Paying for the crimes of others

December 6, 2007 8:12 PM

Is my sister's employer doing something illegal?

My sister called me up today with a question. She's a waitress and at her workplace, money has come up missing from the restaurant. The management is requiring all employees to pay back the missing money out of pocket. She asked me if that was legal. I told her that it did not sound legal, since they have not determined who actually took the money. I also told her that I'm not an authority on the subject, and that she needs to talk to someone more knowledgeable, such as an employment lawyer or one of the local community legal aid services.

Is my instinct right? Is this illegal? (As my screenname implies, I'm in Arizona, if that matters.)

posted by azpenguin to Work & Money (17 answers total)

In California, an employer can only deduct money if the missing money was from gross negligence - ie, more than a simple mistake.
posted by saeculorum at 8:19 PM on December 6, 2007

I doubt it.

According to this site (which takes language from section 23-352 of the Arizona code), an employer can only withhold on an employee's wages (in addition to the normal reasons) if "there is a reasonable good faith dispute as to the amount of wages due," and that includes a "claim of debt, reimbursement, recoupment or set-off."

Putting aside for a moment the situations in which an employer can withhold on a single employee when the employer knows that the specific employee has caused a loss, I don't see how your sister's employer make out a "reasonable good faith" claim that each employee was responsible for a pro rata share of the loss.

In fact, whatever happened to the money, it's almost certain that each employee didn't take an equal amount, and the employer has to know this.

Since the employer knows that each employee didn't really take an equal amount, it doesn't appear that withholding an equal amount from everyone's paycheck is in good faith or reasonable.
posted by "Tex" Connor and the Wily Roundup Boys at 8:45 PM on December 6, 2007 [2 favorites]

Clarify please, if there's $50 missing, and 5 employees, is each employee being told to pay $50, or $10? If it's $50, that's likely to be going outside a mere breach of employment law and into breach of criminal law, ie, stealing.
posted by aeschenkarnos at 9:35 PM on December 6, 2007

Here are a couple ways to figure out if it's legal:

1. Call your state legislator and ask.

2. Call your attorney general's office and ask.

3. Call the Volunteer Lawyer's Program and ask. Your sister may need to be low-income to qualify for free assistance, but they're likely to answer your question anyway.
posted by lockestockbarrel at 9:49 PM on December 6, 2007 [1 favorite]

That's absurd. It's also an incentive for the employer to steal from himself. You might want to send your boss this recent news story.
posted by weapons-grade pandemonium at 10:33 PM on December 6, 2007

It's illegal.

Not to sound overly litigious, but if I was in her spot, I'd contact an employment lawyer via the local bar association (or other discounted lawyer referral service). I'd ask them for very specific advice for how to properly refuse to give the money, such that if she got fired for it, that she might have a significantly larger lawsuit that she could win.

After all, assholes like her boss deserve a good suing.
posted by Tacos Are Pretty Great at 12:12 AM on December 7, 2007 [1 favorite]

Talk about a rock and a hard place.
What the employer is doing is almost certainly illegal. Hell, who's to say the loss isn't a result of his poor bookkeeping?
On the other hand, if your sister involves a legal remedy or threat, she will also, almost certainly, lose her job. Employers don't take kindly to that sort of thing.
posted by Thorzdad at 5:14 AM on December 7, 2007

On the other hand, if your sister involves a legal remedy or threat, she will also, almost certainly, lose her job. Employers don't take kindly to that sort of thing.

