Romero v. Top-Tier Colorado, No. 16-1057 (10th Cir. 2017)Annotate this Case
The district court dismissed Aarica Romero’s minimum-wage claim under Fed. R. Civ. P. 12(b)(6), the relying on a single, undisputed fact: Romero never alleged that she earned less than the federal minimum wage of $7.25 an hour, taking into account both: (1) the cash wage that her employer paid her; and (2) all of the tips that she received each week. An 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." And while an employer can treat tips as wages under certain circumstances, Romero argued that her employer impermissibly did so here. The district court declined to address this argument. The Tenth Circuit found that without first resolving whether Romero’s employer was entitled to treat her tips as wages, the district court couldn’t have determined whether that employer "pa[id]" Romero "wages" of at least $7.25 an hour. The Tenth Circuit reversed and remanded this case back to the district court to make this threshold determination in the first instance.