                               PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 14-1485


PATRICIO DAVID TREJO,

                Plaintiff,

MOHAMMAD SAZZAD JAHIR; ANTHONY MINTU GOMES,

                Plaintiffs – Appellants,

           v.

RYMAN HOSPITALITY PROPERTIES, INC., a Delaware corporation;
MARRIOTT INTERNATIONAL, INC., a Delaware corporation,

                Defendants – Appellees.

----------------------------

UNITED STATES OF AMERICA,

                Amicus Curiae.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, Senior District Judge.
(8:13-cv-02911-RWT)


Argued:   May 12, 2015                     Decided:   July 29, 2015


Before SHEDD, DUNCAN, and HARRIS, Circuit Judges.


Affirmed by published opinion.    Judge Shedd wrote the opinion,
in which Judge Duncan joined.     Judge Harris wrote a separate
opinion concurring in the judgment.
ARGUED: Charity Chidinma Emeronye Swift, SWIFT & SWIFT,
ATTORNEYS   AT   LAW,   P.L.L.C.,   Alexandria,   Virginia,  for
Appellants. Joshua B. Waxman, LITTLER MENDELSON, P.C., Houston,
Texas; Daniel Vincent Johns, BALLARD SPAHR LLP, Philadelphia,
Pennsylvania, for Appellees.      ON BRIEF: Stephen Christopher
Swift, SWIFT & SWIFT, ATTORNEYS AT LAW, P.L.L.C., Alexandria,
Virginia, for Appellants.   Steven E. Kaplan, Washington, D.C.,
David B. Jordan, LITTLER MENDELSON, P.C., Houston, Texas, for
Appellee Marriott International, Incorporated; Michelle M.
McGeogh, BALLARD SPAHR LLP, Baltimore, Maryland, for Appellee
Ryman Hospitality Properties, Inc.     Rod J. Rosenstein, United
States Attorney, Baltimore, Maryland, Joyce R. Branda, Acting
Assistant Attorney General, Michael Jay Singer, John S. Koppel,
Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Amicus United States of America.




                               2
SHEDD, Circuit Judge:

       Mohammad Sazzad and Anthony Gomes (the Plaintiffs) 1 brought

this       action     against        their       employers,      Ryman   Hospitality

Properties          Inc.,     and       Marriott     International,      Inc.     (the

Defendants), alleging violations of the tip-credit provision of

the Fair Labor Standards Act (FLSA), 29 U.S.C. § 203(m), their

collective bargaining agreement, and Maryland’s Wage Payment and

Collection      Law.        For   the    following      reasons,    we   affirm   the

district court’s dismissal of the complaint.

                                             I.

       The Plaintiffs work as servers for hotels and restaurants

at   the     National       Harbor      complex    in   Prince     George’s   County,

Maryland. 2 The properties were previously owned by Ryman but are

currently owned and operated by Marriott. The Plaintiffs are

also members of the UNITE HERE, Local 25 union. Although the

servers       have     not        voluntarily       agreed    to     a   tip-pooling

arrangement, the Plaintiffs allege that the Defendants take a



       1A third plaintiff, Patricio Trejo, did not file an
appearance on appeal and was dismissed pursuant to Local Rule 45
for failure to prosecute.
       2The facts are taken from the Plaintiffs’ complaint.
Because we are reviewing the district court’s grant of a Rule
12(b)(6) motion to dismiss, we accept the allegations in the
complaint as true and construe them in the light most favorable
to the Plaintiffs. See Coleman v. Maryland Court of Appeals, 626
F.3d 187, 189 (4th Cir. 2010).



                                             3
portion of their tips—roughly 4% of the total daily food and

drink sales—and redistribute those tips to bartenders, server

assistants,     busboys,     and    food       runners.      (J.A.     11-12).        Sazzad

eventually asked a union official if the tip-pooling arrangement

was legal and was told that it was not.

     In     response,      the     Plaintiffs         filed        suit    against         the

Defendants, alleging that the tip-pooling arrangement violated

the FLSA, 29 U.S.C. § 203(m), the 2009 Collective Bargaining

Agreement      between    UNITE     HERE       and    the     Defendants,           and   the

Maryland    Wage   Payment       and     Collection         Law.    Importantly,          the

Plaintiffs allege that the Defendants violated the FLSA by “not

paying Plaintiffs all their earned tips,” (J.A. 14), and limit

their requested relief to, inter alia, “the amount of tip wages”

taken by the Defendants (J.A. 16). Thus, the Plaintiffs do not

allege that they were paid below minimum wage; even absent tips,

their   base    salary    was    above     the   minimum       wage       at    all   times.

