PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ ROBERT KENNEY, individually and on behalf of all others similarly situated, Plaintiff - Appellee,

v. HELIX TCS, INC., Defendant - Appellant. No. 18-1105

________________ _________________ Appeal from the United States District Court for the District of Colorado (D.C. No. 1:17-CV-01755-CMA-KMT)

________________ _________________ Jordan D. Factor, (Jeremy T. Jons en and Carissa V. Sears, with him on the briefs) Allen Vellone Wolf Helfrich & Facto r, P.C., Denver, Colorado, for Def endant-Appellant. Lyndsay R. Itkin, (Michael Andre w Josephson, with her on the br ief) Josephson Dunlap Law Firm, Houston, Texas for Plaintiff-Appellee.

________________ _________________ Before HARTZ , SEYMOUR , and EID , Circuit Judges.

________________ _________________ SEYMOUR , Circuit Judge.

________________ _________________ Plaintiff Robert Kenney is a for mer employee of Defendant Helix TCS, Inc. (“Helix”), which provides securi ty services for businesses in C olorado’s statesanctioned marijuana industry. M r. Kenney filed this lawsuit a gainst Helix under the FILED United States Court of Appeals Tenth Circuit 

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Elisabeth A. Shumaker Clerk of Court2 Fair Labor Standards Act (“FLSA”) , 29 U.S.C. §§ 201–219, allegi ng that Helix misclassified him and similarly situated workers as exempt from the FLSA’s overtime obligations. Helix move d to dismiss Mr. Kenney’s clai m based on the Controlled Substance Act (“ CSA”), 21 U.S.C. §801, et seq , arguing that Mr. Kenney’s employment activities ar e in violation of the CSA and are thus not entitled to FLSA protections. The distric t court denied Helix’s motion to dismiss. We affirm.

I. Between approximately February 2016 and April 2017, Mr. Kenney worked as a security guard for H elix. Mr. Kenney alleges that he and oth er similarly situated security guards regularly worke d more than forty hours per week . Nevertheless, Helix classified these workers as exempt employees under the FL SA and paid them a salary instead of overtime. Mr. K enney initiated this action a gainst Helix under the collective action provisions of the FLSA, see 29 U.S.C. § 216(b), contending that Helix misclassified the security guards as exempt employees eve n though they frequently performed non-exempt job duties. He claims Helix is in violation of 29 U.S.C. § 207(a) by willfully f ailing to pay overtime. Helix provides security, inventor y control, and compliance serv ices to the marijuana industry in Colorado. Kenney v. Helix TCS, Inc. , 284 F. Supp. 3d 1186, 1188 (D. Colo. 2018). Mr. Kenney’ s job duties at Helix include d monitoring security3 cameras, patrolling assigned loca tions, investigating and docum enting all facilityrelated incidents, and enforci ng client, local, state, and fede ral policies and regulations. Id. Helix asserts that the FLSA doe s not apply to workers such as M r. Kenney because Colorado’s recrea tional marijuana industry is in violation of the Controlled Substances Act

. It therefore moved to dismi ss Mr. Kenney’s FLSA claim for want of jurisdiction under Ru le 12(b)(1) of the Federal Rul es of Civil Procedure or, alternatively, under Rule 12( b)(6) for failure to state a c laim. The district court denied Helix’s motion to dismiss and then ce rtified Helix’s interlocutory appeal of its orde r. Exercising jurisdiction pur suant to 28 U.S.C. § 1292(b), we affirm.

