Fenton v. Harper

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Fenton v. Harper

KAITLYN FENTON v. RAYMOND HARPER
ET AL.
(AC 47711)
Suarez, Seeley and Wilson, Js.

Syllabus

The plaintiff, who had been employed as a server and bartender at a restau-
rant owned and operated by the defendants, appealed from the trial court’s
judgment granting the defendants’ motion to strike her putative class action
complaint, which alleged, inter alia, violations of state minimum fair wage
regulations (§ 31-62-E3 et seq.) that were in effect in 2015. Held:

The trial court properly granted the defendants’ motion to strike, this court
having previously determined that there was no private cause of action pursu-
ant to statute (§ 31-68 (a)) for violations of the recordkeeping requirements
in § 31-62-E3 of the 2015 regulations, the plaintiff’s complaint was legally
insufficient in that the statute (§ 31-60 (d) (4)) governing wage claims man-
dated that actions filed after September 24, 2022, be adjudicated pursuant
to the applicable regulation (§ 31-60-2), the legislature’s amendment (P.A.
22-134) to § 31-60 did not violate due process, and, because this court’s con-
clusion in the companion case of Farias v. Rodriguez (238 Conn. App. 287)
thoroughly resolved the plaintiff’s claims, this court adopted the reasoning
and conclusions in that decision.

Argued November 13, 2025—officially released March 31, 2026

Procedural History

Action to recover damages for the defendants’ alleged
violations of minimum wage laws and regulations, and
for other relief, brought to the Superior Court in the judi-
cial district of Hartford and transferred to the Complex
Litigation Docket, where the court, Noble, J., granted the
defendants’ motion to strike, and the plaintiff appealed
to this court; thereafter, the court, Noble, J., granted the
plaintiff’s motion for judgment, and the plaintiff filed
an amended appeal; subsequently, this court dismissed
the plaintiff’s original appeal. Affirmed.
Richard E. Hayber, for the appellant (plaintiff).
Fenton v. Harper

James T. Shearin, with whom were Dana M. Hrelic
and, on the brief, Ryan A. O’Donnell, for the appellees
(defendants).

Opinion

SUAREZ, J. This appeal is a companion case to Far-
ias v. Rodriguez, 238 Conn. App. 287, A.3d (2026),
which we also decide today. The plaintiff, Kaitlyn Fenton,
brought this putative class action1 complaint, individu-
ally and on behalf of others who were similarly situated
as employees of Maggie McFly’s restaurants (Maggie
McFly’s), alleging violations of Connecticut wage laws
and regulations. See General Statutes § 31-60;2 see also
Regs., Conn. State Agencies § 31-62-E1 et seq. (2015)
(repealed September 24, 2020).3 Specifically, the plaintiff
1
Prior to certification as a class pursuant to Practice Book § 9-9, a
complaint alleging claims on behalf of a class is commonly referred to
as a “putative” class action. See, e.g., Del Rio v. Amazon.com Services,
Inc., 354 Conn. 151, 152, 349 A.3d 570 (2026).
2
General Statutes § 31-60 provides in relevant part: “(b) The Labor
Commissioner shall adopt such regulations, in accordance with the provi-
sions of chapter 54, as may be appropriate to carry out the purposes of
this part. Such regulations . . . shall recognize, as part of the minimum
fair wage, gratuities in an amount (1) equal to twenty-nine and three-
tenths per cent, and . . . effective January 1, 2015, and ending on June
30, 2019, equal to thirty-six and eight-tenths per cent of the minimum
fair wage per hour for persons, other than bartenders, who are employed
in the hotel and restaurant industry, including a hotel restaurant, who
customarily and regularly receive gratuities . . . .
“(d) . . . (4) Notwithstanding any other law or regulation, any claim
brought under this subsection, section 31-68 as it relates to gratuities
as part of the minimum wage or section 31-62-E3 of the regulations
of Connecticut state agencies filed after September 24, 2022, shall
be adjudicated, solely, under section 31-60-2 of the regulations of
Connecticut state agencies effective on September 24, 2020, and any
amendments thereto. . . .”
3
The plaintiff’s complaint alleges violations of only §§ 31-62-E3 (old
E3) and 31-62-E4 (old E4) of the 2015 Regulations of Connecticut State
Agencies. Following the practice of the parties and the trial court, we
refer to the plaintiff’s claims in counts one and two of her operative
complaint as alleging violations of old E3 and old E4, respectively.
Fenton v. Harper

