The POWER 30: Steven Andrew Smith

Tip pooling is the illegal practice of requiring employees who receive tips to share them with untipped employees. In 2018, Smith settled a class action against the Surly Brewing Co. in Minneapolis for $2.5 million, which provided about $11,600 to each class member, $15,000 to the lead plaintiff, and about $833,333 in attorneys’ fees.

An employer-mandated tip pool violates the Minnesota Fair Labor Standards Act. “These cases are everything I like,” Smith said. “[The employees] need help and they can’t do it individually.”
But individual cases are the mainstay of his practice right now. Smith is handling cases involving discrimination in executive-level discrimination. “It’s really attacking systems that have been in place for a long time,” Smith said.

Most of the time he finds facts that assist the plaintiffs, Smith said. Some industries are very clubby about how they do “business,” he said. He finds gender, race and age discrimination at the C-suite level.

It’s tricky to take on law firms, Smith noted. With 38 lawyers at his Minneapolis firm, Nichols Kaster, they tend to be conflicted out of representation. He has represented some in-house counsel.

As is often seen in discrimination cases, claims for reprisal or retaliation then ensue. Smith finds that many managers aren’t trained very well. “They are always surprised that it’s illegal to retaliate,” he said.

If managers don’t get retaliation, juries do, Smith said. “Juries understand it. Everybody understands it,” he said.

Although not all claims have to do with sex discrimination, Smith says the legal activity is a positive offshoot of the #MeToo movement that responded to sexual harassment. It lent courage to many plaintiffs, he said. He also sees a generational change. “Millennials are not putting up with it,” he said.

COVID brings other claims. Some workplaces are infected with what Smith calls “standard knucklehead behavior,” such as refusal to accommodate or refusal to wear masks. Cases stemming from being infected by the virus on the job may face causation challenges, Smith noted.

Smith is looking for the right case of an age-based adverse employment decision. The problem is proof in the absence of face-to-face interaction between employees and managers. But COVID provides a good cover for age discrimination, Smith asserts, where older workers seem to be furloughed or laid off precipitously. “Normally the cover would be business necessity. Layering COVID on top of that supplies a blanket of legitimacy.”