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Tolentino v. Starwood Hotels & Resorts Worldwide, Inc.

Supreme Court of Missouri, En Banc

August 19, 2014

Andro Tolentino, Appellant,
Starwood Hotels & Resorts Worldwide, Inc., et al., Westin Hotel Management, LP, Respondents

Appeal from the Circuit Court of Jackson County. The Honorable W. Brent Powell, Judge.

Tolentino was represented by Matt J. O'Laughlin and Amy P. Maloney of Holman Schiavone LLC in Kansas City.

The hotel was represented by Elaine Drodge Koch, Timothy J. Davis, Elizabeth Carver and Thomas E. Nanney of Bryan Cave LLP in Kansas City.

Richard B. Teitelman, Judge. All concur.


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Richard B. Teitelman, Judge.

Andro Tolentino appeals the circuit court's grant of summary judgment in favor of Starwood Hotels & Resorts Worldwide Inc. and Westin Hotel Management L.P (collectively, " Respondents" ). Tolentino filed suit pursuant to the Missouri Minimum Wage Law (MMWL), section 290.500,[1] et seq., alleging that Respondents, as his joint employer along with Giant Labor Services Inc., (" GLS" ), was liable for payment of the minimum wage. The court found that there were genuine issues of material fact regarding whether Respondents were Tolentino's employer. The circuit court entered summary judgment in favor of Respondents on grounds that Respondents adequately compensated Tolentino and that Respondents could not be liable for the alleged wage deficiency because it was caused by GLS's unforeseeable, illegal wage deductions.

As the circuit court determined, there are genuine issues of material fact precluding summary judgment on the issue of whether Respondents were Tolentino's employer. The judgment is reversed, however, because the MMWL imposes an individual statutory duty on each employer to pay the minimum wage. Therefore, if Respondents were Tolentino's employer for purposes of MMWL, GLS's illegal wage deductions do not absolve Respondents from their independent statutory duty to pay a minimum wage. The judgment is reversed, and the case is remanded.


Starwood owns Westin Hotel Management, which operates the Westin Crown Center in Kansas City, Missouri (" Hotel" ). Respondents contract with temporary staffing agencies to provide housekeepers on an as-needed basis. GLS was one of the staffing agencies that provided Hotel with housekeepers.

The contract between Respondents and GLS provided that Respondents would inform GLS how many housekeepers were needed and that GLS would provide them. Respondents paid GLS $5 for each room cleaned. GLS was responsible for paying the housekeepers in any manner that complied with applicable law. GLS paid Tolentino $3.50 per room cleaned.

In January 2008, federal law enforcement officials informed Respondents that GLS was under investigation for crimes including human trafficking, fraud in foreign labor contracting, money laundering, fraud and extortion. Over the course of approximately two years, Respondents cooperated with law enforcement in the investigation

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and prosecution of GLS and its owners.

In February 2008, GLS assigned Tolentino to work at Hotel as a housekeeper. In April 2008, Respondents notified GLS that they no longer wanted Tolentino to work as a housekeeper at Hotel because he failed to complete his work in a timely manner. GLS reassigned Tolentino to a different hotel.

During the pay period of April 12, 2008, through April 26, 2008 -- the last pay period during which Tolentino worked at Hotel -- Tolentino cleaned 122 rooms and earned $427 prior to deductions. Tolentino's net pay was $372.34 after deductions for federal and state income tax, social security, and Medicare. GLS deducted the remaining $372.34 from Tolentino's paycheck for visa fees. Tolentino's take-home pay was $0.

GLS and its owners subsequently were indicted on federal charges. Respondents never were accused of having any role in or knowledge of GLS's criminal conspiracy. Although the charges against GLS were dismissed due to lack of assets, GLS's principals were convicted of labor racketeering based in part on their withholding earned wages for visa fees. A federal court awarded Tolentino restitution in the amount of $3,150, which the criminal judgment identified as Tolentino's total loss.

On April 21, 2010, Tolentino filed a class action suit alleging that Respondents and GLS were his employers and that Respondents failed to comply with sections 290.502 and 290.505 of the MMWL. Tolentino alleged that GLS's practice of paying housekeepers based on the number of rooms cleaned, instead of hours worked, resulted in an illegal wage deficiency. Tolentino also alleged that he was deprived of minimum wage and overtime compensation because of the visa fees deducted from his paycheck.

Respondents moved for summary judgment. Respondents argued that they were not subject to MMWL liability because they were not Tolentino's employer. Respondents also asserted that, even if GLS's practice of paying its employees $3.50 per room could be attributed to them, the $427 Tolentino earned prior to deductions reflected a legal wage rate of $7.76 per hour. Finally, Respondents asserted that they could not be held liable for GLS's illegal wage deductions.

The circuit court granted Respondents' motion for summary judgment. The court concluded that genuine issues of material fact existed as to whether Respondents and GLS were Tolentino's employers. Although the court assumed that Respondents were Tolentino's employer, the court determined that Respondents were entitled to summary judgment for two reasons. First, the circuit court concluded that Respondents adequately compensated Tolentino. Second, the court determined that the only reason Tolentino did not receive the minimum wage was because of GLS's illegal deductions. The court held that ...

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