ISSUES: People for the Ethical Treatment of Restaurant Workers

The chicken may be free-range,
but what about the line cooks?

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ILLUSTRATION BY VIRGINIA PERRY-UNGER

There has never been a better time to eat in Philadelphia. Restaurants from very fine dining to casual, fooddriven pubs are popping up in every neighborhood.

Philly chefs are showing up on the Food Network and opening interesting spots back home. Food trucks are everywhere and coffee shops are brewing cup after distinctive cup. Unfortunately, while Philly diners have been enjoying life more than ever, the same isn’t true of our waiters and bussers. “It’s probably the worst time in a decade to work in that industry,” says Fabricio Rodriguez.

Rodriguez runs the Restaurant Opportunities Center of Philadelphia, an advocacy organization founded in 2011 with the goal of improving wages and working conditions for restaurant workers by making sure they know their rights and how to stand up for them. From ROC’s perspective, a booming Philly restaurant industry doesn’t mean that all workers are benefiting equally.

The minimum wage for tipped workers like restaurant servers stands at $2.83 per hour, and it hasn’t increased in 22 years. According to the Bureau of Labor Statistics, the annual wages of Philadelphia restaurant workers actually dropped 11% between 2001 and 2011, while those in the private sector overall rose by 8%.

In a dining landscape where menus are peppered with details, chefs are champions, and farms are fetishized, diners have become accustomed to asking lots of questions, not only about the texture of the velouté or the flavor of the fish, but also about the provenance and culinary processes that guided an ingredient from the farm to the table. This overwhelming interest contrasts sharply with a lack of awareness of the people whose work plays a huge part in the production of a great restaurant meal—the servers, food runners and bussers who make up the “front of house,” as well as the prep cooks, line cooks and dishwashers in the “back of house.”

Professional cooking and waiting tables are hard jobs, with long hours during evenings, weekends and holidays while others rest.

These roles entail the physical stresses of standing, carrying loads and facing down a hot stove for hours, and the emotional ones of dealing with an occasionally abusive public.

At best, these jobs can offer a flexible work schedule, a living wage, opportunities for professional development, and valuable networking contacts in Philadelphia’s close-knit restaurant community. Someone with or without formal education can work hard, move up and make a career for his or herself in the city’s bustling restaurant industry.

At their worst, however, these jobs can be low-paid and repetitive as well as lacking the advancement possibilities, health-care plans and other benefits that are guaranteed to workers in many other industries, like paid time off, vacation time or sick days.

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Forty percent of the workers surveyed by the Philadelphia Restaurant
Industry Coalition have worked “off the clock” (read: without pay),
38% have worked more than eight hours straight without a paid break,
and 57% percent have experienced overtime wage violations.

NO FLU WITH MY STEW

“Everybody likes to brand themselves as being sustainable,” says Rodriguez. He thinks restaurant buzzwords like “sustainable” don’t mean much when the values implied don’t extend to the people who work there. “It doesn’t make any sense to have locally grown lettuce if the person putting the salad together has to go to work when they’re sick.”

And cooks do work when they’re sick. A 2012 survey of more than 600 restaurant workers by the Philadelphia Restaurant Industry Coalition reported that 94% of restaurant workers lack any employerprovided health insurance and 92% did not have any paid sick days.

These basic benefits, which many office workers take for granted, are almost completely unheard of in a restaurant career.

In light of those statistics, City Councilman William Greenlee brought Bill No. 130004, titled Promoting Healthy Families and Workplaces, before the Philadelphia City Council for the first time in 2008. (He tried again in 2013.) The legislation, better known as the Earned Sick Days Bill, would have required businesses employing five or more people to allow employees to earn paid sick time off at the rate of one hour per 40 hours worked. It included protective provisions for employers to ensure that employees didn’t abuse the program.

There was a cap to the time that could be earned, prohibitions against the use of sick days within the first three months of employment, and the requirement that employees notify employers of their intent to make use of the time as early as possible.

The bill is very similar to legislation passed in San Francisco in 2006; in Washington, D.C., in 2008; in Seattle in 2011; and in New York City in 2013. It had broad support from the health and the human-services communities alike. Day-care workers, hair stylists and restaurant workers all testified in its favor.

Server Rosemary Divine earned a round of applause following her testimony: “I see people coming into work sick all the time, especially during flu season, and illnesses spread so quickly in the restaurant business. We’re touching plates. We’re touching silverware. It’s not the kind of place you want sick people working. Opponents of this bill say they support sick time, paid sick time, in concept. Well, I don’t get sick in concept. I don’t have to forego a day’s pay in concept. These are realities that I need to deal with in my everyday life.”