Further, the Plaintiffs do not allege that they were forced to

work overtime without proper pay.

     The    district      court,       following      a     hearing,           granted     the

Defendants’     Rule     12(b)(6)   motion       to   dismiss.        As       to   the   FLSA

count, the court held that because the Plaintiffs were paid the

minimum wage, § 203(m) “does not have anything to do with this

case.” (J.A. 131). The court noted that the Plaintiffs “do not

want to” allege a violation of Department of Labor Regulations

                                           4
which extend § 203(m) to employers who are not utilizing the

statute’s tip credit, (J.A. 131), but nonetheless stated that

those    regulations               “exceeded    [the        Department       of    Labor’s]

authority      and    .       .   .   don’t   get    past    step   1   of   the    Chevron 3

analysis in terms of deference,” (J.A. 132). The court dismissed

the collective bargaining count for failure to exhaust, and the

Maryland state law count because the Plaintiffs agreed that a

“tip”    was    not       a       “wage”   under     the    Maryland     statute.         The

Plaintiffs timely appealed. 4

                                               II.

     The    Plaintiffs             continue    to    press    their     claim      that   the

Defendants violated the FLSA by requiring them to join the tip-

pooling arrangement. 5                We review the grant of a motion to dismiss

under Rule 12(b)(6) de novo. United States ex rel. Rostholder v.


     3 Chevron U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837 (1984).
     4  The Plaintiffs did not appeal the district court’s
dismissal of the collective bargaining or Maryland state law
claims.
     5 After briefing concluded, the Government filed an amicus
brief primarily arguing that the Department of Labor regulations
promulgated under § 203(m), which require that employers comply
with the statutory restrictions on use of employee tips even if
they otherwise are paying minimum wage, are a valid exercise of
the   agency’s  gap-filling   authority.   The Plaintiffs   have
repeatedly argued that they are pursuing a claim only under the
FLSA and that the regulations are “not an issue” in this case.
(J.A. 100). Accordingly, we have no occasion to opine on the
validity of the regulations in this appeal.



                                                5
Omnicare,     Inc.,     745    F.3d      694,       700    (4th    Cir.     2013).        The

Plaintiffs’        argument      turns     on       a      question    of       statutory

interpretation. “When interpreting statutes we start with the

plain language.” U.S. Dep’t of Labor v. N.C. Growers Ass’n, 377

F.3d 345, 350 (4th Cir. 2004). “It is well established that when

the    statute’s     language     is     plain,      the    sole   function         of    the

courts-at least where the disposition required by the text is

not absurd-is to enforce it according to its terms.” Lamie v.

U.S. Tr., 540 U.S. 526, 534 (2004) (internal quotation marks

omitted). In determining the plain meaning of the text, we must

consider     the    “broader     context       of    the    statute”      as    a    whole,

Santoro v. Accenture Fed. Servs., LLC, 748 F.3d 217, 223 (4th

Cir. 2014), in light of the “cardinal rule,” that “the meaning

of statutory language, plain or not, depends on context.” King

v.    St.   Vincent’s   Hosp.,     502    U.S.      215,     221   (1991)      (citations

omitted).

       The FLSA is best understood as the “minimum wage/maximum

hour law.” Monahan v. County of Chesterfield, 95 F.3d 1263, 1266

(4th Cir. 1996) (internal quotation marks omitted). In enacting

the FLSA, Congress intended “to protect all covered workers from

substandard wages and oppressive working hours.” Barrentine v.

Arkansas–Best       Freight    Sys.,     Inc.,      450     U.S.   728,    739      (1981).

“‘The substantive sections of the FLSA, narrowly focusing on

minimum     wage   rates   and    maximum       working       hours,   bear         out   its

                                           6
limited purposes.’” Monahan, 95 F.3d at 1267 (quoting Lyon v.

