Rodriguez v. Kaiaffa, LLC

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JACQUELINE RODRIGUEZ v. KAIAFFA, LLC, ET AL.
(SC 20274)
Robinson, C. J., and Palmer, McDonald, D’Auria,
Mullins, Kahn and Ecker, Js.*

Syllabus

Pursuant to statute (§ 31-60 [b]), the Commissioner of Labor shall adopt
regulations that carry out the purposes of the minimum wage laws, and
such regulations shall entitle employers, as part of the minimum fair
wage, to a tip credit by including gratuities in an amount equal to a
certain percentage of the minimum fair wage per hour for persons, other
than bartenders, who are employed in the hotel and restaurant industry
and who regularly and customarily receive gratuities.
Pursuant further to a Department of Labor regulation (§ 31-62-E4), ‘‘[i]f 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,’’ but, ‘‘[i]f 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 allowances for gratuities
may be applied as part of the minimum fair wage.’’
The defendants, K Co. and its single member, C, appealed from the trial
court’s order certifying for class action status an action brought by the
plaintiff, who was employed at one of the six restaurants in Connecticut
operated by the defendants under the name Chip’s Family Restaurants.
In addition to waiting tables, servers at the restaurants were required to
perform ‘‘side work,’’ such as cleaning tables and appliances, restocking,
slicing lemons, and preparing food toppings. The plaintiff alleged in her
complaint that the defendants violated Connecticut wage laws when
they failed to pay their servers, during a certain time period, the minimum
hourly wage mandated by § 31-60 (b) by unlawfully deducting a tip credit
from the servers’ wages for the time they spent on side work, which
the plaintiff claimed was nonservice in nature under § 31-62-E4 of the
regulations. The trial court granted the plaintiff’s motion for class certifi-
cation and certified a class consisting of all individuals employed as
servers ‘‘at any Connecticut Chip’s Family Restaurant’’ during a certain
time period. In so doing, the court declined to define the terms ‘‘service’’
and ‘‘nonservice,’’ as used in § 31-62-E4 of the regulations, and, instead,
found that, regardless of whether the side work constituted a service
or nonservice duty, the class members’ claims were all the same, namely,
that each server performed side work during every shift and was entitled
to the full minimum wage because the defendants failed to segregate
and record the time servers spent performing services and nonservice
duties. The court specifically noted that the proposed class included
several hundred servers employed at six different restaurants and that
they shared the same claim, irrespective of variations in the type,
amount, or manner of side work tasks performed by individual servers
at each restaurant. Accordingly, the court concluded that each require-
ment for class certification—numerosity, commonality, typicality, and
adequacy of representation—set forth in the applicable rule of practice
(§ 9-7) had been satisfied and that the predominance and superiority
considerations under the applicable rule of practice (§ 9-8 (3)) also had
been met. Thereafter, the defendants appealed from the court’s order
granting class certification pursuant to the statute (§ 52-265a) permitting
the Chief Justice to certify an interlocutory appeal involving a matter
of substantial public interest. Held:
1. The defendants could not prevail on their claim that the trial court improp-
erly declined to inquire into the merits of the plaintiff’s legal theory and
to decide that the tasks assigned as side work constituted service duties
under § 31-62-E4 of the regulations in determining whether the common-
ality and predominance requirements for class certification had been
met; the court should inquire into the merits of a case only to the extent
necessary to ensure that a plaintiff has met the requirements of the
 class action rules, and, in the present case, the defendants failed to
demonstrate how the trial court’s determining the meanings of ‘‘service’’
and ‘‘nonservice’’ would affect whether common issues predominate.
2. The trial court did not abuse its discretion in concluding that the four
class certification requirements of Practice Book § 9-7 had been satisfied:
the defendants did not challenge the trial court’s finding that the numero-
sity requirement was satisfied by the proposed class of several hundred
servers employed at the six restaurants; moreover, the commonality
requirement was satisfied, as the defendants used a single, common
side work policy that was applicable at all six restaurants, the evidence
demonstrated an overarching policy of the servers’ performing generally
consistent side work tasks, and any factual variations in how servers
at the different locations performed side work were likely to be insub-
stantial; furthermore, the adequacy of representation and typicality
requirements were satisfied because the plaintiff asserted a cognizable
claim against the defendants, namely, violations of Connecticut wage
laws and regulations, and her standing in this case allowed her to typi-
cally and adequately represent class members with claims against the
defendants.
3. The trial court did not abuse its discretion in concluding that the predomi-
nance and superiority requirements of Practice Book § 9-8 had been
satisfied: common issues of law or fact predominated over questions
affecting only individual members, as much of the proof necessary to
establish the contested element of the plaintiff’s claim, namely, whether
the servers performed both service and nonservice duties, was apparent
from the defendants’ own admissions, and the plaintiff was not required
to prove the precise nature of the servers’ side work duties because,
under the minimum wage laws, it is the employer’s burden to establish
that the servers were service employees who were subject to the tip
credit; moreover, the trial court correctly determined that the plaintiffs
could use representative testimony, rather than individual testimony, to
prove that the tasks assigned as side work were nonservice in nature,
as the evidence indicated that all servers were trained in a similar
manner, the tasks assigned to servers were relatively uniform, and a
common side work policy was used at all six restaurants, despite minor
variations in the manner and frequency that individual servers may have
performed certain tasks; furthermore, in light of this court’s conclusion
that the use of representative testimony was proper, the trial court
correctly determined that a class action was superior to other available
methods for the fair and efficient adjudication of the controversy, espe-
cially as it would promote judicial efficiency and provide many individu-
als, who likely would not bring such a claim, an opportunity for relief.
4. There was no merit to the defendants’ claim that the trial court improperly
defined the class by referring to ‘‘Connecticut Chip’s Family Restaurant,’’
which is not a legal entity, in its certification order; the court used
a term that clearly encompassed all six restaurants operated by the
defendants, allowing for individual servers to easily recognize whether
they qualify as class members based on their employment at a Chip’s
restaurant and for their eligibility to be readily ascertained and defini-
tively verified.
Argued January 14—officially released October 6, 2020**

Procedural History

Action to recover damages for the defendants’ alleged
violations of Connecticut wage laws and regulations,
and for other relief, brought to the Superior Court in
the judicial district of New Haven, where the case was
transferred to the judicial district of Hartford, Complex
Litigation Docket; thereafter, the court, Schuman, J.,
granted the plaintiff’s motion for class certification, and
the defendants, upon certification by the Chief Justice
pursuant to General Statutes § 52-265a that a matter of
substantial public interest was at issue, appealed to this
court. Affirmed.
Jeffrey J. White, with whom were Wystan M. Acker-
man, Stephen W. Aronson, and, on the brief, Denis J.
O’Malley, for the appellants (defendants).
Richard E. Hayber, with whom was Thomas J. Dur-
kin, for the appellee (plaintiff).
David R. Golder and Allison P. Dearington filed a
brief for the Restaurant Law Center as amicus curiae.
Keren Salim and James Bhandary-Alexander filed
a brief for the Connecticut Employment Lawyers Asso-
ciation as amicus curiae.
 Opinion

ROBINSON, C. J. This public interest appeal requires
us to consider the extent to which a trial court should
consider the merits of a party’s legal theory before
certifying a class action pursuant to Practice Book §§ 9-
7 and 9-8. The defendants, Kaiaffa, LLC, and George
Chatzopoulos, appeal from the order of the trial court
certifying a class action of servers employed by Chip’s
Family Restaurant (Chip’s).1 The plaintiff, Jacqueline
Rodriguez, alleged in her class action complaint that
the defendants had violated Connecticut wage laws;
see General Statutes § 31-58 et seq.; and regulations by
improperly deducting a tip credit from her earnings
and paying her and other class members below the
minimum wage for the performance of ‘‘nonservice’’
tasks in connection with their duties as servers.2 The
defendants claim that, in certifying the class, the trial
court improperly assumed the legal sufficiency of the
plaintiff’s claim when it failed to determine if she relied
on an incorrect interpretation of one of the regulations
implementing Connecticut wage laws. See Regs., Conn.
State Agencies § 31-62-E4.3 The defendants also con-
tend, inter alia, that the trial court abused its discretion
in concluding that the plaintiff met the various class
certification requirements of Practice Book §§ 9-7 and
9-8. We disagree and, accordingly, affirm the trial court’s
order granting class certification.
The record reveals the following facts and procedural
history. See, e.g., Standard Petroleum Co. v. Faugno
Acquisition, LLC, 330 Conn. 40, 43, 191 A.3d 147 (2018)
(reciting facts ‘‘assumed to be true by the trial court
for purposes of the certification issues or otherwise
undisputed’’). The plaintiff was employed at Chip’s in
Wethersfield as a server from 2015 until October, 2017.
In October, 2017, the plaintiff commenced this action
against the defendants, on behalf of herself and other
Chip’s servers employed during the class period, seek-
ing recovery under a single count that alleged a violation
of Connecticut wage laws and regulations. The plaintiff
alleged that Kaiaffa, LLC, owned and operated Chip’s
and that Chatzopoulos, as the single member of Kaiaffa,
LLC, was her employer for purposes of Connecticut
wage laws.4 The plaintiff further alleged that, in addition
to serving customers, servers were required to perform
nonservice duties called ‘‘side work.’’ The side work
duties varied somewhat among the restaurants but gen-
erally included tasks such as cleaning the server’s table
section, cutting lemons, wiping menus, restocking,
cleaning various appliances such as coolers and drink
machines, and preparing toppings like butter and
icings.5 The plaintiff claimed that the defendants
improperly took a ‘‘tip credit’’ for the time servers spent
performing side work and, therefore, failed to pay the
servers the full minimum wage. The plaintiff sought
back pay and double damages pursuant to General Stat-
utes § 31-68 (a).6 In their answer, the defendants admit-
ted to taking the tip credit but averred that they had
used the tip credit properly. Additionally, they asserted
several special defenses, including a contention that
any minimum wage violations were made in good faith.7
After class discovery, the plaintiff moved for class
certification. The plaintiff supported her motion with
numerous exhibits, including deposition excerpts from
the defendants’ corporate representative, Laura Robert-
son, and affidavits by several Chip’s servers discussing
their restaurants’ respective side work policies. See
footnote 5 of this opinion. The defendants filed an objec-
tion to class certification, along with their own support-
ing exhibits. After a hearing, the trial court issued a
memorandum of decision granting the plaintiff’s motion
for class certification. In that decision, the trial court
concluded that the plaintiff had easily satisfied three
of the four elements of Practice Book § 9-7, namely,
adequacy of representation, numerosity, and typicality.