alleged that the defendants4 violated (1) § 31-62-E35
(old E3) of the 2015 Regulations of Connecticut State
Agencies (2015 regulations) by, inter alia, failing to
properly record the amount claimed as a percentage of
the minimum fair wage (tip credit)6 they would otherwise
be required to pay with respect to each server, and (2) §
31-62-E47 (old E4) of the 2015 regulations by improperly
deducting a tip credit from her earnings and paying her
and other similarly situated employees less than the
4
The plaintiff named Raymond Harper; Gold Harp, Inc.; Maggie
McFly’s 5, Inc.; Golden Harper Restaurant Group, Inc.; Maggie’s
Glastonbury, Inc.; Chew-Chews, Inc.; and Maggie’s Management Group,
Inc., as defendants in this action. It is not disputed that these defendants
share identical interests in this appeal. For convenience, we refer to all
of the defendants collectively as the defendants and to the corporate
defendants collectively as the defendant entities. We refer to Harper
by name when necessary.
5
Section 31-62-E3 of the 2015 Regulations of Connecticut State
Agencies (repealed September 24, 2020) provided in relevant part:
“Gratuities shall be recognized as constituting a part of the minimum
fair wage when all of the following provisions are complied with . . .
(b) the amount received in gratuities claimed as credit for part of the
minimum fair wage shall be recorded on a weekly basis as a separate item
in the wage record even though payment is made more frequently, and
(c) each employer claiming credit for gratuities as part of the minimum
fair wage paid to any employee shall obtain weekly a statement signed
by the employee attesting that he has received in gratuities the amount
claimed as credit for part of the minimum fair wage. Such statement
shall contain the week ending date of the payroll week for which credit
is claimed. . . .”
6
“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).” (Internal
quotation marks omitted.) Rodriguez v. Kaiaffa, LLC, 337 Conn. 248,
259 n.11, 253 A.3d 13 (2020).
7
Section 31-62-E4 of the 2015 Regulations of Connecticut State Agen-
cies, which was repealed effective September 24, 2020, 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 allowances for gratuities may be applied as part of
the minimum fair wage.”
Fenton v. Harper

minimum wage for the performance of “nonservice”
work.8 The plaintiff appeals from the judgment of the
trial court rendered in favor of the defendants follow-
ing its granting of the defendants’ motion to strike.
The issues presented in this appeal are identical to those
presented in Farias. For the reasons stated in Farias,
we conclude that the trial court correctly determined
that (1) General Statutes § 31-689 does not provide a
private cause of action for a recordkeeping violation
under old E3 of the 2015 regulations, (2) No. 22-134 of
the 2022 Public Acts (P.A. 22-134)10 did not retroactively
8
Effective September 24, 2020, §§ 31-60-2 and 31-62-E3 of the Regu-
lations of Connecticut State Agencies were each amended to provide in
relevant part that “the amount received in gratuities claimed as credit
for part of the minimum fair wage shall be recorded on a daily, weekly,
or bi-weekly basis in a wage record, even though payment is made more
frequently . . . .” See Regs., Conn. State Agencies §§ 31-60-2 (2) and
31-62-E3 (b).
Also effective September 24, 2020, § 31-62-E3a of the Regulations
of Connecticut State Agencies (regulations) was added. Section 31-62-
E3a changed an employer’s obligation to segregate an employee’s time
for nonservice duties to provide that such time must be segregated
only when a service employee performs nonservice employee duties
for “two hours or more,” or “[f]or more than 20 percent of the service
employee’s shift, whichever is less . . . .” Regs., Conn. State Agencies
§ 31-62-E3a (a) (1) and (2).
The plaintiff does not dispute that she has not alleged any violations
of the version of E3 contained in the regulations (new E3), or “new E4,”
the latter of which is now codified at § 31-62-E3a of the regulations.
See footnote 3 of this opinion.
9
General Statutes § 31-68 (a) (1) provides: “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, (A) 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 (B) 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.”
10
In May, 2022, the legislature enacted P.A. 22-134, titled, “An Act
Concerning Employee Record Keeping,” which includes the provision
relevant to this appeal. Public Act 22-134 amended § 31-60 (d) by add-
ing subdivision (4), which provides: “Notwithstanding any other law or
Fenton v. Harper

