Green et al v. Perry's Restaurants LTD et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 21-cv-0023-WJM-NRN
LANCE GREEN, and
ANDERSON KHALID, individually and on behalf
of all others similarly situated,
Plaintiffs,
v.
PERRY’S RESTAURANTS LTD, and
PERRY’S STEAKHOUSE OF COLORADO, LLC,
collectively d/b/a PERRY’S STEAKHOUSE AND GRILLE,
Defendants.
ORDER DENYING DEFENDANTS’ MOTION FOR RECONSIDERATION
Before the Court is Defendants Perry’s Restaurants LTD (“PRL”) and Perry’s
Steakhouse of Colorado, LLC (“PSC”) Motion for Reconsideration of the Court’s Order
Denying Defendants’ Motion for Partial Summary Judgment (the “Motion”). (ECF No.
223.) Plaintiffs filed a response. (ECF No. 224.)
For the reasons set forth below, the Motion is denied.
I. BACKGROUND
In this action, Plaintiffs allege that Defendants committed minimum wage
violations under the Fair Labor Standards Act (“FLSA”) and Colorado Wage Act
(“CWA”) by, among other things, unlawfully “requir[ing] Plaintiffs . . . to perform non-
tipped work that, although related to [their] tipped occupation, exceeded twenty percent
(20%) of their time worked each workweek.” (ECF No. 13 at ¶ 111.) The twenty
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percent figure refers to the United States Department of Labor’s (“DOL”) longstanding
“80/20 Rule.” As set forth at length in the Court’s Order Denying Defendants’ Motion for
Partial Summary Judgment (the “Prior Order”) (ECF No. 203), the 80/20 Rule is derived
from DOL guidance explaining that the DOL’s 1967 Dual Jobs Regulation “permits the
taking of the tip credit for time spent in duties related to the tipped occupation,” but
“where the facts indicate . . . that tipped employees spend a substantial amount of time
(in excess of 20 percent) performing general preparation work or maintenance, no tip
credit may be taken for the time spent in such duties.” 86 Fed. Reg. 60,114-01, 2021
WL 5014043, at *60114 (Oct. 29, 2021) (internal citation and quotation marks omitted).
In 2021, the DOL promulgated a final rule that, for the first time, sought to
formally codify the 80/20 Rule as a matter of regulation (the “2021 Final Rule”). 29
C.F.R. § 531.56(f). Following the Supreme Court’s decision in Loper Bright Enterprises
v. Raimondo, 603 U.S. 369 (2024), however, the Fifth Circuit vacated the 2021 Final
Rule based on its independent interpretation of the FLSA. Restaurant Law Center v.
U.S. Dept. of Labor, 115 F.4th 396 (5th Cir. 2024).
Defendants previously moved for summary judgment on Plaintiffs’ related side
work claims, arguing that the “Fifth Circuit has now invalidated nationwide the ‘related
side work’ rule and claims in their entirety.” (ECF No. 190 at 5.) The Court disagreed.
It reasoned that, irrespective of the status of the 2021 Final Rule following Restaurant
Law Center, the 80/20 Rule persisted in subregulatory guidance interpreting the Dual
Jobs Regulation. (See generally ECF No. 203.) And, in this Court’s view, that
longstanding interpretive guidance was still entitled to Auer and/or Skidmore deference.
(Id.)
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Defendants now ask the Court to reconsider the Prior Order because the DOL
Wage and Hour Division has since (1) “made a technical amendment to the Dual Jobs
Regulation removing reference to the 80/20 Rule” and (2) “removed from the Field
Operations Handbook [(‘FOH’)] any mention of time constraints related to the definition
or analysis of a tipped employee, including the 80/20 Rule . . ..” (ECF No. 223 at 2–3.)
As a result, they assert that “the controlling law relied upon by the Court in issuing its
Order no longer exists warranting reconsideration.” (Id. at 2.)
II. LEGAL STANDARD
“Grounds warranting a motion to reconsider include (1) an intervening change in
the controlling law, (2) new evidence previously unavailable, and (3) the need to correct
clear error or prevent manifest injustice.” Servants of Paraclete v. Does, 204 F.3d 1005,
1012 (10th Cir. 2000). “Thus, a motion for reconsideration is appropriate where the
court has misapprehended the facts, a party’s position, or the controlling law.” Id. “It is
not appropriate to revisit issues already addressed or advance arguments that could
have been raised in prior briefing.” Id.
