 13-117, § 2; Public Acts 2013, No. 13-140, § 14;
Public Acts 2014, No. 14-42, § 5. The parties appear to
agree, and we will assume for the sake of argument,
that the amendments enacted between 2000 and 2002,
which specified for the first time that a tip credit can
be taken for bartenders as well as for waitstaff, were
adopted in response to the decisions in Back Bay Res-
taurant Group, Inc., and America’s Cup. We find it
significant that, at the time that the legislature amended
the statute to make clear that bartenders are subject
to the tip credit; see P.A. 00-144; the legislature did
not expressly preempt the department’s long-standing
distinction—discussed throughout those decisions—
between service and nonservice employees, nor the
department’s rule that only the former are subject to
the tip credit. See Dugas v. Lumbermens Mutual Casu-
alty Co., supra, 217 Conn. 642; see also Velez v. Commis-
sioner of Labor, supra, 306 Conn. 492 (‘‘[w]e may
assume that if . . . the legislature had disagreed with
the commissioner’s interpretation of [the statute] . . .
it would have taken appropriate corrective action at
[the] time [of amendment]’’). The inference that the
legislature has acquiesced in the department’s ongoing
enforcement of its tip credit regulations is especially
strong in light of the fact that, in 2014, the legislature
repealed thousands of pages of ‘‘unnecessary’’ Connect-
icut regulations, including § 31-62-E6 of the Regulations
of Connecticut State Agencies (allowing cost of food
and lodging provided to restaurant and hotel employees
to be factored into calculation of minimum wage) and
§ 31-62-E7 of the Regulations of Connecticut State
Agencies (restriction on deductions made against mini-
mum wage rate for employers of restaurant and hotel
workers), but left undisturbed the immediately preced-
ing §§ 31-62-E1 through 31-62-E4 of the Regulations of
Connecticut State Agencies that are at issue in this case.
See 2014 Public Acts, No. 14-187, § 54. We must assume
that that choice was intentional and that, by repealing
the department’s regulations providing allowances for
boarding and lodging but retaining those that distin-
guish between service and nonservice restaurant
employees, the legislature signaled its implicit approval
of the tip credit regulations. See Phelps Dodge Copper
Products Co. v. Groppo, supra, 204 Conn. 134; Connecti-
cut Light & Power Co. v. Public Utilities Control
Authority, 176 Conn. 191, 198, 405 A.2d 638 (1978).
Turning our attention to the third Dugas factor, we
note that the statutory regime at issue here is akin to
that in Dugas in that the legislature has granted the
department broad authority to interpret and apply the
law so as to accomplish the statutory purpose of ensur-
ing the payment of fair and just wages to all employees.
We have long recognized the substantial discretion
afforded to the department in this respect. See West
v. Egan, supra, 142 Conn. 444–45; see also Back Bay
Restaurant Group, Inc. v. Dept. of Labor, supra, 30
Conn. L. Rptr. 267 (noting ‘‘broad delegation of power’’
to commissioner to issue regulations applying tip
credit). We recognize that the legislature’s insertion of
mandatory language during the 1980 amendment of
§ 31-60 (b) cabined this discretion to some extent. See
P.A. 80-64. Still, as we have discussed, the statute con-
tinues to authorize the commissioner to ‘‘adopt such
regulations . . . as may be appropriate to carry out the
purposes of [the law] . . . [and to] provide, in such
regulations, modifications of the minimum fair wage
. . . for such special cases or classes of cases as the
commissioner finds appropriate to prevent curtailment
of employment opportunities, avoid undue hardship
and safeguard the minimum fair wage . . . .’’ General
Statutes § 31-60 (b). Moreover, General Statutes § 31-
58 (b) provides that, in establishing a minimum fair
wage, the commissioner ‘‘(1) may take into account
all relevant circumstances affecting the value of the
services rendered, including hours and conditions of
employment affecting the health, safety and general
well-being of the workers, (2) may be guided by such
considerations as would guide a court in a suit for the
reasonable value of services rendered where services
are rendered at the request of an employer without
contract as to the amount of the wage to be paid, and (3)
may consider the wages, including overtime or premium
rates, paid in the state for work of like or comparable
character by employers who voluntarily maintain mini-
mum fair wage standards . . . .’’ The plaintiff has sug-
gested no reason why the commissioner’s long-standing
authority to modify the minimum wage rules12 for spe-
cial classes of cases would not extend to pizza delivery
drivers, who represent a unique subset of restaurant
service workers that did not even exist at the time that
the tip credit regulations were initially adopted.13
Finally, we turn our attention to the fourth Dugas
factor, namely, the legislative history of the relevant
statute. Because we have concluded that § 31-60 (b)
is ambiguous with respect to whether the legislature
intended, after 1980, to permit the department to con-
tinue to limit the tip credit to those restaurant employ-
ees engaged solely in table service duties, we may look
to the legislative history of the statute for additional
guidance. See General Statutes § 1-2z.
