Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Marlow v. The New Food Guy, Inc.

United States Court of Appeals, Tenth Circuit

June 30, 2017

BRIDGETTE MARLOW, on behalf of herself and all similarly situated persons, Plaintiff - Appellant,
v.
THE NEW FOOD GUY, INC., a Colorado corporation d/b/a Relish Catering & Events; BRETT TUCKER, Defendants - Appellees. UNITED STATES OF AMERICA, Amicus Curiae.

         Appeal from the United States District Court for the District of Colorado (D.C. No. 1:15-CV-01327-JLK)

          Brian D. Gonzales, The Law Offices of Brian D. Gonzales, PLLC, Fort Collins, Colorado, for Plaintiff-Appellant.

          Jennifer L. Gokenbach, Gokenbach Law, LLC, Denver, Colorado, for Defendants-Appellees.

          John 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.

          Before HARTZ and EBEL, Circuit Judges. [*]

          HARTZ, Circuit Judge.

         Plaintiff 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.

         I. BACKGROUND

         Ms. 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).[1] 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.

         Ms. 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.[2] 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.

         As we 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.

         II. DISCUSSION

         Ms. 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.

         A. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.