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March 17, 2016
The fun stops at Dave & Buster’s: Employee’s ERISA lawsuit allowed to proceed

By Jennifer Carsen, JD, Legal Editor

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Dallas-based Dave & Buster’s is sort of like Chuck E. Cheese’s for grown-ups: Each location features a restaurant, sports bar, and arcade. It’s a fun place—but not necessarily for the folks who work there, if one employee’s claims are valid.

Maria De Lourdes Parra Marin worked full-time at the Dave & Buster’s in New York’s Times Square from 2006 to 2013. Her hours ranged from 30 to 45 per week, and she was enrolled in the company’s health insurance plan.

But in June 2013, Marin alleges, in response to the Affordable Care Act’s play-or-pay mandate, Dave & Buster’s cut her hours to an average of just 17.43 a week—resulting in both a loss of pay and ineligibility for the medical and vision benefits she had previously enjoyed.

Marin filed a lawsuit in federal court alleging illegal interference with her right to health care coverage protected by the Employee Retirement Income Security Act (ERISA).

The Southern District of New York denied Dave & Buster’s motion to dismiss the case, noting two meetings at the Times Square location in which company leaders stated, in so many words, that the ACA would cost the company “two million dollars” and that they would be reducing the number of full-time employees in an effort to avoid that expense. There was also evidence that similar meetings were held at other Dave & Buster’s locations.

“The critical element,” the court noted, “is intent of the employer—proving that the employer specifically intended to interfere with benefits.” As Marin “sufficiently and plausibly” alleged this element of intent, Dave & Buster’s motion to dismiss the case was denied. (Marin v. Dave & Buster’s et al., SDNY 1:15-cv-03608, 2/9/16)

We’ll keep you posted. In the meantime, employers covered by the ACA can refer to this case as a textbook example of how not to respond to the threat of rising healthcare costs.

JenJennifer Carsen, JD,is a Legal Editor for BLR’s human resources and employment law publications, focusing on benefits compliance. In the past, she served as the managing editor of California Employer Resources (CER), BLR’s California-specific division, overseeing the content of CER’s print and online publications and coordinating live events and webinars for both BLR and CER.

Before joining CER in 2005, Ms. Carsen was a Legal Editor at CCH, Inc. and practiced in the Labor & Employment Department at Sidley & Austin, LLP in Chicago. She received her law degree from the New York University School of Law and her B.A. from Williams College. She is licensed to practice law in New Hampshire.

Questions? Comments? Contact Jen at for more information on this topic

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