What is the legal basis for making servers pay for customers who walk out?

Question

In the US, different states have different laws regarding customers who leave without paying the bill, aka "Dine and Dash."

Some states allow for a restaurant to dock a server's pay, when a customer leaves without paying. However, I dont understand how a server is responsible for the actions of a customer. I cant think of any reason why a server would be considered negligent or how they would be in any way responsible for a customer walking out while they were doing their job, like paying attention to different customers, getting food, or any of the many other reasons the server would not be watching their customers.

So I am asking, what is the legal basis for a law allowing restaurants to make servers pay for dine and dashers?

Answer 1

Unless it is prohibited by law in some state (such as California), a server's employment contract can have a clause holding the server responsible for an unpaid tab. Even in lieu of such a clause, since in most states employment is at-will, the employee can be fired if they do not do as told. There is a limit to the effect that their wage cannot be reduced below minimum wage.

The question of the political rationale of this practice is outside the scope of law, but there are some legal factors that can lead to getting compensation from a server, even if pay-docking is prohibited. If a server intentionally colludes with a dine-and-hash customer, the server is liable. The server might also be negligent, for example they may have failed to notify management of evidence of an impending dine-and-dash such as overhearing a conversation, or watching the customers trickle out; or, disappearing for an unreasonable time for a smoke break (leaving the table unattended). Liability requires a lawsuit where the court decides if the server should pay.

Answer 2

france

You cannot dock an employee’s pay as a disciplinary measure

The general rule is that an employer may not dock an employee’s pay for any reason (article L1331-2 of the labor code).

For instance in Cassation, Chambre sociale, du 11 janvier 2006, 03-43.587, a work contract said that the company may dock an employee’s pay by the amount of fines the company received while the employee was driving the company’s car for professional purposes. This clause was found to be void.

The employer may recover damages through suit, but only for damages caused by the "heavy fault" of an employee, which they must invoke specifically. This is stricter than the (I believe standard in other countries) rule of "anything an employee does under color of their job role is on the employer". There are three variants of firing for cause under French law, "heavy fault" being the worst one where the employee intentionally hurts the employer with such gravity that they must be fired on the spot. This means that

• it must be intentional. Even extreme negligence does not qualify. For instance, suppose an operator of heavy machinery drinks on the job. That would only be "grave fault" (a lower threshold that still warrants firing on the spot, but does not reveal an intention to harm the employer), and therefore the employee is not liable, even though it certainly would not pass the test of "under color of the job".
• the employer must have acted on it immediately after they had knowledge of the incident. If the employer let the employee work for some time, the employer cannot claim later that the employee’s actions warranted on-the-spot dismissal.

For example, see Cassation, Chambre sociale, 17 avril 2013, 11-27.550 where under the same fact pattern, an employer was denied repayment of fines because they did not invoke the "heavy fault" of the recklessly-driving employee. (As is common in many labor law disputes, the employer and employee had a tacit understanding - in this case, "I dock your pay for fines and you keep a job" - but once a suit came about for other reasons, all those previous deals came under scrutiny.)

The employer may of course employ all other (legal) sorts of disciplinary remedies (up to an including firing for "simple fault") against a careless or misbehaving employee. If a restaurant owner believes that a waiter often lets diners do a "dine-and-dash" by a lack of vigilance, they may fire them (after one or two warnings first, and after following the correct procedural steps).

Some very specific cases

If

• the amount concerns one of the items listed at article L3251-2 of the labor code (tools and devices necessary to work; raw materials under the custody of the employee; money lent as a means of buying such things), and
• it is not a levied in the normal course of work in the sectors listed at article 3251-4 (hotel/restaurants/cafes "and other similar establishments", entertainment, or transportation), and
• the employee committed a "heavy fault" - jurisprudence of Cassation, 20 avril 2005, 03-40.069: "the monetary liability of an employee towards the employer may only result from heavy fault, even for [items such as "tools and devices necessary to work", here an access badge]"

then pay docking may be applied without needing to go through a court case.

(The only remotely-plausible fact pattern I can conjure up when all of those apply is a cashier that steals the contents of the cash register. Maybe I just lack imagination, though.)

Wage retention as a repayment of debt does exist

The only exception to the rule is that the employer may (within certain limit) dock the pay as repayment of an obligation from the employee towards them. This falls under the general theory of compensation, outlined at articles 1347 to 1347-7 of the civil code.

This theory requires (article 1347-1) that the reciprocal obligations be

• fungible, i.e. (for most cases) of a monetary nature;
• certain and liquid, i.e. there is no serious legal dispute as to the existence or amount; and
• ripe, i.e. an obligation to pay a sum by date X is only ripe after date X

The typical case would be if the employer incorrectly computes the wage to be paid in a given month, pays too high an amount, realizes their error, and consequently docks the next month’s pay to make up for it.

Answer 3

Aww…. I did not see anyone touch on the agreement between the patron and establishment. In the scenario where the patron receives there meal before paying there is a contract formed between P and E. I believe this is known as a verbal implied contract, as if one orders food they are implying the intention to pay for it, actions of P and E are done on good faith.

Now we had the Server, they serve the order and are to collect the tender between P and E on behalf of E. Now if P does not give the S the due tender, S could not be responsible as to having no part in the contract between P and E. There is no financial benefit for S whether collected or not with tenders from any P’s. For S would have to share benefit and drawback with E regarding P paying or not paying their tender.

Contract law has to meet certain requirements for it to be legal. Just because someone writes this and that and it gets signed does not make it legal. Just as corporations put things in the terms and conditions does not mean they are enforceable… To often its a means to scare and bully people into doing or not doing that will benefit anyone other than themselves.

For instance, I agreed to salary pay when I worked construction. Signed a little form, etc. Well according to the DOL the job title I head, the role it played within the company, the duties, authority and impact did not meet the standards to allow my employer the option in doing so. I found this out after the statute of limitations, because they owed me all my OT from loading, driving and unloading for 9 years.

Also, to what actions does S have to compel P to pay. Can they forcefully prevent them from leaving? Attack them? Is E going to cover any medical, legal expenses that may occur? Death benefits? There is a reason why companies have security detail, which is not it the description of being a server.

I take much of this a assumption to what any reasonable person could conclude whether they are in S, P or E’s shoes and that laws and statutes can be reevaluated due to case specifics that turn to case law. Also overturned to new understanding of being unlawful. TLDR? OK