Employees Can’t Be Held Liable for Employer Loss

Q: At the restaurant where I work as a waitress, I carry around cash and make change for the customers. At the end of the evening, I give the amount of each check to the restaurant. What are the rules governing this? Twice, I’ve had to make up the difference when a customer has walked out without paying. Am I legally obligated to pay the difference?

--L., Huntington Beach

A: Generally, an employee can’t be responsible for employer losses. In fact, if they fire you because you refuse to make up the difference, you may have a claim against them for wrongful termination of your employment.

In a recent court case similar to your situation, a salesman sold an item, the customer paid the purchase price, and a commission was paid. Thereafter, the item was found to be defective and the customer returned it for credit. The company subtracted the commission already paid from the salesman’s next salary check. The court decided that this practice was illegal. Once the customer paid the bill, the commission was earned. The fact that the sale item was defective was not the fault of the salesman. The employer was forced to shoulder its own losses.

Your restaurant may justify this policy to prevent waitresses from diverting the money paid to their own use. Even though the restaurant cannot dock you for lost money, if they question your honesty, they do have the right to fire you or impose other disciplinary actions.

As a practical matter, I would suggest that whenever a customer fails to pay the check, you immediately inform your manager to prevent suspicion at the end of the day. If you complain about the practice or refuse to abide by it and they fire you, they may deny their policy or your prior complaints. Therefore, you should complain in writing about the problem so you can document your efforts to get the employer to follow the law.

--Don D. Sessions, employee rights attorney, Mission Viejo

Check Paycheck Stubs for Accurate Tax Data

Q: Although my employer withheld taxes, FICA (Social Security) and SDI (State Disability Insurance) from my 1995 paychecks, I do not believe he made payroll tax deposits or filed payroll tax returns. How can I find out and what can I do if these deposits were not made?

--J.R.

A: You are not entitled to receive confidential tax information about a business in which you are not an owner, partner, or officer. However, you should review your pay stubs to ensure they correctly record withholding for each pay period.

Keep copies of your pay stubs and compare them with the 1995 Form W-2 issued to you by your employer. If you do not receive a Form W-2, or if it is incorrect and your employer refuses to correct it, you may use your pay stubs to reconstruct your income and withholding for your 1995 tax return. You may contact the IRS for assistance with filing a substitute Form W-2 if you have not received one from your employer by Feb. 15, 1996.

You will not be penalized if your employer has not made the necessary payroll tax deposits. The IRS will follow up with your employer to recover these monies.

--Judith A. Golden, public affairs officer, Internal Revenue Service

Business Can Require Workers to Travel

Q: I worked in a company where much travel was required between job sites. Yet, travel was not mentioned originally in employee contracts. Many employees complained that requiring travel without compensation was not fair or legal. Is this a legal practice without prior contract stipulations?

--S.S., Anaheim

A: You really raise two issues here. First, an employer ordinarily may require its employees to travel as part of their work, even though such travel is not mentioned in their initial employment contracts. Unless you had a contract that specifically said you would not be required to travel, the law recognizes an employer’s right to make reasonable changes in an employee’s duties--and requiring an employee to travel as part of their work would not typically be considered unreasonable.

Whether you must be paid for such travel time is a different issue. The law requires that you be paid for time spent traveling between work sites during your normal workday. Time spent traveling out of town must also be paid if it occurs during normal working hours or if the employee actually performs work while traveling after hours. There is no requirement that employees be paid for time spent traveling after hours where no work is performed, however, and there is no requirement that a premium be paid to employees who must travel overnight on business.

--James J. McDonald Jr., attorney, Fisher & Phillips, labor law instructor, UC Irvine