Employee Not Liable for Customer’s Bill

Question: After my daughter was hired as a waitress, a customer used a stolen credit card to pay his $60 tab.

Since my daughter did not ask the customer to show identification, the restaurant owner said she was responsible for paying the crook’s tab from her tip money. She paid.

Can her boss do that? If not, what can she do to get back the money?

--L.W., Alhambra

Answer: Your daughter’s boss did not have the right to make that deduction from her tip money just because she failed to ask the customer to show an ID.

The law generally prohibits an employer from making deductions from an employee’s wages--your daughter’s earned tips are just as much a part of her wages as her hourly compensation--due to cash shortages or breakage or other losses. The law assumes that is a normal risk of doing business.

The only exception is where the employer can prove that the loss was caused by the employee’s dishonest or willful act, or that it was due to gross negligence.

This rule is in Section 8 of the Wage Order that covers restaurants. It should be posted where your daughter works.

She may want to point out this section to her boss and try to get her money back. If that doesn’t work, your daughter can file a claim with the California state labor commissioner’s office, which will help her get it back.

--Stacy D. Shartin

Employment law attorney

Seyfarth Shaw

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Disability Benefits for Injuries Unrelated to Job

Q: I have been told that I must have surgery for a hernia, but my company does not offer sick days.

Can I collect disability? I did not get the injury at my current job.

--A.I., Huntington Park

A: You can obtain state disability benefits for injuries unrelated to work, regardless of whether the company offers you sick days. Workers’ compensation benefits apply to workplace injuries.

Employees should carefully evaluate injuries before designating their ailment as a disability rather than a workplace injury, however. If your hernia problem was caused at least partially by lifting or other workplace duties, you might be justified in requesting workers’ compensation benefits.

Disability benefits are limited to a period of months, whereas workers’ compensation benefits can continue indefinitely.

You also might be eligible for workers’ compensation if your injury occurred at a previous job.

If your employer has more than 50 employees and you have worked there for about a year, you may be eligible under the Family Medical Leave Act for 12 weeks of unpaid medical leave with an assurance of a job upon your return.

Even if you have no sick days, you might consider using vacation time so that you are paid during your absence.

--Don D. Sessions

Employee rights attorney

Mission Viejo

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Employer Must Honor Earned Vacation

Q: I suffered an on-the-job injury in the same month that I was scheduled for a week of vacation. My injury kept me from working the entire month.

When I asked about rescheduling my vacation, my supervisor told me they were too short-staffed and that I would just lose the vacation time.

Since vacations are earned in the previous year, can they legally drop my vacation without paying for it?

--D.B., Laguna Hills

A: Once vacation is earned, an employer may not require employees to forfeit it for any reason.

They either have to be allowed to take their earned vacation, or they must be paid all unused earned vacation at the time they terminate.

Employers may, however, have a rule that an employee accrues no new vacation benefits if his or her vacation accrual reaches a maximum amount under a vacation pay policy.

It doesn’t sound as though your employer is trying to do that, but you should make sure you understand your employer’s intentions before you raise the issue.

--Michael A. Hood

Employment law attorney

Paul, Hastings, Janofsky & Walker

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If you have a question about an on-the-job situation, please mail it to Shop Talk, Los Angeles Times, P.O. Box 2008, Costa Mesa, CA 92626; dictate it to (714) 966-7873, or e-mail it to shoptalk@latimes.com. Include your initials and hometown. The Shop Talk column is designed to answer questions of general interest. It should not be construed as legal advice. Recent Shop Talk columns are available at www.latimes.com/shoptalk.