Kenyon: Recent developments

By JIM KENYON

Valley News Columnist

Published: 03-22-2024 9:01 PM

In talking with people while following up on a couple of recent columns, new developments emerged. Some were more surprising than others. With apologies to “Saturday Night Live,” here’s my Weekend Update:

Waiting pays off

Jennifer Kahn’s wage dispute with Three Tomatoes Trattoria, where she’s worked as a server since 1990, has been resolved — much to her satisfaction.

A hearing officer with the New Hampshire Department of Labor ruled earlier this month that the downtown Lebanon restaurant needed to write her a check for $13,754. It brings Three Tomatoes’ payout to the 59-year-old Kahn to more than $27,000 in connection with a 2023 state investigation into the restaurant’s unlawful “mandatory tip sharing policy.”

Under a 2007 New Hampshire law, a restaurant can’t force servers to share a portion of their tips with bartenders, table bussers and other restaurant workers. Tip pooling, as it’s also called, must be voluntary.

Three Tomatoes’ General Manager Louise Clark, who is a minority owner in the business, testified at Kahn’s hearing on Feb. 6 that the restaurant — one of the Upper Valley’s most popular dining spots — didn’t know it was breaking the law for more than 15 years.

After acknowledging during last year’s state investigation that it was in the wrong, Three Tomatoes sent out two “wage adjustment” checks to current and former servers. (It also paid a $500 state fine.)

But Kahn and another server, Kesia LaBreck, of Lebanon, continued to press the matter with the labor department. Since neither had a lawyer, and Three Tomatoes did, Kahn figured the odds of her and LaBreck prevailing in their hearings held two weeks apart weren’t great. “It’s pretty rare that (workers) in our situation win,” Kahn said.

A lot of restaurants take advantage of labor laws that allow them to pay servers less than minimum wage — $7.25 in New Hampshire — as long as servers can make up the difference through tips. Timothy Fischer, the state hearing officer in both cases, noted in his ruling that Kahn and LaBreck were both earning $5 an hour.

Article continues after...

Yesterday's Most Read Articles

Lebanon warns taxpayers to budget for larger bills
Hartford man held without bail following weekend standoff and shelter-in-place advisory
Woodstock’s first Pride brings community together
Man gets DUI at Vermont Veterans Memorial Cemetery
NH federal court strikes down ‘banned concepts’ teaching law
Art Notes: River City Rebels is an older and wiser punk band

By requiring servers to pool tips, Three Tomatoes “benefited from this scheme by being able to have one group of employees (servers) help to cover the labor costs for three other groups (bussers, bartenders, and hosts),” Fischer wrote.

While Kahn and LaBreck, 34, didn’t get all they asked for, including interest on their wage claims, they came out ahead of other servers who didn’t seek hearings. This week, LaBreck learned that Fischer had awarded her $6,962 in liquidated damages, bringing her total to almost $14,000. In validating the claims for liquidated damages, Fischer wrote that both women had shown “by a preponderance of evidence that wages which were due were paid late willfully and without good cause.”

Three Tomatoes has 20 days to appeal the decisions in state Superior Court. At least in Kahn’s case, that appears unlikely. On Tuesday, she found a check for $13,734 in her Canaan mailbox.

On Friday, I emailed Three Tomatoes’ attorney Brad Wilder, of Lebanon, to ask whether the restaurant planned to appeal. I didn’t hear back.

Kahn, who has a full-time job as a school secretary, continues to work four dinner shifts a week.

LaBreck, who told me she was “terminated” in December after working at Three Tomatoes for more than two years, has filed a whistleblower complaint. LaBreck claims she was fired for bringing the mandatory tip sharing policy to the labor department’s attention. A hearing date hasn’t been set.

All politics is local

The Windsor County Republican Committee has officially crossed over into Trumpland.

In a voice vote, former President Donald Trump received the enthusiastic support of the roughly 70 Republicans who attended last Saturday’s county GOP meeting in Windsor. But before Windsor County Republicans could pledge their allegiance to the presumptive 2024 GOP presidential nominee, they had some house cleaning to take care of.

For months, Trump supporters have been maneuvering to oust John MacGovern, of Windsor, as county chairman. MacGovern, 71, doesn’t hide his disdain for the former president. Or Trump’s elected surrogates.

“I do not put party over country and I will never support anyone who does,” MacGovern told the GOP gathering on Saturday, referring to the Jan. 6, 2021, storming of the Capitol.

Recognizing that he was fighting a losing battle to steer Windsor County Republicans in a more moderate direction, MacGovern has been saying for a while that he planned to call a special election for last Saturday, and wouldn’t be a candidate. Lynn Baldwin, of Ludlow, Vt., won an uncontested race to replace MacGovern, who left the meeting immediately after the voice vote.

Even with MacGovern no longer in the picture, it’s still unclear if his opponents are done. A half dozen of his opponents, including Baldwin and county Vice Chairman August Murray, of Weathersfield, recently filed a civil lawsuit in Vermont Superior Court, claiming MacGovern’s election to the volunteer post by voice vote in October was “invalid” because the group’s bylaws weren’t strictly adhered to.

At a March 21 hearing on the matter, Judge H. Dickson Corbett showed little appetite for wading into the inner-party squabble. As of Thursday, however, court records showed the plaintiffs had still not dropped the suit, which also names Vermont GOP Chairman Paul Dame as a defendant. MacGovern told me that he and Dame had each received a “settlement offer,” from the plaintiffs’ attorney, Deborah Bucknam, a former vice chairwoman of the state GOP, on Wednesday. To make the lawsuit go away, they needed to sign a “confidential agreement,” MacGovern said.

“It was unacceptable, to say the least,” he told me. “The lawsuit is moot and any continuation is frivolous.”

A frivolous lawsuit? Where could Trump supporters have possibly gotten that tactic.

Jim Kenyon can be reached at jkenyon@vnews.com.