Specifically, because the plaintiff’s proposed class
included several hundred servers from six different res-
taurants, numerosity was clearly established. As to typi-
cality, the court concluded that all servers, regardless
of the restaurant they worked at, shared the same claim
as the class representative. The trial court determined,
however, that the commonality element of Practice
Book § 9-7 and the predominance element of Practice
Book § 9-8 (3) presented more difficult inquiries.
The trial court began by explaining the tip credit and
the applicable regulations, including § 31-62-E4 of the
Regulations of Connecticut State Agencies. See foot-
note 3 of this opinion. The court noted the significant
disagreement between the parties about the meanings
of the terms ‘‘service’’ and ‘‘non-service’’ in § 31-62-E4
but declined to decide the merits of either party’s inter-
pretation of the regulation at the class certification
stage. After considering the plaintiff’s evidence, the
court concluded that the claims of the various class
members were the same and that the individualized
inquiries contemplated by the defendants were not
essential to determining liability. Instead, the court con-
cluded that ‘‘[w]hat is critical is that servers performed
some side work on every shift at locations other than
the tables and booths. The defendants do not present
or identify any evidence negating that general proposi-
tion.’’ As a result, the court concluded that the plaintiff
had met the requirements of the class action rules and
certified the class.8 This public interest appeal followed.
See footnote 1 of this opinion.
On appeal, the defendants principally claim that, in
certifying the class, the trial court improperly assumed
the plaintiff’s legal theory was correct without testing
its legal sufficiency and, as a result, did not define what
the class needed to prove in order to prevail. Addition-
ally, the defendants argue that the trial court (1) incor-
rectly concluded that the class presents common ques-
tions and that such questions predominated over
individualized inquiries, (2) did not perform a suffi-
ciently ‘‘rigorous analysis’’ when considering the superi-
ority requirement under Practice Book § 9-8 (3), and
(3) improperly failed to decide whether the defendants
were the plaintiff’s employers for the purpose of
determining her standing. We address each claim in
turn and conclude that the trial court did not abuse its
discretion in certifying this class action.
I
Before turning to the defendant’s specific claims in
this appeal, we note the applicable standard of review
and certain general principles governing class certifica-
tion under our rules of practice, which ‘‘set forth a two
step process for trial courts to follow in determining
whether an action or claim qualifies for class action
status. First, a court must ascertain whether the four
prerequisites to a class action, as specified in Practice
Book § 9-7, are satisfied. These prerequisites are: (1)
numerosity—that the class is too numerous to make
joinder of all members feasible; (2) commonality—that
the members have similar claims of law and fact; (3)
typicality—that the [representative] plaintiffs’ claims
are typical of the claims of the class; and (4) adequacy
of representation—that the interests of the class are
protected adequately. . . .
‘‘Second, if the foregoing criteria are satisfied, the
court then must evaluate whether the certification
requirements of Practice Book § 9-8 [3] are satisfied.
These requirements are: (1) predominance—that ques-
tions of law or fact common to the members of the
class predominate over any questions affecting only
individual members; and (2) superiority—that a class
action is superior to other available methods for the
fair and efficient adjudication of the controversy. . . .
‘‘It is the class action proponent’s burden to prove
that all of the requirements have been met. . . . To
determine whether that burden has been met, we have
followed the lead of the federal courts; see General
Telephone Co. of the Southwest v. Falcon, 457 U.S. 147,
161, 102 S .Ct. 2364, 72 L. Ed. 2d 740 (1982); directing
our trial courts to undertake a rigorous analysis. . . .
‘‘[A] rigorous analysis ordinarily involves looking
beyond the allegations of the plaintiff’s complaint. The
[rigorous analysis] requirement means that a class is
not maintainable merely because the complaint parrots
the legal requirements of the [class action] rule. . . .
‘‘In applying the criteria for certification of a class
action, the [trial] court must take the substantive allega-
tions in the complaint as true, and consider the
remaining pleadings, discovery, including interrogatory
answers, relevant documents, and depositions, and any
other pertinent evidence in a light favorable to the plain-
tiff. However, a trial court is not required to accept as
true bare assertions in the complaint that [class certifi-
cation] prerequisites were met. . . . Class determina-
tion generally involves considerations that are
enmeshed in the factual and legal issues comprising
the plaintiff’s cause of action. . . .
‘‘Consequently, a rigorous analysis frequently
entail[s] overlap with the merits of the plaintiff’s under-
lying claim. . . . In determining the propriety of a class
action, [however] the question is not whether the plain-
tiff or plaintiffs have stated a cause of action or will
prevail on the merits, but rather whether the require-
ments of [the class action rules] are met.’’ (Citations
omitted; internal quotation marks omitted.) Standard
Petroleum Co. v. Faugno Acquisition, LLC, supra, 330
Conn. 47–50. ‘‘Although no party has a right to proceed
via the class mechanism . . . doubts regarding the pro-
priety of class certification should be resolved in favor
of certification.’’ (Internal quotation marks omitted.)
Collins v. Anthem Health Plans, Inc., 275 Conn. 309,
321, 880 A.2d 106 (2005).
‘‘We apply an abuse of discretion standard both [to]
the lower court’s ultimate determination on certifica-
tion of a class as well as to its rulings that the individual
[class certification] requirements have been met. . . .
While our review of the legal standards applied by the
[trial] court and the court’s other legal conclusions is
de novo . . . the [trial] court’s application of those
standards to the facts of the case is again reviewed only
for abuse of discretion . . . . This standard means that
the [trial] court is empowered to make a decision—of
its choosing—that falls within a range of permissible
decisions, and we will . . . find abuse [only] when the
[trial] court’s decision rests on an error of law . . . or
a clearly erroneous factual finding, or . . . its decision
. . . cannot be located within the range of permissible
decisions.’’ (Emphasis in original; internal quotation
marks omitted.) Standard Petroleum Co. v. Faugno
Acquisition, LLC, supra, 330 Conn. 51.
II
The primary issue in this appeal is whether the trial
court conducted a sufficiently rigorous legal analysis
in certifying the plaintiff’s class. Specifically, the defen-
dants argue that the trial court failed to interpret the
meanings of ‘‘service’’ and ‘‘non-service,’’ as used in
§ 31-62-E4 of the Regulations of Connecticut State
Agencies.9 See footnote 3 of this opinion. According to
the defendants, such a determination is required under
the predominance standard in Standard Petroleum Co.
v. Faugno Acquisition, LLC, supra, 330 Conn. 60–61.
Because the trial court did not decide which party’s
interpretation was legally correct, the defendants con-
tend that the trial court could not properly decide
whether the plaintiff met the class certification require-
ments. In response, the plaintiff argues that the trial
court sufficiently reviewed the elements of the cause
of action and determined whether those elements could
be proven by generalized evidence in assessing the pre-
dominance factor of the class certification inquiry.10
A
In considering whether the trial court applied the
correct legal principles in certifying the class in the
present case, we begin with some background princi-
ples governing claims under Connecticut wage laws.
General Statutes § 31-60 (b) provides an exception to
the state’s minimum wage requirements that permits
employers to take a tip credit11 for gratuities earned
by employees that ‘‘customarily and regularly receive
gratuities,’’ such as restaurant servers. See Amaral
Brothers, Inc. v. Dept. of Labor, 325 Conn. 72, 80–84, 155
A.3d 1255 (2017) (discussing history of Connecticut’s
tip credit laws). Regulations promulgated by the Depart-
ment of Labor (department) further outline the obliga-
tions of an employer seeking to utilize the tip credit.
See generally Regs., Conn. State Agencies § 31-62-E1 et
seq. ‘‘Those regulations (1) draw a distinction between
service and nonservice employees, (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.’’ Amaral Brothers, Inc. v. Dept. of Labor,
supra, 87. We also note that ‘‘the minimum wage law
should receive a liberal construction in order that it
may accomplish its purpose.’’ West v. Egan, 142 Conn.
437, 442, 115 A.2d 322 (1955).
Section 31-62-E4 of the Regulations of Connecticut
States Agencies, which is the regulation at issue in this
appeal,12 provides that, ‘‘[i]f an employee performs both
service and non-service duties,’’ and the employer seg-
regates and records such time, the employer may utilize
the tip credit for time spent performing service duties.
But, if the employer fails to segregate and record time
spent on the two types of duties, the employer is unable
to utilize the tip credit. As a result, an employer would
violate the regulation if it took the tip credit but failed
to segregate and record the employee’s time.
Claims seeking recovery for a restaurant’s improper
use of the tip credit are rare in Connecticut, so the
terms ‘‘service’’ and ‘‘nonservice’’ are largely undefined
outside of limited administrative guidance provided by
the department.13 Superior Court decisions that have
denied class certification in past actions brought under
Connecticut wage laws also have not clearly defined the
two terms. See, e.g., Bucchere v. Brinker International,
Inc., Superior Court, judicial district of Waterbury,
Docket No. CV-XX-XXXXXXX-S (June 6, 2006), appeal dis-
missed, Connecticut Appellate Court, Docket No. AC
27748 (September 26, 2006), aff’d, 287 Conn. 704, 950
A.2d 493 (2008); Galbreth v. Briad Restaurant Group,
LLC, Superior Court, judicial district of Waterbury,
Docket No. CV-XX-XXXXXXX-S (November 29, 2005) (40
Conn. L. Rptr 402, 404). As a result, the central legal
dispute between the parties in the present case turns
on the question of whether the regulations treat side
work tasks performed by the servers as service duties
or merely incidental to service duties, such that the
employer was permitted to take the tip credit.14 The
defendants’ arguments in this appeal require us to con-
sider the extent to which that unresolved legal question
informs the class certification decision as to the ele-
ments of commonality and predominance.
B
We now consider the defendants’ contention that the
trial court was required to ‘‘determine and apply the
underlying substantive law’’ to resolve the dispute
regarding the proper construction and application of
§ 31-62-E4 of the Regulations of Connecticut State
Agencies, because, ‘‘without such resolution, a named
plaintiff can obtain class certification merely by formu-
lating a plausible, even if erroneous, legal theory.’’ The
defendants argue that the language in Standard Petro-
leum Co. requiring the trial court to review the elements
of the cause of action demands a determination of
which party’s legal theory is correct for proper adjudica-
tion of the commonality and predominance factors of
the class certification inquiry. In other words, they
argue that the trial court should have determined the
merits of the plaintiff’s cause of action before certifying
the class. We disagree.
