Workers Say Wynn Resorts Defies 9th Circuit

           LAS VEGAS (CN) – In defiance of law and a court order, Wynn Resorts continues forcing dealers to share tips with untipped workers, dozens of workers say in a federal class action.
     John Doe dealers say Wynn Resorts still forces them to share their tips with untipped workers, despite a Feb. 23 ruling from the Ninth Circuit that reversed and remanded a ruling that favored restaurant trade associations.
     In the new lawsuit, of March 4, the workers say they chose John Doe as lead plaintiff to protect them “from the notoriety and presumptive harassment that one of them would face” were his name revealed. They say there are at least 500 potential class members working at the Wynn and Encore casinos in Las Vegas.
     In the 7-page lawsuit, with 118 pages of signed consents to joinder, the workers say Wynn Resorts forces them to share their tips to increase the wages of workers who do not receive tips, in violation of the Fair Labor Standards Act.
     Wynn “effectively failed to pay any wages whatsoever … through the taking of a portion of the plaintiffs’ tips an amount far in excess of the amount it nominally pays” the dealers with Wynn Resorts’ own money, the dealers say in the complaint.
     The Fair Labor Standards Act once allowed such tip-pooling, but as of May 5, 2011, the U.S. Department of Labor revised its regulations and banned the practice if it forces workers to subsidize the wages of those who do not get tips. Employers still can pool tips among workers who customarily receive tips.
     Wynn Resorts, Steve Wynn and former Wynn Resorts President and COO Andrew Pascal were defendants in the previous class action, which the Ninth Circuit consolidated with a complaint from the Oregon Restaurant and Lodging Association et al., against the U.S. Department of Labor.
     The Ninth Circuit on Feb. 23 reversed a district court ruling that had invalidated changes the Labor Department made to its tip-pool regulations. The Ninth Circuit ruled that the Labor Department was within its regulatory authority when it changed its tip-pooling regulation and stopped employers from forcing workers to share their tips with untipped workers.
     Though Wynn and Wynn Resorts were defendants in that class action, which had virtually identical claims, the workers say in the new lawsuit that Wynn refuses to recognize their class claims.
     They seek relief for violations of the Fair Labor Standards Act, plus costs, attorney’s fees and any other relief the court decides is warranted.
     Their attorney Leon Greenberg told Courthouse News, “From an economic perspective, the casino is not really paying $7.25 an hour. The casino has taken even more from each dealer.”
     Through its tip-pool policy, Greenberg estimated Wynn Resorts annually takes between $15,000 and $20,000 from each of the about 500 plaintiff class dealers who work table games on the casino floor, including craps and roulette. Poker room dealers are not part of the class action.
     Greenberg said floor supervisors get money from the tip pool, but they don’t customarily receive tips.
     Wynn Resorts had not returned an emailed request for comment by Tuesday night and could not be reached by telephone.

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