Barenboim v. starbucks, Winans v. Starbucks Corp.
698 F.3d 104
2d Cir.2012Background
- Barenboim and Ortiz (Barenboim) seek to bar shift supervisors from tip pools under NY Labor Law §196-d; Winans seeks ASM inclusion in tip pools under the same statute.
- Starbucks posts tip jars; tips are pooled and distributed to baristas and shift supervisors; managers and ASMs are excluded from pools.
- District court granted summary judgment that shift supervisors are not Starbucks agents under §196-d; and that ASMs may be excluded from pools.
- Barenboim argues supervisors are agents and thus ineligible; Winans argues ASMs are not agents and should share in pools.
- Hospitality Wage Order (2011) may govern tip pools and includes captains who provide direct service; questions arise about retroactivity and applicability.
- Court defers ruling and certifies questions to New York Court of Appeals to resolve the meaning of 'agent' and 'supervisor' and the scope of the Hospitality Wage Order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Who is an 'agent' under §196-d? | Barenboim: supervisors are agents and may not retain tips. | Starbucks: supervisors are not agents unless final authority is shown; ASMs may or may not be agents. | Questions certified to NY Court of Appeals; no ruling on agent status. |
| Can ASMs participate in tip pools under §196-d? | Winans: ASMs are eligible and must be included if not agents. | Starbucks: ASMs are not entitled to tip-pool distributions if they are agents or not similar employees. | Questions certified to NY Court of Appeals; no ruling on ASM inclusion. |
| Does the Hospitality Wage Order govern and retroactivity apply? | Regulations ultra vires if they broaden the pool to captains; liberal interpretation favors employees. | Order supports pooling where employees are primarily engaged in customer service; may be controlling. | Certification sought to NY Court of Appeals; retroactivity and interpretation unresolved. |
Key Cases Cited
- Shamrir v. Smith & Wollensky Rest. Grp., Inc., 659 F.3d 234 (2d Cir. 2011) (statutory purpose limits sharing with non-direct-service staff)
- Samiento v. World Yacht Inc., 10 N.Y.3d 70 (N.Y. 2008) (liberal construction of §196-d in favor of employees; service charges discussed)