Cutting the deck on tips

Thursday, Sept. 28, 2006 | 7:59 a.m.

It's about 10 p.m., well into the swing shift at Wynn Las Vegas. At a blackjack table, a player is up a few hundred and tips the dealer a $25 chip.

What happens next to that chip is the subject of a hot legal debate that has implications well beyond Wynn Las Vegas and the casino industry - including, perhaps, valets and housekeepers.

Should the dealer who receives that toke share it with the other dealers working in the pit? Or with a dealer he barely knows with a dull personality and a lousy morning shift?

For years, casinos - and most dealers - have said yes. But what about the floorman who supervises the dealer and does little more for the gambler than shake his hand, watch him play and make sure there's a full drink in his hand?

State and federal laws are murky about how tips can be shared, triggering lawsuits here and around the country by workers who don't agree with the system. In Massachusetts, the law that forbids managers from sharing tips generated by service workers such as valet drivers and baggage handlers has been strengthened to impose criminal penalties.

Federal law allows employees to pool tips but defers to states on whether management can require tip pooling. Nevada law doesn't specifically address that issue, but the state courts have allowed management to dictate tip pooling.

The question is, who exactly can get their hands on that tip pool?

Tip-pooling at Nevada casinos became the rule in the 1980s, to discourage the widespread practice of tip hustling and bribing supervisors for choice shifts as well as to attract dealers to tip-poor shifts.

At Wynn Las Vegas, all tips collected over a 24-hour period are split equally among the dealers who worked that day.

When the hotel recently ordered that card dealers' immediate supervisors, called floormen or service team leaders, be included in the tip pool, dealers complained that because floormen were part of management, they didn't have a right to the tips. Two dealers filed a class action lawsuit this month on behalf of their co-workers. (Under the new deal, boxmen, who supervise craps, are also tapping the tip pool.)

One of the attorneys representing the dealers, Reno labor lawyer Mark Thierman, says the practice violates state law.

"We have a statute that says you're not supposed to kick back tips to management. I think it's pretty clear. Tips belong to the employee, not the house."

But the practice has precedent in Las Vegas.

In 1999 floormen at the Resort at Summerlin were allowed by the labor commissioner at the time to dip into the tip pool, reasoning that they directly contributed to customer service. After dealers complained that their tips were being used to subsidize management salaries, the ensuing sour publicity prompted the casino to exclude floormen from the dealer tip pool.

A blackjack dealer who didn't like sharing tips with floormen tried in 1995 to change state law but failed to win support with legislators after the casino industry opposed the idea.

One sponsor of that bill, Assemblywoman Chris Giunchigliani, who is a Clark County Commission candidate, says state law needs to be clarified.

"The whole premise is that you make less in salary because you earn your tips," said Giunchigliani, a special education teacher who once worked as a waitress. "You should not be told who to give your tips to, especially if those people didn't earn them. I think the Legislature needs to protect people from sharing tips with someone who's not normally in the line of service."

The U.S. District Court in 1975 ruled that multiple people can be in that line of customer service and deserve a cut of the tips. "For example, a busboy as well as a waitress contributes to the good service and well-being of a customer in a restaurant," it said. "Similarly, in a casino, the floormen, boxmen and cashiers all contribute to the service rendered to the player."

A California court similarly agreed recently that card-room shift managers were not entitled to a share of the tip pool but that floor managers - who work at the level between the dealers and shift bosses - were entitled.

Los Angeles labor attorney Dennis Moss, who is representing California dealers in class action suits, says his clients are different than, say, waitresses, busboys and bartenders who serve customers as a group.

"When a winning player tosses a chip to a dealer ... he is giving it to the dealer" and not a group of people, he said, because it is a sign of appreciation to the dealer for lucky cards.

While federal courts have concluded that tips can be pooled among workers who interact with customers, they've been ambiguous about what amount of interaction qualifies for a tip.

Floorpeople watch over several tables, greet customers and enroll them in tracking programs that earn comps for gambling losses, among other tasks. But one of their primary duties is overseeing the game. Floorpeople are the first line of defense for the casino to make sure that games are dealt properly and that players aren't cheating or counting cards - both activities that can hurt the bottom line.

Floorpeople are supervised, in turn, by pit bosses.

Wynn executives believe floor supervisors will serve gamblers better if they get tips, which also will make it easier to recruit new floorpeople from the ranks of dealers. (While dealers' tip income will drop by at least 10 percent, Wynn says, he will reward dealers up to $6,000 a year for good service.)

In a town where tips account for more than 80 percent of many workers' paychecks, there are plenty of examples of line workers who make more than their salaried supervisors.

"We're talking about this every day in my class," said Bill Werner, an assistant professor in employment law at UNLV's William F. Harrah College of Hotel Administration. "Everybody who is making tips in Nevada should be paying attention to this."

Food and drink servers customarily - and voluntarily - tip others, such as busboys and bartenders, to show their appreciation for quickly cleaned tables and properly made drinks.

Where might tip pooling occur next? Some tip earners say it's just a matter of time before tips are pooled among bellmen, valets and housekeepers, but unions will make sure managers won't share in them. (Dealers are not unionized.)

Werner says the latest spat illustrates the continuing debate over who earns customers' tips.

"Ultimately we have to deal legally with the question of when you throw money on the table, who are you giving it to? It's going to become a bigger issue before it goes away."