from the United States District Court for the District of
Colorado (D.C. No. 1:15-CV-02101-MEH)
G. Sypulski, Law Office of Jamie Golden Sypulski, Chicago,
Illinois (Clifford P. Bendau, II, The Bendau Law Firm,
Phoenix, Arizona, Douglas M. Werman, and Sarah J. Arendt,
Werman, Salas P.C., with her on the briefs), for
Gregory E. Givens, Gregory E. Givens Law Offices, Colorado
Springs, Colorado, for Defendants-Appellees.
Patricia Smith, Solicitor of Labor, Jennifer S. Brand,
Associate Solicitor, Paul L. Frieden, Counsel for Appellate
Litigation, and Sarah Kay Marcus, Senior Attorney, U.S.
Department of Labor, Washington, D.C., filed a brief for
TYMKOVICH, Chief Judge, BACHARACH and MORITZ, Circuit Judges.
MORITZ, Circuit Judge.
dismissing Aarica Romero's minimum-wage claim under
Fed.R.Civ.P. 12(b)(6), the district court relied on a single,
undisputed fact: Romero has never alleged that she earned
less than the federal minimum wage of $7.25 an hour-at least
after taking into account both (1) the cash wage that her
employer paid her and (2) all of the tips that she
received each week.
employer doesn't comply with its federal minimum-wage
obligations just because its employees receive at least $7.25
an hour in tips. Instead, an employer complies with its
minimum-wage obligations if it "pay[s]" its
employees at least $7.25 an hour in "wages." 29
U.S.C. § 206(a)(1)(C). And while an employer can treat
tips as wages under certain circumstances, see id.
§ 203(m), Romero asserts that her employer impermissibly
did so here.
district court declined to address this argument. But without
first resolving whether Romero's employer was entitled to
treat her tips as wages under § 203(m), the district
court couldn't have determined whether that employer
"pa[id]" Romero "wages" of at least $7.25
an hour under § 206(a)(1)(C). Accordingly, we reverse
and remand to the district court to make this threshold
determination in the first instance.
worked as a server for defendant Top-Tier Colorado LLC
(Top-Tier) at one of its restaurants. Rather than directly paying
Romero the federal minimum wage of $7.25 an hour,
see § 206(a)(1)(C), the defendants instead took
advantage of what's known colloquially as the "tip
credit": they paid Romero a "cash wage" of
$4.98 an hour and then used some of the tips that Romero
received to cover the gap between that cash wage and the
federal minimum wage, see Fast v. Applebee's
Int'l, Inc., 638 F.3d 872, 876 (8th Cir. 2011)
(explaining that tip credit "allows the employer to
avoid a larger cash payment to the employee as long as the
employee's tips make up the difference between $2.13 per
hour and the current minimum wage" (citing §
tip credit only applies to "tipped employee[s]."
§ 203(m). And during some of the hours she worked,
Romero performed what she describes as "non-tipped"
brewing tea, brewing coffee, rolling silverware, cleaning
soft drink dispensers, wiping down tables, setting tables,
busing tables, cutting and stocking fruit, stocking ice,
taking out trash, scrubbing walls, sweeping floors,
restocking to-go supplies, cleaning booths, cleaning
ramekins, sweeping, mopping, ...