The history of § 31-60 (b), although not dispositive,
reveals that legislators considering amendments to the
statute consistently have suggested that the mandatory
tip credit applies specifically to waitstaff. When the
House of Representatives debated the 1980 amendment,
for example, Representative Richard J. Balducci
explained that the bill would impose a percentage for-
mula in place of ‘‘the sixty cents [tip credit] which had
previously been the method of removal on wages for
waitresses.’’ 23 H.R. Proc., Pt. 3, 1980 Sess., p. 865. On
the Senate side, Senator Michael J. Skelley stated that
the bill ‘‘takes away the flat [sixty] cent[s] allowance
that is currently deducted from the minimum wage for
waitresses and increases that to 23 percent of the mini-
mum wage.’’ 23 S. Proc., Pt. 3, 1980 Sess., p. 734. Simi-
larly, when summarizing the 2002 amendments,
Representative Christopher G. Donovan stated: ‘‘The
bill also includes the current tip credit amount for those
who customarily and regularly receive tips, which
includes waiters, waitresses and bartenders.’’ 45 H.R.
Proc., Pt. 4, 2002 Sess., pp. 1139–40. Representative
Donovan further explained: ‘‘[T]here is a tip credit that
employers can use in calculating the minimum wage
for those people—waiters, waitresses and bartenders—
and in talking to the Office of Legislative Research we
thought to clear up any confusion over waiters, wait-
resses and bartenders that we make the language to be
consistent. So the language which we changed [applies]
to the waiters and waitresses the same language that
we have for bartenders . . . .’’ Id., pp. 1140–41.
The plaintiff posits that these ‘‘[p]assing’’ legislative
references to ‘‘ ‘waiters and waitresses’ ’’ are merely
the shorthand by which legislators have referred to
restaurant employees who regularly and customarily
receive tips, and that the references do not indicate a
legislative intent to adopt the department’s regulations
or to limit the scope of the tip credit to employees who
provide table service. We are not persuaded. Although
such a gloss might be placed on the comments of Repre-
sentative Balducci and Senator Skelley, additional com-
ments by Representative Donovan strongly suggest that
the legislature was familiar with and chose not to pre-
empt the department’s traditional tip credit rules. Spe-
cifically, in response to a follow-up question,
Representative Donovan elaborated: ‘‘[W]e have two
sections of people who receive tips waiters and wait-
resses people in the hotel and restaurant industry, and
bartenders. We have the language for waiters and wait-
resses has been around for some [fifty] years, it didn’t
use the words customarily and regularly receive tips
though that is certainly the understanding that is what
the regulations call for, that’s what we use. When the
bartenders were added we put that language in and
legislative research thought there was some confusion
there, we wanted to clarify it. We’re talking about the
same group of people.’’ 45 H.R. Proc., supra, pp. 1141–
42. Although they are not completely linear, we under-
stand Representative Donovan’s comments to mean
that the members of the Labor and Public Employees
Committee that he chaired (1) were familiar with the
tip credit regulations that had been in place since the
early 1950s, (2) understood that the department had
applied the tip credit solely to waiters and waitresses
prior to the statutory extension of the credit to bartend-
ers in 2000, and (3) in amending the statute, merely
sought to clarify that waitstaff and bartenders were to
be treated alike.14 To that extent, the legislative history
bears out the department’s interpretation of the statute.
For the foregoing reasons, we conclude that the 1980
amendment to § 31-60 (b) did not repeal by implication
the department’s tip credit regulations as applied to
restaurant workers, other than waitstaff and bartend-
ers, who regularly and customarily receive gratuities,
and that the department did not act arbitrarily, capri-
ciously, or in violation of its statutory authority in
declining the plaintiff’s invitation to apply the tip credit
to delivery drivers.
The judgment is affirmed.
In this opinion the other justices concurred.
1
The commissioner also stated that ‘‘the mere location to which such
food items are delivered has less meaningful legal significance to this analysis
than the nature of the ‘service’ being provided by such employees.’’ The
plaintiff argues that the department’s interpretation and application of its
regulations are entitled to less deference because the department has
enforced the regulations inconsistently, abandoning the requirement that
service employees serve customers at a table or booth. Because we read
the decision of the commissioner to have deemphasized but still retained the
significance of table and booth service with respect to whether a particular
restaurant employee qualifies as a service employee, we are not persuaded
by the plaintiff’s argument.