Dr. Walter Tsou, Philadelphia’s former health commissioner, agrees.

“I have witnessed food workers who have gone to work with viral hepatitis infecting salad bars, workers coughing with multi-drugresistant tuberculosis condemning their fellow workers to six months or longer of treatment, people going to work with flu-like symptoms and fever, and employees with contagious skin rashes,” he says.

Tsou was in favor of the bill because most of these workers go in sick because their only other choice is to face a day or more without pay, a luxury many cannot afford. In an industry where hourly wages hover scarcely higher than the legal minimum and where there may not be someone to replace or cover a shift, there are just too many incentives for restaurant employees to work while not feeling well.

Just as there were vocal supporters, there was vigorous opposition to the bill from powerful players. Various chambers of commerce and Patrick Conway, president and CEO of the Pennsylvania Restaurant and Lodging Association, all spoke up against it, as did several area restaurant owners.

While the majority of the opposition’s concerns focused on how the implementation of the bill would burden small-business owners with record keeping and additional expense, their comments also seemed to communicate, either subtly or explicitly, an assumption that restaurant workers would abuse the benefit. “[Servers are] only going to call out when actually the sun is shining, [or] the Phillies game is on,” remarked one restaurateur.

Despite that type of conviction, there’s plenty of evidence to the contrary. Not only did 390 of the 600 workers surveyed—65%—say that they have worked while sick, but the survey by the Philadelphia Restaurant Industry Coalition also reported that 44% of workers have been burned on the job, 51% have been cut, 18% have slipped and been injured, 54% have come into contact with toxic chemicals, and 31% report having done something at work that has put their own health and safety at risk.

The nature of restaurants is that there are often more opportunities for on-the-job injury than in an office, making paid sick time off even more necessary. For restaurant workers, fire, knives, hot oil, broken glass, slippery floors, and the navigation of stairs while carrying cases of vegetables or stacks of dishes are all daily hazards. Michael Cockrell, in support of the Earned Sick Days Bill, offered testimony that would upset even restaurant industry veterans.

Cockrell has worked behind the line, cooking and prepping in restaurant kitchens, for 13 years. But even with that kind of experience, you can’t avoid injury 100% of the time in a job that involves sharp knives. At his last job, he was doing the routine task of slicing tomatoes when he cut his finger—badly. “I told the kitchen manager, and he told me that it was too busy to let me go. If I would have left I could have been fired.” Cockrell’s solution was to wrap his hand in a towel, and then in a plastic bag so he could keep working. “I had to keep cooking and washing dishes for three hours. Finally, after work, I went to the emergency room and got some stitches.”

“Some city council people who were on the fence heard that and they joined us,” says ROC’s Rodriguez. “We expected [Councilman Bob Henon] to be a no vote and afterwards he said, ‘I heard that young man’s story and I remembered where I was from,’ so he switched.”

Thanks in part to votes like Henon’s, the bill passed in 2011. Mayor Michael Nutter promptly vetoed it. In 2013, the year in which the above testimony was offered, it passed again with 11 of 17 votes. The mayor, again, vetoed it. A single additional vote, bringing the total to 12, would have represented a veto-proof majority. Today, in 2014, Philadelphia restaurant workers are still coming to work sick.

Councilman Greenlee, who fought hard for the bill not once, but twice, is frustrated but convinced that despite the mayor’s double veto, the intent behind the bill will wind up on the right side of history. “The more cities do it [and] show that it’s not injurious to the economy,” which has, in fact, been the prevailing finding, “the more I realize it’s the right thing to do, [and] restaurant workers are just about the prime example,” says Greenlee.

Despite the Pennsylvania State Legislature’s recent attempt to pass House Bill 1807, which would actually prohibit, statewide local municipalities (including Philadelphia) from ever passing a bill like his, Greenlee isn’t about to give up. “I’m fully planning to try again, but I need the votes to pass it. If I brought it back today I still wouldn’t have 12 votes, [because] the six people against it still wouldn’t change,” he says. “The squeaky wheel gets oiled, so we need to be squeakier.”

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For restaurant workers, fire, knives,
hot oil, broken glass, slippery floors,
and the navigation of stairs while
carrying cases of vegetables or stacks
of dishes, are all daily hazards.

WAGE THEFT, ON THE SIDE

A lack of sick time to care for oneself—or for one’s children—is one way in which restaurant workers are vulnerable, but while flu season peaks and fades, the way restaurant workers are paid, and often left unpaid, is even more of a concern. Forty percent of the workers surveyed by the Philadelphia Restaurant Industry Coalition have worked “off the clock” (read: without pay), 38% have worked more than eight hours straight without a paid break, and 57% percent have experienced overtime wage violations.

