The controversial tip pooling program at Wynn Resorts’ Strip properties is alive and well.
That’s despite a ruling against it by a federal appellate court. The ruling by the 9th U.S. Circuit Court of Appeals sends the lawsuit back to District Court.
Dealers filed suit in 2009 in an attempt to eliminate tip-pooling in which tips earned by dealers were shared with table-game supervisors.
The program was enacted in 2006 at Wynn Resorts and brought to Encore when that resort opened in December 2008.
Ruben Garcia is a professor at UNLV's William S. Boyd School of Law. He told KNPR's State of Nevada the case revolves around Labor Department rules for tip employees.
Under the rules, tip pools can exist if the employees are making above minimum wage and if they are 'customarily and regularly receiving tips.'
According to Garcia, the Ninth Circuit ruled on the issue of minimum wage and sent the case back to District Court to decide whether the supervisors 'customarily and regularly' received tips.
The reason Wynn Resorts started pooling tips in the first place, according to Garcia, is that when tips were factored in the dealers were making more money than their supervisors.
“Rather than increasing the pay of the supervisors, they simply used the tips to equalize or in some cases change their salaries,” he explained. “It’s not about the minimum wage. It’s about the employer redistributing tips to not have to be responsible for raising the wages of the supervisors.”
KNPR News reached out to Wynn Resorts for statement, but we did not get a response.
Company spokesperson Michael Weaver did talk to the Las Vegas Review-Journal about the issue, saying attorneys were "studying our potential next steps."
Garcia said Wynn Resorts could appeal to the U.S. Supreme Court but the high court may not take it, especially since it only applies to seven states.
The company can also ask that the whole appeals court look at the issue.
For now, the practice continues and will continue, Garcia said, until a court orders it to stop or it is worked out by collective bargaining with the dealers' union.
Ruben Garcia, professor, UNLV’s William S. Boyd School of Law.