Before addressing the defendants’ claim, we must
revisit and clarify the standard of review outlined in
Standard Petroleum Co. ‘‘In applying the criteria for
certification of a class action, the [trial] court must take
the substantive allegations in the complaint as true, and
consider the remaining pleadings, discovery, including
interrogatory answers, relevant documents, and deposi-
tions, and any other pertinent evidence in a light favor-
able to the plaintiff. However, a trial court is not
required to accept as true bare assertions in the com-
plaint that [class certification] prerequisites were met.
. . . Class determination generally involves considera-
tions that are enmeshed in the factual and legal issues
comprising the plaintiff’s cause of action. . . . [A] rig-
orous analysis frequently entail[s] overlap with the mer-
its of the plaintiff’s underlying claim. . . . In determin-
ing the propriety of a class action, [however] the
question is not whether the plaintiff or plaintiffs have
stated a cause of action or will prevail on the merits,
but rather whether the requirements of [the class action
rules] are met.’’ (Citations omitted; internal quotation
marks omitted.) Standard Petroleum Co. v. Faugno
Acquisitions, LLC, supra, 330 Conn. 49–50.
We emphasize that a trial court should not assume
the truth of the plaintiff’s allegations if the allegations
bear on an issue of class certification. See Bell v. PNC
Bank, National Assn., 800 F.3d 360, 376–77 (7th Cir.
2015) (‘‘[T]he default rule is that a court may not resolve
merits questions at the class certification stage. . . .
This does not mean, however, that on issues affecting
class certification, a court must simply assume the
truth of the matters as asserted by the plaintiff.’’ (Cita-
tions omitted; emphasis added.)). But inquiries into the
merits of a plaintiff’s case should be performed only to
the extent necessary to ensure the plaintiff has met the
requirements of the class action rules. See Macomber
v. Travelers Property & Casualty Corp., 277 Conn. 617,
641–42, 894 A.2d 240 (2006) (trial court abused its dis-
cretion when ‘‘[i]t improperly postponed a critical
inquiry on the class certification issue, namely, choice
of law, and as a result relieved the plaintiff of her burden
to establish all of the requirements for certification’’).
The same analytical framework is used under federal
class action law.15 See Amgen, Inc. v. Connecticut
Retirement Plans & Trust Funds, 568 U.S. 455, 466,
133 S. Ct. 1184, 185 L. Ed. 2d 308 (2013) (‘‘[m]erits
questions may be considered to the extent—but only
to the extent—that they are relevant to determining
whether the . . . prerequisites for class certification
[in rule 23 of the Federal Rules of Civil Procedure] are
satisfied’’); In re Initial Public Offerings Securities
Litigation, 471 F.3d 24, 41 (2d Cir. 2006) (‘‘a district
judge may certify a class only after making determina-
tions that each of the [r]ule 23 requirements has been
met . . . the obligation to make such determinations is
not lessened by overlap between a [r]ule 23 requirement
and a merits issue . . . [and] in making such determi-
nations, a district judge should not assess any aspect
of the merits unrelated to a [r]ule 23 requirement’’).
The defendants correctly observe that the trial court
did not inquire into the merits of the plaintiff’s core
legal theory and assumed its viability in ruling on the
motion for class certification, specifically stating that,
‘‘if the plaintiff is correct about the categorization of
side work as nonservice duties, she would be entitled
to the full minimum wage, without any tip credit, for
all of her work,’’ and declining to define the terms ser-
vice or nonservice because ‘‘it is not necessary or appro-
priate to resolve these claims at the class action certifi-
cation stage.’’ As a result, we must determine whether
an inquiry into the merits of the plaintiff’s legal theory
was necessary in order to determine whether the plain-
tiff established commonality and predominance.
In order to establish commonality, the plaintiff must
demonstrate that ‘‘there are questions of law or fact
common to the class,’’ which ‘‘is easily satisfied because
there need only be one question common to the class
. . . the resolution of which will advance the litigation.’’
(Internal quotation marks omitted.) Standard Petro-
leum Co. v. Faugno Acquisition, LLC, supra, 330 Conn.
54. The common question asserted by the plaintiff in
the present case is whether the defendants improperly
took a tip credit for time that servers were performing
nonservice duties while being paid the minimum wage.
The plaintiff asserts that the approximately thirty-five
tasks assigned to servers as side work are nonservice
duties because they are performed away from the tables
and booths.
Commonality is unaffected by a determination of
which particular tasks are nonservice in nature because
the defendants’ liability may still be determined on a
class-wide basis. See Wal-Mart Stores, Inc. v. Dukes,
564 U.S. 338, 350, 131 S. Ct. 2541, 180 L. Ed. 2d. 374
(2011) (‘‘[t]hat common contention . . . must be of
such a nature that it is capable of [class-wide] resolu-
tion—which means that determination of its truth or
falsity will resolve an issue that is central to the validity
of each one of the claims in one stroke’’). For example,
if even one of the thirty-five tasks identified as side work
qualified as a nonservice task under the trial court’s
definition, the defendants’ liability as to that task is still
a common question as to all servers who performed
side work. See Collins v. Anthem Health Plans, Inc.,
supra, 275 Conn. 324 (‘‘[t]he commonality test is met
when there is at least one issue [the] resolution [of
which] will affect all or a significant number of the
putative class members’’ (internal quotation marks
omitted)). Although the number of qualifying tasks
could affect the ultimate scope of the defendants’ poten-
tial liability, determination of the legal meaning of a
‘‘service’’ task would not remove the common nature
of the question.
A more searching merits inquiry may be necessary in
considering whether common questions predominate
over individual questions, of course, because the pre-
dominance element of the class certification analysis
relates to the nature of the actual proof necessary to
establish the claims. Under the predominance test set
forth in Standard Petroleum Co., a court should ‘‘[first]
review the elements of the causes of action that the
plaintiffs seek to assert on behalf of the putative class.
. . . Second, the court should determine whether gen-
eralized evidence could be offered to prove those ele-
ments on a class-wide basis or whether individualized
proof will be needed to establish each class member’s
entitlement to monetary or injunctive relief. . . .
Third, the court should weigh the common issues that
are subject to generalized proof against the issues
requiring individualized proof in order to determine
which predominate. . . . Only when common ques-
tions of law or fact will be the object of most of the
efforts of the litigants and the court will the predomi-
nance test be satisfied.’’ (Internal quotation marks omit-
ted.) Standard Petroleum Co. v. Faugno Acquisition,
LLC, supra, 330 Conn. 61.
 The defendants argue that, by failing to interpret the
pertinent regulations, the trial court abdicated its
responsibility to determine what the plaintiff would
need to prove in order for the class to prevail at trial.
In their analysis of predominance, the defendants raise
several possible individualized issues, such as how each
server performed a task, how long a server spent on
side work during a particular shift, and what tasks were
performed during particular shifts. The defendants have
not, however, explained how a determination of the
meanings of service or nonservice would change the
plaintiff’s proof with respect to the claims of the class.
Put differently, if the trial court interpreted the regula-
tions and determined that the defendants are correct
and that either the regulation is not referring to a
server’s occupational duties, or that all of the side work
is incidental to service as a matter of law, this interpreta-
tion would not eliminate the issues that are subject to
generalized proof. Instead, that interpretation would
bear on the ultimate outcome on the merits of the par-
ties’ pending motions for summary judgment. See foot-
note 8 of this opinion. ‘‘[A] court can never be assured
that a plaintiff will prevail on a given legal theory prior
to a dispositive ruling on the merits, and a full inquiry
into the merits of a putative [class’] legal claims is
precisely what . . . the [United States Supreme Court
has] cautioned is not appropriate for a [r]ule 23 certifica-
tion inquiry.’’ (Emphasis in original.) United Steel,
Paper & Forestry, Rubber, Mfg. Energy, Allied Indus-
trial & Service Workers International Union, AFL-
CIO, CLC v. ConocoPhillips Co., 593 F.3d 802, 809 (9th
Cir. 2010).
In Lassen v. Hoyt Livery, Inc., Docket No: 3:13-cv-
01529 (JAM), 2014 WL 4638860 (D. Conn. September 17,
2014), the United States District Court for the District
of Connecticut provided a persuasive explanation for
not deciding a similar issue on class certification. In
Lassen, the plaintiff alleged that the defendants had
violated both the Fair Labor Standards Act, 29 U.S.C.
§ 201 et seq. (FLSA), and Connecticut’s minimum wage
laws, and the court certified both an FLSA conditional
collective action and a rule 23 class of limousine driv-
ers.16 Id., *1. The limousine drivers alleged that they had
not been paid properly when they performed certain
compensable functions, such as waiting at the airport
for passengers. Id., *1–2. When certifying the FLSA
action, the court declined to decide ‘‘which activities
are properly categorized as compensable ‘work time’ ’’
because ‘‘these arguments are not relevant to the condi-
tional collective action certification inquiry.’’ Id., *5.
With respect to the rule 23 class, the court disagreed
with the defendants that ‘‘individual inquiries will be
necessary to determine which activities . . . consti-
tute compensable work time . . . .’’ Id., *12. The court
stated that these issues would be ‘‘best resolved on a
[class-wide] basis’’ and, therefore, did not decide at the
class certification stage whether the various activities
should have been compensated under Connecticut
wage laws. Id.
Looking beyond Connecticut, we observe that other
federal district courts presented with the question of
whether certain tasks are related to a server’s tipped
duties often do not decide the question at an early stage
in the litigation. See Black v. P.F. Chang’s China Bistro,
Inc., Docket. No. 16-cv-3958, 2017 WL 2080408, *8 (N.D.
Ill. May 15, 2017) (‘‘[w]hether . . . these tasks are
‘related’ or ‘unrelated’ [to tipped work] is a merits issue
and cannot be resolved at the conditional certification
stage’’); Ide v. Neighborhood Restaurant Partners, LLC,
Docket No. 1:13-CV-509-MHC, 2015 WL 11899143, *6–8
(N.D. Ga. March 26, 2015) (deciding whether server’s
duties were ‘‘incidental’’ to tipped occupation in con-
nection with motions for summary judgment); Driver
v. AppleIllinois, LLC, 890 F. Supp. 2d 1008, 1029–33
(N.D. Ill. 2012) (concluding that servers were engaged
in unrelated, nontipped duties in ruling on summary
judgment motions).