II. Both parties agree that we review de novo the district court’s denial of Helix’s motions to dismiss. A Rule 12(b )(1) motion to dismiss only req uires the court to determine whether it has author ity to adjudicate the matter. H elix argued below that the district court lacked subject matter jurisdiction because t here is no federal interest at stake. The district court co rrectly rejected this argument, identifying it as a challenge to the legal sufficien cy of Mr. Kenney’s claims rathe r than the jurisdiction of the federal courts. Kenney , 284 F. Supp. 3d at 1189 (citing Arbaugh v. Y & H Corp. , 546 U.S. 500, 516 (2006) (holdi ng statute’s definitional requ irement of who qualifies as employer “i s an element of a pl aintiff’s claim forrelief, not a4 jurisdictional issue”) ). Helix only cursorily mentioned this a rgument in its opening brief and dropped the issue en tirely in its reply brief. A Rule 12(b)(6) motion to dismi ss requires the court to evaluat e the sufficiency of the plaintiff’s allegations. “At this stage in the litigation, we accept as true the well pleaded factual a llegations and then determine if the plaintiff has provided enough facts to state aclaim to relief that is plausi ble on its face.” Hogan v. Winder , 762 F.3d 1096, 1104 (10th Cir. 2014) (internal citation and q uotation marks omitted). “A claim has f acial plausibility when the plai ntiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009).

III. Whether § 207(a) of the FLSA app lies to Mr. Kenney is an issue of statutory interpretation, which always be gins with the plain language of the statute. See, e.g ., Artis v. D.C ., 138 S. Ct. 594, 603 (2018). To state a claim for a violatio n of this FLSA provision, a plain tiff merely must show that he is an empl oyee who (a) worked more than forty hours per week, and (b) is either “engaged in c ommerce or in the production of goods f or commerce” or “empl oyed in an enterprise engaged in commerce or in the production of goods for commerce.” 29 U.S.C. § 207(a)(1). The statute then enumerates certain categories of employees that ar e explicitly exempted from FLSA protections, regardless of whether they meet these re quirements. The5 employer bears the burden to pro ve that an exemption under the FLSA applies to the plaintiff. See, e.g. , Lederman v. Frontier Fire Protection Inc ., 685 F. 3d 1151, 1157– 58 (10th Cir. 2012). Our case law confirms that FLSA protectio ns apply unless an establishment fits “plainly and unmistakably within the terms a nd the spirit of the exemption invoked.” Schoenhals v. Cockrum , 647 F.2d 1080, 1081 (10th Cir. 1981). Helix does not dispute the fact t hat Mr. Kenney is an employee who worked more than forty hours per week, and Mr. Kenney has clearly alle ged that he is covered by the plain l anguage of the FLSA. 1 Nor does Helix ar gue that Mr. Kenney fits into one of the FLSA’s enumer ated categories of excluded e mployees. As the Supreme Court has long emphasized , where the statute’s language is plain the sole function of the courts is to enf orce it according to its terms. Lucas v. Jerusalem Café , LLC., 721 F.3d 927, 934 (8th Cir. 2013) (citing United States v. Ron Pair Enters., Inc. , 489 U.S. 235, 241 (1989)). So Helix’s challenge “must fail u nless [it] can point to a different statuto ry basis for limiting ‘the broa dest definition that has ever been included in any one act.’” Lucas , 721 F.3d at 934 (quoting 81 Cong. Rec.

1 Helix does contest the allegati on that it engages in commerce within the meaning of the FLSA, see generally 29 U.S.C. § 203(b) (“‘C ommerce’ means trade, commerce, transportation, tra nsmission, or communication among the several States or between any State and any pl ace outside thereof.”), arguing for the first time on appeal that Colorado’s marijuana industry is only authorized wi thin the state’s borders. But Helix has waived th is argument by raising it for the first time on appeal. See Hormel v. Helvering , 312 U.S. 552, 556 (1941); Tele–Communications, Inc. v. Commissioner of Internal Revenue , 12 F.3d 1005, 1007 (10th Cir. 1993).6 7656–57 (1937) (statement of Sen. Black)). 2 Although Helix sidesteps the dis favored phrase “implied repeal” and claims to merely be reading the statutes in harmony with each other, in e ffect it proposes that we interpret the CSA as implicitl y repealing the FLSA’s overtim e mandate for employers in the marijuana industry. See Epic Systems Corp v. Lewis , 138 S. Ct. 1612, 1623–24 (2018). Construing this as Helix’s true argument is particularly accurate in light of marijuana’s history as a legal industry. See, e.g ., Marihuana Tax Act, 50 Stat. 551 (repealed 1970) (regulating all persons deali ng with marijuana, including companies and corporations); see also Raich , 545 U.S. at 11 (explaining history of marijuana regulation) . Prior to enactment of the CS A in 1970, the FLSA unquestionably covered these wo rkers. The Supreme Court recent ly reiterated that an implied repeal argument “fac es a stout uphill climb.” Epic Systems , 138 S. Ct. at 1624. We approach these argumen ts with a “strong presumption t hat repeals by implication are disfavored and that Congress will specifically address preexisting law when it wishes to suspend its normal operations in a later stat ute.” Id. (citation, quotation marks, and brackets om itted). And, as Helix itself d eclares, Congress is

