Cumbie v. Woody Woo, Inc.
| Decision Date | 23 February 2010 |
| Docket Number | No. 08-35718.,08-35718. |
| Citation | 596 F.3d 577 |
| Parties | Misty CUMBIE, on behalf of herself and all others similarly situated, Plaintiff-Appellant, v. WOODY WOO, INC., an Oregon corporation, DBA Vita Café; Woody Woo II, Inc., an Oregon corporation, DBA Delta Café; Aaron Woo, an individual, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Jon M. Egan, Lake Oswego, OR, argued the cause for the appellant and filed briefs.
Eric A. Lindenauer, Garvey Schubert Barer, Portland, OR, argued the cause for the appellees and filed a brief.
Maria Van Buren, United States Department of Labor, Washington, DC, argued on behalf of the Secretary of Labor as amicus curiae in support of the appellant. With her on the brief were Carol A. De Deo, Steven J. Mandel, and Paul L. Frieden.
Richard J. (Rex) Burch, Bruckner Burch PLLC, Houston, TX, filed a brief on behalf of the National Employment Lawyers Association as amicus curiae in support of the appellant. With him on the brief was Stefano Moscato, National Employment Lawyers Association, San Francisco, CA.
Eugene Scalia, Gibson, Dunn & Crutcher LLP, Washington, DC, filed a brief on behalf of the Nevada Restaurant Association as amicus curiae in support of the appellees. With him on the brief were Jesse A. Cripps, Jr. and Ann S. Robinson, Gibson, Dunn & Crutcher LLP, Los Angeles, CA; and Samuel P. McMullen and Erin McMullen, Snell & Wilmer LLP, Las Vegas, NV.
Kevin H. Kono, Davis Wright Tremaine LLP, Portland, OR, filed a brief on behalf of the Oregon Restaurant Association as amicus curiae in support of the appellees.
Appeal from the United States District Court for the District of Oregon, Paul J. Papak, Magistrate Judge, Presiding. D.C. No. 3:08-cv-00504-PK.
Before: DIARMUID F. O'SCANNLAIN and N. RANDY SMITH, Circuit Judges, and CHARLES R. WOLLE,* Senior District Judge.
We must decide whether a restaurant violates the Fair Labor Standards Act, when, despite paying a cash wage greater than the minimum wage, it requires its wait staff to participate in a "tip pool" that redistributes some of their tips to the kitchen staff.
Misty Cumbie worked as a waitress at the Vita Café in Portland, Oregon, which is owned and operated by Woody Woo, Inc., Woody Woo II, Inc., and Aaron Woo (collectively, "Woo"). Woo paid its servers1 a cash wage at or exceeding Oregon's minimum wage, which at the time was $2.10 more than the federal minimum wage.2 In addition to this cash wage, the servers received a portion of their daily tips. Woo required its servers to contribute their tips to a "tip pool" that was redistributed to all restaurant employees.3 The largest portion of the tip pool (between 55% and 70%) went to kitchen staff (e.g., dishwashers and cooks), who are not customarily tipped in the restaurant industry. The remainder (between 30% and 45%) was returned to the servers in proportion to their hours worked.
Cumbie filed a putative collective and class action against Woo, alleging that its tip-pooling arrangement violated the minimum-wage provisions of the Fair Labor Standards Act of 1938 ("FLSA"), 29 U.S.C. § 201 et seq.4 The district court dismissed Cumbie's complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), and Cumbie timely appealed.
On appeal, Cumbie argues that because Woo's tip pool included employees who are not "customarily and regularly tipped employees," 29 U.S.C. § 203(m), it was "invalid" under the FLSA, and Woo was therefore required to pay her the minimum wage plus all of her tips. Woo argues that Cumbie's reading of the FLSA is correct only vis-à-vis employers who take a "tip credit" toward their minimum-wage obligation. See id. Because Woo did not claim a "tip credit,"5 it contends that the tip-pooling arrangement was permissible so long as it paid her the minimum wage, which it did.
