Dealer’s Attorney:
Wynn Owes Them $35 Million+
Tip pooling case on hiatus, to resume Aug. 18

By Fred Couzens
Las Vegas Tribune

Normally, you hear very little about anything coming out of the state labor commissioner’s office, but later this year Michael Tanchek is expected to make history and leave an indelible mark on the 78-year-old history of Nevada’s casino
industry, when he rules whether employers have a legal right to solely collect, count and redistribute dealer earned tips to not just the dealers but also to other nondealer casino workers on the floor.

Knowing a decision is forthcoming in a case stemming from a complaint by four past and current Wynn Las Vegas dealers who claim their employer, Wynn Las Vegas Hotel and Casino, unlawfully withheld tips they had earned, Lawrence Litman, the attorney for claimant and former Wynn Las Vegas dealer Meghan Smith, said in his opening remarks directed to Tanchek, “Mr. Commissioner, the eyes of the gaming world are watching these proceedings with great interest. This case will impact tip earners in all of Nevada.”

Attorney Leon Greenberg of Las Vegas who represents some of the Wynn Las Vegas dealers, including Joseph Cesarz, standing to Greenberg’s left, studies a wage and tip summary sheet offered as evidence by Steve Wynn’s attorneys during a break in the first of three days of hearings beginning July 7.

The dealer’s complaint that was filed with the labor commissioner originated from a filing with the state Supreme Court and a subsequent ruling that said the issue should be sent back to Tanchek’s office because that’s where issues like this are meant to be heard. Specifically, claimant Smith said she’s owed more than $8,300 in back tips from Sept. 1, 2006 to July 25, 2007, the day she quit. The three other claimants – Daniel Baldonado, Joseph Cesarz and Quyngoc Tang – are all still working at the Wynn casino, but have not stated how much in tips they’re owed.

To get back tips and any penalties for all affected dealers, Litman said in his opening remarks that the amount of tips wrongfully taken from the tip pool by Wynn management amounted to more than $20 million and that Wynn should be assessed another $15 million in penalties “for the continuing willful violation of the statute” and his client will seek an order “that these penalties be distributed amongst the dealers who throughout the last three years have suffered financial hardship through the illegal conduct of their employer.”

The first of three days of hearings to determine how the law – NRS 608.160 reads, in part, “It is unlawful for any person to take all or part of any tips or gratuities bestowed upon his employees” – should be interpreted began July 7 while about 50 union sympathizers – dealers at the Wynn Las Vegas are represented by Local 721 of the Transport Workers Union – demonstrated and waved to motorists outside the Grant Sawyer State Office Building on Washington Avenue.

At issue is whether a revised tip pooling policy Wynn put into place Sept. 1, 2006 is lawful. What he did was stop the dealers from enjoying 100 percent of their tips and instead created a personnel shift on the casino floor where floor supervisors and pit managers became “customer service team leaders” who, along with boxpersons, became eligible to share in all of the customer’s tips. Attorney Gregory Kamer representing Wynn Las Vegas maintained the new CSTLs came in more frequent contact with customers, assisted them when they could and contributed generously to the overall customer experience, which justified them participating in the tips pool.

“The team leaders were there “to assure a good gaming experience to the fullest extent they could provide,” Kamer said in his opening statement to Tanchek. The dealers, of course, disagree saying Wynn used their tips to pay the ineligible tips pool participants instead of paying the floor supervisors and pit managers out of his own pocket. There may be some truth in that assertion given that in a different proceeding – a trial with a federal administrative law judge in a National Labor Relations Board case over the summer of 2007 – Wynn management conceded the lower pay to floor supervisors and boxpersons was causing problems and had become a deterrent in getting qualified applicants.

“(Wynn) told the dealers that (the hotel’s) team leads were upset at the disparity in earnings between themselves and the dealers and, as they worked side-by-side with the dealers in serving customers, at their lack of participation in the dealers’ tips pool. In these circumstances, according to Wynn, (the hotel) believed it was rectifying a bad situation and felt it had made the ‘right’ decision,” according to the transcript of an Oct. 30, 2007 meeting Wynn had with the dealers.

The same transcript, in its opening remarks, stated “While the team leads and the dealers both would be “in the line of service” to the casino guests, a significant pay disparity existed between the floor supervisor position and that of dealer, with the former being paid at $60,000 per year and the dealers earning approximately $100,000 per year in combined wages and tips. Also, (Wynn Las Vegas) said it was experiencing difficulty in attracting enough qualified individuals to fill its (floor supervisor positions).”

The first half of the first hearing day dealt with sorting out and agreeing on the disposition of certain technicalities, with the afternoon and the two following days devoted to direct testimony from many of the 30 witnesses from both sides who had been scheduled to testify. When it became apparent on the second day that three days would not be enough time, Tanchek said the case would resume on Aug. 18 for four days if needed.

Tanchek explained that once the hearing is over, the court reporter will have a typed transcript ready for review by both sides in the case in about 30 days, then they’ll have a chance to file opposing rebuttals and following that, he’s required by law to issue a ruling within 30 days, which may or may not come before the end of the year. One of the more memorable statements made the first day came from Litman, who said “For the Wynn Casino, today is the day of reckoning.

It is the day that the truth is revealed. It is the day justice will be served. It is the day the mighty Wynn Casino’s tip pooling scheme will be exposed as a shameless money grab against hard working American men and women. Today is the day that no creative, wishful statutory interpretation will overcome the truth. The facts are undisputed, the law is crystal clear. The words of the applicable statutes are precise and not open for interpretation.”                     [up]