Whisman,    45    F.3d    758,   764   (3d      Cir.     1995)).       Thus,       the    Act

requires payment of a minimum wage, 29 U.S.C. § 206(a), and

limits the maximum working hours an employee may work without

receiving    overtime      compensation,        29   U.S.C.      §    207(a).      Section

216(b) provides a cause of action for violations of these two

provisions, permitting employees to seek damages, as relevant

here, in “the amount of their unpaid minimum wages” and (in

appropriate      circumstances)        an       equal    amount        of        liquidated

damages. 29 U.S.C. § 216(b). 6

     Here,     the     Plaintiffs    concede      that    they       are    paid    a    full

minimum wage absent tips. See J.A. 100 (“Section 206 talks about

employer’s paying minimum wage. We never mentioned minimum wage

in our complaint . . . because that was not our problem”). Under

direct questioning from the district court, and at oral argument

before   us,     the    Plaintiffs     affirmed        that   they         are    paid    the

minimum wage and that the Defendants do not claim the tip credit

to pay the minimum wage. Accordingly, the Plaintiffs essentially

concede that they do not have a private right of action under §

216(b) because they are not seeking damages for unpaid minimum

wages. See Monahan, 95 F.3d at 1284 (rejecting a pure gap time

     6 The Secretary of Labor is empowered to bring an action for
unpaid wages under § 216(b) and an action to restrain violations
of the FLSA, 29 U.S.C. § 217.



                                            7
pay claim under the FLSA because, “[i]f the employee has been

properly   paid   at    or   above    minimum    wage   for    all   nonovertime

hours” there is no FLSA violation).

     Instead,     however,     the    Plaintiffs    argue     that   §   203(m),

commonly   called      the   tip     credit   provision,      creates    a   free-

standing right to bring a claim for lost “tip” wages. Passed in

1974, § 203(m) defines the term “wage” for “tipped employees” as

follows:

     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.

     29 U.S.C. § 203(m).

     In other words, § 203(m) permits an employer, in certain

circumstances,    to    take   a   credit     against   the   minimum    wage   by

using an employees’ tips as “wages.” An employer can thus pay
                                         8
tipped employees (1) a cash wage of $2.13 plus (2) an additional

amount in tips that brings the total wage to the federal minimum

wage. Cumbie v. Woody Woo, Inc., 596 F.3d 577, 580 (9th Cir.

2010). In a situation where the employer uses tips to help meet

the minimum wage requirement for its employees, the employee

must be informed of this fact and the employee must also be

permitted to keep tips, unless the employee is part of a tip

pool   with    other   employees     who       regularly     receive     tips.    The

provision was “to make clear the original Congressional intent

that an employer could not use the tips of a ‘tipped employee’

to   satisfy    more   than    [a   certain          percentage]    of   the     Act’s

applicable minimum wage.” Richard v. Marriott Corp., 549 F.2d

303, 304 (4th Cir. 1977) (internal quotation marks omitted).

       Here, the Plaintiffs argue that, because they were never

informed of the FLSA’s tip-credit provision and the tip-pooling

arrangement     includes     employees        that   are   not   regularly      tipped

(such as busboys), the Defendants’ tip-pooling arrangements were

invalid.      Accordingly,     in   the       Plaintiffs’        view,   “all    tips

received by” them must be “retained by” them and the Defendants

must compensate them for these lost “tip” wages. Even if these

words, in isolation, could somehow be read to create such a

right, § 203(m) “is limited by the ‘broader context of [the

FLSA] as a whole.’” Country Vintner of N.C., LLC v. E. & J.

Gallo Winery, Inc., 718 F.3d 249, 259 (4th Cir. 2013) (quoting

                                          9
In re Total Realty Mgmt., LLC, 706 F.3d 245, 251 (4th Cir.

2013)). See also Yates v. United States, 135 S.Ct. 1074, 1082

(2015) (finding that a fish was not a “tangible object” under

the statute because “[i]n law as in life, however, the same

words, placed in different contexts, sometimes mean different

things”); Santoro, 748 F.3d at 223 (holding the Dodd-Frank Act

prohibition     on    arbitration   agreements      did    not    invalidate   all

arbitration     agreements     because       “[n]othing”     in    the   statute’s

context “suggests that Congress sought to bar arbitration of

every claim if the arbitration agreement in question did not

exempt Dodd-Frank claims”).

