Marlow v. The New Food Guy, Inc. 2017 WL 2818874, — F.3d —- (10th Cir. June 30, 2017)

The plaintiff, who was paid above minimum wage, argued that her employer was required to turn over to her a share of all tips collected paid by catering customers.  In support of this argument, she relied on a Department of Labor regulation purporting to interpret the tip-credit provision of the FLSA.  The Tenth Circuit held that the DOL lacked authority to promulgate the regulation because there was no “gap” in the statute to fill.