BRIDGETTE MARLOW, on behalf of herself and all similarly situated persons, Plaintiff - Appellant,
THE NEW FOOD GUY, INC., a Colorado corporation d/b/a Relish Catering & Events; BRETT TUCKER, Defendants - Appellees. UNITED STATES OF AMERICA, Amicus Curiae.
from the United States District Court for the District of
Colorado (D.C. No. 1:15-CV-01327-JLK)
D. Gonzales, The Law Offices of Brian D. Gonzales, PLLC, Fort
Collins, Colorado, for Plaintiff-Appellant.
Jennifer L. Gokenbach, Gokenbach Law, LLC, Denver, Colorado,
S. Koppel, Attorney, Appellate Staff (Benjamin C. Mizer,
Principal Deputy Assistant Attorney General, and Robert C.
Troyer, Acting United States Attorney, and Mark B. Stern,
with him on the brief), U.S. Department of Justice,
Washington, D.C., for Amicus Curiae.
HARTZ and EBEL, Circuit Judges. [*]
Bridgette Marlow sued her employer The New Food Guy, Inc.,
d/b/a Relish Catering, under the Fair Labor Standards Act
(FLSA). The FLSA requires employers to pay a minimum wage of
$7.25 per hour, see 29 U.S.C. § 206(a)(1)(C),
plus time and a half for overtime, see 29 U.S.C.
§ 207(a)(1). Relish paid Ms. Marlow $12 an hour and $18
an hour for overtime. So what is the problem? Ms. Marlow
claims that Relish was obligated to turn over to her a share
of all tips paid by catering customers. She relies on the
tip-credit provision of the FLSA, which is directed to
employers who satisfy their minimum-wage obligations in part
with tips retained by their employees, and on a regulation
promulgated by the Department of Labor (DOL) purportedly
interpreting that provision. We are not persuaded. We hold
that the tip-credit provision clearly does not apply in this
case and that the regulation is beyond the DOL's
authority. An employer that pays its employees a set wage
greater than the minimum wage does not violate the FLSA when
it retains tips paid by customers.
Marlow worked for Relish from October 2013 to November 2014.
Relish paid workers like Ms. Marlow a base wage of $12 an
hour ($18 for overtime). At the end of each catering event,
Relish accepted tips from customers paying their final bill.
But Relish did not supplement the hourly wage of its workers
with any share of the gratuity.
Marlow sued Relish and Brett Tucker, a manager and part
owner, in the United States District Court for the District
of Colorado, alleging that Relish had violated the
minimum-wage provisions of the FLSA. The district court granted
the defendants' motion for judgment on the pleadings. Ms.
Marlow moved for reconsideration, citing a DOL regulation
that prohibits employers from retaining employee tips. The
court denied the motion, implicitly determining that the
regulation was invalid. Exercising jurisdiction under 28
U.S.C. § 1291, we affirm.
shall see, under the clear text of the FLSA, restrictions on
employers' use of tips apply only when the employer uses
tips received by the employee as a credit against the
employee's minimum wage. If an employer pays more than
the minimum wage without regard to tips, the FLSA does not
restrict the employer's use of tips. The regulation
categorically barring employers from retaining tips is
invalid because it exceeded DOL's authority.
Marlow advances two arguments for reversal: (1) that Relish
violated the FLSA's tip-credit restrictions when it
retained the tips, and (2) that Relish violated a DOL
regulation prohibiting employers from retaining tips. We
begin with the statutory argument.