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Employee Withholding, legal?

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BrokenHeart2012 posted 9/6/2013 15:30 PM

I was just paid and to my surprise when I opened by envelope I was deducted for some food items that I left out, by accident. I was not told that it would be deducted. Was wondering if this is legal?

Catwoman posted 9/6/2013 15:36 PM

Can you make this more clear? Are they deducting spoiled food items from your pay? What does your employee handbook say?


BrokenHeart2012 posted 9/6/2013 15:41 PM

I accidently left food out overnight so therefore it was spoiled and not fit for consumption. There is no employee handbook. I work in a small restaurant with just 5 regular employees, very small family run place.

ajsmom posted 9/6/2013 15:52 PM

Was wondering if this is legal?

Nope. Not without notice to you that it would be done and you acknowledging the same.

Have you tried talking to them? My first question to them would be "Please show me the written policy that explains pay would be deducted for food spoilage."

It doesn't matter how small they are - if they make a deduction, it should be clearly explained to you.


BrokenHeart2012 posted 9/6/2013 15:56 PM

Thank you. When I came in the next morning I saw the pan there and asked if that was left out? She replied it was there when she got here. I apologized and thought that was the end of it. I have been under the weather this week. No excuse.

I am starting to look for another job. One that is not a dictatorship.

BrokenHeart2012 posted 9/6/2013 16:05 PM

What I got with my pay stub was an itemized note of all the ingredients and how much every item cost. The total of all the items was deducted from my pay. UGH!!

ajsmom posted 9/6/2013 16:14 PM when you do quit, notify your state's labor board.

They will have to provide proof they told you this would be deducted and if not, they'll get it back for you.

My guess is they do this crap all the time.

BrokenHeart2012 posted 9/6/2013 16:21 PM

Thanks ajsmom, unfortunately it a very small business. Right now the owner has it out for me, not sure why but oh well. It was only $22.00. Not worth my time to report. I was just wondering if a business can do something like that.

ajsmom posted 9/6/2013 16:23 PM

It's not the money that's important.

It's turning the feds onto these people for breaking labor laws.

I guarantee you, you're not the only one they are stealing from!

BrokenHeart2012 posted 9/6/2013 16:28 PM

You are right. Thank you for your advice and words of encouragement.

Eranda posted 9/6/2013 18:21 PM

If you're hourly, I believe it's legal, as long as the deduction doesn't cause you to be paid below minimum wage for the hours you worked.

madsadalone posted 9/6/2013 18:43 PM

It is not legal.

In any restaurant situation... guest leaving without paying, server error in ordering, dropping food on the floor or leaving it out all day or night is the cost of doing business.

They must have a policy of like three strikes and your gone, but they can not deduct or force you to pay.

Zolotas posted 9/6/2013 18:53 PM when you do quit, notify your state's labor board.

Before you quit, or even if you don't quit, or before they terminate you, notify the state labor board of the deduction. They can't deduct from your pay for this.

My opinion is not to quit - let the employer make a move on this.

Good luck.

Eranda posted 9/6/2013 19:48 PM

Wage and Hour Division (WHD)
(Revised July 2009) (PDF)
Fact Sheet #16: Deductions From Wages for Uniforms and Other Facilities Under the Fair Labor Standards Act (FLSA)
This fact sheet provides general information concerning the application of the FLSA to deductions from employees' wages for uniforms and other facilities.
The FLSA does not allow uniforms, or other items which are considered to be primarily for the benefit or convenience of the employer, to be included as wages. Thus, an employer may not take credit for such items in meeting his/her obligations toward paying the minimum wage or overtime.
Uniforms: The FLSA does not require that employees wear uniforms. However, if the wearing of a uniform is required by some other law, the nature of a business, or by an employer, the cost and maintenance of the uniform is considered to be a business expense of the employer. If the employer requires the employee to bear the cost, it may not reduce the employee's wage below the minimum wage of $7.25 per hour effective July 24, 2009. Nor may that cost cut into overtime compensation required by the Act.
For example, if an employee who is subject to the statutory minimum wage of $7.25 per hour (effective July 24, 2009) is paid an hourly wage of $7.25, the employer may not make any deduction from the employee's wages for the cost of the uniform nor may the employer require the employee to purchase the uniform on his/her own. However, if the employee were paid $7.75 per hour and worked 30 hours in the workweek, the maximum amount the employer could legally deduct from the employee's wages would be $15.00 ($.50 X 30 hours).
The employer may prorate deductions for the cost of the uniform over a period of paydays provided the prorated deductions do not reduce the employee's wages below the required minimum wage or overtime compensation in any workweek.
Other Items: Employers at times require employees to pay or reimburse the employer for other items. The cost of any items which are considered primarily for the benefit or convenience of the employer would have the same restrictions as apply to reimbursement for uniforms. In other words, no deduction may be made from an employee's wages which would reduce the employee's earnings below the required minimum wage or overtime compensation.
Some examples of items which would be considered to be for the benefit or convenience of the employer are tools used in the employee's work, damages to the employer's property by the employee or any other individuals, financial losses due to clients/customers not paying bills, and theft of the employer's property by the employee or other individuals. Employees may not be required to pay for any of the cost of such items if, by so doing, their wages would be reduced below the required minimum wage or overtime compensation. This is true even if an economic loss suffered by the employer is due to the employee's negligence.
Employers may not avoid FLSA minimum wage and overtime requirements by having the employee reimburse the employer in cash for the cost of such items in lieu of deducting the cost from the employee's wages.
Typical Problems
(1) A minimum wage employee working as a cashier is illegally required to reimburse the employer for a cash drawer shortage. (2) An employer improperly requires tipped employees to pay for customers who walk out without paying their bills or for incorrectly totaled bills. (3) An employer furnishes elaborate uniforms to employees and makes them responsible for having the uniforms cleaned. (4) An employee driving the employer's vehicle causes a wreck, and the employer holds the employee responsible for the repairs, thereby reducing the employee's wages below the minimum wage. (5) A security guard is required to purchase a gun for the job, and the cost causes him/her to not earn the minimum wage. (6) The cost of an employer-required physical examination cuts into an employee's minimum wage or overtime.

