by Wilton H. Strickland

Imagine this. You are working as a server in a busy restaurant, and one of your tables dines then dashes out the door without paying. Your employer notifies you that the entire cost of the meal will be coming out of your paycheck. When you complain that this is unfair because you could not have prevented the diners from leaving, the employer reminds you that you signed a consent form that authorizes this type of deduction.

I don’t have to imagine it because a friend of mine fell into this very predicament and asked me for advice. What I found out is, as usual, that it depends. She was lucky to be working in Montana because this sort of deduction is illegal here and cannot be validated by consent. Workers in Florida are not so lucky, highlighting again the stark differences in employment law between the two jurisdictions. 

Before exploring those differences, it is important to consider the federal Fair Labor Standards Act (FLSA) and whether it has anything to say about this. According to the U.S. Department of Labor, “Deductions made from wages . . . are not legal to the extent that they reduce the wages of employees below the minimum rate required by the FLSA or reduce the amount of overtime pay due under the FLSA.” So, there is no blanket prohibition against deducting wages under federal law, but rather a limitation that forbids the practice only if it brings wages below a mandated threshold. This means that state law will determine whether an employer may or may not deduct wages for an employee’s supposed negligence.

Florida law places no limits on the ability of employers to deduct wages, paralleling Florida’s at-will approach to employment in general. So, my friend would have been out of luck if she had been serving in Pensacola rather than Pablo.

Because she was serving in Pablo, she benefitted from Montana’s more robust protections for workers, which include Attorney General Opinion 17, Vol. 36 (1975). The Opinion states that a teamsters’ contract cannot authorize the deduction of wages “for damages caused by employee negligence during the course of his employment,” specifically because of a statute that allows only certain types of wage deductions. That statute (now codified as Mont. Code Ann. § 39-3-204) provides that “reasonable deductions may be made for board, room, and other incidentals supplied by the employer . . .  or as otherwise provided for by law.” No mention is made of deductions for negligence, meaning that such deductions are not allowed, thereby applying the famous maxim expressio unius est exclusio alterius (the expression of one is the exclusion of the other). Better still, another statute (Mont. Code Ann. § 39-3-208) voids any contract that violates the statutory scheme, confirming that a consent form is toothless and cannot justify a wage deduction for supposed negligence. On top of all that, another statute (Mont. Code Ann. § 39-3-206) states that an employer who fails to pay the required wages or who otherwise violates the statutory scheme is guilty of a misdemeanor.

I told my friend to let her employer know that she was going to do him a big favor by simply asking him to stop deducting wages, since he could wind up in hot water for doing this to her and to the other servers at the restaurant (any of whom might wise up and file a complaint with the Montana Department of Labor and Industry). I also found and shared with her a decision by the Montana Supreme Court that voids a contract withholding wages from nightclub employees to pay for their room and board, which would drive the point home in case her employer sought legal counsel. Smith v. Tyad, Inc., 2009 MT 180, 351 Mont. 12,209 P.3d 228.

After some hemming and hawing, the employer finally relented and saved himself a boatload of trouble. My friend’s co-workers were grateful. And I added to my pro bono hours for the year. Everyone came out ahead.