We conclude that the trial court properly deferred
its ruling on the merits of the parties’ legal theories
until after its decision to certify the class in the present
case.17 If the plaintiff’s legal theory is correct, she must
prove that the servers performed nonservice work dur-
ing every shift and that the defendants did not separate
and record the time spent performing the nonservice
work. The defendants have not presented a persuasive
reason as to why a determination of the meanings of
‘‘service’’ or ‘‘nonservice’’ would affect whether com-
mon issues predominate, despite the variety of tasks at
issue in this case, because the proposed, individualized
inquiries envisioned by the defendants are unaffected
by such a definition. If the trial court determines, for
example, that cutting lemons is a nonservice task, the
plaintiff may need to prove that the servers performed
this task, among other nonservice tasks, at trial. As a
result, the trial court properly declined to decide the
merits of the plaintiff’s legal theory in certifying the
class in the present case.18
III
We next consider whether the trial court abused its
discretion in deciding that the plaintiff had satisfied
the requirements of Practice Book §§ 9-7 and 9-8. The
defendants largely challenge the trial court’s conclu-
sions on commonality and predominance but also con-
tend that the trial court incorrectly decided the ele-
ments of typicality, adequacy of representation, and
superiority. We conclude that the trial court did not
abuse its discretion.
A
As we previously discussed, Practice Book § 9-7
requires a plaintiff to affirmatively demonstrate that
‘‘there are questions of law or fact common to the class
. . . .’’ The trial court considered predominance and
commonality jointly but determined that each server
possessed the same claim, namely, that they performed
‘‘nonservice’’ duties and are entitled to the full minimum
wage because the defendants failed to segregate and
record the time spent on those duties. The defendants,
however, argue that, ‘‘[g]iven the numerous tasks to be
analyzed and the differences in how they were per-
formed at different locations and at different times by
different individuals, there was no single question satis-
fying commonality . . . .’’ We disagree.
The defendants construe the commonality factor too
narrowly in their focus on the numerous side work
tasks performed by the putative class members at vary-
ing times and locations. First, ‘‘most courts have held
that factual variations among class members will not
prevent a finding of commonality.’’ Collins v. Anthem
Health Plans, Inc., supra, 275 Conn. 325. Second, the
plaintiff alleges and supports the claim that a common
side work policy was used at all of the defendants’
restaurants. The existence of such a policy is instrumen-
tal in supporting a finding of commonality. See id., 324
(‘‘[t]he commonality requirement is satisfied as long as
the members of the class have allegedly been affected
by a general policy of the defendant, and the general
policy is the focus of the litigation’’ (internal quotation
marks omitted)); see also Shahriar v. Smith & Wollen-
sky Restaurant Group, Inc., 659 F.3d 234, 252 (2d Cir.
2011) (concluding that server class established com-
monality because their claims ‘‘all derive from the same
compensation policies and tipping practices’’); Chime
v. Peak Security Plus, Inc., 137 F. Supp. 3d 183, 208
(E.D.N.Y. 2015) (‘‘[c]ommonality is usually satisfied in
wage cases ‘[when] the plaintiffs allege that [the] defen-
dants had a common policy or practice of unlawful
labor practices’ ’’).
Although the defendants note some factual differ-
ences between the various Chip’s restaurants, such as
variations in the types of tasks assigned and each restau-
rant’s layout, the plaintiff’s evidence at this stage dem-
onstrates an overarching policy of servers performing
generally consistent side work tasks at the direction
of restaurant managers. This restaurant-wide policy is
supported by the fact that Robertson, the defendants’
corporate representative, testified as to the policy appli-
cable in all six restaurants. Additionally, the plaintiff’s
server affidavits support the finding of a consistent
policy throughout the restaurants. Each of the server
affidavits discusses how the server performed side
work at the Chip’s restaurant where the server was
employed. For instance, the Wethersfield affidavit
described the ‘‘expo cooler’’ side work as (1) wiping
down the cooler, (2) restocking, (3) and ‘‘ ‘flip[ping]’ ’’
the contents of the cooler. This practice is substantially
similar to those described in the affidavits of the servers
who work in the Trumbull, Orange, Fairfield, and South-
bury restaurants.19 Although the defendants are correct
that servers might perform such side work tasks differ-
ently, we conclude that any differences would likely
be insubstantial and do not affect commonality. See
Mooney v. Domino’s Pizza, Inc., Docket No. 1:14-cv-
13723-IT, 2016 WL 4576996, *6 (D. Mass. September 1,
2016) (concluding that ‘‘[w]hether answering phones,
folding boxes, preparing deliveries, and any other task
performed by class members while inside [are] ‘related’
to delivering pizzas is a legal question that will be com-
mon to all class members,’’ despite defendant’s objec-
tions that such determinations would involve individu-
alized inquiries).
The defendants contend that a different result is com-
pelled under the commonality standard outlined in Wal-
Mart Stores, Inc. v. Dukes, supra, 564 U.S. 350. In Dukes,
the United States Supreme Court concluded that the
class, numbering 1.5 million individuals, failed to dem-
onstrate commonality in their Title VII gender discrimi-
nation claims. Id., 357, 359. The court stated that ‘‘[t]heir
claims must depend upon a common contention . . . .
That common contention, moreover, must be of such
a nature that it is capable of [class-wide] resolution—
which means that determination of its truth or falsity
will resolve an issue that is central to the validity of
each one of the claims in one stroke.’’ Id., 350. Addition-
ally, the class members must ‘‘have suffered the same
injury . . . .’’ (Internal quotation marks omitted.) Id.
As the alleged discrimination could not be linked to
an overarching employment policy by the plaintiff but,
instead, manifested in decisions of local supervisors,
the court reversed the District Court’s decision certi-
fying the class. Id., 343, 355–57.
Dukes is distinguishable and affords the defendants
no assistance because the plaintiff in the present case
presents a singular question of liability common to all
class members. Unlike the plaintiffs in Dukes, who sued
for gender discrimination, which entails a consideration
of discrete employment decisions in thousands of loca-
tions as to specific persons with no evidence that a
common policy had resulted in the disparate treatment,
the plaintiff in the present case is seeking to recover
damages for a company-wide practice of assigning non-
service duties and improperly taking the tip credit.
Proof of the ‘‘truth or falsity’’ of this policy will answer
the question of liability as to all class members. Id., 350.
As a result, we are not persuaded that Dukes dictates
a different conclusion. See Zivkovic v. Laura Christy,
LLC, 329 F.R.D. 61, 70 (S.D.N.Y. 2018) (concluding that
Dukes was ‘‘markedly different’’ from case concerning
minimum wage violations and that defendant’s argu-
ment pointing to ‘‘individual questions regarding each
employee’s schedules and compensation’’ involved
damages questions that ‘‘do not defeat class certifica-
tion’’).
 B
Along with their challenge to the commonality deter-
mination under Practice Book § 9-7, the defendants also
assert that the trial court improperly failed to decide
whether the defendants were the plaintiff’s employers.
The defendants claim that they are not the plaintiff’s
employers and that there is no legal entity named ‘‘Con-
necticut Chip’s Family Restaurant,’’ which was the
employer named in the plaintiff’s proposed class defini-
tion. For these reasons, the defendants argue that the
plaintiff lacks standing and, therefore, that her claims
are not typical and that she is not an adequate class
representative. In response, the plaintiff contends that
she has demonstrated numerosity20 and that this ques-
tion with respect to the employing party relates to the
merits and is not properly decided at the class certifica-
tion stage. In the alternative, the plaintiff argues that
any error in this respect would be harmless because
the defendants are in fact her employers. We conclude
that the trial court did not abuse its discretion in
determining that the plaintiff satisfied both her ade-
quacy as a class representative and typicality.
‘‘Standing is the legal right to set judicial machinery
in motion. One cannot rightfully invoke the jurisdiction
of the court unless he [or she] has, in an individual or
representative capacity, some real interest in the cause
of action, or a legal or equitable right, title or interest
in the subject matter of the controversy. . . . When
standing is put in issue, the question is whether the
person whose standing is challenged is a proper party
to request an adjudication of the issue . . . . Standing
requires no more than a colorable claim of injury; a
[party] ordinarily establishes . . . standing by allega-
tions of injury. Similarly, standing exists to attempt to
vindicate arguably protected interests.’’ (Internal quota-
tion marks omitted.) May v. Coffey, 291 Conn. 106, 112,
967 A.2d 495 (2009). ‘‘The issue of standing implicates
subject matter jurisdiction . . . .’’ (Internal quotation
marks omitted.) Id., 113.
‘‘The requirements of justiciability and controversy
are ordinarily held to have been met when a complain-
ant makes a colorable claim of direct injury he has
suffered or is likely to suffer, in an individual or repre-
sentative capacity. . . . As long as there is some direct
injury for which the plaintiff seeks redress, the injury
that is alleged need not be great. . . . Where the nexus
between the injury and the claim sought to be adjudi-
cated is obvious and direct, a plaintiff has standing to
maintain the claim.’’ (Citations omitted; internal quota-
tion marks omitted.) Gay & Lesbian Law Students
Assn. v. Board of Trustees, 236 Conn. 453, 463–64, 673
A.2d 484 (1996).
We conclude that the trial court did not need to decide
whether the defendants were the plaintiff’s employers
to determine standing at the class certification stage.
Whether the defendants are the correct party is an issue
of misjoinder and does not implicate the court’s subject
matter jurisdiction. See General Statutes § 52-108 (‘‘An
action shall not be defeated by the nonjoinder or mis-
joinder of parties. New parties may be added and sum-
moned in, and parties misjoined may be dropped, by
order of the court, at any stage of the action, as the
court deems the interests of justice require.’’); Bloom
v. Miklovich, 111 Conn. App. 323, 329, 958 A.2d 1283
(2008) (‘‘[n]aming an improper person as a party in a
legal action constitutes misjoinder’’ (internal quotation
marks omitted)). If the defendants are the incorrect
parties to this action, they must file a motion to strike.
