Connecticut Supreme Court building in Hartford. Photo: Natalia Bratslavsky/Shutterstock.com

Oral arguments in a wage disparity lawsuit are scheduled for Jan. 22 before the Connecticut Supreme Court in class action litigation that could determine whether restaurants must pay the state's full $11-an-hour minimum wage when servers perform other duties.

"This is the first case where class certification was granted in such a similar lawsuit," said plaintiffs attorney Richard Hayber, who representing Jacqueline Rodriguez in Rodriguez v. Chip's Family Restaurants.

The high court proceedings follows a March ruling from Superior Court Judge Carl Schuman, who granted class certification to potentially hundreds of Chip's employees at the restaurant's six franchises across Connecticut.

"If the Supreme Court affirms the ruling, it will essentially set precedent going forward, and would give other trial courts guidance that they should follow Judge Schuman's ruling and not the ones from 2006," said Hayber of Hayber, McKenna & Dinsmore. "In those cases, four earlier rulings from that year from four different judges denied class certification in similar cases."

The turnaround came when Schuman wrote a 10-page ruling finding the plaintiffs had made their case that servers performed duties that went beyond the customer-service tasks for which they earned tips. In these cases, the employees argue they should make minimum wage, because they get no tips to subsidize their income during these times.

Restaurant chains, such as Chip's, are permitted to pay a $6.38 minimum wage for service duties because some restaurant workers can make up the difference in tips. But those workers must be paid the state's full minimum wage if they do other things such as stock food, sweep and clean dishes.

Those tip rules were being ignored, plaintiffs argued.

"What is critical is that servers performed some side work on every shift and locations, other than the tables and booths," the judge wrote. "The defendants do not present or identify any evidence negating that general proposition."

The restaurant chain stopped assigning side work on March 1, 2018, soon after Rodriguez filed suit.

Rodriguez worked for the restaurant at its Wethersfield branch for about two years until October 2017.

The class, which seeks monetary damages, would cover servers who worked at the chain from Oct. 25, 2015, through March 1, 2018.

The defendants opposed class certification, and claimed the amount and type of side work performed varied among individual servers and from restaurant to restaurant.

But Hayber argued it was the responsibility of the chain, and not the employee, to keep records of nonservice and service hours worked, and pay accordingly. He said Chip's conceded it did not do that, claiming nonservice work is incidental to service work, and therefore the restaurant chain shouldn't have to keep track.

"They acknowledge that they did not keep records," Hayber said. "If they don't, they must pay the full minimum wage for the full shift."

Now, one of his main arguments before the justices that class actions are appropriate to hold restaurants liable for what plaintiffs call wage theft.

Representing Chip's are Robinson & Cole attorneys Stephen Aronson and Jeffrey White. Neither responded to a request for comment Friday. George Chatzopoulos, the owners of the Chip's franchises in Connecticut, also did not respond to a request for comment.

Hayber said he's optimistic the state Supreme Court will rule for the plaintiffs because "the laws and the evidence and the facts are on my side." He plans to have lead plaintiff Rodriguez at oral arguments later this month.

"My intention is to have her there," he said of Rodriguez, who now works as a case manager for a treatment facility. "She is representative for the class. I have heard judges indicate that they are always happy when clients attend. It shows the lawyers are keeping them involved in the case."

Read more:

Chip's Restaurant Servers Get Class Certification in Minimum Wage Suit