2
Although the commissioner cited to § 31-62-E4 of the Regulations of
Connecticut State Agencies, which addresses diversified service/nonservice
employment within the restaurant industry, she did not discuss the relevance
of that regulation in her analysis of the plaintiff’s petition. Section 31-62-E4
provides: ‘‘If an employee performs both service and non-service duties,
and the time spent on each is definitely segregated and so recorded, the
allowance for gratuities as permitted as part of the minimum fair wage may
be applied to the hours worked in the service category. If an employee
performs both service and non-service duties and the time spent on each
cannot be definitely segregated and so recorded, or is not definitely segre-
gated and so recorded . . . no allowances for gratuities may be applied as
part of the minimum fair wage.’’ Although the commissioner did not
expressly apply this regulation to the plaintiff’s case, it is implicit in the
commissioner’s ruling that, even if the plaintiff could overcome the fact
that only table and booth service qualifies for a tip credit and that delivery
drivers do not provide such service, the plaintiff could not claim a tip credit
for the limited time during which its drivers are actually ‘‘serving’’ food to
their customers because the plaintiff does not segregate delivery time from
driving time.
3
Substantially similar regulations adopted at that time applied to adult
males employed in restaurant occupations. See Dept. of Labor and Factory
Inspection, Mandatory Order No. 4B, § 180-7-1, 16 Conn. L.J., No. 73, p. 7
(March 28, 1950). For purposes of brevity, we cite hereinafter only to the
relevant provisions of Mandatory Order No. 4A.
4
A corresponding provision used the terms ‘‘countermen [and] count-
erwaiters.’’ Mandatory Order No. 4B, § 180-7-14, 16 Conn. L.J., supra, p. 8.
At that time, a ‘‘counterman’’ was defined as ‘‘one that serves food over the
counter of a cafeteria or lunchroom . . . .’’ Webster’s Third New Interna-
tional Dictionary (1961) p. 519.
5
Section 180-12-6 of Mandatory Order No. 8 defines service employee as
‘‘any employee whose duties relate solely to the serving of food and/or
beverage to patrons seated at tables or booths, and to the performance of
duties incidental to such service, and who customarily receives gratuities.
For the purpose of this [o]rder, a person shall not be considered to custom-
arily receive gratuities unless a minimum of [$10] per week in gratuities is
received in the case of full time employees, o[r] [$2] per day in the case of
part time employees, as evidenced by signed statements of the employee,
stating unequivocally that such worker did receive gratuities as herein
required, which must be maintained as part of the records of the employer.’’
Mandatory Order No. 8, § 180-12-6, supra, 21 Conn. L.J., p. 6.
Section 180-12-7 of Mandatory Order No. 8 defines a nonservice employee
as ‘‘an employee other than a service employee, as herein defined. A non-
service employee shall include, but is not limited to, countergirls, counter-
waitresses, countermen, counterwaiters and those employees serving food
or beverage to patrons seated at tables or booths and who do not customarily
receive gratuities as defined above.’’ Id., § 180-12-7.
6
The original reference to service employees appears to have been inad-
vertently omitted from the present version of the regulation, which defines
the conditions under which gratuities may be counted against the minimum
wage of a restaurant employee. See Regs., Conn. State Agencies § 31-62-E3.
It is undisputed, however, that the intent of the regulatory scheme is that
only service employees shall be subject to the tip credit.
7
Section 180-12-3 of Mandatory Order No. 8 provides: ‘‘If an employee
performs both service and non-service duties, and the time spent on each
is definitely segregated and so recorded, the allowance for gratuities as
permitted as part of the [m]inimum [f]air [w]age may be applied to the hours
worked in the [s]ervice category. If an employee performs both service and
non-service duties and the time spent on each cannot be definitely segregated
and so recorded, or is not definitely segregated and so recorded, no allow-
ances for gratuities may be applied as part of the [m]inimum [f]air [w]age.’’
Mandatory Order No. 8, § 180-12-3, supra, 21 Conn. L.J., p. 5.
8
Many of the authorities cited by the parties are not directly relevant to
the question presented to us because they do not address an alleged conflict
between an administrative regulation and an authorizing statute.
9
The plaintiff contends that a driver who transports a pizza from the
restaurant to a customer’s home is performing essentially the same service
as a waiter who carries food from the restaurant kitchen to a customer’s
table and, therefore, that the department erred in concluding that only a
small portion of the driver’s time is spent engaged in tip earning service
work. By contrast, the department, whose wage regulations distinguish
between travel time and working time; see Regs., Conn. State Agencies § 31-
62-E10; is apparently of the view that pizza delivery is more akin to other
types of work in which an employee drives to a customer’s location and
then performs a discrete service there. Regardless of which analogy we
might find more apt were we to consider the question in the first instance,
we recognize that in this arena we must defer to the agency’s determinations,
which are not unreasonable. See Pet v. Dept. of Health Services, 228 Conn.
