Help Wanted: Who pays if a diner skips on bill?

DEAR CARRIE: I have a question pertaining to my granddaughter. She works as a waitress for a well-known franchised restaurant and tells me that if a customer skips out without paying the bill, she has to cover it from her meager tips. How can she be a waitress and be expected to be a security guard at the same time? Is this legal? -- Shorting a Waitress

DEAR SHORTING: The restaurant's action blatantly violates at least two provisions of state labor law, according to a spokeswoman at the state Labor Department.

"Section 196-d of the Labor Law prohibits the employer from taking any of the tips earned by the worker. Likewise, Section 193 of the law prevents an employer from deducting money for walkouts from the employee's wages."

The restaurant might also be violating state and federal minimum-wage laws.

She should send an anonymous copy of this column to her managers. 

The next question came in response to a column three weeks ago about the difference between volunteering and working.

DEAR CARRIE: I am the director of a not-for-profit who depends on our volunteers for everything from animal care to answering phones. Without our volunteers we would not be able to survive. We have been in business for 40 years and have been blessed to have so many caring volunteers throughout the years. Your answer to "No Kin" about her son volunteering at a public library took me by surprise. I was under the impression not-for-profits could have volunteers who are not paid. Please clarify. -- Volunteering Concern

DEAR VOLUNTEERING: Federal labor laws do allow volunteering at nonprofits and certain other organizations. But certain criteria apply, such as whether individuals freely volunteer their time, and generally on a part-time basis. Below is more information from a U.S. Labor Department opinion letter about what the federal Fair Labor Standards Act considers volunteering.

"It is also important to note that the FLSA recognizes the generosity and public benefits of volunteering and allows individuals to freely volunteer in many circumstances for charitable and public purposes. The Wage and Hour Division has recognized that a person may volunteer time to religious, charitable, civic, humanitarian, or similar nonprofit organizations as a public service . . . Such a person will ordinarily not be considered an employee for FLSA purposes if the individual volunteers freely for such organizations without contemplation or receipt of compensation. Typically, such volunteers serve on a part-time basis and do not displace paid workers or perform work that would otherwise be performed by employees."

That contrasts with the definitions of working included in the same opinion letter.

"To suffer or permit to work means that if an employer requires or allows employees to work, the time spent is generally counted as hours worked. Time spent 'in physical or mental exertion [whether burdensome or not]' controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business, must be paid in accordance with the minimum wage and overtime requirements of the FLSA."

But the bright-line separating working from volunteering isn't always clear.

"It's not a simple yes or no answer," said Richard Mormile, assistant director of the U.S. Labor Department's Long Island office, which is in Westbury. "You have to look at the entire circumstances and make a judgment once you get all the facts in."

For more information, call the U.S. Labor Department at 516-338- 1890 or the state labor department at 212-775-3880.