UnderCover Waitress: Legal Advice and Dine and Dash

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Sunday, March 4, 2012

Legal Advice and Dine and Dash

Even Wal-Mart cares about the safety of its employees. They care so much, they fired one for getting in harm's way. 


As much as the above statement is dripping with sarcasm, Wal-Mart did fire an employee for chasing after a thief. The former employee radioed for help to stop a thief from leaving the store with unpaid merchandise. Wal-Mart security tackled the guy who then pulled out a knife, slashed at the employee's face and ran off. At this point, Wal-Mart's "no chase" policy went into effect. The employee, however, didn't want to let the guy get away and gave chase. Wal-Mart the employee go. 


Wal-Mart's "no chase" policy is most likely to protect the corporation for being held liable for employee injuries, and less about feeling warm and fuzzy about people. At the same time, if the employee had not given chase, he would not have had the cost of the stolen merchandise deducted from his pay. 


An employee of Randall's chased a fifteen year old purse snatcher, caught him, and retrieved the stolen property. Randall's then fired him for giving chase.  


The issue is, again, the employee putting himself in enough danger to cause the employer massive financial liability. An article about detaining shoplifters at the Crime Doctor states: 


"It's critical to provide special training to anyone charged with the responsibility of apprehending shoplifters."


I have never heard of any food server receiving special training in apprehending people who leave the restaurant with paying, but if you are out there, please email me. Right. 


Lawyer Mark Sweet pontificates on what happens to the restaurant when people dine and dash. Obviously, he did not think it was worth his time to interview any actual restaurant workers. Instead, he writes: 


"There have always been rumors that a server will have to pay for the dine and dash customers.  In some states, this may be the case, especially if one particular server has multiple walk-outs."


Rumors? It's not a rumor; it is a well-known fact that waitresses often are required to pay the bill for walk-outs. Mr. Sweet continues: 


"However, many states have rules that require an employer to alert an employee of any deductions from their wages in advance."


Yeah, and the restaurant managers tell waitresses that they will or may end up paying for walk-outs. And then somebody pulls a dine and dash, and the waitress gets to pay. She was told in advance. End of story. 


"For many companies, the general rule is that you shouldn’t chase people outside of the premises."


True, but we are not talking about "many companies." We are talking about the restaurant industry. 


"That being said, many restaurants budget for walk-outs.  They realize that the cost of the food is not worth the potential injury to an employee chasing after someone."


Help! I fell out of my chair because I am laughing so hard my sides hurt! I am laughing so hard I can't breathe! HAHAHAHAHAHAHA!


In reality, some chefs would like to throttle the servers themselves when people dine and dash. Long hours, hot kitchens and low profit margins make for a grumpy boss when people steal. It must seem easy to blame the waitress, who was supposed to take payment. The boss tells himself that maybe the problem was the waitress was unattentive and the people would have paid if she had just paid attention and done her job. It gives the boss his money, it gives him somebody to blame, and it gives him a false sense of control. If he punishes the waitress by making her pay, she won't make the same mistake again. Problem is, most likely she made no mistake. I can not control the behavior of other people, and if somebody comes in planning to steal, it is not my fault. 


Of the nine people who left comments on the lawyer's blog post, six of them did so to tell him how wrong he was. Five of those were servers speaking up about the realities of working in the restaurant industry. One was a chef who was infuriated that some lawyer would tell people that restaurants budget for dine and dash. The profit margin in the restaurant industry is lower than in other industries; restaurants suffer plenty of loss of product due to spoilage or having something sent back. The industry certainly does not need the public being told we budget for dine and dash. 



13 comments :

  1. At my corporate company servers get written up for walkouts....still sucks but at least since they are a corporate they don't try to make servers pay....also if a manager were to try to make a server pay the manager could actually loose their job

    ReplyDelete
  2. Had to repost to fix a typo...