III. ANALYSIS
As noted above, Defendants now argue that the Court should reconsider its Prior
Order because, since that time, the DOL’s Wage and Hour Division has implemented
two changes to applicable regulations and interpretive guidance. (ECF No. 223 at 2–3.)
Neither change, however, convinces the Court that Plaintiffs’ related side work claims
are foreclosed as a matter of law.
Foremost, Defendants inform the Court that, on December 17, 2024, the DOL’s
Wage and Hour Division published a technical amendment to 29 C.F.R. § 531 that, by
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Defendants’ description, “restor[ed] the original dual jobs regulation at 56(e).” (ECF No.
223 at 2.) But the Court fails to see how Defendants have identified “an intervening
change in the controlling law” by pointing to a “technical amendment” that merely
reflects what Restaurant Law Center already set out to do: vacate the 2021 Final Rule
and restore the 1967 Dual Jobs Regulation. 120 F.4th at 177 (“We . . . VACATE the
Final Rule insofar as it modifies 29 C.F.R. § 531.56 as promulgated in 1967.”). Indeed,
the technical amendment expressly states that its purpose is to “account[] for changes
in the law which have already occurred.” (ECF No. 223-1 at 2.)
Second, Defendants inform the Court that, on January 14, 2025, the Wage and
Hour Division also revised the FOH to remove “any mention of time constraints related
to the definition or analysis of a tipped employee, including the 80/20 Rule . . . .” (ECF
No. 223 at 2.) To be sure, the current iteration of § 30d06 of the FOH, pertaining to
“Dual Jobs,” has been dramatically pared back and significantly omits any discussion of
the “20 percent workweek tolerance” for “directly supporting work” that appeared in the
prior iteration of the FOH. (Compare FOH § 30d06 (2023) with FOH § 30d06 (2025).)
Though these revisions to the FOH represent an intervening change to
administrative guidance, Defendants’ Motion—the entirety of which is roughly one full
page in length—wholly fails to grapple with critical legal questions the Court raised in
the Prior Order. (ECF No. 223.) For instance, the Court previously observed that the
2021 Final Rule would not seem to apply to Plaintiffs’ claims in any event, given “[n]ewly
promulgated agency rules, . . . are . . . given only prospective effect.” Munoz v. Lynch,
631 F. App’x 510, 512 (10th Cir. 2015). The Court strongly suspects that same principle
extends to agency interpretive guidance. But it declines to independently research and
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analyze that issue where Defendants have made no effort to do so despite the Court’s
prior direction that, in future briefing, “it would aid the Court’s analysis for the parties to
take a clear position as to which iteration of the applicable laws, regulations, and
administrative guidance governs Plaintiffs’ claims in this case, particularly to the extent
there are material differences between them.” (ECF No. 206 at 7 n.1.)
Moreover, even assuming that the 2025 revisions to the FOH Handbook
retroactively apply to Plaintiffs’ claims or otherwise temporally limit their recoverable
damages, it is far from clear to the Court that the entire concept of “related side work”
has been eviscerated. Consistent with the Dual Jobs Regulation, FOH § 30d06 now
states that “a tipped employee is still engaged in their tipped occupation when they
perform nontipped duties that are related to their tipped occupation ‘occasionally’ or for
‘part of the time.’” Cf. 29 C.F.R. § 531.56(e). Must the Court interpret “occasionally” or
“part of the time” to mean that any amount of time spent on related side work is
permissible? If not, but “occasionally” or “part of the time” is no longer adjudged by an
80/20 threshold, then how much time spent on related side work is too much?
At bottom, Defendants’ Motion is woefully underdeveloped regarding the legal
impact of the recent revisions to the FOH to Plaintiffs’ claims in this case. As a result,
whether such revisions have changed the legal standard governing Plaintiffs’ related
side work claims will remain a legal question the parties and the Court must instead
grapple with at trial.
IV. CONCLUSION
For the reasons set forth above, Defendants’ Motion for Reconsideration (ECF
No. 223) is DENIED.
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Dated this 19 th day of December, 2025.
BY THE COURT:
______________________
William J. Martinez
Senior United States District Judge
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