Wednesday, August 5, 2009

The Explainer: Can a Server Be Held Responsible for a Patron Walkout at a Restaurant?

by Christian Stegmaier
cstegmaier@collinsandlacy.com

Last week, a reader of this blog posed the following: "As a former restaurant manager, I occasionally had to handle walkout situations, where guests either somehow forgot to pay or simplydidn't want to. In situations like this, can the restaurant require theserver to cover the balance, or does the restaurant have to eat the bill?"

The answer to that question appears to be - like many others answers to legal questions - "It depends."

While I am not an employment lawyer, this is what we discovered the following after doing some research:

In South Carolina, a restaurant could require that its wait staff cover the checks of “walkouts” as a condition of employment. Under S.C. Code Ann. § 41-10-30(A) (1976), employers with more than five employees are required to notify each employee in writing at the time of hiring (1) the normal hours and wages agreed upon, (2) the time and place of payment, and (3) the deductions which will be made from the wages. An employer cannot “withhold or divert any portion of an employee's wages unless the employer . . . has given written notification to the employee of the amount and terms of the deductions.” § 41-10-40. Therefore, assuming it gives proper notice of its intent to deduct the value of walkouts’ bills from its wait staff’s checks, the restaurant could likely withstand a lawsuit from an aggrieved waiter. Additionally - and very importantly - a restaurant's managers must enforce whatever policy the restaurant adopts equally and uniformly among its staff.

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The preceding response does not constitute legal advice. Consult counsel in your jurisdiction for advice regarding employment practices in the hospitality setting.