Seyfarth Synopsis: An unpopular DOL regulation that prohibits employers from retaining customer tips received another blow this summer. The Tenth Circuit joined the Fourth Circuit and several district courts in holding that the FLSA does not require employers to turn over customers’ tips to employees so long as those employees are paid at least minimum wage. And parting ways with the Ninth Circuit, the court also struck down a DOL rule regulating tips even when employers do not take a tip credit.

In Marlow v. The New Food Guy, Inc., a unanimous Tenth Circuit panel (decided by two judges instead of three due to Justice Gorsuch’s ascension) held that an employer that pays its employees at least minimum wage does not violate the FLSA by retaining customer tips. The Tenth Circuit first found that the catering company, Relish, complied with the FLSA by paying the employee $12 an hour, which is above minimum wage, and held that Section 203(m) of the FLSA, which regulates tips when tips are used to satisfy the minimum hourly wage, does not apply in this case.

The Tenth Circuit also rejected a DOL regulation promulgated in 2011 that states: “Tips are the property of the employee whether or not the employer has taken a tip credit under section 3(m) of the FLSA.” 29 C.F.R. § 531.52. The Ninth Circuit upheld this regulation in Oregon Restaurant & Lodging Association v. Perez, but the regulation has been rejected by several district courts. In this case, the Tenth Circuit concluded that the DOL tip rule exceeds the DOL’s discretion, which it can only exercise in instances of statutory silence or ambiguity. The Tenth Circuit found no silence or ambiguity in whether the FLSA regulates tips of employees who are paid at least minimum wage. The plain language of the FLSA “does not direct the DOL to regulate the ownership of tips when the employer is not taking the tip credit.”

In a footnote, the opinion picks up on a point that we have argued is fatal to the DOL’s tipping regulation: there’s no remedy for violating it. Even if an employer keeps customer tips, what can its employees recover under the FLSA? Nothing more than the minimum wage owed to them, which, if they receive cash wages of more than minimum wage, they already have received. The FLSA creates a private cause of action for violations of the minimum wage and overtime requirements. The FLSA does not create any remedies for withheld tips.

Now that a circuit split has emerged on whether the DOL tipping rule can stand, we will wait to see if Justice Gorsuch will finally have a chance to weigh in on the issue with his eight new colleagues.