take away the plaintiff’s cause of action under the Con-
necticut Minimum Wage Act (minimum wage act),
General Statutes § 31-58 et seq., and (3) applying P.A.
22-134 to the plaintiff’s claims did not violate due pro-
cess.11 We therefore affirm the judgment of the court.
regulation, any claim brought under this subsection, section 31-68 as it
relates to gratuities as part of the minimum wage or section 31-62-E3
of the regulations of Connecticut state agencies filed after September
24, 2022, shall be adjudicated, solely, under section 31-60-2 of the
regulations of Connecticut state agencies effective on September 24,
2020, and any amendments thereto.”
11
The plaintiff also claims that the trial court incorrectly concluded
that (1) her “follow-on” class action does not relate back to the filing of
three prior putative class actions brought against the defendants, even
though those cases did not result in the denial of class certification, and
(2) Governor Ned Lamont’s Executive Order No. 7G expired on March
1, 2021, by operation of Governor Lamont’s Executive Order No. 10A,
rather than on May 20, 2021. See Guerrera v. Harper, Superior Court,
judicial district of Hartford, Complex Litigation Docket, Docket No.
CV-XX-XXXXXXX-S; Nowak v. Harper, Superior Court, judicial district
of Hartford, Complex Litigation Docket, Docket No. CV-XX-XXXXXXX-S;
O’Connor v. Harper, Superior Court, judicial district of Hartford,
Complex Litigation Docket, Docket No. CV-XX-XXXXXXX-S.
In her tolling claims, the plaintiff asserts that the United States
Supreme Court’s decision in American Pipe & Construction Co. v. Utah,
414 U.S. 538, 94 S. Ct. 756, 38 L. Ed. 2d 713 (1974), which was adopted
by our Supreme Court in Grimes v. Housing Authority, 242 Conn. 236,
244, 698 A.2d 302 (1997), together with Governor Lamont’s executive
orders, tolled the applicable two year statute of limitations in General
Statutes § 52-596.
We need not address these claims, however, in light of our disposi-
tive conclusion that § 31-60 (d) (4) applies to the plaintiff’s claims and
that the plaintiff did not comply with its requirements. See General
Statutes § 31-60 (d) (4) (“any claim brought under this subsection,
section 31-68 as it relates to gratuities as part of the minimum wage or
section 31-62-E3 of the regulations of Connecticut state agencies filed
after September 24, 2022, shall be adjudicated, solely, under section
31-60-2 of the regulations of Connecticut state agencies effective on
September 24, 2020, and any amendments thereto”). Thus, even if we
were to agree with the plaintiff’s tolling claims, the plaintiff still would
not prevail because, pursuant to § 31-60 (d) (4), any claims filed after
September 24, 2022, must be adjudicated solely under § 31-60-2 of the
regulations, and, in the present case, the plaintiff alleged violations
of only old E3 and old E4.
Fenton v. Harper

The following facts, as alleged in the plaintiff’s
complaint,12 and procedural history are relevant to our
resolution of this appeal, which presents similar issues
to those presented in Farias. The plaintiff was employed
by Maggie McFly’s at its Manchester location as a server
and bartender from approximately October, 2018, until
approximately July, 2019. The plaintiff alleged that the
individual defendant, Raymond Harper, is the sole owner
of all Maggie McFly’s restaurants in Connecticut and that
the defendant entities operate several Maggie McFly’s
locations in Connecticut. The plaintiff further alleged
that the defendants function as a single, integrated
enterprise and collectively have the status of a single
employer of the plaintiff pursuant to Connecticut wage
laws. At all relevant times, the defendants maintained
a common practice at all of their Maggie McFly’s Con-
necticut restaurants to take the full tip credit against the
wages of their servers and bartenders. Accordingly, the
defendants paid their servers $6.38 per hour, and their
bartenders $8.23 per hour, rather than the full minimum
wage.13 The defendants assigned the plaintiff, and other
similarly situated servers and bartenders, “nonservice
duties,” which included setting up before the restaurant
is opened to the public, and “side work” that they were
required to perform during their serving shifts and after
they had finished their shifts. This side work included,
but was not limited to, brewing coffee; emptying coffee
baskets after brewing; stocking coffee supplies; cleaning
iced tea containers; filling ice bins; stocking sugars, kids’
cups, and salt and pepper at server stations; wiping down
and organizing storage shelves; cleaning glass, windows,
and mirrors; and stocking lemons, creamers, milk, apple
12
“For purposes of reviewing a motion to strike, we take the facts
alleged in the complaint as true.” (Internal quotation marks omitted.)
Ferrua v. Napoli Foods, Inc., 237 Conn. App. 23, 25 n.5, 349 A.3d 620
(2025), petition for cert. filed (Conn. March 6, 2026) (No. 250349).
13
During the alleged claim period of July 9, 2018, until September 23,
2020, a “minimum fair wage” was defined in § 31-58 (i) (1) as not less
than $10.10 per hour effective January 1, 2017; as not less than $11
per hour effective October 1, 2019; and as not less than $12 per hour
effective September 1, 2020.
Fenton v. Harper

