Nevada Complex Litigation

Wynn Dealers Lose Tip Pooling Lawsuit in Nevada Supreme Court

In September 2006, two Wynn Las Vegas dealers Daniel Baldonado and Joseph Cesarz filed a lawsuit claiming that the Wynn Las Vegas tip pooling policy violated Nevada State Law because it forced tip sharing between employees and management.

The lawsuit was thrown out by District Court Judge Douglas Herndon in December 2006 who stated in his decision that 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 dealers appealed, and yesterday, The Nevada Supreme Court upheld the lower court ruling.

On behalf of a unanimous Nevada Supreme Court, Justice Michael Douglas wrote:

“In Nevada, labor laws are to be enforced by the Labor Commissioner, who generally must hear and decide complaints that arise under those laws.  Accordingly, we can imply no private cause of action to enforce NRS 608.160, NRS 608.100, or NRS 613.120.  Further, in light of an available statutory remedy, appellants have no standing to independently seek declaratory relief regarding those statutes’ application.  And regarding appellants’ breach of contract claim, they failed to demonstrate a genuine issue of material fact because they failed to show that the March 28 policy constituted unalterable and enforceable terms of employment.
           
Accordingly, the district court properly granted the Wynn’s motion for summary judgment and denied appellants’ motion for partial summary judgment.  Finally, as appellants had reasonable grounds on which to assert their claims, the district court did not abuse its discretion in refusing to award attorney fees.  Consequently, we affirm the district court’s summary judgment and order denying attorney fees.”

The entire opinion can be viewed for 90 days HERE.

While this decision does not put the matter of the Wynn tip pooling policy to rest, it does remove the question from the courts and return it to the Nevada State Labor Commissioner.

Court of Appeals Answers Age Old Question....Employee or Independent Contractor?

In Varisco v.Gateway Science and Engineering, the California Court of Appeals upheld a Los Angeles Superior Court ruling which determined that Al Varisco was in fact an "Independent Contractor", not an employee of Gateway. Plaintiff Varisco alleged that the “at will” clause in his contract with Gateway established employee status.

From the opinion, which can be found HERE:

"Appellant Al Varisco sued respondent Gateway Science and Engineering for wrongful termination of employment and similar causes of action, all of which depended on the allegation that he had been Gateway's employee. Gateway moved for summary judgment on the ground that Varisco was not an employee, but an independent contractor. The trial court found for Gateway, and we affirm. All the undisputed facts add up to an independent contractor relationship. A single clause in the parties' letter
agreement which allowed either party to terminate at will did not transform that relationship into an employment relationship."

The Court of Appeals reviewed the following to before affirming Varisco’s status as an “Independent Contractor”.

Control is the principal factor in determining whether an individual worker is an employee or an independent contractor. "An independent contractor is 'one who renders service in the course of an independent employment or occupation, following his employer's desires only in the results of the work, and not the means whereby it is to be accomplished.'  Thus, the most significant question in the independent contractor/employee determination is "'whether the person to whom service is rendered has the right to control the manner and means of accomplishing the result desired.

Case law has identified secondary indicia of the nature of the relationship. These are:

(a) whether the one performing services is engaged in a distinct occupation or
business;

(b) the kind of occupation, with reference to whether, in the locality, the work is
usually done under the direction of the principal or by a specialist without supervision;

(c) the skill required in the particular occupation;

(d) whether the principal or the worker
supplies the instrumentalities, tools, and the place of work for the person doing the work;

(e) the length of time for which the services are to be performed;

(f) the method of payment, whether by the time or by the job;

(g) whether or not the work is a part of the regular business of the principal;

(h) whether or not the parties believe they are creating the relationship of employer-employee."

Related Citations may be found in the opinion document.  If you have questions related to employment law problems, feel free to contact the Law Office of William E. Cooper.

Please Note:  While the above information can be beneficial for the purpose of employment law, the IRS definition of Independent Contractor status remains to be a question best answered by a Certified Public Account (CPA) or Tax Law professional.