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NCDA looks
to State Agencies for intervention
July 27, 1999
Mr. Steve DuCharme,
Chairman State Gaming Control Board
and
Ms. Gail Maxwell,
Acting Director State Labor Commission
555 E. Washington Avenue
Las Vegas, NV 89101
Subject: Petition re. The Resort At Summerlin (RAS), Licensee
Violations
Enclosures:
1) NCDA letter to RAS, dated
7/19/99
2) RAS letter to NCDA, dated
7/20/99
3) Las Vegas Sun news report, dated
7/21/99
4) OES gaming occupations report
The Nevada Casino Dealers Association (NCDA), by and for
its officers, and on behalf of its members, hereby petitions the
State Gaming Control Board and its Chairman and the Nevada Labor
Commission and its Acting Director to review and investigate
alleged violations of NRS 608.160 by The Resort At Summerlin, a
casino gaming establishment, as specified herein.
I. The Policy. The central issue of these charges is that
The Resort At Summerlin has established and implemented a policy
which takes dealer’s tokes and requires them to be given to
employees other than dealers. To facilitate this policy they have
chosen to disregard the state’s official and formal OES
(Occupational Employment Statistics) report(see enclosure 4) which
designates the occupational titles and mean wage scales of
nineteen categories of casino employees, from "General
Managers, Casino" to "Carousel Attendants, Slot
Machine" and all in between. In the report the
occupational titles of dealers and gaming supervisors are listed
separately from each other, as are all of the 19 listed
categories. The Resort At Summerlin, however, has combined the
"gaming supervisor" (floor person) and "blackjack
dealers" and "crap dealers" into one
classification, casino host, which is, itself, a separate category
in OES.
II. The Statute. NRS 608.160 makes taking employees tips
unlawful. To do anything other than require employees to pool
their tips would constitute "taking". The Resort at
Summerlin takes the dealer’s tips and counts them outside of the
dealers presence and then designates the tips to be split amongst
the employees known as "casino hosts", which includes
both dealers and gaming supervisors(floor people). By grouping
together dealers and gaming supervisors and calling them casino
hosts, they are causing dealer’s tips to be taken to subsidize
wages of employees not engaged in dealing a casino game, but
instead performing the function of gaming supervisors.
Casino hosts are paid at the rate of $7.75/hour, according to Mr.
Jim Fonseca, Senior Vice President and COO of RAS. Mr. Fonseca
further asserts that his Nevada legal counsel advised him that,
….."in order for us to be deemed to receive a legal benefit
from dealer’s tips we would have to keep some of the money in
the tip pool for ourselves." That is a false statement.
The very fact that Mr. Fonseca admits that he is paying floor
supervisors (even if he does wish to call them "casino hosts)
$7.75/hour, plus a share of dealer’s tips provides
prima facie evidence that the RAS is directly benefiting from
employees tips by
reducing their payroll costs by way of taking tips from dealers
and giving it to
non-dealers so the Resort can pay its floor people far below what
the industry pays these positions.
III. Case Law. We have three court decisions which address
this subject. They are:
1) Moen v. Las Vegas Int’l Hotel
Inc., 402 F. Supp. 157 (1975);
2) Alford v. Harolds Club, 99 Nev.
At 673, 699 P. 2d 721 (1983);
3) Cotter v. Desert Palace, Inc.,
880 F. 2d 1142, at 1145 (9th Cir. 1989)
In Moen, U.S. Federal District Court Judge Bruce Thompson
found that the statute was enacted….."to prevent the taking
of tips by an employer for the benefit of the employer."
(emphasis added)
In Alford, the Nevada Supreme Court expressly adopted the
Moen decision
supporting tip pooling as long as…… "the employer does
not retain any part of the tips for his own use or reap any direct
benefit from the pooling." (emphasis added)
In Cotter, the U.S. Ninth Circuit Court of Appeals once
again affirmed the employer’s right to impose tip pooling but at
the same time they emphasized, "Forced tip-sharing does not
violate Nevada law or policy so long as the employer does not
retain any part of the tips for his own use or reap any direct
benefit from the pooling." (emphasis added)
The RAS is paying non-tip earning employees(gaming
supervisors/floor people) far below what is standard in the
industry for these positions. The RAS is then taking dealer’s
tips and giving it to these non-tip earning gaming supervisors as
an added benefit. In so doing the RAS is reaping a direct benefit
from dealer’s tips, a condition expressly barred by both statute
and case law.
IV. A Condition of Employment. The Resort At Summerlin
requires dealers, as a condition of employment, to share their
tips with employees performing as gaming supervisors. NRS 608.160
states that employees may divide tips or gratuities among
themselves. It does give the employer the right to require dealers
to pool their tips among themselves as a condition of employment,
but it does not give the employer the right to require dealers, as
a condition of employment, to share their tips with employees
performing as gaming supervisors, i.e. floorpersons.
V. Las Vegas Sun News Report. In a news report(see
enclosure 3) in the July 21, 1999 issue of the Las Vegas Sun
titled, "Resort pay policy attacked", Ms. Gail Maxwell,
Acting State Labor Commissioner stated that the Association’s
allegations, if accurate, would violate state law and would
trigger a Labor Commission investigation. "Management can’t
be involved in tip pooling at all," Maxwell said. Mr. Jim
Fonseca, senior vice president and chief operating officer at RAS,
in fact, provides confirmation of the Association’s allegations
in the same news report. He said that the RAS does not have a
separate designation for floor people and dealers, rather the
Resort hires "casino hosts." He specifically questions
our assumption that dealers and floor people comprise two job
classifications, stating that the position of casino host includes
the skills attributable to both positions. His position, of
course, it at odds with the official OES Classifications and with
the job classifications and criteria used by all
other casinos and governmental entities within the state.
VI. Established Industry Standards. The standard in the
casino industry for the last quarter century has been to pay an
employee working as a floor person a higher pay rate with no tips,
and to pay an employee working as a dealer a lower pay rate with
tips, in accordance with NRS 608.160.
We have addressed this issue directly to the RAS (see enclosure
1). Their response was negative(see enclosure 2). It is our
position that the actions of The Resort at Summerlin on this issue
are ill-advised and unlawful and constitute a threat to the
stability and health of the gaming industry. If this policy were
allowed to stand it would undoubtedly spread to other casinos
seeking to lower payroll costs and maximize their profits by
tapping into the dealer’s toke box. This would cause unrest and
instability in the casinos themselves, and make the job of
regulating and monitoring the industry increasingly difficult for
the state agencies charged with that responsibility. It is because
we feel that both the law and good business sense dictates that
the RAS policy be reversed we feel confident that you will give
this petition the serious consideration that it deserves.
Respectfully,
Tony
Badillo, President
Jack M. Lipsman, Vice President
Nevada Casino Dealers Association
Nevada Casino Dealers Association
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