Friday, August 22, 2008, 10:52 AM

American Takes a Mulligan

Related Update: (8/26/08): Skycaps Try to Widen Classes in 2 Bag Suits

Related Update (8/22/08) : US Airways Seeks Emergency Exit From Skycaps Suit

Related Update: US Airways to replace skycaps at Dulles International Airport

Our post on May 20 ("Checking Out at Curbside") detailed the outcome of DiFiore v. American Airlines, Inc. But as the great philosopher warned, "It ain't over 'til it's over." Federal district judge William Young has ordered a retrial because of a misleading jury instruction, setting aside more than $283,000 of the $325,000+ verdict to eight skycaps who serviced American flights but were actually employed by G2 Secure Staff; the ninth successful plaintiff, who was a direct employee of the airline, gets to keep the money.

The new flight is occasioned by conflict over the proper interpretation of a Massachusetts tips statute; plaintiffs had argued, and the court had told the jury, that since the law creates liability for certain service charges paid to employers "or other persons" which aren't passed on to those who perform the services, American could be forced to pay over the fees to the skycaps. The confusion comes from the language of the statute itself: a fee charged by an "employer" can be recovered from the employer, while a fee paid by a consumer to "an employer or other person" can be recovered from the payee is the consumer expects the payment to be in lieu of a tip. The fees here were levied by the airline, not the plaintiffs' employer, and the court felt the jury might not have distinguished between the two portions of the tips law.

Not surprisingly, plaintiffs' counsel says the order is "overly technical," and a motion for reconsideration is expected. This comes on the heels of the dismissal of nationwide class action claims that a new no-tipping policy had been instituted in retaliation for the earlier litigation. Other aspects of the class action have been stayed pending final judgment in DiFiore - which now may be a good while off. Watch the monitor for further announcements; it promises to be a bumpy ride.

Read more from Employment Law360

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