See Practice Book § 11-3 (‘‘[t]he exclusive remedy for
misjoinder of parties is by motion to strike’’). Although
the defendants are correct that the plaintiff failed to
name the individual limited liability companies that
operate each of the Chip’s locations; see footnote 4 of
this opinion; ‘‘the failure to give notice to or to join an
indispensable party does not impact the court’s subject
matter jurisdiction.’’ Batte-Holmgren v. Commissioner
of Public Health, 281 Conn. 277, 288, 914 A.2d 996
(2007). Instead, the plaintiff may seek an order from
the trial court adding those entities as parties, if ‘‘the
interests of justice require.’’ Practice Book § 9-19.
‘‘It is well established that a representative plaintiff
must have individual standing to assert claims against
all the members of a defendant class.’’21 Macomber v.
Travelers Property & Casualty Corp., supra, 277 Conn.
632. The plaintiff in the present case possesses standing,
as she is seeking recovery for a cognizable injury,
namely, violations of Connecticut wage laws and regula-
tions, and has the statutory right of action against her
employer for such violations. See General Statutes § 31-
68 (a). In Macomber, the plaintiff sued several defen-
dants, alleging that they had improperly used structured
settlements to resolve certain personal injury claims.
Macomber v. Travelers Property & Casualty Corp.,
supra, 620, 623 The plaintiff’s own complaint did not,
however, advance a legally valid claim against one of the
corporate defendants, Solomon Smith Barney Holdings,
Inc. (Smith Barney), because Smith Barney’s alleged
participation in the scheme did not occur until after
the plaintiff had entered into her structured settlement.
Id., 634. The court concluded that ‘‘[t]he plaintiff can
have no standing to assert a claim against Smith Barney
and, therefore, cannot be a typical class representative,
because she cannot typically and adequately represent
those class members with such claims. Put another
way, she has no incentive aggressively to litigate any
claims against Smith Barney and, therefore, is not an
appropriate class representative.’’ Id.
The plaintiff in the present case alleged facts, which
the trial court assumed to be true for class certification
purposes, demonstrating that the defendants were her
employers. See id., 634 (considering plaintiff’s own alle-
gations to determine standing). Unlike the plaintiff in
Macomber, who could not assert a cognizable claim
against Smith Barney, the plaintiff in the present case
faces no such legal impediment and has every incentive
to litigate her claim aggressively against the defendants.
The nexus between the injury and the claim against the
defendants named in this case is ‘‘obvious and direct’’;
(internal quotation marks omitted) Gay & Lesbian Law
Students Assn. v. Board of Trustees, supra, 236 Conn.
464; as Kaiaffa, LLC, and Chatzopoulos are the members
of all of the limited liability companies that operate the
restaurants at issue in the present case, and, according
to the plaintiff, Chatzopoulos implemented the policies
at issue. See footnote 4 of this opinion.
Although the defendants characterize their argument
as a challenge to the plaintiff’s standing, a determination
as to whether the defendants meet the definition of
an ‘‘employer’’ under Connecticut’s wage laws is more
accurately analyzed as a merits inquiry. See Butler v.
Hartford Technical Institute, Inc., 243 Conn. 454, 463–
64, 704 A.2d 222 (1997) (individual was ‘‘an employer,’’
as defined by General Statutes § 31-71a (1), and, there-
fore, could be liable under General Statutes § 31-72 for
unpaid overtime wages, ‘‘if the individual is the ultimate
responsible authority to set the hours of employment
and to pay wages and is the specific cause of the wage
violation’’). The defendants argue in their brief that
wage payments and the assignment of tasks were made
by individual managers and not Chatzopoulos. A deter-
mination on this question affects liability, and the defen-
dants do not explain how its resolution affects the plain-
tiff’s adequacy or typicality. Although each restaurant
is run by an individual limited liability company, it is
either Kaiaffa, LLC, or Chatzopoulos (whether through
his membership in Kaiaffa, LLC, or individually) who
is the member of those limited liability companies.
Because the business structure is the same for all of the
restaurants, the question that the defendants present
as particular to the plaintiff’s standing is a question best
determined on a class-wide basis.22
C
We next address the defendants’ claim that the trial
court abused its discretion in determining that the plain-
tiff satisfied the predominance and superiority require-
ments of Practice Book § 9-8. Because the defendants
make interrelated arguments regarding both predomi-
nance and superiority, we consider those claims
together.
The defendants argue that the plaintiff has not dem-
onstrated predominance because the jury will need to
decide several individualized issues, such as whether
each of the thirty-five side work tasks was either service
related or incidental to service when performed by each
server, whether each individual server performed non-
service tasks, how long these tasks took each server to
perform, and during what shifts each server performed
these nonservice tasks. Also, the defendants and the
amicus curiae the Restaurant Law Center contend that
the trial court’s decision represents a ‘‘steep departure’’
from several previous Connecticut trial court decisions,
which they argue correctly decided the issue of predom-
inance. Specifically, as to superiority, the defendants
argue that the trial court did not examine how the
plaintiff’s claim would be proven at trial and that, if the
trial court had performed such a rigorous analysis, it
would have concluded that the class members could
prove their claims only through individualized testi-
mony.
In response, the plaintiff contends that the class’
claims may be proven by generalized evidence because
the defendants produced no evidence demanding indi-
vidualized inquiries. The plaintiff argues that the earlier
Superior Court decisions declining to certify classes of
servers were wrongly decided in that they (1) failed
to account for the defendants’ burden to prove their
entitlement to the tip credit, and (2) failed to apply the
burden shifting framework outlined in Schoonmaker v.
Lawrence Brunoli, Inc., 265 Conn. 210, 828 A.2d 64
(2003). Additionally, the plaintiff claims that she has
sufficiently outlined her trial plan and demonstrated
that adjudicating these claims as a class action is supe-
rior. Similarly, she contends that any individualized
damages questions may be proven by representative
evidence. We conclude that the trial court did not abuse
its discretion in determining that common issues pre-
dominate and that a class action is superior to individu-
ally litigating the claims.
‘‘In order to determine whether common questions
predominate, [a court must] . . . examine the [causes]
of action asserted in the complaint on behalf of the
putative class. . . . Whether an issue predominates
can . . . be determined [only] after considering what
value the resolution of the class-wide issue will have
in each class member’s underlying cause of action. . . .
Common issues of fact and law predominate if they
ha[ve] a direct impact on every class member’s effort
to establish liability and on every class member’s entitle-
ment to . . . relief. . . . [When], after adjudication of
the [class-wide] issues, [the] plaintiffs must still intro-
duce a great deal of individualized proof or argue a
number of individualized legal points to establish most
or all of the elements of their individual[ized] claims,
such claims are not suitable for class certification
. . . .
‘‘[When] cases [involve] individualized damages . . .
[and those] damages can be computed according to
some formula, statistical analysis, or other easy or
essentially mechanical methods, the fact that damages
must be calculated on an individual basis is no impedi-
ment to class certification. . . . It is primarily when
there are significant individualized questions going to
liability that the need for individualized assessments of
damages is enough to preclude [class] certification.’’
(Internal quotation marks omitted.) Standard Petro-
leum Co. v. Faugno Acquisition, LLC, supra, 330 Conn.
60–61. As outlined in our earlier discussion of predomi-
nance; see part II B of this opinion; a trial court is first
required to review the elements of the cause of action,
then decide whether those elements may be proven by
generalized or individualized proof, and, finally, it must
weigh whether those common issues predominate over
individual issues. Id., 61.
Practice Book § 9-8 (3) provides that, when deciding
whether a class action is superior, the trial court should
consider ‘‘(A) the interest of members of the class in
individually controlling the prosecution or defense of
separate actions; (B) the extent and nature of any litiga-
tion concerning the controversy already commenced
by or against members of the class; (C) the desirability
or undesirability of concentrating the litigation of the
claims in the particular forum; [and] (D) the difficulties
likely to be encountered in the management of class
action.’’ ‘‘Superiority . . . is intertwined with the pre-
dominance requirement. . . . If the predominance cri-
terion is satisfied, courts generally will find that the
class action is a superior mechanism even if it presents
management difficulties.’’ (Citation omitted; internal
quotation marks omitted.) Standard Petroleum Co. v.
Faugno Acquisition, LLC, supra, 330 Conn. 74.
In its discussion of predominance, the trial court
began by examining the plaintiff’s claim. The court first
quoted § 31-62-E4 of the Regulations of Connecticut
State Agencies, which details the elements of a cause
of action under § 31-68 (a).23 Although the trial court
did not break down the regulation into elements, it is
evident that the plaintiff must show that, on any given
shift (1) she performed both service and nonservice
duties, (2) the employer did not segregate and record
the time spent on each type of duty, and (3) the
employer took the tip credit. See Stevens v. Vito’s by the
Water, LLC, Superior Court, judicial district of Hartford,
Docket No. CV-XX-XXXXXXX-S (November 9, 2017) (65
Conn. L. Rptr. 430, 433). The defendants do not contest
elements two and three. As a result, the trial court
properly dedicated its analysis to whether the first ele-
ment could be proven by generalized proof. The trial
court concluded that the plaintiff’s proof included gen-
eralized evidence, such as the defendants’ own admis-
sions via their corporate representatives, and that indi-
vidualized evidence demonstrating the type and amount
of side work was unnecessary to prove the plaintiff’s
claim. According to the trial court, if the plaintiff’s legal
interpretation is correct, the plaintiff’s claim can be
proven by generalized evidence.
 Previous Connecticut trial court decisions, which
declined to certify classes in earlier tip credit cases,
concluded that individual issues predominated because
the nature of the work performed and the time spent
on the duties were individual questions. See Bucchere
v. Brinker International, Inc., supra, Superior Court,
Docket No. CV-XX-XXXXXXX-S; Palmer v. Friendly Ice
Cream Corp., Docket No. CV-XX-XXXXXXX-S, 2006 WL
361339, *4–5 (Conn. Super. January 25, 2006), appeal
dismissed, Connecticut Appellate Court, Docket No.