According to Federal Law, employers MAY deduct from an employee's pay for things like damages, cash drawer shortages, uniforms, etc.- IF said deduction does not reduce the employee's pay for that pay period below the federal minimum wage. They are allowed to prorate the deduction over a number of pay periods in order to meet this requirement.

The cannot deduct those things from the pay of a minimum wage employee, but they CAN deduct it from people over minimum wage.

I don't believe they have to tell you about it first, either.

Now... most employers with half a brain wouldn't risk employee morale over $22.

But unless your state law says different, IT'S LEGAL.

BrokenHeart2012 posted 9/6/2013 22:20 PM

Thank you everyone. I see now that my boss can and has done what she thinks is right. I understand what I did was wrong.

What I don't understand is, if there are only two people working in a small kitchen, why would you go and piss off the other person working with you to the point of making them want to quit!? Now you're down to one, just you. A simple write up would have been fine. In fact after I said I was sorry for leaving the food out she acted like case closed. Boy was I wrong.

Again thank you all for sharing your knowledge and insitghts. I have learned my lesson, the hard way.

Too_Trusting posted 9/7/2013 06:59 AM

One thing that many do not realize is that FEDERAL wage laws do NOT apply to businesses that employ 15 or fewer people. I learned that the hard way myself - I was paid as a "salaried" employee for a job title that was strictly prohibited in the federal law from being "salaried". IOW, they didn't have to pay me for OT when they essentially gave me a job that required it. Turns out the federal law didn't apply - 15 or fewer employees.

From what Broken has described, I'm thinking the federal law doesn't apply to her either.

Eranda posted 9/7/2013 08:05 AM

TT- can you point me to the part of the FLSA that shows an exemption for businesses with 15 employees or less?

I did a quick google and I can't find that anywhere.

The only thing I did find was this:

September 1st, 2012 | Comments Off
Some employers mistakenly believe that they must employ fifteen people before the overtime rules apply to them. Coverage under other federal civil rights statutes, such as Title VII of the Civil Rights Acts of 1964 and 1991, requires fifteen employees. Coverage under the FLSA, however, is not dependent on the number of employees. We have successfully brought overtime cases where there were as few as two employees. That can be a very expensive way for an employer to learn about the FLSA.

[This message edited by Eranda at 8:10 AM, September 7th (Saturday)]

BrokenHeart2012 posted 9/7/2013 13:28 PM

Whether it's legal or not my boss is wrong in my eyes. She should have told me that she was taking money out of my check for my oversight. It should not matter if she has 5 employees or 100 employees. It's just not right.

I do not want to be involved in any part of her business anymore. As soon as I find another job I will be leaving her.

Too_Trusting posted 9/7/2013 15:00 PM


I don't recall where I confirmed it, but I remember talking to other employees at my firm about blowing the whistle on our employer for making us "salaried" when the law strictly prohibited our classification of workers (legal assistants and paralegals) from being classified as "salaried". The employee told me it didn't apply to our employer because they employed fewer than 15 people. It wasn't that they refused to pay us overtime; it was that they classified ALL jobs as salaried and we were not paid overtime, but weren't given comp time either.

I do remember looking later and thought I confirmed that it didn't apply to us because of the # of employees.

**Edited to add: Hmmmmm, now I wonder if I was fed a line. I can't find an exemption from Fed law based on less than 15 employees. What I do find shocking, however, is that an employer with fewer than 20 employees is exempt from the age discrimination laws! I always thought it was odd that my employer didn't post the required Wage & Hour poster on the premises. I may just make an inquiry to the Feds myself on Monday. They owe me nearly 5 years of overtime!

[This message edited by Too_Trusting at 3:23 PM, September 7th (Saturday)]

Eranda posted 9/7/2013 17:48 PM

You're right... there are A LOT of restrictions on who can be classified as salaried exempt. Basically, the rule of thumb is that if your job is part of the process that makes or creates what the company "sells" (in the legal profession, anyone who "makes the product" would not be able to be classified as exempt). Exempt is strictly for managers (whose only job is managing) and people like HR, accounting, the legal dept in a firm that makes or sells something else...)

A lot of companies just classify anyone with an office job as salaried exempt and that's wrong- and it doesn't matter what your job title is... it matters what you do everyday.

If you think you were not paid overtime improperly, definitely contact someone. I can tell you from personal experience how this works: they owe you overtime for the previous two years (that's the SOL on this sort of thing)- BUT you may get twice the amount of overtime you were not paid in the first place.

If it's a significant amount, I would suggest consulting with an attorney. It could be very lucrative to you to pursue this, believe me.

I once worked for an employer who tried to get away with paying something called "fluctuating work week overtime"- which IS legal, but it will illegal to apply it to my job and many other jobs at that company. I confronted them and fought it and they ended up paying all of us two years of back overtime x2. I ended up with a check for several thousand dollars.

They thought I had a lawyer LOL but I didn't- I just did my research and stood up for myself. Anyone can do that.

Everyone who works should know the laws and demand that their employer follow them if they're not. Employers can get in a lot of trouble for not complying with the FLSA.

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