juice, and chocolate syrup. The side work tasks related to
the operation of the restaurant generally and were not
performed by servers specifically for their own customers.
In October, 2022, the plaintiff commenced the pres-
ent putative class action against the defendants, on
behalf of herself and other Maggie McFly’s servers and
bartenders employed during the alleged class period, for
violations of Connecticut wage laws and regulations.14
The plaintiff’s complaint contains two counts. In count
one, the plaintiff alleged that the defendants violated
old E3 by failing to record properly the amount claimed
as credit in the wage record for her and other servers on
a weekly basis, and by failing to obtain “tip statements”
on a weekly basis confirming that the plaintiff received
sufficient tips to satisfy the tip credit that the defen-
dants took each week. In the second count, the plaintiff
alleged that the defendants violated old E4 by failing to
segregate her and other similarly situated servers’ and
bartenders’ service and nonservice duties. The plaintiff
alleged an applicable claim period for her class action
claims15 under old E3 and old E4 from July 9, 2018, until
September 23, 2020.
In February, 2023, the defendants filed a motion to
strike both counts of the plaintiff’s complaint pursuant
to Practice Book § 10-39,16 together with an accompa-
nying memorandum of law. The defendants contended,
14
As noted previously, the present case is the fourth putative class
action brought against the defendants on behalf of servers and bartend-
ers asserting substantially similar class wide violations pursuant to
old E3 and old E4. See footnote 11 of this opinion. Each of those prior
actions was withdrawn after the parties reached a settlement. At the
time each prior action was withdrawn or dismissed, a motion for class
certification pursuant to Practice Book §§ 9-7 and 9-8 had not been
ruled on by the court.
15
It is not disputed that the plaintiff did not allege any individual
claims in her complaint but, rather, alleged only putative class action
claims.
16
Practice Book § 10-39 provides in relevant part: “(a) A motion to
strike shall be used whenever any party wishes to contest: (1) the legal
sufficiency of the allegations of any complaint, counterclaim or cross
claim, or of any one or more counts thereof, to state a claim upon which
relief can be granted . . . .”
Fenton v. Harper

first, that the complaint failed to state a claim on which
relief could be granted for violations of old E3 and old
E4. Second, the defendants asserted that the plaintiff’s
claims were barred by the two year statutory limitation
period set forth in General Statutes § 52-596.17 Finally,
the defendants argued that the plaintiff’s old E3 claims
should be stricken because the minimum wage act, as
amended by P.A. 22-134, did not provide a private right
of action with respect to those claims.
On March 24, 2023, the plaintiff filed a memorandum
of law in opposition to the defendants’ motion to strike,
along with exhibits, including, inter alia, relevant legisla-
tive history and certain of Governor Lamont’s executive
orders, which were issued during the COVID-19 pan-
demic. The plaintiff argued, inter alia, that P.A. 22-134
should not be construed to retroactively change old E3
and old E4, and that doing so would constitute a taking
of the class’ vested property interest in its members’
causes of action in violation of their due process rights.
As to whether old E3 conferred a private right of action,
the plaintiff asserted that the trial court should defer
ruling on that issue because, at that time, this court’s
decision in Nettleton v. C & L Diners, LLC, 219 Conn.
App. 648, 296 A.3d 173 (2023), had, as of the time of the
plaintiff’s briefing before the trial court, not yet been
released.18 On April 10, 2023, the defendants filed a reply.
On April 24, 2023, with the permission of the court, the
plaintiff filed a surreply. On June 6, 2023, before oral
argument on the defendants’ motion to strike, Nettleton
was released by this court. See id.
On June 26, 2023, the parties appeared before the
court, Noble, J., for oral argument.19 On January 2,
17
General Statutes § 52-596 provides in relevant part: “No action for
the payment of remuneration for employment payable periodically shall
be brought but within two years after the right of action accrues . . . .”
18
In Nettleton v. C & L Diners, LLC, supra, 219 Conn. App. 653, one
of the issues presented was whether § 31-68 (a) provides a private cause
of action for a recordkeeping violation under old E3.
19
The defendants argue that the plaintiff’s claim is unpreserved
for review by this court because the plaintiff did not challenge the
Fenton v. Harper

