Law
suit on tipping at Wynn thrown out
by
Howard Stutz, Las Vegas Gaming Wire
LAS
VEGAS, Nev. -- A District Court judge on Wednesday
tossed out a lawsuit brought by two dealers from Wynn Las
Vegas who sought to end the Strip casino's recently implemented
and much debated tip pooling policy. Attorneys for the dealers
said they plan to appeal the ruling to the Nevada Supreme
Court.
In
his decision, Judge Douglas Herndon said there was no contract
of employment between the dealers and Wynn, which meant that
Nevada law allows an employer to change any tip pooling policies.
Herndon noted that the company was not taking away tips, only
widening the pool of workers who share in the gratuities.
"The
judge followed the same arguments and agreed with the case
law that we had cited previously," said Brian Cohen,
a senior associate with Kamer Zucker & Abbott, the Las
Vegas law firm that researched the applicable law related
to the plan devised by Wynn executives. Lawyers for the casino
had previously called the policy "ironclad" and
said the company was acting within the law in implementing
a new tip pooling program for casino dealers.
"The
court outlined in every way that Wynn was within its right
to change its tip pooling policy," Cohen said. "It
was legal under the law, and the court agreed with our interpretation."
Reno
attorney Mark Thierman, who represents the dealers along with
Las Vegas attorneys Leon Greenberg and James Kemp, said that
an appeal would be filed with the Nevada Supreme Court, but
that it could take up to six months or a year for the matter
to be heard.
Thierman
believes the judge erred in his ruling.
"Basically,
what the court said was that individuals can't sue for their
own tips. That's ridiculous," he said. "An employer
can't take back somebody's money and put it in their own pocket."
In
September, Wynn began the tip pooling program, in which table
game supervisors shared in the tips earned by dealers. Wynn
executives said the move was done to correct what had been
a widening disparity between the wages earned by dealers and
casino floor supervisors.
Some
dealers at Wynn estimated their annual take-home wages would
be cut 10 percent to 20 percent. Table-game supervisors were
given a boost in salary and were allowed a percentage of the
tips to bring their compensation up to what dealers were earning.
The
casino also instituted a bonus program for dealers.
Gaming
insiders immediately viewed the move as controversial because
it set aside typical casino policy in which dealers collect,
pool and distribute among themselves any tips earned on the
casino floor. Because Wynn has significant high-end casino
play, the range between what dealers earned and what salaried
casino supervisors took home was far greater than at other
Las Vegas resorts.
Soon
after the policy was implemented, more than 100 Wynn dealers
formally complained about the program to the State Labor Commissioner,
who rejected their protests on Sept. 13. That same day, two
Wynn dealers filed a lawsuit in District Court and sought
class-action status on behalf of more than 500 dealers affected
by the new program.
The
dealers, Daniel Baldonado and Joseph Cesarz, said the casino's
policy violated Nevada state law covering tip pooling. The
lawsuit asked that the tip pooling program be halted and the
dealers be paid any wages they lost because of the policy.
Baldonado
and Cesarz are still employed at the casino.
Ruling
from the bench, Herndon dismissed the complaint, saying case
law that dealt with changes to tip pooling at Caesars Palace
almost two decades ago was sufficient language for Wynn to
implement a new program with its dealers.
The
crux of the matter, Thierman said, was taking a portion of
the dealers' tips and giving the money to casino supervisors.
"The
supervisors are not there for customer service," he said.
"They are making sure the dealers are doing their job.
With this (tip pooling program), you get divided loyalties."
Before
dismissing the lawsuit, Herndon granted the case class-action
status. He also removed Wynn Resorts Chairman Steve Wynn and
Wynn Las Vegas President Andrew Pascal as defendants in the
lawsuit.
Pascal,
who attended the hearing, said afterward that he hoped the
dealers would end the legal action. Company leaders, he said,
thoroughly researched the issue before implementing the new
policy.
"We
were comfortable and continue to feel comfortable that nothing
illegal is being done," Pascal said. "We hope today's
ruling, along with the Labor Commissioner's ruling, sends
a message to our employees that we were within our legal rights,
and we want to move forward and not look backward and make
the best of the current situation."
Pascal
said the casino has not lost any dealers because of the new
policy. He added that more than 30 dealers have applied for
open casino floor supervisory positions.
Since
the program was enacted, dealers throughout Las Vegas have
expressed concern that other casinos might follow Wynn's lead.
The day after Thanksgiving, several dozen dealers marched
in front of Wynn Las Vegas in protest of the tip pooling program.
So
far, no other casino operators have moved toward enacting
a similar policy.
"We've
been on record that we wouldn't implement the program,"
said MGM Mirage spokesman Alan Feldman, whose casino company
operates 10 Strip resorts.
On
a Web site maintained by Wynn dealers to inform fellow dealers
about any events in the case, a statement said the lawsuit
would continue despite Herndon's ruling.
"Overall,
how did it go? It was a first step and it's definitely not
over," said a posting on www.wynndealers.com. "We've
known the whole time that no matter who lost, the case would
be appealed to the state Supreme Court. We've had our practice
and now we've seen what we're up against."
