I work at work as a server in a chain restaurant and the manager made a mistake by failing to ring a charge on a large party correctly. As a result, they subtracted the $100.00 in lost tab from my wages. Are they allowed to do that?
They also cut my work hours several times a week, instead of paying me for 5 ½ hours of wages, I skip my breaks, and then they adjust my timecard to make it 5 hours, so I am denied the ½ hour of wages every time they do that. Are they allowed to do that?
No, it is not legal. In California, taking money from employees for mistakes they make is illegal and could subject the employer to penalties.
The leading case on this issue is the Kerr’s Catering Service v. Department of Industrial Relations (1962) 57 Cal.2d 319, in which the California Supreme Court essentially held that employers may not hold employees accountable for losses, shortages, or breakage occasioned by simple employee negligence or error. These are deemed to be a routine cost of doing business which cannot be passed along to employees. Moreover, an employer may not unilaterally take money out of an employee’s paycheck to pay for such losses shortages, or breakage.
Under certain limited circumstances, and employer may properly charge an employee for losses occasioned by the employee’s intentional or wilful misconduct, including theft. The employer might even be able to take a unilateral deduction from a paycheck under certain circumstances. However, the California Labor Commissioner and California courts have made clear that employers take such unilateral deductions “at their own peril,” and if ultimately found not to have a proper legal basis for such a withholding can incur waiting time penalties, interest, and attorneys’ fees, depending on certain factors.
With respect to the cut hours, your question is a bit unclear. An employer is entitled to reduce an employees work hours at any time for any reason. Are you saying that you have not been provided meal breaks?
The following are the rules and guidelines for meal breaks in Califonia, according to the California Division of Labor Standards.
In California, an employer may not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than thirty minutes, except that if the total work period per day of the employee is no more than six hours, the meal period may be waived by mutual consent of both the employer and employee. A second meal period of not less than thirty minutes is required if an employee works more than ten hours per day, except that if the total hours worked is no more than 12 hours, the second meal period may be waived by mutual consent of the employer and employee only if the first meal period was not waived. Labor Code Section 512. There is an exception for employees in the motion picture industry, however, as they may work no longer than six hours without a meal period of not less than 30 minutes, nor more than one hour. And a subsequent meal period must be called not later than six hours after the termination of the preceding meal period. IWC Order 12-2001, Section 11(A)
Unless the employee is relieved of all duty during his or her thirty minute meal period, the meal period shall be considered an "on duty" meal period that is counted as hours worked which must be compensated at the employee's regular rate of pay. An "on duty" meal period shall be permitted only when the nature of the work prevents an employee from being relieved of all duty and when by written agreement between the employer and employee an on-the-job paid meal period is agreed to. The written agreement must state that the employee may, in writing, revoke the agreement at any time. IWC Orders 1 -15, Section 11, Order 16, Section 10. The test of whether the nature of the work prevents an employee from being relieved of all duty is an objective one. An employer and employee may not agree to an on-duty meal period unless, based on objective criteria, any employee would be prevented from being relieved of all duty based on the necessary job duties. Some examples of jobs that fit this category are a sole worker in a coffee kiosk, a sole worker in an all-night convenience store, and a security guard stationed alone at a remote site.
The information presented here is general in nature and is not intended, nor should be construed, as legal advice. This posting does not create any attorney-client relationship with the author (who is only admitted to practice law in the State of California). For specific advice about your particular situation, consult your own attorney.
I am so sorry you are going through this - it sounds like there are definitely some improprieties going on. Unfortunately, big companies (including chain restaurants) are notorious for poorly treating employees by asking them to work overtime without paying them properly, forcing them to work through or skip meal breaks, and denying them overtime. You may very likely be entitled to damages, which include the unpaid wages, wages paid for skipped meal and rest breaks, unpaid overtime, as well as fines for their violations of California's wage and hour laws. My law firm represents individuals who have labor/employment claims against their employers. Feel free to give me a call at your convenience and we can discuss your specific situation; my consultations are always free. 213.596.6532 or [email protected] Thanks very much, Rabeh
Please note - I am providing you with general comments, not legal advice. Nothing in this answer creates an attorney-client relationship nor constitutes legal advice, as I do not know the facts of your case well enough to be able to guide you, nor am I making any promises about the outcome of your case, or any guarantees about my capabilities, skill level, or predicted success. If you would like to retain me to provide you with legal advice, please contact me and we can discuss the engagement.
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