In early February of this year I attended a “mandatory” staff meeting at the bar where I worked. Like every other service industry staff meeting I have ever attended, it followed the standard script: opening with praise for the staff, a rote rattling-off of everything that we were doing wrong or could improve upon with a litany of minute alterations to operating procedures and protocols, and a quick “any questions?” (There are never any questions.) We wrapped up with a final half-assed rally of thanks and praise: “You’re the best, there’s no one like you, #1.” (This is an actual quote.) Afterwards there was pizza. It’s the same thing every time.
However, at the end of this particular meeting, during the final lavishing of thanks and as most of us were already reaching for our coats, one of the partners went slightly off script and ad-libbed a complimentary flourish that gave me pause. He said, “It’s because of all that you do that [this place] is as successful as it is…thanks to all of your hard work, this year I was able to buy a house.” Though odd, and frankly quite a tacky thing to say to a room full of people whom you personally pay less than minimum wage, I do believe that he was being sincere. Spend enough time around them, and you come to realize that most bar owners (and restaurateurs) exude a certain aura of hep insouciance to anything other than their own brand, which tends to render them rather oblivious to their tone-deafness.
Over the course of the next couple of weeks, maximum occupancy allowances for bars and restaurants dropped and curfews began. Then, on the night of Sunday, March 15th, Mayor Bill de Blasio ordered a complete shutdown of New York City. My fellow co-workers and I were informed by a laconic late night email from our employer:
“As per the mayor’s order, tomorrow night we will be closing our doors until further notice. At least you will all be immediately eligible for unemployment. Let us know if you have any questions and we will keep you informed of our status.”
What followed was a period of mad scrambling. Every single co-worker and friend I have in the industry relayed tales of desperately reconfiguring budgets, projecting and scraping, calling in favors, dodging student loan collectors, bargaining with roommates and pleading with landlords—all the while trying to find a connection somewhere within the sadly overwhelmed and grossly antiquated bureaucratic tangle that is the Department of Labor’s online services.
Loyal bar patrons began starting relief funds to support this huge mass of the newly unemployed, and fellow industry people quickly began inundating each other with text and email chains covering everything from free legal advice regarding renter’s rights and possible (or seemingly imminent) evictions, job opportunity leads, lists of resources for help with mental health and anxiety issues, financial counseling and aid, and even just simple “how are you holding up?” check-ins. It was an inspiring moment of solidarity, a welcome reminder that, despite everything, we were all more than willing to help our sisters and brothers.
The “check-ins” from our employers were much less inspiring. Some were platitudinal: “Hope everyone is doing well, maybe learning a new instrument or spending time with the pup in the yard. Holler if you have any questions about how unemployment works!” (I kid you not.) Some were openly pretentious acts of generosity: “Here’s a link to an emergency relief fund for service industry folks you should try”—basically invitations to participate in charity auctions sent by those who had helped create this mass of uninsured people living paycheck to paycheck in the first place. They may as well have offered us $2 scratch-off tickets.
A number of those funds, charities, and other aid organizations had their servers crash multiple times due to the overwhelming responses they received from scared and desperate service industry workers seeking financial relief. In an attempt to assuage the worries of potential applicants, one site in particular issued a statement that they had to reconfigure their application process as the response that they’d received was so overwhelming. It then went offline for days.
To read through the posted pleas and expressions of anger and frustration on the social media sites of these organizations by people trying to get through was to see just how precarious and anxious the state of the working class has become. To paraphrase E.M. Cioran, it seemed even our very quest for relief had become just a new form of anguish.
The fact that we’ve found ourselves this unsupported is far from surprising. The service industry, one of the top four employment sectors in the United States (comprising 16.7 million people), has sat atop the list of low wage, high violation industries for the better part of 20 years. The industry is guilty of most of the worst kinds of workplace social and economic inequalities—in fact, its GINI coefficient (a statistical measure by which income or wealth inequality is represented amongst a defined group) is higher than the national average. The median income of service industry employees, in every area surveyed, are dead last when compared to that of every other industry.
