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Second Circuit — Tip Pools: Barenboim v. Starbucks; Winans v. Starbucks Corp.

By Daily Record Staff
Posted: 5:05 pm Mon, October 29, 2012

U.S. Court of Appeals for the Second Circuit

Tip Pools

Employer Agents

Barenboim v. Starbucks; Winans v. Starbucks Corp.
10-4912-cv; 11-3199-cv
Judges Winter, Raggi and Livingston

Background: The plaintiffs appealed from summary judgment awards in favor of the defendant. The plaintiffs, representing a putative class of Starbucks baristas, argued that the court erred in construing New York Labor Law section 196-d to prohibit the distribution of pooled tips to shift supervisors, who were purportedly agents of the defendant. Another class of plaintiffs representing assistant store managers argued that section 196-d required the defendant to include assistant store managers in its tip pools.

Ruling: The Second Circuit certified a question to the New York Court of Appeals. The court determined that the cases turned on the proper construction of section 196-d. The Court of Appeals had yet to construe the meaning of the word “agents” under the statute or to decide whether an employer may exclude a tip-earning employee from receiving distributions from a common tip pool.

Shannon Liss-Riordan of Lichten & Liss-Riordan for Jeana Barenboim and Jose Ortiz; Lewis M. Steel of Outten & Golden for Eugene Winans, Michael Bienthcs, Reynolds Mangones, Matthew Taber and Kristen Tomaino; Rex S. Heinke of Akin Gump Strauss Hauer & Feld for the defendant-appellee

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