When Assemblyman Joe Hogan, D-Las Vegas, first introduced Assembly Bill 141, a bill to ban mandatory “tip pools” at all Nevada businesses, I had mixed feelings.
I was glad that somebody in official Nevada finally had the gumption to stand up and say the “tip pooling” policy that Steve Wynn had implemented at the Wynn Las Vegas starting in 2006 was wrong. Wynn had designated his pit bosses as “casino team leads,” and had instituted a mandatory expansion of an already-existing card dealer tip pool to include the former supervisor positions. This was done in order to boost the salary of the team leads, which in many cases was lower than card dealers because of tips.
Dealers objected, claiming the mandatory pool was a violation of NRS 608.160(1) and (2), which reads:
1. It is unlawful for any person to:
(a) Take all or part of any tips or gratuities bestowed upon the employees of that person.
(b) Apply as a credit toward the payment of the statutory minimum hourly wage established by any law of this State any tips or gratuities bestowed upon the employees of that person.
2. Nothing contained in this section shall be construed to prevent such employees from entering into an agreement to divide such tips or gratuities among themselves.
Now, this law seems fairly clear on its face, so long as we’re using the dictionary definition of “take,” which means, among other things, “to get by conquering; capture; seize” (Webster’s New World Dictionary, 3rd College Ed.). Nevada’s labor commissioner certainly didn’t think the word applied, given that Wynn wasn’t taking and keeping the tips for himself, but rather taking and redistributing the tips to his workers.
Note to Nevada residents: I would not try robbing a liquor store and then distributing the money to the poor and then telling Metro Police robbery detectives that you were not “taking” the money, and therefore it cannot be illegal under Nevada law. That would probably not work.
But here’s where the mixed feelings come in: If current state law does ban mandatory tip pools — and I think it does — then doesn’t introducing a law to ban the practice necessarily admitting that state law is not clear on its face? Yes, we can say that we’re clarifying or strengthening the law all we like, but if you’re advocating to change the law to ban something you say is already illegal, you’ve got a little explaining to do. That point became especially acute in 2011, when a Clark County District Court judge ruled that, in fact, existing law does ban Wynn’s mandatory tip pool. (That case is on appeal to the Nevada Supreme Court. For his part, Wynn defends the policy as a legitimate business practice, and points out that after the card dealers at his hotels unionized, the final contract — negotiated over four years — leaves the tip pooling policy intact. The dealers union says refusing would have meant a strike, with workers losing their jobs and being replaced.)
In any case, I endorsed the idea of Hogan’s legislation in a Review-Journal column, and hoped the bill would at least get a hearing.
But no: AB 141 died an ignominious death on Friday, when a deadline for bills to pass out of their committees came and went. It was never even mentioned in the Assembly’s Commerce and Labor Committee.
During brief interviews in Carson City, Commerce and Labor Committee Chairman Assemblyman David Bobzien, D-Reno, told me labor groups had disagreements about the bill, with the dealer’s union, the Transport Workers Union Local 721, supporting it, but other labor groups such as the Culinary Union Local 226 siding with Wynn on the issue. (The Culinary has a signed contract and good relationship with Wynn.) And while agreement among labor groups is not required to hold a hearing on a bill, politically it made the issue more difficult.
I asked Danny Thompson, executive secretary-treasurer of the AFL-CIO of Nevada, about the bill, and he told me the same thing: He stayed far away from the bill because it was a point of contention between two of his constituent unions. Again, understandable, but I would have loved to see Thompson’s force and fury directed at a policy such as Wynn’s if his groups were united against it. Talk about a clash of the titans.
But since no other hotel-casino has instituted such a policy, and because only one union is against it, the bill predictably died. That means the one chance — the only chance, really — that card dealers at the Wynn have left for reversing the policy rests with the Supreme Court. Oral arguments on the case have been set for this summer, and a ruling is expected sometime thereafter.
Does “take” mean “take”? Does the policy violate the spirit and/or the letter of current law? Should the laws be changed to prevent such policies? State lawmakers outside of Hogan and his three co-sponsors (Assembly members Andrew Martin, D-Las Vegas; Harvey Munford, D-Las Vegas; and Michael Spinkle, D-Sparks) couldn’t be bothered even to ask those questions, so now, it’s up to the courts.