The industry profits by paying its employees less than the minimum wage, relying on the largesse of patrons to make up the difference. This is due to a “tip credit” employers receive from the federal government, which is supposed to equal the difference between the cash wages paid and the federal minimum wage. Unfortunately, employers routinely neglect the responsibility to make up that difference themselves. In fact, according to the Economic Policy Institute, “investigations [in 2018] of over 9,000 restaurants in the U.S. … found that 84 percent of investigated restaurants were in violation of wage and hour laws, including nearly 1,200 violations of the requirement to bring tipped workers’ wages up to the minimum wage.”
These employers also regularly pay employees the tipped minimum wage for non-tipped work like setting tables or rolling silverware. It is also not unusual for employers to expect their employees to perform off-the-clock work and deny overtime pay (usually by offering a fixed per-shift rate rather than an hourly one). And, as anyone who has ever worked in the service industry can attest, bosses as a matter of routine fail to give workers uninterrupted breaks of any duration for shifts that can be ten-plus hours long.
Even when politicians address wage theft, their efforts tend to be completely spineless. Earlier this year, when New York Gov. Andrew Cuomo announced that he was going to increase the minimum wage requirement, he excluded bars and restaurants—the largest employers of tipped workers, and again, the most shameless offenders when it comes to wage violations. And while Cuomo has been justly criticized, he is merely continuing a nationwide trend that began, according to a report by Fairwage.org, back in 1996 “[when] the National Restaurant Association struck a deal with President Bill Clinton: In exchange for a minimum wage increase, the tipped wage was frozen in place.”
The federal minimum tipped wage of $2.13 an hour applies to any worker who earns $30.00 per month in tips. In Louisiana, where the service industry is one of the largest sectors of employment and workers rely on the federal minimum wage, Gov. John Bel Edwards has repeatedly attempted to raise the state’s minimum wage to $9 an hour since he was elected in 2016. But despite his administration’s continued efforts, concerted lobbying efforts by groups like the Louisiana Association of Business and Industry and the National Federation of Independent Business have continually resisted the effort.
Despite the industry’s collectively objectionable record, some businesses claim they “are essential to the economic and social fabric” of our communities and that their low-paying jobs help “maintain the character of our neighborhoods, [by providing] the best pathway to social mobility for the majority of low-income families.”
A steady stream of both cultural and business-oriented media outlets have claimed that “it is abundantly clear that bars and restaurants need and deserve a bailout…” No call for bailing out the industry itself, however, has been so audacious and self-centered as that of restaurateur and celebrity chef Tom Colicchio, who called for restaurant owners to receive “four months of income replacement at 75 percent from the government in order to “’get open and get [them] through the slow period.’”
“Get open”—a.k.a., return to business-as-usual business. This, for workers, is unacceptable. Unacceptable because even if we do return to work, not only are we at risk of COVID-19 transmission, but our places of employment are now operating at a vastly diminished capacity—conditions far from ideal for those who rely on the generosity of patrons to even approach a livable wage. On top of that, we’re also returning to workplaces that, for the most part, still lack healthcare coverage and sick leave. In fact, the National Council for Occupational Safety and Health has included the National Restaurant Association on the list of top 12 offenders who have been actively battling paid sick leave for restaurant employees.
Not only does the industry fight against having to pay its employees basic paid sick time, we aren’t even offered unpaid sick time. The industry standard regarding time off is usually delivered in all bold caps: YOU ARE RESPONSIBLE FOR COVERING YOUR OWN SHIFTS. This is simply a more concisely-worded: “Oh, you don’t feel well? Awwww, too bad—you get back in that bear suit and dance…” It boggles my mind when I think of how many of us have muscled through shifts fighting off one ailment or another because we couldn’t find shift coverage. And if we did manage to find it, it’s shitty knowing that you’ll have to miss a day or two worth of wages. And now we’re being asked to work during the worst pandemic since 1918? I can just see that “MUST REPLY” email now “All employees are responsible for covering their shifts before they die.” This is a form of cruelty and greed that tacitly gives a financial incentive to spread disease and compromises the safety and wellbeing of customers.