27669 (July 12, 2006), aff’d, 285 Conn. 462, 940 A.2d
742 (2008); Galbreth v. Briad Restaurant Group, LLC,
supra, 40 Conn. L. Rptr. 404; see also Orozco v. Darden
Restaurants, Inc., Superior Court, judicial district of
Hartford, Docket No. CV-XX-XXXXXXX-S (August 3, 2006)
(41 Conn. L. Rptr. 717, 718) (‘‘[i]n [Bucchere, Galbreth,
and Palmer], the court found that individualized issues
regarding the nature of the duties that plaintiffs were
required to perform at each of the restaurants and the
extent to which each of the plaintiffs had to perform
these duties during each of their shifts at the various
restaurants predominated over issues that would
require generalized proof’’), appeal dismissed, Connect-
icut Appellate Court, Docket No. AC 27937 (September
26, 2006), aff’d sub nom. Bucchere v. Brinker Interna-
tional, Inc., 287 Conn. 704, 950 A.2d 493 (2008). The
plaintiff contends that these trial court decisions
reached the incorrect result by failing to correctly apply
this court’s decision in Schoonmaker.
In Schoonmaker v. Lawrence Brunoli, Inc., supra,
265 Conn. 234, this court adopted the burden shifting
analysis first outlined in Anderson v. Mt. Clemens Pot-
tery Co., 328 U.S. 680, 687–88, 66 S. Ct. 1187, 90 L. Ed.
1515 (1946). Under this burden shifting scheme, ‘‘an
employee has carried out his burden if he proves that he
has in fact performed work for which he was improperly
compensated and if he produces sufficient evidence to
show the amount and extent of that work as a matter
of just and reasonable inference. The burden then shifts
to the employer to come forward with evidence of the
precise amount of work performed or with evidence to
negative the reasonableness of the inference to be
drawn from the employee’s evidence. If the employer
fails to produce such evidence, the court may then
award damages to the employee, even though the result
be only approximate.’’ (Internal quotation marks omit-
ted.) Schoonmaker v. Lawrence Brunoli, Inc., supra,
239–40.
This burden shifting analysis assists the plaintiff in
establishing the amount of improperly paid work. See
Anderson v. Mt. Clemens Pottery Co., supra, 328 U.S.
688 (‘‘[H]ere we are assuming that the employee has
proved that he has performed work and has not been
paid in accordance with the statute. The damage is
therefore certain. The uncertainty lies only in the
amount of damages arising from the statutory violation
by the employer.’’ (Emphasis added.)); see also Kuebel
v. Black & Decker, Inc., 643 F.3d 352, 364–65 (2d Cir.
2011) (‘‘[t]he Anderson test simply addresses whether
there is a reasonable basis for calculating damages,
assuming that a violation has been shown’’); Evans v.
Tiger Claw, Inc., 173 Conn. App. 409, 420, 163 A.3d
1282 (‘‘[t]he purpose of the Anderson [burden shifting]
scheme is simply to prevent an employer from com-
plaining that ‘the damages lack the exactness and preci-
sion of measurement that would be possible had [it]
kept records’ ’’), cert. denied, 327 Conn. 976, 174 A.3d
800 (2017). Accordingly, in our view, the reasoning of
the previous Superior Court cases was incorrectly
based on the conclusion that the extent of the plaintiff’s
side work was an individual issue. Under § 31-62-E4
of the Regulations of Connecticut State Agencies, the
plaintiff has to establish only that she performed non-
service and service work together, not that she per-
formed nonservice work for any specific length of time;
Schoonmaker does not require plaintiffs to establish
with certainty the amount of uncompensated work per-
formed.
That having been said, we observe that Schoonmaker
does not lower the plaintiff’s burden of proving whether
she performed such work in the first instance. The
plaintiff contends, however, that the class is not
required to prove the precise nature of the employees’
side work duties because it is the employer’s burden
to prove ‘‘that they are entitled [to] any exception to
the minimum wage laws.’’ The defendants disagree and
argue that it is the plaintiff’s burden to prove the type
of side work performed during each shift. We agree with
the plaintiff. In order to take advantage of a statutory
exception to minimum wage laws, such as the exclusion
of certain individuals under the definition of
‘‘employee’’ in § 31-58 (e), an employer has the burden
of proving that an employee qualifies under that excep-
tion. See Butler v. Hartford Technical Institute, Inc.,
supra, 243 Conn. 465–66; see also Shell Oil Co. v. Ricci-
uti, 147 Conn. 277, 283, 160 A.2d 257 (1960) (‘‘[t]he
burden rests on the employer to establish that his
employees come within an exemption’’). The tip credit
functions in the same manner as an exception to the
minimum wage, as it permits employers to pay their
employees less than the minimum wage. See Amaral
Brothers, Inc. v. Dept. of Labor, supra, 325 Conn. 74
(explaining that § 31-60 (b), tip credit statute, ‘‘carves
out certain exceptions to Connecticut’s minimum wage
laws’’); see also Perez v. Lorraine Enterprises, Inc.,
769 F.3d 23, 27 (1st Cir. 2014) (characterizing FLSA tip
credit as ‘‘[an exception] to the minimum wage rate’’).
As a result, it is the employer’s burden to establish that
the employees qualified for the tip credit. See Stokes v.
Norwich Taxi, LLC, 289 Conn. 465, 481–83, 958 A.2d
1195 (2008) (placing burden on employer to prove appli-
cation of fluctuating workweek exception under FLSA);
see also Pedigo v. Austin Rumba, Inc., 722 F. Supp. 2d
714, 724 (W.D. Tex. 2010) (‘‘[the] [d]efendants, as the
employers, bear the burden of proving that they are
entitled to taking tip credits’’ (internal quotation marks
omitted)); Driver v. AppleIllinois, LLC, 265 F.R.D. 293,
298 (N.D. Ill. 2010) (same). But see Fast v. Applebee’s
International, Inc., 638 F.3d 872, 882 (8th Cir. 2011)
(‘‘the employees . . . must establish that they spent
a substantial amount of time performing nontip-pro-
ducing duties such that they were not performing a
tipped occupation for at least portions of their shifts’’
(emphasis added)), cert. denied, 565 U.S. 1156, 132 S.
Ct. 1094, 181 L. Ed. 2d 977 (2012).
The question remains whether the plaintiff may prove
the class’ performance of nonservice duties with repre-
sentative evidence or whether the nature of side work
requires individual testimony, as the defendants con-
tend.
In Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442,
454, 136 S. Ct. 1036, 1049, 194 L. Ed. 2d 124 (2016), the
United States Supreme Court permitted an FLSA class
to prove the amount of time spent performing an
uncompensated task through the use of representative
testimony. According to the court, whether representa-
tive proof is permitted ‘‘to establish [class-wide] liability
will depend on the purpose for which the sample is
being introduced and on the underlying cause of
action.’’ Id., 460. Representative proof was permitted
in Tyson Foods, Inc., because of the burden shifting
analysis from Anderson. See id., 456–57 (‘‘In this suit,
as in [Anderson], [the] respondents sought to introduce
a representative sample to fill an evidentiary gap cre-
ated by the employer’s failure to keep adequate records.
. . . Rather than absolving the employees from proving
individual injury, the representative evidence . . . was
a permissible means of making that very showing.’’).
As each individual employee could have used the repre-
sentative evidence to prove liability given the discrete
nature of the task at issue in Tyson Foods, Inc., such
evidence was properly used for the class. See id., 457.
The defendants contest the use of representative tes-
timony in the present case because, they contend, the
class members do not share the same tasks. We dis-
agree. In the present case, the tasks expected of servers
are relatively uniform, although certain tasks may have
been performed by different servers on different shifts.
See Secretary of Labor v. DeSisto, 929 F.2d 789, 793
(1st Cir. 1991) (‘‘an employee can . . . represent other
employees only if all perform substantially similar
work’’). But see Ferreras v. American Airlines, Inc.,
946 F.3d 178, 186–87 (3d Cir. 2019) (concluding that
Tyson Foods, Inc., did not apply as there was ‘‘substan-
tial variability’’ in employees’ tasks). Based on the depo-
sitions of the defendants’ corporate representative, the
trial court could reasonably have found, for purposes
of certifying the class, that the plaintiffs demonstrated
a common policy of similar side work tasks that could
be used to show that all Chip’s servers performed non-
service duties. For example, when asked how Wethers-
field side work differed from the side work at other
restaurants, Robertson stated: ‘‘I would say it has the
same tasks, but the way it’s written, the way it’s catego-
rized, the way things are stored, the layout, it’s all differ-
ent.’’ (Emphasis added.) So, although there is some
variation in the performance of these tasks, they are
outlined and described similarly by the defendants
themselves in their own policies and deposition testi-
mony. Additionally, the defendants admit that all
servers are trained in a similar manner and perform
some of their side work away from the tables and
booths.24
The defendants also contend that representative testi-
mony is improper because class members must individ-
ually prove how frequently and during what shifts spe-
cific duties were performed, and the record lacks
evidence to that effect. We again disagree. As in Tyson
Foods, Inc., the plaintiff may use inference to bridge
an evidentiary gap in this regard. The defendants did
not record which duties servers performed during each
shift. As a result, it would be unfair to require plaintiffs
to prove facts for which there is no individual proof.
See Mooney v. Domino’s Pizza, Inc., supra, 2016 WL
4576996, *4 (‘‘[the] [d]efendants’ proposed interpreta-
tion would make the [Massachusetts] Tips Act effec-
tively unenforceable even in [single plaintiff] litigation,
as no employee would be able to litigate the specific
circumstances of the individual customer interactions,
undoubtedly resulting in situations in which employees
were improperly deprived of tips’’). But see In re Auto-
zone, Inc., Docket No. 3:10-md-02159-CRB, 2016 WL
4208200, *15 (N.D. Cal. August 10, 2016) (‘‘[t]he repre-
sentational evidence [in Tyson Foods, Inc.] did not
depend on individual employees’ memories, it simply
filled in a gap’’), aff’d, 789 Fed. Appx. 9 (9th Cir. 2019).
