# Servers paying for mistakes



## ccjp (Aug 14, 2012)

I work in a restaurant where the house policy is for serving staff to pay for their own mistakes.  Example: ringing in the wrong item, forgetting to modify dietary restrictions etc.  In a situation like this where the guest is impacted, the servers are required to pay (out of pocket) for the wrong item, as well as the replacement one.

I am convinced that ethically this is wrong, when your staff makes mistakes it should simply be included under the cost of doing business. I am seeking advice on the legality of it.  Is there any recourse in law against this?  Opinions and ideas please...


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## cacioepepe (Apr 3, 2011)

I'm pretty sure there is a law against this practice, depending on where you live. A restaurant I used to work at would charge the BOH staff for any items that were broken by that staff member. I did find this though...

http://www.restaurants.com/blog/can-a-restaurant-make-a-server-pay-for-mistakes/#.UiO4jxY0uAM


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## brandon odell (Aug 19, 2012)

There are both federal and state labor laws regulating tipped employees, so you should look at your state's labor laws for further clarification. When federal and state laws intersect, the one that most benefits the employee applies.

In regards to deductions, if the employee is making only the federal minimum wage of $2.13 per hour for a tipped employee, the restaurant may not deduct anything from the employee outside of allowed benefits because it will drop the employee's wage below minimum wage. The reason it will drop it below minimum wage, regardless of how much the server actually makes in tips, is because the employer may only claim $5.12 of the employee's tips toward a "tip credit" which brings the employee's $2.13 per hour wage up to the federal minimum of $7.25. So, even if the server actually earned $15 per hour in tips, the restaurant can only claim $5.12 toward calculating toward the minimum wage they have to pay by law. Essentially, unless a restaurant pays over $2.13 per hour, they cannot make a deduction without violating federal minimum wage law.

State laws often bring the minimum wage higher than the federal wage, and they may also raise the amount of employee tips the owner can apply toward the "tip credit". However, many of these states also have a law against an employer making deductions that bring the employee's wage below the state minimum wage. If they also put a cap on the "tip credit", it basically makes deductions illegal unless the restaurant pays over the states minimum base rate (i.e. $2.13 per hour).

This excerpt is from a fact sheet from the Department of Labor website, http://www.dol.gov/whd/regs/compliance/whdfs15.htm. Most questions like these are cover in the fact sheets and FAQs.

_*Typical Problems*_

_Minimum Wage Problems:_

_Where an employee does not receive sufficient tips to make up the difference between the direct (or cash) wage payment (which must be at least $2.13 per hour) and the minimum wage, the employer must make up the difference._
_Where an employee receives tips only and is paid no cash wage, the full minimum wage is owed._
_Where deductions for walk-outs, breakage, or cash register shortages reduce the employee's wages below the minimum wage, such deductions are illegal. Where a tipped employee is paid $2.13 per hour in direct (or cash) wages and the employer claims the maximum tip credit of $5.12 per hour, no such deductions can be made without reducing the employee below the minimum wage (even where the employee receives more than $5.12 per hour in tips)._
_Where a tipped employee is required to contribute to a tip pool that includes employees who do not customarily and regularly receive tips, the employee is owed all tips he or she contributed to the pool and the full $7.25 minimum wage._


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## Robert Urner (May 19, 2019)

We are having the same problem and wondering if anyone has found a solution to the "Server error" problem. 

Essentially we LOSE 5 or 6 times a week without consequence. 

Thoughts?


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## capecodchef (Jan 19, 2014)

Robert Urner said:


> We are having the same problem and wondering if anyone has found a solution to the "Server error" problem.
> 
> Essentially we LOSE 5 or 6 times a week without consequence.
> 
> Thoughts?


Hire and train better servers. Seriously. Explain to them the 5% rule. Throw something away that costs $15 to make, and with a well run location having a typical 5% bottom line, they need to personally sell $300 worth of product before they've made up for their mistake. And never let them eat the mistake.


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## chefbillyb (Feb 8, 2009)

This isn't like the waitstaff are working in a Nuclear plant and made a mistake emitting radiation into the city. If mistakes happen too often you remove the problem.


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## halb (May 25, 2015)

In any other business it's illegal to dock an employees pay for things like this. I don't know why (if it really is) legal for owners of food service businesses to screw their employees. The normal remedy for an employee that continues to make mistakes is to give them a warning then let them go. But you can't make them pay for your cost of doing business.


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## planethoff (Apr 25, 2011)

I don't know for sure, but lean toward believing it is not legal. However, I once worked for a guy that did expect servers to pay for their mistakes. I didn't work for him much longer after i found that out. (If they're going to do that, imagine what else they will do to punish/hurt employee)


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## halb (May 25, 2015)

planethoff said:


> If they're going to do that, imagine what else they will do to punish/hurt employee.


This business can be bad enough as it is without allowing employers a way to take money from employees.

Imagine your delivery guy getting into an accident with your truck. What are you going to do, make him pay for the repairs?


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## pete (Oct 7, 2001)

As far as I am aware, it is illegal to dock employees' pay for mistakes, but that doesn't mean that there can't be consequences. Write them up for these mistakes and if they make too many fire them. As long as you document it there should be no issues with unemployment.


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## PoorlyChef (May 30, 2019)

Shady business practices.. Why would anyone stay working at a place like that? Restaurant jobs are a dime a dozen in most cities, just get another one. Eventually the word will get around that this place is not a good place to work. 

A good leader will ask the employee probing questions as to why a behavior continues to take place and then coach, coach and coach.. If this doesn't change the behavior then first, second and final write-ups need to be documented and retained in the employee's personnel file when the now ex-employee try's to claim unemployment..


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## cheflayne (Aug 21, 2004)

PoorlyChef said:


> If this doesn't change the behavior then first, second and final write-ups need to be documented and retained in the employee's personnel file when the now ex-employee try's to claim unemployment..


I did that with an employee whose cash drawer kept coming up short. I even caught him red handed stealing cash from the drawer. I fired him. He was able to collect unemployment because I fired him. Unemployment office told me I could have called police and had him arrested, then if he no called/no showed because he was in jail, it would have been considered abandonment of employment and he wouldn't have been eligible for unemployment.


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