Monday, August 9, 2010
California Supreme Court Holds Labor Code Section 351 Does Not Provide Employees A Private Right of Action to Recover Tips: Lu v. Hawaiian Gardens Casino, Inc
On August 9, 2010, the California Supreme Court issued its opinion in Lu v. Hawaiian Gardens Casino, Inc, __ Cal.4th __ (2010), concluding “section 351 does not contain a private right to sue.” As reasoned by the Court, Section 351 does not contain an enabling provision, or language susceptible of legislative intent to afford employees a private right to sue. That was not the end of the story, however, as the Court held that Section 351’s acknowledgement that employees have a property right to tip income provided other avenues on which to adjudicate a violation of that right, such as a claim for conversion. The opinion was silent as to whether Section 351 could serve as a predicate violation under the unlawful prong of the UCL.