Although we ordinarily begin our analysis with the text of the relevant statute, we pause to elucidate a background principle that guides our inquiry: Williams v. Jacksonville Terminal Co., 315 U.S. 386, 397, 62 S.Ct. 659, 86 L.Ed. 914 (1942) (internal citations omitted) (emphasis added).6
Williams establishes the default rule that an arrangement to turn over or to redistribute tips is presumptively valid. Our task, therefore, is to determine whether the FLSA imposes any "statutory interference" that would invalidate Woo's tip-pooling arrangement. The question presented is one of first impression in this court.7
Under the FLSA, employers must pay their employees a minimum wage. See 29 U.S.C. § 206(a). The FLSA's definition of "wage" recognizes that under certain circumstances, employers of "tipped employees" may include part of such employees' tips as wage payments. See id. § 203(m). The FLSA provides in relevant part:8
In determining the wage an employer is required to pay a tipped employee, the amount paid such employee by the employee's employer shall be an amount equal to—
(1) the cash wage paid such employee which for purposes of such determination shall be not less than the cash wage required to be paid such an employee on August 20, 1996; and
(2) an additional amount on account of the tips received by such employee which amount is equal to the difference between the wage specified in paragraph (1) and the wage in effect under section 206(a)(1) of this title.
The additional amount on account of tips may not exceed the value of the tips actually received by an employee. The preceding 2 sentences shall not apply with respect to any tipped employee unless such employee has been informed by the employer of the provisions of this subsection, and all tips received by such employee have been retained by the employee, except that this subsection shall not be construed to prohibit the pooling of tips among employees who customarily and regularly receive tips.
We shall unpack this dense statutory language sentence by sentence. The first sentence states that an employer must pay a tipped employee an amount equal to (1) a cash wage of at least $2.13,9 plus (2) an additional amount in tips equal to the federal minimum wage minus such cash wage.10 That is, an employer must pay a tipped employee a cash wage of at least $2.13, but if the cash wage is less than the federal minimum wage, the employer can make up the difference with the employee's tips (also known as a "tip credit"). The second sentence clarifies that the difference may not be greater than the actual tips received. Therefore, if the cash wage plus tips are not enough to meet the minimum wage, the employer must "top up" the cash wage. Collectively, these two sentences provide that an employer may take a partial tip credit toward its minimum-wage obligation.
The third sentence states that the preceding two sentences do not apply (i.e., the employer may not take a tip credit) unless two conditions are met. First, the employer must inform the employee of the tip-credit provisions in section 203(m). Second, the employer must allow the employee to keep all of her tips, except when the employee participates in a tip pool with other customarily tipped employees.
Cumbie argues that under section 203(m), an employee must be allowed to retain all of her tips—except in the case of a "valid" tip pool involving only customarily tipped employees—regardless of whether her employer claims a tip credit. Essentially, she argues that section 203(m) has overruled Williams, rendering tip-redistribution agreements presumptively invalid. However, we cannot reconcile this interpretation with the plain text of the third sentence, which imposes conditions on taking a tip credit and does not state freestanding requirements pertaining to all tipped employees. A statute that provides that a person must do X in order to achieve Y does not mandate that a person must do X, period.
If Congress wanted to articulate a general principle that tips are the property of the employee absent a "valid" tip pool, it could have done so without reference to the tip credit. "It is our duty to give effect, if possible, to every clause and word of a statute." United States v. Menasche, 348 U.S. 528, 538-39, 75 S.Ct. 513, 99 L.Ed. 615 (1955) (internal quotation marks omitted). Therefore, we decline to read the third sentence in such a way as to render its reference to the tip credit, as well as its conditional language and structure, superfluous.11
Here, there is no question that Woo's tip pool included non-customarily tipped employees, and that Cumbie did not retain all of her tips because of her participation in the pool. Accordingly, Woo was not entitled to take a tip credit, nor did it. See Richard v. Marriott Corp., 549 F.2d 303, 305 (4th Cir.1977) (). Since Woo did not take a tip credit, we perceive no basis for concluding that Woo's tippooling arrangement violated section 203(m).12
Recognizing that section 203(m) is of no assistance to her, Cumbie disavowed reliance on it in her reply brief and at oral argument, claiming instead that "[t]he rule against forced transfer of tips actually originates in the minimum wage section of the FLSA, 29 U.S.C. § 206." Section 206 provides that "[e]very employer shall pay to each of his employees . . . wages" at the prescribed minimum hourly rate. Id. § 206(a).
While section 206 does not mention tips, let alone tip pools, Cumbie maintains that a Department of Labor ("DOL") regulation elucidates the meaning of the term "pay" in such a way as to prohibit Woo's tip-pooling arrangement. She refers to the regulation which requires that the...
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