2 Helix develops sever al lines of argument that do not bear on t he resolution of this appeal. Helix fra mes the issue as one of preemption by se tting state-sanctioned marijuana use in opposition to t he CSA, lengthily addresses fed eral enforcement of the CSA with respect to marijuan a offenses, and examines state court treatment of employment protections in the c ontext of marijuana use. None o f these arguments pertain to the present case, whi ch concerns not the federal leg ality of marijuana but the interaction between two fed eral laws and the resultant appl ication of the FLSA to the plaintiffs here.7 presumed to know the law when legislating

. Aplt. Br. at 19; see also In re Harline , 950 F.2d 669, 675 (10th Cir. 1991). Helix argues that inclusion of Mr . Kenney under the FLSA is an overly technical reading of the statute , and that legislative intent w ith respect to this issue must be inferred from the distinc tive purposes of the FLSA and the CSA as the two statutes in question. Helix cont rasts the purpose of the FLSA, which it identifies as ensuring “the free flow of goods in commerce” and “the orderly and fair marketing of goods in commerce,” Aplt. Br. at 20 (citing 29 U.S.C. § 202), f rom the purpose of the later-enacted CSA, which it desc ribes as “eliminat[ing] commerc ial transactions of marijuana in the interstate market in their entirety.” Id. (citing Raich , 545 U.S. at 20) (brackets omitted). Helix then asserts that Mr. Kenney’s interpretation of the FLSA would “create a clearrepugnancy” between it and the CSA and im permissibly render the two laws mutually inconsistent. Aplt. B r. at 21. “Extendi ng overtime benefits in this case would require the Cour t to find that Congress intende d to both forbid (under the CSA) and reward (under the FLSA) the same conduct: drug tra fficking.” Id

