Marsh v. J. Alexander’s LLC, 905 F.3d 610 (9th Cir. 2018) (en banc)

Plaintiffs in this case alleged that their employers abused the tip credit provision of the Fair Labor Standards Act (“FLSA”) by paying them a reduced tip credit wage and treating them as tipped employees when they were engaged in either non-tipped tasks unrelated to serving and bartending or non-incidental tasks related to serving or bartending such as hours spent cleaning and maintaining soft drink dispensers in excess of 20% of the workweek. The Ninth Circuit deferred to a dual jobs regulation promulgated by the Department of Labor in 1967 and a subsequent guidance from 1988 that foreclosed an employer’s ability to engage in this practice. Accordingly, the Court held that Marsh had stated a claim under the FLSA for minimum wage violations. See also Quiles v. Parent, 2018 WL 5730179 (Cal. Ct. App. 2018) (federal law applies to the determination of what type of costs are recoverable by a prevailing party in an FLSA action filed in state court); Campbell v. City of Los Angeles, 903 F.3d 1090 (9th Cir. 2018) (collective actions were properly decertified because plaintiffs failed to satisfy the similarly situated requirement of the FLSA).