Casino company Wynn Las Vegas urged a Nevada federal judge to trim claims that the casino caused unjust enrichment to itself by stealing tips, telling the court that the claim is duplicative of and preempted by state and federal wage claims.
In a motion Friday to cut individual and collective conversion and unjust enrichment claims, Wynn argued that the claims were premised on alleged violations of the Fair Labor Standards Act and Nevada’s Labor Code. Because worker Sheila Little also asserted claims for wages under the FLSA, the company argued that state law unjust enrichment causes of action were redundant.
Wynn seeks to shake part of a lawsuit removed to federal court in July. In her complaint, Little accused Wynn of violating the FLSA and illegally enriching itself at employees’ expense by siphoning to ineligible managers 5% to 15% of tips pooled by workers.
Although tip pools are not necessarily illegal under the FLSA, the statute declares that tips are the exclusive property of nonmanagerial workers.
The company argued Friday that Little’s FLSA cause of action provides her with an adequate avenue for relief. Both claims derive from the casino operator’s use of an allegedly improper tip pool, the company said, and require examination of identical bodies of evidence.
That Little accused Wynn of violating workers’ state law rights to tips as well as their FLSA rights is insufficient to establish standing for unjust enrichment claims, Wynn argued.
Wynn noted that, like the FLSA, Nevada state law also precludes employers from taking employees’ tips. However, Wynn said, the state law did not provide workers with a private right of action, and the Nevada Supreme Court ruled in 2008’s Baldonado v. Wynn Las Vegas LLC 
that only the state could sue employers for tip law violations.
”If the alleged tip pool theory is based upon Nevada law … plaintiff must bring such claims before the Nevada Labor Commissioner,” the company said. “Consequently, plaintiff’s claims for conversion and unjust enrichment must be dismissed.”
Kaine Messer, counsel for Little, said in a statement Monday that Wynn’s arguments have little traction.
“We are aware of no controlling Ninth Circuit case law compelling the judge to dismiss any of our claims,” Messer said. “An individual … can seek recovery under alternate theories.”
Representatives of Wynn did not immediately respond to a request for comment.
Little is represented by Christian J. Gabroy and Kaine Messer of Gabroy Messer and Mark R. Thierman, Joshua D. Buck, Leah L. Jones and Joshua R. Hendrickson of Thierman Buck LLP.
Wynn is represented by Michael Freimann, Jeffrey Barr and Drake Mirsch of Armstrong Teasdale LLP.
The case is Little v. Wynn Las Vegas LLC et al., case number 2:23-cv-01150 in the U.S. District Court for the District of Nevada
–Additional reporting by Abby Wargo. Editing by Roy LeBlanc.
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