In light of Schoonmaker, which permits employees
to shift the burden to the employer to establish the
precise amount of improperly paid work, and the statu-
tory framework making it the employer’s burden to
prove its entitlement to the tip credit, we conclude that
the trial court did not abuse its discretion in determining
that the nature of the side work performed by the class
can be proven by representative testimony. See Secre-
tary of Labor v. DeSisto, supra, 929 F.2d 792 (permitting
Secretary of Labor to establish ‘‘the initial burden of
proof requirement’’ with representative testimony in
FLSA case); Mooney v. Domino’s Pizza, Inc., supra,
2016 WL 4576996, *7 (permitting class to prove ‘‘how
many hours class members typically spent performing
particular duties’’ with representative testimony); see
also Vaquero v. Ashley Furniture Industries, Inc., 824
F.3d 1150, 1156 (9th Cir. 2016) (permitting employee to
use representative evidence in form of company poli-
cies and class member declarations to prove liability,
as defendant ‘‘may challenge the viability’’ of evidence
later in proceedings). The class can establish what tasks
were performed, and how frequently they were per-
formed, through testimony offering the servers’ recol-
lection of these facts. For example, if all cleaning tasks
are determined to be nonservice in nature, a group
of servers may testify regarding how, and with what
frequency, they cleaned the restaurant. Tyson Foods,
Inc. ‘‘tells us that representative evidence include[s]
employee testimony, video recordings, and expert stud-
ies. . . . So testimony from [the defendant’s employ-
ees] can amount to representative evidence.’’ (Citation
omitted; internal quotation marks omitted.) Ridgeway
v. Walmart, Inc., 946 F.3d 1066, 1087 (9th Cir. 2020).
A defendant may still mount individual defenses against
representative testimony. See Tyson Foods, Inc. v. Bou-
aphakeo, supra, 136 S. Ct. 1047.
For these reasons, we conclude that the trial court
did not abuse its discretion in permitting the plaintiff
to use representative evidence to prove that class mem-
bers performed service and nonservice work. ‘‘As long
as there is a basis to conclude that the trial court
reached a reasoned conclusion that common issues will
outweigh others, predominance is properly estab-
lished.’’ Standard Petroleum Co. v. Faugno Acquisi-
tion, LLC, supra, 330 Conn. 65. If and when the trial
court determines that certain tasks qualify as nonser-
vice duties, the plaintiffs will be required to demon-
strate that the class performed those duties for which
they were improperly compensated, with the burden
then shifting to the defendants to prove that they were
permitted to take the tip credit for the performance of
those tasks.25 Whether an individual server performed
nonservice tasks during a particular shift presents an
individualized question of damages26 that generally does
not defeat predominance.27 See Zivkovic v. Laura
Christy, LLC, supra, 329 F.R.D. 75 (‘‘the types of individ-
ual questions that exist in wage-and-hour cases, such
as the hours worked or the exact damages to which
each plaintiff might be entitled, [are] inevitable and [do]
not defeat the predominance requirement’’ (internal
quotation marks omitted)); Whitehorn v. Wolfgang’s
Steakhouse, Inc., 275 F.R.D. 193, 199 (S.D.N.Y. 2011)
(differences in ‘‘job duties and thus the projected shift
hours’’ required individualized determinations of dam-
ages); see also 2 W. Rubenstein, Newberg on Class
Actions (5th Ed. 2020) § 4:54 (‘‘the black letter rule is
that individual damage calculations generally do not
defeat a finding that common issues predominate’’).
This framework may present the trial court with admin-
istrative challenges relating to case management, but
such difficulties are inevitable in complex litigation of
this type.
 Our conclusion that the plaintiff may use representa-
tive testimony to establish predominance also supports
a conclusion that litigating these claims as a class is
superior. We recognize that the trial court’s memoran-
dum of decision addressed superiority only briefly and
did not expressly consider many of the difficulties that
the defendants argue militate against the superiority of
a class action. Given our conclusion that the plaintiff
may use representative testimony to prove liability,
however, we are not persuaded by the defendants’ argu-
ments on this point. Although further testimony or other
evidence may be required for the class to succeed on
the merits of its claim, the absence of such evidence
at this stage does not establish a lack of superiority.
Litigating the claims of hundreds of servers in this
fashion promotes judicial efficiency and provides many
individuals, who would likely not bring such a claim,
an opportunity for relief. See Grimes v. Housing
Authority, 242 Conn. 236, 244, 698 A.2d 302 (1997)
(‘‘[c]lass action suits: (1) promote judicial economy and
efficiency; (2) protect defendants from inconsistent
obligations; (3) protect the interests of absentee parties;
and (4) provide access to judicial relief for small claim-
ants’’). This class, which is limited to six restaurants
located within our state, does not include different res-
taurant types or restaurants across state lines. Claims
such as those presented in the present case are ideally
suited for class certification. The defendants them-
selves may also be the ultimate beneficiaries of class
treatment when the claim rests, at bottom, on the valid-
ity of a single theory of liability because, if that theory
fails as a matter of law, the decision may operate to
foreclose recovery for hundreds of plaintiffs.
D
The defendants also claim that the trial court improp-
erly defined the class in its certification order, as
required under Practice Book § 9-9.28 The defendants
assert that the trial court improperly certified the class
utilizing the name ‘‘Connecticut Chip’s Family Restau-
rant,’’ which is not a legal entity. We reject this con-
tention. Although ‘‘Connecticut Chip’s Family Restau-
rant’’ is not a legal entity, that term clearly encompasses
the six Chip’s restaurants, rendering readily ascertain-
able and verifiable the individuals employed at those
restaurants. Put differently, individual servers will eas-
ily recognize whether they qualify as a class member
based on their employment at a Chip’s restaurant during
the stated time period, and their eligibility as such will
be subject to definitive verification. See 3 W. Ruben-
stein, supra, § 7:27 (‘‘Courts confront at least three
recurring issues in overseeing the class definition. First,
the class must be defined in a manner that makes its
membership ‘ascertainable.’ . . . Second, the class
definition must be clear and precise. . . . Third, a
court certifying a class may have to certify more than
one class or subclasses.’’ (Emphasis omitted; footnotes
omitted.)) Accordingly, it was not an abuse of discretion
to describe the class using the name ‘‘Connecticut
Chip’s Family Restaurant.’’29
The order granting class certification is affirmed.
In this opinion the other justices concurred.
* The listing of justices reflects their seniority status on this court as of
the date of oral argument.
** October 6, 2020, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
The defendants appeal pursuant to the Chief Justice’s grant of their
petition to file an expedited public interest appeal pursuant to General
Statutes § 52-265a. Although this court has considered whether other class
action procedural positions are appealable final judgments; see, e.g., Palmer
v. Friendly Ice Cream Corp., 285 Conn. 462, 463, 940 A.2d 742 (2008); Rivera
v. Veterans Memorial Medical Center, 262 Conn. 730, 733–36, 818 A.2d 731
(2003); we have not specifically decided whether a trial court’s order granting
class certification is appealable outside of the appellate review permitted by
General Statutes § 42-110h for class actions brought under the Connecticut
Unfair Trade Practices Act. See Collins v. Anthem Health Plans, Inc., 266
Conn. 12, 29–30, 836 A.2d 1124 (2003). We have appellate jurisdiction, how-
ever, because it is well established that ‘‘appeals from interlocutory orders
may be taken pursuant to § 52-265a.’’ Foley v. State Elections Enforcement
Commission, 297 Conn. 764, 767 n.2, 2 A.3d 823 (2010).
2
The Restaurant Law Center filed an amicus brief in support of the defen-
dants’ position, and the Connecticut Employment Lawyers Association filed
an amicus brief in support of the plaintiff’s position.
3
Section 31-62-E4 of the Regulations of Connecticut State Agencies, which
was repealed this year; see footnote 12 of this opinion; provided: ‘‘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 segregated and so recorded, no allow-
ances for gratuities may be applied as part of the minimum fair wage.’’
4
There are six Chip’s restaurants in Connecticut, located in Trumbull,
Fairfield, Orange, Wethersfield, Southbury, and Southington. Each Chip’s
restaurant is operated by a separate limited liability company. Those limited
liability companies are not named as defendants in this action.
5
Most of the restaurants’ side work lists were included as exhibits attached
to the server declarations accompanying the plaintiff’s motion for class
certification.
6
General Statutes § 31-68 (a) provides in relevant part: ‘‘If any employee
is paid by his or her employer less than the minimum fair wage or overtime
wage to which he or she is entitled under sections 31-58, 31-59 and 31-60
or by virtue of a minimum fair wage order he or she shall recover, in a civil
action, (1) twice the full amount of such minimum wage or overtime wage
less any amount actually paid to him or her by the employer, with costs
and such reasonable attorney’s fees as may be allowed by the court, or (2)
if the employer establishes that the employer had a good faith belief that
the underpayment of such wages was in compliance with the law, the full
amount of such minimum wage or overtime wage less any amount actually
paid to him or her by the employer, with costs and such reasonable attorney’s
fees as may be allowed by the court. . . .’’
7
The trial court granted the plaintiff’s motion to strike some of the defen-
dants’ special defenses, including the special defense that less than 20 per-
cent of the servers’ time was spent performing side work, rendering the
utilization of the tip credit permissible under federal and state labor regula-
tions. This decision is not at issue in this appeal.
8
Both the plaintiff and the defendants filed motions for summary judgment
prior to the trial court’s class certification decision. These motions are
currently pending.
9
We discuss the trial court’s decision in two parts in order to best accom-
modate the varying legal standards applicable to our review of the trial
court’s class certification decision. See Standard Petroleum Co. v. Faugno
Acquisition, LLC, supra, 330 Conn. 51 (‘‘[w]hile our review of the legal
standards applied by the [trial] court and the court’s other legal conclusions
is de novo . . . the [trial] court’s application of those standards to the facts
of the case is again reviewed only for abuse of discretion’’ (internal quotation
marks omitted)). In part II of this opinion, we first discuss the plaintiff’s
underlying claim and the trial court’s application of the legal standard under
de novo review; in part III of this opinion, we analyze the trial court’s
application of that legal standard under an abuse of discretion review.
10
The plaintiff also contends that the defendants did not properly preserve
this argument before the trial court. We disagree. The defendants repeatedly
requested that the trial court articulate the meanings of service and non-
service during the hearing on class certification. This adequately raised the
issue. See, e.g., MacDermid, Inc. v. Leonetti, 328 Conn. 726, 738 n.7, 183
A.3d 611 (2018) (concluding that defendant preserved defense because it
could be inferred from his motions and because ‘‘the sine qua non of preser-
vation is fair notice’’ to trial court and to parties (internal quotation marks
omitted)). Additionally, the defendants immediately appealed from the class
certification decision. As a result, there was no occasion, and no additional
necessity, for the defendants ‘‘to challenge those findings’’ before the
trial court.
11
A tip credit allows ‘‘employers [to] take a credit for tips received by a
tipped employee for up to a stated percentage or portion of the minimum
wage.’’ J. Lockhart, Annot., ‘‘Tips as Wages for Purposes of Federal Fair
Labor Standards Act,’’ 46 A.L.R. Fed. 2d 23, 40, § 2 (2010).