    Anyway, luckily my employer is not like that.
    But more importantly, many employers ARE like that. The customer walking out may not have anything to do with the server, yet the server is the one who pays. It could be the wait time for food to leave the kitchen, it could be the quality of the food itself, who knows.
    I guess its just easier for those employers to blame everyone else but themselves for their own inadequecies.

    ReplyDelete
  3. Under Cover, you said,

    "Wal-Mart's 'no chase' policy is most likely to protect the corporation for being held liable for employee injuries"

    I doubt that this is the case. In every state that I know of, worker's compensation provides the EXCLUSIVE remedy of a worker acting within the scope of his or her employment. And employers like Wal-Mart generally handle their worker's compensation obligations by purchasing insurance.

    So an employee who is injured by the criminal act of a third party while doing his job is going to have his injury covered by worker's compensation. And the deal with worker's compensation is that the employee only has to prove his injury occurred within the scope of his employment and it gets covered, while the employer gets IMMUNITY from civil suit.

    It's an interesting question, one I haven't researched, whether worker's compensation benefits are available to a worker who, in chasing after a thief in violation of an express company directive not to do so, is seriously or fatally injured. I'm sure it's lawful to fire the employee for insubordination, but I'm not so sure the employee is entitled to benefits under the worker's compensation scheme, since the test is whether the injury occurred while acting in the course and scope of the employment.

    ReplyDelete
    Replies
    1. Good point about Worker's Compensation. Worker's Comp. is no-fault insurance. When an employee is injured at work, the worker's comp. insurance pays for health care but not for pain and suffering.

      If the employee is injured while disobeying policy, I would think there is a strong argument that s/he is on his or her own.

      Delete
  4. I often wonder when a restauranteur is getting business licenses set up, if they shouldn't be made to seriously look at the question "would I want to be treated this way if I was the server instead of the boss."

    As to Wal-Mart... that company is a cancerous monster, a plague wherever it goes.

    ReplyDelete
  5. We need support for a bill trying to get past in Ontario. It will prohibit owners/managers from taking any part of our tips. This means no more paying for dine and dashers, as well as tip pooling. Servers tips are for the server.
    Here is the facebook page: http://www.facebook.com/#!/ServersOntario

    Or you can get more infor from: http://michaelprue.com/2012/05/prue-to-re-introduce-bill-banning-unfair-tip-outs/

    ReplyDelete
  6. so it is my understanding that by Law in ontario, the manager is not allowed to deduct the unpaid bill from our wages, but is however allowed to make you pay for it out of your tips?
    Im asking because I live in Ottawa, and I went for lunch at my restaurant where I work 6 days a week, hadlunch with my son, left my money on the bar for my server/co-worker and a regular customer who comes in daily took my money while my server was in the back dropping off dishes ( we caught him on camera) and the boss made my co worker pay the 32$ bill even after seeing that our customer had stolen it.

    I felt bad, so I gave my server another 26$ which was my bill amount,so he didnt have to pay for it, no tip this time lol. But man, that is an expensive lunch! LOL

    ReplyDelete
  7. i had a dine and dash today.. i didnt have to pay.. but i got written up.. if it happens again.. i get terminated.

    ReplyDelete
    Replies
    1. Sorry to hear that. I really think it is ridiculous to hold a waitress responsible for criminal behavior on the part of customers. Do people leave the grocery store without paying because the line was too long -- and then the clerk gets fired for not checking people through fast enough?

      Delete
  8. i work in a buisness very similar, if the paying customer comes in and has his wife stay in store while he pumps his gas then while waiting for her husband to finish pumping gas the lady and husband leave without paying , so is it true that they can terminate my employement because i dont want to pay the drife off amount , basically im being told pay or your fired is that legal in missouri

    ReplyDelete
  9. sorry if im not on the right site to ask these questions but i dont know where else to ask so if i am in the wrong site can anyone please tell me where i can find legal info on convience stores

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  10. is it legal to post their pictures in the restaurant on the wall for dine & Dash.

    ReplyDelete

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