. As outlined below, however, “case law is clear that employers a re not excused from complying with federal laws” because of their other federa l violations. Kenney , 284 F. Supp. 3d at 1190; accord United States v. Sullivan , 274 U.S. 259 (1927) (holding there was no reason “why the fact t hat a business is u nlawful should exempt it from paying the taxes that if lawful it would have to pay”); Lucas , 721 F.3d at 934 (“The employers’ argument to the contrary rests on a legal theo ry as flawed today as8 it was in 1931 when jurors conv icted Al Capone of failing to pa y taxes on illicit income.”). Contrary to Helix’s claims, recognizing Mr. Kenney as covered by the FLSA is in line with both the pl ain reading and the overall purposes of that statute, and doing so does not require disavowal of the CSA. As we recognized in Baker v. Flint Engineering & Const. Co. , 137 F.3d 1436, 1440 (10th Cir. 1998), the Suprem e Court has emphasized the “st riking breadth” of the FLSA’s definition of empl oyee, which is purposefully expans ive to maximize the full reach of the Act, see United States v. Rosenwasser , 323 U.S. 360, 363 (1945). Congress has shown that it knows how to limit this broad defini tion of employee when it intends to do so, a nd it did not do so here. See 29 U.S.C. § 203(e); see also
Lucas , 721 F.3d at 934 (applying FLSA to unauthorized immigrants). Congress has actually amended the FLSA many times since the en actment of the CSA without excluding employees working in th e marijuana industry, despite specifically exempting other categories of workers. See 29 U.S.C. § 213. The Supreme Court has held that the FLSA’s “specifi city in stating exemptions str engthens the implication that employees not t hus exempted . . . remain withi n the Act.” Powell v. United States Cartridge Co ., 339 U.S. 497, 516–17 (1950); accord Citicorp Indus. Credit, Inc. v. Brock , 483 U.S. 27, 35 (1987) (“ [W]here the FLSA provides exemptions ‘in detail and with p articularity,’ we have found th is to preclude ‘enlargement by implication.’”) Deherrera v. DeckerTruck Line, Inc. , 820 F.3d 1147, 1154 (10th Cir. 2016) (“B ecause FLSA exemptions are narro wly construed9 against . . . employers, in consid ering an FLSA exemption, a co urt must find that the claimed exemption fa lls plainly and unmistakably within the ter ms of the statute.”) (internal citations and quot ation marks omitted). Moreover, the purposes of the FL SA do not conflict with the CSA quite as directly as Helix imp lies. Helix cherry-picks among the enumer ated purposes of the FLSA, citing only those most fa vorable to its arguments. But t he FLSA was also enacted to promote “the health, e fficiency, and general well-be ing of workers” and to prevent unfair competiti on. 29 U.S.C. § 202; see also Brock , 483 U.S. at 36–37 (clarifying that FLSA contains m ore than one goal, including “C ongress’ desire to eliminate the competitive adva ntage enjoyed by goods produced u nder substandard conditions”). The FLSA is a remed ial scheme for the benefit of all workers. Anderson v. Mt. Clemens Pottery Co. , 328 U.S. 680, 687 (1946); see also Lamon v. City of Shawnee, Kan., 972 F.2d 1145, 1149 (10th Cir. 1992). Applying the FLSA to workers such as Mr. Kenney does not conflict with these enumera ted FLSA purposes. Helix counters that “C ongress did not seek t o level the same pl aying field that it tried to demolish.” Aplt. Rep ly Br. at 5. But adhering to the plain language of the statute here does not l evel the playing field within the illicit marijuana market but rather beyond it, preventing these unlawful businesses from procuring an unf air advantage over all other legiti mate employers who are required to comply with federal overtime laws. Indeed, a pplying FLSA protections to wo rkers such as Mr. Kenney will not grant these indivi duals any surplus benefit tha t they cannot easily10 obtain elsewhere, but the reverse would excuse Helix from FLSA costs and obligations and thereby allow it to reap additional benefit fro m its CSA violations. Denying FLSA protection to worke rs in the marijuana industry wo uld consequently encourage employers to engage i n illegal markets where they are subject to fewer requirements. But together the F LSA and CSA discourage busines ses from participating in the marijuana industry by alternatively subjec ting them to federal labor obligations and impos ing criminal sanctions. 3 Accordingly, accepting the plain language interpretation that Mr. K enney and similarly situated employees are covered by the FLSA promotes th e legislature’s intent in enacting the s tatute. See Brock , 483