12
We note that our legislature recently enacted legislation requiring the
department to repeal § 31-62-E4 of the Regulations of Connecticut State
Agencies and to adopt regulations in accordance with the 80/20 rule. See
Public Acts, Special Sess., July, 2019, No. 19-1, § 5 (Spec. Sess. P.A. 19-1)
(‘‘[r]egulations adopted pursuant to this section shall be . . . [i]n accor-
dance with the Fair Labor Standards Act, 29 [U.S.C. §] 203 (m) (2) and 29
[C.F.R. §] 531.56 (e), as interpreted by [§] 30d00 (e) of the federal Department
of Labor’s Field Operations Handbook, prior to November 8, 2018, which
was previously referred to as the ‘80/20 rule’ ’’). Although Spec. Sess. P.A.
19-1 was signed by the governor on January 6, 2020, after the parties had
submitted their briefs to this court, the matter was discussed during oral
argument before this court. The defendants stated that the recent legislation
does not render the case moot but that it does have an impact on pending
cases, as it added requirements for class certification. The plaintiff agreed
that the repeal of § 31-62-E4 does not affect the present case and that the
new class action requirements of Spec. Sess. P.A. 19-1 do not change the
plaintiff’s burden in the present case. If there was a remand, however, the
plaintiff would be bound by the new class action rules.
As the legislation does not retroactively repeal § 31-62-E4, we conclude
that Spec. Sess. P.A. 19-1 does not impact our analysis in the present case.
Compare Spec. Sess. P.A. 19-1, § 5 (‘‘Not later than April 1, 2020, the Labor
Commissioner shall post on the eRegulations System a notice of intent to
adopt regulations . . . concerning employees who perform both service
and nonservice duties and allowances for gratuities permitted or applied
as part of the minimum fair wage pursuant to section 31-60 of the general
statutes. . . . Such notice shall also provide for the repeal of section 31-
62-E4 of the regulations of Connecticut state agencies upon the effective
date of regulations adopted pursuant to this section.’’ (Emphasis added.)),
with Public Acts 2019, No. 19-198, § 7 (‘‘(Effective from passage and applica-
ble to actions pending on or filed on or after said date) Notwithstanding
the provisions of chapter 54 of the general statutes, section 31-62-E4 of
the regulations of Connecticut state agencies is repealed.’’ (Emphasis in
original.)).
13
See Stevens v. Vito’s by the Water, LLC, Superior Court, judicial district
of Hartford, Docket No. CV-XX-XXXXXXX-S (November 9, 2017) (65 Conn. L.
Rptr. 430, 432–33) (considering examples of service and nonservice duties
in department issued guidance document and concluding that plaintiff dem-
onstrated that ‘‘majority’’ of side work was nonservice); see also Labor Dept.
v. America’s Cup, Superior Court, judicial district of Hartford, Docket No.
CV-XX-XXXXXXX (April 21, 1994) (11 Conn. L. Rptr. 379, 380–81) (determining
whether bartenders are service or nonservice employees under department’s
regulations).
14
The plaintiff interprets ‘‘nonservice’’ to include all side work tasks that
a server performs away from the tables and booths. The defendants contend
that § 31-62-E4 of the Regulations of Connecticut State Agencies does not
actually distinguish between types of duties but, instead, refers to different
occupations within the restaurant industry, and, therefore, ‘‘the intent of
the regulation was not to regulate the assignment of tasks . . . .’’ Alterna-
tively, they contend that all of the side work tasks alleged by the plaintiff
are incidental to service, and, therefore, taking the tip credit was permissible
under the regulation.
15
‘‘Because our class certification requirements are similar to those
embodied in rule 23 of the Federal Rules of Civil Procedure, and our jurispru-
dence governing class actions is relatively undeveloped, we look to federal
case law for guidance in construing the provisions of Practice Book §§ 9-7
and 9-8.’’ (Footnote omitted.) Collins v. Anthem Health Plans, Inc., supra,
275 Conn. 322–23.
16
Under federal law, collective actions seeking recovery for an employer’s
improper use of the tip credit are frequently brought in federal court pursuant
to the FLSA. See, e.g., Schaefer v. Walker Bros. Enterprises, Inc., 829 F.3d
551, 553 (7th Cir. 2016); Fast v. Applebee’s International, Inc., 638 F.3d 872,
876 (8th Cir. 2011), cert. denied, 565 U.S. 1156, 132 S. Ct. 1094, 181 L. Ed.
2d 977 (2012).
17
The trial court did state during the hearing on class certification that
it ‘‘would have to presume the plaintiff’s arguments or claims are true’’ and
that the plaintiff’s definition of nonservice is correct for class certification.
As we clarified previously in this opinion, that proposition is accurate to a
point, as a trial court must ‘‘probe behind the pleadings before coming to
rest on the certification question . . . and . . . certification is proper only
if the trial court is satisfied, after a rigorous analysis, that the prerequisites
of [r]ule 23 (a) have been satisfied.’’ (Internal quotation marks omitted.)
Comcast Corp. v. Behrend, 569 U.S. 27, 33, 133 S. Ct. 1426, 185 L. Ed. 2d
515 (2013). In the trial court’s memorandum of decision, the court considered
the factual disputes identified by the defendants when concluding that it
would not decide whether side work qualified as nonservice. We have con-
cluded, however, that the trial court did not have to interpret the regulations
in determining whether to certify the class, meaning that the trial court
properly assumed the truth of the plaintiff’s allegations, as there was no
factual dispute that affected certification. Instead, the trial court properly
deferred considering the merits of the plaintiff’s legal theory until after class
certification.
18
Moreover, if, after deciding the parties’ motions for summary judgment,
the trial court’s interpretation of the regulation narrows the plaintiff’s claims
to the point that class certification is no longer appropriate, the court has
the authority to decertify or modify the class. See Artie’s Auto Body, Inc.
v. Hartford Fire Ins. Co., 287 Conn. 208, 235–36, 947 A.2d 320 (2008) (‘‘in
the event that circumstances change as discovery proceeds and the trial
court determines that class certification is improper, it may issue an order
modifying its prior certification order or decertifying the class altogether’’).
19
The plaintiff’s evidence lacks an affidavit dedicated to the Southington
restaurant, although the plaintiff herself occasionally worked there. Never-
theless, Robertson, the current general manager at the Southington restau-
rant, did not indicate that Southington side work varied substantially from
that at the other restaurants, so it is reasonable to assume that Southington
operated in accordance with the general policy.
20
The defendants did not argue before the trial court that whether the
plaintiff was employed by the defendants affected her standing; instead,
they argued that such an inquiry was relevant to the plaintiff’s showing of
numerosity. Nevertheless, we will review the merits of the defendants’ argu-
ment.
Although the defendants have changed the focus of their argument on
appeal to different Practice Book requirements, ‘‘[w]e may . . . review legal
arguments that differ from those raised before the trial court if they are
subsumed within or intertwined with arguments related to the legal claim
raised at trial.’’ Crawford v. Commissioner of Correction, 294 Conn. 165,
203, 982 A.2d 620 (2009). Additionally, ‘‘standing implicates the court’s sub-
ject matter jurisdiction, [so] the issue of standing is not subject to waiver
and may be raised at any time.’’ Equity One, Inc. v. Shivers, 310 Conn. 119,
126, 74 A.3d 1225 (2013). Because the legal argument is a variation of
one raised before the trial court and invokes the court’s subject matter
jurisdiction, we review the merits of the defendants’ argument. Additionally,
we note that the plaintiff did not object to our review on appeal.
21
‘‘Thus, both standing and mootness also frequently appear as threshold
requirements for the maintenance of federal class actions and must be
considered in addition to the requirements of [r]ule 23 when deciding
whether a particular action may be certified.’’ 7AA C. Wright et al., Federal
Practice and Procedure (3d Ed. 2005) § 1785.1, p. 385.
22
We note that the trial court may well subsequently determine that the
operational structure of the Chip’s business renders it appropriate to divide
the class into subclasses by restaurant location. See Practice Book § 9-9 (a)
(4) (‘‘[w]hen appropriate . . . a class may be divided into subclasses and
each subclass treated as a class’’).
23
‘‘Administrative regulations have the full force and effect of statutory
law and are interpreted using the same process as statutory construction,
namely, under the well established principles of General Statutes § 1-2z.’’
(Internal quotation marks omitted.) Sarrazin v. Coastal, Inc., 311 Conn.
581, 603, 89 A.3d 841 (2014).
24
Robertson testified that all servers (1) were trained according to the
same training packet, and (2) performed side work on every shift. Through-
out her depositions, she also detailed how specific tasks were performed
away from the tables and booths.
25
See Corning Glass Works v. Brennan, 417 U.S. 188, 196–97, 94 S. Ct.
2223, 41 L. Ed. 2d 1 (1974) (‘‘the general rule [is] that the application of an
exemption under the [FLSA] is a matter of affirmative defense on which
the employer has the burden of proof’’).
26
See Haschak v. Fox & Hound Restaurant Group, Docket No. 10 C 8023,
2012 WL 5509617, *5 (N.D. Ill. November 14, 2012) (‘‘[the] [d]efendants’
liability for the policy will be independent of the possibility that certain
individual class members will be unable to recover because the time they
spent performing tasks mandated by the otherwise improper policy may
happen to prove de minimis’’ (emphasis omitted)).
27
We note that, if the court determines, after defining nonservice during
the summary judgment proceedings, that there are too few qualifying tasks
to support predominance, the court may decertify the class.
28
We are also not persuaded that the trial court failed to define the class.
The trial court’s decision clearly states that it is certifying the class, as
requested by the plaintiff: ‘‘All individuals employed as [s]ervers at any
Connecticut Chip’s Family Restaurant from October 25, 2015, until March
1, 2018.’’ (Internal quotation marks omitted.)
29
We note that a class definition mentioning the six Chip’s restaurant
locations would be more specific, and the trial court may deem it advisable
to amend the definition accordingly on remand. See Rivera v. Veterans
Memorial Medical Center, 262 Conn. 730, 744, 818 A.2d 731 (2003) (‘‘it is
within the purview of the trial court to revisit the issue of class certification,
and, if circumstances require, alter the definition of the class as develop-
ments dictate’’).