To add insult to injury, more states are fighting for legislation that will provide businesses immunity from any COVID-19 related lawsuits. The stated purpose of such measures (which will incidentally be retroactive,spanning from December 2019 until December 2024) is “to protect already-struggling businesses.” These measures seem to do little more than place the employees of said establishments in the same category as customers; for both groups, any claims made against an establishment will be subjected to what is called a ‘rebuttable presumption’ on the grounds “that the claimant assumed the risks associated with COVID-19 infection, injury, or death when he or she entered the premises.”
And while the protections provided to businesses by the proposed so-called SAFE TO WORK ACT—currently being pushed by the Senate as a provision of the next coronavirus relief bill—“help, but do not absolve employers,” the heightened burden of proof and pleading requirements could make filing a lawsuit practically impossible. As the law firm Holland & Knight explains:
“…a defendant [i.e. bar or restaurant] who maintained a written or published policy on mitigation of transmission of the virus at the time of the alleged exposure would be presumed to have made reasonable efforts, which, in turn, the plaintiff may rebut by showing that the defendant was not complying with its own policy. In order to succeed [with a complaint] a plaintiff must prove by clear and convincing evidence that the defendant 1) engaged in gross negligence or willful misconduct that 2) directly caused the alleged harm, damage, breach or tort resulting in the personal injury. Significantly, acts or omissions resulting from a resource or staffing shortage would not constitute gross negligence or willful misconduct by a healthcare provider.”
Plaintiffs would also have to:
“…plead with particularity (a heightened pleading standard): 1) each element of the plaintiff’s claim; 2) the identify of each defendant and the factual basis for the belief that a particular defendant caused the plaintiff’s alleged injury; 3) every other person or place visited by the plaintiff and every person who visited the plaintiff’s residence during the 14-day period prior to the onset of the plaintiff’s symptoms, along with the factual basis for the plaintiff’s belief that they did not cause his or her alleged injury; and 4) each alleged act or omission constituting gross negligence or willful misconduct.”
All this basically boils down to: “It’s your word against ours. Good luck with that.” Given that the National Restaurant Association included in its proposed Blueprint for Restaurant Survival the necessity of “liability protections,” we should not be surprised if, after COVID, this becomes a universally-accepted policy in the “hospitality” industry.
Most recently, in a typical display of business-minded self-interest, restaurants have started adding a COVID-19 Recovery charge to its patrons’ bills. The stated aim of said measure: “to help dining establishments stay afloat” will indeed help restaurants’ bottom line, but ultimately it will hurt their workers by “discourag[ing] tipping” according to a report by Rachel Wharton in the New York Times “…as some customers will mistakenly assume that some of the money automatically goes to employees.” Again, these are employees that are already earning well below the minimum wage, who even pre-pandemic were already nearly twice as likely to live in poverty as non-tipped workers.
For most people employed in the service industry, broaching any of these topics—sub-minimum wage, lack of healthcare, lack of sick leave, lack of basic workplace protections—with one’s employers is a risky endeavor. If you don’t receive a “perhaps you’d be happier elsewhere” (and subsequently find your number of shifts cut or your schedule changed), you will invariably be proffered some slight variance of: “that’s the restaurant biz,” “it is what it is,” or “you’re being unrealistic.” But these tired old saws are used by those who benefit from the status quo to ease their conscience and excuse themselves from making any sort of sacrifice. It does not speak well of those who employ such logic—nor of those who accept it.
The service industry continues to fight for owners, not workers. Melissa Fleischut, the president and CEO of the New York State Restaurant Association recently said: “We should be doing all we can to ensure that lifelines exist for these small business owners”—again, just the owners, not their employees, at a time when the country’s moratorium on evictions is drawing to an end and CARE payments for the unemployed have expired with no real relief in sight. And in an open letter posted on their website this past September, the Louisiana chapter of the National Restaurant Association argues that restaurants and bars should be allowed to fully reopen immediately. Utilizing some very specious and Trumpian reasoning, the authors state that “there is no direct correlation between actual transmission taking place in [restaurants] versus other locations.”
