If I’m a waitress make $2.13 an hour before tips, can my tips be taken due to a mistake that I had nothing to do with?

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If I’m a waitress make $2.13 an hour before tips, can my tips be taken due to a mistake that I had nothing to do with?

I just received a message from my employer on the topic of mistakes and comps for food and drinks. He stated that the kitchen staff, server or bartender is responsible for the mistake but all will be expected to pay for it out of pocket or tips earned that night. Is this legal? Should I hire a lawyer?

Asked on February 2, 2016 under Employment Labor Law, Texas

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 6 years ago | Contributor

1) He can't take any part of your pay, whether wages/salary or tips, without your consent; employee pay may only be withheld with consent or as otherwise required by law (e.g. tax withholdig, or court-ordered wage garnishment).
2) If you don't have an employment contract protecting your employment, you may be terminated if the employer thinks you cost him money, and he doesn't need to prove it--indeed, without an employment contract, you are an "employee at will" and may be terminated at any time, for  any reason (even a mistaken one), or even for no reason at all.
3) If an employer thinks you negligently (carelessly) or intentionally cost him money, he does have the right to sue you for it and try to prove his case in court; if he does so and can prove by a "preponderance of the evidence" ("more likely than not") that you did cost him money in this case, he could get a court judgment in his favor requiring you to pay.


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