2024, the court granted the defendants’ motion to
strike. The court noted that it was presented with an
identical motion to strike in Farias v. Rodriguez, Docket
No. X07-CV-XX-XXXXXXX-S, 2023 WL 9054493 (Conn.
Super. December 29, 2023), aff’d, 238 Conn. App. 287,
A.3d (2026), and stated that, for the same rea-
sons that it had articulated in that case, the defendants’
motion to strike in the present case was granted. In
its decision in Farias v. Rodriguez, supra, 2023 WL
9054493, *3, as to count one, which alleged violations
of old E3, the court concluded that it was bound by this
court’s decision in Nettleton v. C & L Diners, LLC, supra,
219 Conn. App. 678, which held that “the recordkeeping
requirements in § 31-62-E3 (b) and (c) of the regulations
are directory and, therefore, that the defendant’s non-
compliance with those requirements does not invalidate
the tip credit and does not give rise to a private cause of
action.”
In its decision in Farias v. Rodriguez, supra, 2023 WL
9054493, as to count two, which alleged violations of old
E4, the court, Noble, J., agreed with the defendants that
the plaintiff’s complaint was legally insufficient. See id.,
*
8. The court concluded that the plaintiff’s complaint was
legally insufficient in light of the court’s determination
that § 31-60 (d) (4) mandates that “all actions filed after
September 24, 2022, must be adjudicated pursuant to §
31-60-2 of the regulations.” (Emphasis in original.) Id.
The court also rejected the plaintiff’s argument that the
application of P.A. 22-134 constituted a taking of the
plaintiff’s vested property interest in violation of due
process. See id., *8–11.
On January 3, 2024, the plaintiff filed a motion to
reargue, to which the defendants objected. The trial court
applicability of Nettleton v. C & L Diners, LLC, supra, 219 Conn. App.
648, to the present case before the trial court. At the time the plaintiff
filed her opposition to the defendants’ motion to strike, however, this
court’s decision in Nettleton had not yet been released. Furthermore,
Nettleton was discussed by the parties’ counsel at oral argument on the
motion to strike. Therefore, we conclude that the plaintiff’s claim was
properly preserved.
Fenton v. Harper

denied the motion to reargue, and the plaintiff appealed
to this court. Thereafter, the trial court granted the
plaintiff’s motion for judgment on June 27, 2024, and
the plaintiff filed an amended appeal.20
As stated previously in this opinion, the issues raised by
the parties and the merits of the underlying arguments
presented in this appeal are essentially identical to those
considered in Farias, the companion case to the pres-
ent appeal. See Farias v. Rodriguez, supra, 238 Conn.
App. 287. In Farias, we first concluded that § 31-68 does
not provide a private cause of action for a recordkeeping
violation under old E3. See id., 299. Second, we rejected
the plaintiff’s claim that the application of § 31-60 (d)
(4) impermissibly took away the plaintiff’s substan-
tive cause of action under the minimum wage act. See
id., 308–309. Finally, we determined that, even if we
assume arguendo that P.A. 22-134 was retroactive as
applied, such retroactive application did not violate due
process. See id., 310. We reach the same conclusions in
the present case.
Our conclusions with respect to the issues presented
in Farias thoroughly resolve the claims in the present
appeal, and there is nothing in this case that would man-
date a result different from that which we reached in
Farias. See generally id., 299, 308–309, 310. We there-
fore adopt the reasoning and conclusions of that decision
herein. See, e.g., State v. Drakes, 321 Conn. 857, 864,
146 A.3d 21, cert. denied, 580 U.S. 927, 137 S. Ct. 321,
196 L. Ed. 2d 234 (2016); Minnesota Methane, LLC v.
Dept. of Public Utility Control, 283 Conn. 700, 712, 931
A.2d 177 (2007). Accordingly, we conclude that the trial
court properly granted the defendants’ motion to strike.
The judgment is affirmed.
In this opinion the other judges concurred.
20
On July 8, 2024, the defendants filed a motion to dismiss the plain-
tiff’s June 28, 2024 amended appeal on the ground that it was untimely.
This court denied the defendants’ motion and ordered, sua sponte, that
“the original appeal filed on June 10, 2024, is dismissed for lack of a
final judgment. The amended appeal may proceed.”