But very little has been said about the people whom these “owners” employ, people who unlike customers have little choice regarding the assumed risk of returning, the people who back in March and April were turned out with no “lifelines” other than useless rent deferments, Kickstarter pages, and spectacular inaction by pandering, ineffectual politicians. Nothing has been said of the conditions which they expect us to thankfully return.
I mentioned earlier how I honestly thought that my boss’s ‘thank you for the house’ crack was meant as sincere. I still do. Because of course the self-interested and monied classes would think that thanking us with a handful of stale compliments and slice of shitty pizza is an adequate reward for our labors; of course they expect us to unquestioningly return to the same conditions that lead us here; of course they would casually dismiss any questioning of the status quo, any critique of their modes of operation because the most we can ever muster in response is a “that’s fucked up” muttered under our breath to a coworker. Individually we gripe, but collectively we cower or discuss it as if it’s a problem happening elsewhere.
The initial outpouring of inter-community help at the start of the pandemic was encouraging, but generally there is little solidarity in the service sector these days. Only 1.4 percent of service industry workers belong to unions such as SEIU and Unite Here! While there are groups such as One Fair Wage, the Democratic Socialist Labor Commission, and Restaurant Opportunities Centers United who actively advocate for changes in the workplace, the reasons that things have remained as they are for so long are, according to Sam Bloch in The Counter, “more cultural than … economic or legal.” As Bhaskar Sunkara explains in his book The Socialist Manifesto, “most people don’t have any reason to believe that politics can improve their lives. Collective action—either in the workplace or outside it—is often riskier than accepting the status quo.” The dilemma “is figuring out how to take anger at unjust outcomes … and turn it into a challenge to the system itself.”
This needs to change, and it is not beyond our abilities.
Forming a union is critical of course, but it may be difficult in a resistant or apathetic environment with an entrenched culture of hopelessness. One way to start building awareness and a sense of agency is by becoming better informed as to what our actual rights and protections are. The Economic Policy Institute is a good resource. There are even a surprising number of law firms willing to pass on often overlooked information regarding workers’ rights and even legal advice regarding how to file complaints. By simply being more informed on an individual level we can begin to chisel away at the small inequities of our workplaces that wind up encouraging the more blatant abuses, and maybe encourage our more apathetic colleagues to believe that better things are indeed possible.
If you are afraid of coming across as “hostile,” “toxic,” or “socialist” (all honorifics I myself have earned), you can try the carrot instead of the stick. Organizations like Restaurants Advancing Industry Standards in Employment are “committed to taking the “high road” to sustainability. [That] believe[s] in fair wages, better benefits, racial equity and gender equity in the restaurant industry…by raising standards everywhere.” You can nominate worthy businesses at their website.
We can all continue to write and call our government representatives to demand that any bar or restaurant receiving aid should be forced to institute a basic non-tipped wage, healthcare coverage, and paid sick time for all returning workers. Believe it or not, actual correspondence does attract attention. Besides, the USPS can use some extra business.
Patrons can help also: if you like to write online reviews, try focusing more on workers’ rights than menu items. I mentioned above that bar and restaurant owners, to the detriment of more personable traits, exude a certain type of narcissistic hepness. Reviews like “we rolled into such and such a place and it was great, but after talking with the owner and finding out they didn’t offer their servers breaks during their shifts (sad emoji) we will not be back” might help more than you know.
This prolonged, COVID-19 induced period of (relative) inactivity has allowed us time to realize that our long-accepted norms are nothing but corroded structures based on inequality and exploitation. Hannah Arendt once said that there are moments in time when “the decline of the old and the birth of the new, is not necessarily an affair of continuity…the chain may be broken and an ‘empty space’, a kind of no-man’s land, comes to the surface which can only be described in terms of a ‘no longer and not yet.’” We are now in such an “empty space.”
As much as service industry owners need bailouts, they need us to return to work even more. They need us to patronize their establishments. And for the most part, we are more than willing to return to work and looking forward to returning to our favorite eateries and pubs—but not to the old status quo.