     It    is   not    clear   that     this     language,       standing   alone,

achieves what the Plaintiffs claim, but when read in context, it

is clear that this language—whatever its import—could give rise

to a cause of action only if the employer is using tips to

satisfy its minimum wage requirements. 7 The FLSA is the “minimum

wage/maximum hour law.” Monahan, 95 F.3d at 1266. Given that

context,   §    203(m)    “does   not    state    freestanding       requirements

pertaining to all tipped employees,” but rather creates rights

and obligations for employers attempting to use tips as a credit



     7 For instance, in Richard, we affirmed a damages award when
the employer (Marriott) attempted to use the tip credit to
satisfy its minimum wage obligations but failed to comply with
the requirements of § 203(m).



                                        10
against the minimum wage. Woody Woo, 596 F.3d at 581 (emphasis

in original). The FLSA “requires payment of minimum wages and

overtime wages only,” and “is unavailing where wages do not fall

below the statutory minimum and hours do not rise above the

overtime           threshold.”      Nakahata          v.        New     York-Presbyterian

Healthcare Sys., 723 F.3d 192, 201 (2d Cir. 2013). We thus find

that       the    statutory      requirements      that         an    employer   inform    an

employee of § 203(m) and permit the employee to retain all his

tips unless the employee is in a tip pool with other regularly

tipped       employees      does        not   apply        to    employees,      like     the

Plaintiffs,          who   are    seeking     only    the       recovery    of   the    tips

unrelated to a minimum wage or overtime claim. 8

                                               III.

       Here, the Plaintiffs concede that their wages do not fall

below the statutory minimum, and the “the statutory language,”

of the FLSA, including § 203(m), “simply does not contemplate a

claim for wages other than minimum or overtime wages.” Id. at

201-02.          Accordingly,     the    judgment     of        the   district   court     is

affirmed.

                                                                                  AFFIRMED

       8
       The Government, in its amicus brief, agrees with the
conclusion that there is no viable private right of action under
the FLSA in this case because the “plaintiffs are not pursuing
minimum wage claims or overtime claims, but instead seek only to
collect improperly withheld tips.” (Gov’t Amicus Br. at 12).



                                              11
PAMELA HARRIS, Circuit Judge, concurring in the judgment:

      I   concur   in   the   majority’s   holding   that   the   Fair   Labor

Standards Act (“FLSA” or the “Act”) does not provide a private

cause of action to remedy the particular violations alleged by

the Plaintiffs in this case.         I write separately to explain why

I think we can and should reach that result without commenting

on the scope of the substantive protections of § 203(m).



                                     I.

      As we decide it today, this case is not about the nature of

the rights afforded by the FLSA, but about how those rights are

to be enforced.         The FLSA establishes two separate means of

enforcement: a private right of action for aggrieved employees,

and a public enforcement power wielded by the Wage and Hour

Division of the Department of Labor (“DOL”).                See Fair Labor

Standards Act of 1938, Pub. L. No. 75-718, ch. 676, § 16-17, 52

Stat. 1060, 1069 (codified as amended at 29 U.S.C. § 216-17).

Each of those mechanisms plays a distinct and critical role in

the   statute’s    enforcement    regime.      See   Mitchell     v.   Lublin,

McGaughy & Assocs., 358 U.S. 207, 214 (1959); Daniel V. Dorris,

Comment, Fair Labor Standards Act Preemption of State Wage-and-

Hour Claims, 76 U. Chi. L. Rev. 1251, 1254–55 (2009).

      Section 216(b) of the FLSA is an express private right of

action, under which employees may sue for damages when their

                                     12
employers violate the Act.               But that private remedy is limited

in an important respect:            It is available only when an employee

is    owed    “unpaid        minimum       wages,       or        []    unpaid      overtime

compensation”       as   a    result       of     a     minimum-wage          or    overtime

violation.      29 U.S.C. § 216(b).                DOL’s enforcement powers are

broader.      It, too, may sue employers for damages, on behalf of

employees     who     are    owed       unpaid     minimum          wages     or    overtime

compensation under § 216(b).                    See 29 U.S.C. § 216(c).                    But

unlike private plaintiffs, DOL also may seek injunctive relief

against employers under § 217 of the Act, 29 U.S.C. § 217;

Mitchell, 358 U.S. at 214; Michigan Corr. Org. v. Michigan Dep’t

of Corr., 774 F.3d 895, 903 (6th Cir. 2014); see also 29 U.S.C.

