Honorable Maureen Moore, Commissioner Bureau of Labor Statistics Austin, Texas

Dear Mrs. Moore: Opinion No. O-6671

Re: Authority of owner

_ ormanager of restaurant or cafe to deduct "walkout slips" fromwaitress' pay check.

Your request this department's opinion on the following fact situation:

"Ithas been called to our attention that several cafes and restaurants throughout the state are holding their employees liable for non-payment of customers checks - i. e. The waitress serves a customer his food and gives the customer his guest check, but the customer instead of going to the cashier and paying same simply walks out.
"UnderArticles 5155 et seq., Revised Civil Statutes, makes it theduty of each employer topay its employee thewages arranged by him or her as often as semi-monthly.
nUnder the law can the owner ormanager of the testaurant or cafe deduct these walkout slips from thewaitress' pay check?
The Texas Semi-Monthly Pay Day Law, Articles 5155, et seq.,V.A.C.S., 1925, as amended, requires, among others, amercantile establishment or any corporation "employing one ormore persons . . . .topay eachHonorable Maureen Moore, Page 2

of its employees thewages'earned by him or her as often as semi-monthly" andprovides that those employers "wilfully failing or refusing topay thewages of any employee at the time and in themanner provided in this Statute shall forfeit to the State of Texas the sum of Fifty ($50.00) Dollars for each and every such failure or refusal". (Article 5157)

A restaurant or cafe has been construed tobe amercantile establishment. Craig v. Bourdouris, 241 Ill.App. 329.

No citation of authority isnecessary to sustain our opinion that thephrase "wages earned by employee" means the agreed or contract price promised by the employer to pay the employee. Itmeans the entire sum.

Provision for forfeiture or deduction, if reasonable, are binding upon the employee. "The validity of provisions for deductions or forfeitures depends upon their reasonableness. If unreasonable or oppressive, they will not be enforced." 39C. 3. 163, Sec. 223. "Deductions from an employee's wages may bemade to cover losses occasioned by his negligence orwant of skill, but not for losses due to causes over which the employee may not, however, be penalized for violation of a rulewhich he does not know of andwhich he has not contracted to observe." 35Am. Jur. 503, Sec. 228. "Aprovision in a contract of employment that wages shall be forfeited inwhole or inpart for aviolation of rules is, in the absence of statute, valid and enforceable. 35Am. Jur. 504. Texas has no statute regulation suchmatters in contracts of employment.

Inview of the foregoing general rules of law, we are of the opinion that an employer and awaitress employee may enter into avalid contract whereby the employer is authorized todeduct fromher salary orwages the amount represented by customers' checks issued by her and not paid. In the absence of such contract, thewaitress would not be liable for such checks, and the amount thereof could not be deducted from her wages or salary. Yours very truly APPROVED MAY 7 1946 AlTrmEYGBNERALOFTEXAS
/s/ Carlos C.Ashley /s/ Arthur L.Moller FIRST ASSISTANT ATTORNEY GENERAL ALM:ms , Assistant

This opinion consider&and approvedin limited conference