3 Helix’s opening brief cites a va riety of jurisprudential arena s as supporting the contention that federal cour ts “consistently decline to rew ard participation in the marijuana industry.” Aplt. Br . at 10. The only context Helix continued to argue through oral argument is the T rademark Act. Beyond noting that Mr. Kinney convincingly distinguishes each o f the contexts and relevant au thorities that Helix cites, we will similarl y restrict our analysis. A trademark qu alifies for registration and its associated benefits if th e trademark owner has “used [t he mark] in commerce” or has a bona fide intent to do so, 15 U.S.C. § 105, and courts have long held that the commerce must be “lawful” for it to satisfy the “use in commerc e” requirement. See, e.g. , United Phosphorus, Ltd. v. Midland Fumigant, Inc ., 205 F.3d 1219, 1225 (10th Cir. 2000). Helix urges us to a dopt a similar interpretation f or the FLSA. Although the Trademark Act and FLSA both regulate interstate commerce, h owever, they function in fundamentally differe nt ways. The Trademark Act co nfers a benefit on owners who register their marks, securing a registrant’s right to benefit from a good reputation and thus protecting him from unfair competition. See Matal v. Tam , 137 S. Ct. 1744, 1752–53 (2017). The F LSA, in contrast, prevents u nfair competition, not by conferring a benefit on cer tain actors but by imposing o bligations across the labor market. Reading “lawful” i nto the threshold commerce req uirement here would not further the statute’s purposes by denying illegal businesse s a benefit, as in the trademark context, but would thwa rt the FLSA’s goals by exempti ng illicit markets from costs imposed on lawful employers.11 U.S. at 35–36 (“Petitioner urges us to look beyond the plain la nguage of the statute . . . . However, we conclude that th e legislative intent fully sup ports the result achieved by application of the plain language.”). The district court correctly rea soned and case law has repeated ly confirmed that employers are not excused f rom complying with federal laws just because their business practices are federally prohibited. See, e.g. , Sullivan , 274 U.S. at 263; see also Greenwood v. Green Leaf Lab LLC , 2017 WL 3391671 at *3 (D. Or. July 13, 2017), adopted by district court, 2017 WL 3391671 (D. Or. Aug. 7, 2017) (“[J]ust because an Employer is violating one federal law, does not give it license to violate another.”) (internal citation om itted). This has been true wit h respect to the FLSA in multiple contexts, strengthening th e conclusion that it remains true in this novel context of the marijuana industry. See Donovan v. Burgett Greenhouses, Inc. , 759 F.2d 1483, 1485 (10th Cir. 1985); Bustamente , 2018 WL 2349507 at *1 (workers in an illegal gambling operation). 4 Persuasive case law endor ses the concept that the FLSA is focused on regulating th e activity of businesses, in pa rt on behalf of the individual workers’ wellbeing, rat her than regulating the legal ity of individual workers’ activities. See, e.g ., Haro v. City of Los Angeles , 745 F.3d 1249, 1256 (9th

4 Helix attempts to distinguish the se cases on the basis that th ose employees were engaging in entirely lawful commercial activities, whereas the employees here are engaged in activities that violate the CSA. This argument is not convincing. The illegal nature of the gambling activity in Bustamente was directly acknowledged by the court in a footnote, and the innocuous nature of the work b eing performed by undocumented immigrants in the ot her cases discussed does not o ffset their active violations of federal la w in obtaining work.12 Cir. 2014). (“The FLSA is to be construed liberally in favor o f employees; exemptions are narrowly cons trued against employers.”). Notably, Helix failed entirely to address the Oregon district c ourt case that was cited here by both the district court and Mr. Kenney and is dir ectly on-point. Greenwood , 2017 WL 3391671. The district court in Greenwood relied on a legal advice memo written for the Nati onal Labor Relations Board to c onclude that any possible violations of the CSA ar e not relevant to whether the FLSA’s protections apply to workers in th e marijuana industry. Id. at *2–3. Considering arguments nearly identical to those made by Helix here, the court in Greenwood denied defendant’s motion to dismiss. See, e.g ., id . at *3 (“I conclude that any possible violations of the Controlled Subs tances Act are not relevant to whether the FLSA’s protections apply to Plaintiff. . . . There is no inherent con flict between the FLSA’s requirements and the Controlled Substances Act's prohibition of marijuana.”). Like the district court in Greenwood , we are not drawing any conclusions about the merits of Mr. Kenney’s FLSA claims. We hold only tha t Mr. Kenney and similarly situated individuals are not categorically excluded f rom FLSA protections. Accordingly, we AFFIRM the distr ict court’s deni al of Helix’s m otion to dismiss.