§    211(a)   (authorizing         DOL    to     seek    injunctive          relief      under

§ 217), so it is not confined to the recovery of unpaid minimum

wages or overtime compensation in the same way.

      This     hybrid       enforcement          scheme       produces        a     familiar

scenario,     under      which      a    provision           of     the     FLSA    or     its

implementing regulations may bind an employer but not subject

the employer to private civil suit.                       Cf. Alden v. Maine, 527

U.S. 706, 759 (1999) (though immune from private FLSA damages

suits, the “State of Maine has not questioned Congress’ power to

prescribe     substantive      rules      of     federal      law      to   which   it    must

comply”).      Whether       the    FLSA    or    its     implementing         regulations

provide a substantive protection to employees, in other words,

                                            13
is   a       separate      question         from    whether         the    Act   allows    those

employees to enforce the protection through a private cause of

action.

         And      on    that       latter      question        (and       only   that     latter

question), this is a perfectly straightforward case:                                      As DOL

urges        in   its    amicus       brief,       and   as    the    majority     holds,    the

Plaintiffs         have       no   private     cause      of    action      to   pursue    their

particular tip-related claims.                       The injury that the Plaintiffs

allege — that they have been required to share their tips with

other employees in a way that does not conform to § 203(m)’s

“tip-pooling” standards — simply is not of the sort redressable

in   a       private     FLSA      lawsuit,        whether     or    not    it   represents    a

violation of the Act’s substantive protections.

         Section 216(b) contains the only express private cause of

action        under     the    FLSA    in    which       the   Plaintiffs’       claims    might

conceivably sound.                 But as the majority explains, the Plaintiffs

have all but conceded that their claims do not fall within that

provision.             Maj. Op. at 7. 1            And understandably so.               Under §

216(b),




         1
       Indeed, in light of the Plaintiffs’ failure to address or
even to cite § 216(b) in their filings before the district court
or their briefs before this court, even after that provision was
called to their attention by DOL and the Defendants, we would be
justified in deciding this case on waiver grounds alone.     See
Fed. R. App. P. 28(a)(8)(A); Brown v. Nucor Corp., 785 F.3d 895,
(Continued)
                                                   14
     Any employer who violates the provisions of section
     206 or section 207 of this title [addressing minimum
     wage and overtime compensation] shall be liable to the
     employee or employees affected in the amount of their
     unpaid   minimum  wages,   or  their  unpaid  overtime
     compensation, as the case may be, and in an additional
     equal amount as liquidated damages.

By its terms, then, § 216(b) specifies that the only remedy it

makes available to private plaintiffs is damages “in the amount”

of   their      “unpaid     minimum      wages”       or     “unpaid        overtime

compensation,” plus an equal amount in liquidated damages.                      The

Plaintiffs   here,   on    the   other   hand,    are      seeking    not   “unpaid

minimum wages” or overtime compensation, but instead allegedly

improperly withheld tips.          Indeed, they concede that they are

paid a full cash minimum wage, entirely independent of tips, 2 and

expressly    disclaim      any   connection       between       the   tip-related

practices of which they complain and the FLSA’s minimum wage

requirements.     J.A. 100.       In those circumstances, where there



920 (4th Cir.      2015)    (fairness      concerns     guide    application     of
waiver rules).
     2 This does not mean that an employee lacks a private cause
of action under § 216(b) simply because his or her total
compensation from all sources meets or exceeds the minimum wage
specified in § 206.    That much is clear from our decision in
Richard v. Marriott Corp., 549 F.2d 303 (4th Cir. 1977), in
which tipped employees brought suit under § 216(b) alleging
violations of the tip-credit provisions of § 203(m).     We held
that the plaintiffs were entitled to recover under § 216(b)
despite the fact that they had received total compensation,
including tips, that met or exceeded the minimum wage rate. Id.
at 305.



                                      15
has been no effort to tie a purported tip violation to the

Defendants’      fulfillment       of   their    minimum          wage      obligations,

there can be no private cause of action under § 216(b).