651, 660–61, 638 A.2d 6 (1994).
10
We recognize that the presumption in favor of the validity of the regula-
tion challenged in Dugas was especially strong because that regulation had
been approved by the standing Legislative Regulation Review Committee
of the General Assembly. See Dugas v. Lumbermens Mutual Casualty Co.,
supra, 217 Conn. 641; see also General Statutes § 4-170 (b) (1) (providing
that no adoption, amendment, or repeal of any regulation shall be effective
until approved by that committee). Nevertheless, we have made clear that
the presumption of validity extends to regulations, such as those at issue
in the present case, that were adopted prior to the enactment of the UAPA
in 1971, and thus were not subject to committee approval. See, e.g., Hartford
Electric Light Co. v. Sullivan, 161 Conn. 145, 154, 285 A.2d 352 (1971)
(‘‘[a]dministrative rules and regulations are given the force and effect of
law’’); St. John’s Roman Catholic Church Corp. v. Darien, 149 Conn. 712,
722, 184 A.2d 42 (1962) (‘‘we must make every presumption and intendment
in favor of the regulations and sustain them unless they are clearly invalid’’);
see also Public Acts 1971, No. 71-854, §§ 7 (a) and 8 (a) (authorizing publica-
tion of regulations preexisting establishment of regulation review com-
mittee).
11
The department published its guidelines in booklet form. See Connecti-
cut Dept. of Labor, Wage and Workplace Standards Division, ‘‘A Guide for
Restaurant Employers in Connecticut’’ (1997) (Guide). The Guide informed
employers that ‘‘restaurants may take a credit toward the minimum wage
for some service employees who receive gratuities. A ‘service employee’ is
defined as any employee whose duties relate solely to the serving of food and/
or beverages to patrons seated at tables or booths, and to the performance of
duties incidental to such service, and who customarily receives gratuities.
This means that a tip credit (toward the minimum wage) can be taken only
for waiters and waitresses, and only during the time for which they are
actually serving patrons at tables or booths, or performing closely related
duties, and when they are receiving gratuities.’’ (Emphasis in original.) Id.,
p. 2. The Guide proceeded to delineate the sorts of restaurant duties that
qualify as service and nonservice duties. Id., pp. 2–3. Of particular note, the
Guide listed ‘‘[w]aiting on takeout customers’’ as a nonservice duty for which
no tip credit may be taken. Id., p. 3. The department apparently ceased
publication of that particular booklet in 2006.
In light of this published guidance, the plaintiff’s contention that the
department’s tip credit policies are not entitled to deference because they
are ‘‘unwritten’’ is unavailing. Although it is true that the department had
not formally applied its rules to pizza delivery drivers prior to the present
case, we conclude that the Guide, by restricting the tip credit to waiters
and waitresses serving patrons at tables and booths, and by expressly disal-
lowing the credit for takeout service, clearly presaged the department’s
position that delivery drivers are not engaged solely in service work. To the
extent that the trial court found that the department never had a written
policy of applying the tip credit only to service employees, we conclude, in
light of the Guide, that that finding was clearly erroneous.
12
We emphasize that any actual changes to the department’s regulations
may be proposed by the commissioner but must be approved by the Legisla-
tive Regulation Review Committee of the General Assembly. See General
Statutes § 4-170.
13
See A. Smith, Encyclopedia of Junk Food and Fast Food (Greenwood
Press 2006) pp. 45, 78 (recounting that Chicken Delight, founded in 1952,
was first chain to offer home delivery service and that Domino’s, which
was founded in 1960, offered nation’s first pizza delivery service). At oral
argument, the plaintiff acknowledged that there was no pizza delivery service
in Connecticut when § 31-60 (b) and the tip credit regulations were initially
drafted in the early 1950s.
14
Also noteworthy are the 2013 comments of Representative Daniel E.
Carter, who expressed his opposition to further increasing the minimum
wage. See 56 H.R. Proc., Pt. 22, 2013 Sess., pp. 7447–49. Representative
Carter began at one point to suggest that a higher minimum wage would
pose problems for business owners who employ ‘‘waitresses,’’ but quickly
corrected himself, presumably recognizing that the tip credit mitigates the
impact of a higher minimum wage with respect to waitstaff. Instead, Repre-
sentative Carter stated: ‘‘We’re talking about when somebody might be a
pizza guy. Well, it’s going to be a lot more difficult for somebody to hire an
extra pizza delivery guy when you’re going to be paying a higher minimum
wage . . . .’’ Id., p. 7748. In the mind of at least one legislator, then, the
tip credit required by statute did not apply to pizza delivery drivers.