That's why you contact an employment lawyer first. So when he fires her, she can sue for a couple years of wages, plus punitive.
posted by Tacos Are Pretty Great at 5:22 AM on December 7, 2007

This is, unfortunately a very common practice at restaurants, as is requiring the wait staff to pay for people who leave without paying their check. It is my understanding that it is illegal (IANAL) but in reality wait staff who complain about mistreatment often find themselves scheduled for fewer and less desireable shifts until they quit. (I have a number of friends who are or have been waiters/bartenders at some point and I am amazed at the abuse they have to put up with from managers).
posted by TedW at 5:46 AM on December 7, 2007

I'm getting my shifts cut down because I have to go home for Christmas, I can't imagine what kind of treatment I'd be getting if I involved a lawyer in anything. It seems to me like managers of restaurants make their own rules about things like this.
So, while it is illegal, the manager probably doesn't think he's doing anything wrong. He will probably fight against legal action harder than someone not in the restaurant industry.
posted by d13t_p3ps1 at 6:00 AM on December 7, 2007

hat's why you contact an employment lawyer first. So when he fires her, she can sue for a couple years of wages, plus punitive.

Arizona is a right-to-work state. An employer can fire an employee at any time for no stated reason.
posted by Thorzdad at 8:36 AM on December 7, 2007

Arizona is a right-to-work state

Actually, I think you mean work-at-will state. Right to work has to do with requiring employees to join a union. Both tend to favor the rights of the employer over the employee, though.
posted by TedW at 8:53 AM on December 7, 2007

Thorzad, are you confusing right-to-work with employment-at-will?
posted by radioamy at 8:55 AM on December 7, 2007

Ted & amy...
Sorry about that. In my little economically-depressed corner of the world, both terms tend to be bandied-about, however incorrectly, by non-legal-types as a generic reference to sets of laws set in-place to minimize employee rights.
I'll be more careful in the future.
posted by Thorzdad at 9:07 AM on December 7, 2007

You are right, people confuse the two terms all the time. I think it is important for (especially) non-legal types to understand some of these legal doctrine so that more people understand the biases built into the legal system (and perhaps eventually change it to level the playing field). No need for apologies though, you are also right to imply that this is a situation where even if the law is on the employee's side, in reality there is little that can be done to enforce it without the consequences being worse for the employee than the employer.
posted by TedW at 9:14 AM on December 7, 2007

That's why you contact an employment lawyer first. So when he fires her, she can sue for a couple years of wages, plus punitive.

Isn't there a duty to mitigate? I mean, restaurant work is not the kind of one-in-a-million niche market jobs out there that it would truly take a reasonable person "a couple years" to find a reasonably equivalent job in the marketplace. If there is a duty to mitigate, a lawsuit will reap only that portion of lost wages which were reasonable. I.e. I think that after a certain amount of time (I have no idea how that line is drawn from my limited work with these types of cases), it's obvious that someone is sitting on their bum 3 years down the line hoping for a windfall.

And are punitive damages available for a basic wrongful termination, even assuming the suit could proceed in the face of employment at will? Absent gross wilfull wanton etc. really egregious (I don't know, like blatantly firing a female employee for refusing sexual favors), I'm thinking no punies here (or every wrongful termination would have punies, which I know is not the case).

Am I taking the comment too seriously? I really hope it was a throwaway joke by someone in the know and my obvious lack of sense of humor is tricking me into taking it at face value.

Agree re: the rock and a hard place - is it remotely possible to get every single staffer to agree to protest? Can't fire EVERYONE.
posted by bunnycup at 3:33 PM on December 7, 2007

Am I taking the comment too seriously? I really hope it was a throwaway joke by someone in the know and my obvious lack of sense of humor is tricking me into taking it at face value.

I'm an employer, not a lawyer. As an employer I've been exposed to absolute assloads of advice about what not to do to employees, because they might sue.

Perhaps I have very conservative counsel, but basically I have been advised to never take any disciplinary measures (or actions that could be construed as disciplinary measures) unless I have clearly documented a pattern of bad behavior and have also documented that I've discussed these bad behaviors with the employee in question.

As such, my immediate reaction to this was "an employer who takes punitive action because an employee didn't like being treated as a thief is likely in trouble." As for how much trouble, that's why I recommended talking to an employment lawyer from a bar association referral first; to find out if there were any worthwhile options.
posted by Tacos Are Pretty Great at 6:07 AM on December 9, 2007