“I’ve never talked to a restaurant worker who hadn’t had some kind of a wage violation,” says Michael Hollander, a staff attorney at Community Legal Services. CLS is a nonprofit organization that provides legal assistance to low-income Philadelphians. Hollander’s restaurant worker clients are very often back-of-house workers, usually dishwashers, who come to CLS after not having received a paycheck.

“Almost everyone who comes in, it’s because they didn’t get paid for three or four weeks. And then we start having a conversation with them and you realize, oh, for the last four years you’ve been underpaid and suddenly your claim is a lot bigger.” Dishwashers are often paid a flat rate of a few hundred dollars each week, which can very easily become an incidence of wage theft if they are working so many hours that their flat rate divided by their hours worked drops their hourly rate below minimum wage. Cooks and managers are also susceptible to the gray area between a salary and an hourly wage in an industry where everybody works overtime and nobody gets paid time-and-a-half.

Wage theft for front-of-house workers looks a little different, but it’s no less prevalent. When a restaurant adjusts hours or clocks workers out early, it’s wage theft. When a restaurant requires a server to pick up the tab when a table dines-and-dashes, it’s wage theft.

It’s wage theft when a restaurant makes tipped workers pay the usage fee on credit card transactions. When a restaurant takes a flat percentage out of a worker’s paycheck for breakage, whether or not a single glass was broken? Wage theft. When a restaurant doesn’t pay an hourly rate of at least minimum wage for training time, it’s wage theft. When a restaurant takes any portion of the tips either for the house or for non-tipped workers like cooks, managers or dishwashers, it’s unambiguously wage theft, according to Michael Hollander and Nadia Hewka of CLS.

Even though the Earned Sick Days Bill did not make it past Mayor Nutter’s desk, he did, in 2011, sign into law Bill No. 110341, best known as the Gratuity Protection Bill. The bill prohibits restaurant owners from docking any portion of tips to pay the per-swipe transaction fees that credit card companies charge restaurants. Though it was a victory for ROC, the problem is that many restaurant workers aren’t aware that this protection exists and some restaurant owners continue to allocate tips to fees (or even to nontipped workers) without realizing the illegality of such a practice.

In May of 2013, front-of-house workers at a Washington Square sushi restaurant, The Fat Salmon, found themselves in exactly that situation. Monthly, servers were tested on their familiarity with the restaurant’s hundreds of menu items. Though menu testing is a common practice to ensure that front-of-house workers can make recommendations and watch for allergies, it became problematic at The Fat Salmon because of the consequences. The test was given only once monthly, and for the entire month to follow each server would only be allocated a portion of his or her tips based on their score on that one test. The remainder of their tips went to the house.

“It took me a year and a half to fully earn my portion of the tip pool,” says Claire Trindle, a former Fat Salmon server. “For a while I tried to justify it, like, if I’m not knowledgeable of the menu then I don’t deserve the full portion of my tips.”

Plenty of workers in Trindle’s situation, bristling at this policy, simply grumbled or found work elsewhere, but she and four of her coworkers went to ROC for help instead. “We realized that we could do something about it, and not just leave.” Rodriguez and the team at ROC urged them to organize and to insist on their rights. With the help of legal counsel from Galfand Berger, they successfully reached a settlement with their employer (who declined to be interviewed for this story) to cover $40,000 in back wages, legal fees and damages.

The case itself is something of a landmark that has sent ripples through the Philadelphia restaurant industry. “This case has generated more telephone calls and conversation than any other case in the last five years,” says attorney Debra Jensen. Months after it was settled, she’s still getting calls from restaurant workers. “Half of them haven’t wanted to tell me where they work, but want to ask questions about their rights. There’s a good chance that one or two [of these cases] will be pursued.” She thinks the sheer number of calls speaks to the prevalence of these problems. The mistreatment of restaurant workers is far more common than most otherwise conscientious diners ever realize.

THE GOOD GUYS

While these stories may seem staggering, they come as no surprise to people in the industry, who may not like the conventions they expose but don’t know any alternative. The prevailing attitude is that this is just how things are. Fabricio Rodriguez and his team at ROC are organizing restaurant workers to prove that there’s another way to do business. “We’re selling a model that doesn’t exist yet … a new model in the industry.”

“To us the root of the problem is that owners and employers lack respect for their workers,” says Rodriguez.

