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StumbleJudge says banquet servers don’t qualify for overtime pay
Thursday, March 18, 2010 | 2:05 a.m.
Nevada hotel banquet servers aren’t entitled to time-and-a-half overtime pay under federal or state law, a judge in Las Vegas ruled.
Attorneys in the case on Wednesday offered dramatically different reactions to the lengthy ruling filed March 8 by Clark County District Court Judge Linda Bell.
Attorney Deanna Forbush represented Las Vegas Sands Corp.’s Venetian resort in the lawsuit filed against the Venetian by former banquet server Steven Csomos in January 2009. Csomos said he was paid for all hours worked, but he didn’t receive time-and-a-half pay for overtime.
Forbush said banquet workers would welcome the ruling because, even without overtime, many earn six-figure incomes.
She said the servers enjoy their flexible schedules that involve long hours some days, followed by plenty of time off between events.
Attorney Leon Greenberg filed the suit seeking class-action status against the Venetian and plans to appeal the ruling.
He said workers overall are the losers since hotels –- not having to pay overtime –- have an incentive to maintain a limited staff of servers. If the hotels had to pay overtime, they’d likely hire more servers to spread the work around to limit overtime pay, Greenberg said.
Greenberg also said the more the existing servers earn, the less the resorts have to pay overall for unemployment insurance and benefits. With additional servers, those expenses overall would increase.
Forbush, of the Las Vegas office of the law firm Fox Rothschild LLP, successfully argued two key points:
• Overtime disputes don’t belong in state court and instead must be filed with the state labor commissioner.
• Banquet servers are exempt from overtime pay, which has been the longtime industry practice.
“The court finds that (Nevada Revised Statute 608.018) provides no private cause of action for overtime compensation,” Bell wrote in her ruling.
Bell found that banquet servers are exempt from overtime under provisions in the law exempting retail sales people earning commission.
“Federal law defines retail establishments as hotels and restaurants,” Bell wrote. “The Venetian is a hotel and casino with a number of restaurants. Therefore, the Venetian would be included under the federal definition of a retail establishment. Further, federal case law has determined the service charge a banquet server earns is analogous to a commission.”
Bell added that the 2005 version of the law in question was open to a number of interpretations because the language was not clear.
The law was changed in 2009.
Looking at the legislative history, Bell noted testimony from two union officials about banquet industry practices. The Venetian is nonunion but apparently has banquet practices similar to union resorts.
Bell wrote that Pilar Weiss, political director of the Culinary Union at the time, testified the union favored changes to clarify any “misinterpretation that would lead to an unfortunate precedent of people not being brought on for banquet functions to avoid overtime.”
And Bell noted that Culinary Union member and state Sen. Maggie Carlton, also arguing for clarifications, said: “If the overtime provision were to apply (to banquet servers) they would work less...We are not talking about taking overtime away from employees, we would just allow the status quo to continue.”
The 2009 changes brought uniformity to federal and state labor law, both exempting banquet servers from overtime, Bell wrote.
Forbush on Wednesday said the ruling was significant in that if Csomos had prevailed in his lawsuit, the banquet industry would have had to change the way it operates.
“It was a very important case, really a case of first impression,” she said.
Greenberg, however, continued to argue that people with overtime claims should be allowed to file lawsuits instead of taking their cases to the labor commissioner.
The labor commissioner’s office, he said, was set up to help people who can’t afford attorneys and the office is understaffed, he said.
For those who can afford attorneys, he said, “the courthouse door should be open to them.”
Greenberg also said Bell misinterpreted the law in equating banquet servers with retail sales people earning commission.
“They don’t sell anything,” he said of the servers.
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Good point by Greenberg - how a waiter is likened to a cashier or retail employee is absurd. Overtime is overtime unless you're a salaried employee. If you're salaried then you work the hours - no matter what they are - and are guaranteed a steady income vs. hourly. If hourly - then you get your OT unless there's an understanding before you're hired that you won't get time and a half. I think that's the real question here.
The union wants the hotel to hire more workers to spread the work around. They are happy to have their employees make less as long as more bodies have to pay dues. What a load of garbage.
I hope the members are reading this and understand your union wants to cut your pay so they get more dues.
Unions are worthless, period.
PBR...They're not even that good.
Let's get real and see if we can apply this to FIREFIGHTERS!
i love how everyone forgets who brought us the weekend, oh
um
you mean
those
wreched unions?
oh
no
run for the hills.
Another win for Corporate America. The stooges that belittle the Union apparently do not know how to read. The Venetian is non union, so your arguements are without merit.
Banquet servers may very well be entitled to overtime pay but let's keep something in mind here: Banquet servers (and, really all F&B servers) make the vast majority of their income from gratuities, not their hourly wages, which often just cover income taxes (if that).
Requiring servers to be paid time-and-a-half for overtime hours would mean that employers just wouldn't permit them to work overtime. So, not only would the servers receive no overtime pay (since they wouldn't be working any overtime) they also wouldn't be able to make the additional gratuities and regular wages they would have made had they been able to work the additional hours.
In addition, some hotel banquet managers would decide to put fewer servers on particular events to avoid any overtime (not the right decision, of course, but just a reality when managers are - rightly - held accountable for the hours and overtime of their staffs). This could negatively impact the service experience of the guests.
So, even if it's technically the "right" thing to do, payment of overtime wages would hurt the hotels, the customers and the banquet servers themselves. In the long-run, everyone loses.