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Arnold M. Knightly

Dealers to seek review of Wynn tip policy

2 February 2007

LAS VEGAS, Nevada -- After suffering an initial setback in District Court, two Wynn Las Vegas dealers are preparing to ask the state's high court to review the property's new tip pooling policy.

Also, a local assemblyman who believes the tip policy violates state statutes plans to look at clarifying the state laws when the Legislature convenes.

Attorneys representing Wynn Las Vegas received a notice of appeal Monday that Daniel Baldonado and Joseph Cesarz will take their case regarding Wynn's new tip pooling policy to the Nevada Supreme Court.

"We're not surprised," Wynn Las Vegas President Andrew Pascal said. "That is within their right to pursue further action."

On Dec. 6, District Court Judge Douglas Herndon dismissed a lawsuit brought by Baldonado and Cesarz after finding during a 70-minute hearing that dealers are not contract employees and that state law allows the property to change tip pooling policies.

"It's a nonevent. We expected them to appeal," said Greg Kamer of Kamer Zucker & Abbott, the local law firm that worked with Wynn executives in devising the new tip pooling policy.

Kamer, who was the lead attorney defending the policy during the court hearing, said the dealers have already lost twice and he is confident the Supreme Court will uphold the company's policy.

As part of a continuing review of the property's tip policy, Deputy Labor Commissioner Gail Maxwell is scheduled to return to Wynn Las Vegas next week for a follow-up review of the tip pooling policy. Maxwell initially visited the property last September when Labor Commissioner Michael Tanchek sent her and other officials to observe the new floor supervision organization.

While the District Court case was heard less than three months after its initial filing, the state Supreme Court case could take anywhere from 12 to 18 months to be decided.

Brian Cohen, a senior associate at Kamer Zucker & Abbott, said it could be late 2008 before a decision is handed down.

While the initial papers are being filed in the Supreme Court case, freshman Assemblyman Bob Beers, R-Henderson, is asking the Legislative Counsel Bureau to help draft language to tighten existing state laws so "that any judicial decision that is made has to be based on what the law clearly states."

"According to the statute, as it reads, the tips should belong to those who the tips are given to," said Beers. "If they should decide to pool the money that's their decision. These decisions were being taken ou t of their hands, in my opinion, in violation of existing code."

Beers said he has yet to meet with Wynn Las Vegas officials. But he added that from information he has gathered from dealers at the property he believes the new policy violates existing statutes.

The new assemblyman added that he has asked Herndon for his reasoning for tossing out the lawsuit but has yet to hear from him.

"The statute states, very simply, that no portion of the tips can be taken from the person that it is coming to," Beers said. "It seems ridiculously simple. Therefore, there was no judicial rational to toss the case out."

Pascal said that he had not heard of any new legislation. But he added that Wynn Las Vegas officials will monitor the session and advocate for the legality of the hotel-casino's current policy.