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Lilley v. Ioc-Kansas City, Inc.

United States District Court, W.D. Missouri, Western Division

November 7, 2019

MICHAEL C. LILLEY, and KELLY G. LEWIS, both individually, and on behalf of all others similarly situated, Plaintiffs,
v.
IOC-KANSAS CITY, INC. d/b/a ISLE OF CAPRI CASINO KANSAS CITY, Defendant.

          ORDER

          STEPHEN R. BOUGH, UNITED STATES DISTRICT JUDGE

         Before the Court is Defendant's Motion to Dismiss Plaintiffs' Second Amended Complaint. (Doc. #17). The motion is DENIED.

         I. Background and Legal Standard

         Defendant IOC-Kansas City, Inc. d/b/a Isle of Capri Casino Kansas City moves pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss with prejudice the claims brought by Plaintiffs Michael C. Lilley and Kelly G. Lewis (collectively “Plaintiffs”) in their Second Amended Class and Collective Action Complaint. Plaintiffs' Second Amended Complaint includes four counts, all brought against Defendant by Plaintiffs individually and on behalf of all others similarly situated: Count I - Fair Labor Standards Act (“FLSA”) claim for unpaid overtime and minimum wages; Count II - Missouri Minimum Wage Law (“MMWL”) claim for unpaid overtime and minimum wages; Count III - Breach of Contract claim based on Missouri law for failure to pay employees the agreed-upon hourly rate for every hour worked; and Count IV - Unjust Enrichment/Quantum Meruit claim based on Missouri law for Defendant's receipt and retention of the benefit of employees' unpaid labor.

         Plaintiffs' claims are based on Defendant's policy of paying up front and then deducting from employees' paychecks the cost of gaming license fees. Defendant's employees are required to obtain state-issued gaming licenses in order to operate casino table games. Plaintiffs allege, “Defendant made improper deductions from its employees' paychecks for gaming license fees and other deductions which reduced its employees' compensation below the required minimum wage and, in some situations, overtime rate under state and federal law for all hours worked.” (Doc. #16, ¶ 2). Many or all of the involved employees were tipped employees; Plaintiffs were tipped employees of Defendant.

         Pursuant to Rule 12(b)(6), a court may dismiss a claim for “failure to state a claim upon which relief can be granted.” “To survive a motion to dismiss [for failure to state a claim], a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations and quotation marks omitted) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ash v. Anderson Merchs., LLC, 799 F.3d 957, 960 (8th Cir. 2015) (internal citation and quotation marks omitted) (quoting Iqbal, 556 U.S. at 678). The Court must accept all facts alleged in the complaint as true when deciding a motion to dismiss. See Data Mfg., Inc. v. United Parcel Serv., Inc., 557 F.3d 849, 851 (8th Cir. 2009) (noting “[t]he factual allegations of a complaint are assumed true and construed in favor of the plaintiff, even if it strikes a savvy judge that actual proof of those facts is improbable”).

         II. Discussion

         The FLSA requires payment of a minimum wage for all hours worked. 29 U.S.C. § 206(a). To satisfy the minimum wage requirement, employers may count a limited amount of an employee's tips to satisfy any difference between the direct cash wage and the required minimum wage. 29 U.S.C. § 203(m)(2)(A). Pursuant to 29 U.S.C. § 203(m)(1), “‘Wage' paid to any employee includes the reasonable cost . . . to the employer of furnishing such employee with board, lodging, or other facilities, if such board, lodging, or other facilities are customarily furnished by such employer to his employees[.]”

         The Department of Labor has issued regulations concerning the meaning of “facilities.” Title 29 C.F.R. § 531.3(d)(1)-(2) provides:

(1) The cost of furnishing “facilities” found by the Administrator to be primarily for the benefit or convenience of the employer will not be recognized as reasonable and may not therefore be included in computing wages.
(2) The following is a list of facilities found by the Administrator to be primarily for the benefit of convenience of the employer. The list is intended to be illustrative rather than exclusive: (i) Tools of the trade and other materials and services incidental to carrying on the employer's business; (ii) the cost of any construction by and for the employer; (iii) the cost of uniforms and of their laundering, where the nature of the business requires the employee to wear a uniform.

         Title 29 C.F.R. § 531.32(a) provides:

“Other facilities, ” as used in this section, must be something like board or lodging. The following items have been deemed to be within the meaning of the term: Meals furnished at company restaurants or cafeterias or by hospitals, hotels, or restaurants to their employees; meals, dormitory rooms, and tuition furnished by a college to its student employees; housing furnished for dwelling purposes; general merchandise furnished at company stores and commissaries (including articles of food, clothing, and household effects); fuel (including coal, kerosene, firewood, and lumber slabs), electricity, water, and gas furnished for the noncommercial personal use of the employee; transportation furnished employees ...

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