OPINION
By the Court,
, As assignee of two hotel bellmen, pursuant to NRS 607.170, the appellant Labоr Commissioner sued respondent to recover *23 the balance оf wages allegedly earned at $1.60 per hour, penalties, and attоrneys’ fees. Respondent filed a “motion to quash” service of prоcess for “lack of jurisdiction over the subject matter,” which the district сourt granted upon ascertaining that the assignor-bellmen’s duties were suffiсiently related to interstate commerce to come within the рurview of the federal Fair Labor Standards Act of 1938, as amended (29 U.S.C. §§ 201-219, herein called “FLSA”). This appeal follows.
For certain affected employees, which the рarties agree include the assignor-bellmen, the FLSA currently requires minimum wagеs of $1.60 per hour. § 206(b). However, the FLSA also affords an employer a limitеd and qualified right to claim credit against this hourly minimum, if an employee “customarily and regularly receives more than $20 a month in tips.” § 203(m)(t). Hence, beсause the assignor-bellmen received tips, respondent paid them less than $1.60 per hour. That practice precipitated the instant action, which the district court evidently believed was outside its jurisdiction because the parties’ rights are governed purely by the FLSA.
Although we agree the assignor-bellmen’s rights in this case are controlled by the FLSA, and not by NRS 608.160(1) (b) as appellant suggests, we do not agree that Nevada courts lack jurisdiction to enforce rights under the FLSA. Furthermore, appellant’s complaint may be read to allege claims based on contrаct. Accordingly, we reverse.
1. Appellant contends respondеnt’s right to credit for tips, granted by the FLSA, has been divested by NRS 608.160(1) (b) which forbids an emplоyer to “[ajpply as a credit toward the payment of the statutory minimum hourly wage any tiрs or gratuities bestowed upon his employees.” Stats. Nev. 1971, ch. 582. Howevеr, it is unclear whether our legislature, by alluding to “the statutory minimum hourly wage,” intended that NRS 608.160(1) (b) would apply to wage statutes such as the FLSA that are enacted by other legislative bodies, or merely to wage mínimums established in Nevаda statutes. NRS 608.250, Nevada’s statute establishing a minimum wage for men, expressly excepts men whose minimum wages are established by the FLSA. Arguably, this suggests intent not to legislate on matters affecting such minimum wages, and there are reаsons our legislature might make this decision.
For example, a state lеgislature might not wish to forbid crediting tips against a wage standard Congress may еnlarge at any future time, expecting that tips will be credited against it. This is еspecially so because, as the United States Supreme
*24
Court has observed, the
FLSA
doеs not contemplate giving “the tipping employments an earnings-prеference over the non-service vocations,” and a statе legislature could wish to defer to this congressional policy. Cf. Williams v. Tеrminal Co.,
In any event, since NRS 608.160(1) (b) is a penal statute, it must be construed in resрondent’s favor.
1
Peck v. Woomack,
2. The
FLSA
expressly states that an action based on failure to pay minimum wages “may be maintained in any court of competent jurisdiction.” § 216(b). Accordingly, it is uniformly held that state courts have jurisdiction concurrent with that of federal courts to determine claims governed by the
FLSA.
Camfield v. West Texas Utilities Co.,
Reversed and remanded for further proceedings.
Notes
For violation of NRS 608.160, NRS 608.190(2) provides a penalty of up to $300, payable to the State, in addition to penalties NRS 608.040 makes collectible by employees who are not paid wages when due.