Second Circuit Defers Decision and Certifies Questions Arising Under New York Labor Law to New York Court of Appeals

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 § 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.
Consequently, these fact-specific issues will remain unresolved for now.

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