In an industry with relatively high start-up costs and operating budgets, tight margins, and a very narrow window for success, benefits like sick days and payroll for restaurant workers are one of the few places where pennies can be pinched.

What’s more, there’s a pervasive culture of hardship in the restaurant biz that the people who work in the industry seem to support, even if it’s not in their own best interests. The prevailing attitude is that restaurant work is not supposed to be comfortable, that if you wanted comfort you should have gotten a desk job. While this mindset has contributed to the image of the tough chef, the result is a work environment where even good restaurant owners—those who work alongside their team, pay fair wages and comply with labor laws—are held to a standard of the lackluster status quo, instead of against the ideal.

Just down the street from The Fat Salmon, there’s a humble little burrito bar called El Fuego that might just prove that ROC’s vision for a healthy, sustainable restaurant model that includes provisions for workers isn’t as far away as some in the industry may believe.

Since he took ownership in 2011, Pete Ellis has been offering his staff paid time off. While they don’t accrue it as in Greenlee’s plan, they are permitted to take time off when they need it, knowing that they’ll be paid at half their normal rate for any time they take. “I have a couple [workers] who are single parents, who have kids, who have to miss a day here and there … it’s not as great as someone in a corporate job, but something is better than nothing,” says Ellis.

The policy is an informal one, a friendly good-faith gesture without a specific limit on the number of days people can take, and Ellis has never had an issue with it. “When my employees call out, it’s because they’re sick, [or] because of a child-care issue, [but] I never put a cap on it because I don’t need to. My staff is so close with each other, most will do whatever they can to try and get their shift covered.”

Whereas opponents of Councilman Greenlee’s bill insisted that restaurant workers would abuse paid sick days, the very small case study that Ellis’ restaurant represents has shown exactly the opposite, and not at the expense of profitability. “I’m in it to make money, to take care of my family, to make my goals every day … but there’s a difference between that and just looking at your bottom line.”

The investment that Ellis has made in his staff ’s well-being has paid off for him. His newest employee has been at El Fuego for four years, which means that he spends very little time hiring or training people. It also means that he can leave his restaurant for a night and trust that his staff will represent it as well as he would. “It makes the business stronger … because I can’t be there 24/7 … and I’m very confident in the people who are there,” he says.

Ellis credits his experience working as a case manager at Transitional Services of Long Island for teaching him empathy. “I saw how much of a struggle people sometimes face. It made me look at the way I work and the way I run my business.” Now, he’s in the process of setting up a 401(k) retirement savings plan for his team, including a plan to match some portion of whatever they invest.

Though certainly a progressive player, Pete Ellis isn’t alone in Phil adelphia, and it shouldn’t come as a surprise that some of the most highly regarded restaurants on workers issues are wellestablished ones. Tequilas, near Rittenhouse Square, pays their tipped workers $5 an hour instead of the minimum $2.83 that so many other restaurants do. The London Grill in Fairmount has a loyal staff, many of which have worked there for nearly a decade; co-owner Terry Berch McNally cites worker-friendly policies as the reason.

In fact, even if a restaurant owner doesn’t feel that he or she can offer the direct investments of paid sick time or retirement savings, there are many smaller steps an owner can take to support staff. McNally, the London Grill co-owner, lists these examples: create a set schedule, offer chances for education and skill-building, consistently feed workers a staff meal, promote from within, solicit staff feedback and suggestions, and most of all, pay workers on time and in accordance with the law.

Philly is a great town for eating. We’re proud of our restaurants, and we want to trust that when we support them we support not only a great chef, but also everyone backing them up, from the host who smiles and seats us to the cooks who prepare our meals, the busser who ferries away our plates and the dishwasher who cleans them. The progressive values that drive the food movement should apply not only to the quality of ingredients, but to the quality of life afforded to all those who make great restaurants possible.

TAKE ACTION

Frequent Diner?

If you are a restaurant lover, you can support the restaurants that do right by their employees by eating there more often. Download ROC’s Diner’s Guide app, and consider volunteering for their Welcome Table initiative, to challenge and support restaurant owners in making positive changes.

Restaurant Owner?

Reach out to ROC! They’ll work with you to provide a personnel-policy handbook template and help you to structure a paid sick days practice, or to make subtle shifts to make your business more sustainable.

Restaurant Opportunities Center of Philadelphia
1329 Buttonwood St., 3rd Fl.
Philadelphia, PA 19123
215.867.9747
rocunited.org/philly

Restaurant Worker?

If you suspect that you’re being taken advantage of, start keeping records and reach out to ROC for help organizing. Or call a lawyer for help litigating your case.

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