Sunday, September 5, 2010

Walkouts – Who Is Responsible For Paying The Check?


Walkouts – Who Is Responsible For Paying The Check?

Walkout, Dine and Dash, Short Changed – they are all the same. Someone sits in your section, has a meal, and leaves without paying the all or part of the check. Yes, this has even happened to me and I had to make up the difference at the end of my shift. Is this legal?

Certainly not. Walkouts are a part of doing business for restaurant owners who can implement polices to help prevent patrons who want a meal but do not want to pay.  However, if you have read some of my other blog postings, there are always exceptions when it comes to restaurant law in Florida.

This is why it is illegal:

Most restaurants pay their service staff a reduced hourly wage of $4.23/hr. (Fla. Minimum Wage is $7.25/hr. minus the Federal Tip Credit of $3.02/hr. equals $4.23/hr.) When management requires a server to pay for a walkout out of his/her pocket, the hourly wage is dropped below the minimum allowable by law. The exception occurs when you are paid more than the minimum wage and the walkout deduction would not bring you below $7.25.

Of course it is a server’s job to watch his/her station to make sure people do not forget to pay, however, servers cannot be everywhere at once. This is why it is important that servers working next to each other watch each other’s stations and that management make sure that host/esses help too.

Walkouts are everyone employees responsibility, however, when it comes time to reconcile the POS, it is management’s, not the servers, legal duty to take care of the bill for the walkout.

As always, the legal opinion above does not apply to every single fact scenario dealing with walkouts so please call and ask us any questions you may have about your hospitality job.

Law Office of Lowell J. Kuvin
17 East Flagler Street, Suite 223
Miami Florida, 33131

Tele: 305.358.6800

lowell@kuvinlaw.com

20 comments:

  1. how about when you work overtime for a long period of time and you do not get paid? the company go out of bussiness but hey still have other bussinesses. Are they still responsible to pay for that overtime? which is more than a year a a half, and around 15 hours a week?

    ReplyDelete
  2. Rigo,

    If the restaurant closes but the corporation is still alive, or, the owner worked at the restaurant, you can still sue them/him for unpaid wages, liquidated damages (equal to the amount of unpaid wages, and attorney fees and costs).

    Contact my office to discuss the matter.

    ReplyDelete
  3. what happens if the server has a "a bank" and cash out the customer's checks. At the end of each shift, they pay the restaurant for the sales? I remembered it happened to me one July 4th several years ago and some of my co-workers had to pay also.

    ReplyDelete
  4. "Paying the restaurant for sales?" Not really sure what you mean by that. Please explain it a bit more.

    ReplyDelete
  5. the servers carry a "bank". cash out the customers checks. end of shift, add up all the checks and minus the credit card tips. then you paid the restaurant the total sales you did for that night. save the restaurant from having to hire a cashier.if you lost a check or people skip out on paying, you pay out of your pocket.

    ReplyDelete
  6. It is against the law to require servers to pay for missing checks or walk-outs. It lowers your hourly pay below the minimum wage rate. Say I work 10 hours at $4.23/hr. (42.30) and I then have to pay for a $50 walk-out. I was not paid any hourly wage; in fact, I had to pay the restaurant to work. Walk-outs are the restaurant's responsibility; cost of doing business. They can write you up for it, but they cannot require you to pay the bill.

    ReplyDelete
  7. So tips aren't configured into an employees wage..? You work 10 hours at $4.23, but you also made $100 in tips, my employer stil cannot make me pay the check, correct?

    ReplyDelete
  8. You got it. The law looks at tips as belonging to the server. Your employer would be lowering your hourly wage by making you pay for a walkout.

    ReplyDelete
  9. What is the law concerning a group of friends and/or colleagues with one leaving without paying? Can the remaining guests be held responsible for their friends tab?

    ReplyDelete
  10. I understand your reasoning and I also am aware of the minimum wage requirement, but there is one scenario where I am unsure that this logic would work. Say I worked a 6 hour shift at $4.23 an hour plus tips. This would make my wages for that shift (without tips) $25.38. In order to reach the regular minimum wage requirement of $7.25, my tips would need to come out to at least $18.20. What if my tips were actually $100.00 and I had a walkout that was $50.00 that my boss made me pay for. Would that be okay because I would still be leaving at the end of the night having made the required minimum wage of $43.50?

    ReplyDelete
    Replies
    1. No, the tips belong to you and only you unless there is a valid tip share arrangement. The walkout would be paid from your hourly wages, which means you earned noting and paid the house to work.

      Delete
  11. My former (I snowbirded in WPB for 2 months) is attempting to sock me for 2 walkouts my last 2 weeks there. One was a check in someone else's handwriting and his word that he transferred it to me trumps my word that he did not, esecially as another staffer was clearly scheduled in that particular station that evening. I also am being hit for another tab that I served one round to out of 4, who left when a rainstorm struck and I was busy clearing the outdoor seating area. (They moved to the bar and left through the 2nd entrance out of my sightline) She claims to have already sent in payroll after I sent her an email specifically denying authorization to debit my payroll for anything other than standard deductions. I have requested my manual tiime sheet and my final paystub be sent to my MD address at the soonest available moent to ensure accuracy in reporting. If she refuses, and/or deducts the walkouts from my payroll, should I hire a firm as yours for small claims and damages or contact the Dep't of Labor abuse hotline?

    ReplyDelete
    Replies
    1. Call us. We can usually fix things quickly; a letter works wonders.

      Delete
    2. I sent a final notice via email to her last night and recieved a confirmation today that the payroll information has been sent, albeit to the wrong address despite leaving a new forwarding address with her last week. I will be in touch when I see what is actually on there. Is there an email address best to contact you with???

      Delete
  12. My employer doesn't pay us hourly at all. Instead, he charges a 12% service charge to all the checks as our "salary." Of course, customers factor this into the tip. Is this legal? We also have to tip out other employees about 3% and attend unpaid mandatory meetings that threaten our job if we do not go. What are our rights on this?

    ReplyDelete
  13. oh-& it someone walks out we def have to pay for it if we wanna keep our job!

    ReplyDelete
  14. I have been getting these deductions out of my check for 10$ at a time, upon leaving the place where i was at i noticed there was 30$ taken out of my check this time and when i asked what this was about they said administrative fee for not clocking out? i never agreed to this nor signed a contract or any legal binding agreement to this.
    To my knowledge if you have employee that can't keep track of he or she's time you get rid of them not charge them without there knowledge.

    Is this legal to do

    Also they took out 25$ for uniforms fee upon employment i was told the uniform were giving too you, i never signed any agreement saying they can take money out my check if i don't return them or anything of that nature. Or anything that you have to pay for your uniform upon leaving.

    Also found out there took 54$ out of my check because of 20% gratuity was added to a check, management told me the customer was not aware of this (even tho its on the receipt and on the menu)and they had to refund the money even tho the tip was giving to me the following day. So long story short they took that out of my check too. they sent me a final check being 00.5$ with all these fee's attached

    ReplyDelete
    Replies
    1. When i say it was refunded i meant the tip not the meal

      Delete
    2. Deductions from your paycheck which lower your effective rate of pay below the Florida minimum wage are illegal. Manny of the "deductions" you describe are usually not allowed by the law if they pay you a reduced minimum wage rate that servers are normally paid. Please call the office and speak with an attorney for a more precise assessment of your issues.

      Delete