       In my view, that conclusion — advanced by DOL in its amicus

brief, endorsed by the Defendants, and left unchallenged by the

Plaintiffs — effectively disposes of this case.                          It may be, as

the    majority       suggests,      that     the         Plaintiffs,        read    very

generously,      can       be   understood      to        advance     an     alternative

argument:      that    § 203(m)    itself     confers        on     them    not   only   a

substantive right to retain their tips but also a private cause

of action to enforce that right through a suit for damages.                            But

if so, it makes no difference:                Any such argument is plainly

unavailing, and may be dispensed with quickly and simply under

the established principles that govern implied causes of action,

see, e.g., Venkatraman v. REI Sys., Inc., 417 F.3d 418, 423 (4th

Cir.   2005)    (discussing       presumption        against      implied     causes     of

action),    without         adverting    to     the        scope      of     substantive

protections under § 203(m).

       Section 203(m) contains no express private cause of action.

As the majority recounts, Maj. Op. at 8, it appears in a list of

statutory definitions, and defines “wages” for purposes of the

FLSA while also laying out certain substantive rules regarding

employer    use       of     employee   tips         to     offset         minimum   wage

obligations.      Unlike § 216(b), it does not mention a “right of

                                         16
action”    or    “damages,”    and   its    text   is    bereft    of   any     other

language even alluding to a cause of action.                      If there is a

cause of action somewhere in § 203(m), then it must be one that

is implied, not express.

     But the Plaintiffs have not once suggested that we pursue

our standard implied cause of action analysis, and that is just

as well.        Absent “strong indicia of a contrary congressional

intent,” we are to presume that Congress “provided precisely the

remedies   it    considered     appropriate,”      Middlesex      Cnty.      Sewerage

Auth. v. Nat’l Sea Clammers Ass’n, 453 U.S. 1, 15 (1981), and to

refrain from inferring others.             That presumption against implied

causes    of    action   is   particularly     strong     where   “Congress       has

enacted    a     comprehensive       legislative         scheme    including      an

integrated system of procedures for enforcement.”                    Venkatraman,

417 F.3d at 423 (quoting Nw. Airlines, Inc. v. Transp. Workers

Union of Am., AFL-CIO, 451 U.S. 77, 97 (1981)).                     And here, of

course, Congress has done just that: established a carefully

reticulated dual system of enforcement, complete with an express

private    cause    of   action   limited     to   the    recovery      of   “unpaid

minimum wages” or “unpaid overtime compensation.”                  When it comes

to the FLSA, we can say with confidence that “when Congress

wished to provide a private damage remedy, it knew how to do so

and did so expressly,” Touche Ross & Co. v. Redington, 442 U.S.

560, 572 (1979), and there is no ground for us to go beyond what

                                       17
Congress has done by implying an additional and broader private

cause of action.          See Venkatraman, 417 F.3d at 423.                   Whether or

not the Plaintiffs have a “right” under § 203(m), they do not

have a “remedy,” cf. Alexander v. Sandoval, 532 U.S. 275, 286

(2001) (in conducting implied cause of action analysis, courts

should    not     assume    that      every       private    right      has   a    private

remedy), and that is all that is required to dispose of this

appeal.



                                             II.

    On those grounds, I concur in the majority’s holding that

the FLSA provides no private cause of action under which the

Plaintiffs may bring their challenges to the Defendants’ tip-

pooling    practices.           I    write    separately         only    because       I   am

concerned that in reaching this straightforward conclusion about

remedies, the majority has said more than is necessary about the

distinct       question    of   substantive         rights,      and    in    particular,

about     the    scope     of    the     protection         afforded     employees         by

§ 203(m).       See Maj. Op. at 10–11.

