Plaintiff worked as a waitress, and was paid a cash wage at or exceeding Oregon?s minimum wage.? ?In addition, the employer required all servers to contribute their tips to a ?tip pool,? which was redistributed to all restaurant? employees,? including? kitchen? staff. The Plaintiff filed a class action alleging that its tip-pooling arrangement (sharing tips with employees who don?t generally received them) violated? the? minimum-wage? provisions? of? the Fair Labor Standards Act of 1938 (?FLSA?), 29 U.S.C. ?? ?201 ?et ?seq.????????? 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.
By way of introduction, the Court acknowledged that: ?In businesses where tipping is? customary,? the? tips, ?in? the? absence? of? an explicit contrary understanding, belong to the recipient.? Where, ?however, ?[such] ?an arrangement is made . . . , in the absence of statutory interference, no reason is perceived for its invalidity.? (Emphasis original). The Court found that there was no statutory interference in the FLSA to prevent the agreement from being enforced. ?Cumbie v. Woody Woo, Inc, 596 F.3d 577 (9th Cir. 2010) (O?Scannlain, N.R. Smith, Wolle (S.D. Iowa)).