Help Wanted: Can boss take my tips?

DEAR CARRIE: I work as a waiter in a restaurant. Before I left for work one Saturday night, I introduced another server to diners in my section. I said, "Hey folks, this is So-and-So. He will be taking care of you this evening." And here is the problematic part: I pointed to another co-worker and said, "Don't worry about him, he's behind the bar, and he won't bother you tonight."

Then I left, thinking all was OK. Well, unbeknownst to me, a woman at the table took offense at something I said. She demanded to speak to the owner. He then called me and told me to come back and apologize because she was freaking out. I was able to return quickly. The owner told me to apologize and offer to pay the woman's check. I apologized but didn't offer to pay, and I left again. The next day when I asked for my tips, I found out that the owner had taken my tips, cash and credit payments, to cover the guest's check. Is this legal, and should I demand the money back?

-- Costly Joke

DEAR COSTLY JOKE: The owner's action is blatantly illegal -- and in more ways than one. For starters, by law he can't accept or demand any part of your tips.

"It is also unlawful for your employer or any other person to demand or accept any part of your tip earnings," says the state labor department in its "Worker Protection" booklet.

What's more, by law, the servers, not the company, decides how tips are distributed. For example, waiters can decide to share tips with the busboys or the maitre d'.

The problem becomes even more serious if the deduction lowered your hourly wages for the week below the state and federal minimum wage of $7.25 an hour.

Beyond the tips issue, your employer cannot dock your wages to cover damages or perceived damages, in this case a customer's bruised feelings. That is a no-no, in large part because generally, except for taxes, employers cannot deduct money from your check without your written approval.

What your employer can do legally is fire you, regardless of whether the customer overreacted. New York is an employment-at-will state. That means that employees not covered by a contract can be fired at any time. But the employer cannot legally take his anger out on your tips and wages.

Broach the topic with your employer, as diplomatically as possible.

DEAR CARRIE: I belonged to a union and worked in a hospital. I resigned from my job a few months ago but never received information about COBRA. When I called the union, people there said the company's human resources department never told them I had resigned. The director of human resources told me she would look into it. I am still waiting for a response. In the meantime, I've been without health insurance for a number of months. I do not qualify for Medicaid and, at 63, am too young for Medicare. Can I force my former employer to pay for my health insurance or can I sue?

-- Benefits Casualty

DEAR BENEFITS: Some unions sponsor their own plans and directly carry out COBRA duties, but often the union member is receiving health coverage from an employer plan, said Susan Sajiun-Fitzharris, vice president of employee benefits at HUB International Northeast in Hauppauge.

"Regardless, if the COBRA notice never went out, the person has every right to demand coverage," she said. "I would suggest that the person ask -- at minimum -- for retroactive coverage back to the date of the qualifying event and a waiver of all premiums that might be owed."

And she added, "The person has the legal right to sue the sponsor for coverage and recover all legal fees and recover a special per-day penalty for each day the notice was late."

NOW ONLINE

To file a form for unpaid wages go to http://www.labor.ny.gov/formsdocs/wp/LS223.PDF.

For more on COBRA go to http://www.dol.gov/dol/topic/health-plans/cobra.htm.m