    We always are well advised to say no more than necessary to

decide the case at hand.               But caution is particularly warranted

here, because the meaning of § 203(m), and the degree to which

it regulates employer use of tips, is now the subject of live

debate    in    the   federal       courts.        The   basic    question        is   this:

                                             18
Section    203(m),      as      the      majority      explains,       Maj.   Op.    at    8–9,

allows employers to use employee tips to offset a portion — but

only a specified portion, see Richard, 549 F.2d at 304 — of

their minimum wage obligations, so long as “all tips received by

[the] employee [are] retained by the employee” or shared with

other    tipped     employees         as    part       of    a   qualifying       “tip-pool”

arrangement.        29 U.S.C. § 203(m).                 What of employers, like the

Defendants    here,       who     pay     their       tipped     employees    a   full     cash

minimum wage, and do not claim the “tip credit” allowed by §

203(m)?       May    they         take     the    tip       money     collected     by    their

employees and use it for their own benefit, free of § 203(m)’s

tip-pooling       rules      or    other      restrictions,            as   the   Defendants

argue?    Or, as the Plaintiffs argue, do tipped employees retain

a right to the tips they receive from customers, whether or not

they are being paid a full cash minimum wage by their employers?

     A    2011    DOL     regulation        addresses          this    question     directly,

providing that “[t]ips are the property of the employee whether

or not the employer has taken a tip credit under [§ 203(m)],”

and that an “employer is prohibited from using an employee’s

tips, whether or not it has taken a tip credit, for any reason

other than that which is statutorily permitted in [§ 203(m)]: As

a credit against its minimum wage obligations to the employee,

or in furtherance of a valid tip pool.”                               29 C.F.R. § 531.52.

After an extensive canvass of § 203(m)’s text and legislative

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history, see Updating Regulations Issued Under the Fair Labor

Standards Act, 76 Fed. Reg. 18,832, 18,838–42 (Apr. 5, 2011),

DOL   concluded   that   the   contrary   reading   of    the   statute   is

“unsupportable,” largely because it would allow for easy evasion

of the statutory cap on the percentage of an employer’s minimum

wage obligation that may be satisfied through tips:

      If . . . the FLSA places limitations on an employer’s
      use of its employees’ tips only in the context of a
      tip credit, an employer could simply eschew the tip
      credit and use a greater part of its employees’ tips
      toward its minimum wage obligations than permitted
      under [§ 203(m)]. . . . If an employer could avail
      itself of this loophole, it would have no reason to
      ever elect the tip credit because, instead of using
      only a portion of its employees’ tips to fulfill its
      minimum wage obligation, it could use all of its
      employees’ tips to fulfill its entire minimum wage
      obligation to the tipped employees or other employees.

Id. at 18,842; see also Gov’t Amicus Br. at 16.

      The validity of that regulation has been put squarely at

issue in a series of federal court cases.            See, e.g., Oregon

Rest. & Lodging v. Solis, 948 F. Supp. 2d 1217, 1223-24 (D. Or.

2013)   (invalidating    the    regulation   under       Chevron)   (appeal

pending); Trinidad v. Pret A Manger (USA) Ltd., 962 F. Supp. 2d

545, 562-63 (S.D.N.Y. 2013) (following Oregon Rest. & Lodging).

And although the majority carefully clarifies that we have no

occasion to opine on the regulation today, Maj. Op. at 5 n.5, I

am concerned that some of the majority’s analysis of § 203(m)

nevertheless might be understood as bearing on whether DOL’s


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regulation       is    a    reasonable        interpretation        of        §    203(m)      or

permissible      exercise       of    the   agency’s     “gap-filling”             authority.

See Gov’t Amicus Br. at 15 (quoting Long Island Care at Home,

Ltd. v.      Coke, 551 U.S. 158, 165 (2007)).

      That     would       be   particularly        unfortunate          in       this    case,

because      substantive        discussion         of    §    203(m)      is       not        only

unnecessary but also without the benefit of thorough advocacy.

The   Defendants       have     made    the     case    against     DOL’s         regulation,

arguing that it cannot be reconciled with the plain text of

§ 203(m), see Maj. Op. at 8 (setting out text of § 203(m)),

which unambiguously applies only when an employer claims the tip

credit.      See Br. of Appellees at 13–18.                  But the Plaintiffs have

disclaimed expressly any reliance on the DOL regulation, and so

no party to this case has mounted a defense of that regulation. 3

Under those circumstances, we should take special care not to

enter,    even    a    little,       into   a   debate       that   all   agree          is    not

properly before us.




      3DOL was granted leave to file an amicus brief, in which it
argued first for dismissal of the Plaintiffs’ claims for want of
a cause of action and then defended its regulation. But because
DOL was not permitted to participate at oral argument, we have
had no opportunity to question DOL or to clarify its position.



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