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Section 196-d of the New York State Labor Law prohibits an employer or his “agent” from participating in a tip pool intended for employees. At issue in Barenboim v. Starbucks Corporation, No. 10-4912-cv, (“Barenboim”), is whether a Starbucks “shift supervisor” is an “agent,” and, thus, not permitted to share in tips with baristas, over whom they exercise limited supervisory functions. At issue in a related case, Winans v. Starbucks Corporation, No. 11-3199-cv, (“Winans”) is whether “assistant store managers,” whom Starbucks does exclude from participation in the tip pool, must be permitted to share in tips pursuant to section 196-d of the New York State Labor Law.

The issue in Barenboim turns on the meaning of the term “agent.” In Winans, the issue is whether New York Labor Law ยง 196-d, although prohibiting certain classes of employees from participating in a tip pool, mandates that certain employees be included.

Both cases were filed in federal District Court for the Southern District of New York. The lower courts dismissed both cases, and the plaintiffs appealed. The Second Circuit Court of Appeals determined that because the issues were novel under New York State law, it would defer their determination and certify them for resolution to New York’s highest court — the New York State Court of Appeals.

Following a two-week trial, a jury returned a verdict finding that the employer had subjected a class of female employees to a sexually hostile work environment. The jury awarded compensatory and punitive damages to the class of employees who had been sexually harassed. The court, however, declined to impose injunctive relief to ensure that the sexual harasser would not be in a position to harass women in the future.
The Second Circuit Court of Appeals, which covers New York, Connecticut and Vermont, reversed and held that under the circumstances of the case, injunctive relief was necessary to prevent future sexual harassment.
In Equal Employment Opportunity Commission v. KarenKim, Inc., 11-3309-cv, the Second Circuit determined that the employer had not adopted adequate measures to ensure that the sexual harassment would not recur. The court noted that the sexual harasser and owner of KarenKim were involved in a romantic relationship, which meant that he might still have access to the employees even if he were no longer technically employed as a supervisor. In addition, the court noted that the complaint procedure adopted by KarenKim to prevent future sexual harassment following the lawsuit was ineffective in that it required that complaints be made in writing and within 30 days of the alleged harassment in order to be acted upon. This coupled with the fact that the initial sexual harassment went unchecked for years prompted the Second Circuit to order the New York federal district court to impose the injunctive relief requested by the EEOC.

Salvatore G. Gangemi has been named by Super Lawyers list as one of the top attorneys in New York State for 2012. No more than 5 percent of the lawyers in the state are selected by Super Lawyers.

Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a rigorous multi-phased process that includes a statewide survey of lawyers, an independent research evaluation of candidates, and peer reviews by practice area.

The Super Lawyers lists are published nationwide in Super Lawyers magazines and in leading city and regional magazines across the country. Super Lawyers magazines also feature editorial profiles of attorneys who embody excellence in the practice of law. For information about Super Lawyers, go to

Despite that employers have become increasingly more aware of blatant employment discrimination in the workplace, pregnancy discrimination continues to thrive. The Huffington Post recently posted an article discussing several pregnancy discrimination cases recently filed by the U.S. Equal Employment Opportunity Commission (“EEOC”). It appears that pregnancy discrimination has become an enforcement priority for the EEOC, which will likely be filing additional cases in the near future.

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